Publaw 204

Principles of the Constitution
NZ!s constitution is comprised of: (1) Power of the Queen (2) Relevant NZ statutes (3) English and UK Statutes (4) Relevant Court Decisions (5) ToW (6) Conventions (7) International Treaties. Constitution Act 1986: Part 1: Sovereign (head of state, position led by GG - nothing about what his power are); Part 2: Executive (Only MP!s can be ministers - nothing about appointing); Part 3: Legislature (Elected according to Election Act 1993 = HoR + Sovereign - nothing about making laws); Part 4: Judiciary (Parliament can re judges only when bad, not allowed to interfere with salary - nothing about appointing); Part 5: Miscellaneous. Rule of Law: Dicey: (1) Cannot punish for anything other than a breach of law (2) Everyone is subject to the law [albeit some people have different powers under law: p/o, MPs etc] (3) Civil liberties are historically upheld in courts of law (statute may override, but courts will be reluctant to read legislation in that way). Geoffry Walker: adds to Dicey!s bare-bones account: (1) Rules Parliament makes should accord with the principles of the rule of law (Certain, General and Equal); (2) Change with social values. Entick v Carrington 1765 (E suspected of authoring seditious liable about king and Parliament King!s minister ordered his house be searched and all papers seized - their suspicions were wrong Held: (1) Search warrant had no statutory basis - if it is not in the books (statute or common-law), it is not law (2) B/c no legal authority Carrington, the Minister!s servant, is liable for damages - 300). Principles from this case: (1) Actions of ofcials must have a legal basis (2) Ofcials can be kept in line by the courts (3) Common law recognises human liberties and will not easily give them up. Transport Ministry v Payn CA 1977 (Drunk P had an accident with a parked car, walked to his nearby home and started drinking - police showed up and asked for a breath test, but he told them to leave - they did, got instructions and came back, asked again and proceeded to arrest him - second visit was a trespass, since they were specically told not to come: did the Transport Act permit trespass for it!s enforcement? Held: (1) Act was silent on this matter + right of quiet enjoyment of property is important = second visit was illegal). Separation of Powers: In order for the constitution to operate properly under the rule of law, the different branches of it: Legislature, Executive and Judiciary, should be separate to keeps checks and balances on each other. Montesquieu: Pure separation of powers: Idealised the English constitution of the time. Said that if too much power was centralised in one body it could be a tyrant, and therefore a clear separation between the three was essential (although clearly some powers overlap to a certain extent to allow the checks and balances). Madison & the US Constitution: Adopted Montequieu!s ideas; Sets up three branches, how members are to be chosen (cannot be a member of two branches simultaneously) and what their powers are. Note: Changing the constitution is difcult; constant power struggle b/w the branches; New Zealand: Rules are not set out in very much detail (Constitution Act 1986); Big overlap b/w Legislative and Executive branches (same num of MPs to support government is required to pass laws; Sovereign has power to sign laws) - NZ!s separation is mainly between the Political and the Judicial branches (most important part of the Rule of Law is an independent judiciary applying the law consistently).
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Parliament
Functions of Parliament: Parliament = House of Representatives + Sovereign. Make laws: Parliament can make any law it wishes (Cooke P: theoretical discussion about possibility of some rights so entrenched even Parliament cannot undo them). Provide Government of the Day: Government must have a majority support in Parliament. Hold Executive accountable: (1) Budget: Parliament authorises the budget the Crown asks (under the Appropriations Bill). (2) Ministerial Questions. (3) Debates in Parliament. (4) Select Committee Process (made up of MPs who are not members of the executive). Represents the People: Deeply political; MPs are acting as representatives of those who voted for them. Electing Parliament: 69 electorates (7 are Maori); Each person has two votes; threshold is 5%; Parliament made up mostly of party lists, rather than individual MPs. Parliamentary Sovereignty: Parliament is the chief and only law making authority in NZ (Art 1 BoR1688). Executive vs Parliament: Fitzgerald v Muldoon 1976 (Muldoon got into power running on the idea of cancelling the superannuation scheme - in a PR statement Muldoon told employee!s to stop paying immediately after the election, before repealing the bill Held: (1) BoR1688 is part of NZ law (2) What Muldoon did amounted to suspending the power of Parliament by regal authority); Judiciary vs Parliament: Shaw v IRD CA 1993 (Wanted the superannuation act of the time declared unlawful so he could get it irrespective of how much money he was earning said it breached the Magna Carta and fundamental common law rights Held: (1) Courts have no power to review the validity of properly enacted laws (2) MC does not put restrictions on Parliament (3) May be common law rights Parliament cannot repeal, but this was not one of them). Historic Power: Parliament traces its law making authority through a chain of authoritative instruments: ToW1840; UK enacted the NZ Constitution Act 1952 (set up general assembly); UK enacted Statute of Westminster 1931; NZ Statute of Westminster Adoption Act; NZ Constitution Act 1986 - recognises the historical powers and their continuity. Retrospectivity: Parliament may enact retrospective laws, changing anything - question is how far should/ can this be taken within the boundaries of the Rule of Law. Philipps v Eyre (Jamaica governor declared martial law in an uprising and only when it was over the legislature made acts of all people acting in suppression illegal - Philipps was wrongfully arrested and argued the law was unlawful for its retrospective nature Held: (1) Crown had lawful authority to set up a Jamaican legislature (2) Court will not ascribe retrospective effect to an Act unless it is clear - but a retrospective Act can be createds). Procedural Restrictions: Political restraints are clearly in existence: although most legislation is proposed by the government, it!s Parliament that votes on it. s16 Constitution Act 1986: Must be signed by the GG before becoming law. Process of voting in HoL is written down in Parliament!s own standing orders, but they cannot be questioned in courts - if Parliament says it!s valid, the courts will believe them without further inquiry Pickin v British Railway Board (Parliament misled and did not follow standing order of notifying land owners of change - court doesn!t care). Entrenched Provisions:
s268 Electoral Act 1993 is the sole example, requiring a 75% majority to change or repeal the provisions it protects. It is a single entrenchment, because it itself is not protected in the same way (Note: Merely a restriction of form). This provision has more of a moral standpoint than anything else. There is a question whether a bare majority could change one of the restricted provisions with a bare 50% majority w/o amending it: AG for NSW v Thethowan 1932 PC (NSW used to have a double-house - lower house double entrenched a provision that the upper house may only be abolished following referendum - elected on the proposition of abolishing upper house, and then did so with no referendum Held: (1) Because the bind for future Parliaments was one of form it did bind future Parliaments - repeal of upper house was illegal for form). [Note: Australia was subject to Colonial government Acts at the time - before Act of Westminster]. Fully Sovereign Parliament: Harris v Donges (South Africa held Parliament to be bound by previous form restrictions on its operation - a form requirement does not mean Parliament cannot change something, it can, but in a particular way). NZ: Westco Lagan v AG (Obiter comments of HC case to support idea). Implied Repeal: No issue arises when Parliament is express. With implied repeal previous Act is repealed only if both Acts cannot be read together. Vauxhall Estates v Liverpool Corp UKHC (Government land take-over dispute: two Acts from 1919 and 1925 provided two different measures for valuation: old Act said that the provisions of any other enactment were to have no effect Held (1) Provision applied only to Acts in force at that time, so implied repeal of the new Act was still effective). Ellen Street Estates v MoH UKCA (Similar to Vauxhall - upheld that decision Held: (1) This is an exercise of statutory interpretation, not of Parliamentary power: it can do what it wants). Reasoning: (1) Prevents courts from weighing up intentions of two different Parliaments (2) Allowing implied repeals of past enactment's helps keep the law up to date. Implied Repeal vs Procedural Restrictions: Ideas clash to a certain extent. Reconciled by separating procedural requirements from substantial requirements (can restrict the former but not the latter). Another argument is that only "important! or "constitutional! Acts that have a higher standpoint than others have form restrictions on them. Implied Repeal of a "Constitutional! statute: Thoburn v Sunderland CC 2003 (Metric unit sale case Held: (1) the provisions of the former and latter were not inconsistent (2) If they were, the latter act could not impliedly repeal the 1972 EU Adoption act, because it is "constitutional!). Parliamentary Privilege: Allow Parliament to operate as a sovereign lawmaker. s242 Legislature Act: gives Parliament the same privileges as the UK Parliament in 1865 and tells the court to take notice of these privileges. Privileges Committee: Parliament manages it!s own privileges through this committee and its decisions cannot be reviewed by the courts. But courts can decide the ambit of the privileges (if a matter is covered by privilege, it is out of the courts jurisdiction - if not, the court have ordinary jurisdiction). The Privileges (David McGee): Powers: Compel attendance (of people to come before it) and the power of contempt (punish anyone who interferes with its operation). Allow Parliament to protect itself without requiring the courts - in practice the courts do most of this work for Parliament. Immunities: Impeach on the idea of rule of law, but allow a smoother operation of Parliament in that MPs and other Parliament workers are not afraid from litigation and it prevents the Courts getting into a power struggle with the courts.
Exclusive Cognisance (What is done in Parliament, stays in Parliament): Proceedings in Parliament may not be questioned outside it. A court cannot question proceedings and the executive cannot compel Parliament to address an issue. Statutory Form Requirements: Brawlaw v Gossit (Atheist MP was prevented from taking the oath he had to take in order to sit in Parliament according to the Parliamentary Oaths Act Held: (1) Parliament is entitled to interpret it!s own Acts in relation to itself - proceedings in Parliament will not be questioned outside it (part of this immunity is carved out by the manner and form cases)). BoE 1688, Art 9: Free Speech Privilege (What is said in Parliament, stays in Parliament): Criminal or civil proceedings cannot be brought against anything said in Parliament (exception: Parliament may use is contempt powers to deal with perjury). Prebble v TVNZ 1994 PC (Minister sued TV for defamation - TV tried to rely on statements in Parliament to prove what they said was true Held: (1) Privilege applies even when someone who is not going to be punished is questioned (2) Must uphold the importance of the privilege: MPs must not be scared to speak freely in Parliament (3) Evidence struck out (4) Draws a distinctions between referring to what was in Parliament as a matter of history and referring to it as a basis for drawing negative conclusions). Buchanan v Jennings 2004 PC (MP made an accusation of a public servant in Parliament - when asked about it outside Parliament by the TV he said he "did not resile from his comment! - public servant sued for defamation and Jennings sought Parliamentary privilege Held: (1) What he said was effectively repeating what was said in Parliament, and the repeat is not protected (2) The need to refer to what was said in Parliament to give the statement any meaning is similar to referring to Hansard as a matter of history (3) Does not impeach of Parliament!s privileges, because they are still protected - it is a backwards looking exception - just need to be careful of what they say outside Parliament). Development: Privileges Committee has decided the decision impeached on Parliament and would hamper MPs work in the public sphere (outside the walls of Parliament). Criticism: (1) Legal issue that Parliament should not change itself (2) Parliament has too much self interest in the matter But: (1) Parliament also decides matters of law (2) Much criticism of the PC decision (3) MPs are in best position to decide what is best for them (4) Public representatives and people had opportunity to hand submissions to privileges committee.
The Executive
Structure of the Executive Branch: Cabinet and Responsible Government: Powers: Most powerful body in our constitutional structure, despite it having no legal power. Cabinet derives it powers from: (1) Governed by a powerful constitutional convention that Cabinet members act upon the decisions of Cabinet. (2) Members are also Ministers who sit on the Executive Council (a body that controls the GG and it!s main purpose is creating regulations). (3) Constitutional convention that GG will only exercise his discretion on advice of Cabinet. Rule of Law and Government: M v Home Ofce 1994 UK (Home secretary deported a refugee against the order of a judge, on legal advice that the judge could not do that Held: (1) Home secretary was in contempt of court (2) separate the Crown as Monarch and the Crown Executive: former can do no wrong, but latter can be sued). Functions of Cabinet: National defence, new legislation, important decisions - no convention about majority decide in Cabinet - each Cabinet makes its own rules about internal affairs. Responsible Government: Constitutional conventions are central in blending together the different elements that comprise the responsible government: GG Acts on Cabinet!s Advice: Cabinet must enjoy the support of the house. Condence and Supply: Votes declared as matter of condence (all supply votes) or motions of no condence - government must resign and GG will no longer take advice. The Executive Council: Appointed by GG under prerogative power, at the advice of PM. Is the formal vehicle through which Cabinet advises the GG (many powers under statute as GG in Council). Cabinet and Government Formation: After party numbers are known discussions between caucus leaders may result in agreements (Coalition, Supply and Support or Good Faith). Rules: Statutory: s6(1) Constitution Act: Only MPs may be Ministers; Prerogative: GG!s powers to appoint and dismiss Ministers; Constitutional Conventions: GG appoints at PMs advice; Party and Political Rules: Internal to every political party. Role of Political Parties: PM chain of power: PM Chain of Power: PM - Strategy Committee - Cabinet - Caucus - HoR. Caretaker Government. Constitutional Conventions: Public Ofcials feel bound by them. Core Conventions of Cabinet Government: (1) GG acts on advice of Cabinet and assets all Bills enacted by the House (2) Advice of Cabinet to GG is unanimous (3) GG appoints MP most likely to command condence as PM (4) GG accepts PM!s nominations for Ministers (5) Ministers are responsible for their departments (6) Ministers follow Cabinet decisions in their departmental functions. Do not have legal remedies, but other remedies may be available (e.g. member of cabinet may be ejected from cabinet by the prime minister if he goes against a decision of cabinet). Jennings Criteria for identication of a Convention: (1) Are there any precedents? (2) Did the actors in the precedents believe they were bound by the rule? (3) Is there a need for the rule in a constitutional government? Conventions and the Law: May be recognised by courts, but not applied as a rule of law; may assist in interpreting laws; may be codied or abolished by legislation. Purpose: Facilitate constitutional development without law changes; Coordination and cooperation b/w government branches; restrain the exercise of powers. Creation: Precedent / practice or agreement.
Remedies: Sometimes only political and others prescribed (e.g. sacking PM if has no condence). The Governor-General: GG!s Reserve Powers: GG may act without advice when: (1) PM or Cabinet does not enjoy the condence of the house (2) Advice by retiring PM (3) Advice is unlawful/unconstitutional (4) Situations of "necessity!. Reserve Powers: (1) Appoint/dismiss PM/Government (2) Dissolve the HoR (3) Summon Parliament when not sitting (4) Refuse assent to bills/regulations. GG During Formation/Dissolution of Parliament: (1) be politically neutral (2) Wait for politicians to resolve the crisis and delay interventions for as long as possible (3) Adopt the least intrusive form of involvement. A refusal to assent to bills: Better to: (1) Publicly protest (2) Resign (3) Dissolve Parliament and let the voters decide. The GG: Government formation and dissolution: GG entitled to: (1) Be kept informed about conduct of Govt (2) Consult and question party leaders (3) Offer advice (4) Warn about future conduct (5) To delay. Oral assurances are sufcient, because GG needs to be sure of intentions today, not to guarantee a stable government for 3 years. Whitlem Crisis in Australia 1975: PM had condence in the HoR, but upper house divided into three. He passed a supply bill in HoR, but the upper house refused to vote on it (PM claimed it was a constitutional convention that the upper house pass supply bills), causing the government!s money supply to run low. The GG advised the PM to resign and have new elections, but he refused because he had not lost a supply bill. GG then dismissed the PM without further warning and appointed the opposition leader as PM, without clear support in either house, to supervise passing of the supply bill and new elections. The heart of the problem was Australian federalism and their constitutional conventions. Constitutional Convention: Suggested convention (upper house not blocking supply) t into Jenning!s criteria in: (1) No precedent either way - upper house always passed supply bills and never attempted not to (2) Some actors felt bound, others not (3) Clear need for this convention for a government to operate. GG!s Actions: Should have given PM warning or waited until the supply money ran out. He was not completely political neutral, at least not in appearance. However his actions did resolve the deadlock, prevented the government from resorting to unlawful means to secure money and let the people have their say at the ballot. Lord Byng incident in Canada 1925: PM who did not clearly have condence asked GG to dissolve the house, but GG refused resulting in a no-condence vote and GG appointed the opposition leader as PM, who also got no condence - GG then accepted his advice for new elections. Accused of favouring the opposition and British meddling in Canadian politics. GG must appear neutral. Could have: (1) Accepted rst advice to dissolve in an unstable HoR (2) Reinstated rst government as a caretaker government after dissolution. Tasmania 1989: Liberals had 17/35 seats and other two parties signed coalition agreement. Liberals refused to resign and advised GG dissolve, but he refused. Liberals resigned on rst day of Parliament and coalition government sworn in. GG did not have to dissolve the government immediately - okay to leave it to politicians. Neither was he obligated to take advice of dissolution, because Liberals did not have clear support.
Caretaker Government: Situations: (1) Pending election after loosing condence (2) After an election when government is defeated (3) During coalition negotiations when outcome unclear (4) Between governments without an election. Quasi-situation: immediately prior to an election when government has not lost condence: do not introduce major chances of policy, because they cannot be questioned by Parliament. Muldoon currency crisis 1984: Election was won on the policy of oating the NZ$, but Muldoon was caretaker PM and Finance Minister after election and refused to immediately implement the policy after the election results came in (the reserve bank froze trading in the NZ$ to avoid a landfall). Eventually Muldoon did follow the advice. Changing government conventions have since been codied: Caretaker government must act on the advice of the incoming government on issues that cannot be delayed. The Royal Prerogative: Prerogatives are common law powers the executive has left over from history. The government needs no authority to use these powers. They may be taken away or replaced by statute. The government and the executive may do anything any other citizen can do (e.g. police survallence). The government holds further powers under common law prerogative. The main ones are: (1) Conduct foreign affairs (2) Conduct national defence (3) Criminal justice (4) Appoint and dismiss Ministers (5) Award honours. Courts admit the existence of prerogative powers, but will not go further than reviewing the manner in which they were exercised (refused to interfere with entering into the EU under prerogative in Blackburn v AG). No new prerogative powers can be created: Case of Proclamations 1611. Burma Oil Company: Courts cut a part out of the defence prerogative, when it declared that bombing facilities was only allowed in cases of immediate attack. Note: Prerogative powers cannot prevail over a statutory right conferred upon a private citizen by Parliament (BoRA????!???). Statutes override Prerogative Powers: Laker Airlines Case (Budget ight service UKUS. After appeals got all authorisations in UK and in US got all but formal signature of President. Crown put pressure on US President not to sign - prerogative powers of foreign affairs. Held: (1) After getting statutory authorisation in UK, couldn!t use prerogative to prevent in US. Prerogative cannot deny statutory processes, especially without discussion or due process).
Controls on the Executive (Judicial Review)

Judicial Checks and Balances: Judicial Review of Administrative/Executive Action: Amendability to Review Standing of the Applicant Where you have good reasoning, court will not throw it out for standing (Self Employed). Nature of Decision Statutory discretion (S 4(1) Judicature Amendment Act exercised use of statutory power). Prerogative (Burt; CCSU). Substantive Grounds for Review: Illegality Focuses on the expressed or construed legislative intent (conferring power, criteria, discretion, guidelines, delegation etc). Abuse of Discretionary Power ordinary meaning of unreasonableness Predetermination - CREEDNZ: test was closed minds. Improper Purpose (acting for a purpose not authorised by the empowering statute) Does not require knowledge or bad faith (Padfield no unfettered discretion). Relevant and irrelevant considerations (failing to consider a relevant matter or taking into account an irrelevant matter). May consider legally irrelevant matters, provided it does not allow itself to be materially influenced (R v London (Bishop)). Wendsbury - if unauthorised purpose was not true and dominant purpose. Mandatory/permissible considerations (CREEDNZ - (1) the more general, obvious and important, the ore must be taken into account; (2) considerations may be implied from statute - the more detailed, the more likely exhaustive). Wendsbury - weight given to mandatory considerations. Ministers must give reasons for decisions affecting citizens Padfield; Daganayasi - in CREEDNZ not. Abdication of discretionary power: Refusing or failing to exercise a discretionary power (over-rigid policy) Deliberate or not (Padfield purposeful inaction - Minister feared political sanctions). Rule against sub delegation (unlawful sub-delegation) Duty to be informed Minister must consult department if the department errs, the Minister errs (Daganayasi). In Evans said he could delegate process as long as he made final decision. Error of law (misunderstanding or misinterpreting the relevant law) Error of law on the face of the record (ultra vires) Error must be material to the decision and a cause of injustice. Error of Fact (basing a decision on an incorrect assessment of the factual context on which it is based). Mistake of Fact Daganayasi (other two judges reserved opinion; law far from settled) Minister based his decision on an inadequate medical referees report and quashed decision. KiwiLaw Blawg
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Not a mistake of fact when inferences drawn from facts can be reasonably supported (CREEDNZ?). Irrationality (unreasonableness) - problematic (legality, not merits) Wendsbury unreasonableness So unreasonable no reasonable decision maker (e.g. school teacher fired b/c red hair). Dubbed irrationality by Diplock in CCSU thresh-hold constantly lowering. The greater the need to exercise judgement and discretion, the greater the latitude the courts will allow (CREEDNZ more room for politicians). Daganayasi: fairness was a substantive concept that embraced more then procedural protections. Substantive unfairness (merits based review) Daganayasi (Cookes baby). Decision maker, without notice, departs from the criteria and/or weighting it has said it will apply or a disproportionate saction (ex p Hook). Themes Valley - Substantive unfairness can be combined to make an argument better - Support from other two judges on the case (improper motive - what is required is to show facts of this case are similar to those in a case where grounds succeeded). Carmichael - no procedural unfairness. Proportionality Proposed by Diplock in CCSU excessive means must not be employed to achieve given ends. Sits as part of unreasonableness. Appears in ex p Hook. Procedural Impropriety Natural Justice: S 27(1) NZ BoR 1990 right for natural justice. Daganayasi - Duty to act fairly (can be used as substantive in Wendsbury or procedural here); applies to executive, legislative and judicial power (contracting power derided from statute also applies Webster). Doctrine of Legitimate Expectations Includes practice giving rise to a reasonable expectation that the practice will continue CCSU; Daganayasi. Unclear if it is substantive (Diplock in CCSU: legitimate expectation of benefit) or procedural (Roskill in CCSU: fair dealing). Renege on a promise is not fair play in action (Daganayasi). Natural Justice MAY not apply when: Policy and the exercise of discretion: National interest (CreedNZ) or national security (CCSU). Need for prompt action CREEDNZ: may frustrate the legislative purpose. 1. Audi alteram partem opportunity to be heard. Must hear case: Evans; Daganayasi compare with Webster; CREEDNZ. Prior Notice (when a hearing is to be held elementary that affected persons be notified). Duty on decision-maker to disclose all relevant material (Daganayasi - summary of medical advice difficult). Warnings as to adverse credibility findings: warn parties of adverse findings KiwiLaw Blawg ?) they are proposing to make (Evans
Give reasons: Not giving reasons supports idea that decision lacked foundation and was arbitrary (Padfield). 2. Rule against bias nemo judex in sua causa (No one should judge their own cause). Judge disqualified for actual or apparent bias (Davidson). Requirements of natural justice vary with the power which is exercised and the circumstances (Daganayasi) - no bias in CREEDNZ b/c apex of governmental structure, are supposed to have political views. Questions to Ask: (1) Does it apply to the decision?; Decision affected individual/large number of people?; Nature of interest affected?; Nature of decision-maker (the more court-like the more the court is likely to hold liability b/c of the nature of the decision being made)? (2) Has it been breached?; Process by which decision made was fair?; Chance to see evidence and respond? Discretionary Relief always discretionary (dont even have to grant the relief sought). (1) Certiorari (Quashes a decision - no legal effect) (2) Prohibitions (3) Mandamus (compels) (4) Quo Ranto (removes from office) (5) Heabus corpus (validity of decision) (6) Injunction (7) Declaration Judicial Review of Delegated Legislation: s 29 Acts Interpretation Act 1999 - extends definitions of regulations to any instrument under any Act. Regulations Review Committee - complain. Wider than review, recommend to Parliament may ask to revoke (if 21 days with no action - cancelled). Free - Parliament has to Act on recommendations within 90 days. Subjective Empowering: reasonable formed opinion (McEldowney) Repugnancy - neither prohibit what statute permits or permits what is prohibits - express or implied (Alan Johnston Sawmilling). S 6 BoR 1990 - Regulations can override BoR (Interpretations Act - enactment includes Regulations), but courts prefer meaning consistent with BoR rights and freedoms (S 4 guarantees inconsistent legislation isnt struck down). Parliamentary Checks and Balances: Parliament and Ofcers of Parliament: Parliamentary Scrutiny of Delegated Legislation: The executive branch of government M v Home Ofce - 1994 - HL Zaire citizen claimed refugee in UK. Deported by prerogative despite Judge issuing injunction for him to remain for proceedings. Held: 1. Home secretary in contempt of court. Government not permitted to ignore court order when exercising prerogative. 2. Distinction between Crown as Monarch and as Executive. Former can do no wrong, latter can. Prerogative Powers Blackburn v AG - 1971 - UKCA Challenged Crown!s power to enter into EU - treaty would surrender part of British sovereignty. Held: 1. Treaty would have that affect, but treaty prerogative is beyond the court!s review. Laker Airways v Department of Trade - 1977 - UKCA Budget ight service UK-US. After appeals got all authorisations in UK and in US got all but formal signature of President. Crown put pressure on US President not to sign - prerogative powers of foreign affairs. Held: 1. After getting authorisation in UK, couldn!t use prerogative to prevent in US. Prerogative cannot deny statutory processes, especially without discussion or due process (Denning actually went further). KiwiLaw Blawg
Judicial Review Legislation: Application for review of statutory power - s 4(1) Judicature Amendmant Act 1972 - s (3) interpretation of statutory power. Remedies (High Court Rules): Mandamus (compel - s623); Injunction (restrain - s624); Prohibition (s625); Certiorari (review determination - s626); Removal of ofce (s627); Declaration & Injunction are "ordinary! remedies. Standing: Boyd: Interference with personal rights. Self-Employed Case (adopted in NZ): Only if it were clear that there was no possibility of succeeding on the merits, should an applicant be held to have standing as a preliminary point (even if there is only a suspicion of a case it should be determined on the merits). Finnigan: More important, the more likely granted; If not alternative plaintiff; Signicant body of opinion supporting; Scope of Judicial Review CCSU - 1985 - HL (adopted in Burt and Patel) Civil servants in government intelligence, members of a trade union. Minister decided, in exercise of prerogative powers, to stop their trade union membership (fear of strike). Workers argued they should have been told and had an opportunity to respond. Held: 1. If decision affects a person (altering rights recognised in law or depriving a legitimate expectation) and decision maker empowered by public law (statute or common law) - then decision reviewable (Roskil LJ: some prerogative powers are not reviewable - high policy content or affect whole country). 2. Identied three grounds for review: Illegality; Irrationality; Procedural Impropriety. 3. CCSU had legitimate expectation based on past practice to keep membership - should have been consulted before decision. But, b/c of national security case failed. Burt - 1992 CA Convicted of murder. Petitioned GG for pardon, who declined. Burt challenged decision - Crown argued prerogative powers (mercy) not reviewable. Held: 1. Adopted CCSU - prerogative not immune from review, as long as courts are competent to deal. 2. Because existence of safeguards over the prerogative, court dismissed. ex parte Bentley - 1994 QB Appealed for pardon after execution. Secretary refused because of long practice not to grant free pardons in such situations. Argued secretary made an error of law. Held: 1. Mercy prerogative reviewable. 2. Court did not deal on those grounds - cannot review policy. But secretary did not consider giving a different kind of pardon, and he could do that. Grounds for Review Wendsbury - 1948 UKCA Local authority refused to allow children under 15 to go to the cinema on Sunday!s. Argued the decision was unreasonable and ultra vires. Held: 1. Discretion is for the decision-maker: box analogy of decision, as long as in box no review. 2. Unreasonableness has two meanings: (1) generic way (2) devoid of logic (usually something else goes wrong, so don!t really need this ground). 3. Not unreasonableness here (obviously a social value thing). [Umbrella - something else wrong]. Padeld - 1968 HL Issues with controlled milk market board prices. Two avenues of complaint by statute: (1) arbitration, but parties agreed that wouldn!t help, and (2) committee of investigation, on direction of the minister. Minister refused because of possible political complications. Held: 1. No unfettered discretion for minister (if the minister so directs): (1) rule of law (2) improper purpose (3) real exercise; error of law; relevancy of consideration. 2. When exercising discretion: (1) must actually consider complaint; (2) must not misinterpret the law (3) not to take into account irrelevant consideration (4) have regard to relevant ones. 3. Improper purpose (foundation of): Discretion must promote policy and objectives of the Act (use Act as a whole). Found the minister considered the following: (1) complaint unsuitable b/c raised wide issues - but Act contemplates wide issues (2) wanted issue resolved internally - but not parliament!s intent it be self regulating (3) if complaint successful might have to act on it - not a good reason. 4. If court nds no reasons for a decision, it will infer them. Remedy: sought was mandamus to compel a committee investigation; court refused and ordered mandamus for minister to reconsider (compelling a committee would be to use the minister!s discretion)
Blawg Daganayasi - 1980 CA NZ born son with aKiwiLaw rare disease, treated by 2 doctors who had expertise. http://kiwilaw.blogspot.com
Investigation with medical referee produced unfavourable report and asked to leave NZ. Appealed to Minister, who talked to doctors, but not those treating, considered son!s situation was better and would be nd in Fiji (not true) and said to deport. Claimed: (1) Natural Justice - Minister obtained prejudicial advice, which she didn!t receive or have a chance to respond; (2) Minister did not have correct facts, did not speak to treating doctors. Cases Referred To: Ridge v Baldwin: large scale decisions vs. treatment of individuals. Durayappah v Fernando: To decide if someone is entitled to hearing - deprived of something? (property, status enjoyed, job, reasonable expectation). Held: 1. Natural justice = fair play in action, not technical rules. Fairness requirements depend on circumstances (here: appeal of decision to deport with no real procedural requirements and no other options available - had a legitimate expectation b/c son was a citizen - give chance to comment on prejudicial decisions). 2. Mistake of fact (only Cooke J): if decision-maker needs to determine certain facts to make a decision and gets wrong information. Minister said he got latest medical information, but never talked to treating doctors and was mistaken. Cooke J combines both grounds into "substantive unfairness!. CREEDNZ - 1981 CA GG in council decided to apply the National Development Act speeding up process to a smelter at Aramoana (requirement was if consider "national interest! and "essential!). Argued: (1) breach of natural justice (2) bias (3) relevancy of considerations (4) mixed error of fact and law. Standing: Group of people who argued property values go down. Standing not an issue b/c national important question. Held: 1. Natural justice: Act is about speeding up and depriving of rights; Apex of political structure dealing with issue in a broad way, can!t consult so many people. Inclusion of consultation with local authorities excludes consultation with private people. Process listed out in detail. 2. Predetermination: GG in council thought it was a good idea before decision made. Nature of decision is a policy one of cabinet, so test: whether their minds were not closed. 3. Relevancy: The more important, general and obvious the consideration, the more ready must the court be to enforce it (mandatory - shall consider). Here considerations were opinions and cannot prove cabinet didn!t consider other side. 4. Error of law: "essential! to the nation - high test. But dismissed b/c it is a value judgement and no evidence of lesser standard applied. Davidson v Scottish Ministers - 2004 HL Legal Scottish Minister told their parliament that a certain section would prevent courts from making an order against them. As a judge later he held that the same section prevented an order against the ministers to transfer a prisoner to a decent prison. Argued: bias. Held: 1. Judges have high standards of bias. Apparent bias is enough. Test: whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased - no concerned with minutiae of drafting. 2. Judge made his comments as a politician, not a judge. Enough for a reasonable observer. Evans - 1982 UK Young police ofcer, married to older woman, living in police accommodation. Did well on internal review, but p/o inspected him and wrote up bad reports. Had a meeting and didn!t put case to him. Later decided to re him based on a small issue with the municipality (gave him 4 weeks to get rid of dogs, which were not allowed, after initially telling him they were okay). Held: 1. No unfettered discretion: regulations set criteria. 2. Ridge v Baldwin: three criteria for dismissal: (1) pleasure (2) something against him (3) master-servant - use contract. Here it is class (2). 3. Natural justice: didn!t have case put to him. Need an oral hearing, disclose information and give an opportunity to reply. 4. Found mistake of fact. 5. Found bias. Webster - 1987 CA License to use foreshore for years at a $4. Later board changed to "user pays! and go valuer to ascertain new prices. Raised costs to $320 - $50 base price + value according to nearby houses. Argued (1) market value wrong in law and starting price arbitrary (2) procedure unfair. Held: 1. Contract based on statutory power, so it is reviewable. 2. Act doesn!t exclude maket value approach. Social norms. Used valuer to determine fair prices. Arbitrary starting price "reasonable! and chosen by professional, so okay (unreasonable is when all the evidence goes one way and the decision maker goes the other). 3. Natural justice: Board doesn!t need to consult every single license holder. Carmichael - 1994 NZ Elderly couple moved to oz for health reasons. Were told if they spent some time in NZ every year would keep getting NZ superannuation there. Later department found out and stopped superannuation. Director-general discretion whether to demand money paid back based on KiwiLaw Blawg
5 criteria. Only reason against them was that they had savings (one of 5 criteria - not inequitable). Held: 1. Decision unreasonable and substantially unfair - no reasons (row of ticks with one cross may amount in other circumstances to the same). R v Barnsley, ex parte Hook - 1976 UK Store-holder at market urinated at side street when market closed. Argued with security ofcer. Next day he apologised, but was banned from the market for life. Held: 1. Disproportionally (part of unreasonableness): Evidence that such harsh measures not taken to others in the past. Delegated Legislation Ultra Vires - If delegated legislation falls foul of grounds of review - courts can declare it ultra vires (Alan Johnson) Initial assumption nothing wrong. Overall approach: McEldowney v Forde - 1969 - HL: Three steps (1) determine meaning of words used in the Act of Parliament itself (2) determine meaning of subordinate legislation (3) does it comply. Do so in light of objectives and scheme. General/Specic clauses; Objective/Subjective Test: Reade v Smith - SC - 1959: Subjectively construed provision (anything he thinks necessary for). Decided that when schools were full, could tell student what alternative school to go to. Held: 1. Always inquire into whether reasonably applies 2. Regulation was not for due administration for the Act - okay to cap enrolment, but not to compel the students to go to another school - Act preserved parent!s freedom to choose. Presumptions of Interpretations: NZ Drivers Association: Parliament presumed not to authorised encroachments on individual rights, taxes, or withholding access to courts. Other grounds (specic applications of Ultra Vires): Repugnancy; Irrelevant considerations; Alan Johnston Sawmilling: Forest Act exempted SILNA land from protection act. Trade Minister tried to defeat this by making regulations of no exports unless authorised by him, giving Govt a leverage in reservation negotiations with SILNA owners. Held: 1. Reg 4 was repugnant: executive sough to defeat the exemption (supremacy of Parliament). 2. BoR1688: prevents executive suspending operation or benet of laws by Parliament. 3. Improper purpose: regulations not made for purpose of empowering provision - sustainable forests vs import/ export. Uncertainty (MoT v Alexander - too ambiguous for Parliament to consent); Unreasonableness (Turners & Growers v Moyle - so unreasonable making not contemplated by Parliament); Procedural Impropriety (Turners & Growers - failure to comply with procedures - right to be heard if uniquely personally affected); Unlawful sub-delegation (FE Jackson v Customs - cannot be sub-delegated unless Parliament says so). Consultation (Turners; Fowler v Roderique).
Treaty of Waitangi
Treaty Legal Status and how it is given effect: ToW duties can be legally enforced only when they are incorporated into Acts of Parliament (Hoani Te Heuheu Tukino v Aotea District Maori Land Board 1941 PC). The Waitangi Tribunal: Set up under the Treaty of Waitangi Act 1975. Functions and Powers: Hear claims by Maori and make recommendations on action to take and on proposed legislation. Legislative References to Treaty principles: SOE litigation and Direct Reference to the Principles of the Treaty of Waitangi: The Lands Case CA 1987 (SOE Act 1986 - s9 said Nothing in this Act shall permit the Crown to act in a manner inconsistent with the principles of the ToW - The government was about to transfer land to a new SOE and the Waitangi Tribunal thought this would be detrimental to the settlement process - Crown argued s27 dealt with land cases and s9 should not extend its meaning Held: (1) S9 should not be read down: commanding language, in part 1 of the Act and land is the most important asset to Maori (2) Meaning of Principles of ToW: (i) basic exchange (ii) partnership (iii) active protection (iv) consultation (v) remedies for past breaches (3) Principles do not authorise unreasonable restrictions on the government to follow its chosen policy (4) Government transfer to SOE was in breach of s9). Resulted in the Claw-Back regime + s27 now says if Tribunal recommends land to be returned, it shall be returned. Broadcasting Assets Case NZPC 1994 (Government planned on transferring broadcasting rights to SOE!s - Maori worried their taonga of the Maori language would be affected Held: (1) Acknowledge the underlying mutual obligations express and implied in the ToW chief obligations is active protection (2) Crown must do what is reasonable in the circumstances (3) Crown could still full it!s obligations and therefore it is reasonable in the circumstances (control the SOE or legislate to control it) (4) Goods (radio waves) are substitutable. Cook P in CoA Dissenting: looks at the reality of te reo Maori and says the Crown must do more to preserve it). Indirect/Inferred Incorporation The Lands Case CA 1987 (When interpreting ambiguous legislation the courts will not ascribe to Parliament an intention to permit conduct inconsistent with the principles of the ToW). Huakina Development Trust HC 1987 (Issue was whether a local council had to consider Maori spiritual values when allocating water rights for efuent - the relevant legislation did not refer to the principles of the Treaty, or spell out relevant considerations Held: (1) Principles of the Treaty and Maori beliefs on purity of water were relevant considerations (unlikely this outcome would be the same if a list of considerations existed)). Whale Watching Case CA (full) 1995 (Granting of a whale watching license to compete with Nagi Tahu - nothing in the Act referred to ToW, but the conservation department had to operate under all it!s legislation - Conservation Act did refer to principles Held: (1) Construe reference widely - because nothing in this Act contradicts, principles are imported to this consideration (2) Althought not a traditional Maori activity, Nagi Tahu had an interest in the whale watching, which was related to Taonga (3) In this context a reasonable degree of preference in activity of whale watching of Nagi Tahu was required). Fisheries Litigation and Settlement: Fishing rights protected by legislation in some way since 1877. Reform in shing industry to allocate shing quota - s88(2) Nothing in this Act shall affect Moair shing rights.
Te Runga o Muriwhenua (Interim Decision on allocating shing quota with the section: (1) Before 1840 Moari had a highly-developed shing industry with a commercial element to it (2) Preliminary breach of section). Crown eventually settled with most Maori in the Sealord deal, which was challenged in court, but then set into effect in legislation, putting all Maori claims in regard to sheries to rest.
