Lecture 1 – 25/04/22

Anzac Day

Lecture 2 – 26/04/22

Outline:

- What is a constitution?
Does New Zealand have a constitution?
What is distinct about our constitution?

- The branches of government:

Legislature
Executive
Judiciary

- Parliamentary supremacy
How these branches fit into our constitution – what does this mean

- Separation of power and ‘Checks and Balances’

What are the ideas behind the concept of separation of powers?

- The rule of Law

Important to NZ structure – understand who makes the law and how it is made > what safeguards – if any –
on the unfair or arbitrary use of said power
- What is there that stops the government from making whatever laws it wants

What is our constitution?

- A very Americanised world
- The U.S constitution – the worlds oldest and famous constitution

What is it?
- A document containing rules about how government works in the United States
- In essence it is the blueprint for the structure of government

What sort of things are in the US constitutions?

- The rules for the election of the president – held every 4 years
- The first Tuesday of November
- Contains rules for what happens when the president dies while in power
- Or if they were to be impeached
- Contains rules for the election of the house of representatives – the congress people as well as the
senate

The constitution creates and gives powers to the US supreme court

- Divides power between the federal government and the 50 state governments
- Contains the bill of rights – first 15 amendments to the US constitution
- Guarantee individuals’ certain protections as citizens e.g., freedom of speech, freedom of religion,
freedom of the press
- The rights to bear arms – as well as keep

What’s the difference between ours and the US

- Deals with fundamental questions if the structure of government
 - How the different parts of the government relate to each other
- Establishes the 3 branches of government: legislature, executive, judiciary

Sets up the rule of government

- 27 amendments

3 ways the US constitution is special:

- The measuring stick against all other laws are measured

If congress passed a law for citizens to email – the courts will say it’s a breach of the amendment and can
strike it down

Does NZ constitution look like that?

- No single document – its unwritten > not one single document which contains our constitution
Not unique with having an unwritten constitution – i.e., only 3 countries that have an unwritten constitution
– NZ, Israel, and the UK

In a variety of places – NZ’s constitution in comparison to the US’ constitution > easier to understand

- Not entrenched – you can change our constitution with simple majority in parliament
- Not supreme law – supreme court cannot strike down act of parliament > our constitution is not
supreme

What makes up our constitution

- Constitution Act 1986
- Electoral act 1993
- Judicature act 1908 – replaced by the ‘senior courts’ act 2016 > establishes the different courts
Contains the rules of governing these courts > the qualifications to become a high court judge for example
- Treaty of Waitangi 1840
- Bill of rights act 1990 > certain freedoms
- Imperial laws
A bunch of old English/UK acts that are perhaps are a part of our Law e/g/, magna carta – apart of NZ law
- Standing orders – of parliament
The rule which regulates the functioning of parliament – how parliament operates
- “Letters patent”
Letters from the sovereign – the queen – to who her representative in nz – the governor general
These are set out in letters from the queen to the governor general > they are open to anyone to read
- Unwritten conventions

Despite we have a variety of sources – they aren’t all written down

3 key constitution principles – underpinning our constitution

- Parliamentary supremacy
- Separation of powers
- The rule of law

More complicated constitution in comparison to the US

- A lot of things that makes it simpler

NZ has one house of government – house of representatives

- We don’t have an upper house
Unicameral system

We are not a federal state – we are unitary

- No state governments like the US < as well as their federal laws
Federal constitution and state

What are the 3 branches of government?

Legislature
- Government which makes the law
- All MP’s that sit in parliament

Executive
- Enforces/administers the law
- Government

Judiciary
- Interprets the law
- Makes them as ACTs or statutes

Where are they found in the constitution?

- Constitution act 1986 – not the same as the US constitution
- Also, the sovereign

Overview of the structures of NZ law

Lecture 3 – 28/04/22

Introduction to NZ’s Legal System

Branches of government

Not a single of document – acts, letters of patent

- Our constitution is an unwritten one – it isn’t entrenched > doesn’t require special procedure to
amend it

Legislature > makes law

MPs who sit in parliament

Executive > administers/enforces the law

Judiciary > interprets law

Viewing them and the roles they play:

- Making statements and having authority

Authority – provided in our constitution act 1986 > refers to the 3 branches of the government
“Parliament has full power to make laws”
- Name your authority

Parliament has full power to make law

The sovereign of right in NZ

Who is the sovereign right of New Zealand – the queen > appoint a representative the governor general?

Who makes the laws?

Basic principle 1: parliamentary supremacy
- Parliament in theory is the most powerful branch of government
- Parliament is the elective people > they make a pass the laws of parliament
- No limits for what laws parliament can pass

Separation of powers:
Balances and checks

Basic principle 2 – 3 branches of government are kept separate

- None of those branches have absolute power

The idea is that if the powers are kept separate, they are kept as buffers
- It does so by providing a system of checks and balances

Why this doctrine is desirable;

Ponder the doctrine of separation of powers

- The idea is that the government works best when the government works separate
The executive can act as a check – administrating the laws fairly
Judiciary can act as a check on parliament and executive – interpreting laws parliament has passed, as well
as rules narrowly

What does it mean for parliament to say we have checks and balances?
- Checks are to keep the executive in line – constrain
- Balance – not putting the power all into on branch

Diving power into separate branches so each holds power over another to an extent

Parliament checks the other branches

- Parliament has the role to check on the other branches

How does it do this?

- Parliament can override the common law – can be over written
Why can parliament do this?
- Parliament supremacy

Courts have a role in interpreting a statute – what does a statute mean?

- If parliament doesn’t like it, they can change the law to get rid of it

Parliament can overrule statutes that have been previously made – they can amend it
- Parliamentary questions scrutinise the activities of the executive > the budges of executives
- How much to rule the public sector?
- Parliament’s regulations review committee monitors the executive regulations
Regulations review committee

Parliament can sack judges

- Hasn’t occurred in NZ
- What can they be sacked for? If they are guilty of extreme misconduct > taking bribes etc.
Becoming incapacitated

Judiciary checking other branches:

- Judges review the exercises of power by the executive
If they are unlawful > ultravirile
A statue that requires the executive to do a course of action > unlawful
 Procedurally fair > consult with them – unreasonable

- Judges can interpret statutes to narrowly avoid injustice

- Judges are independent under our constitution
You can only be moved for misbehaviour and incapacitated
- Can’t reduce their salary > forcing them out by paying less

- Judges can suggest appropriate reforms

Generally, well accepted – left or right wing will generally listen to judiciary sugg