Lecture 1 – 02/05/22

Judges
- Can interpret statues to avoid injustice
- They are independent > cannot sack a judge unless for severe misconduct or in compacity – doesn’t
include decisions made that are ‘wrong’ or aren’t in favour\

They may get sent to the attorney justice – or court of appeal

Executive
- Can check the other branches
- Controls the legislative agenda – the legislature says these bills are coming before parliament and are
going to pass – this makes it hard for parliament to pass large laws
- The executive can soften laws impact. How?
The executive is responsible for controlling the laws and can soften the impact e.g., police normally have
discretion in certain aspects to decide whether to prosecute or not.

- When a bill comes before parliament it has to undergo a vetting to see it is the bills of rights Act > so
it doesn’t infringe on any of the freedoms within the bill of rights. this responsibility is for the
attorney general
- To see if the legislation complies with the bill of rights or not

Theory of separation of powers > but how does it work in practice

To have the separation of power > need to look at the branches of power
Under the constitution act parliament has law making power under section 15 (1)

Parliament consists of the sovereign rights of New Zealand in the house of representatives
- Parliament has power to make law
- Consists of both MPS of the sovereign right of NZ > as discussed in section 2 the sovereign right of
NZ is the queen – the British monarch

The queen wears several hats (metaphorically)

- The queen of Great Britain but has a lot of duties there
- What she does as the queen in Great Britain we are not impacted by decisions made there – the
queen can declare war, but we are not impacted – but we could be???
- The queen does have a whole different legal persona – one queen but several different legal persons
> a shadow overhanding each country that has the queen as sovereign – there is queen in the right of
GB – Australia – Canada

The head of state – our constitution figure head – monarch

Government come and go but the monarch goes forever – section 2 of the Constitution Act
- Gives rise to the issue does the queen personally deal with NZ issues – no
- The government general acts on the behalf of the queen – the essence of her agent (section 2 (2)) of
the constitution
- The queen delegates the powers to the governor general
How does the government general get these powers – gets them from the instructions by the queen > one fo
the sources of the NZ constitution – the queen delegates her powers to the governor general by ‘letters
patent’.
- The last ones were written 1980 – they set up the office of the governor general and dish out powers
e.g., set up the executive constitution of the advisors
- Set out the power to exercise the prerogative of mercy i.e., governor general pardoning someone of a
crime – comes from the letters patent

Parliament has power to make laws

Parliament = MP’s

Queen is queen of NZ

Officials will draw up laws – MPs vote to intact this law

What is the role of the queen (section 16) constitution?

- A bill becomes law when the sovereign/governor general aggress and signs it in token
- Nothing becomes the law until the queen signs it before it becomes a law

What if MPs or the governor general disagrees with the law. What happens?
- The queen isn’t elected – does not live her > has no political role

Disagreement:
- There never is a disagreement – the practice is that the governor genral/queen has no part into the
law of NZ –
- Looks like a powerful role on power – but in reality she hasn’t got much power over NZ law

How do we get around the idea of this.

- The queen always has responsible minister

The government ministers who have powers – won election

“Responsible minister”
- Not because they behave this way

Governor general refuses to sign to sign the bill – constitutional crisis

- Has never occurred > unlikely to occur
- The queen agrees with the governor generals

Where’s the authority of this? who says the queen is always/responds to the advice of the minister?
- Where is this written down?
- It is not written down anywhere

Sources of our constitution

- The queen always follows the advice of the responsible minster > unwritten convention of the
constitution

Constitution convention – unwritten rule or guideline that tells people what to do in particular constitutional
situations > cant go to court to enforce it as its not a law
 - It evolves over the practice and habits
- Most unwritten conventions come from Britain > not written down

Metaphor:
Written rules – skeleton
Unwritten – muscle tissues and ligaments

Marks goven for exampls

- The queen always follows the advice of responsible minsters
- The government resigns if tis defeated in the election> not write down there – will always resign
- If government is voted out – the new one will be sworn in > period in-between is the convention that
the outgoing government will not take any new initiative

We are going so see a cabinet system which administers legislative agendas

Our system of government

What else does parliament do?

Besides debating and passing laws

- Hers petitions from people who have grievances

- Minister of issues of the day
- Urgent debates of issues

Executive branch – carries out the law/ administers the law

- Ministries are apart of the executive

- Ministry of health etc.

Government departments – department of internal affair – IRD – police – armed forces

- Local government
- State owned enterprises – nz post
- ACC

The executive is a large branch

- Government is getting bigger

Introducing new concept – executive council

- What is this?
The collective name for ministers – all ministers is a part of the executive council
- Differs from cabinet
Some people who are ministers but sit outside cabinet
- Cabinet does not exist in written form in our constitution, but the executive council does > we can
find this in letter patent from the queen to the governor general

What does the executive council do?