Government Information
Freedom of Information Ofcial Information Act 1982: Ofcial information is: information held by public sector organisations. Part II: Information to which there is a right of process: Requests (ss12-14) must be particular and the requester has a duty to assist. Decisions have a time limit (s15) and refusals (s18) must have good reasons (s19). Part III & IV: Information to which there is a right of access: Part III: Directory and Ofcial Information (ss20-21), Internal Rules (s22) and Reasons (s23). Part IV: Personal information - access (s24) and correction (s26). Refusals: s18 has all substantive (State interests protected by "likely" (s6) others by the "necessity" test (s9)) and administrative reasons. Disputes: Judicial Review, Ombudsmen: Ombudsmen recommendations must be complied with within 21 days, unless the GG in council overrides them. Investigates legal issues and unfair situation. List of bodies that can be investigated. Won!t investigate if an adequate remedy exists. Personal Information The Privacy Act 1993: Deals with natural people. Similar procedures to Ofcial Information Act. Privacy Commissioner: Independent arbitrator for release of private information and investigates privacy issues with legislation. Ofce is independent and can make recommendations to Parliament. May cause the Human Rights Tribunal into action (may award damages).
Role of Courts & Parliament as Arbitrators of Individual Rights

Problem with Parliament is majority tyranny (control lawmaking and government: making laws and enforcing them) - problem with courts is that they are not elected - Courts should protect minorities by taking human rights into account when expositing the law - now part of NZBoRA. Lord Cooke!s fundamental rights: some common law rights go so deep even Parliament cannot destroy them (right to go to court; torture). Kirby J (oz) disagrees: (1) not much judicial support (2) democratic mandate (3) don!t know what rights are exactly (4) whether a right has even been infringed is controversial. NZBoRA: Was not made supreme law b/c: (1) Gives judges too much power (2) Hard to change: continue to bind future generations. Divided into three: Part 1: General Provisions Part 2: Civil/political Rights (ss8-27): Moral duty by the state to its citizens: Six groups: (1) Life and security to person (2) democratic/civil (3) non-discrimination/ minority (4) search/seizure/detention (5) criminal procedure (6) access to justice. Part 3: Miscellaneous: s28: not an exhaustive list of rights. Effect on the Parliament: s3(a): NZBoRA applies to the legislature when it acts (including when passing legislation): s7: BoRA vetting: AG notied house if legislation might infringe on BoRA - then Parliament can do as it wishes. Process: (either by department of Crown Law Ofce) (1) If provision prima facie infringes a right in part 2. (2) Is infringement a reasonable limit prescribed by law that can exist in a democratic society (s5): Two steps - (a) is the objective of the limit important enough (b) are the means used rationally connected to objective and proportionate to it. Effect on the Executive: s3(b) imposes an obligation only in respect of acts done by public power, function or duty (focus on act, not body). Ranseld Case: Cranks were banned from talk-back radio alleged a breach of s3(b) Held: (1) No provision in NZ imposes on the radio a duty to allow them to participate on talk-back radio (2) s3(b) has three requirements: (i) act occurs in performance of public power, function or duty (ii) function, power or duty conferred by or pursuant to law (iii) must be public - fact dependant question, involves policy (3) Radio!s actions not covered by s3(b): private; no public funding; no government supervision; not fullling a government function (4) List of factors 3. amendable to review not conclusive. Court approach to bills that infringe Part II: s4 (provision not invalid if infringes) s5 (balancing test of a provision that infringes: democratic society) s6 (when can give compatible meaning do): Moonen CA (Sensor acting lawfully when rejecting a pornographer's freedom of expression Held: (1) Suggested approach: (i) does provision infringe BoRA right (ii) if yes s5: is it justiable in a democratic society (identify objective + how is it achieved + as little as interference as possible) (iii) if not justiable s6: can give it another reasonable interpretation (iv) if not apply it s4). Tipping J nds a power by the court to declare the Act is inconsistent in s5. BoRA in the NZ Constitution: Does not limit Parliament, but changes the way it operates within the Rule of Law: AG and S7, Human Rights Tribunal, Courts and S6. Inuence of International Covenants: courts can take into account when interpreting law. Effect of BoRA on Criminals: minority in NZ that may be oppressed by majority; courts play a role in protecting them and use BoRA to do so.
Arrest and Detention

NZ BoRA 1990: s21: unreasonable search and seizure. s22: not to be arbitrarily arrested or detained. s23: rights of person arrested/detained: reasons; lawyer; validity of arrest. Crimes Act s315: sub(1): no common law powers of arrest (Police v Cox); sub(2) must be an imprisonable offence. Initial Contract with the Police No Power to Detain short of Arrest: Blundell (Dated younger girl, uncle saw in street detained police also detained while inquiry H: (1) Detention short of arrest unlawful (2) False imprisonment = restraint of personal liberty); Duffy v AG (Cancer patient thought drunk despite explanation H: (1) Wrongful arrest for being drunk judged objectively w/ what p/o knew: looked drunk but gave a reasonable explanation (2) Not taking immediately to station was reasonable). Power to question short of arrest: Rice v Connolly (Obstruction: anything that makes P/O work more difcult; false information yes; say nothing no); Elder v Evans (Suspecion of being poor - but arrest for not answering question H: unlawful arrest, but small award b/c brought it on himself) Edwards v Police (drunk motorbike ho helmet p/o H: (1) Holding and stopping from entering house was unlawful detention short of arrest = false imprisonment: should be claiming to arrest); Everitt v AG (bike currier H: (1) not a detention but a request for inspection (2) arrest for bike grazing was on reasonable grounds of assaulting p/o). What constitutes an arrest: (1) Touching (must be rst step in a formal arrest) or acquiescence + (2) words (must be brought home); Regina v Inwood (arrest question of fact: must understand you are under arrest); Police v Thomson (Suspected drunk; while p/o locking car he went away H: words must be accompanied by either touching of acquiescence: neither here); ITW v Police (Female p/o grabbed boy running out of van and dragged to street H: P/o did not say arrest but okay b/c formal arrest was inevitable outcome - but he is not guilty of obstruction b/c under circumstances actions reasonable). When can police exercise right of arrest: Power of citizen to arrest: ss 34-38; R v N (shop detention: not a power of arrest, but an immunity). Source of power to arrest w/o warrant: s315(2)-(4): good cause to suspect Police v Anderson (Information police has at time of arrest must satisfy "reasonable suspicion!: objective test; not high standard of proof). Discretionary nature of power to arrest: Saints Article; Neilsen v AG (s22 - former p/o advised to escort police or would be arrested for alleged thieving of $200 from former employer H: Police have discretion: here b/c nature of offence a summons would be better: improper exercise of discretion). Prevention of breach of peace: No statutory def; no offence. Police have common law power to do what is reasonable to prevent an anticipated breach of the peace: Williams; Minto. Legal Consequences of Unlawful Arrest: long time and expensive Civil Action: Harris v AG (Aggravated police in court holding cell and was beaten up and dragged afterwards H: focus on police wrongful conduct: degree of violence; treatment afterwards: $30,000). Habeas Corpus: determine legality of detention (precedent over any other case) Civil Action for BoRA breach: AG v Hewitt (Bring either under common law or BoRA under BoRA may get more where not available or inadequate). General discretion to exclude (real) evidence for unfairness: Police v Hall (drunk 17 y/o crashed asked police to phone dad or lawyer and was told no; doctor for blood test gave full examination: lost test wanted to use examination in trial H: no police discretion b/c local judge said to do it all the time: exclude evidence b/c special circumstances); R v Murphey (Common law
application to exclude because warrant was invalid H: (1) Common law discretion to exclude evidence survived Shaheed (2) mere fact it was unlawful does not make it unfair show something over and above - nothing special here). Exclusion of evidence breach on BoRA: R v Shaheed (No balancing if: (a) trivial (b) not connected (c) would be discovered legitimately test: (1) Was there an unreasonable breach? give weight to fact BoRA right breached (2) Balancing proportionate response to breach? (a) nature of right (b) seriousness (c) deliberate or reckless (good faith=neutral) (d) nature of evidence (e) importance of evidence (f) credible legal system (g) availability of alternative remedies); R v Maihi (Guy who drove out of gang headquarters had car searched despite protest H: (1) Fact search unlawful not necessarily unreasonable (2) unreasonable b/c was not an emergency and had alternatives and had only suspicion no belief (3) use NZ values when assessing balancing test (4) exclude b/c not enough public interest in small crime for breach of BoRA). Arrest under NZBoRA (remember Shaheed!): s23: Arrest or detention under any enactment: R v Goodwin (Not excluded b/c held not to be an arrest or detention under an enactment). s22: Arbitrary arrest or detention: R v Goodwin 2 (Baby died husband interviewed told can go but asked to wait and interviewed again after statements compared and incriminated himself H: clearly arbitrary (left open whether any unlawful = unreasonable)); R v M (Islander raped student in part police came to work at night told to come with them did not understand and interpreter not experienced H: Mixed objective/subjective test: (1) did he believe he was not free to leave (2) was it a reasonable belief - should not be disadvantaged b/c did not know it was boss). Unreasonable search and seizure under NZBoRA: s21: R v Jefferies (searched car suspected of armed robbery and found drugs H: (1) Unreasonable if circumstances unreasonable or exercised in an unreasonable way (2) any search is an invasion of privacy, but extend depends on situation (3) Challenge unreasonable search also on common law (but wider and more elastic under BoRA) (4) No breach b/c reasonable circumstances (t description) and p/o didn!t go further than required); R v Pratt (strip search in public incriminating keys found at offset H: (1) strip search in public = unreasonable (2) Search cannot be split up: keys excluded and would not be found otherwise b/c could change pants); R v Grayson (Kiwi orchard search on tip off done quietly H: (1) Reasonable because nothing disturbed, did not go into house and was short and to the point (2) Nothing every observation is a search: fact and degree).
Week 1 - 1
Public law looks at how the power of public authorities gets used, what powers different institutions have, how to use it, what its limits are and how it can be challenged. Its about how NZ as a society decide how it governs the rules and chooses the rules that govern itself.
Week 1 - 2
Constitution Every mass society has to have a central government to regulate it. Otherwise, chaos prevails. The constitution is what centralises it. Government is a necessary evil. The constitution shows what it will look like: define how it is to be structured, what its powers are etc. Inherent in the idea of a constitution is limits on the power of the government. Restrictions on what it can and cannot do. A difference between Australia (and the US and Canada) and NZ is a written constitution they wrote down a set of rules to outline what the different branches of government can cannot do these rules can only be altered by special means. oThis means that courts can tell the government that it cannot do certain things which are unconstitutional. NZ doesnt have one single document which sets it all out and NZ courts do not have the power to strike down statutes passed by Parliament as unlawful. NZs constitution differs in its sources as well as the power it gives its courts over Parliament. Kenneth Keith, who wrote the introduction to the foundation of the current form of government, identifies the part of the NZ constitution (CM7): Power of the Queen. Relevant NZ statutes (important ones) English and UK statutes. Relevant Court Decisions. ToW. Conventions. oNZs constitution isnt only about written down words, but also on the people in it and how they decide to behave. Conventions arent written down as law, but they are how people have done things and how the public expects them to. oTwo points: !1. Constitutions are constantly in flux, constantly changing. !2. The constitution of a country is intimately bound with the politics in that country. International Conventions. Geoffrey Palmer outlines 4 elements to NZs constitution (CM2). 4 branches of government: 1. Sovereign. 2. Executive. 3. Parliament. KiwiLaw Blawg 4. Judiciary.
Although each one has a different function, they in fact overlay (especially the executive and Parliament, who have dual membership). Many of the roles and functions of the four are laid out in the Constitution Act 1986. Sovereign Queen of England. Appoints a Governor General in NZ to act under her name. The sovereign is the head of the country and has the right to appoint and fire members of the executive; has the right to dissolve Parliament; must sign all laws before they can become law. However, these powers are limited by constitutional convention and the sovereign always does what the government tells him or her to do and has no real opinion. Government Runs the day to day business of the country. Consists of the Prime Minister and Ministers of the Crown. Under the government lay the public services (Ministries, Police, Army, Schools, Government agencies etc). Public servants do what the government of the day tells them to do. The government is appointed by the sovereign. This he does by convention and only appoints it if it can show it has a majority of the members in Parliament. Parliament Two main roles: oDecide who will be the Government. oMakes rules and laws which the public must abide by. It is the highest body of law in NZ (but not the only one executive and judiciary also can). Parliament is the only elected institution. That is why it has the uppermost power. Judiciary Interprets and applies the laws Parliament enacts. They tell the public what the law is. Unlike Oz or the US, the NZ judiciary has to apply any law written by Parliament as it is written. However, the executive is bound by the laws of NZ and the judiciary can test their actions when compared to the laws of the country. The judiciary has also carved a role for itself in making sure that all the beurocrats use their power in a fair way (judicial review). Therefore: NZs constitution is a product of history. Through the Separation of Powers into different breaches you stop one person from having absolute power.
Week 1 - 3
Constitution Act 1986 Note: it is just an Act, it can be changed through a simple majority vote in Parliament. However, it has a special weight to it. It sets out the rules for the government of the day, so any change should be a consensus of wide agreement. Part 1: Sovereign oStates that the sovereign is the head of the state and that the GG can fill the sovereigns position. oThe Constitution Act does not say what the sovereigns powers are or how he should use them derived KiwiLaw from Blawg other sources of the constitution
(other statutes; royal prerogative; constitutional conventions). Part 2: Executive oOnly members of Parliament can be ministers + powers. oNothing about appointing Ministers; doesnt say who the sovereign should appoint as Ministers (constitutional conventions). Part 3: Legislature oMust be elected according to Election Act 1993. Parliament consists of the House of Representatives + Sovereign. That it is supreme and that it can make any rule it wants to. oNothing about how to make laws. Part 4: Judiciary oParliament can fire judges, but only if he misbehaved or cant do his job. Also no interference with judges salary. oNothing about applying rules. oJudges are isolated and protected from Parliament. Part 5: Miscellaneous oIrrelevant to us. The Constitution Act 1986 is not NZs constitution. It is very incomplete. Two other sources of the constitution are: Constitutional Conventions: 1. Sovereign will only appoint Ministers from MPs who have a majority support in Parliament. 2. Sovereign exercises his powers only on advice of the government of the day. 3. The leadership of Government is from Parliament, hold a majority of support in Parliament and are accountable to Parliament. These are not legal rules, but rather conventions their bases are in the belief of how its members think they should act, based on how people expect them to behave. They arent bound by habit, but because it is the right thing to do. Article at CM20 draws a few problems: o1. Its very vague. o2. Doubt about whether courts can define and enforce constitutional conventions (probably not). o3. Hard to put into words why people think they should follow conventions. o4. How do we know when conventions get changed (when someone does something else is he breaking the constitution or creating a new convention?). Why not replace conventions with laws? oIf it isnt broken, dont fix it. After 160 years everything is still working well. oFluidity of constitution conventions allow wiggle room for people not too ridged. Treaty of Waitangi: Doesnt have a formal legal position not a source of legal rights; does not bind Parliament. However, it is the founding document of NZ and because the Crown signed it in good faith, it should keep it in good faith. The ToW has been mentioned in some statutes, giving it a certain legal force. Parliament has incorporated it into some of its processes. The Treaty is a specifically NZ thing (as opposed to the rest of the constitution). The interaction of M!ori and Pakeha is addressed through the ToW.
Week 2 - 1
Principals of the Constitution Descriptive or explanatory (describe how the constitution is set up, explain why it looks the way it does). Prescriptive set down end goals or forms of practice that our constitution should be aimed at fulfilling. In order to look at these, we first need to look at what the constitution does and what its goals are. The Rule of Law This concept has a number of problems in it. It is how a good government should be structured and operate, and how the state should relate to the individual person. The state is of a particular nature, it is original and unique. You dont get to choose whether youll be subject to the state by being in the states land, you are subject to it. Secondly, you dont get to choose whether youll do what the state demands of you you have to do what it says, and if you dont do it, theres police to arrest you. The state has a monopoly over all of the above. In general, this is required - a necessary evil. However, this is a lot of power. How can we be sure this power will be exorcised in a way which will benefit the people who are subject to it rather then those who control it? What stops them is the Rule of Law it attempts at answering the question in the positive. The Rule of Law has an historical background and a social setting: The concept of the rule of law is fuzzy. What is the rule of Law? A. V. Dicey (page 26) Dicey identifies 3 meanings to the rule of law (1) No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land before you can be punished by the state for your actions, the state has to show the law prohibits it (first establishing a breach of law). It also means the state does not impact on our lives only punishing us, but also by taking rights away from us and the state must also show that the law allows and justifies those actions. According to Dicey there are clear lines of following the law in countries with rule of law, compared to complete anarchy in countries that dont this is too simplistic because the law may give someone in public office discretion as to how to use that power: oCrimes Act 1961: S315(2): Any constablemay arrest and take into custody without a warrant: (b) any person whom he has good cause to suspect of having committed [a crime]. Does this mean that the police in NZ arent controlled by the rule of law? They arrest when theyre suspicious. However, the Police are still controlled in NZ by the rule of law. If arrested, you could challenge it by law good cause is a legal test and a court would test to see if the police in fact had a good cause. Secondly, if the arrest was found to not be authorised by law, the police wouldnt have any authorisation for what they had done and you would then be able to seek a remedy in law against them. The Rule of Law means that there can be some discretion to the use of public power, so long as that discretion is controlled through legal tests and reviewable by the courts. (2) We mean in the second place, when we speak of the rule of law as a charKiwiLaw Blawg
acteristic of our country, not only that with us no man is above the law, but that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. [page 31]. We have to be careful with Diceys broad description, since some people have different power the police have a special power of arrest, which the lay person doesnt have; the director of a public company, for example, faces legal duties that other directors dont have to comply with. It doesnt mean everyone is treated the same by the law, but rather that everyone has to play by the rules, and that those rules have to be the same for everyone in similar situations (what counts as a similar situation is a different problem). Dicey says the rule of law says that all matters should be tried in the same courts, however NZ has many special courts and tribunals for different reasons and cases (Horse Racing Tribunal etc). (3) the general principles of the constitution are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts [page 32] Under the English constitution, Civil liberties are not secured by higher law expressions, but rather they are protected by ordinary remedies developed in the ordinary course of litigation. Not broad statements, but rather the fact that judges have upheld those rights in the past in courts. Its problematic, first as a matter of legal history, and even if he was right then, he is not right today. England and New Zealand both have statutory provisions to provide for the basic rights of humans (Bill of Rights 1990 in NZ). These rights can be used to show public power is unlawful in certain situations. What Dicey is perhaps right is that English and NZ courts continue to recognise rights for citizens that arent protected by statute. Even though they can be overruled by parliament, the courts will be very slow or reluctant to find that thats what Parliament meant or intended. Reframing Dicey Power of officials and politicians must be authorised by law to do what they are entitled to (even if that law gives them a broad discretion, they should have something to point to. Officials must be bound by the law (even if its sometimes different then what applies to ordinary citizens). Review of these actors by the courts is a means of controlling administrative error or abuse. Although individual rights may be overridden by statute, the common law recognised the value of these rights and privileges, written into past decisions. The courts will be reluctant to find that parliament intended to override these rights and freedoms. The three aspects we have identified shows the framework of the rule of law. However, it is not a complete definition of it. Geoffry Walker provides a better description, an ideal, of the Rule of Law [page 38]. It covers some of what Dicey points out (such as Diceys 2nd point), but it adds a few extra refinements to Diceys bare-bones account. For example, what sort of rule should parliament make and what they should look like, to be in accordance with the rule of law: Geoffry says that parliaments law has to be Certain, General and Equal, so singling out a specific population would not be treating everyone equal and it would not be general. Secondly, the 12 principals Walker identifies say the law should change to keep in line with social values. KiwiLaw Blawg
Thirdly, they prescribe how the courts should oversee the laws the judiciary and other parts of government. It is an ideal that should serve as a guideline to build a society based on the rule of law it says that that society would be better then one which isnt.
Week 2 - 2
Two cases that illustrate the rule of law in common law. Entick v Carrington (1765) One of the corner-stones of public law. Mr Entick was suspected of being the author of seditious liable about the king and parliament. Writing seditious liable was a criminal offence (it is still a criminal offence in NZ). The Earl of Hallifax was a minister of the crown, right hand to the king. He issued a warrant to search Mr Enticks house and seize all papers there. Mr Carrington and three other men (hired goons) broke into Enticks house, ransacked the place and took away all and any papers they could find. There was no evidence found that he was guilty of what they thought he had done. Entick sues Carrington and the three in a civil action of trespass, because they entered and remained in his property without permission or lawful excuse. Carrington defended himself on several grounds: Claimed a statutory immunity from being sued civilly, because he is an offer under an act but the judge says the statute doesnt cover Carrington. 2nd Defence: Claimed the warrant given to him authorised his actions acting with lawful excuse, because he had a warrant. [this is our main concern] The court said that if the warrant is to give lawful authority to trespass on someones land, there must be some lawful excuse to produce the warrant. The judges found no statutory basis there was no act by parliament to give the earl of Halifax the power to issue such a warrant. If the warrant was to have a legal basis, it had to be from common-law. This is what the Earl claimed. But then, what basis in common-law gives him this authority? The court said (page 50, 2nd column) that there is no case in the books giving the Earl such a warrant. Three arguments why the warrant should be recognised in law: Such warrants have been common since the revolution. No ones ever complained before (the writers and people affected) This power is essential to government; we have to issue warrants like this in order to catch the troublesome folk (got to do it for the good of the whole country). Problem is that these warrants give very broad intrusions into the lives and houses of private citizens. Judge thus says that because it is so extensive, there must be a very clear law about it and if it is lawful, it must be in the books. However, if it isnt written in law, its not legal. The court considers some possible arguments that may give the earl legality to issue his warrants. Are they similar to warrants to search a house? No, the powers given and the processes are very different. Rejects the idea that historic practice has made this an English tradition and a part of Common Law. Court confronts the issue that the Common Law should recognise them as legal, because they are necessary to prevent publication of liable writings. (p52 3rd KiwiLaw Blawg
Column) The Common Law does not understand that kind of reasoning, nor do our books take notice of any such distinctions. Its not a defence. Judge concludes: because theres no statutory authority to issue the warrant and nothing in the common law authorised it, the earl of Halifax had no legal grounds to issue the warrant. Because the Earl had no legal authority, Mr Carringtons actions under the warrant were not legal either. Thus Carrington has no defence from the action in Trespass. In regard to the rule of law, this case illustrates the three meanings of the rule of law that Dicey spells out: The powers of officials must have a legal basis (earl of Halifax was a big-shot minister of the king but he can still not tell his underlings to trespass on someone elses property just because he felt it was necessary) Politicians and officials must be bound to the law; review of these actions by the courts are used to keep them in line (it was enough for Entick to bring a case of trespass in court against Carrington and the court put it to a test). Common Law recognises the values of freedoms of the people and courts will not easily change these (the right to property is a basic common law concept, and your right to it shows by the courts awarding you remedy if you sue for trespass). Transport Ministry v Payn Payn had a few beers and drove home, having an accident in a parked car. The owners suspected he was drunk and called the cops. Payn walked home and started drinking more. Traffic offers came to his door and asked (didnt demand) if he would take a breath test. He then told them to leave his property. At this point they became trespassers. The P.O. went back to their car for instructions and then knocked on his door again. They told him to take a breath test, which he refused. Then asked him to accompany them to have a blood test and when he refused he was arrested. He appealed his convictions under the Drunk Driving Charge and under the Refusing to Accompany an Officer charge on the grounds that the P.O.s were trespassers at that time. He also said the officers did not have any lawful authority to trespass onto his land to carry out these powers. The CoA issued three judgements. The central question was: Does the statute (Transport Act 1962), which gives transport officers to demand an alcohol test and to arrest, authorise trespassing on someones property to exercise these powers? If it doesnt, then the officer trespasses without lawful excuse and the demands of the police are then used unlawfully and the accused would have to be let go. The Transport Act 1962 did not say if you could or could not exorcise these powers in relation to trespass. If the court was to read into the legislation a right to trespass, the court would have to imply that power from the statutory provisions. The court had a problem deciding how far could this power go? (only walk up the path? Up to the door? Break down a door? Search the house? Etc). The court says that the rights Payn has are fundamental rights enjoyment from how; excluding people from your home; The court says these rights are important and should only be taken away through clear indication that that is what parliament intended. Majority of the court finds that the power to demand a blood-test or arrest cannot be done on private land, once the occupier demands them to leave. They would have the power on the road or street, right outside Payns gate, but not in his property. Payn was acquitted from the charges. KiwiLaw Blawg
Even though Payn was very likely to have been guilty and clearly knew what the law was, the conviction was thrown out to protect the rights of individuals. Before the state can act, it must show it has legal authorisation. Roles of the different government branches in these cases (Courts who decide; Parliament who enacts; Executive enacts; and Public gets hurts). Next lecture shows.
Week 2 - 3
A second principal underlying the NZ constitution: Separation of Powers If government is to be controlled by and operate under the law, then the following follows: Someone has to make the law and someone has to execute those rules and someone has to ejudicate what the laws are and what they say. The principal of the separation of powers explains why these powers are placed in different branches of our government. More importantly in the NZ case, the doctrine of the Speration of Powers is a theory that says how these powers should be separated among different branches of government. The separation of powers is tied up with the notion that each branch of government puts a check on other parts of government. The objective is to limit the people with power because they may try to better themselves on the private citizens back. Pure Separation of Powers Motesquieu, when he wrote his doctrine, based it on the English setup. For example, he said the House of Lords has to be a part of the constitution and that a Monarch has to be at the top of the hierarchy. He describes an idealised English constitution his account reflects the times in which they were written. Motesquieu is arguing that one of the best things about the English constitution was that it separated the branches of government into three branches. Motesquieu thought this was a good idea page 66, 1st column Where legislative power is united with executive power in a single person or in a single body of the magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically. All would be lost if all the powers would be centralised in one person or body, he would have too much power people would not feel secure in this case and would be open to the arbitrary use of power. The individual citizen is more secure if the three powers are vested in different branches of government: executive; legislative; judicial. Each would have their own powers, and these would not overlap. Points: Its not clear whether Motesquieu means we should not have the same people in the different branches. Motesquieu doesnt argue that each branch should have nothing to do with the others, no interaction. For example, the whole idea of the rule of law is that the judicial branch can oversee how the executive branch is executing the law and whether they are doing so legally, etc. However, each branch should not use anothers powers, do their job. Madison argued this idea after the war of independence in favour of creating a strong federal government. Madison argued that there could be put barriers on each branch of government to stop it from taking over the others powers. His argument and the US KiwiLaw Blawg
constitution was written in Philadelphia. US Constitution: Sets up the three branches of government. Article 1 sets out the legislative powers, Article 2 sets up the executive branch and Article 3 sets up the Judiciary. It then sets out who is to be the members of each branch and how they are to be chosen. Under the US system no one can be a member of more then one branch at the same time. Constitution lays out in detail the powers each government has (says what each branch can or cant do). It sets out an intricate set of balance for the interrelation of the branches between the branches. Points on the US system Its an example of a written constitution which sets out in detail how governmental procedures are to happen. Changing the Constitution is very difficult, and the Judiciary can use it to cancel Parliaments laws if they are unconstitutional. The structure is a pervasive distrust in government. Government functions are divided up very strictly, and each has a veto power over the others (constant fighting among each other for power, wont be able to be tyrannical). US is an example of strict separation of powers system. Its relevance to NZ is: NZs constitutional structure doesnt have the same dedication to the separation of powers. Constitution Act 1986 sets out rules for the different branches of government and what they are to look like, but there is not as much separation between each of the branches. The overlap in particular between the Executive and Legislative branch in NZ is very evident. The sovereign, for example, is not only the head of the executive, but also a part of parliament. Section 16 also gives her the power to sign all laws before they become law. The legislative and executive branches are even more intertwined, since the prime minister who is the real head of the executive is also part of both. The ministers must also have the majority vote in parliament. In S15 parliament of NZ has full power to make laws on the basis of a majority vote in parliament same as number required to support the government of the day. The effective head of the executive also has the support of the majority of the MPs, who can make whatever laws they want to through legislation in parliament. In our Westminster constitution set up there is no distinction between the government of the day and the legislative branch. So in NZ we separate more between the Political Branch and the Judicial Branch. The introduction of the MMP as a voting system was at least in part meant to address concerns that the overlap between the executive and legislative, which gave the government too much power. Now, it has to negotiate a lot more and the power is diminished. Its no longer a given the government can pass any law they want since they usually have a coalition. Each branch of government under our constitution exorcises powers that should belong to the other branch. The executive branch can also make law, in the form of regulations and it can also ejudicate on matters when it sets up tribunals. The legislative branch can also execute laws, it has power of arrest and it can also ejudicate on matters of parliamentary privilege. The judicial branch in reality makes law all the time common law contains much judge made law. Does this mean that the separation of power is irrelevant to NZ? The idea of the separation of powers doesnt help us to understand NZs constitution very much. However, the idea of separation power has some sort of moral force when talking about NZ constitutional matters. It works to say how the powers of government should be exercised. You KiwiLaw Blawg
could argue as a constitutional matter that the executive shouldnt make too many laws through regulation (its constitutionally improper). The courts accordingly refuse to read-in too far into statutes to an extent of changing or creating the law too much. The separation of power still has bite in the idea of judicial independence. Members of the Political branch should not have influence on the Judicial branch judges should decide based on the law, and the law alone (not on what the legislature would like his decision to be). S23 and S24 in the NZ constitution act state that you cant fire a judge unless they cant do their job anymore or they misbehave. Further, Judges salaries cannot be reduced after they get appointed into office. There are further guarantees in constitutional conventions that members of the political branches will not criticise the decisions of judges and vice versa. Also judges are appointed through a discussion with judges and lawyers. It is important the judiciary is separated in this way because the whole idea of the rule of law requires an objective or neutral institution decide what the law means. The legislature is likely to interpret the law to mean what it wants it to mean at any given point. Secondly, the RoL idea means that everyone is treated equally, and if each case was decided without objective rules in parliament, people may not be treated equally.
Week 3 - 1
Parliament as an institution Parliament is the cornerstone institution in NZ constitutional system. Parliament means the House of Representatives and the Sovereign (Constitution Act 1986, 14-1). However, the role of the sovereign is mostly ceremonious and the sovereigns actions are always carried out on the instructions of the government of the day it tells the sovereign how to exorcise its power. Although the sovereign has the power to dissolve parliament, it will only do it on the advice of the prime minister. The sovereign also signs acts of parliament, turning them into law, but the sovereign advised to sign by one of the ministers or the prime minister. Finally, the sovereign requests money from parliament, but the minister of finance tells him what he needs. In reality the sovereigns role in government is prescribed that he always has advisers, who always have the majority of support in parliament. The effective part of parliament is the House of Representatives such that most of the time when parliament is discussed in the media, they really means the house of representatives. House of Representative: NZ has only one house of electorates (as opposed to Australia and the United States). NZ used to have another house, however that was abolished in 1950 and since there has only been one elected house. Consists of elected members of parliament and only elected members of parliament. Normally 120 MPs. It is the only part of parliament we get to choose in a direct fashion. What does parliament do? (in reality functions of the HoR) Makes laws - legislature (the function that puts Parliament in the spotlight). A Bill is a piece of legislation still in the parliamentary process, but an Act of Parliament has passed through the process and has become law. oIt is sovereign in its law making role there is nothing parliament cannot legislate about (compared to Australia where government is bound by its constitution). BUT, there is discussion whether there are deep underlying civil rights that parliament cannot sign away Cooke said that the NZ courts would not apply a KiwiLaw law by parliament legalising torture. Further, Blawg
Parliament controls its own law making process. There is not legislation relating to how it is to make them. It is controlled by the HoRs own Standing Orders. oParliament makes law on the basis of a majority vote among MPs, all of which ties into issues of democratic accountability we, the NZ public, vote who we want represent us in parliament. Those representatives decide what the law should be on the basis of a majority vote. Then we get to pass judgement on their choices every three years. Providing the government of the day: HoR effectively decides who the government of the day will be. Sometimes the sovereign can exorcise her powers independently, when its not clear who the ministers advising should be (but they all have to be Ministers, and also members of Parliament), but usually it cannot. The government of the day and every one of its ministers must have a majority of support in the House of Representatives. Parliament holds the executive arm accountable for its actions. How the executive arm is operating can be called into question by parliament. The way in which this is done through many different ways: oBudget Process: Crown goes to parliament and says it needs X amount of money to run the government. Parliament gets to vote on the budget and unless the vote goes through, the government has no money (a bit of a problem, eh?). oMinisterial Questions: Each week there is time set a time where MPs can ask ministers of the crown about that ministers business. oDebates in Parliament: House of Representatives debates issues of the day or over legislation going through the house. oSelect Committee Process: When a bill is going through the house, it gets sent to a smaller group called a Select Committee which gets the legislation and hears the public submissions about it (The Select Committee is made up only of MPs which are not part of the executive). Parliament represents the people: Parliament serves the basics for a law making government. oIts the institution that is the most representative of the NZ people and its the foremost in our democracy and government accountability. oParliament is a deeply political institution. When they are acting out their actions, they arent acting out in a personal, private way. They are being political and political competition is what makes the whole institution tick (different policies, different options, embarrassing the government when it fails or stumbles in order to provide an alternative, etc). Constitution Act 1986, 17: oParliament duration is no longer then 3 years (doubly entrenched must get a referendum vote or 2/3 of parliament). Parliament Election Process: Two ways you can become an MP: oNZ is divided into 69 electorates. 62 are general, 7 are Maori (only for people who are of Maori descent). At any election you cast two votes: one for an electorate candidate and one for a list party. The electorate who gets the majority of votes in a constituency wins a place in parliament for that area. oThe rest of the seats in parliament are divided up among the parties that got more then 5% of the party vote. They are drawn off rank lists draw together before each election. KiwiLaw Blawg
MMP is strongly proportionate (Mixed Member Proportional). oIt is deliberately set this way it gives out seats in parliament very closely to the proportion of votes each party gets. If a political party gets 10% of the party vote, it is entitled to 12 sets in Parliament, with no regard to how many constituency seats it got. oThe spread of seats in the HoR depends on the share of party votes it is what finally makes up the proportion of MPs in parliament. oThus, political parties are incredibly important constitutional actors. Also it means that when the HoR gives majority support to a government of the day, it means that the political parties of the day negotiate which party they support and who will be government (not individual MPs).
Week 3 - 2
MMP: It is a strongly proportionate voting system. It gets a share of the seats in parliament and is very closely connected to the party vote (10% vote in party vote, get 10% of seats in parliament). This means that the makeup of the seats in parliament depends on the share of the party vote gained by each political party. Means that political parties are important political actors. The government is determined by negotiations between political parties. In our formal constitutional makeup political parties do not show up very much and parliaments standing orders also recognise that political parties are important, but there is not mention of them in the Constitutional Act 1986. Also, how political parties order their own internal affairs is determined by the political parties themselves. The part of parliament where all the action is at takes place at the House of Representatives, but those MPs are elected as members of political parties (no individual MPs since 1949). Furthermore, in most situations, votes in the HoR are taken on a party-by-party basis. Each party gets together, decides their common policy, and then they all vote in line with that idea. Sometimes the party is told to vote by conscience, but they are uncommon. This means a few things NZ is party government: the political parties negotiate between themselves who will get to form the government. The HoR is a party dominated institution. Individual MPs rarely get to make up their own mind. Parliament as an Institution One of the key constitutional points about NZs constitution is that in NZ parliament is sovereign (one of the last countries in the world that can claim that). What does it mean? Recognises the position of parliament as the highest law making institution in our constitution. Means parliament can pass laws about whatever subject it wants. No formal restrictions about what parliament can or cannot legislate about. Means no other branch of government can override or declare unlawful an act of parliament it remains a law unless and until parliament says it is not. Parliamentary Privilege: If parliament is sovereign, then the idea of parliamentary privilege is derived from this recognises rights and immunities to better allow parliament to carry out its functions (some generalKiwiLaw laws Blawg of NZ do not apply to parliament, b/c of
what it does). For example, anything said in parliament is immune from being sued (even defamation and lies). Cases that exhibit parliamentary sovereignty: Fitzgerald v Muldoon Relationship between the executive branch and the legislative branch. In 1974 the labour government decided to put in place a superannuation (pension) scheme. Individual employers paid a certain amount of money into a fund and that money was kept for individual workers. B/c it was compulsory it had to be set up through an act of parliament (only parliament can raise money through an act of parliament). In 1975 National got into power. They said they would get rid of the superannuation scheme. When Muldoon was appointed PM he issued press releases to the affect that his government would introduce legislation to abolish the Superannuation Act 1974 and that it would be appealed with retrospective effect. There was no real doubt as a political matter that this act would be repealed. However, Parliament was in its Christmas break. Muldoon also said in his PR that b/c of the legislative change, employers should immediately stop paying to the superannuation scheme and that there would not be any penalties for those who do. The Superannuation board announced it will take no punitive action. It would just stop administrating the scheme. Fitzgerald was a teacher. He went to court pointing out that until it was repealed by parliament the Superannuation Act 1974 remained law. The law required employers to keep paying money into the Superannuation scheme. The department of education stopped paying into the scheme on his behalf. Fitzgerald alleged that the reason they stoped was because Muldoon told the ministry not to do so he told the ministry to ignore the act on the basis he intended to cancel it in the future. Said Muldoon breached the Bill of Rights 1689, article 1 (p18). Judge recognises that the Bill or Rights is part of the New Zealand law. Judge asked questions: Did Muldoon suspend laws or their execution with his PR? Did intend to suspend the Superannuation Act 1974. There was no direct instruction, but the obvious affect of his PR was that everyone should ignore the law. Said this act tramples on parliamentary sovereignty, because only it can take those steps. And did it do so by regal authority? Furthermore, judge notes this pretended suspension of the law was carried out by regal authority Muldoon was not the king or the sovereign. But his position is the head of the Executive branch and it means that when he issued his press release he was using regal power. The evidence of this is that everyone listened to what he said in his PR has so much authority as a PM (an individual would not be held liable for this part of the BoR1988 does not have regal authority). Judge issued a declaration, a finding by the court, that Muldoon acted illegally when issuing his press releases. By acting in his official capacity as PM and telling the people to ignore the law, he breached the BoR and acted unlawfully. Did not make an order for everyone to start paying to the superannuation scheme, because he recognises it as a political reality. Would be pointless. The declaration was thought sufficient in the circumstances. The declaration upheld the idea of the rule of law. KiwiLaw Blawg
The case stands for the clear principle that an act of parliament stands binding law unless parliament repeals it. Note: deals with the sovereignty of parliament over the executive. The second case is parliament over the judicial branch. Shaw v Commissioner of Indland Revenue Deals with superannuation. In 1992 a different national government introduced the superannuation surcharge through legislation. At 65 you got paid your superannuation, but if you were getting money from some other source as well, then your superannuation payments were reduced by the amount you were earning privately. Shaw claimed he had paid tax all his life and at his retirement he should get superannuation payments irrespectively of how much he was earning privately. Shaw challenged the basic validity of the surcharge. He wants the courts to declare the provision in an act of parliament unlawful, on two basis: The superannuation surcharge is a breach of the Magna Carta, which was and still is, part of NZ law. Breached it b/c it deprived him from property (superannuation) without a court hearing. Surcharge was a breach of his fundamental common law rights and the courts should refuse to recognise it as law. CoA responded: The judiciary has no statutory power to consider or make decisions on the validity or content of any legislation. Might consider whether all the proper formalities were done, but the courts do not have the power to consider the validity of property enacted laws. While the MC is still part of NZ law, it is not higher law which puts restrictions on how parliament can legislate. If parliament passes an act in conflict with MC, it trumps the MC. NZ has no judicial review of legislation with a higher law (p24 para14). As for common law rights go, it represents a situation of disaster, such as a legislation allowing torture would the courts have to give affect to that legislation? But day to day these arguments are irrelevant: op25 para 16: no doubt that the courts function is to give affect to acts of parliament. oThis case is no as bad as Shaw presents it to be. Parliament often discriminates between groups with taxing and with benefits, these decisions are common. oUltimately a political decision for parliament to resolve. op25, para 18: those who object to such a tax have their remedy in parliament and the legislative process. These two cases illustrate what parliamentary sovereignty means. When parliament makes law, it is binding on the other branches of government. An act of Parliament cannot be set aside or changed other then by parliament. It is for parliament to decide what the law should be and there should be no restraints on content (possibly in very extreme situations). Finally, the justification is that those who feel parliament has acted unfairly have their remedy in the legislative process.