 - Provides advice to the governor general

The executive is the administrative bits of government - made up of lots of governmental organisations
- On top is the ministers – que\

Judiciary – interprets the law

- Resolves disputes between individuals and the state
- Lots of courts – supreme, family, environment, employment, Māori land court
Parliamentary sovereignty – judge decides a case one way – parliament will pass a law that overrules the
decision > parliament wins

One big problem with the theory and should stick out

- Overlaps between the different branches > they are not truly independent of each other
- If they overlap – spill over – how can they really be separate and keep a check on other branches?

Most obvious overlap:

Executive council – why?
- Executive council is the highest formal governmental body of NZ – Means all minsters inside and
outside cabinet – all the heads of the government departments will be high ranking MP’s -either
members or aligned with the party of power
- The executive council is the head of the executive > not only ministers but also MPs – that is a huge
overlap

More marks for examples – ministers who are the executive council are also members of parliament

Parliament consists of the sovereign + the house of representatives

Executive council is the governor general’s advisors – pull strings
The same people control to the queen and the house of representatives and the executive – doctrine of
separation

Lecture 2 – 03/05/22

Doctrine of separation of powers:

- Power shouldn’t reside in one power of government
Should be separated > creates system of checks and balances
- When they separate, we have this system?

Legislature – makes law

Executive – administers law
Judiciary – interprets the law

Problems of the theory – there are overlaps between the 3 branches – not truly independent of each other – if
they spill over each other how can they be separate
Executive council – obvious overlap
- Governor general advisors
- Pull the strings of the sovereign – they are emps as well
- Part of the legislature
Section6 of the constitution Act – they are not ordinary MPS they are leaders of the governing party
- Dominate the house of representatives
- Also, the ministers and head up the executive

The same people control the queen – house of representatives and the executive

How much of a check can parliament keep over the executive if the parliament is controlled by the executive
– if the executive are the same people who run parliament

- Has this changed this under our electorate system – MMP – proportional representation?
- Up until the last election MMP is more likely to lead minority government

Ministers had to muster majority to pass laws – convince other people outside the governing party
Furthermore – overlap with parliament and executive

Parliament has delegated the power to set rules governing the conduct lawyers to the law society
- Delegates all sorts of powers to the governor general and council to pass all sorts of regulation

Law society rules – delegates by parliament to the law society

- Law society part of the execut9ve
- Transfer of power from parliament to the executive

Governor general and council is set out in section 3 in the constitution act
- The sovereign acting by in the consent of the executive council

Section 3 A (1)
The advice and consent of the executive council can be given by a meeting in which the governor general is
not present
- The executive is deciding on matters on delegated legislation – in breach of the doctrine of
separation of powers

Further example of where the doctrine of separation of powers does not work pristinely, fully as it should
work in theory
- Judges have a law-making role – especially in the common law
- There are whole aspects of the common law – made up by judges
Example – torte of negligence
- Not allowed to act negligently
- You owe a duty of care to someone to act in all proper care and with diligence

This torte was invented by the judges under common law – it was not something passed by parliament –
passed by judge-based law
- That is the strict opposition of the separation of powers
Judges operating under common law are making law
 - Judges supposedly under the separation of power – only interpreting the law – they have a further
law-making judgement when interpreting statutes
- The courts had to determine what was meant by the phrase “the principles of the treaty of Waitangi”
- State own enterprise act comes a part of the law

This act had to be done in accordance with the treaty

- Richard Prebble said it didn’t mean anything

Passing an act of parliament must mean something

- The courts couldn’t say the phrase it was simple minded
- No guidance from parliament in the act so the judges had to interpret what this phrase meant

In interpreting statutes in accordance with the treaty the judges were setting out what the principles were and
what they meant
- In essence is law making – in strict opposition of the theory of separation of powers
- Judges shouldn’t be making law if the theory of separation of powers

Establishing what a statute means

- Act credit contract and consumer finance act – this outlaws oppressive conduct in certain types of
contracts – namely credit contract, consumer lease
- The judges of the court can reopen the credit contract if the contract lease or conduct is oppressive, if
it shows oppression – relatively straightforward
- The act doesn’t define what oppression is and what oppressive conduct is – the judges need to
interpret this and show what it means
- They are making law!