Week 3 - 3
Why is parliament sovereign? Democratic legitimacy parliament is Blawg directly elected and MPs can therefore be KiwiLaw
held accountable through elections. It is the most representative and accountable. Therefore it should have the chief law making authority. Constitutional Continuity parliament can trace its law making authority back through a chain of authoritative instruments. Its power has been kept and maintained through legal means. Philipps v Ayer (p41, 1st column, top): in colonies distant from England. Its a good thing that local parliaments were given governments with powers, because its good for people to govern themselves. In order to trace parliaments legal heritage, we go to Legal History: Colonised from settlers from the UK British crown gained sovereignty over NZ in 1840. With the assumption of sovereignty came the attained power of law making. By the 1850s many settlers were in NZ. They began to agitate for local representation. In 1852 the UK parliament passed the NZ Constitution Act 1852. The NZ Constitution Act 1852 has two important sections to us: os 32 set up a general assembly (parliament by a different name) os 53 said that general assembly had power to make laws in NZ, as long they are not repugnant to the laws of England there was confusion as to what this meant: any and all law? English common law? Which English laws trumped NZ ones? In 1865 the UK passed the colonial laws validity act. [p27]: sections 2 and 3 restrict the repugnancy to any act of the UK parliament that extends to NZ specifically or implicitly. S(4) specified laws passed through NZ parliament cannot be called nullified other then by a UK parliament act. NZs parliament got power to make any law it wanted, unless the UK specifically overrode that act. In 1931 the British got together with some dominions and passed the Statute of Westminister 1931 in the UK parliament. In s(2) of the SoW it renounces the idea that the dominions laws are repugnant because they contradict any law of the UK parliament. S(4) said no act of the UK parliament is to extend to a dominion as part of its law, unless that dominion asks for the UK to pass that law for it. The UK parliament was cutting the apron strings. oThe NZ parliaments law making power was still sourced in a UK statute. oS (10) stated that s(2)-s(6) were not applied to a Dominion until the Dominions parliament adopted them this did not happen until 1947. In 1947 the Statute of Westminister Adoption Act was passed by NZ government. It adopted s(2)-s(6) of the British statute of Westminister and cut loose. At the same time the NZ parliament also passed the NZ Constitution Amendment (Consent and Request) Act 1947. It asked the UK parliament to pass an act which would give NZ the power to alter the NZ Constitution Act 1852. The UK did. At this point the NZ Parliament had full power to enact any act it wanted to, including the Constitution Act, which gives Parliament the power to make its own law. The last relic was swept away in 1986, when the Constitution Act 1986 was passed. oS(14) gives the NZ parliament a new footing, but it recognises the continuity of that parliament with the general assembly from the 1852 act. oS(15) recognises that parliament continues to have full powers to make laws. oS(15)(2) wipes out the last remaining power for the UK parliament to make law for NZ. KiwiLaw Blawg
Points to note: There is some value from a process of derived power over time. The whole setup is a mix of different things. It shows the NZ constitution grew through gradual steps taken when they were needed (no revolutions). If NZs parliament is sovereign, what can and cant it do? If it sovereign, can it change what the law was after the fact? Can it retrospectively change law that was law? Yes. But In Muldoon the government was planning on repealing statute with retrospective effect. This action does not raise any constitutional problems. Parliament is at power to repeal acts and change the law, and by abolishing the Superannuation Act it makes sense to undo the whole process by giving the money back. Some kinds of retrospective legislation can cause problems When Muldoon wanted to build Clyde damn, the people living in the basin argued that the land should not be given to the government. Parliament told the tribunal that no matter what it decides, the governments would enact retrospectively. The tribunal found the water rights to belong to the farmers. Parliament passed an act that the decision was of no affect and the water rights went to the government. This is problem with the rule of law how do you know what the law is at any time, if parliament can change it? Further, as was illustrated, you have a clash between legislative and judiciary branches. Once parliament passed that act it was law. They took the water and override the tribunal. Whether or not this was okay is a constitutional question. Philipps v Ayre Jamaica at the time was a British colony. The governor, Eyre, declared martial law and called for action against the uprising. After it was oppressed the Jamaican legislature passed an act to say that no one involved in suppressing the uprising could not be sued for any wrong done it was all lawful. Philipps was arrested in suspect of the uprising. He sued the governor saying he was wrongfully arrested, jailed and beaten-up. The Governor said this act could not succeed, because there is a Jamaican legislature act saying he acted lawfully. Philipps had to then claim that the act was not effective to make the governors actions lawful retrospectively. The court indicates that the governor may not need to rely on the act, because the common law recognises the use of force to suppress uprising. The court said that English common law went with them where they went (and thus also to Jamaica and New Zealand). Philipps arguments: Philipps attacks that act and says that the Jamaican legislature itself was falsely set up. Court says the crown had the power to create the legislature and that was that. The act was contrary to the principles of UK law, and therefore it is void. But court points out that the Jamaican act did not conflict with any UK statute. The Jamaican act should be regarded as contrary to natural justice, because of its retrospective effect. Court replied in p43,2nd column, 2nd sentence in 1st paragraph. Court agreed in general not a good idea. The court applied a technique: The court will not ascribe retrospective affect unless it is express that is what the legislature intended. But when its clear about retrospective effect? That is for the legislature to decide (p45, 2nd column). KiwiLaw Blawg
Underlying the decision: if the Jamaican legislature wanted to, it could have passed a law saying any actions taken to suppress a future uprising will be lawful, so when they make the same only retrospectively and if it doing the same, the courts will not step in and second guess. Parliamentary sovereignty extends not only to the future and present, but also to the past whether parliament should use this power is a constitutional question. It undercuts the rule of law and means you cannot base your actions of the law. We would be in a state of uncertainty.
Week 4 - 1
Guest Speaker Grant Robinson (Senior Advisor to PM) Parliament and Government Relationship (Government P.O.V) Labour (51) is in coalition with Progressive future combined getting 53 MPs. United Future is in a confidence agreement, meaning they vote for bills of the government and confidence votes. Thus getting 61 votes in parliament. Also a cooperation agreement with Green Party (giving a set of processes, but not agreed support for any bill). This practice is different from past, when governments used to have a party majority in parliament. Government does all in its power to assure 61 positive votes before Introducing the bill into parliament. This involves agreements between the parties in confidence agreements and other parties that may support the ideology of the bill. Government does its best to manage what is going on in Parliament. Failing to pass a law because a supporting party revokes its support may be picked up by the media and can cause serious problems for government, especially in public opinion. Many Bills change in the select committee process. Labour has a majority in only one select committee, and on the others more agreements must be made to retain the original drafts. Some of these can also be introduced at the 3rd Reading, but that is a messy way to correct law and often results in mistakes. Personalities of members of parliament and members of government are very important and often dictate the relationship between government and parliament at any given time. Government does its best to manage parliament, while doing its best to respect the processes within parliament, its conventions and its laws. The government, through parliaments standings orders, sets the order paper for parliaments standing order. It is recognised as the government and has the confidence of parliament, and that gives them the power to dictate the standing order and shift it around daily. It doesnt always work perfectly, and external powers sometimes put their own pressure. Government controls the standing orders in parliament and parliament itself, but the government and parliament are both separate issues. Private Members Bill: eg. Prostitution Act. B/c government controls the standing orders, every 2nd Wednesday ballots are pulled and the private bills that comes up is debate. Thus it takes a long time. These bills are a mixture of political tools to advancing policy and to stating political ideas. Prior to each election political parties should (big ones do) write a Manifesto. It KiwiLaw Blawg
contains the general principles and ideologies the party has in regard to a multitude of issues. It generally needs to be agreed by a body of the party and eventually not all of these ideas will be put into action. People who join political parties do so also to influence the manifesto.
Week 4 - 2
Parliamentary Sovereignty Legal recognition is page 24: CoA sites an earlier case saying the constitution position in NZ is clear an unambiguous. Parliament is supremeCourts of law cannot pass judgement on the vailidity of the laws. This ability even extends into the past. Parliament can retrospectively change the law, if Parliament is clear that that is what it wants to do. In Ayre said that whether this should be done or not is for parliament to discuss. What restrictions are there on how parliament goes about its business? Government and Parliament are not the same thing. While Government proposes most legislation, it is parliament which votes on them and makes them into law. Many deals and negotiations between Government and other parties are done to make sure governments laws are passed. This is a political restraint on making law. The only general legal restriction is s.16 of the Constitution Act 1986: oA bill passed by the House of Representatives will become law when the Sovereign or Governor-General signs it (just needs to be passed in Parliament and signed). Nothing more is said on the subject, about how the HoR is to pass law. The process Parliament uses to make law is dictated by rules of parliament itself they are not legal rules in that they cannot be adjudicated by the courts. Its by parliaments own standing orders (they are the rules MPs agree to as regulating what they do and how they do it). oThese standing orders are overseen and enforced by parliament itself (generally by the speaker of the house). The fact Parliament lays down its own procedures is a part of parliamentary sovereignty. This means that any failure to go through all the internal rules does not in itself make an act passed illegal. A failure of parliament to follow its own standing orders cannot be pointed to in court: Pickin v British Railways Board o1974 case from England, decided by the HoL. B/c British constitution is so similar to NZ, it is also applicable in NZ. oMr Pickin was train-spotter. Bought a small piece of land next to a disused railway line (big long thing strip of land). Did it in 1969. He intended that when the railway line was deemed to be disused by the railway line then he would get ownership of it because he owned the land next to it. oThought he would get ownership of railway on the basis of an 1836 Act of Parliament. oHowever, British Railway board, after deeming it no longer to be used, then claimed it owned the land the track was on, b/c of a private act of parliament in 1968 (saying those lines will go to British-Rail). oPickin went to court to seek declaration that the 1968 legislation was invalid, for two reasons: !British Railways board mislead KiwiLaw Blawg parliament (lied about the effect of
this legislation) if parliament passes an act after being lied to, shouldnt be valid law. !Standing orders of parliament required that land owners be notified through a notice in the local news paper if there is going to be a change of this sort and this order was not complied with. oHoL said this claim has no possibility of success: !Even if parliament was mislead when passing the act, that does not affect the vailidty of parliaments act. It is still law and parliament can go back and revisit the order if they want to. Parliament also has powers of contempt with which to punish anyone who lies to it. !Even if the standing orders had been breached the judiciary cannot and will not oversee them. Courts will simply note if the act was validly signed, and not look into how it was passed. !Lord Reid: The idea that a court is entitled to disregard a provision in act of any kind must seem strange to anyone with a knowledge of our legal system. In a general case with everyday legislation the rules governing how an act becomes is governed and enforced by parliament. Courts will not do anything about internal process. BUT: What if a statutory provision says that some sort of legal provision says that a certain law can only be changed in a certain way? Sole example in NZ is the Electoral Act 1993 (page 48). It says the provision protected by it can only be changed in one of two special procedures: oEither a 75% majority vote in house (super-majority), or oWith a majority vote by the electors (referendum). Sections identified and protected by s 268(1) are essential to the election process of parliament. Suspicion is that if members could change these rules by a simple majority in parliament, they would change it in order to make it easier for them to get re-elected. Note: it does not restrict what parliament can do or change; it is a restriction on the form with which parliament can make these changes. Legal Status of s 268 oS 268 on its own is just a section in the electoral act, and as such it can be amended or changed with a simple 61 vote majority. So by first getting rid of s 268 you could amend any of the protected sections by a simple majority vote. oS 268 has a moral standpoint. But in order to have a real legal force then it itself should be protected from being repealed other then in some form. That would be double entrenchment (provided protection for others and for itself). oParliament ignored this suggestion. oAnother question rises: Even if it was entrenched in that way, what would happen if a bare majority voted it out? Can a previous parliament put restriction on current and future parliaments? Its a law, contained in an act of parliament and the courts under the constitution system are charged with interpreting and applying the law. Could the law step in and interfere if a government with a bare majority tried to change s 17(1) of the Constitution Act 1986 without first changing S 268? Attorney General for NSW v Thrthowan NSW had a two-house parliament. In 1929 the NSW legislature passed an act which KiwiLaw Blawg
contained S 7(a), which said that the upper house (the legislative council) could only be got rid of following a referendum. S 7(a)(6) said that s 7(a) could only be changed by a referendum double entrenchment. There was an election and a new government came in, which ran on a policy of getting rid of the upper house. They said after that they did not to have a referendum. Immediately passed a new act in 1930 which abolished both S 7(a) and the legislative council ordinary act of parliament, no referendum. Reached the Privy Council. Challenge was that the act abolishing the act was not valid, b/c it did not follow the procedure required by the act. Privy Council upheld this claim: said the 1930 is not valid law. Reasons: NSW was competent to pass the 1929 act with S 7(a) it could put the restriction in. The Act passed in 1929 was binding on later legislatures. The manners and forms from one parliament bind later parliament. Therefore 1930 Act was not valid law. Note the date: Case arose prior to the Statute of Westminister 1931. Therefore at this time the law making power of the NSW legislature were still derived from the colonial laws validity act 1865. S (5) of that act stated the colonial legislatures had full power to make laws provided that such laws shall have been passed in such manner and form required by any act of parliament said those laws would only be valid if they were passed with any form required to do so. Note, the manner and form was place upon itself. Shows that parliaments and legislatures can bind themselves to the future. What about a parliament with a full law making power which is not subject to the 1865 act? The NZ parliament is fully sovereign. For the assignment: Consider what the assignment is asking you to do provide Mr Sudges with an opinion regarding any constitutional issues take it step by step. Use the skills from the writing workshop. Use the structure and information outline from it. Opinion is regarding any constitutional issues raised: primarily meant to give advice on potential legal aspects (not political advisors). Constitutional issues by the actions he proposes. Not just issuing the press release, but also about going through with what he intends: can he do it, what consequences might follow. Shows sense and discrimination about what issues you are addressing. Identify important issues vs. something that is peripheral. Further, not every fact in the problem gives rise to an issue (no issue with labour party MP dying). Not required to research beyond material (up until next Thursday): nothing about the process through which bills can be amended in parliament, therefore the formal processes for amending legislation should not be addressed (also no detail about standing orders): all material up until parliamentary privileges. Appropriations Bill is a formal name for the budget. Look at what has been said about the budget and the roles of other branches. Dont Panic.
Week 5 - 1
Procedural restrictions on parliaments ability to pass legislation The only legal restrictions are ones put down in statutes, as opposed to standing orders which arent legal rules. S16 of Constitution Act 1986 and S267 of Electoral Act 1993 KiwiLaw Blawg
create procedural restrictions. What if parliament passed a bill which failed to comply with these legislation restrictions. Could a court declare that attempt to legislate as illegal? The role of the courts vs parliament oIf a court steps in and says a purported legislation is not law, it would be telling the parliament majority that you cannot make this law. oHowever, the courts role is to interpret and apply statutes, and if there is a law saying what the procedures are, it is the courts job to apply it. The basic nature of parliamentary sovereignty oCan an earlier parliament bind a later parliament by saying you can only make a law in this particular way? In Attorney General of NSW it was held the NSW parliament could not change the law against the legal provisions. However, the NSW parliament at that stage was not fully sovereign the statute of Westminister was not enacted yet. What happens when parliament is completely sovereign and can do whatever it wants? Harris and Others v Donges and Others Revolves around the south African government attempting to introduce racially based voting around the country. S35 of South Africa Act 1909 specified that all the people in the Cape of Good Hope were to be on the same electoral role and got to vote for the same candidates. S35 further said that if parliament wanted to change this rule, it had to do so by both houses of parliament sitting together and agreed to by 2/3 of the people sitting in both houses procedural form on how to change it. South Africa had a bicameral parliament. S35 put a different procedure brining both houses together and need 2/3. S152 entrenched S35 (double entrenchment). In 1951 South Africa was separating races. Sought to make separate voting poles for coloured and whites. The parliament purported to amend section 35. But it did so without following the amendment procedures: lower house and upper house voted individually and there was no super majority. Then it was signed by the king and was put into law. Question: did parliaments failure to follow procedure render the 1951 Act invalid? Could the court adjudicate on this issue? Parliament argued that after the statute of Westminister gave it full sovereignty the procedural restrictions in S 35 were impliedly repealed. Claim was that when the statute of Wesminister said that South Africa can make laws that conflict with English law, it removed the necessity they abide by the South Africa Act, which was passed by the UK, so the procedural requirements were contained inside a UK act. Therefore South Africas parliament could change S 35 without meeting the change requirements. Court says at page 72 (right, 2nd full paragraph): oThe south Africa act, the terms and conditions powers. the procedural restrictions of how it is to be changed continue to bind parliament even after it was given full sovereignty. oIt does not affect parliaments sovereignty, it can just exercise it in a particular way could change this act, as long as it does it as required. After concluding parliament could not enact this act in this way, court had to decide what it could do about it. There was a 1937 case that said that courts will not look at acts of parliament and judge them. Does the supreme courts earlier judgement precludes it from acting? oPage 74, R: Had Act 46: If parliament said something upfront, it had to KiwiLaw Blawg
believe it. But the way they passed the act in this case is clear that they did not abide by the law governing themselves. Looking behind the act they see parliament did not follow the procedure and the supreme court overrides its precedent from 1937 and declare the act to be invalid. Courts did not like the apartheid regime and tried to stop it, but later failed. Bottom line: even once the parliament of south Africa became sovereign it was still bound by any procedural restrictions on how to make law as contained in statutes. Thus, the ability of todays parliament to make law is restricted by previous parliaments. Also, it is within the power of the court to investigate whether the law was passed properly. Situation in New Zealand: Westco Lagan Ltd v Attorney-General Labour government introduced legislation to ban logging on the west coast. People who owned cutting rights on the west coast was annoyed. They wanted to prevent the governor general from signing the bill into law. It was claimed NZs parliament ought not to have the power to take property away without giving compensation. McGechan J talked about the courts role: He has no doubt that the courts in NZ can look to see if the laws of parliament has abided by statutory restrictions of manner and form. By manner and form means that it goes only to legal requirements as to process, not content. Notes: Its a high court cases (low precedential level); The comments are obiter, there are no manner and form provision here. Still indicates NZ courts will play the same rule as the South African court. In NZ there arent many restrictions on how parliament is to enact law, not many manner and form provisions. Vauxhall Estates Limited v Liverpool Corporation Assuming that there are no restrictions on how parliament can legislate, then parliament is free to repeal any previous enactment. It can do so simply by enacting a new act which says the old one is invalid. The same with amending acts. Where an act is passed saying the old act is repealed or amended, it is an express repeal or amended. It is preferable that parliament expressly state if it is changing an old statutory provision. However, many acts of parliament deal with issues that have already been dealt with in law. The act it passes says nothing express about its relationship with the old act. Result is two conflicting enactment saying different things on the same topic. Which is law? Earlier act of parliament is impliedly repealed by a later inconsistent enactment. When parliament passes law, the court deems parliament to have considered everything relating to it and must have meant to override the previous act. Further, the newer act is closer to todays society and it must reflect some sort of change in society keep law up to date. General rule of implied repeal only applies when the two are inconsistent (cant make sense of both at the same time). If you can read the same at the same time and both make sense, there is no implied repeal. What happens when the earlier act tried to take precedent over any future act? Issue in Vauxhall Estates UK enacted act to make slums into new buildings by state. Tried to do so in Liverpool. Land was owed by Vauxhall and they said government was not KiwiLawEstate Blawg
paying enough. It went to arbitrator, who discovered there were 2 legislative provisions that could apply to the situation: 1919 act and 1925 act, both of which applied to the land. Each also gave a different amount of money to Vauxhall (1919 gave more money). Doctrine of implied repeal would say the later in time applies. However the 1919 act had S 7 which said it was to apply to the case and that the provisions of any other enactment were to have no effect. Question was: did S7 mean that the 1925 act was of no effect? Could an old parliament bind its successors in such a way? Judge said that if it expressly repealed that act it would be fine. But could it also impliedly repeal such an act? No, said it could be impliedly repealed and was: oAvory J said an earlier parliament cannot tie the hands of a later parliament in this fashion. Thus the 1919 parliament could not have intended this, so read it only as applying to current statutes. oHumphrey J says that because parliament could still expressly repeal, it must therefore also have power to impliedly repeal. Irrespective of what the 1919 parliament intended, the new legislation which clearly applies it impliedly repeals the 1919 act just as if it expressly said so. Point: saying a previous parliament cannot bind a future parliament in this fashion. Note: Vauhxul cases was decided by equivalent to High Court of new Zealand.
Week 5 - 2
Doctrine of Applied Repeal Ellen Street Estates v Minister of Health (page 86) A slum lord was trying to resist having his flats taken off him by the health board. The board decided the compensation for the flats would be 0. Had two arguments: Minister had already tried to take his flat, but failed to do so, so could not try again (irrelevant for our purposes and was rejected by the courts). Legislation minister was acting under, the 1930 statute was of no effect due to provisions in the 1919 act. Same argument as Vauxhall Estate case: there the court rejected the idea parliament at one point in time could stop a parliament at a later time impliedly repealing an act. But that was a divisional court, this one is in the CoA and argued that it was wrongly decided. CoA held up the Vauxhall decision. Judge addressed contention that parliament can amend or repeal an act at page 88 (R, !). He says that principal is basic constitutional law: no parliament can stop a future parliament from repealing what it passed. 2nd Judges agrees at bottom of page 89 (R). The courts in these cases are setting out what parliament means. They are saying what the parliaments of the pasts power is to bind the future parliaments (none). Courts are saying that the sovereignty at any point in time is limited in that it cannot fool-proof its acts for the future. Reasons for this approach: Prevents courts having to weight the intentions of one parliament with anothers. Judging this would make the courts give preference to one parliament over another bad for separation of powers. Allowing each parliament the full power to amend or repeal law impliedly and expressly helps keep the law up to date. How does this fit in with procedural restrictions? They put restrictions on how future parliaments can amend some act. The courts are KiwiLaw Blawg
also willing to uphold these procedural restrictions. Sets us up with two conflicting lines of minds: this means an earlier parliament can bind a later parliament. Vauxhall case say that an earlier parliament cannot bind a later parliament. How do we reconcile this? Difference between procedural restrictions and substantive restrictions. Parliament can restrict on how to change an act, but not the subject matter of the change. Does not work well, because both lines of cases are dealing with procedures of amending the law. Implied repeal is also about the process of changing to law: could the 1919 act be changed only through an express change of parliament or also by an implied one (process issue). Why is todays parliament able to bind future parliament in one way (enactment restrictions) but not in another (implied repeal)? Nature of legislation: oWhen does parliament put in a procedural form? Looking over the statutes they are usually attached to important pieces of legislation. Legislation that shows what the government makeup is. You could understand why you would want the amendment of these acts to be restricted. oImplied repeal deals with ordinary statutes. Policy issues which do change and that parliament is there to consider. Courts have more concern about the former rather then the latter. Where a previous parliament has enacted a manner and form enactment, the courts will uphold it because it is there to protect that because it is important and legitimate. Courts will allow the previous parliament to crib the current parliament in manner and form. However, where there is no such manner and form in place then the courts traditionally will not crib the sovereignty of todays parliament. They will allow it to change the law in express or implied means. oHowever, not all important constitutional enactment provisions are protected by manner and form provision. What about implied repeal in that situation? Thoburn v Sunderland City Council [2003] page 91 Deals with the prosecution of several people who sold fruit and vegetables by the pound rather the kilogram. England joined the EU. Part of the setup is standardising things among the countries which are members of it. When Britain joined the EU in 1972 it passed an act, part of which granted a power to the government, enabling the executive branch to change the law without going to parliament if it was necessary to meet EU directives. Called a Henry VIII Clause: a minister can change an act without going to parliament. The EU was standardising the sale of goods, and wanted it be in metric rather then imperial units. The UK passed a law in 1985 which allowed people to sell in either imperial or metric measures. The government throughout the 1990s introduced a series of amendments to this provision with its powers from the 1972 law. Eventually it was outlawed to sell goods not in metric units. British were not happy. They fought on the basis of implied repeal: they said that when the 1985 Act was passed it took away the Henry VIII provision in the 1972 act which allowed government to change the 1985 act. The attempt to change the 1985 act was therefore invalid. Laws LJ found: The 1972 act was not inconsistent with the 1985 act: 1985 said you can sell in metric or imperial, the 1972 act said the government can change the law to meet the EU directives no inconsistency, no implied repeal. KiwiLaw Blawg
Page 107 makes obiter comments: Even if there had been some inconsistency there would have been no implied repeal, because the 1972 act is a constitutional statute and therefore can only be repealed by express repeal by parliament. Laws LJ is doing the same thing done with manner and form provisions. He is limiting the way in which parliament may amend its own provisions. By saying special rules apply to constitutional issues, does he not prefer certain statutes to others? Says this provides advantages of a written constitution without impeding on parliaments supremacy. Note: This is not a NZ case. The UK CoA is below the HoL. Statement is obiter. Not direct ratio of the case. UK constitutional setup is very similar to the NZ setup. All he says about role of parliament and the courts echos in NZ. Further it makes sense putting together the idea behind the issues in manner and form compared to implied repeal. If todays parliament is bound by way of amending laws to previous parliaments, its also bound in content to constitutional statutes.
Week 6 - 1
Parliamentary Privilege Because of parliaments status it has certain legal rules that apply to it and to it alone. These are referred to as parliamentary privilege. Parliaments privileges are related to parliaments role. The basis for them lies in history (historical conflict with the crown and the courts). The reason they still exist is because the enable parliament to work as a sovereign lawmaker. oThey stop other institutes from impeaching on parliaments role. In particular it prevents the courts from getting involved in what is parliaments domain. It gives parliament the freedom to run its own affairs without second guessing from an outside body. oGives parliament the tools to protect itself from others who might impeach on its turf. The privileges of parliament belong to it as an institution. Although they may function to protect an individual, such as an MP, it will only do so insofar as it is connect to his role as a part of parliament. Parliaments privileges are legal in nature. Originally privilege was common law in nature. In 1865 privilege was given a legal rule when it was written into law. Today it is in the Legislature Act 1908 (page 112). oS 242(1) says the NZ parliament has all the privileges the UK parliament had in 1865. oSubs 2 says the courts must always take note of parliamentary privilege. Although parliamentary privilege is legal in law, parliament judges how its own privileges apply. A key part is that parliament as an institution decides how to apply them. Parliament is the sole judge of how these privileges apply in a case where they do apply. This is done by the Privilege Committee which is made up of high ranking MPs from every party. The house as a whole votes on the committees recommendations. That decision cannot be appealed at the courts. However, the courts have a role in adjudicating whether or not some privilege applies to a particular matter. S 242 Blawg says parliamentary privilege is part of NZs KiwiLaw
law and the courts must take note of them, but it does not say what the privileges are. Those were common law privileges. The courts decide whether the privileges apply to a particular situation. The courts decide what the ambit of parliamentary privilege is, until such a time that parliament says otherwise. Because it is a legal matter parliament can always change the boundaries of it by legislation. oThe way it comes out: a particular issue will arise in a case and the courts will be asked whether it falls within the privileges of parliament. The court decides whether it is or is not covered by privilege. If it decides it is then the court cannot touch it. The matter is then passed onto parliaments decision through the privileges committee and a vote in the house. However if the court decides it is not covered by parliamentary privilege then the court can continue looking at it without any warrant. If parliament is not happy with the boundary put on its privilege then parliament can pass legislation to undo the matter. The issue of parliamentary privilege is thus messy. Hard to determine what the answer is. Note: the respective roles of the courts and parliament dictate the nature of this relationship. What are the privileges: David McGees article outlines the privileges. It is convenient to distinguish between powers and immunities parliament has in its privileges. Powers: oPowers parliament has enable it to take positive action that it would otherwise not be able to. The major power it has is the power to compel attendance and the power of contempt. oCompelled attendance means parliament can compel people to come before it to take part in particular proceedings or answer questions (like a subpoena in courts). Especially useful for select committee. oContempt is parliaments power to punish anyone who gets in the way of conducting its business. A contempt is any act which is calculated to hamper the bla bla bla (David McGees article). A breach of one of parliaments privilege is also a contempt of parliament. But a contempt neednt involve a breach of privilege, it is wider: anything that undermines how parliament does its business can be judged as contempt. Whether or not it is a contempt of parliament is for parliament to decide (through the privilege committee and then by the house). This enables parliament to protect its own turf. It does not need to ask the courts to do so for it. Contempt allows parliament to issue fines or to imprison people (has not yet happened in New Zealand). In practice many things that could be judged as contempt of parliament are taken care of by the courts. Parliament issues a trespass order against people who interfere with debates in parliament, etc. Equally if a court was to make a decision on the issue of privilege which parliament disagreed with Parliament would be very reluctant to find the court in contempt because of the separation of powers (rather they would pass a statute). Immunities oProtect or shield parliament as an institution from some of the laws of the KiwiLaw Blawg
land. This is a problem under the idea of the rule of law. But parliament is shielded only from some laws which impact on others. They are enjoyed only by individuals who are carrying out parliaments business. oThe reasons are: !They are required to free the people in parliamentary business from the fear they may be legally required to answer for. !Immunities parliament has stop the courts from becoming involved in a contest for powers over constitutional powers. The immunities establish parliament as the chief constitutional actor in the NZ constitution. oMPs cannot be arrested in civil actions; cant be called to juries while parliament is sitting. But the main immunities are the Exclusive Cognisance and the Free speech. Both stem from the article 9 of the BoR 1688. oExclusive Cognisance: proceedings in parliament may not be questioned in any place outside of parliament. We have seen this in the courts reaction to parliaments standing orders. This rule extends to the interpretation of statutes that may impeach on parliaments own proceedings. This stops courts and parliament conflicting on what the law requires of parliament. oFree speech: the freedom of speech and debates in parliament may not be impeached outside parliament. What is said in parliament stays in parliament. Cannot sue a person for he said in parliament proceedings. It does not cover only MPs, but anyone taking part in proceedings. It does not only cover for civil action, but also for criminal procedures. The reason for this privilege is that by free speech better law will be made and government will be better questioned. However parliament may hold that someone said in one of its proceedings is a contempt of parliament.
Week 6 - 2
Parliamentary Privilege cont. Two privileges that stem from art 9 from BoR 1688 It is the law of NZ in two ways: S 242(1) Legislature Act 1908. Art 9 BoR 1688 was in place in the UK before 1895 it was incorporated into NZ. Secondly the Imperial Laws Application Act 1988 says that the BoR 1688 is a statute of NZ. Exclusive Cognisance Privilege What is done in parliament stays in parliament. It means that parliament has the right to act as the sole time setter for its issue. Decides what issues it will address, when and how they will address it. No one else can tell it. The crown cannot force the house to address some issue. As a practical matter the legislative branch is controlled by the government of the day. Because it has a majority it can effectively dictate what will happen (but its in actuality the legislature not the government who set it). The house has the right to decide how its proceedings will take place. If it wishes to break its own rules it is free to do so. A court cannot examine how the house has acted in terms of its standings orders. A problem arises when the procedures of the house are set down by a statute. The HoR is subject to statue just like any other body in NZ. This further means that the HoR cannot change anKiwiLaw act of parliament (which is the HoR + GG) by a Blawg
decision of its own it must pass an amendment act and then have it signed by the GG. However, can a court oversee the proceedings of the HoR to make sure they do act according to statute? Bradlaw v Gossit oBradlaw was an atheist. He was elected to parliament. Before an elected member can become elected into parliament they had to swear an oath in the name of god first. This was specified by the Parliamentary Oaths Act. B/c he did not believe in god he did not want to swear. Instead he sought to affirm and not to do so in the name of god. However the act said there were certain classes of people to be exempt from the oath. The house let him affirm under the act and got put in place a MP. oA case was then brought against him for not fitting into one of the exemptions of the act. The court agreed: he did not fall into that exemption and he was told he must leave parliament and he did. Afterwards he ran for parliament again and got re-elected. oTurned up in the house and wanted to swear the oath. Not clear what he intended at this point and the other members did not want an atheist swearing on the name of god. The speaker refused to let him take the oath. Because of this he was not allowed to sit as a MP. The speaker told the sergeant at arms to make sure he will not allowed back into the house. The other MPs then passed a resolution supporting what the speaker was doing. oCase: argued he had a legal right to take this oath. He had been validly elected as a representative and the parliamentary election act said you can take this oath if you are elected and then you become an MP. Bradlaw said that by blocking him from taking the oath the sergeant at arms and the speaker were breaking the law in the Parliamentary Elections Act. He wanted the court to order them to stop breaking the law. Court refused to take Bradlaws side. !Lord Coldridge: notes the resolution of the house cannot and does not change the law. Parliament has not passed a new act. Then says that the courts cannot inquire into whether the actions of the sergeant in arms or the speaker are legal. It is a matter relating to the internal proceedings of the house and only they may decide what to do about it. Summation CM 125 R (1/3): what is said or done in the walls of parliament cannot be questioned in a court of law. Parliament has an exclusive right to decide rules in regards to their own members. !Steven J: Also states the courts cannot inquire whether the house breaches procedures to be followed (CM 127L): HoC is not subject to the courts as far as internal proceedings go. Does this mean parliament can ignore statutes? No. As a constitutional matter the house is bound by an act of parliament and it would be wrong for parliament not to follow it. However acts of parliament requires interpretation and the house alone can interpret how an act is meant to apply to the house. Steven J says the decent thing for the court to do is assume that the house has in good faith decided that the house took the right action (CM 28 !). Why is this the decent thing? Courts should not presume the house is in the business of breaking the law that applies to it. Just as members of parliament not commentate against the courts: KiwiLawshould Blawg
Comity between the branches (respectful of each other). What if a court thinks parliament got it completely wrong? Court will do nothing (CM 28L bottom). oThis case means that the exclusive cognises privilege extends not only to parliament setting its own rules. It also means that statutory provisions which touch upon parliaments own procedures are to be interpreted by parliament. oNote: the house should not deliberately ignore or breach a provision. It would be the breach of the rule of law. However in effect the house can decide what an requires of it in regard to internal proceedings. There is a tension between this case and the manner and form cases, where courts said they will look at parliaments internal proceedings to make sure parliament did it right. The boundary or ambit of privileges are covered by law. Because of that the courts interpret it. The courts are laying out a broad privilege but then carving out provisos and exceptions to that privilege (manner and form cases). Free speech privilege Whats said in parliament stays in parliament No criminal or civil liability can follow from saying something in parliamentary proceedings. No matter who it was who said it as long as they were part of the proceedings. Because it is absolute privilege it also covers deliberate lies. One exception: giving false evidence while under an oath in parliamentary privileges you can be charged with perjury. Parliament itself may deal with you using its contempt powers (it allows parliament to regulate speech within its own walls). Most of the time when this issue arises it is in relation to defamation. This idea has been affirmed by several major cases: Prebel v TVNZ oLabour Cabinet minister Prebel. TVNZ made a documentary in which he appeared. In it members of the labour government were accused of corruption. In response Prebel sued for defamation: Member of parliament suing a TV company for defamation. oTVNZ relied on a bunch of statements Prebel had made in parliament as well as the fact that certain legislation was passed in order to prove that Prebel was a crook. However, by seeking to rely on things said in parliament the defence would require the courts to examine what was said and done in parliament and find negative conclusions: that would impeach what was said in parliament, to draw a bad conclusion on them. oBoR art 9 says that what is said in parliament shall not be impeached in any court. Seeking to rely on what Prebel said in parliament appeared to be a breach of the free speech provision. oPrebel and the solicitor general tried to get TVNZs statement of defence struck out. The high court and court of appeal agreed with this and refused to look at the aspects of the defence which require them to look into parliament. B/c TVNZ could not rely on what was said in parliament TVNZ could not defend itself. oPrivy Council: points out that two basis for continuing to recognise the free speech article 9. It is still law and there are good reasons why it is still law: !CM 134R top: Because of Blawg the constitutional roles that it recognises. KiwiLaw
Free speech privilege is part of carving out a zone within which the house can regulate and control its own activities. It recognises the sovereignty of parliament and prevents the courts and the parliament to clash. !CM 135L ln 23: basic concept underlying art 9: You might not speak your mind freely while in parliament if this rule was not there. General society benefits from a parliament were everyone is able to speak their mind is better then the harm effected by it. oDecided the free speech privilege applies even in situations where someone who is not going to be punished is questioned by it. Secondly the privilege applies to situations where a MP has brought the action and wishes to stop everyone from inquiring into what he said. Thus the actions of any individual MP dont affect the general privilege at issue. oTVNZs defence from what was said in parliament were struck out. Also said that although they stuck out those aspects of TVNZs defence Prebel could still sue them (harsh). In some extreme cases may allow. oPrebel and TVNZ then settled.
Week 6 - 3
Late notes on Prebel v TVNZ An additional question arises: Does the freedom of speech mean that courts are completely limited to not looking into parliament? PC says that courts can look into it purely as a matter of history. They can look to see purely as a factual matter whether something did or did not take place in the house (CM 136). Court continues to say that Hansard can be turned to in order to prove what happened as a matter of history. But you cannot use what was said or done as a basis for drawing negative conclusions on the speaker: what TVNZ wanted to do. They wanted to use the evidence to prove Prebel was a crook. Prebel v TVNZ draws a distinction between referring to matters in parliament as a matter of history and referring to them in a way that questions or impeaches those proceedings (which is what the free speech article protects). Buchanan v Jennings Jennings was an Act MP. During parliamentary debate he accused Buchanan, a public servant, of procuring sponsorship of the woolboard in order to sleep with another woolboard member. This is not true and Jennings is not trying to protect it on the basis of it being true. The parliament debate was covered by parliaments freedom of speech privilege. Jennings talked to a journalist and wrote a letter to a newspaper saying he did not resile from his comments in parliament: the privilege covers only parliamentary proceedings, so if you repeat an allegation outside parliament you may be sued for saying it outside parliament. In this case Mr Jennings did not full repeat his allegation outside parliament. He simply did not resile. Argument: oBuchanan sued and said that the saying effectively repeated the allegation outside parliament (adopted by reference). Because the effective repetition occurred outside parliament it falls outside the privilege. oHowever, in order to find out what Jennings is repeating the court must KiwiLaw Blawg
look into parliament and see what was said there. oJennings tried to throw out the case from court. But the counter argument was that he was not impeaching the original statement, he said he was suing on the basis of the effective repetition outside parliament: the defamatory statement is outside statement. Said he only wanted to look back as a matter of historical reference to see what the accusation was. The bad reference will be draw from the repetition not from what was originally said. CoA upheld Buchanans argument 4:1 Privy Council then said: oThis case raises a conflict between two opposing society goals: The right of an individual to gain compensation from defamation (has been falsely accused); On the other side there is the importance of a legislature which can speak freely and fully and in order to do that they need to be sure they can do so without the fear of being sued. oNotes that other courts in Australia lets allegations in parliament be looked into if future repetitions repeat it (case law dealt with similar cases). Notes the UK parliament (equivalent to NZ parliament) has accepted that Hansard can be properly used in a number of court proceedings (usually interpreting statutes). If it is okay to look at Hansard in some situations, then this situation may be another example of when it should be used. oClaims that looking back at a parliamentary statement will not chill the speech of the parliamentary participant at the time they speak. You can speak freely in parliament but must hold your tong outside in that case you can be sued (wont stop you from actually saying it in parliament). !The consequence to this approach (CM 144R A-C): If someone says something vague outside parliament but then gives a meaning to it in parliament they cannot be sued for that (precedent of NZ case where a person running for parliament said someone tried to bribe him to get out of the elections, and later in parliament named that person it was thrown out of the court because they would have to look at what was said in parliament. If the MP would be afraid to speak in parliament because of something said earlier he would not say it). !So there is an exception: you can only look at what was said in parliament in terms of later statements (not earlier statements). All to do with the state of mind of the speaker in parliament. In this decision the PC draw a boundary of parliaments free speech privilege. No doubt parliament has one and no doubt that if speech falls within it the court will not look at it. But still have to decide whether a given form of speech falls within it or not How wide is the privilege? This is a legal question and therefore the courts give an answer to it and that is what happened in the two last cases. They choose to draw the line in such a way that allows a victim of some untrue statement made in parliament to gain remedy if it is continued to be referred outside parliament. Problems: This law is based on a big fib. The PC claims its decision does not question anything that happen in parliament (CM 144L G-H). The future statement means nothing without looking into what was said in parliament so when you say that KiwiLaw Blawg
the later claim defamed someone that means what was said in parliament does it. Then you are looking to what was said in parliament to draw bad reference on someone. Court would have to ascertain whether what he said in parliament was true. Court pretends it is solely concerned with the later statement. The reality is that the future statement is a hook to let the court directly look at what was said in parliament. The term effective repetition. Repeating outside parliament means you can be sued for repeating something outside parliament. Is stating yes, I said it does that mean effective repetition? Where are the lines for what is an effective repetition and acknowledgement you said it. What security do members of parliament of not being liable for what they said in parliament in later times by slips. Dealt with CM 144R E: Keep your mouth shut. But is it realistic advice to say to MPs to keep their mouths shut outside parliament? Is it desirable for not letting MPs do that? PC says if you get sued for later repeating something it does not harm free speech in parliament. Is that true? If any repetition outside parliament might get you into troubled you may not say it in parliament. At the moment parliaments Privileges Committee is meeting and debating the decision. Parliament could trump the PC by passing a statute. Whether they should do that is problematic. The people who would benefit from this are MPs the very people who pass the act. On the other hand, how can you fix what the PC did (if it needs fixing). Conclusion Westco Lagan Ltd v Attorney General [2001] 1 NZLR 40 CM 145 McGechan discusses art 9 with the concept of parliamentary sovereignty. Says they both ties in together and they are connected. Says art 9 forms a part of a constitutional boundary between the courts and parliament. In para 98: not a clear cut line, boundaries may evolve and modify. The issue of the respective turf of the courts and parliament is not fixed; ever changing area of law. Involves the question of what are courts good for and what is parliament good for?
Week 7 - 1
Structure of the Executive Branch - Cabinet The Cabinet is one of the strongest decision making organs in the New Zealand constitution. Stronger then the Parliament as long as it has the confidence of Parliament, although it has absolutely no legal support. Although Cabinet itself exercises no legal power, the people who sit in Cabinet, the ministers of the crown, exercise innumerable legal powers. Further as representatives of the crown the exercise many powers that attain to the crown, especially prerogative powers (residue of the British monarchy, which is considered to be legitimate by the courts because Parliament could abolish it at any given time). How can the Cabinet have so much power without any legal support? (1) The Cabinet is governed by a powerful constitutional convention that the members of it will act upon the decisions of the cabinet. Ministers also discuss their future actions in cabinet and accept the collective decisions cabinet makes. If they refuse to do so they are expected to resign as ministers. (2) Members of cabinet as well as ministers who are not members of cabinet also sit on the executive council. This body does have legal support and through it cabinets decisions are imposed on the GG. One of the main functions they do is creating Regulations (rules that the GG is entitled to make through statutory power). (3) Another example is the constitutional convention that the GG will always exercise their power only on the advice of the cabinet which is conveyed through the prime minister. Bagehot described the Cabinet as: The efficient secret to the English constitution representing the close union, the nearly complete fusion of the executive and the legislative powers. The Cabinet is a board of control chosen by the legislature, out of persons whom it trusts and knows, to rule the nation. A Cabinet is a combining committee a hyphen which joins, a buckle which fastens, the legislative part of the State to the executive part of the State. In its origin it belongs to the one, in its functions it belongs to the other. Cabinet can make momentous decisions and have them taken into effect through the government and through Parliament. Responsible and Representative Government: Governor-General ! " Appoints or dismisses Prime Minister ! " who enjoys the support of Cabinet ! " which can secure the confidence of House of Representatives ! " elected by The Voters However the government keeps to monarchal form in giving powers to the GG and the Crown, even though they are exercised only on advice of the cabinet. The Authority of the Cabinet is derived from: the convention that the GG acts on Ministerial advic KiwiLaw Blawg dominance of the governing caucus(es) http://kiwilaw.blogspot.com
control of the House e.g., legislation and budget consultation (re Ministers legal powers) the power of Ministers to give policy direction to Departments. The Conceptual Evolution of our Constitution A method of understanding it Start off with an absolute monarch ruler. All power concentrated in one person (the state is me). Specialisation of function: oadvisors to the crown on the exercise of their function (judicial, executive, legislative etc). Over time become more independent and exercise authority on their own, over time: oAdvice; oRecommendations; oConcurrent powers; oDecisions, subject to veto or waiver; oFull decision-making powers. The development of conventions oThe King will always accept certain kinds of advice. Gaps between form and substance Eventually: Supremacy over the Crown oThe rule of law. oCommon law and statutes.
Week 7 - 2
Remedies: Conventions cannot be given remedies in court, but sometimes other remedies are available: If a minister of cabinet goes against a decision of cabinet, the court will not eject the minister from cabinet. However the other members of Parliament or the prime minister may discharge that minister from cabinet and from his role as a minister. Many argue that NZ is a De Facto republic and that therefore there is no reason to abolish the crown and create a legal republic. Could conclude there is no room for the crown any longer. Legal consequences of retaining the monarchy No separate concept of the state. The state is the crown. No separate entities. Continuing tension between deference to the Crown and the rule of law. Would we imprison the Queen? Should the courts fine the crown for a penalty that was in fact issued by the crowns own courts. Continuing issues in Crown law (e.g., residual powers and immunities). A wide gap between legal form and constitutional reality. A central role for constitutional conventions. A continuing republican debate. Deference to the Crown vs. The Rule of Law Devices for Managing the Tension: oDistinguishing the Crowns KiwiLaw Blawg capacities
#Personal capacity: Crown as Monarch #Governmental capacity: Crown as Executive #Statutory capacity: persona designata (officials designated in a statute by their name Parliament intends by this to subject that person to the capacity of the courts) oUse of fictions: e.g. suing the Crowns servants personally (instead of suing the Crown, and a convention came in that the Crown reimburses their losses e.g. in Entick v Carrington the ministers servants were personally sued) removed in modern law by legislation. oUse of non-coercive remedies: e.g. the declaration remedy of choice in a public law case is always a declaration only (Fitzgerlad v Muldoon). It simply declares what the legal position is another convention is that the government will always accept the laws declaration of what the law is and will act upon it. oUse of constitutional conventions. oLeaving further change to Parliament. M v Home Office [1994] 1 AC 377 (In handout) M was a citizen of Zaire who arrived in the UK via Nigeria and claimed political refugee status in the UK. M said he was a teacher in Zaire and organising other teachers in a workers union and instigating strikes. As a result he said he was imprisoned and tortured and subsequently fled to Algeria and UK. Immigration refused his request on the basis of prerogative ancient royal powers that were never taken away from the Crown. His lawyers produced an affidavit from a doctor that he had marks on his body showing torture. An order was made that he will not be deported pending further hearing. A misunderstanding meant that M was on a plane being deported. Judge phoned from home to issue a further injunction to return him in order for the proceedings to continue in light of the new medical evidence. Home secretary was advised by lawyers that the judge had no authority to make such a mandatory authority against the Crown. As a result the judges order was ignored again. M has not been heard of since. Represented by the lawyers later. Put in proceedings of contempt of court against the home secretary the 2nd ignoring of the court was a flagrant contempt of court. Rule of law issue: is the government to be permitted to ignore a court order, even when someone might loose his life. Concluded: oHome secretary was in contempt of court and that the judge had an authority to issue the mandatory order in the circumstances. oLord Templeman makes a distinction between the Crown as Monarch and the Crown as Executive. As Monarch can do no wrong, but as Executive can sue when wrong is done. Court has ability to issue injunctions. oSays that if the court could not issue this injunction would reverse the results of the civil war. No grace on the executive involved, it must do what the court orders in such a situation. oCourt said it could find contempt by the minister, but the court said it did not need to take the extra step of imprisoning the minister (although make it clear that if a junior person did it the court would imprison him).
Week 7 - 3
The functions of cabinet To make decisions concerning: Major and controversial government policies. Important expenditures proposals, finances, taxes. New legislation and regulations. Co-ordination of matters affecting several departments. Ratification of international instruments. National defence. Appointments to other organs of governments. No legal or constitutional rule that the majority of cabinet makes decisions. The most senior members of cabinet may drive through decisions when they are a minority. Votes are rarely taken. Regulation of cabinet are up to it. Members of Cabinet are: Members of a political party. MPs: constituency or party list. Ministers and advisers of the Crown. Responsible to the Cabinet. Heads of government departments. Responsible to the House for their departments. Elements of Responsible Government: Relations between GG, Cabinet and the House. Role of political parties and caucuses (!"#$%) (party groups which vote together) in the House unanimity between political parties and caucuses. Government formation and dissolution. Caretaker governments. The need for the continuing supply of money to the government. The role of constitutional convention. Constitutional conventions are central in blending together all these elements of the responsible government. A central element of the responsibility of government is that, because the GG acts on advice of the government, she cannot be left without responsible advisers who enjoy the support of the house: A cabinet must therefore be formed which enjoys the majority of the house, or a new election must be held. How does the GG decide who to appoint as prime minister (who then appoints the cabinet who advises the GG)? This decision too is made by political decisions, governed by political rules. No legal rules as to how the political caucuses should elect its leaders. Matters of Confidence Those the government declares to be matter of confidence. Government says if it is defeated in this it will resign. Does this sometimes when members of caucus who are not members of cabinet are opposed to policies effect is that if the motion is defeated there will be new election and those rebel MP may not get voted in again. Motions of no confidence moved by the Opposition. If it is passed government must resign, KiwiLaw Blawg as a matter of convention.
Matter of the supply (of money to the Government by the House). When the Government loses such a vote, as a matter of convention it must: Resign; or Request a dissolution of the House and fresh elections. What would happen if a government was defeated in a motion of no confidence and refused to resign? GG would no longer take its advice and seek advice from others. Otherwise would use his or hers reserve powers (acting without advice) and dismiss the government and order a fresh election. Core Conventions of Cabinet Government GG acts on advice of Cabinet and assents to all Bills enacted by the House. Advice of Cabinet to GG is unanimous. GG appoints as PM the member most likely to command confidence of House. GG accepts PMs nominations of Ministers, members of Executive Council. Cabinet resigns when defeated at an election, or on a matter of confidence. Ministers are responsible for the policies of their Departments. Governing ministers personal conduct rather than collective. Ministers follow Cabinet decisions in their departmental functions (unless controlled by law). Scenarios: The GG refuses to accept the advice of the PM to sign into law a controversial Bill passed by the House. oPM can bypass the GG and go directly to the Queen, who can replace the GG. The PM requests that 6 Cabinet Ministers resign. If they refuse can the PM have the GG fire them? oMinisters can use political power to go against PM and get her fired.
Week 8 - 1
The Executive Council Oldest institution in existence in the NZ government (since 1840, devised by Hobson to advise him). Is constituted and appointed under prerogative power. Gives effect to Cabinet decisions. Is composed of Ministers, but performs different functions. Is the formal vehicle through which Cabinet advises the GG. Exercise numerous legal powers in conjunction with the GG (i.e. the G-G in Council). oGG may, by Order in Council amend schedules in acts and create certain regulations (e.g. changing the scheduling of Drugs A, B and C drugs). The Acts Interpretation Act 1999 has in S 29 a definition of Governor-General in Council: example of a codification of a constitutional convention. Some legal powers of the GG in Council: to make statutory regulations and other Orders-in-Council (for example deciding when acts will come into force) to issue warrants setting up commissions of inquiry
to make statutory appointments (e.g., Chief Executive of government departments). Prime Ministers power chain: PM $ Strategy Committee (5-6 high ranking ministers) $ Cabinet $ Caucus $ HoR ==> through the unanimity engulfing each of these bodies the PM gets his way in the first place and it waves all the way down to Parliament. Formation of Cabinet and Government (in ordinary circumstances) 10 days after an election for Parliament the numbers of the different caucuses are known. Potential coalition parties begin discussions towards coalition and/or support agreements: Between caucuses of different parties and between the leaders of the different parties. Finally the coalition agreement is formed between those two parties. If they then have sufficient numbers to control the legislative process then that agreement will be announced and the GG will take notice of it (or have the GG informed through the potential PM). In 2002 we had: A Labour-Progressive Coalition Minority Government (51+2=53 seats). With an Agreement on Confidence and Supply with United Future (+8=61) And a Good Faith Agreement (share information and no surprises) with the Greens (+9=62) Numbers are finely balanced. J Boston on Coalition Formation: NZs constitutional arrangements impose relatively few constraints on government formation. Coalition and Support Agreement: A Coalition: oFull members of the government oMinister(s) in Cabinet oGoverned by Cabinet conventions: e.g., unanimity, secrecy oExcept where 'agree to disagree' oAccess to Cabinet papers oAccess to government officials Support Agreements: oOf many different kinds (e.g., support on confidence and supply, agree to act in good faith). oSecond party not full members of the government oNo Ministers in Cabinet oNot covered by Cabinet conventions oNo right of access to Cabinet papers oNo direct access to officials These agreements often have agree to disagree clauses, in which the other party is able to criticise the government under those policies. Range of rules that govern government formation Statutory rules e.g., s 6(1) Constitution Act only MPs may be appointed as Ministers.
Prerogative rules e.g., GGs powers to appoint and dismiss Ministers under the Letters Patent. Constitutional conventions e.g., the convention that the GG will appoint and dismiss Ministers on the PMs advice. Internal rules of political parties e.g., rules as to how Cabinet members from that party are selected. Political practices and understandings e.g., that a Labour PMs views on Cabinet membership will carry great weight.
Week 8 - 2
Key features of the process of Cabinet formation The outcome of the electoral process: i.e. the number of MPs in the caucus of each political party. The negotiations between potential coalition partners (Caucus A and Caucus B). The choice of Parliamentary leaders and cabinet members by the caucus of each party in the coalition. The convention that the GG accepts those political outcomes, as advised by the PM. Situation between elections It is possible for: Governments to fall and be replaced. Coalition partners to separate. New coalitions to form. New support agreements to be reached. Caucuses to replace their leaders. A new Prime Ministers to be appointed. Without a further election. What if the government is defeated on a matter of confidence or supply and does not resign: goes to the GG and says there is no other government that can take over, so there will be elections and the current government will remain as the care-taker government until these elections take place. Must the GG accept this advice? GG only has to accept the advice of a PM who has the support of the house. Therefore the GG does not have to accept this advice. GG could decide to call on the leader of the opposition and have him try to form a government without need for a new election. Granting the PMs request in this situation would frustrate the idea of having elections for Parliament every 3 years; further it may just be in the advantage of the former PM advising for a new election, which would just be in accordance with the defeated partys political aspiration. If no other government could be formed the GG would call a new election. Not because the PM advised it, but because no other MP can get the support of Parliament as a new PM. oIn this scenario the current government would remain as a care-taker government until the election.
KiwiLaw Blawg Conventions Study Map (know for exam): http://kiwilaw.blogspot.com
Central principles and examples: Joseph Relationship with law, examples of constitutional conventions Cabinet: Palmers, McLeay, Cabinet Manual Particular conventions of cabinet and ministerial responsibility. Ministerial Responsibility: Palmers, Jonathan Cape Governor-General: Reading on that office. Conventions: Principal Question What purpose do they serve? To give effect to democratic responsible government within a monarchical constitution; but more purposes exist. How are they defined? A obligatory constitutional custom thats mandatory, which is more then a mere political practice but less then a rule of law, that would be enforceable in courts. Often said the key distinguishing feature is that the public officials who are governed by them consider themselves to be bound by them. From their subjective position compliance is required even if they cannot be upheld in court. Jennings (set out in Joseph): oMore then a political practices or habits; less then directly enforceable law. oJennings criteria for identification of a convention: 1. Are there any precedents? 2. Did the actors in the precedents believe they were bound by the rule? 3. Is there a reason for the rule referable to the needs of constitutional government? Answer yes to all three questions, then it is a constitutional convention. In case of GG assessing to legislation: he (and/or the King/Queen) has always assented to legislation. King George once contemplated not assenting to a bill, but he still assented to it. The need is that the king is not elected and Parliament is. How do they develop or lapse? Why are they obeyed? What is their subject-matter? What sanctions exist for breach? What relations with law? Some Subjects of Conventions: Relations between: oGG, PM & Cabinet oGG, Cabinet & Parliament oMinisters & the civil service oThe Executive and the Courts Dont exist in our legal system, relationships between: oHouses of Parliament (in bicameral legislatures). oFederal government and stated or provinces in federations. Conventions and Law Complex and subtle relationship; constitutional conventions: Can be recognised by a court, but not Blawg enforced as a rule of law. KiwiLaw
May assist interpretation or development of existing rules of law. May be incorporated or codified into a rule of law. May be amended, limited or abolished by a rule of law.
Week 8 - 3
Central principles governing constitutional conventions continued Main purposes of Constitutional Conventions: Facilitate constitutional development without change in the law. Co-ordination and co-operation between branches of government. Exert a restraining and modifying influences on the exercise of powers. How Conventions are established By precedent or practice (especially long reigning practice which establishes definitively that the convention bounds them). oEstablishing that the practice is viewed as binding. oA single precedent or announcement may sometimes be enough (example: in 1995 the Attorney General announced a different procedure would be used in the appointment of judges it was not contended by lawyers and judges and subsequent AGs have followed this new practice). By agreement. oExample: agreement in the 1920s about the relationship between the UK and the dominions. Agreed that henceforth a constitutional convention would be created that the UK would not make laws for NZ unless NZ asked for it. This convention turned into law in the Statute of Westminster. Remedies for breach of conventions On some occasions: oThe remedies may be purely political or there is no remedy at all. Example of no remedy: appointments of GG used to be non-political, but that was changed in the 70s with no hiccups. oRaises question that if there is no remedy is it really a constitutional convention? On other occasions: oThere may be clear remedies, involving the exercise of legal powers, though not by a court. oExample: sacking of a PM, government or Minister by the GG (in the background: the potential for constitutional reform). If there are no legal remedies, why are they adhered to? (1) Usually general consensus on the underlying constitutional principals being advanced. (2) May be non judicial remedies available for enforcement. (3) May be political consequences from non-adherence.
Week 9 - 1
Governor General the reserve powers of Dismissal of the Whitlem government in Australia in 1975 Conflict between the two houses over supply bills for the government. The House of Representatives was controlled by the labour government of the day. The
senate was not controlled by the labour party there was no clear majority (broken up into three blocks). The divided senate refused to authorise and pass the supply bills passed by the HoR they were not voted off, but rather deferred. The issue was whether the senate could do this; what the GG should do; should the government resign; Money bills are introduced by the HoR. They cannot be introduced in the senate or amended in the senate, but the senate must pass them if they are to become law. Whitlems government argued that there was a convention that the senate would not block a supply bill passed by the HoR. Liberals denied. The previous supply of money for the government was about to dry up. The GG advised the PM to dissolve the HoR and the senate and have elections. The PM refused he hadnt been defeated on a supply bill and the money hadnt run out yet. Alternatively the GG advised that there should be an election only for the senate. But polls pointed at having a higher number of senators against the PM if this option was adopted. GGs Actions: The GG then, without further warning, dismissed the government and appointed the leader of the opposition to be the PM instead even though he did not have the confidence of the HoR or of the senate. He was to be a caretaker government, and he promised the GG he would get the supply bills passed and secondly that the new PM would advise the disillusion of the two houses that is what happened. What about these actions of the GG dismissing a government who did have the confidence of the lower house and appointing a government who did not have a majority in either house in order to assure the supply of money. The reserve powers of the GG: When he may act without or contrary to advice of responsible advisors. When the PM or Cabinet does not clearly enjoy the confidence of the House(s). When advice is given by a retiring PM. When the action recommended is unlawful or unconstitutional. In situations of 'necessity', where there is an immediate need for action (civil wars, coos, etc). Relevant Powers of the GG: (prerogative or statutory powers) Appoint or dismiss a PM (or a Ministry or Government). Dissolve the House, leading to an election, or to refuse such a request. Summon Parliament when not sitting. Refuse assent to bills or regulations. Central Principals that govern the formation/dissolution of governments Must accept advice of PM who has the confidence of the House(s) leave the rest to the voters. Need to accept advice of PM who does not have the confidence of the House(s). If in doubt, await a vote in the House(s), to indicate Parliamentarians' views. Another government with confidence might be found, without the need for an election; if so, that is to be preferred. Three critical principals GG should adhere to in this situation: oShould be politically neutral as far as possible in his/her actions (avoiding even appearance of not).
oTry to put responsibility of resolving the crisis on the politicians and delaying any interventions until those political solutions have become completely out of the question. oAdopt the least intrusive form of involvement possible in the crisis (less is better).
Week 9 - 2
Reserve Powers of GG continued At the heart of the Australian crisis in 1975 is the relation between the House of Representatives and Federalism (represented by the Senate). Federalism: Common Features Division of authority between ofederal/national government; and oregions/provinces/states. Representation of states in one House of federal legislature: e.g., US Senate. Courts resolves federal-state conflicts: i.e., judicial review of legislation on federalist grounds. Federal and state court system oUsual, but no universal oCan apply both streams of law in a single system of courts: e.g., Canada. Affirms diversity, regionalism, decentralisation of power. Some Federal Elements in the Australian Constitution Division into states, and a federal government. Division of legislative powers between state and federal governments. State and federal court systems. Federal Senate: o10 senators from each state, regardless of population. Special amending formula: oA majority of Australian votes, and a majority of states (at least 3 states have a majority in them) required at a referendum. In these situations was it undemocratic for the senate to act in the way it did in 1975? The Australian Senate and Responsible Government The convention suggested by Whitlam: oThe Senate shall not block supply bills passed by the House, especially after the Government that controls the House has been endorsed at a record election. oNo example of Senate blocking supply since federation in 1900. oIf the senate could block supply, it would make government disfunctional. The senate did not adhere to this proposed convention. Did it meet Jennings 3 criteria for the existence of conventions? o1. Are there any precedents? #No precedents of the senate blocking supply. Evidence in favour, but not conclusive. o2. Did the actors in the precedents believe they were bound by the rule? #Critical questions. At the time when the senate had the capacity to block supply, did they not do so because of a constitutional conventions? #Some senators said they did feel bound not to block supply. Others KiwiLaw Blawg did not.
#Mr Whitlem said in public some years before that he himself would feel that he could use the power of the senate to block supply if he was in that situation. Perhaps sorts the matter. o3. Is there a reason for the rule referable to the needs of constitutional government. #Clearly satisfied. Another suggested formulation of the Convention oThe senate may block supply bills for federalist reasons only: #i.e., for reasons directly related to the concerns of the states. oThat was not the case in 1975. oStates rights issued were not at the centre of the controversy. oNot enough evidence for this convention either. Reasons for the dismissal Had no precedent in any common-wealth country. But the Australian house is different from most others, so the analogies between the UK and OZ are inept. The sole reason the GG gave for the dismissal was the PMs failure to secure supply. Criticism of the dismissal Gave the PM no notice what-so-ever about the dismissal or about the intention to appoint the head of the opposition as PM. oWhitlem said in public he would never resign or dissolve the HoR; GG is then entitled to take those announcements at face value. GG should have given the PM warning of the impending dismissal and an opportunity to respond to the allegations that he himself was in breach of convention on failing to resign. Allegation is that behind the GGs decision was a fear that Whitlem would go to the Queen have the GG dismissed (but it is not clear the Queen would have taken that action, had she been asked to do so in this situation). The GG would have been on much better ground dismissing the PM after the supply money ran out, rather then just before it ran out. He could have waited a bit more and let things go completely to the brink and see whether the government had instituted any unlawful actions to secure the continued supply of money to the government. Conclusion: intervened too soon and it went too far. He put in risk the political neutrality of the governor general. Political Neutrality of the GG Avoid any appearance of partisan political involvement. oNot to favour any party oSeek advice from leaders in turn Permit political parties to take responsibility for their decisions. Least intrusive form of involvement: oInvolvement at last possible moment. oIf in doubt, delay. oMay rely on public positions taken. oPublic before private information. In defence of GG: His actions did resolve the problems of the two houses.
Prevented what might have been an illegal conduct by the government about supply to the government on loan from banks without the approval of Parliament. Let the people decide the outcome of the impasse by permitting an election of both houses.
Week 9 - 3
Main purpose of Constitutional Conventions To: Facilitate constitutional development without change in the law. Co-ordination and co-operation between branches of government. Exert a restraining and modifying influence on the exercise of powers. Situation in Canada: Role of GG in Government Formation/Dissolution Central Principles: Must accept advice of PM who has the confidence of the House(s) leave the rest to the voters. Need not to accept advice of PM who does not have the confidence of the House(s). If in doubt, await a vote in the House(s), to indicated Parliamentarians views. Another government with confidence might be found, without the need for an election; if so, that is to be preferred. Government in Canada was in minority and survived with a few independents. Lower house wanted to vote no confidence in the house, but before it was passed the PM asked the GG to dissolve the lower house. The GG refused to do so, and the vote took place and overthrew the government. The GG asked the opposition to start a government. This government was once again toppled with a no-confidence vote. Then the GG finally called for a new election, after the PM asked him to. The GG was Lord Bing who was appointed by the British King was accused of British meddling in Canadian politics. He was later called back to England by the king. Summary of events: Advice to GG (re dissolution) came from a PM who did not clearly enjoy the confidence of the House. Refusal of that advice by the GG. GG formed the view that an alternative Govt. could be found. But no alternative Govt. was found that could enjoy the confidence of the House. Election required to resolve the deadlock, as originally advised. Recall of GG at the request of the new Govt. What should have GG done instead? Did not need to take advice from the PM at the first time because he was a PM who did not clearly have the support of the house. Should the GG have accepted the advice to dissolve from the new PM who did not have the confidence of the house either? He might have: Accepted the initial request for a dissolution in such an uncertain political situation. KiwiLaw Blawg
Re-installed the original government in the run-up to the election. Lord Byng might have: Refused the Conservatives request for a dissolution and an election. Advised them to advise him to reappoint the Liberal Govt. in a caretaker capacity. Dismissed the Conservative Govt if they refused to resign or give that advice. Reappoint the Liberal Govt. Accepted their advice to dissolve the House and hold a new election. QUESTION: What advantages in this? oMore neutral; may appear to be partial towards the interests of one party over the other. The GG is entitled: To be kept informed about the conduct of the government. To consult and question party leaders. To offer advice. To warn of possible future actions. Sometimes, to delay. Subject to: oThe principle of political neutrality. oThe principle of least intrusive involvement. How do these events affect NZ? Major imperial conference held in London by Canadian pressure. The Statute of Westminster was born out of this. The Tasmanian Situation State level in Tasmania. Principles that apply are the same. Should the liberal party, having won 17 seats in a 35 seat legislature, immediately resign or was he entitled to take note of the fact that the independents were calling themselves that. A coalition had not been discussed and it was not clear another liberal government would form (17 on one side, 18 on the others what about the speaker then 17 members on each side). oHad not clearly lost the confidence of the house, so they were entitled to test their own situation in the house and await a vote of no confidence or until it became abundantly clear they had no majority. Was it unwise to eventually resign before the vote of no confidence actually passed? oNo, was not unwise to resign after they know they could not establish a stable government. Should they advise a new election? oNo. It was not clear an alternative government could not be formed. From POV of the Governor Should he dismiss the government immediately? oNo, should wait for politicians. Correct thing to do in an uncertain situation. Refusal of request for a new election? oNot obliged to accept the advice of a PM who did not clearly have the confidence of the house. Left the matter to the legislature: oCorrect form of action. What evidence should the governor general rely KiwiLaw Blawgon from politicians?
The Key: oTheir voting intentions in the House (of the parties whether they will vote as a block). But should the GG require: oOral assurances from party leaders and independents? oWritten assurances? oWritten statements of policy agreement? The governor is not there to ensure the government for a reasonable amount of time. He needs only assurances today, and oral assurances would be sufficient (in public would be preferable), but written assurances is going too far. Possibility that GG refuses assent to legislation passed through the house Extremely dramatic step to take: claim to have a better insight into what the constitution demands then Parliament. A situation like this would be when it would be a bigger breach of conventions to pass the legislation then to refuse the advice to assent to the legislation. Are there any other actions the GG can take? Is there a least intrusive form of action? Publicly protest about the legislation and give her reasons in public and then sign the legislation under protest. Leaving it to the voters in a subsequent election to make up their own mind. Resign as GG and refuse to sign (government would then be in position to advise the Queen to appoint a new GG, which would be in accordance with the Governments opinion). GG might delay signing and say to the government that there must be dissolution of Parliament and an election on the matter before she would sign (dramatic step, but it would put the matter directly to the people). Circumstances in which this may occur? Unprecedented, so hard to determine. Maybe in situations where government was making their own duration longer, or changing the electorate process for party advance. Maybe abolishing powers of the courts. Disfranchising the voters on discrimination grounds.
Week 10 - 1
Caretaker conventions apply when: The govt has lost, or doesnt clearly enjoy, the confidence of the House. But remains lawfully in office, pending resolution of the situation: Either: oBy the formation of a govt that has the confidence of the House. Or: oBy the holding of an election. Why are they significant The prospects of using these conventions in the wake of MMP are stronger then they used to be and are therefore more practically important today then in the past. Secondly, the sensitivity of transition of governments it is a principle of responsible government that the transition is as smooth as possible. We want stability and accountability in this situation (important especially for the economy). 4 Main Caretaker Situations (in handout) 1. Pending an election, after govtKiwiLaw has lost Blawg confidence.
2. Immediately after an election, when Govt is defeated. 3. During coalition negotiations, after election with an unclear result. 4. Govt defeated between elections, but before new govt is sworn in. Plus: Quasi-caretaker situation o1A. Immediately before an election, when the govt has not lost confidence: in the month leading up to an election Parliament does not sit and no major changes of government policies should be introduced, because they cannot be questioned by Parliament. Muldoon currency crisis in 1984 (facilitated the codification of the conventions of changing government) Crisis was about the value of the NZ currency immediately following the 1984 election. NZ did not have a floating exchange rate at the time. The reserve bank policies were in the control of the finance minister (who was Muldoon at the time). The incoming leading party said in their election they would devalue the NZ currency. When it became clear the labour party won the election, everyone with $NZ would want to exchange their money at the higher rate before the lower rate promised by the new government came in. The NZ govt would have to pay for the difference. The only remedy was for the devaluation to take place immediately. Muldoon was still in law the minister of finance. He was against the policy. He had nothing to loose, since it was clear his political life was over. He refused to authorise the action of devaluing the dollar. The reserve bank eventually suspended the dealings in $NZ, which caused future problems for the foreign economic relations of NZ. It is clear what Muldoon should have done follow the incoming PMs advice. Eventually he did accept the advice. Subsequently the core conventions were outlined in a letter to the law department: oIt is for the new government to take initiative. oThe caretaker government must act on the advice of the incoming government in issues that cannot be delayed. What remedy would there have been if Muldoon had not eventually agreed to make the devaluation? Hard to see what remedies against Muldoon, considering his political future was virtually over. Cabinet could have met and deposed him as PM and as the minister of finance by advising the GG to dismiss him and replaced him with another minister of finance for the short caretaker period. This shows the power of the peer-pressure and of the belief held by Muldoon that he was obliged to do what the incoming government wanted, after the GG advised him to follow the advice. These measures are enough to ensure that the conventions will be held in the future. The 1996 government formation (hand-out diagram) Faced with a transition in voting systems (first vote under MMP) and with the creation of a government. Labour used to be a single party majority government. NZ First now had control if he joined National or Labour either could be in government. Two months of negotiations went on until the National party got into Parliament with NZ First. KiwiLaw Blawg
In these situations, what principles apply? Cabinet Manual 4.22: oThere must be a government by politicians and not by the GG. oRoutine business of government continue to operate in a normal way. oWhere special decisions need to be taken on significant issues or issues which have long term implications that would tie the hands of the incoming government, then these decisions should be deferred a period of minimalist govt. Otherwise consult with other parties to seek majority support on policy. oOnly if these options are not satisfactory should the govt proceed. Background Constitutional Principles Responsible and Representative Government oGovernment to continue oGG to have responsible advisers. oSearch for a govt that is responsible to the House. oOrderly transition in governments. oElectoral outcomes to be respected. oElections to resolve deadlocks. Other remedies that may exist in situations of breach of conventions: GG, if of the view that the PM or Cabinet were violating these conventions, could assemble the Parliament and put the issues to a vote. GG may dismiss a caretaker govt for breach of these conventions and create a new caretaker govt.
Prerogative Powers of Government Government power is governed by: Statutes Regulations (which derive power from statutes) Common Law oPrerogative There are some situations where the government needs no authority at all. The vast majority of government action is of this kind. The reasons for this is that the actions of the government may not be unlawful in any respect: they are not prohibited or regulated by law and do not interfere with other persons rights. In these situations there is not reason why the government should not be able to take this action. Citizens and the government may do actions that are not prohibited by law. It is only when we find a: Prohibition Regulation Private Right That is protected by common law that the government has to point to authority to perform its actions. Controversy: Police surveillance of the gates of a gang house Police were pointing their video surveillance at the front door of a gang house. There was no intrusion into the house (if there was the police would have to show they had legal authority to do so a warrant). Otherwise, if they were collecting evidence simply by pointing the video tape at the front door and KiwiLaw Blawg
there is no prohibition of video taping in the street, the police could do it without any special authorisation. Example of a situation where the government can do anything that a private citizen could do. Since anyone could do it, so could the police.
Week 10 - 2
Note on the Parliament Speaker: General principle that she should be impartial. In the past she did not vote unless there was a tie and then she had to vote according to the status quo. With the introduction of MMP votes in Parliament are no longer recorded on an individual basis: leader of a party casts a vote for the entire party. The speakers vote is now counted in with the vote of the party. Other matter of impartiality remain. Legal structure of our liability Megarry J in Malone [1979] 1 Ch 344 at 357: England .. is not a country where everything is forbidden except what is expressly permitted: it is a country where everything is permitted except what is expressly forbidden. oGenerally applicable to both citizens and government. In this case a telephone of a suspected offender was tapped. Not at his home, but at the post-office which ran the phone system. No infringement upon his property rights. Therefore no trespass occurred, nor was there at the time any right to privacy of telephone conversations or of putting a tap on a post office telephone. Today this is prohibited, but not back then. No power is being exercised, and they may not be reviewed in court. Some examples of government actions that are not unlawful Surveillance of a public street. Consulting, negotiating, planning, policy formation, media relations. Entering contracts. Problematic, in the boundaries of the rules: Making voluntary payments. oBritish government built up a scheme for payments to families of criminal victims. Government set it up under no power at all. oPeople argued that this process should be fair between citizens. This would mean the courts could review whether this was being performed fairly. But can the court review actions that have no justification or needed to be. oCourts decided to interfere. Publishing information (unless it gives an incorrect account of the law). oHealth department in England published information to GPs about contraceptive advice to young women without parents consent: information about the common law. oCatholic woman with 9 daughters did not want her daughters to receive advice without her consent. She thought the government misunderstood the law. oWas the government exercising legal power when it is giving advice about KiwiLaw Blawg the law?