Strict conflict in the separation of powers

- Judges are only to be interpretating law but in that they are making law – which is a breach of the
contract of the doctrine of the separation of powers
The act sets out your freedoms but also says the freedoms can be subject to only reasonably by law – and
only justified in a democratic society – contained in the bill of rights subject to reasonable limits –
demonstrated in a free and democratic society

Issue – what rights can be prescribed or limited if it can be demoralised in a democratic society
- There isn’t identified limitations in the bill of rights

Judges are making law – that is a law-making function – furthermore it is contrary to the strict doctrine of
the separation of powers

What way does the theory does not work – that parliament has control of and enforces its own procedure –
the house of representative has exclusive power to regulate its own procedure

What does this mean? Can’t go to court and say parliament has brokens its own rules – parliament I acting
as judiciary – infringing the separation of power

2. the judges sometimes act on the executive

- commissions of inquiry – disaster in nz and we want to find the cause of disaster
1979 NZ DC10 crashed in Antarctica – govt. wanted to figure out the cause of the crash – commission of
inquiry
- All of these are acts of the executive however the judge was appointed to chair this – executive
inquiry but chaired by the judiciary – infringement of the doctrine of separation of powers.

Judges sometimes serve as the executive

- Why do they serve as the executive?

The Waitangi tribunal – apart of the executive

- Chaired by a judge which is infringing the doctrine of SP

The chairs of these commission are appointed by the executive but apart of the judiciary
- Dispute tribunal – small courts of tribunal

The executive gives administrative support to judges – pays them and administers these tribunals
- Not strict separation powers if the administrative is giving advice

Pros and cons of the theory of the separation of powers

- 3 branches of govt are separate and give check on the other – so not one branch gets too much power
Know the theory of the doctrine of the separation of powers quite well – give examples of how this works in
practice and how it does not work in practice!!!!!

The basic theory is the executive keeps check on parliament and judiciary

judiciary keeps check on parliament and executive

parliament keeps check on judiciary and executive

all branches are separate

marking on final exams are what induces the marker – feels good that it’s a good answer is if students can
give examples which was given outside the lecture material
- Marks go up

Legislative process
- How the laws get made

Descriptive – describing the internal workings of the clock – page 90 in our textbook

What are our two main sources of law in NZ?

What is the most important?

- Common law
- Statute law
The common law is made by judges over the centuries and is made in response to specific problems which
claimants or ligaments brought to the judges
- Used to be the most important source of law
- Includes a whole bunch of things – the law of negligence > torte law – meaning wrong
- This means if u owe a duty of care to someone you must act to a certain standard – if not you act sort
of negligence and are liable
- Common law convention which was created by judges

Another examples – defamation

- Saying things to lower someone’s reputation – committed torte of defamation – there are defamation
statutes but was common law

Most Contract law is covered by the common law – contracts are determined by common law

Second source – statute law (more important source of law – altered much of the common law)
- ACC has wrecked the old common law of personal injury – was a torte but now is covered by statute
- Employment legislation – employment law used to be simple matter of contract law – governed now
by series of statutes – privacy law and privacy act
- Old common law tortes which governed privacy law – now governed by statute

Parts of contract law have been changed by statute – which was run by common law
- Consumer guarantees act have cut through contract law – governed by statute

Main point is that most of the major action today is in statute law – particularly big changes in the law

Lecture 3 - 05/05/22

Where do bills come from?

How we pass laws via parliament

- Dealt are pages 83-95 in the textbook

Discussed the two main sources of law – common law – judge made law – court hearing disputes
Second- statute

Legislation is the over branching – statute is the subset of legislation

Big change on the law done by statute

- What is a law called before parliament passes it = called a bill?

What is called after it is passed = act or statute or legislation

Legislation is the umbrella term that includes acts/statutes – can also refer to delegated legislation
 - The difference is that parliament does not pass regulations- they are passed with parliamentary
authorisation – parliament authorises someone to make regulations via an Act

Under the term legislation – bylaws – laws which local councils/local authorities have passed –

each area in NZ is subject to central government and local government

- Wellington city council – deals with matters of wellington alone – also deals with districts, rubbish,
water

Over 600 hundred acts enforced within NZ – cover virtually every area of life in NZ
- 1931 put all legislation in 8 volumes – RS’s – reprinted statutes
- 1957 – 16 volumes
- Now we have over 30 – coming to 40 volumes
Lots of legislation and lots of law – nz thinks as a world leader – highest rates of legislation in the world
Statutes per head of population

How do other countries deal with it

- Countries which inherited British systems are similar

Europe have a code

- One giant document in many volumes and this code consolidates the law under different headings >
section of contract, criminal law
- Most of the law is in a civil code – Germany

Contractual remedy acts – both can apply to factual situations

- Minors act
Fair-trading act 1986 – outlaws misleading trade

Because we don’t have the code and acts applying to conduct – sometimes our acts may conflict – say
different things
- Parliament may pass laws in a hurry – pass without how this will fit in obscure law passed previously
- This is more common than we think
- The doctrine of replied appeal – statute conflicts with earlier one the court may hold the later statute
impliedly repealed the earlier on – applied because hasn’t been expressly done