#No prohibition about publishing information about the law. No power was exercised in the publishing of information. Not regulated by law. #HoL ruled that the advice was correct anyway. Therefore whether the court could intervene if the advice was wrong was not answered. #Question is: is the government in a special position in this situation? GPs would not rely on these kind of information from anyone, but the government has a special authority. No resolution. Entick v Carrington (1765) 19 St Tr 1030 If it is the law it will be found in out books. If it is not to be found there it is not the law. Sources of authority: He is bound to shew by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books; and see if such a justification can be maintained by the text of the statute law, or by principles of common law. If no such excuse can be found or produced, the silence of the books is an authority against the defendant. Where there is an infringement of someones rights you need a justification: either statute or from common law. Prerogative Powers That is why prerogative powers are so strong: they give the government power. They are recognised by common-law, but not under the authority of statute. Most government power today is from statute, but they still play an important role. Prerogative Powers: Principal Subjects: Examples of what government today does on the basis of prerogative powers: Conduct of foreign affairs: e.g. treaty-making (and negotiations). Conduct of the national defence: e.g. war, disposition of the armed forces. Criminal justice: e.g. granting pardons Appointment and dismissal of Ministers of the Crown The award of honours: e.g. knighthood's So far as these areas of authority have not been repealed, amended or codified by statute. Some argue some of these powers cannot be repealed by statute (e.g. control of the army). Government accountability of prerogative power One of the reasons the government does not enact this authority (through Parliament) in statute is to leave a large level of discretion for government and leaving it outside the scope of the courts. Justification is that Parliament could at any time change this and codify them in statutes. The political accountability mechanism, through cabinet and Parliament and the voters, is a major accountability system. oExample: The recent election in England was a vote on the use of governments decision to invade Iraq. He lost 100 seats in Parliament, and may be rejected by his own party despite winning the election. Judicial Review of Prerogative Powers KiwiLaw Blawg
The courts have long inquired into: Their existence and extend. The public bodies entitled to exercise them as agents of the Crown. The impact of statutes on such powers (e.g. limiting, superseding, codifying, stating a required process). But would the courts go further to review the manner in which prerogative powers were exercised: e.g. on the grounds of procedural impropriety or improper purpose? Blackburn v A.G. A prerogative power continually held not be within prerogative power Challenged the British governments power to enter into the European community. The agreement would surrender part of British sovereignty to European organisations. Lord Denning agrees that entering into the community would have this effect of surrendering sovereignty to the European community. But even so, he would not interfere and it is not a decision that any court would interfere with or review. The Queen, in entering into a treaty acts with her own inherent authority (not abolished by Parliament). In making or exercising the treaty she is beyond the courts and they may not review them. Treaty making power is not in the courts but in the Crown.
Week 10 - 3
Prerogative Powers Final Lecture Definition of the Prerogative by Joseph: Under the medieval constitution, the King was an autocrat, ruling with absolute power. The royal prerogative is what remains of that majestic power, so far as it has not been destroyed or superseded by statute, eroded by judicial decision or atrophied by neglect or disuse. The Crowns surviving prerogatives are a bundle of miscellaneous rights and powers of executive government. The Crowns prerogatives travelled with the expansion of the empire. English and colonial courts affirmed that the royal prerogative was as bountiful and extensive in the colonies as in Great Britain Therefore: No new prerogative powers can come into being. All new powers of government must be created by Parliament. Prerogative powers may be abolished by statute or codified. No only powers, also includes powers and status. oe.g. Statutes do not apply to the crown, unless the statute specifically says so. Burma Oil Company Example of Judicial scope in cutting down prerogative Came out of wartime prerogative powers. In the retreat of the British forces of Burma, the British army blew up the oil company in Rangoon to stop the Japanese using it (it was pre-emptive, because the Japanese did not get there yet). Issue: Did the British Army have to compensate the oil company? Conclusion was that private rights prevailed, because the facilities were not under immediate attack: a new limitation was KiwiLaw Blawg added to the defence prerogative.
Government later passed a law abolishing this rule, retrospectively. This option exists and the government never paid up (but had to pass the law through Parliament first). The Royal Prerogative: residual character Munro: those attributes peculiar to the Crown which are derived from the common law, not statute, and which still survive. Cannot be exercised by private citizens, only by responsible ministers and the government etc. Case of Proclamations (1611) Coke CJ: The King hath no prerogative but that which the law allows it. The King by his proclamationscannot change any part of the common law, or statute law. No new prerogative powers for over 400 years. Note: prerogative powers cannot prevail over a statutory right conferred upon a private citizen by Parliament. Relationship between prerogative powers and statutes This issues arises often in the powers to prevent terrorism and security concerns since 9/11. These areas (national security, refugees, immigration) are traditionally covered by prerogative powers. How discretionary should these powers be? Beyond review in the courts? Should it be written into statute? Should the executive publish its own criteria? NZ passed the Terrorism Suppression Act 2002 in response. Can there exist regimes of overlapping or parallel of prerogative powers and statute? In Royal Hotel Case the HoL made it clear the same kind of power provided by a statute cannot be exercised by a prerogative if it is less favourable to the citizen to exercise the prerogative. In North Umbria Police Case the situation was more difficult: Thatchers government proposed to deliver tear gas in rubber bullets, under prerogative powers to preserve the peace, even though there was a statutory provision for supplying the police. Thatcher wanted to bypass that statutory system. Challenged and argued it was inconsistent with the statuary scheme. British courts said it was not inconsistent. It was acceptable because there was no specific inconsistency. Secondly this prerogative power of keeping the peace was still in existence. Laker Case (CM) Laker proposed to start a budget airline, but needed permission of government in the US and in the UK in order to fly between both countries. This was provided by a treaty between the countries. In the UK a statutory process was established and Laker went through the process and put his case before the tribunal and other airlines objected. He won his case, they appealed, he won again. Eventually, he got his permission to fly. Then went through US process and got approval as well. Final part in the US was to get the presidents permission. Pending this signature, the 70s oil crisis began and the costs of running airlines changed and their profitability went down. British Airways (owned by British government) was in economic trouble. The Govt used prerogative powers for foreign affairs and had the ambassador in the US get the document away from the US presidents desk.
Could the UK government use prerogative powers to deny his permission to fly by actions in America? Denning said the government could not achieve through the backdoor, something that could not be achieved through the front door. Since he succeeded in Britain, the government could not use prerogative powers to stop this even in the US. Denning states the powers of the courts in foreign affair issues broadly: The law does not interfere with the prerogative in these instances, but it can set limits by defining the boundaries and can intervene if it is exercised mistakenly or improperly (probably far too broadly). Said the statutory process established the due process. Prerogative powers cannot deny, especially without any discussions or due process it is a denial of due process. Prospects for an NZ Republic? Abolition of the Crown and GG What would be the minimum degree of legal change required? Would we have an elected president? What of the Crown-Maori Treaty relationship? What process of endorsement by the people would be required? What process of Endorsement? Possibilities: 1. Passage of the legislation by a special majority in Parliament. 2. A majority of votes cast at a referendum of all voters. 3. A majority of votes cast at a referendum of all voters on both the general and the Maori electoral rolls. Or: a combination of these: e.g. 1 and 2 or 1 and 3. Minimum requirements: Abolition of role of the Queen and GG. Transfer of Crown lands, assets, debts, obligations, immunities, to new Republic (including Treaty obligations) Creation of Office of President: oAppointment; procedures in deadlock oTenure of office; removal oPowers (as for GG) New definition of Parliament; assent to legislation Transfer of Prerogative Powers (to President or PM) No effect on constitutional conventions Date for change; transitional provisions.
Week 11 - 1
The Executive What are the checks and balances who controls the executive and how? Parliament: Range of Parliamentary controls. Parliament has the primary law making function, and the executive is not able to change legislation without Parliamentary support (Fitzgerald v Muldoon). Parliament has financial controls over the executive (Constitution Act 1986). Officers of Parliament who have control over the executive (ombudsmen). Parliaments committee (select committees) which have a role in the law making process and in the control of delegated legislation (regulations review committee). Conventions: Not legal rules. Ministerial responsibility. Court: Judicial Review (Entick v Carrington executive, like everyone else, is subject to the law prime control is to simply hold the executive to account in acting within the confines of the law). Operates especially in two areas: oDecision making (Blackburn v A-G). oDelegated legislation. The State Sector The sector in society that forms state functions/services and is defined by that function in the State Sector Act 1982, Section 2: All instruments of the crown, including departments, corporations and agencies but excludes the GG, executive council, MPs, state-owned enterprises and the TEI (tertiary education institutes): very widely defined. 1. The Public Services Departments oThe public service is the machinery of the executive government (Palmer and Palmer, p95). oDepartments used to be established by statute, but now done by Cabinet under the royal prerogative. oThe conventions of ministerial responsibility (and corollaries) apply. Ministers are responsible to Parliament for their Departments: !Corollaries: !Loyalty: public servants must be loyal to their Ministers and the government of the day. !Neutrality: Between political parties. !Anonymity: Public servants should be anonymous publicly. Ministers are publicly accountable. oEach department has a Chief Executive (s31) who is responsible to the Minister for the department (functions, advice, general conduct, efficiency). Acts independently on the matter of employment (s33). They in effect run the public service (Palmer & Palmer, 98). 2. Other organisations owing a close allegiance to the Crown but not legally established as government departments oE.g. Police
3. Others even less like government departments (Palmer & Palmer, p96) oa. State owned enterprises: Corporatisation: Many government departments (example: works and services) divided up the functions of them in late 1980s. Some functions stayed as new departments and others were sold off to corporate bodies. Some still exist and operate under the State-Owned Departments Act: !All shares are held by ministers of the Crown. !Ministers have some control over these SOEs (can require SOEs to make adjustments to their statements of corporate intent). !Main purpose is to operate as a successful business (includes being a good employer; sense of social responsibility; being efficient and profitable). oB. Crown entities and QUANGOs. Quasi-autonomous national/non-governmental organisation. Include: !Crown entities set up by statute (Commerce Commission, Fish and Game Councils etc.). When talking of judicial review, it includes the executive in its wide meaning. Important rules are: Rule of law Separation of powers Parliamentary sovereignty Independence of the judiciary
Week 11 - 2
Judicial Review Most important theoretical underpinning is the rule of law provides the justification for providing judicial review. Courts are in charged with upholding the rule of law all the courts have ever done by judicial review was this. Theory of separation of powers and balances and checks also comes in. Courts job to ensure the executive stays within its province. In order that the courts can effectively constrain the executive we also have the idea of judiciary independence (protected by convention and the law). Governments should not interfere with or pressure courts. Courts should also not interfere with politics. Independence of the judiciary is protected by: olimits on judicial numbers oimpartial appointments otenure (protection against removal from office protected by law in Constitution Act 1986) ojudicial accountability (if judges were not accountable, people would not be happy with the judiciary being accountable judges are subject to the law and decisions can be appealed) obias (and the appearance of) oopen courts oreasons for judgements
oprotection from criticism by MPs and Ministers Judicial Review Definitions (CM26) Begins in the High Court. oInferior courts do not have inherent jurisdiction they have only the powers given to them by statute (DSC in the District Courts Act). oHigh Court, Court of Appeal and Supreme Court all have any jurisdiction given in statute, but also inherent jurisdiction. It lets them do anything needed to preserve their functions as courts and to uphold the rule of law. oSource of the inherent jurisdiction is the common law. It is therefore flexible. This power was and still is used to perform the function of judicial review. oJudicial review is an expensive remedy for whoever seeks it. Purpose is to ensure bureaucracy stays within its bounds; holds the trustees of power to their trust. Review is not an appeal oJudicial review is a procedure. An appeal is a procedure. They have similarities, in that review can be used by a superior court to hold an executive decision maker or an inferior court to account. Appeal is a process that can be used by a higher court to hold some decision makers, including inferior courts to account. oThe processes differ in their origins and sources: !Source of an individuals right to seek judicial review is ultimately the common-law. Common law also provides the remedies. !Source of the right to seek an appeal is statutory. oDifference in what the courts look at: !An appeal, in its widest meaning, is an enquiry into the merits of a decision. !Review says it is never about merits. The goodness or otherwise of the decision, at first instance, is in theory irrelevant. " There is no right of appeal on these decisions, and therefore the courts limit themselves to the questions that arrive on review. oDifferent subject matter of enquiry: !Success in an appeal is, usually, that the unmeritorious decision will be vacated and a new decision will be made. !In review substitution is not an option. The most you can get as a successful litigant is that the reviewing court quashes the decision at first instance and sends the decision back to the decision maker to decide again (could make the same decision review is about how decisions are made, not what they are). !This difference represents the idea of Parliamentary supremacy. The origin of a right to judicial review is in common law. In NZ this right is affirmed in the NZBoR Act 1990, s 27(1) and (2). The affect of these is that any person whose rights, obligations or interests protected or recognised by law are affected by a decision has the right to the observance of the principals of natural justice and judicial review. Natural justice = procedural fairness. Statute can limit judicial review powers.
Week 11 - 3
Judicial Review is a common law jurisdiction. Duster; Exclusion; Privative - Clauses Clauses in legislation where Parliament has tried to remove or limit the common law right to review. Traditionally, the experience of the court was to use their interpretative skills to read down those provisions, especially where they purport to remove completely the right to seek review of the right of a decision maker. The reason is that, because everybody is subject to the law, then everyone else must have free and open access to the courts to test the legality of decisions or actions taken. By reading down these exclusion clauses they are upholding the rule of law. Also say that despite appearances, they are upholding Parliamentary sovereignty. oCourts say Parliament would not want to interfere with the rule of law. Anismin v Foreign Compensation Commission (CM31) Statutory provision said that decision of the foreign compensation committee cannot be squashed or called into question by the courts. Literally read this would mean that the committee could make decisions above the law. Therefore the court said this could only mean real decisions: not decisions that were based on fatal illegality. Court cannot question legal decisions, but it can question illegal ones. Bolt Gas Users Case Similarly worded provision. NZ Court of Appeal held would only apply to decisions which were identified in the Act as being inclusive. The courts position is less restrictive in provisions that strictly limit the right to review. The fact the right to review has been affirmed in the NZ BoR 1990 this position is maintained. Operative provisions are section 4, 5 and 6. Section 6: Prefer interpretations consistent with the NZBoR. If you are faced with an exclusions clause you have to prefer the interpretation that is consistent with the rights in the NZBoR. If you cant interpret way around using section 6 and there are no justified limitations under section 5, you are left with the privative clause under section 4. Decleratory Judgements Act 1908 Supplements judicial review remedy that operates in a similar area, but is statutory. Often applied for in application for review along with the ordinary judicial review. In it, the court makes a declaration about something: no more then a mere declaration of the courts finding.
Section 3 tells us you may apply for an application if you wish to test the validity, legality or effect of a provision in a statute or a statutory instrument or if you want to test the ambit or limit of a right under statute. Done in the High Court. Even though the decision only declares, it is binding. Under section 9 declaration can be for future actions that have not yet been done. As with all judicial review remedies, a declaration is discretionary. Judicature Amendment Act 1972 Impacts most on the common-law right to review. Impacts judicial review in the realm of statutory powers. It simplifies the procedure, as far as getting a remedy is concerned. oUnder the common-law the discretion that courts had over remedies came to mean that unless you apply for the correct remedy, you would likely get no remedy at all. oToday this is no longer the case under judicial review applications under this statute (applications for judicial review not under this Act still operate under the above). The acts works thus: oSection 4(1): where the High Court is dealing with an application for review in relation to exercise by any person of a statutory power, the court can grant any relief of a prescribed number of kinds. oStatutory Power is defined in S 2 of the Act (CM34-5): The definition is complete. oDecision is also defined. oSection 9 sets out the procedure. oRemedial section then work: S 4(3) and S 4(4). oTwo other remedial advantages of the Act: !New remedy not available under common-law (S 4(5)): Remedy a court can use to direct the decision maker to re-determine the decision. In para B the court shall include further directions to the decision maker that they feel, just to redirect the new decision. !Interim Remedies in Section 8: time lag between a decision and the decision in court. If the court thinks it is necessary to preserve your position (hard test) the court will grant an interim order which could stop the respondent from doing anything further/stop court proceedings being taken against you in the while/or to continue a revoked license etc until you get your day in court. If your respondent is the Crown, you cant prohibit him. The court can only say it ought not do these things. Remedies Under the Common Law High Court Rule Mandamus: compels decision maker to perform their duty (someone refusing to do their duty). Injunction: restrains. Prohibition: prohibits someone from doing something illegal. Certiorari: quashes or vacates a decision already made. Quo Warranto: removes from office.
Habeas Corpus: releases someone wrongfully imprisoned (today under statute). All but Injunction are old writ based remedies. All of these remedies are discretional, even if you win the case. Court will look at things like delay, contribution to the bad things, how much administrative distraction would be caused by the decision, rights of 3rd parties etc.
Week 12 - 1
Standing Rational behind any restriction on standing is a floodgates rational. Traditionally the approach to standing was that the plaintiff had to show his individual rights were affected by the decision. This understanding is still part of the law, but has been loosened up. Standing was a preliminary matter. If no standing, no review would take place. Today, in some situations you dont have to show a direct affect on private rights. Further, standing is no longer a preliminary matter. Sydney City (CM39) Priesly J: When A raises a question whether B is in breach in law, it is more rational to ask whether it is true that B is in breach of that law then it is to ask whether A should be allowed to question Bs behaviour. Standing today is a mix of approaches: Still takes the idea of interference with the individual rights of the plaintiff (Boyces case). Plaintiff suffering special damage many people suffered, but plaintiff suffered in a different way (Boyces case) Standing is not always a preliminary issue unless it is clear that there is no possibility of success (Self-Employed case adopted into NZ) Finnigan Decision of the NZRFU to send a team of All Blacks to tour South Africa (association with SA was not good at that time). It was a politically contentious decision, but did not interfere with anyones rights. Challenged on review. People who brought it were rugby players. Amateur rugby players (who were also lawyers). Despite the standing being so remote, the court was flexible on standing. Did say that for a multitude of reasons the case will be brought: oImportance of the case Rugby is important to NZ society. NZRFU was an important decision to the game and to NZs international relations. oAlternative plaintiff Could not find anyone else that could bring the case. oSupport for the plaintiffs position - A lot of people in NZ hold the same view general support (not cranks of busy-bodies). oAn overall assessment of a number of factors. Standing is no longer a preliminary issue. Raise only when there is doubt there is none.
What kinds of decisions can be reviewed? Definition of statutory power meant powers that affect peoples rights. Decision must have a public law quality must be operating within the public realm. Not dealing with individuals, but with a decision maker whose decisions can affect all sorts of individuals who do not choose whether to be affected or not (non contractual). Prerogative powers. oIn the past decisions made under prerogative power were not review-able (only review was whether or not it is a recognised prerogative power used after that it stops). oThe ambit of this has been enlarged in the following case. CCSU: Council of Civil Service Unions v Minister for the Crown Service (CM44-1984-HLadopted) Diplock LJ offers a good overview of the grounds for review and of how natural justice (procedural fairness) was applied. The CCSU employs civil servants. Deal with government intelligence. Large number of them are members of national trade unions. Minister for the civil service decided, in the exercise of a prerogative power, that they should no longer be allowed to be members of national trade unions (because these were about to go on strike). Workers complained that before the decision was made, they should have been told why they would no longer be allowed to be members of trade unions and given an opportunity to respond to those reasons (consultation know the case against you; and be given an opportunity to dispute it). Diplock LJ What are the characteristics of decisions that are susceptible to review? oConsequences that affect a person either by altering rights or obligations recognised in law or by depriving them of a benefit or an advantage they have historically enjoyed or that was promised to them (referred to as a legitimate expectation). oDecision maker must be empowered by public law in most cases arises from statute, but could also be common law (which includes prerogative powers). oDefines the prerogative as a residual thing. Says that although they do not derive from statute, they do affect people in a way in which if the power did originate in statute, they would be open to review. Therefore despite not originating in statute, they should not be exempt solely from the fact they are prerogative. Grounds of review oJudicial review developed three headings of review: oIllegality: Decision maker makes an error of law (misinterpreting a statute, etc). oIrrationality: Wendsbry unreasonableness a decision that is so unreasonable that no reasonable decision maker could have made it. oProcedural Impropriety: Procedural fairness/Natural justice failure to observe procedural rules in the legislation instrument. Natural Justice has two aspects: !1. Consultation (know case and reasonable opportunity of reply).
!2. Rule against bias. Facts: finds the civil servants had a legitimate expectation based on past practice that they would be able to continue to be union members. Therefore, they should have been told before it was removed why it was removed, and should have been allowed to respond. But they dont win the case because of national security there was evidence that there was risk. Dealing with high level information, dont want them to be members of unions because they dont want them to go on strike if didnt do what they did, it would impeach on national security.
Week 12 - 2
CCSU - Continued Lord Roskill Observes that in reality and in modern times there is an air of unreality of speaking of the sovereigns powers as irresistible and absolute. Ministers use them. Could not find a reason to distinguish prerogative from statute, just because they are derived from common-law. Emphasised the pivotal consideration from application of the rule: Only some exercises of prerogative power would be reviewed that comes down to the nature and subject matter of the particular power exercised (CM51L-top). oLists prerogative powers that he thinks cannot be reviewed (obiter): !Making of treaties. !Defence of the realm. !Grant of honours. !Dissolution of Parliament. !Appointment of ministers. oThese he thinks are not justiciable court would not be happy or competent to deal with. !Normally these are things with a high policy content (content should be determined by the executive and elected by Parliament) and/or things that affect the country as a whole. !Things that are more likely to be justiciable with more of a law background to it (involved mostly with legal issues); if the power affects individuals or an individual; and if the decision-maker is using legal process and methods. oRoskill LJ is probably right about most of the items on his list. He also listed however the prerogative of mercy it does not involve policy. It usually involves whether someones conviction is unsafe, the admissibility of evidence, appropriateness of penalty imposed. It also only affects the person asking for mercy, not the country as a whole. Roskill LJ says that this issue is justiciable and that, national security aside, the CCSU workers had a legitimate expectation (even if it is not a right) to continue to enjoy membership of unions. This expectation was based on the history of the relationship of the management and workers in CCSU. Normally this would lead to a successful review. However Roskill LJ found on evidence that the work the GCHQ workers were doing was important to national
security. He accepts the Crown submission that consultation would have made things worse (increased the risk to national security because it would reveal the vulnerability of the CCSU to national unions) and that the consultation did not take place because of these concerns. Interests of national security must prevail over the rights of the CCSU workers. This case has been adopted in New Zealand and is part of NZs law (initially in Burt, but then in more cases, Patel). Burt v Governor-General (CM56 - 1992 - CA) Burt was convicted of murder. Petitioned the GG for a full pardon, on the grounds that evidence which was favourable to his defence was withheld or misstated in his trial. GG found the verdict could not be considered unsafe and declined Burts petition. Burt challenged the decision. The Crown responded with an application to strike out on the grounds that no reasonable cause of action was disclosed arguing no prerogative powers are review-able. Cooke J in the Court of Appeal Adopted CCSU and found that the mere fact that a decision had been made under the prerogative means it outside of review. It is whether the issue is justiciable or not (straight up adaptation of the essence of CCSU). Says the rule of law requires that challenge shall be permitted in so far as issues arise of a kind with which the Courts are competent to deal. CA said about the prerogative of mercy that potentially it is review-able (issues they raise are not foreign to the judicial function). However, the existing safeguards in NZ mean there isno pressing reasonfor altering the practice regarding the Royal prerogative of mercy reason was that there were already sufficient safeguards over the prerogative of mercy and there was no need of review: oAbility of petitioner to bring to more then on petition. oAvailability of official information about the case. oAppointment of independent lawyers to investigate petitions. Patel Prerogative of immigration. CCSU adopted again and applied. Justiciability The loose definition means it is flexible. Bentlys Case: R v Secretary of State for the Home Department, ex parte Bently (CM57 1994 - QB) Application by Iris Bently (sister of) for a free pardon for Derek Bently. Application was declined. Derek Bentlys road to jail CM58-59. oBently and his brother in crime were seen by a married woman climbing over a gate into a confectionary factory. She then rang the police. A policeman got up to the roof and found Derek and his brother in crime. Derek called out to his friend let him have it, Chris his friend shot twice. oAnother policeman arrived on the scene. Chris was 16, Derek was 19.
oChris could not go to jail because he was too young. Derek was old enough for the death penalty, and although almost feeble minded, he got the death penalty. The jury recommended mercy, but the judge sent him to death. oBently was hanged. His sister then tried to obtain a pardon. The reason the home-secretary to decline the application was: the long-standing policy employed by home-secretaries before him that free pardons are available only in situations where the moral and technical innocence of the person in question can be established. Council for Bently argued that the home-secretary had made a legal error by considering that a free pardon was dependant on establishing Bentlys innocence. oArgued a free pardon simply removes the initial penalty. So should have asked instead: should he get a lesser sentence. Watkins J Was the decision susceptible to review? Adopts CCSU. Are the courts qualified to deal with the matter or involved with question of policy (justiciability question)? oThe way the case was argued it used the word policy in the argument. Saying wrong policy was applied seems to be jumping over the belly-button. oWatkins J says that if it was a question of policy it would not be available to review. oHowever, the argument then developed. Says council was not attacking the home-secretary, what he was actually saying was that the home-secretary had failed to consider the possibility of awarding Derek Bently some other form of pardon, not being a free pardon. oHome secretary has other powers can grant a conditional pardon. Policy that applies to that is that they are for situation where you want to remove the original sentence and replace it with a lesser sentence. Case is all about semantics. Cannot attack policy, but can disguise the idea that it is about policy reframe it as a question of law. Matter referred to home secretary who gave a conditional pardon.
Week 12 - 3
Introduction to the Grounds of Review In CCSU Diplock classified grounds for review into three categories. But said that new grounds may be added on a case by case basis. With review we are looking at how a decision is made rather then what decision is made (in theory). Procedural Impropriety: Deals most with the manner in which the decision was made. Diplock said this meant compliance with the rules of natural justice or procedural fairness and observe procedural rules if they exist. Natural Justice: basically fairness. Complies with two ideas: o1. Audi alteram patem - Hear the other side if it is an adverse decision to be made about you, you need to know why that decision is likely to be made and offered a reasonable opportunity to respond to the allegations. (CCSU, Daganayasi, CREEDNZ, Evans, Wheeler, Webster).
o2. Nemo judex in sua causa Rule against bias decision makers should not be bias, have open minds and be objective. Actual Bias: If decision maker has an actual interest in the decision (financial, family relation). All decision makers disqualified in this situation. Apparent Bias: require different objectivity from different decision makers. Courts, for example, adhere to the highest requirements of bias. A minister, who is a political agent, adheres to a lesser standard (would only be disqualified if he has a %100 closed mind predetermined decision). (Davidson v Scottish Ministers, CREEDNZ). Illegality In accordance with law (Cooke J). Illegality is some form of misunderstanding or misinterpreting of the relevant law. Comes in many different forms: oError of Law argue decision maker misinterpreted a word in a statute. oRelevancy of Considerations If there is something that you can show that a decision maker must consider which he fails to consider. Otherwise, when something that is legally irrelevant is considered (prove either on the balance of probabilities easier to show irrelevant consideration). oImproper Purpose Exercising power that thwarts or runs against the purpose of a law. oOver Ridged Policy Decision maker does not consider anything at all. oMistake of Fact If decision maker needs to be certain of certain facts and get it wrong. oUnlawful Sub-delegation Someone else deciding for a decision maker without statutory authorisation. All these grounds overlap on each other. Irrationality \ Unreasonableness As an independent ground of review it means Wendsbury unreasonableness a decision so unreasonable that no reasonable decision maker could have reached it devoid of logic. Substantive Unfairness Substance of the decision was unfair (as opposed to how it was reached). Very problematic ground of review looks very similar to appeal (close to looking at merits). Conservative judges will not accept this ground exists. Main advocate was Cooke J and he is no longer around. Precedents: Carmichael Wendsburys Case (CM65 - 1948 - UKCA) Deals with the scope of judicial review and mainly with the invention of unfairness known as wendsbury unfairness. Facts: Wendsbury corporation (local authority) decided to attach a condition to a license which it granted to Associated Provincial Picture Houses. The license allowed them to screen films on Sundays (under and Act). The condition was that children, under the age of 15, whether accompanied by an adult or not, could not go to the movies on Sundays. Council for the picture houses took that condition to the court and said the imposition was unreasonable and therefore ultra vires (beyond the powers). Lord Green
Looked back at the role and power of courts on review (CM65L): On review courts can only interfere with the act of an executive authority if it be shown that the authority has contravened the law. The court must not substitute itself for the authority (discretion is for the decision-maker). According to Lord Green there is a wee box in which the decision maker can make his decision. In it you cannot review, it would amount to appeal. Contravening the law (getting out of the wee box) covers things such as: oDecision maker does not exercise the discretion at all. oIf there are things the decision maker should have had regard to and didnt. Or irrelevant things he considered. oBad faith and dishonesty. oDecision maker misdirecting himself or herself in law. Says all these grounds for review overlap to a great extent. All these, he says, can be classed together as simply an unreasonable decision things that should not be done. oToday we use unreasonableness to mean other things from that list that goes wrong. In this case this was not yet the position. Then he says there is another grounds to unreasonableness: so absurd that no sensible person could ever dream that it lay within the powers. oUsually something else goes wrong because this unreasonableness is the outcome of Lord Greens list (usually). Useful for arguing this when you dont want to classify too much. Applies this unreasonableness to the facts he is considering: oThe issue of the admission of under 15 year olds is something the local authority ought to be worried about. oTherefore he is saying the submission is saying they do not like the ultimate decision cannot mean the generic type of unreasonableness. oThis therefore does not fall under this category: to prove something as a Wendsbury unreasonableness would have to be very extraordinary, and this case does not come near must be overwhelming, something no reasonable authority could ever have decided. Unreasonableness appears in two ways: Generic way: challenging the decision. Wendsbury way: Devoid of logic.
Week 13 - 1
Padfield v Minister of Agriculture, Fisheries and Food (CM67 - 1968 - HL) Facts: All milk producers in the UK were required to sell their milk to the milk marketing board. The board fixed the prices. Those were fixed on a regional basis. South Eastern region was complaining they were not getting a good enough money compared to other regions. Milk marketing board had a fixed sum for buying milk if they got more money, other producers would get less. Under the governing legislation there were two avenues of complaint: o1. Arbitration: both parties agreed that arbitration was not the right option.
o2. Committee of investigation: the Act said it will be charged with the duty if the minister so directs. Asked Minister to refer the complaint to a committee of investigation. Minister refused. Remedy sought: oCM69R: order of mandamus commanding the minister to refer the complaint to the committee of investigation. Mandamus compels. Remedy they got: oCM71: allows the appeal, remits the case to the QB with a direction to require the minister to consider the complaint according to law (still a mandamus, but it is different from that sought). oIt is different because if the Lords exercised the mandamus sought, they would be exercising the Ministers discretion. Cannot do that (difference between appeal and review). Judgement: Width/ambit/scope of Ministers discretion under the section in question? oMinister claimed he had unfettered discretion, subject only to an obligation to fairly consider all complaints. oPadfield claimed a right to have their complaint referred but court rejected this argument (statute suggests some discretion if the Minister in any case so directs; also common sense says that there must be some reasons justifying a refusal to refer a complaint for example getting a complaint that was a repeat of one already rejected). Alternatively claimed the Ministers discretion was limited (fettered) there are constraints, exclude all irrelevant considerations. Having unfettered discretion is generally considered against the rule of law courts are not generally going to tolerate this, it means decision maker is effectively above the law. Reasons: oThe Rule of Law. oLord Reid: improper purpose. oLord Morris: real exercise; error of law; relevancy of consideration. Courts require you do certain things. Has the Ministers discretion been lawfully exercised? oLord Morris (CM72 last para): lawful requirements are: !A. If the Minister failed or refused to apply his mind minister must actually consider the complaint. !B. Must not misinterpret the law or proceed on a misunderstanding of the law. !C. Not to take into account an irrelevant consideration. !D. Have regard to relevant consideration. oLord Reid CM69-70: his words are the foundation for the grounds of review of improper purpose. !Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Acts. These must be discerned by construing the Act as a whole finally it is the courts decision what the purpose of the Act is. If the Minister, for reason of misconstruing the Act or for any other
reason, goes against the purpose of the Act then the courts must give protection. !Did the Minister act in a way that accords with the objects and purpose of the Act? " Tried to ascertain what the Ministers reasons were. Got these largely from letter correspondence: " 1. Complaint was unsuitable for investigation because it raised wide issues but this is a purpose that does not promote the policy and objects of the Act: S 19 contemplates committee of investigations dealing with the widest issues so big and so wide that the whole scheme may be revoked by their findings. " 2. Resolved internally but not Parliaments intent that the whole scheme be self regulating. S 19 says that if there are issues then the Minister should step in. " 3. If complaint is successful then he might be expected to act on it not a good reason. On CM71L: Most of the Ministers intentions were drawn from letters of correspondence. If he gives no reason it would be impossible for the courts to question his reasoning. oArgued that if the Minister had not given any reasons he would be immune from review. oLord Reid rejects this argument. If the court can find no reasons, it will infer them. Deganayasi v Minister of Immigration (CM72 - 1980 - NZCA) Expanded scope of judicial review - mistake of fact. Facts: Ms Daganayasi was Fijian. Applied for permanent residence reason was she had a son who was NZ born (citizen) and had a glycogen disorder disease. Treated by the paediatric department in Auckland Hospital. In particular by two doctors who described the disease as fairly rare but they had some expertise in dealing with this particular rare disorder. When she applied for permanent residence the department of investigation appointed a medical investigator. He prepared a report and partly on the basis of his report permanent residency was decline. Then she was prosecuted for overstaying. One of the Drs treating her child wrote to the investigating doctor said that in Fiji the son would not get an adequate diet. They spoke to each other and investigator reported to the Minister. His report was not helpful to Ms Daganayasi it was negative about her and contained mistakes of facts. Report went to Minister but not to Daganayasi. She was convicted of overstaying and she sentenced to deportation. Applied to the Minister under s 20(A) of the Act which empowered the Minister to make an order that an overstayer need not be deported because of exceptional circumstances of a humanitarian nature. Minister again asked the investigating Dr for advice. Tried, but failed to contact the other two doctors. Investigating Dr said that things had changed favourably son
was getting better and danger would recede and issues with health in Fiji were even better. Report again, prejudicial to Daganayasi was not given to her. Minister wrote to Daganayasi saying he paid particular attention to the childs health and the latest medical information available and that he is issuing the deportation order. Claims: o1. Daganayasi said the Minister obtained advice that was prejudicial to her that she had not been allowed to respond to (natural justice hear the other side). o2. Ministers view that he had got the best and most recent medical advice available, when in fact he had not spoken on the last occasion to either of the two Drs involved in treating her son.
Week 13 - 2
Daganayasi continued Revolved around the investigating doctors recommendations and the minister not speaking to the actual Drs treating the boy. Further did not disclose any of the reports to Ms Daganayasi. Cooke J begins with general observations on the role of the court in reviewing the ministers decision. At CM75: Cooke J makes an important comment about the functions of the court does he manage to confine himself to these confines he sets out? oCooke J points out that in reviewing the exercise of power by the minister under S 20(a) it is not the function of the reviewing court whether or not there were matters of a humanitarian nature that meant it would be unjust to deport the offender. That discretion is given by Parliament to the Minister (courts job is to make sure a fair procedure was observed not to exercise Ministers discretion). Natural Justice ground that won case and agreed unanimously Grounds relate to fair hearing: oNatural justice is fair play at action not technical rules. oWhat is required by way of fairness depends on the situation (context, decision, power exercised, surrounding legislation etc) not the same procedural requires would fall on the decision maker in every case. The important context here was: o1. Statutory provision: S 20A provides an appeal (mandatory sentence on overstaying is deportation, the only challenge is the conviction only way to avoid deportation would be to use S 20A thus Parliament intended an appeal nature). !Supporting Extrinsic Aids: !View is supported by the marginal notes. !External departmental communications refer to S 20A as an appeal. !This is part of the background suggesting the court should put an interpretation on the S 20A for the effectiveness of the rights given.
o2. S 20A has no real procedural requirements in it contains nothing approaching a code. Inferences: !Because applications are in writing and set out full circumstances there is no need for the applicant to appear before the Minister in person. !Beyond that everything is left to implication of the courts. From these two Cooke J draws implications: oThe Minister is free to enquire into the application. oIn conducting enquiry should be able to import a medical referee. oGet advice from departmental staff. oBut no less reasonable or necessary in the interest of justice or fairness and to make perception work effectively to hold that the reports of the referee, or at least substance of prejudicial comments, should be disclosed before a decision is made. Let the applicant make comments on prejudicial decisions. Cooke J supports himself with case law: oRidge v Baldwin: large scale vs. treatment of individual !Lord Reid drew a distinction between these. Large scale is decisions that affect the country as a whole as opposed decisions that only affect an individual. !Courts are more able to control decision making that affects individuals. Silly for court to say in respect of a decision on a large scale that every person affected should give notice of all the adverse implications to them. With an individual it is not difficult to be fair. oDurayappah v Fernando !Privy council said there were a series of things to look at when deciding if someone is entitled to a hearing and a chance to reply. !Has that person been deprived of: property, status enjoyed, job were deprived of something entitled to continue enjoying? " Cooke J observes that Ms Daganayasi has not been deprived of an entitlement. So says not to be too careful about it. " Then says that an overstayer after expiry of the permit cannot stay in NZ, nor would he have a legitimate expectation to stay in NZ. However, this particular over stayer has: NZ born child with a rare disease which an NZ hospital specialises in. " Therefore she has something akin to a legitimate expectation. !Cases also asks whether there are criteria to the use of power or is it completely discretionary. If there are standards to be met, then you should tell someone why he does not meet the tests and give him a chance to respond. " Here there is a specific test: are there humanitarian circumstances !Is something awful going to happen to the applicant because of the decision? " In a way consequence is to life the drastic sanction of deportation. oAttorney General v Ryan !The relevant Act authorised the decision maker to refuse citizenship to a person, even a person who was legally entitled to citizenship, in certain circumstances.
!Privy Council found that because the decision maker was someone who had legal authority to determine the rights of individuals, it was a necessary implication that the decision maker was required to observe the circumstances of natural justice. " The problem in S 20A is the word may referring to the Ministers decision. " Cooke J says there is no legal requirements. But under subs (4) if an order is made the minister shall cause to be issued a permit. " Not a distortion of language to say the Minister is determining the rights of an individual. Lists main circumstance in CM78R: says that in these circumstances she deserved a reasonable opportunity to answer the allegations against her. Mistake of Fact other two judges did not use this ground Mistake of fact is still a relatively new ground of review. The reason is that many judges are reluctant to use it nervous in expanding review, especially in a way leading courts closer to enquiring the substance of a decision (problem is that it is about the facts, not the law). oMistake of Fact means that if a decision maker needs to determine certain facts before making a decision and these facts are wrong, then that decision can be successfully reviewed. oMay end up a decision as to whether this a good decision on the facts or a bad decision on the facts question on the merits. Cooke J refers to the Ministers letter about getting the latest and best medical advice available: but he never talked to the Drs actually treating the boy. He accepts this as a mistake of fact at the beginning and then goes on to find support for use of mistake of fact. oFinds dicta from Lord Denning. oQuotes from Tameside. Note: Cooke J says at the end of the case: oPossible to combine the two grounds and say to yourself: was Daganayasi treated fairly. oFairness need not be treated as confined to procedural matters (up until then it was! it is a meritorial decision).
Week 13 - 3
Daganayasi continued Discrepancy between what Cooke J says and does: oSays it is not the function of the court to decide whether the decision is just. oPassages marked by an asterix in the material outline the three points where he actually does decide. Legitimate expectations are about to be about process, not substance (as it was decided in this case). oIn GCHQ the judges found the GCHQ workers had an expectation to continue to be trade unions unless someone told them otherwise legitimate was to continue and enjoy what they had, until a certain process took place.
oDoes Daganayasi have a legitimate expectation which is procedural? Cooke J seems to say her legitimate expectation is that she fulfils S 20(A). Also says that it is not a distortion of language that the Minister is determining a question relation to Daganayasis right. Using the idea she has met the test to justify the finding she has a right, which he then uses to cite AG v Ryne to help him. When looking at judicial review, have to ask whether courts stick to what they say or not. CREEDNZ Inc v Governor-General Cooke P again. Completely different kind of decision: There it was a minister, here it is the GG council. There decision about personal circumstances, here much wider policy filled decision. Implicit response of the courts is to be much more reluctant to become involved. Challenges the GG in councils decision under the National Development Act to apply the Act to the proposal to build an aluminium smelter at Aramoana. oGovernment Concerned with energy issue - There were oil shocks going on at the time (thinking was we may run out of fossil fuels). oDevelopment of the European Union Britain joining up, threatening NZ exports to the UK, so incentive to expand NZ export range. o National Development Act was from a government policy called think big encouraging big enterprises to invest in NZ. !For some major developments that satisfied S 3, then the GG in council (government) could choose to apply the provisions of the Act to that proposal. !Consequence was that the Act contained a "fast-track procedure to process applications for the big developments quicker then under the standard arrangements dealing with environmental issue. !Intent of the Act is expedition (Cooke P). oEnvironmental institutions were concerned with the Act and were not happy about the expedient process. S 3(3) provides that if the GG in council considers the major work is in the national interest and essential for some reasons and essential that it is expedient to fast track it. oEssential is a high test and it was supposed to be the safeguard. GG in council decided to build the smelter and CREEDNZ objected and sought to judicially review the decision. Notes: oPragmatic motivation behind application as well as a legal motivation. None of CREEDNZs arguments succeeded, and surely some of them wouldnt. Part of the motivation was to slow down the process and it is the effect it had (proposal was withdraw, because it got too expensive). oObjection was that Anamoana was an ecologically significant wetland and is just opposite the Albatross colony. oStanding: CREEDNZ was not personally being deprived of anything. Group included property owners who argued that their property would be reduced. Standing no longer needs a direct impact on someone individuals rights big important decision. Standing was not an issue discussed in the case. Issues raised:
oCoalition said the decision was made in breach of natural justice. oRaised the other limb of natural justice bias (raised as predetermination). oRelevancy of considerations (issues should have been taken into account that werent). oMixed error or law and fact (word essential) no reasonable minister would consider this was essential according to test set out in provision. Consultation Issue CREEDNZ argued that the property owners at Aramoana were entitled to see the application for the proposal before the decision was made and should have a reasonable opportunity to respond to the application in relation to s 3(3) matters, before the decision was made (know the case against you and have a reasonable opportunity to reply). oSupported by arguing the fast track procedure deprived them of rights Tried to bring it within the scope of Daganayasi natural justice should have been observed. Cooke P says that, you may have been deprived of rights, but that is what the Act is all about. Streamlining is behind the Act and is only to be expected that some rights be done with in the process (otherwise the Statute cannot operate Parliaments intent to remove those rights). Cannot find a corollary in the Act that Parliament intended consultation: oParliament has given discretion to the executive council executive council is the body at the apex of governmental structure, dealing with major issues in a broad way. Unusual for courts to make bodies in this level making major issues to consult every individual affected before the decision is made (it would also be impractical). oSupport from a Canadian case (CM85): Illustrates how slow courts are to treat exec council or cabinet to compel them to follow a certain process wrong kind of decision maker and decision to require consultation. Cooke P says that under the National Development Act the Ministers are required to consult with local authorities before making the decision (S 3(4)). oThe fact there is an express provision for a consultation means there is an exclusion of another kind of consultation. Says that at later stages there are other opportunity for participation later of groups like CREEDNZ. In there Act there is a careful pattern of procedural rights contrast the Immigration Act where there was hardly anything and everything else was left for implication. Points there here a decision affecting all of NZ, in Daganayasi it was personal circumstances of an individual consultation in latter, but nor former situation. No requirement for consolation. Predetermination CREEDNZ argued that statements made by the relevant Ministers to the media in the time period leading up to making the decision suggested that the Ministers were bias in favour of applying the Act to the proposals. Cooke P agrees that before they decided to apply the Act, they already decided that a smelter factor by this company in the proposed location was a good thing. Even obvious they favoured using the National Development Act to fast-track the proposal. Suggests that when they sat down at the table they were bias.
oProblem for the court is the context of the decision: relevant Ministers may have already decided all those points, but because of the scheme and scope none of that was enough to disqualify them. oNormally you would say, and court would accept, that if an objective observer had a reasonable suspicion of bias, that would disqualify them these facts seem to be enough. oBut it is not the test to apply because of the nature of the decision, whos making it and what they have to consider. oCooke P says the subject matter of the legislation was the think big projects some of these works were sponsored by the government. Considering the size of the projects and the fact Ministers may promote them themselves it could not have been Parliaments intent to disqualify them from the kind of predetermination they showed. Therefore the only question judges were willing to ask was whether in council with the GG they had actually turned their minds to S 3(3) their minds were not closed (largely okay to have made up their minds beforehand) evidence here was that the application to build the smelter was made on three grounds: oEssential for resource development, employment and exports. oWhen order in council was made it said the smelter was essential only for exports and employment's implication that by rejecting one of the grounds, the Ministers must have considered statutory criteria.
Week 14 - 1
Judicial Review Executive Action CONTINUED CreedNZ Continued Aluminium smelter in aramoana. CreedNZ argued that before making the decision the GG in council should have consulted with property owners affected. CA said that is not enough and need to look at the rest of the context. Cooke J summarises all the important contextual issues in CM85-86. SECOND ARGUMENT: Bias by predetermination argument. Gathered newspaper articles and radio broadcasts etc. Used them to argue that before the ministers sat down they had in effect already decided what they would do. oCourt agreed the ministers decided that it would be a good idea in the proposed format. But that wasnt enough. oThese were front-line ministers at the apex of the governmental structure. Parliament gave them the power to make the statutory determination even though it must have known they were likely to have thought about it a bit beforehand. Look at what is realistic. oThe only requirement of the ministers was the possibility that they could/ would change their mind if they learnt the proposal was not good. Bias in CreedNZ vs. Davidson v Scottish Ministers In Davidson v Scottish Ministers the Lord Advocate (principal legal officer of the Crown in Scotland; a Minister) assured the House of Lords (Parliament) that s 21 would prevent courts from making an order for specific performance against the
Scottish Ministers. As a Judge, Lord Hardie later held that s 21 prevented the court from making a coercive order against the Ministers requiring them to move him to conditions in compliance with the European Convention. oDavidson complained the conditions he was being held in the Scottish prison were against the European Convention and Lord Hardie would not order the Ministers to move him. Was Lord Hardie biased? oYes apparent bias. !Actual (personal interest which is not negligible in outcome) vs. apparent bias (justice must be seen to be done). oTest used: Porter v Magill [2001] UKHL 67: whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. oThe observer is not to be credited with mastery of the minutiae of drafting. Such an observer will pay attention to the word, not the trees (per Lord Bingham, para 8). !Lord Hardie was really saying that the British Parliament could not issue such an order against the Scottish Parliament, but here it was the Court issuing an order against the Scottish Parliament. But these minutiae details do not matter. Could you now argue that if a judge uses his own precedent he is being bias in the case? The court observed these is an issue, because judges do become known to have particular view-points. But that does not mean they are being bias. The difference here was that Lord Hardie was a Minister. He was advocating that a section be interpreted in a particular way in the Parliamentary forum. That is enough for the reasonable observer. Contrasts with CreedNZ because of the context: Higher standards of bias apply to judges. Affects only Davidson and his case. Same level of bias does not apply in all cases. CreedNZ Last Issue The methods in the statement. CreedNZ argued the executive council didnt consider, should have considered and made a bad decision (listed in CM87 a-g). CA agreed that the statements are correct based on expert evidence. Then they wanted the court to infer that cabinet could not have taken them into them into account because no reasonable minister who took them into account could think it was a good idea. oRaises at least three grounds of review: Relevance of considerations; No reasonable Ministers who considered and applied the requirements of the provisions would have made the decision; Who had property considered the statutory criteria. oReasonableness of Considerations: !Linked to unreasonableness. !Mandatory vs. permissive relevant considerations; direct vs. indirect consideration. " Statement of principal on relevancy of consideration. CM81: what
has to be emphasised... " Only if you show that something was mandatory relevant (shall, not may, consider). " The more important, general and obvious the consideration, the more ready must the court be to enforce it. !The substance of the consideration was important. !Most of the considerations here were opinion on debatable points. It is trite law that the function of the Court is not to decide where the national interest is likely to lie or whether any of the tests in s 3(3) are satisfied. That is the Governments responsibility. What the Court has to do is ascertain whether the Government has carried out its responsibility according to law. !In some cases, it was hard to prove they were not considered. !It has not been demonstrated that the Ministers were not alive to the issues and to the nature of the risks involved for the country. They took a more optimistic view than the plaintiffs experts have taken. They may have been wrong. That is not the legal issue. oError of law !Essential in s 3(3)(a) misinterpreted? !CA dismiss on the same reasons of the relevancy of consideration. At CM91: whether something is essential involves a value judgement. Nothing showed that a lesser standard was applied. !Question came down to judges assessment of whether the council had reasonable grounds for reaching the conclusion that it was essential.
Week 14 - 2
Chief Constable of the North Wales Police v Evans Facts: oUnfortunate upbringing oStayed with Fahey (partner of uncle referred to her as aunt), unsuccessful at Uni oJoined police force. oGood reports as a probationary member. oMarried Fahey (14 years older). oPolice accommodation (because of marriage): !visit by Sergeant Roberts - wrote report about visit, which later harmed Evans about aunt who is now wife, house is a mess, but has a big car and a motorcycle and 4-5 dogs. !comments by Inspector Yates wrote lived together at a hippie commune, aunty is blood aunty and no evidence divorced previous husband. !additions by Chief Superintendent Evans has severe/several financial difficulties; said to be plausible; medical history of chronic leg injuries. oInterview at which none of this was put to Evans wife not his real aunty, never married to uncle, no financial difficulties, leg injury from motorbike accident and fully disclosed and hippie commune was the wrong address.
!Did have dogs and was living in council accommodation where the normal rule was only 1 pet. !Later came out that he had spoken to the council about this, and was told it was no problem as long as there were no complaints (health department said likewise). oAgain wrote up report: lived in hippie commune, wife wore hippie cloths and all dogs were strays. oRoutine assessment was good. o23/10: Council told to find somewhere else for the dogs by the 3rd week of November. o6/11 interview: comply with tenancy or resign. o8/11 interview: resign or be dismissed, no reasons offered. oChose to resign and wanted to join the metropolitan police. They talked to old police and was declined a job. Evans sought to quash the decision, be reinstalled, and obtained a declaration that the decision was illegal, ultra vires and void. Superintendents reaction to proceedings was that he has unfettered discretion, could do what he wanted and said he was worried: o1. Wife was too old. o2. Was the mistress of his uncle. o3. Doesnt like dogs and broke tenancy agreement. o4. Dont like hippie lifestyle. The Case: Did the chief superintendent have unfettered discretion? oMade decision under regulation 16 probationary members of the police force may be dismissed if the chief constable considers: !1. Probationary constable is not fitted to perform duties. !2. Not likely to become an efficient constable. !3. Not likely to become a well conducted constable. !Could argue that if the reports were correct, may not be a fit constable. But none of it was true. oRegulation 16 sets out criteria to the power to dismiss: the poweris to be exercised, and exercised only, after due consideration and determination of the specified questions. Power is not absolute. Ridge v Baldwin pointed out three categories of dismissal: o(1) Dismissal of someone who holds office at the pleasure of someone who decides to dismiss them (example: Governor-General holds position at pleasure of the Queen, no legal explanation required for dismissal). o(2) Only be dismissed when there is something against them (for particular reasons) regulation 16 fits in here. There is an unbroken line of authority that a constable cannot be dismissed without first telling him why he is being dismissed and giving him a chance to defend himself. o(3) Master-servant relationships (employer-employee). Contract will say when someone can be dismissed, and what the procedures for that are. Judges in Evans said he had not been treated properly, because he had not been told all the lies about him and not told they were going to be used against him, and not given an opportunity to defend himself with the truth. A fair procedure would involve:
o1. A hearing of some kind by the decision maker (doesnt always need to be oral hearing before Chief Constable himself). o2. Would allow to all or part of the process to be delegated, as long as the chief constable made the decision. o3. Information must be disclosed and an opportunity to reply given. !Same requirements as Deganayasi. oNot fulfilled in this case. Other problems: oMany of the allegations were erroneous. !Mistake of fact argument, as in Daganayasi (but not main ground here). oMind was already made up. !Bias. Note: Denning in this case in the Court of Appeal: oOBITER: I go further, not only must he be given a fair hearing, but the decision itself must be fair and reasonable. oLord Brightman (CM118): With profound respect to the CoA I dissent from the view that the decision must also be fair and reasonable. Wrongly transform the remedy of judicial review not an appeal, but a review of the manner in which the decision was made.
Week 14 - 3
Webster v Auckland Harbour Board Multiple grounds; shows court using a mix of what legislation says and doesnt say. Webster had a license to use the foreshore issued by the Auckland Harbour Board. License issued by contract, set out in a letter (CM126). Rate at 1934 was 1 per annum, payable in advance. Then converted into $ and turned into $4 in 1947. Reasons given: Websters were, under the new license, able to erect a boat-shed and extend it into the water. Until 1977 they continued to use the whole deal for that price. Philosophical ideology changes: Fees have come to be set as user pays. The AHB hires a professional, which recommends to adopt a whole new scheme. The result of the application of the new licensing scheme was that their rental was increased from $4 per annum to over $600 per annum. AHB decided that ! that would suffice, and sought $320 from Websters. Websters talked to board, but could not come to agreement. AHB issued an order to terminate. oTHE AHB APPROACH SET OUT IN HAND OUT. Sought review of: setting of new fee and the decision to terminate license for failure to pay. Reviewable: oAHB argued their decisions are immune from review judicial review doesnt apply to private legal relations: contractual issues. Such decisions would be immune from review. oBasis: letter in 1934 setting out the terms of the contract. Terminating according to that contract. oHeld: AHB engaged in this process because of the provisions of the Harbours
Act, which gave the AHB the authority to grant licenses to people for use of the foreshore. It also authorised the board to set a rental for licenses to use the foreshore. Therefore the contractual relationship is based on the Act. oContract argument doesnt work. It was exercising statutory provisions in the form of the contract not protected from review. o(Cooke CM125L) In exercising that power the rights of the Websters were affected (right to continue to enjoy the foreshore for $4 per annum) makes them reviewable. Market Value Approach was wrong in law: oCM130: Looks at the Act: relevant part is the Acts silence: what it doesnt say, rather then what it says. Act didnt say Board must not use a market value approach. Act did not say that in setting its cost the board is limited to recouping its costs. If it had said this, it would be clear they could only cover its cost. oTherefore, judge was able to draw his own conclusions: in the absence of anything to the contrary, this is exactly what he would expect the board to do (exactly the same as rental for houses). !This approach may not have been this legitimate 40 years before shows that public context makes a difference. Attacked starting point of $50 arbitrary and unreasonable. oJudges agree that the figure is arbitrary. Every starting figure is arbitrary. Neither think this means that it is unreasonable (arbitrary <> unreasonable). oCooke CM125R: In a sense, that was arbitrary, but such a moderate fair is in itself inherently reasonable [compare to $4 also dependant on personal circumstances]. Says adjustments were then made and introduced in stages. !Note Cook on 125L-Bottom: Unreasonableness: Board was bound to act reasonably and nothing significant is gained by adding in the Wendsbury sense. An unreasonable decision is one outside the limits of unreasonableness. Sometimes when applying unreasonableness courts will be hard and other times they will be more liquid (always try unreasonableness nothing to loose). oBissin J (CM131R): May be arbitrary, but has foundation because a professional valuer came to it. Refers to other cases we did and extracts unreasonableness from them (if all evidence goes one way and decision maker goes other way = unreasonable; CCSU: decision so outrageous that no sensible decision-maker who applied mind could have arrived at it). Taking into value of adjoining land: error of law to consider; values used arbitrary and unreasonable. oBecause board was setting a fee for the foreshore, it should only look at the value of the foreshore. oBoth judges agreed. oHeld: Nothing in the Act to say that foreshore excludes the adjoining land. Both judges accept it was relevant, because the professional valuer thought it was relevant [Acts silence is what the judges are reading Act fails to exclude, rather then includes]. Procedure Board used was unfair not given an opportunity to have their input or
response. oCooke J: says if there was any unfairness, it wasnt on part of the Board. A lot of correspondence between the parties. Cant have the board to provide an oral hearing from every single license holder. Sufficient in this case.
Week 15 - 1
Cases where the unreasonable standard is met Carmichael Smellie J uses unreasonableness and substantive unfairness. oSubstantive unfairness: not procedural unfairness (about the decision itself). It is contentious because (1) its hard to imagine why you might need this ground of review when others are available; (2) its about the decision itself; (3) comes from Cooke J (expansionist judge or honest judge?). oHighest authority for this ground is Themes Valley Electric Power Board (CM134): !Cooke J: !No lack of authority, cites Daganayasi (there Cooke J gave an obiter that fairness need not be confined to procedural matters thats it). !Cites Weaver and other references. Says of the others that its fair to draw that whatever label the other judges call what they are doing, they are in-fact looking at the quality of the decision. !Justifies ground for substantive unfairness: a measure of flexibility, enabling redress for misuse of administrative power that would otherwise go unchecked (upholds the rule of law). !Says that limits and categories will never be defined with exhaustive precision. !McKay J: !Both him and Fischer J effectively say that it is a ground only to be used when something else goes wrong. Cant just say anything is unfair need to find previous cases with analogous facts. !Fischer J: !On each occasion where the expression substantive unfairness is applied, need to find another grounds for appeal for intervention. Otherwise the distinction between judicial review and appeal on the merits will be dangerously blurred. Facts in Carmichael (135): Social Security Act 1964 said that need to be ordinarily resident in NZ in order to get a benefit. If not your benefit and superannuation can be terminated. Benefit paid in excess may be recovered by the Crown, but the Director-General has discretion to write it off if: oA result of error by the Department. oError not contributed to by Carmichaels. oPayment received in good faith. oPosition altered in reliance. oWould be inequitable in all the circumstances including the financial circumstances to require the repayment.
Carmichaels received, but spent most of their time in Australia, being paid NZ superannuation. Social Security told them it was okay, but were wrong. Carmichael were told they owed all the excess payment to the crown ($18k). Asked for application of discretion to write-off debt. The Social Security Appeal Authority decided they werent eligible to have their debt written off: not ordinarily resident in NZ and not qualified for payment (Smellie J agrees with this). However, they fit all the requirements noted earlier and the only reasoning against them was $40k and freehold property savings they had. oSSAA said that because they had the money, it would not be inequitable in all circumstances to require payment appears to be the only relevant consideration against. Smellie J says its apparent from SSAAs decision that the ownership of the property and the savings were the deciding factors: all the circumstance other then financial pointed that it would be inequitable to require payment (makes it look as if they failed only a part of the last limb may have been other circumstances that may have made it inequitable). oSays no reasonable person could take the view that solely because of their modest home and limited savings the decision was qualified (changed the terms the SSAA used: freehold property and savings in excess of debt would a person who owns a mansion and just won the lotto get the same result?). oDecision is therefore both unreasonable and substantively unfair. Row of ticks with one cross may amount in other circumstances also to unfairness and unreasonableness. Gives no explanation to why unfair or unreasonable, other then row of ticks with one cross. Hook (CM143) Store holder at the market urinated in a side-street against instructions, after the market was closed and the toilets were locked. Said bad words to security officer who took him off and the next day he apologised and was banned from life from the market (his livelihood). Also problem with security guard being adjudicator. But both the judges decided the decision was excessive because the punishment was excessive: out of proportion with the offence (evidence of others peeing and not being banned for life). Cases pointed to for disproportionally one of the things thought today to make a decision unreasonable (manifestly excessive). Two cases where there was no doubt in a judges mind that a decision was unreasonable. Judicial review question in exams: It is a fact based exercise. Use analogies to other facts. Exam will be judicial review question. A bit of delegated authority and the treaty issue.
Week 15 - 2
JUDICIAL REVIEW OF DELEGATED LEGISLATION The executive making delegated legislation. Definition according to Joseph: oLaw promulgated by a delegate of Parliament (the Executive); a major source of law; mainly regulations and by-laws. The power to make the legislation has been conferred by Parliament on the delegate. The relationship between Acts of Parliament and delegated legislation is both procedural and substantive: oProcedural: power acquired through Parliament. oSubstantive: regulations contain details and are often technical needed to support the operation and purposes of Acts of Parliament (Cabinet Office Manual). Dangerous to view regulations as something that can bring change. The regulation making power has been misused by the executive in history. oExample in NZ: Robert Muldoon. During petrol crisis existed the Economic Stabilisation Act which had wide regulation making powers. They were used for a big array of purposes: introduction of car less days to other measures taking in the interest of stabilising the economy seen as venturing beyond what was suitable on regulations. Because they are made in continuance of an Act of Parliament, the executive cannot stray from the directions given by Parliament. oThis is derived from Parliamentary Sovereignty and the Rule of Law. Two main ways in which it is upheld: oJudiciary. oParliament. Judicial Review of Delegated Legislation Question of vires (powers): oWhether the regulations can be found to be ultra or intra vires (fall within the power delegated or not). If they are ultra vires they are beyond the power and therefore void (as if the regulations had never been made). oTests: !McEldowey v Forde (CM51): First, to determine the meaning of the words used in the Act to describe the subordinate legislation secondly, to determine the meaning of the subordinate legislation and finally to decide whether the subordinate legislation complies with that description. !Carroll v Attorney General (CM51) Step 1: Initial assumption with regulations is that nothing is wrong with it. Step 2: Construe the Act: ascertain the meaning of the empowering provision (in context, in light of the objects and scheme of the Act). oOrdinary rules of statutory interpretation. oIs it objectively (capable) or subjectively (reasonably capable) framed? !Relationship between the regulation and the regulation making power must be closer and tighter if it objectively framed then if it subjectively framed (e.g. can if he thinks fit) a little more flexible. oDoes ejusdem generis apply?
oApply any relevant presumption of interpretation (operate against reading the Act as authorising taxation, derogation of right, etc). Step 3: Ascertain the meaning of the regulation. Step 4: See if the regulation fits within the four corners of the empowering provision. Objective vs. Subjective test: Reid v Smith Empowering provision was subjectively framed. GG empowered to make regulations for anything he thinks necessary for the application of the Act (general and subjective). Regulations he made did: oProvided that where a school reached a certain size, it could cap enrolments and cancel enrolment in that school of any extra students. oEducation department could then compel that extra student to go to another school. Council for GG argued that the words which he thinks necessary he had a complete and unexaminable discretion. Justice said courts can always inquire as to whether that opinion could reasonably be applied. Applied Lipton Ltd v Forde: Test how close the relation has to be between the regulation and the regulation making power: with subjectively framed provisions it must be reasonably capable of falling within the empowering provision (reasonably capable test). oSo was this regulation for due administration for the Act? Found that No education Act had the dual purpose of requiring students to attend school, but also preserving freedom of school choice for parents. oIt was okay to cap enrolments, but not to compel the student to go to another school that the parent didnt choose. If it was objectively framed, the question would have bee: is the regulation capable: Different between objective and subjective is the addition of reasonably. Presumption is that Parliament will not authorise the executive to: Collect Taxes. Intrude on fundamental rights. Can only do so in clear and unequivocal terms.
Week 15 - 3
Other grounds of invalidity (could be consumed by general question of vires): Repugnancy (Alan Johnston Sawmilling) Uncertainty (Ministry of Transport v Alexander [1978] 1 NZLR 306) Unreasonableness (Turners and Growers v Moyle) Irrelevant Considerations, improper purpose (Alan Johnston Sawmilling) Procedural impropriety (Turners and Gowers v Moyle) Unlawful sub-delegation (F E Jackson and Co Ltd v Collector of Customs) Alan Johnston Sawmilling Subsequent to ToW South Island Maori sold most of the South Island to the Crown
or subsequent 3rd party owners. There was a dispute over the borders argued sales did not include the middle of the South Island. 1906 government enacted the South Island Landless Natives Act reservations of land transferred to Maori to provide for their support and maintenance. But bulk of land transferred was remote, inaccessible and of poor quality. Other owners of other lands are logging, indigenous timber price and value of reservation goes up. Until 1993 private owners of indigenous land could clear it; applied to SILNA landowners. 1993 Forests Act 1949 amended: A specific exemption for SILNA land from the protection act (Wild J: a Parliamentary recognition of the Crowns obligations to SILNA owners). Government dealings with SILNA landowners: oIntroduction of bill to repeal s 67A. oControlling via regulation (reg 4 under s 56) the logging on SILNA land. Wild J: the intention was to apply Part IIIA Forests Act 1949 to SILNA land i.e., effectively defeating and removing the exemption. oNegotiation directly with SILNA landowners about the reservation of some SILNA land. REGULATIONS AND ACTS INVOLVED IN HANDOUT Alan Johnston Sawmilling entered into contract with the owners of one of the SILNA blocks. Their intention is to export the logs milled. Because of regulation 4 they cannot do this. Went to court and attacked regulation 4. Claimed: oReg 4 was made for improper purpose (purpose was to remove the s 67A exemption of SILNA land). oRepugnant to the s 67A exemption. oBreached the Bill or Rights 1688 (suspension of the operation of the exemption). oMade for irrelevant considerations (improving the governments negotiating position and competitive advantage offered to SILNA landowners by the exemption). Held: (1) Repugnancy: oRegulations being secondary legislation, cannot override primary legislation. o"The rationale ... is the supremacy of Parliament. oPart IIIA "imposed a sustainable forest management regime on indigenous forest land" But From that regime Parliament expressly exempted SILNA landowners. oThe purpose of regulation 4 was to impose a sustainable management regime on SILNA lands. The executive sought to remove or defeat the exemption. (2) Bill of Rights oIn NZ in 1999, I see the relevant application of the Bill of Rights 1688 as being to prevent the Executive suspending the operation or benefit of laws passed by Parliament That, in my view, is what happened here. (3) Improper purpose/irrelevant considerations: oIf regulations are not made for the purpose authorised by the empowering statute, then they are made for an improper purpose.
oThe purpose of the Act: the control of exports of produce, as opposed to the 'manner in which that produce is produced or the Governments desire to negotiate with those who produce it oThe dominant purpose of regulation 4: sustainable forest management. This, and improving the governments negotiating position, were improper purposes.
Week 16 - 1
Material for test on 23rd of August: Focus on judicial review material, but links to other materials are obvious. Ignore Andrews material. Ignore Treaty. Ignore privity. Focus on Outlines: Executive, Courts and Other Checks on Executive power. Most relevant John Dawson material: who is cabinet, executive (conventions not important), royal prerogative, ministers and departments (as background information). Courts: checks and balances, as background information. Judicial Review of Executive Action (essential), Delegated Legislation (essential) Other checks on executive power (regulations review committee, regulations disallowance act). Parliaments Controls over the Executive Officers of Parliament CM165: extract. Describes all main officers of Parliament, everything need to know. Cheaper alternatives to Judicial Review (sometimes). Ombudsman: oComplementary to Judicial Review, but doesnt have the same sanctions. oReviews and supervises decisions of Ministers and departments in regards to releasing official information. oOmbudsmen Act 1975 lists at s 13 the Functions of the Ombudsmen (investigate decisions & recommendations relating to matters of administration and affecting anybody). S 22 sets out procedures after investigation confines grounds, says he writes a report to department, if nothing done report is sent to a higher authority. Parliamentary Commissioner for the Environment oS 16 Environment Act 1986: General reviews and investigation into matters relating to the environment. Advise appropriate authority about how better to proceed or report to the house. Other Parliamentary Controls: Aimed at Delegated Legislation: Parliamentary Scrutiny of Delegated Legislation: o(a) Publication !of all Acts and regs is required, Acts and Regs Publications Act, s 4 o(b) Review by the RRC (Regulations Review Committee) CM175-6 !Functions (Standing Order 377): " All regs stand referred. " Draft regs may be referred by the relevant Minister.
" Empowering provisions in bills. " Any matter relating to regs. " Complaints. " Notice of motions of approve regs also stand referred (SO 380). !Grounds (SO 378) " For drawing to special attention of the House " Set in clause (2) - similar to grounds a court may use to support an invalidation of a regulation. !Procedure " Complaint is heard if it is over-viewing because of a complaint, before it makes its findings, it will hear the complainant. o(c) Disallowance
Week 16 - 2
Parliamentary Scrutiny of Delegated Legislation Continued Article in CM77 by chair of reviews committee: Discusses operation of committee in reality: It is deliberately non-partisan in its approach (Parliamentary committee, not government). It reflects this in that the chair of the committee is, by convention, an opposition MP. Summarises jurisdiction. Ways to get something review: minister can refer draft regulations, by the house, by the public, all regulations once they are made. Goes over a few grounds it applies when scrutinising regulations: oIn Standing Order 378. oSome of them are similar to the questions a court asks when it is reviewing regulations (e.g. intentions of the statute under which it is made). In other respects the grounds the regulation committee applies are wider then those that a court would use. Discusses Remedies to complainants or in scrutinising all regulations: oE.g Disallowance (Regulations) Act. Regulations Disallowance Act (CM181-2) All regulations must be Tabled in the House within 16 sitting days (S 4). Then referred to regulations review committee for scrutiny under standing orders. Diagram in handout explaining the entire process. Fact the committee can use this procedure and have it dealt with within 21 days shows how powerful and important it is. Final Parliamentary Measure Example in the Misuse of Drugs Act: oDrugs are classified by legislation as class A, B or C. Penalties that attach increase as the classes change. oFor the government to be able to respond quickly to changes in Designer Drugs Parliament provided a mechanism by which changes of classification can be made by regulation. !On the other hand, classification is a matter of policy and therefore
should be in the hands of Parliament. oThe new sections have a blend of Parliamentary and Governmental procedures: !G-G in council can added substances to classes, remove them or move them between classes. !But any such order cannot come into force other then by a commencement order. " S (4)(a): Commencement orders can be made by G-G in council, but sub-s 2 says only after the order in council has been approved by resolution of the house.
Week 16 - 3
The TREATY OF WAITANGI Ward identifies a series of issues/backgrounds prior to the ToW: Increasing pressure of settlement for land. Manifested in two ways: o1. Many individual purported land sales in an uncontrolled way. o2. Activities of the NZ company: bought up land which it sold onto individual purchasers. A humanitarian drive on part of the British govt. to avoid usual pattern of colonisation (Australian organisation formed and had influence on British govt). M!ori social organisation was not nationally based. Left M!ori more open to exploitation. M!ori anxieties as to the future of M!ori (saw what happened in Australia). Many M!ori came to regard land as a marketable commodity and purported to sell blocks of land to individual settlers without regard to their kins interests in that land. Prior recognition of NZ independence and chief sovereignty in 1835. This is the background to which Hobson entered into when he was sent to NZ. Treaty: Article one: gives sovereignty to the Queen of England over NZ. The M!ori word used is Kawanatanga, which has a very different meaning and social baggage from sovereignty. Article two: full exclusive and undisturbed possession of lands and fisheries. Chiefs gives to Queen the exclusive right of pre-emption (right to be first purchaser of any land from M!ori). oWord possession in M!ori is replaced with Tino Rangatiratanga (chieftainship difference b/w being an owner and being a tenant). oLands, forests, estates and other properties In M!ori uses the word taonga (treasures) for properties: it also applies to intangible things. Accepted Taonga covers physical and metaphysical are part of the guarantee. Article Three: Gives M!ori rights of British citizens. Most argued term for lawyers is article two (article one is considered a foregone conclusions). The Treaty is an executive act, not of Parliament. Orthodox legal thinking says that article 2 fits under article 1 in a constitutional importance sense. The only way this sovereignty can change is by Parliament itself. How do we legally uphold the rights and duties in the ToW? Waitangi Tribunal. Direct Negotiations b/w M!ori and Executive. Courts. Under current constitutional arrangements in NZ the rights and duties that flow from the ToW can only be legally enforced if they have been incorporated. What is incorporation? Statutory recognition of the rights and duties, done in an Act of Parliament. A reference by Parliament saying that in the context of the particular statute with
Week 17 - 1
which you are dealing, they are legally enforceable rights relating to the Treaty. Parliament has supremacy over the executive. The ToW is an executive act and therefore obligation. Hoani Te Heuheu Tukino v Aotea District M!ori Land Board 1941 - PC The Privy Council pronounced the above principle in this case. Cannot rest a claim on the ToW, must refer the court to some statutory recognition for the right claimed by him. Treaty of Waitangi Act 1975: Parliament made on of the key incorporations of the ToW. This statute creates and empowers the Waitangi Tribunal. Functions s 5 oInquire and make recommendations on claims (ss 6) oMake recommendations (ss 8(d)) oExamine and report on proposed legislation (s 8) Jurisdiction s 6(1) oIn order to bring a claim must be M!ori. oClaim must argue the claimant is prejudicially effected. !Prejudicial effect cause by s (6(1)(a)-(d) !Act (Parliament). !Regulation (Local authorities). !Policy or practice (crown). !Act done or omitted (crown). oMust be inconsistent with the principles of the ToW. oClaim must be of something after 1840. S 6(2) All claims inquired into except s6(7)-(12) and s 7. oS 7: No claims trivial or vexatious. oOther exclusions are because settlements that have been reached. S 6(3) if claim = well-founded " may recommend action to compensate / remove prejudice/ prevent future prejudice. S 6(4)(a) oRecommendations cannot include recommendations for the return of private land. In s 6 and s 8 the substantive issue is consistency with ToW principles. Although s 5(2) the Tribunal uses the two official texts of the ToW, instead of measuring Acts, Regulations, Policies or Actives against the text itself, its job is to derive ToW principles and to measures them against the principles of the ToW. The Act of 1975 does not define the principles of the treaty. None of the other pieces of legislation incorporate treaty rights define that phrase either. For lawyers case law helps understand the principles of the treaty. Tribunal has devised its own set of treaty principles. Tend to accord with the courts findings (courts also look to the tribunal to interpret). Orakei Report Bastion point in Auckland. Much of the land acquired compulsorily by the Crown, but then not used in the way they claimed it would.
Tribunal agreed the land was taken against Treaty principles. In ascertaining the treaty principles: oSaid that in interpretation they looked at the spirit, surrounding circumstances and objects of the treaty. oIn disputes between English and M!ori words, the international rule on contra proferentem (against the party that offered). The M!ori meaning should prevail. oAvoid technical rules, go with broad principles. Oarake report continued: Rangatiratanga full authority; related to mana; more then mere possession, also manage and control according to cultural preferences. Taonga not just property and possessions. Includes metaphysical. Kawanatanga Not the same as supreme sovereignty as well as the English cultural, and legal assumptions. Fact of the matter is that this is not what was ceded in practice. Article II: oRetention of land for so long as desired. oDuty of active protection. oThe right of pre-emption, right to be first owner after M!ori of any land they wished to transfer, brought with it a reciprocal duty Crown ensure M!ori retain sufficient land to meet their needs. Generally: oTreaty is more than an affirmation of existing rights. A direction for future growth and development. oLeading principle of partnership: two parties must act towards each other with utmost good faith. CM52: ToW Settlement of Claims Bill Proposes a cut-off date for claims, tribunal findings and inquires and would require the Crown to respond to claims within 5 years. Shows the political argument that there should be a time-frame of claims and there should be an end to claims. Would represent a philosophical stand that the ToW is not a beginning and a path for future growth. ToW is therefore a backward looking document. The Treaty and the Courts NZ M!ori Council v Attorney General (the Lands case) First in a series of judicial decisions about the State-Owned Enterprises Act 1986, section 9 the incorporating section. oSOE enacted to provide the institutionalised framework and give necessary powers for process of reform begun by the 4th labour government in 1984. Thrust of reform was a rolling back of the state reducing the involvement of the state in commercial activities and to reduce the asset holding of the state. oSOE is a half-way house between private and public sector. Ministers own the shares in SOEs and Minister of SOEs has the ability to direct SOEs to do
Week 17 - 2
certain things. BUT not government departments: !S4: Principal objective to be successful business. oWhile it was still a bill certain interest groups (including the Waitangi Tribunal itself) thought about repercussions of transferring Crown owned assets to corporate, who can later transfer them further to unknown 3rd parties. !Concern was the assets were, or could be, the subject of claims before the Waitangi tribunal. Before the tribunal could complete its investigations the Crown would have divested itself from the asset and it would be of no use in a settlement. !Main issue was Land it was an asset in which M!ori had a significant interest and about which there were many tribunal claims. oResult was 2 extra sections to the bill: !Section 9: Treaty of Waitangi Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the ToW. !Section 27: Land transferred to a SOE and it is already the subject of a tribunal claim made before the Act came into force then rest of section kicks in (protective mechanisms to protect against alienation of the assets). Claim in case was (CM58L): Unless restrained by court, the Crown was likely to use power to transfer assets which were the subject of possible current and future claims in breach of s 9. Issue: meaning of effect of s 9 and what is the relationship between s 9 and 27 (did section 9 mean more then was said in s 27). oCrown argued: section 27 is a code all the Act says about land regarding to a treaty claim. Section 9 may apply to other assets. oNZMC: Section 9 is where you start and s 27 is for slip-ups. CoA Concluded: oS 9 should not be read down according to Crowns suggestion because: !Its location in the SOE Act (Part 1 of Act tends to be principles and purpose, then later the smaller details). !Wording: Nothing in this Act Wide, commanding. !Land is the most important asset to M!ori and others, and Parliament recognises this by giving it an added section. Saying this doesnt apply to such a key asset is not realistic. Lands case continued CoA said that if you can read s 27 and s 9 together and make sense of it, then you should. S 27 provided a specific machinery in its own area (very limited area), however s 9 applied to everything else. CM61: Cooke P refers to Hansard: In contrast with historical stand, courts are willing in some cases of statutory interpretation to use hansard. oCooke says he should look at hansard (refers to case). Not to do so in a case of such national importance is pedantic and irresponsible. However, he says hansard provides no significant help: concludes MPs who took part in the debate thought the Act would have the same use the Crown now thinks it has. Lack of debate on s 9 shows they didnt understand it either.