Judges reconcile with conflicting pieces of legislation

Statutes

- First issue: what types of statutes do we have in NZ

Sources of the constitution – part of new zealands legal histry – we have imperial statutes
- Either made by Britain for us or they were made for Great Britain itself and extended

Ana ct of parliament – imperial laws application act 1988 > number have been preserved of our law and now
a part of our constitution – magna carta, bill of irghts act 1688
 Laws we make for ourselves – looking at
3 types
From elast important
- Private acts > for the benefit of particular indiviaual people or organisations whom have gotten into
legal istuations and need to get out of it > don’t apply generally only the subject manner of the act
e.g. john Donald mcfarmland state administration act 1918 > allowed his estate to be distributed his
death i.e. what was being left in his will
- usually one or two passed each year

Local acts
- Apply only to particular area or locaility
e.g. wellington harbour reclamation and empowering act – applies to wellington harbour
- not many each year and not controversial

Most important – public acts

- i.e. the rest vast majority of them
- apply to everyone > they are the most important and many are controversial
- further division – two types of public act – divided on putting pone forward to become law

1. government bills
supported by governing party – apart of government policy > result is that chances increase going
through parliament and becoming law

2. members bills – private members’ bill

- bills individual MPs put forward
- many come from the opposition party – some come from government MPs who can’t sway the
government or own parties
many of these bills are concions votes – parties do not vote in blocks > up to the induvial to vote for this
- often these are controversial – the government does not want to alienate parts of the country
e.g. decriminalizing homosexuality
- only outside cabinet members can do this

Do they all come before parliament? No

- parliament does not have time to deal with all – there is a ballot where which private member bills
come forward, and are debated and discussed by parliament

they are put in a biscuit tin – certain number will put the bill forward
the government will pick them up as government policy – better chance of th bill becoming an act
e.g. paid parental leave – started as private member bill but became an act
- a lot of have not been picked up
- all change is done by parliament

Legislative process
- hoops our laws must go through
- bills have to do to become act

can be done urgently/quickly in a matter of days

 - other can take years to get through parliament
- e.g., patent law – took over 20 years to get through parliament > not high up of the government
priorities
- take long due to debate on how to make the law in some areas – depends on political will

where do bills come from?

- All sorts of sources

Political parties’ manifesto – what they will do if they get elected as government

Cabinet – meets every Monday and is the main source for bills

MPs be able to persuade their party that something should be made a law

Coalition parties -
Where do Bills come from:
 
•Manifestos (political parties) - their 'promises' to the country before being elected
•Cabinet
•MP's - able to sway their party that something should be made law
•Coalition parties
•Government departments - sees a problem and promotes a solution
•Law commission
•Ministry of Justice - has its own law reform division
•Inquiry/ commission/ taskforce - e.g. Waitangi Tribunal
•Individuals/ companies/ Lobby groups
 
How to get a bill into parliament:
 
1.Get Government support
2.Convince minority parties (if we have a coalition government)
3.Get cabinet legislation committee <-- senior cabinet ministers, convince them to put the idea onto its
legislative program agenda
4.Must draft your Bill <-- written in a form which can be passed by parliament, requires working under
conditions of extreme urgency
5.Circulate in government/ the executive <-- government department responsible for the bill, ensure there
are no spelling errors etc., run passed other government agencies that may be interested in the bill which
provides further checking.
6.Legislations advisory committee <-- independent expert committee, e.g. legal academics, judges, senior
lawyers. They check as to whether the bill performs the task it is being passed for, they check the necessity.
Provides an objective oversight. Supposedly not politically aligned. Checks its in line with Te Tiriti, the bill
of rights act, etc.
7.Cabinet legislation committee again <-- provides a final check to ensure its in a form ready to be put on
the legislative agenda.
8.Cabinet <-- signal, there may be debate as not all cabinet members agree with legislature, MP's argue with
each other about whether the bill is good or bad. Once cabinet has approved it, all ministers will be behind it
and present a united front to the public, this is an unwritten convention, the convention of collective
ministerial responsibility, that ministers are collectively responsible for any cabinet decision.
9.Caucus <-- a meeting of all government party MP's, e.g. at this moment: all the Labour party MP's. It is
extremely unlikely that the bill will be defeated at the caucus vote. Conventionally, no one will disagree in
public. Votes to approve.
 
After this, it is virtually inevitable that the bill will pass in parliament.
This doesn't discredit the parliamentary process because:
•It can have an important influence
 
The Commerce Bill
Its' process through parliament:
•It was a labour parliament bill
•National opposed the bill
◦In spite of introducing a somewhat identical bill previously
•The muldoon labour government introduced this bill in 1982
•David kaegel in charge of the bill
•John Banks was the main MP against the bill
◦He argued that Kaegel had no business experience to pass this bill
 
Our laws are gender neutral, written in plain language etc. to make them more accessible.
Bills must be Consistent with the treaty