Week 17 - 3
The effect of s 9 on transfers of land that fall beyond s 27. Would a land transfer that is not inclusive in s 27 breach s 9? Meaning of the phrase "The meaning of the principles of the ToW: oAll judges offer general comments on the approach taking to interpreting the ToW and ascertaining what its principles are. !Cooke P: Take a broad and flexible approach, because the ToW was written and signed in 1840 but is applied to modern day circumstances. Treaty has to be seen as an embryo. !Somers J: Principles today are the same as the principles in 1840. What has changed are the circumstances to which they are to apply. !All the judges place great weight on what the Waitangi Tribunal said about the meaning of the ToW and its principles. Principles extracted are (quotes in handout): oIdea of basic exchange: !Cooke P: CM64 Queen govern and M!ori subjects. In return their chiefs and possessions were to be protected. !Richardson J: CM 76 - A solemn compact Crown sought legitimacy for its acquisition of sovereignty. oPartnership: (basic principle from which the others flow) !Cooke P: CM64 The treaty signified a partnership b/w the races utmost good faith is the characteristic obligation of partnership. !Richardson J: CM76 The basis for the compact requires each party to act reasonably and in good faith towards the other. oActive Protection: !Cooke P: CM65 The duty of the Crown is not merely passive but extends to active protection of M!ori people in the use of their lands and waters to the fullest extent [reasonably] practicable oConsultation: !Richardson J: CM78 - the responsibilityto act in good faith and reasonably puts the onus on the Crown to make an informed decision in many cases that will require some consolation. In some extensive consultation will be necessary. Actual duty to be fully informed. !Somers J: CM85 - Good faith does not require consultation although it is an obvious way of demonstrating its existence. !Cooke J: CM65 - rejecting an unqualified duty of consolation, but the issues in this case involve such a major change that the Crown should have taken the M!ori race into its confidence. Consultation was required in these circumstances. oRemedies for past breaches: !Important issue because s 9 may breach such a duty if it exists. !Cooke J: If Tribunal recommends redress a reasonable treaty partner should give redress unless he has very good reasons not to. !Somers J: CM85. All the above are things the Crown should be doing to fulfil their side of the bargain. The M!ori also have duties from the treaty must act in good faith. But also: oThe powers of government:
!Cooke P: The principles of the treaty do not authorise unreasonable restrictions on the right of a duly elected government to follow its chosen policy. Indeed to try to shackle the Government unreasonably would itself be inconsistent with those principles. The question was then whether the policy pursued by the Crown was the Crown acting, or was going to act in breach of s 9 (in other words of these principles) unanimously yes. CM66R: Formal Orders: o1. Declaration that to transfer the assets without putting in place a system which would first consider if it would breach s 9, was unlawful. Directions on how to proceed at arriving at the mechanism: !Prepare a scheme. !Submit to M!ori Council for agreement or comment. !Bring it to CoA for examination. !Meanwhile stop dont go ahead with transfers. ![Government thought this was too far, so Government negotiated with the M!ori Council and then enacted legislation in Parliament to put the system into effect The Claw-Back provisions]. Parliaments response: Amendments to the ToW Act (CM20-24). Amendments to the SOE Act (S 27 and on). These make up the Claw-Back regieme. [Flow chart explaining in handout] Enables the Crown to claw-back land from the SOE. Put on land a clause: if Tribunal resolves land should go back, it can be retrieved from SOE and given back. Waitangi must not consider what the SOE has done with the land. S 27B tribunals recommendations are binding Land SHALL be resumed and returned!
Week 18 - 2 to 19 - 1 = official information Week 19 - 2

Treaty of Waitangi continued More of these kinds of cases proceeded. Broadcasting Assets Case NZPC 1994 CM102 Transfer of assets from the old broadcasting corporation to two new SOEs. Issue was not the assets being transferred, but rather what could be done with those assets in terms of promoting and protecting M!ori language. oTaonga here is something that is going to be affected by the transfer (the M!ori language). Argued: new operators unlikely to use the assets in a way that promotes M!ori language on TV and radio breach of s 9 of the SOEs Act. Privy Council:
Accepted that M!ori language is a taonga of M!ori. On the principles of the ToW made some points: (CM104L): oThe principles: Underlying mutual obligations and responsibilities which the treaty places on the parties include, but are not confined to, the express terms of the treaty. oForemost among those principles: !Obligations of [actively] protecting and preserving M!ori property, including language, in return for recognition as government by M!ori. (3 ideas) oUse of the word guarantee recognises the solemn nature of it, but it does not make it unqualified or unrestricted (inconsistent with Crowns other responsibilities). oCrown must take action that is reasonable in the prevailing circumstances. !E.g. in a recession the Crown would not be expected to engage in wide expenditure. If the Taonga is in a volnurable state, the Crown needs to consider what is reasonable in the circumstances. Crown accepts all the above. But argued it was already doing everything reasonable, and that transferring the assets to the SOEs would not be unreasonable or inconsistent with duty to protect M!ori language. Issue: would the transfer impaired to a material extent the Crowns abilities to comply with its obligations? oTransfer would not materially affect the Crowns obligation. oCooke J dissenting in the CoA thought it would. oPC is prepared to take the law at face value; Cooke J is much more concerned with what he thinks is actually likely to happen in reality under those statutory provisions. PC looks under the Act and asks what is the Crown going to be able to do, under the Act, to ensure its obligation to do what is reasonable to protect Te Reo will be met: oConcludes from all the provisions that after the transfer the Crown will be able to maintain a substantial degree of control over the way in which the assets are controlled. oNot under direct control but okay, because (1) unlikely the SOE would seek to frustrate Crown and (2) Crown could legislate to make SOE put more M!ori in. !Argued the PC was wrong in the frustration issue and that it didnt understand anything about what was going on in NZ. !Hindsight shows that SOEs dont always adhere to Ministers. oAccepted it would mean M!ori would have a more difficult time in creating change, but thats okay b/c if Parliament wanted to, it could. Cooke Js Dissent: Thinks that b/c of the history of events up to the CoA case, and from what he understood from the reason of the corporatisation process and what the Crown was going to do it would impaired the Crown to accept its treaty obligations. oPurpose of SOEs: get revenue, do what market wants. oCrown policy is to transfer irrevocably. oTransfer made with no policies in place to protect te reo.
Seven points: oTe reo is dying. oThe trend may be irreversible, but use by youth is significant. oTreaty principles require 'active and positive steps to redress past breaches'. oRejects the distinction b/w 'preserving capacity' and 'usin git. The proposed transfer would limit in a practical way the Crowns capacity. oAt present, no Maori language on TV in prime time. oBut Broadcasting Corp is under statutory duty to comply with Ministerial directions. oS 7 SOE Act No evidence that anything of this kind is contemplated. oPresent policy is inconsistent, and there is a more serious and basic inconsistency in the proposed transfer in that the right of Parliament and the Government to control in any way the language content of programmes is relinquished. Privy Council: Makes two points in reply to Cooke J: oIf assets are substituteable, s 9 is likely to apply (majority in CA said that in comparison to land, broadcasting rights were substituteable). oNo doubt the Crown will use its statutory powers sparingly, but If this is necessary, it would be fully justified because of what would be at stake. oThe Crowns financial commitments are unaffected by the transfer.
Week 19 - 3
CM110: Private Members Bill to delete and remove from all enactments all inclusions of ToW in stautes. Point to make is: Only Parliament can get the ToW and its principles out of the courts. Parliament made no definition of the principles of the ToW. Courts have decided what they mean (most liberal was in the lands case also created limits). If the bill is accepted: wide reaching outcomes (render Witangi tribunal redundant? And change major bases of other legislations). Indirect/Inferred Incorporation NZ M!ori Council - Lands Case CM59L: Accepted argument of NZ M!ori Council that, when interpreting ambiguous legislation, courts will not ascribe to Parliament an intention to permit conduct inconsistent with principles of the Treaty (if in doubt didnt want to breach). Huakina Development Trust CM111 Water and soil conservation act put in place a scheme for water rights to use natural water. Issue was: whether in allocating water rights, regional water boards were required to consider the treaty and M!ori spiritual values in water. Lower M!ori court disallowed granting of water license to put effluent directly into water. oSaid should consider the Treaty principles, that required them to protect the M!ori belief not to put effluent into water (protect water). No mention of the Treaty, its principles or M!ori values in the Water and Soil Conservation Act did not spell out any relevant considerations.
Because Act was silent on the relevant consideration the judge went to extrinsic aids. Took into account: oTreaty itself (part of the fabric of NZ society). oTreaty of Waitangi Act (recognition of the Treatys status in NZ society). oReports of the Waitangi Tribunal (explained what Treaty meant and what M!ori spiritual values in water were). oTown and Country Planning Act (went together with the Water and Conservation Act planning for city and planning for land there he found an express reference to M!ori values). oInternational instruments (in general protect and maintain cultural rights). Held: principles of the treaty and the values that the local M!ori had in the water were relevant considerations in the process of determining applications for water rights. Unlikely able to come to this conclusion if there was a list of relevant considerations (mention of one is exclusion of other). Nagi Tahu M!ori Trust Board v DG Conservation CA (all agreed) Whale Watching Case Application to take marine mammals according to the Marine Mammals Protection Act. Reason was the applicants wanted to whale watch at Kaikora. At the time there already was a whale watching operation in Kaikora, by the Nagi Tahu. Decision must be made under the Act, which had regulations. Nowhere was a reference to ToW. Nagi Tahu argued granting another whale authorisation for the area would be inconsistent with the ToW and the Nagi Tahu rights there. Issue: are principles relevant? Act was administered and implemented by department of conversation, which is a government department empowered under the Conservation Act it says do work also under other conservative legislation (MMP Act is one of those). oS 4 Conservation Act: to be interpreted and applied in order to give effect to principles of ToW. Held: Under MMP Act is bound by principles of Treaty b/c: oSections like S 4 should not be narrowly construed. oMMP and Conservation Act linked. oNothing in MMP to exclude ToW principles. Conclusion: although commercial whale watching was not a traditional activity of M!ori, Nagi Tahu did have a general interest in those waters and whale watching was linked to Taonga and fisheries in such a way that a reasonable treaty partner would recognise such a right. oConsulted with Nagi Tahu before deciding, but court found it was a mere formality not just about consultation, but about active protection. oIn this context a reasonable degree of preference in activity of whale watching at Kaikora.
Week 20 - 1
Fisheries Litigation and Settlement M!ori fishing rights protected in legislation since 1877. 1983, s 88(2) Nothing in this Act shall affect any M!ori fishing rights. oUntil Te Weehis case the s 88 protection didnt amount to much in practice.
Courts had taken two particular issues with s 88(2) said fishing rights were attached to ownership of the land adjacent. oRead to mean any rights protected elsewhere in legislation. In Te Weehi: held that fishing rights did not need to be attached to ownership of land, and s 88(2) was to be read to mean what was written. Found that Te Weehis non-commercial, non-exclusive fishing right protected him for prosecution for taking undersized Pawa he was exercising a M!ori fishing right. This decision gave legal foundation to debate on fishing rights that arose when govt restructured fishing industry in 1986: introduced Quota Management System (QMS) involves the allocation to fishers of fishing quotas (kind of proprietary right asset). At the time Waitangi Tribunal was considering a case in regards to access to the Muriwhenua fisheries breached the rights of the tribe under the treaty. oTribunal said it was concerned about the allocation of quota in regards to such claims, current and future. oIf quotas were no longer Crown property, then the remedial opportunities of the Crown would be severely limited. oCrown refused to talk to Muriwhenua about fishing rights after the tribunal approved its case. oTook case to court. Main proceedings were for judicial review for Crowns decision to allocate quota on the grounds that it constituted a breach of s 88(2) similar to NZ M!ori Council Lands Case but it never goes to court. Only interlocutory (ask the court side answers in order for everybody to be ready to make arguments on main proceedings) and interim (used to preserve position of parties until main proceeding is heard) decisions were made along the way. Te Runga o Muriwhenua CM121: Discussion by Reid J on interim judgements. In order to get interim orders the judge has to decide whether you have a chance of winning the main proceedings. Made important points (although they are interim): oStrong case that before 1840 M!ori had a highly developed and controlled fishery over the whole coast of NZ. oHad a commercial element. oRights were not given away or waived. oLegislation did not take them away. oM!ori rights have not been taken into account. What has been done what will be done in the continuation of the QMS is contrary to the Act in that it will affect M!ori fishing rights. oJoint working group - separate reports. Found that on a preliminary basis there was a breach of s 88(2). Granted interim orders. Then: The two parties created a joint working group, but were so far apart they issued two separate reports. Only thing that kept the Crown interested in negotiating was the release of the final Muriwhenua fishing report by the Waitangi Tribunal: oMade it clear the ToW guaranteed the Crown would protect the Muriwhenua fishing rights. The Crown failed to do so, so now lay in breach of its treaty
duties. Then reached initial agreement, but Crown still unhappy with results introduced the M!ori Fisheries Bill to Parliament: oM!ori would manage recreational fisheries and would be able to earn up to 50% of quota (2.5% annually over 20 years had to actually fish quota every year). oThought to repeal s 88(2). M!ori party went to courts in regards to the M!ori Fisheries Bill: Were going to sue for trespass, breach of fiduciary duties and negligence. M!ori fisheries Bill referred back. Repeal of s 88(2). Decided M!ori would get 10% of total allowable catch to the M!ori Fisheries Commission. Interlocutory issues: Court said it will look at everything, and the Crown may end up in a worse position for negotiating then it is at the moment. Interlocutory decisions: What is the authority of the Waitangi Tribunal findings in the ordinary courts? oHeld: Rejected: Tribunal is not a court; its findings may be strong evidence, but do not have legal effect. Section 5(2) of ToW Act is limited by the phrase for the purposes of this Act. oHeld: observations not directed to claw-back regime (in regard of Land) lecturer doubtful if this would stop courts. oHeld: Tribunal reports are admissible. Crown went back to negotiations Repealed the M!ori Fisheries Act. A private fishing company came up for sale. It was the owner of 26% of the quota the government had been allocating. Crown bought back the quota at a good price. Settled dispute with M!ori with this. The Sealord Deal: oJoint venture to buy Sealord Products. oCrown to pay $150m for the development and involvement of M!ori in the industry. oCrown to legislate to ensure 20% of all future quota to go to M!ori (ToW Fisheries Commission). oCrown to authorise regulations for customary food gathering. oFull and final settlement of all fishing claims.
Week 20 - 2
Fisheries Litigation & Settlement - continued Deed of settlement was challenged in court: Te Runanga o Wharekauri Rekohu Appellants were opposed to the deed. The Crown applied to strike out the case. Main criticism: provided more for an investment interest than actual M!ori participation in fishing. Also deed of settlement purported to be final settlement of all M!ori claims, and to bind all M!ori.
Held: Making a declaration on that point inappropriate, because all parties agreed there was no intent in the settlement to bind all M!ori no intention to bind nonsignatories. oCourt is reluctant to make a declaration because this is a political issue, and therefore made no declaration on it. Crown agreed to introduce legislation to do certain things what is the effect of those promises? Are they enforceable in court? Held: No. Court will not enforce that kind of promise. oEstablished principle of non-intereference by courts in parliamentary proceedings (BoR1688). This applies so as to require the courts to refrain from prohibiting a Minister from introducing a Bill. Closely allied is the conclusion that the Courts would not compel a Minister to present a measure to a representative assembly for consideration. Surely in a democracy it would be quite wrong and almost inconceivable for the Courts to attempt to dictate what should be placed before Parliament. Obiter: Court observed the deed does not the Treaty itself. A nation cannot case adrift from its own foundations. Deed put into effect in the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. Interpret Act to best give effect to agreements in the deed (s3). All M!ori claims in regards to fisheries are finally settled. Obligations of Crown are fulfilled, satisfied and discharged no court or tribunal has validity to inquire into such claims. More detail in handout. Questions: If deed does not bind non-signatories and according to s3 the Act is to be read in a way to further the deed does the Act bind non-signatories? oNo clear answer. Never questioned in court. How full and final is full and final? oActs purports to set out a full and final settlement, but its just an Act. No question in exam on this issue. Notes: Wheeler will not be in the final exam. Question with treaty issues involved.
Week 18 - 1 - Paul Roth

Official Information Access to disclosure of government information Access during litigation: In civil law the burden of proof is always generally on the plaintiff. This burden is discharged with facts and law. Facts are proved with evidence. Documents are obtained through a process called discovery: one party applies to the other, who then prepares a list of documents relevant to the case and vice versa. These documents are verified: lawyers will swear an affidavit. Discovery then allows both sides to apply to receive these documents through the courts. Interrogatories then apply and one side may ask the other questions on the documents. The government is subject to discovery and interrogatories just like any other person. Conventionally there is no fishing during this process case must be submitted before this process. You can amend statements during this process. Privilege: may apply to certain documents, and then you dont have to give it to the other side. oGovernment may make a claim based on public interest immunity: exclusion rule of evidence that applies to the government. Freedom of Information Legislation: You can use this legislation before filing proceedings. Therefore you can go fishing very useful when going to public law cases: oOfficial Information Act 1982 oL.G.O.I.M. Act 1987 oPrivacy Act 1993: all information about individuals held by the private or public sector. Can collect information about yourself that may be relevant to a law suite in both sectors. Useful for testing the water before filing proceedings (see if there is a case save money if not). Previous legislation was the Secret Information Act: there everything was secret, unless good reason otherwise. In the O.I. Act everything ought to be made public, unless there is a good reason not to. Key feature is the promotion of government accountability. S 5 has the presumption built into it. Part 1 provides good reasons for withholding information (not categories, but interests). Part 3 gives the right to access of information of government processes (important for judicial review!).
Week 18 - 2 - Paul Roth

Freedom of information continued
Structure of Official Information Act: Information to which there is a right of Process oPart I and II !Good reason for withholding info: ss 6, 7, 9, 10, 18. Information to which there is a right of Access oPart III !S 20 Directory !S 21 Rules !S 23 Reasons (for decisions made about you) oPart IV !Personal Information s 24 (corporate persons only) good reasons for withholding s 27. Private people can get information about themselves under the Privacy Act. What is official information: Information held by public sector organisations that is listed in either the IO Act or the Ombudsmen Act. Not limited to documents and recorded information: includes what is in an officials mind to discourage officials from not writing things down. Process for consideration: Chapter from the cabinet office manual - CM207. Handout. Request must be reasonable; get within a limit of 20 working days (allowed an extension in some cases). Allowed to charge a reasonable charge for Process information (Access information free). Mode of Access S 16(2) the way preferred by the person requesting it (a few exceptions). Conclusive reasons for withholding if likely to do bad things to NZ list in S 6. S 9 other reasons for withholding information public interest balancing act. Ombudsmen recommendations must be complied with within 21 days, unless the GG in council overrides them. Privacy Act Deals with natural people, opposed to corporate people. Similar grounds for withholding. Instead of ombudsmen investigating, the privacy commissioner investigates. His recommendation may cause the human rights tribunal into action. Damage can be awarded for a breach of the Privacy Act relating to them (highest award $20,000).
Week 18 - 3 - Privacy Commissioner

Role of Privacy Commissioner Acts of an independent arbitrator of disputes in regards to release of private
information. Education - Place to go to in order to learn obligations and rights (in regards to information and collection of it). Look into whether legislation affects privacy or not. Office is an independent Crown entity unrelated to the government of the day. Does not have a veto right, but can make strong statements in Parliament. Commissioner gives advice to other agencies in implementing new policies. Monitor use of data matching databases. Tie in with the ombudsman in different respects.
Week 19 - 1 - Assistant Ombudsmen

Office of the Ombudsmen Receive in confidence information about wrongs in different places, mainly government and civil services (whistle blowers are protected thus from defamation). General investigation work: Investigate all offices of government and civil services. Not only on illegal issues, also about legal but unfair/unsomething situations. Not investigations about personal lives/individuals only investigations in the public world. Ombudsmen Removing an ombudsmen from duty is similar to firing a judge. Effectively by resolution of Parliament. 5 years in one term, and can be fore no more then 2 terms. Who can be investigated? Back of Act has a list. What cannot be investigated? oExamples: workings of judicial offices; activities of private individuals; private companies (but can SOEs). oDont investigate when people have an adequate remedy. oMinister of crowns decisions (but can investigate the pathway to the decision). Complaints to Ombudsmen: Must be in writing. Doesnt matter how it looks. No requirements, only that complaint can be understood. Must affect plaintiff personally. Investigation work: No right for hearings. Only paper and phone. Interview at times when it is necessary. Results: Findings are not binding. But effectively all recommendations are followed in some way. Official Information Legislation: Official information concerns information held by organisations listed on the ombudsman, official information and local government official information and
meetings Acts. Doesnt matter in what form the information is. Oral request from relevant organisation is enough (written recommended). Reasonably concise. Response time is within 21 days. Not personal information. That is deal with by the Privacy Commission. Fundamental Principle: oSet out in s 5 of the Act. oConclusive reasons: if organisation has goods reasons in terms of s 6. Do not have to assess public interest. oDefeasable good reasons: s 9. Good reasons listed.
Week 21 - 1
ANDREW GEDDIS Parliamentary Privilege Jennings v Buchanan PC - 1998: Free speech right BoR 1688, Article 9. oDuring Parliamentary debate Jennings said some things about Buchanan, a public servant, saying he abused his position. We dont know if true of false. oSaid this during Parliamentary debate, which cannot be questioned. Afterwards he was asked whether he stands by his words, and he said I do no resile from what said in Parliament an affirmation. oSued on basis of affirmation outside Parliament. Jennings argued the affirmation makes no sense without investigating what was actually said in Parliament. oPrivy Council: Privilege does not cover affirmation. Developments since Jennings v Buchanan: Parliaments Privilege Committee considered the matter. Concluded the PCs decision was not desirable: o1. Effectively the PCs decision involved the courts reviewing what was being said in Parliament. o2. Hampered the ability of MPs doing their work in the public. Would be too scared of saying anything in Parliament in case they would be tried later on the base on anything they may say in regard. Recommended: Legislature Act 1908 be amended to provide that no person may incur civil or criminal liability for anything said outside Parliament affirming or referring to it, where the words said would not have that affect on their own without referring to what said in Parliament amend the law to make Jennings v Buchanan redundant. Parliament voted to accept the decision (all parties bar NZ First), but it was dissolved before the due process was run. Next government is likely to introduce this recommendation. Issues with recommendation: Opinion by Ted Thomas: o1. Basic issue is one of law. Its a legal question whether Parliamentary privilege covers this or not. Courts exist to resolve questions of law. o2. Our highest court stated Parliamentary Privilege does not cover affirmation constitutionally improper for Parliament to impose its preferred reading of the law. o3. Parliament is too self interested in this area. Free Speech applies to anyone taking part in Parliamentary proceedings, but MPs benefit from it the most should not be judging your own case. Is Ted Thomas right? o1. Parliament also decides matters of law. Every time Parliament legislates or doesnt legislate, thats what its doing. Parliament often legislates to undo or amend judicial decisions. o2. Large body people saying the PC got it wrong. How else could you change the law either by Parliament or waiting for another defendant to take it all the way to the Supreme Court. o3. The body in the best position to decide the decision are the MPs themselves
the ones who feel its effect and have to work under it. o4. The select committee process before passing the law will give the public an opportunity to submit their opinions on the matter. MPs that vote for it will later be accountable for voting for it. RESPECTIVE ROLE OF THE COURTS AND PARLIAMENT AS ARBITRATORS OF INDIVIDUAL RIGHTS In NZ its a fact Parliament is supreme in this, and every other matter. Parliament is responsive to the majoritys concerns. What about the single individual or the minority. This majority tyranny is why Parliament is sometimes portrayed as courts. Courts are not influenced by the majority, and they are more objective. Perhaps the Courts should make the decision, because Parliament cannot be trusted to uphold minority rights. This is at the heart of Ted Thomas arguments. But why should judges be trusted more then people actually elected.
Week 21 - 2
If Parliament is sovereign and the supreme law-maker, that is a lot of power to source in one institution 61 MPs in the house can enact any act, and also control the government. It can literally enforce and force the laws they themselves make. The checks electoral democracy arent always enough to protect individuals or groups. The institution that takes on the role of protecting the weak and the minorities is the courts. oCourts do this as expositors of the law. When they do this, it is increasingly argued the courts should take particular attention to the rights of individuals and attempts to reach the legal answer that upholds those rights. oCourts are not subjected to the majoritys interest, as Parliament is underlying principle that judges are better people than politician. This principal takes root in NZ through the NZ BoRA 1990: Contains a set of instructions to different parts of government and public bodies, as to what to have in mind when carrying out their actions. Lord Cooke and Fundamental Rights In a series of cases he suggested it is arguable that some common law rights go so deep that even Parliament cannot be accepted by the courts to destroy them. Lord Cooke is saying there may be some statutes that Parliament passes that may so infringe on common law rights that the courts will refuse to accept it as law. Lord Cooke says such grounds are floating around in the common law. Points to some examples: oRight to go to court to have legal rights determined. oRight to be told what youve been accused of and right to be heard are fundamental. oLiteral compulsion to answer questions by torture. Problems:
Kirby J (Australias High Court): Considers Cookes arguments and disagrees because: o1. Not much other judicial support. o2. Democratic mandate no one elected judge, not accountable to public. o3. Dont know exactly what the fundamental rights are. o4. Question whether a right infringed is a controversial matter and not very clear. Legal status of the fundamental rights is vague. Shaw v Commissioner of IRD recognises this is an argument, but point out those are theoretical arguments.
Week 21 - 3
Why not have the BoRA a supreme law of NZ: Judges would have the supreme decision as to what policies apply and which dont. Would continue to bind future generations. Not a good idea, hard to charge, circumstances may change. Thus it was not made a supreme law: As enacted it is an ordinary act of Parliament. No special procedures to change/ abolish. Doesnt give courts right to overturn/refuse to apply legislation (s 4) if it is inconsistent. oTherefore actually ranks below any other legislation. Any act can trump it. oBut it does have legal effects on the execution of power. Question to ask is not what is the legal effect of it, but rather what the various effects are on different parts of government. Overview of Legislation: Divided into three parts: o1. General provisions. o2. Civil/political rights. o3. Miscellaneous. Part II (ss8-27): oList of specific individual rights that every individual is said to have. oSix groups: (1) life and security of person (2) democratic/civil rights (3) nondiscrimination/minority rights (4) search/seizure/detention rights (5) criminal procedure rights (6) access to justice rights. Where do these rights come from? oSection 2: These are not new rights, they are rights that existed and merely recognised. oUnderlying is a moral duty by the state to the citizens. Part III: oS28: just because an existing right is not written, does not affect its continuance effect (not exhaustive list). NZ BoRA effect on Parliament: S 3(a) states the NZ BoRA applies to Acts done by the legislative branch of government when it acts, including when it passes legislation. S 4 makes it clear a court cannot refuse to recognise any Act that breaches the BoRA.
Contradiction resolved by s 7: process of BoRA vetting (CM39-44) oWhen legislation is introduced into the house, it goes through this process. Purpose is to measure the contents against the provisions of the BoRA. oResults are given to the AG, and if it shows the proposed bill might infringe on the BoRA than AG has obligations: to bring to attention of HoR anything that appears to infringe with rights in BoRA. oHoR can then do whatever it wishes. If Parliament decides to pass the bill, it is valid law. Vetting process: oCarried out either by department in charge of bill or the Crown law office (all internal). oProcess has two steps: !1. Whether any section of the bill is a prima facie infringement of one of the specific rights in Part II of BoRA. Just because one of the rights is infringed on, does not mean the NZ BoRA itself has been breach. !2. Is the infringement on the specific right a reasonable limit prescribed by law that can exist in a democratic society (section 5). " Rights in Part II expressed in absolute terms. Individual rights always require some balancing against rights of others/public good. " In brief test requires two steps (1) objective of limit or infringement, is it important enough (2) what are the means being used to achieve, are they rationally connected to objective and proportionate to it.
Week 22 - 1
The executive/public actors and the NZ BoRA NZ BoRA says rights may only be infringed if justified by s 5 legal standards the executive must follow, as a matter of law. If these bodies act in a fashion which breaches that cannot be justified under s 5, they have acted unlawfully. Section 3: Applies to acts done by the administrative branch of government. oS3(b): Imposes NZ BoRA obligations only in respect of acts done by public power, functions or duty (not is the body, but rather what it is doing); Requires a distinction between public acts and private acts (question of policy, not law). oRansfield Case S 3(b) application !Plaintiffs were cranks who repeatedly rang back talk-back radio stations. The radio eventually banned them for life from talk-back radio. !Represented themselves and alleged a breach of ToW and various 19th century constitution Acts. Defendants applied for a strike out. !Issues: (1) was there a statutory duty to let the defendants talk on talk-back radio: " No. Nothing in statute book. !(2) was banning them a breach of the NZ BoRA? " Mainly deals with the threshold of whether the situation falls under
the case. Even if s 3(b) applies to the defendants, its an additional question whether it was actually breached. If it did, would it be justified under s 5. " Court does say that s 5 is a balancing Act between the plaintiffs right to speak and the radio stations right to edit its own material. !Courts finds the radios actions are not covered by s 3(b). !Three elements to s 3(b): " 1. The act in question must occur in the performance of a power, function or duty by that body. " 2. Function, power or duty is conferred by or pursuant to law. " 3. Which is public. !First two steps were met in this case (many acts fit into these two elements). !Issue: is its nature public? " A question of policy should you, as a matter of law, have to consider your actions and their impact on other people. " Anderson J runs through NZ cases. Summarises at para69: sets out a list of factors. " Points to emphasise: " C. test of whether some act is a public function is not necessarily the equivalent to whether the body would be amendable to review under the judicature amendment act. " States the test, under s 3(b), is fact dependant. " A flexible and generous approach is to be taken. !Decided the radio show was not exercising a public function failed test 3: " Radio station was a private commercial operator. " No public funding for their activities. " No government supervision of talk-back programs. " Didnt fulfil any government function. The issue is problematic when a direct statutory authorisation exists that the executive branch or a public actor breaches the BoRA. oParliaments statutes require someone to put it into work. In general statutes are instruction to others (usually executive) how to act. oCourts have to answer several questions: !1. Does the statute actually authorise to act in a manner breaching the BoRA? !2. To what extent does the statute extent authorise? oStatutory interpretation under the act.
Week 22 - 2
When a bill, on its face, infringes Part II of the NZ BoRA how should courts approach such an enactment? The role of the court as an institution to oversee individual rights compared to their role to uphold the bills enacted by Parliament.
CM27: NZ BoRA: oS4: a court cannot hold any provision in any enactment, whenever passed, invalid by reason that it is inconsistent with the BoRA affirms final Parliament sovereignty. oS5: subject to s4, rights and freedoms in BoRA, may be subject only to limitations justified in a democratic society balancing provision, establishes whether an act that infringes a Part II right actually infringes the BoRA. oS6: when an enactment can be given, then that meaning shall be preferred interpretation provisions to the courts. The interaction of these sections are an ongoing process: oInitially the courts took a simplified view: Re Bennett !Prisoner asked to be enrolled on the voting roll. However, the electoral act specifically states that prisoners are prohibited from enrolling to vote. His request was refused. Bennat went to court seeking action declared unlawful. Alleged the refusal was an infringement of his electoral right under s12 of the NZ BoRA. !HC judge held that under the interpreted section, the provision which prohibits prisoners from voting, could only be read in one way. Therefore, under s4 the court has to apply this provision as law, irrespective whether its consistent or not. !Intially: Under Re Bennat the order of consideration was first to look at the relevant statutory provision under s6 (if you can read as consistent, then adopt it). If not, s4 says you have to apply provision. oUsing this approach, how does a court decide under s6 whether a section can be given a meaning consistent? CoA in Ministry of Transport v Noort and then with Moonen. Moonen - CA Child pornogrpher said his freedom of expression rights were taken away because his child pornography was against the BoRA. Issue was whether the sensor was acting lawfully when deciding the videos were objectionable. Interpreted the relevant act in the light of the NZ BoRA that discussion is in materials (mainly para 17-18). Tipping Js approach is not statute. He notes other approaches will probably lead to the same result his approach is just a suggestion. What hes saying is this: o1. Where the courts are considering the relationship between a statutory provision and the NZ BoRA is whether it infringes any specific right under Part II? o2. If it does, then the courts asks whether the advocated meaning (one put forward by the person who says provision authorises them to infringe someone else rights) a justifiable meaning under s5? !Is it a reasonable limit, justified by law, in a free and democratic society. !Para18: First identify the objective of the provision. Importance of that objective must be assessed and the way in which it is achieved must be proportionate to the objective as little interference as possible with the right involved (widely accepted interpretation).
o3. If the court concludes it is not a justified limitation, then it is inconsistent with the NZ BoRA. In that case, the court under s6 must look to see whether it can give an alternative meaning, not inconsistent with the NZ BoRA. !If it can, it shall give that meaning. o4. If the court cannot give the provision any alternative meaning, then the court must apply that provision under s4. Note: o1. The essential nature of the courts role when it is assessing s5: of necessity value judgement involved which the court makes on behalf of the society it serves. Therefore may reach a different decision from Parliament. o2. If court concluded the interpretation is inconsistent it goes to s6: what does it mean the court can give a meaning consistent what is the limit to interpretation? o3. Even if the court finds that some statutory provision is inconsistent and it cannot give it another meaning, the court still has to apply the provision as law but court can still indicate (declare) it is inconsistent with the NZ BoRA. !Gives Parliament a smack on the hand. May have political consequence, by giving ammunition to those who oppose the legislation. The decision a particular provision is inconsistent is based on the courts own judgement but thats not what the court declares, the court declares it is wrong as a matter of law. !Where does this power to make declaration come from? Tipping J says it flows from s5, but the power is not actually in the NZ BoRA. Courts have taken on a similar role in awarding damages when there is a breach of the NZ BoRA despite it not appeaing in the NZ BoRA.
Week 24 - 1 - Justice Tipping

Bill of Rights in the NZ Constitution The essence of the NZ constitution is the Rule of Law. The rights provided in the NZBoRA affect the way the government operates within the Rule of Law. Provided Parliament makes itself clear, the law it enacts must prevail. Only when they lack clarity that any issue can properly arising regarding the relationship between Parliament and the Courts when it is unclear, the courts are the final arbitrary on the question. Often overlooked Parliament can always amend an enactment if they are unhappy with Courts interpretation. No direct control over Parliament powers, but there are other idirect controls mainly s 6 of NZBoRA, but also: oS7: AG to bring provisions appearing to be inconsistent to Parliaments attention: !Problem is with amendments made to a bill at late stages, that do impinge on BoRA rights that were not brought of Parliaments attention properly. oHuman Rights Tribunals can make declaration that an enactment is
inconsistent with NZBoRA. Declaration is persuasive only does not require Parliament to do anything. S6: Whenever an Act can be given a right consistent, that right shall be preferred to any other meaning. Entirely dependant on there being a bona fida doubt about the meaning of an enactment Monan: must be a tenable meaning before it can prevail; court cannot conjure up some untenable meaning and give it preference. oMorgan (SC): meaning that would clearly have clashed with the meaning Parliament intended. Majority held the meaning could not possibly have been a meaning that Parliament intended. Whenever Parliament is clear, must not destabilise. oDifferent from the approach in the UK. Whether a particular meaning is tenable within the Monan respect cannot be further articulated. Possible meaning also means Reasonable meaning: bad habit of scholars of reading extracts of judgements in a vacuum and out of context. Practical Application of Rights in NZ Constitution (No Parliament, but influence on development under which governed): oCommon law: freedom of speech with need to balance with other important values (Buchanan v Jennings): Tipping J was lone dissenter in CA and was overturned in PC. Freedom of speech considerations did receive required attention. Tipping took view referring to the words said in Parliament is something Courts cannot do but other members said only referring to them as a matter of history. Not enough prominence given to entitlement of freedom of speech outside of Parliament nothing he said was actionable in itself. oConstitutional structure in NZ based on Separation of Powers. CA was law making when deciding Hoskings v Runking held for a common law tort of invasion of privacy. Draw attention to law making in the light of the NZ BoRA: invasion of privacy is a direct invasion of freedom of speech Tipping J went into how to assess the weight of the rights when developing Common Law: BoR designed to operate between citizen and state [..] often appropriate to use these rights when developing rights between citizen and citizen. Judges always looked to Parliamentary legislation and policy when needing to decide how to develop common law. Influence of international conventions on development on quasi-constitutional arrangements in NZ: oJudges take these into account when appropriate. oMorgans Case: had he been sentenced on the day he committed the offence, he would have a right to 2/3 of his sentence but rules changed and he could be obliged to serve his full sentence. Argued breach of human rights. oNo doubt new Parole Act took away his absolute right and made it discretionary only. Claimed if penalty has been varied to the benefit of the lesser penalty (under sentencing act and BoRA). Depends on meaning of penalty reference to maximum penalty applicable, therefore lawful to serve his full 3 years (max was 8). oLooked all around how similar provisions had been interpreted overseas (all built on international covenants). The clear idea that came was that penalty meant maximum penalty (can treat more harshly if you stay within the maximum).
The way the courts look at the decisions and actions of the executive government: Curtis v Minister of Defence oMoD disbanded the Royal Defence Force and a group of citizens thought this was a bad idea took judicial review. oCourt found nothing unlawful in what minister decided to do - decision was one about the merits rather then lawfulness issue was extent to which the Airforce had to be armed. oCourts must respect very clearly the divide between legality and policy or political choice on the other do not and must not get involved in trying to adjudicate policy issues: firmly and strictly legality. Purpose of the BoA or its equivalent: oRole it plays in the protection of minorities: democracy is a bit of a conundrum how can majority be prevented from encroaching unreasonably on rights of minorities. Way it is done, whether entrenched or not is not an issue. Have basic rights that everyone enjoys, minority or majority has to be formally or informally something extra before majority can do away with those rights. oNothing Parliament cannot do. It can entrench on minority rights, provided they do it openly and clearly. oExample is the rights to people accused of crimes or doing prison sentences. Neither are popular in society. Minority incredibly susceptible to rule of majority. Courts come under criticism of giving preferences to people accused of crime, but only giving them what Parliament says they are entitled to. oOne dimension only society writes down the minimum rights.
Week 22 - 3
Geoff Hall Part Arrest detention in the person of another in support of the law. Powers of arrest: oCrimes Act s315 (CM54): !Subs(1): No common law powers of arrest. Must point to a statute authorising. !Subs(2): General right of arrest; must be an imprisonable offence. Obstruction of Constable on Duty (Summary Offences Act): punishable by imprisonment.
Week 23 - 1
Relevant sections of the BoRA: S21: Unreasonable search and seizure. S22: Liberty of the person: not to be arbitrarily arrested or detained. S23: Rights of persons arrested or detained: be informed of reasons; lawyer without delay and be told of right; validity of arrest (habeas corpus). Right to refrain from statements and be treated with respect. Sections are not in a vacuum Common Law of Arrest and Detention No power to detain short of arrest Blundell v AG 1968 Leading NZ case when police wanting to question a person. Alleged the police falsely imprisoned Blundell. oFalse imprisonment: tort (civil) action detaining a person against their will unlawfully (CM6R-ln25). Blundell was married, living apart. Formed a relationship with a young lady and went to Sydney with her. When he returned to Auckland there was an issue with young lady being taken away from her parents. Her uncle ran into him in the street, and held him in effort to detain while police called. Blundell was detained for some time while there were discussions whether in fact there was a warrant for arrest of him. Ultimately taken, and then allowed to leave without formally being taken into police custody. There was never a warrant of arrest for Blundell, but there was one for the girl issued by her parents. Trial: issue of police rights of arrest and judges role in trial. Power of arrest in CA: reasonable or probable suspicion/belief the person committed a jailable felony. oSs 31 & 32 protect p/os when they make a mistake. oCA1961 is a code. No common law powers of arrest.
Week 23 - 2
Duffy v AG 1985 HC NZ Claimed money for wrongful arrest and/or for wrongful detention. Legal principles at CM10; being drunk in a public place. Judge asked the jury to decide the legal facts and then the judge decided whether it was reasonable.
CM11: takes the view the police embellished their evidence. CM12L: Cancer patient, that was reason for slurred speech. Judge agreed with jury she hadnt drunk more than she said and she was not drunk. Concluded that by the end of her conversation with the police she could objectively be considered drunk entitled to succeed in 1st cause of action. Second cause of action: take person to police station forthwith. oS316(5): everyone arrested on a charge of any offence shall be brought before a court ASAP affirmed in the BoRA. oCM14L: not succeed considering whether there was any unreasonable delay have regard to nature of charge, situation of person and circumstances. Police allowed a reasonable discretion. Every arrested person cannot get immediate individual transportation. Balance law and order and individual rights. Satisfied was taken as soon as reasonably possible. Police Complaints Authority has fixed much of this, but no monetary compensation.
Week 24 - 2
Police Powers to Question Short of Arrest The offence of intentional obstruction of duty at CM15. Rice v Connolly - UK Wilfully (in NZ intentionally) obstructing PO. oObstructing: any act that makes it more difficult for police to do their duty. Although every citizen has a moral duty to help the police, there is no legal duty to do so. Undoubtedly obstruction to give the police false information. But saying nothing is not. Police v Arawira NZ from outline Police received a report that a person by that name had died of a drug overdose. Got an address, went to the house and asked the person at the door whether that person had passed away. She said he did, but didnt know where the body was. Police made inquires for 2-3 hours. Later came back and it turned out he had dressed up and pretended to be a woman and the person was never killed. Found obstruction of duty. Elder v Evans - 1951 SC NZ Up to 1981 it was illegal in NZ to be poor (insufficient means of support). Elder found by police sleeping on side of road, covered by sacks and newspapers and without camping gear. Police talked to him for about 20 minutes suspected him of having insufficient means of support. Elder was elusive in questioning, and refused to give name. Constable said to Elder he is going to arrest him for wilful obstruction and that is what he did. Weakness for the police is choosing wrong ground for arrest: having no means of support was well founded; obvious course was to arrest him for the original suspicion. The suspicion that he had insufficient means of support was not enough to
constitute an obligation of Elder to answer questions, which could have amounted to obstruction. Elder got 5 because he brought the false imprisonment on himself. Power of Police to enforce breath/blood alcohol test Land Transport Act S114: Power to stop car Officer may require driver to (a) remain stopped to obtain particulars, or (b) to complete tests (i.e. breath/blood alcohol test). Sold purpose of stop is to establish identity. DIAGRAM CM20
Week 24 - 3
Everett v Attorney General NZCA - 1994 Claim by a bicycle currier who went through a red light. He was detained, had to take off lycra suite and had his anus examined. At CM34: He was obviously anxious to get back and probably got up polices nose and they subsequently decided to hold him up. Police later decided the bike of the currier might be stolen. He was asked to pick up bike to see serial number, in doing so hit the p/o in chest arrested for striking a police officer. Everett failed his case: this was not a strip search, but a request for inspection. Police need to do inquires, relying on good will of citizens. Such questioning cannot be described as unlawful detention. A common-sense approach, something more than just holding up a bit is required. BoRA against arbitrary of the constraint would require a close examination of surrounding facts. On these facts it was not an arbitrary detention of Everett: s114 LTA. oArrest was lawful given terms of 315(2) of the Crimes Act: constable saw the hit on his colleagues chest so there was good cause to suspect, and the immediate response was arrest. No evidence of bad faith. Putting questions to the citizen in a situation where he doesnt have an obligation to answer them, doesnt take the constable outside the exercise of their duty (unless there is a statutory power to demand name and address or a power to arrest). Result: entitled to declaration the strip search at the station was unlawful. Edwardson v Police CM26 Good summary case of the relevant law. Return of a high-blood alcohol of over double. Member of police saw an individual struggling with a motorbike with no helmet on. Cop got behind with the flashing lights (114 requirement to stop). Cyclist turned and went off to a side street and onto his property. Constable ran to him up the drive. Motorcycle collided with the gate. At that stage he suspected motorbike was stolen and he grabbed the cyclist, who fell off and then grabbed Edwards. Edwards told him this was his house, but the constable grabbed him and knocked on door and found out it was his house became evident Edwardson was drunk. He then refused to give a test. Told he would be arrested if he didnt. Eventually
taken to station and his blood test was taken. Issues: is this evidence that can be used to show Edwards was driving the bike? oCM26: Argued: no lawful authority to enter property and by detaining and stopping from entering house this was unlawful detention short of unlawful arrest. !Anyone has a right to enter private property if it is for a lawful purpose. Unless there is a clear sign, conduct (locked gate) or you tell someone to leave. Restraint short of arrest is issue concerned with CM29: absence of express statutory authority, PO not allowed to detain or arrest people amounts to false imprisonment. Facts here: when grabbed hold of bike and march to house, officer did not claim to be doing it as part of a formal arrest. Constable did not ask about ownership of bike subject to custodial constraint short of formal arrest, so unlawful detention. EVIDENCE OBTAINED UNLAWFULLY: CM29: evidence in relation to alcohol was obtained by unlawful conduct, unfair to allow to use so not allowed to use evidence. S22 of BoRA: right not be arbitrarily arrested or detained another discretion (court used the Common Law right). CM30: reasoning as to why evidence should be excluded. Sympathy to constable, but fundamental officers not unlawfully detain, especially when forceful means used. Acquittal on both charges.
Week 25 - 1
What constitutes an arrest Definition R v N CM52: Depravation of liberty in aid of the process of the criminal law, it is a step in law enforcement. Two elements to an arrest: 1. Touching or acquiescence; and 2. Words. The question to whether the touching is an illegal assault or not depends on whether it is the first step of the process of a lawful arrest (for constables has a defence under ss31+32 if arresting under good cause to suspect). Citizens arrest CM49: S35: justified in arresting without warrant if finds someone committing an offence of more than 3 years imprisonment or someone committing any Crimes Act offence by night (21 06). Citizens are not encouraged to arrest, only encouraged when asked to assist a police officer (then get an official power of arrest conferred on them s34). oS36: if arrest at night, protection from criminal liability, if circumstances reasonable. Words of Arrest: Alderson v Booth 1969 QB (referred to in ITW)
Less formal language than you are under arrest may suffice: as long as it is brought to the persons notice that he is formally under arrest. Regina v Inwood 1973 HL No particular formula, needs to suite the particular case make sure it is plain to the suspect by what is said and done that he is no longer a free man. Mere words alone do not constitute arrest Police v Thompson 1969 NZSC Words must be accompanied by touching or acquiescence. Charged with escaping from lawful custody issue was whether he was in lawful custody, which depended on whether there was a valid arrest. Stopped suspected of being a drunk driver. Gave police an unintelligible response to being told he was under arrest. Police was locking the car, but as he did that Thompson ran off down the road. Later said he needed to pee. Constable had never touched Thompson and there was clearly no acquiescence. Therefore no arrest was affected no in lawful custody had a complete defence to charge. ITW v Police 2003 HC - merely reinforces points Kids partying in a van, drew attention of the police. Police put lights on, van drove away. Kids ran out of van and tried to escape. ITW was pursued by a female constable. oConstable required W to accompany her by physical force, dragging him by force. Did not use words of arrest and did not tell him at this stage he was under arrest. She merely said he had to accompany her. He asked to be released. W charged of unlawfully getting into the stolen van and resisting constables in execution of duty. Held: oUnless the force applied to the appellant by Constable was part and parcel of an arrest, that use of force was not justified (Blundell). oRequirement to give the reason for arrest when arrested (s316), but as reasonable in the circumstances (no particular order as to how to do). oConstable intended an initial process of arrest in relation to W because a formal arrest was the inevitable outcome of W accompanying to the roadside. oBut his actions were reasonable, because W made a mistake of fact (as opposed to mistake of law). Therefore a defence was available. When may the police exercise their powers of arrest Pursuant to a warrant; or s315(1): without warrant only pursuant to Act - No common law powers of arrest exist in NZ. Power of Citizens to arrest - continued R v N 1999 CA Person who spoke bad English was suspected of shoplifting. After leaving the shop store assistants called out and caught up with him in the car park. They said they believed he stole something and wanted to see. He tried to walk away, but he was pulled back to the shop.
Issues: breach of s22 BoRA: arbitrarily detained at shop, until police arrived. Any evidence from that arbitrary arrest should be excluded. oS35 did not apply in this situation theft valued at less than $300 and not punishable by more than 3 years. Issue was whether the immunity in relation to arrest amounted to the conferment of a public power to arrest under s35 was the performance of a public function? Held: oS35: Is an arrest immunity provision, does not confer a power of arrest. Not a function, power or duty conferred on private citizens. oS3(b) must be given a generous interpretation because it deals with human rights. Constable Arrest Needs good cause to suspect all he has to prove to the court is that he did have a good cause. Police v Anderson 1972 - CA: oInterpreted as reasonable suspicion that the person arrested had committed an imprisonable offence (standard constable has to satisfy). oConstable has a discretion as to whether or not to arrest once they have the reasonable suspicions must be exercised in good faith and on proper grounds and constable must exercise his discretion.
Week 25 - 2
S315: (a) Constable can arrest any person breaching the peach or (b) if he has reasonable grounds to suspect he committed an offence punishable by imprisonment. Police v Anderson CM55 CA Facts relate to drink driving and are irrelevant. Good cause to suspect = test objective (officers opinion as to relevance of information is irrelevant); not a high standard of proof. P/O can take into account hearsay reports for his reasonable suspicion. Information the police has in his or her mind at the time of the arrest, must satisfy the standard of reasonable suspicion. There does not need to be a prima facie case for good cause to suspect. Case Timber fell onto windscreen of oncoming vehicle, killing the occupants. Issue: was there good cause to suspect the lorry driver and mate were guilty of manslaughter (depended on whether the load was properly secured). CM64A-R: desirable an arrest should not be made before a case by the police is complete, but if they are not allowed to, it would seriously hamper the police.
Contrast is drawn between good cause to suspect and reasonable grounds to believe: Seven Seas Publishing Companies (not in CM) McGregor J: clearly established that suspicion is a lower standard than belief. Suspicion (or good cause to suspect) is not a stringent standard for the police. Power the police have under good cause to suspect is a wide-sweeping power.
Even where constable has good cause to suspect, he has a discretion whether to arrest individual at that time. Key factors in CM60 why particularly underprivileged youths are appearing in court: visibility, demeanour and bias. Nielson v AG Member of police was dismissed. Brought personal grievance. Worked as PI and dismissed for redundancy. Brought another personal grievance. Complaint to police later that he deposited cheques in his own bank account for $200 he was not supposed to. Officers showed up in house and he was advised if he didnt escort the police he would be arrested. Plaintiff made statement he had to go. No indication from p/o he was not under arrest. Objectively the police conduct was such he believed he no longer had a right to leave. Never charged with the offences. Then claimed damages for unlawful arrest and arbitration and breach of s22. Key factors in handout page: oModern policing: dont operate alone. Rely on each other and on information given to them by each other in different ways. oDecision to arrest without warrant where the threshold is good cause to suspect requires discretion an improper use of the power is saying something like I always arrest when I suspect an imprisonable offence has been committed. oContains a useful discussion of s22 of NZBoRA. Police tried to justify why they used their discretion: oMay offend again, so wanted his fingerprints irrelevant grounds (was 14 months ago and had no criminal history). Primary reason was to put him before the court summons rather than arrest was more appropriate. Improper exercise of 315 discretion. Liability of police arises from unlawful arrest and detention. Constable did have good cause to suspect, but it was still unlawful because exercise of discretion small awards ($5k). Breach of the Peace No statutory definition exists. Halsburys Laws of England: A breach of the peace arises where there is an actual assault, or where public alarm and excitement are caused by a persons wrongful act. Mere annoyance and disturbance or insult to a person or abusive language or great heat and fury without personal violence are not generally sufficient. CM54: Powers of arrest under s315(a) breach of peace occurring and (b) is a breach of the peace that happened in the past. Bizarre because there is no offence of breach of the peace. oMeans a person is arrested, detained, but cannot be charged with an offence of breach of the peace either charged with another offence or he can be released by the police without charge. oThese powers are frequently used with respect to political demonstrations:
excellent powers to get trouble-makers away from the crowd. oSection applies to past and present events. What about future events? !Police also have a common law power to do what is reasonable to prevent an anticipated breach of the peace: Clear those powers exist in NZ: Cox, Minto and Williams. !Must reasonable anticipate, and needs to be imminent. !Power to remove from the scene and use force. !Courts say there is not a power of arrest for an anticipated breach (actually left open but all powers of arrest codified). NZBoRA guarantees freedom of expression and movement.
Week 25 - 3
Consequences where the liberty is interfered with: Civil Action Battery, Assault, Unlawful Arrest - but takes a long time and is expensive. In battery and assault run into ACC legislation so have to ask for exemplary damages: Blundell (No 2): Direction to jury oCitizen still has a right to claim exemplary or punitive damages public official case be one such case, but only if he deserves punishment (deliberate, contemptuous, etc). oJury must be satisfied of something outrageous. Harris v Attorney General oCharged with giving false alibis at a murder trial. Harris was placed in holding cells during adjournments of that trial. Experience showed he was violent and unpredictable. The police determined he made abusive comments of them, and they took him down to the holding cell he suffered serious injury police said Harris fell onto a table, Harris said differently. oJustice found a deliberate use of more force than necessary. Aggravating factors include degree of violence used. Relevant is the inhumane treating after injury (handcuffing and dragged to police station next door). oDamages set appropriate if the relief sought solely under right for him: focus on wrongful conduct and marking condemnation of societies condemnation of the wrongful conduct: $30,000. Private Criminal Prosecution Difficult to bring such a case; need to establish to beyond reasonable doubt; sometimes hard to identify the police office at times; cost is high. Application for writ of Habeas Corpus: Habeas Corpus: you had the body instruction for a person to be released for detention, either to be brought to court to be determined whether it is legal. Most fundamental means for protecting a persons arbitrary incarceration. Habeas Corpus Act 2001 (CM76): Writ in front of high court, given precedent over all other cases. Rene Chignell v AG oJudge heard the case at home in pyjamas. Charged with murdered of a cricket umpire in an S&M session. She was on bail, and she was required to report to station at one time she was rearrested and charged with the murder of
him at Taupo (throwing body over waterfalls) rather than in her home in Auckland (where S&M happened). oJudge arranged hearing in house: argued once she was charged with murder once and released, she cannot be charged with same murder again and arrested. Judge issued the writ of habeas corpus: could not be rearrested and charged again, and took the view the police did this because they wanted to make further inquiries and wanted she didnt have access to council. Complaint to Police Complaints Authority NOT IN EXAM Police Complaints Authority 1988 established after the spring box tour, since ombudsmen could not deal with complaints. Authority investigates itself (s17) when it can. 95% are investigated by the police itself, who gives a report to authority independent body, but very heavily reliant on the police. Not an effective remedy. May have a defence to a criminal offence where the polices actions are relevant to an offence. Example: escaping from lawful custody; assaulting a constable in execution of duty. Where its not an element of an offence, but the police obtained evidence through unlawful conduct, you ask the court to exclude it on its discretion to exclude the evidence.
Week 26 - 1
Civil Action AG v Hewitt CM86: Distinction at principle between damages at common law and compensation compensation is given for a breach of the bill of right, which is to preserve the rights in the bill of rights. CM86: Court can approach matter either on the basis of a public or private law remedy, as long as there is no double dipping. Para70: Do justice in the particular case. Purpose of BoRA: public law remedy through the courts in addition to what is available under existing legislation or common law where such remedies are non-available or inadequate. Would have awarded a monetary sum under the BoRA or common law what was compensated was adequate no more required. R v Murphey 2003 CA Facing a charge of possessing and manufacturing cannabis oil warrant was invalid. Council objected to the evidence as a result on the basis of common law (not on a basis of breach of BoRA). Para5: Discretion at common law to exclude evidence has survived the BoRA and also Shaheed. Ruled the evidence should not be excluded because of unfairness. Para9: Exclusion subject to the discretion to exclude it on fairness grounds: oDoes the pervasive value of the value outweigh the prejudicial value.
oQuotes Ahamat: fairness not just to the accused, but also to the Crown not invoked only b/c falls outside the BoRA, must show unfairness in getting it and the mere fact that it was obtained unlawfully does not automatically exclude it. In rare cases good evidence excluded to punish police conduct: to exclude probative evidence on fairness grounds is warranted only when that is consistent with the interest of justice or when that is necessary to assure the fundamental rights of an accused to a fair trial. The fact the warrant was unlawful was not enough to constituted unfairness and the evidence was not excluded. Police v Hall (CM88): 17 y/o collided with a parked vehicle. Asked him to come to station for a breath test. Said he wanted to ring his dad, and also repeated at station and asked to also phone a lawyer. Court not inflate a bag and chucked in the big called police doctor for blood specimen, who gave a full clinical examination to see whether Hall was incapable to drive car because of alcohol. Police lost the specimen, so charged only with driving while incapable. Hall argued it was unfair that the local magistrate (judge) required this process by the police to be done on all cases, just in case they lost the blood specimen. Practice is incorrect: o1. Person required to be before a doctor for blood alcohol, should not be subjected to a general examination consent should be obtained (unfair to take a man before a doctor for one purpose and get information for a different charge). o2. Inappropriate for a judicial officer to control police officers in the execution of their business. o3. Reasonable exercise of discretion. Evidence of doctor was legally admissible probative this person was incapable but subject to judicial discretion to exclude on grounds of unfairness. This is a matter of special features that requires the court to intervene in this case the evidence should have been excluded in the interest of fairness (very general terms used). Murphy is clear authority this discretion lays next to the discretion to exclude evidence on the basis of BoRA. Shaheed 2002 - CA Not concerned with facts: related to DNA evidence obtained. Helpful summary at para 26. Reviews the process about evidence in a criminal trial on the basis of breaking the BoRA: must be determined by the judge conducting a balancing exercise. Starting point is to give weight to the fact that a right from the BoRA was breached. Para140: in past exclusion of evidence is almost automatic in cases where a breach that is more than trivial is established (with a causal link between the breach and the evidence). This mechanical approach is not good issue is to find whether the exclusion is truly proportionate response to the breach. oA breach of the BoRA is very important, but not conclusive. CM95: goes through the factors and the way the court approaches it (all written in summary take note):
oBalancing exercise not necessary if breach trivial, or if discovery of evidence not sufficiently connected, or if it is clear that the discovery by other legitimate means would be inevitably found anyway. o1. Nature of right and breach the more serious the breach and kind of breach, the more weight it is given. o2. The seriousness of the breach. o3. Whether committed deliberately or with reckless disregard to the suspects rights (if the police were acting in good faith = neutral factor, thats what we expect from the police). o4. The nature and quality of the disputed evidence (difference between real evidence and oral evidence). o5. Importance of the evidence to the prosecutions case. o6. Balance in the requirement of a credible and effective system of justice. o7. The availability of alternative remedies (whether exclusion is the only way to vindicate the right). A monetary compensation would seem strange to a criminal in jail for the case that put him in there. Summing up: where theres been a breach, he must determine the proportionality done on a balancing process, taking into account the above principles. R v Maihi application of the above factors Gang convention, believed other gangs were going to disrupt it, and that they were carrying weapons. Police were keeping an eye on the Black Powers headquarters. Saw Maihi driving out, they didnt know who he was, but trailed him anyway when they saw him moving inside they thought he had something to hide. Stopped him and searched his car found he was concealing a knife in his socks. Told him he had a right to have a lawyer, he was aggressive but complied with initial requests he then asked for police names and numbers, which he wrote down on a piece of paper that and the sections the police said they used. On a further search found drugs in the car. Concluded the police did not have reasonable grounds to believe he had a weapon that were required to stop the car and search it. reasonable/unreasonable search oPara3: If search was unreasonable, the courts need to decide whether the evidence should still be admissible an unlawful search is not par-se reasonable, but the unlawfulness of it may suggest it is unreasonable. !According to Shaheed this question is to be asked before the admissibility needs to be addressed it is addressed only if it is unreasonable. oThen apply Shaheed test to the facts: should be used by New Zealand values (do not look overseas).
Week 26 - 2
Excluding evidence based on breaches of the NZBoRA runs alongside common law discretion to exclude evidence but there is no automatic exclusion of evidence, based on fairness.
BoRA did not refer to exclusion of evidence. Jurisprudence developed afterwards. Key remedy when facing criminal charges is exclusion of evidence based on the Shaheed balancing (no longer the prima facie rule). Maihi continued: breach of s21 (unreasonable search and seizure) Reasonableness of the search: oCourt said belief was enough to give suspicion but no reasonable basis for a belief on reasonable grounds no knowledge he was armed or even a member of black power. At best it was a speculative inference. oTherefore it was an unlawful search. oUnlawful nature of the search is material to reasonableness: more so b/c police did not act in emergency. oMaihi objected in no unmistakable terms (kept saying they had no right to search him). oThe unlawfulness of the search, while nor per-se makes it unreasonable, means that unless sufficient counter availing material is found the court is likely to find the unlawful search is also unreasonable. oNature and circumstances of unlawfulness will bear on the circumstances: the greater the unlawfulness, the greater the weight (here it was significant search). oSearch was unreasonable. Second step is a Shaheed balancing act: oGive appropriate weight to the breach: weight up vindicating the breach by exclusion of evidence vs. the public interest. oCausal link between finding of the evidence of the breach was found and there was no question of lawful discovery (pre-requisites). oRight to search is on reasonable grounds legislature does value breaking this right. oGood faith is a neutral factor. oThis is real evidence. Did not come into being as result of a breach (confession). oCentral to prosecution: without it no case. But small penalty of imprisonment. No remedy other than exclusion is available: close to the borderline case, but relief is not disproportionate to the breach. Does not undermine the need to maintain an effective system of justice. CM113: Unreasonable Search and Seizure Queen v Geoffries: leading case on the matter oStopping and searching of a vehicle suspected of being involved in an armed robbery. CA at CM115 looks at when a search is unreasonable: !Search will be unreasonable if the circumstances giving rise to the search make it unreasonable, or if a reasonable search is done in an unreasonable manner. !S21 confers no powers on the government: it only confers a power to commit a reasonable search. !Balance relevant values and public interest. !Search of premises or person is an invasion of privacy and affronted of dignity.
oStarting point is that any search is an invasion of individual freedom, but it depends on the particular circumstances and other factors may have to be weighed. oBreach of BoRA is not the only way to challenege: !Unreasonable: BoRA s21 !Unlawful: Common Law, having regard to interest of justice and fairness (Police v Paul; Queen v Murphey). !Court may have to assess separate challenges for unreasonableness and illegality. !Other remedies may be available (such as reporting to police complaints authority). oReasonableness is a different and wider test than lawfulness more elastic. Lawfulness is always highly relevant, but does not necessarily determine either way. oImportant to consider the subject matter and time and place of the circumstances. No breach of BoRZ in this situaition. Police v Pratt Strip search of person who was under surveillance in public. As a result, but right at the beginning of the search, keys were found in his pocket the locker that the key opened had a kg of cocaine. Argued strip search was unreasonable held it was unreasonable. Cooke J: because it was in a public place it was certainly unreasonable. Serious infringement of appellants privacy and liberty. oPolice argued finding the key was not unreasonable (still had clothes on), but court refused to break up the search into parts. oPolice said they would have arrested him anyway later and found those keys but Court said no, because unknown when they would arrest and if the keys were still on him. Evidence of the cocaine was excluded. Grace v Mateiya Case that suggested the prima facie rule was going out of the window (which happened in Shaheed). Police got information that in Kiwi orchard cannabis was being grown. Police decided not enough information to get a search warrant, so they decided to go on the property and looked behind the cloths that hid it and found cannabis then went and got a search warrant. Principles written down: look at them as summary and recap. Decided this was not an unreasonable search. Fact and degree: didnt go into the house, nothing disturbed: held to be reasonable. Search and Seizure are defined as: not every visual observation is a search and therefore needing a statutory authority. In a borderline case it must be a matter of fact and degree (quote on handout). Point 10: BoRA is not a technical document. Must be applied in a realistic way. Must be true to its principles of promoting human rights. Crucial question is whether it was unreasonable in the particular circumstances: investigate with an air of reality.
Breach of ss 22 or 23 of NZBoRA Q v Goodwin CM102 Muddle up case. Goodwin and partner had a baby which died from injuries from the brain, consistent with being dropped and shaken violently. Interviewed separately for 6 house: then released and told he may be called back again. Outside the station he was told to wait for 40 minutes: after comparing the questioning the officer asked for him to come back to a second interview. He was told he was not under arrest and investigated violently. He then confessed to dropping. Two months later investigated again and charged with murder. Issue: was this an arrest under s23? If so, he had a right to a lawyer. Court could not decide. oCooke P: person is arrested if he is told he is not allowed to go. Under the present law in NZ the arrest is not lawful (distinction between lawful and unlawful arrest). The arrest is unlawful because all the requirements from earlier cases did not exist. oRichardson J: said detention for questioning cannot constitute an arrest, unless the p/o manifested an intention to arrest the suspect. Conclusion: Not arrested either when detained or cautioned. oThere was no detention under any enactment (s23 does not apply), but it was not an arrest and therefore no right to consult a lawyer. Crown argued it was detention so Goodwin argued it fell under s22 had to now prove it was arbitrary. Second Case: Argued detention CM106ln21: after finding it was detention, looked at what arbitrary meant. At ln18: leave open the possibility that generally unlawful will be arbitrary detention (may be some exceptions maybe in urgent action or in good faith for reasons just falling short of reasonable grounds). Held this was clearly arbitrary detention. Nielson at Para 34: Whether an arrest or detention is arbitrary turns on the amount and nature of the departure of the procedures required in the situation. In most cases an unlawful arrest will be an arbitrary arrest may also be an arbitrary detention what happens depends on what the PO was attempting to do at the time. Whether he has good cause to suspect, it may render it not arbitrary. QvM Student raped at the park in Auckland. She later saw the individual, recognised him and alerted the police. M did not know English well. Police took to the station and took until 4am to get an interpreter: issue was whether he was arbitrarily arrested/detained at time of questioning. Exists when: (1) depravation of freedom by physical means (2) statutory restraints on person coupled with failure to comply (3) words or conduct that makes it clear to a person he is not free to do.
Issue became: was M arbitrarily detained? oBlanchard J puts a test at cm108 (important!!!): Mixed objective subjective: does person have a belief he or she is not free to leave (key question to whether person detained) and is it a reasonable belief sets out factors to determine these questions. oIdea was that the person should not be disadvantaged because he did not know what his rights were or had a bad understanding of English as was this case. He was told to do so by his boss, bad English, interpreter inexperienced - it was reasonable by M to believe on the circumstances and therefore there was a breach of s22. oToday: now go to Shaheed. Read Grey good summary of s22 and s23 NOTE IT WAS BEFORE SHAHEED, no balancing act in it. DO NOT NEED TO KNOW DRINK DRIVING LEGISLATION or THE LAST 3 PAGES OF THE COURSE MATERIAL.
NZ CONSTITUTION comprised of: (1) Power of the Queen (2) Relevant NZ statutes (3) English and UK Statutes (4) Relevant Court Decisions (5) ToW (6) Conventions (7) International Treaties Constitution Act 1986: Part I: Sovereign (head of state: nothing about what power); Part II: Executive (Only MPs ministers: no appointing); Part III: Legislature (Elected according to Election Act 1993 = HoR + Sovereign: no making laws); Part IV: Judiciary (Parliament can re judges only when bad, cannot interfere salary: no appointing); Part IV: Miscellaneous Rule of Law: Dicey: (1) Cannot punish for anything other than breach of law (2) Everyone is subject to the law [albeit some people have different powers under law: p/o, MPs etc] (3) Civil liberties are historically upheld in courts of law. Walker: adds to Dicey: (1) Laws should accord with the principles of the rule of law (Certain, General and Equal); (2) Change with social values Entick v Carrington 1765 (Seditious liable on king and Parliament minister ordered house searched suspicions wrong H: (1) If it is not in the books (statute or common-law) it is not law (2) B/c no legal authority liable for substantial damages Principles: (1) Actions of ofcials must have a legal basis (2) Ofcials can be kept in line by the courts (3) Common law recognises human liberties and will not easily give them up) Transport Ministry v Payn (Drunk P accident parked car home police asked breath test told to leave they did; instructions came back proceeded to arrest: second visit was trespass H: Act was silent on this matter + right of quiet enjoyment of property is important = second visit was illegal) Separation of Powers: For constitution to operate properly under rule of law, different branches should be separate to keep checks and balances on each other. Montesquieu: Pure separation of powers: too much power centralised in one body could make tyrant: clear separation between essential (although some powers overlap to allow checks and balances) Madison & the US Constitution: Adopted Montequieu!s ideas; Sets up three branches, how members are to be chosen (cannot be a member of two branches simultaneously) and what their powers are (Note: Changing the constitution is difcult; constant power struggle b/w the branches) New Zealand: Rules not set out in detail (Constitution Act 1986); Big overlap b/w Legislative and Executive branches (same number of MPs to support government is required to pass laws): NZ separation mainly b/w Political and Judicial branches (most important part of the Rule of Law is an independent judiciary applying the law consistently). PARLIAMENT Functions of Parliament: Make laws: any law it wishes Government of the Day: must have majority support in Parliament Hold Executive accountable: (1) Budget: Parliament authorises the budget the Crown asks (under the Appropriations Bill). (2) Ministerial Questions. (3) Debates in Parliament. (4) Select Committee Process (made up of MPs who are not members of the executive) Represents the People: Deeply political; MPs are acting as representatives of those who voted for them: 69 electorates (7 Maori) Parliamentary Sovereignty: Parliament is the chief and only law making authority in NZ (Art 1 BoR1688): Executive vs Parliament: Fitzgerald v Muldoon (Muldoon new PM cancel superannuation PR statement told to stop immediately before repealing the bill H: (1) BoR1688 is part of NZ law (2) What Muldoon did amounted to suspending the power of Parliament by regal authority); Judiciary vs Parliament: Shaw v IRD (Superannuation Act declared unlawful so it irrespective of money earning H: (1) No power to review the validity of properly enacted laws (2) Magna Carta does not restrict Parliament (3) May be common law rights Parliament cannot repeal, but this was not one of them); Historic Power: Traces law making authority chain of authoritative instruments: ToW1840; UK enacted the NZ Constitution Act 1952 (set up general assembly); UK enacted Statute of Westminster 1931; NZ Statute of Westminster Adoption Act; NZ Constitution Act 1986 - recognises the historical powers and their continuity Retrospectivity: how far should/can this be taken within the boundaries of the Rule of Law Philipps v Eyre (Jamaica uprising when over legislature made acts of all people acting in suppression legal H: Court will not ascribe retrospective effect to an Act unless it is clear - but a retrospective Act can be created) Procedural Restrictions: s16 Constitution Act 1986: Must be signed by the GG before; Standing Orders: Process of voting in standing orders cannot be questioned in courts - if Parliament says it!s valid, the courts will believe them without further inquiry Pickin v British Railway Board (Parliament misled and did not follow standing order of notifying land owners of change - court doesn!t care) Entrenched Provisions: s268 Electoral Act 1993: sole example (75%: merely restriction of form) but single entrenchment: more moral standpoint than anything; AG for NSW v Thethowan 1932 PC (elected on the proposition of abolishing upper house and then did so with no referendum H: Because was form it did bind future Parliaments: repeal of upper house was illegal for form). [Note: Australia was subject to Colonial government Acts] Fully Sovereign Parliament: Harris v Donges (South Africa H: a form requirement does not mean Parliament cannot change something: it can but must do so in a particular way) NZ: Westco Lagan v AG (Obiter comments of HC case to support idea); Implied Repeal: No issue arises when Parliament is express. With implied repeal previous Act is repealed only if both Acts cannot be read together Vauxhall Estates (Government land take-over dispute: two Acts from 1919 and 1925 provided two different measures for valuation: old Act said that the provisions of any other enactment were to have no effect H: Provision applied only to Acts in force at that time, so new Act did impliedly) Ellen Street Estates (Similar to Vauxhall H: Exercise of stat-interp reasoning: (1) Prevents courts from weighing up intentions of two different Parliaments (2) Allowing implied repeals of past enactment's helps keep the law up to date) Implied Repeal vs Procedural Restrictions: Reconciled by separating procedural requirements from substantial requirements; Another argument is that only "important! or "constitutional! Acts that have a higher standpoint than others have form restrictions on them Implied Repeal of a !Constitutional" statute: Thoburn v Sunderland CC (Metric unit sale case H: (1) the provisions of the former and latter Acts were consistent (2) If they were inconsistent, the latter could not impliedly repeal the 1972 EU Adoption act, because it is "constitutional!). PARLIAMENTARY PRIVILEGE Allows Parliament to operate as a sovereign lawmaker s242 Legislature Act: same privileges the UK Parliament in 1865 and tells court to take notice of
privileges Privileges Committee: Manages own privileges (decisions not reviewable): BUT courts can decide the ambit of the privileges The Privileges (David McGee): Powers: Compel attendance (of people to come before it) and the power of contempt (punish anyone who interferes with its operation): Allow Parliament to protect itself without requiring the courts Immunities: Impeach on rule of law but allow smoother operation of Parliament: (1) not afraid from litigation (2) prevents power struggle with the courts Exclusive Cognisance (done in Parliament stays there): Court cannot question proceedings and executive cannot compel Parliament to address an issue (Note: part of this immunity is carved out by the manner and form cases) Statutory Form Requirements: Brawlaw v Gossit (Atheist MP prevented from taking oath to sit in Parliament according to Act H: Parliament entitled to interpret own Acts in relation to itself - proceedings in Parliament will not be questioned outside it) BoE 1688, Art 9: Free Speech Privilege (said in Parliament stays there): Criminal or civil proceedings cannot be brought against anything said in Parliament (exception: Parliament contempt powers) Prebble v TVNZ 1994 PC (Minister sued TV for defamation: TV tried to rely on statements in Parliament H: (1) Privilege applies even when someone who is not going to be punished is questioned (2) Must uphold the importance of the privilege: MPs must not be scared to speak freely in Parliament (3) Evidence struck out (4) Distinction b/w referring as a matter of history and basis for negative conclusions) Buchanan v Jennings ("did not resile from his comment! H: (1) What said effectively repeated what said in Parliament: repeat is not protected (2) The need to refer similar to referring to Hansard as a matter of history (3) Does not impeach privilege: backwards looking exception - just be careful what say outside Parliament) Development: Privileges Committee decided to legislate CRITICISM: (1) Legal issue that Parliament should not change itself (2) Parliament has too much self interest in the matter BUT: (1) Parliament also decides matters of law (2) Much criticism of the PC decision (3) MPs are in best position to decide what is best for them (4) Public representatives and people had opportunity to hand submissions to privileges committee. EXECUTIVE Cabinet: Powers: Most powerful body despite no legal power: derives powers from: (1) Powerful constitutional convention: Cabinet members act on decisions (2) Members also Ministers on Executive Council (control the GG mainly create regulations (3) Constitutional convention: GG only exercise discretion on advice of Cabinet Rule of Law and Government: M v Home Ofce (Home secretary deported refugee against order of a judge from home on legal advice H: (1) Home secretary was in contempt of court (2) separate the Crown as Monarch and the Crown Executive: former can do no wrong, but latter can be sued) Functions of Cabinet: National defence, new legislation, important decisions - no convention about majority decide in Cabinet (each makes own rules) Responsible Government: Constitutional conventions are central: (1) GG Acts on Cabinet"s Advice: Cabinet must enjoy the support of the house (2) Condence and Supply: Votes declared as matter of condence (all supply votes) or motions of no condence - government must resign and GG will no longer take advice (3) The Executive Council: Appointed by GG under prerogative power at the advice of PM (4) Cabinet and Government Formation: After party numbers are known discussions between caucus leaders may result in agreements (Coalition, Supply and Support or Good Faith). Rules: Statutory: s6(1) Constitution Act Only MPs may be Ministers; Prerogative: GG!s powers to appoint and dismiss Ministers; Constitutional Conventions: GG appoints at PMs advice; Party and Political Rules: Internal to every political party (5) Role of Political Parties: PM chain of power: PM Chain of Power: PM - Strategy Committee - Cabinet Caucus - HoR (6) Caretaker Government Constitutional Conventions: Public Ofcials feel bound by them Core Conventions: (1) GG acts on Cabinet advice and assets all Bills enacted (2) Advice of Cabinet to GG unanimous (3) GG appoints MP most likely to command condence as PM (4) GG accepts PM nominations for Ministers (5) Ministers are responsible for their departments (6) Ministers follow Cabinet decisions in departmental functions Identication: Jennings Criteria: (1) Are there any precedents? (2) Did the actors in the precedents believe they were bound by the rule? (3) Is there a need for the rule in a constitutional government? Conventions and Law: May be recognised by courts, but not applied as a rule of law; may assist in interpreting laws; may be codied or abolished by legislation Purpose: Facilitate constitutional development without law changes; Coordination and cooperation b/w government branches; restrain the exercise of powers Creation: Precedent, practice or agreement Remedies: Not legal: sometimes only political and others prescribed (e.g. sacking PM if has no condence) GOVERNOR-GENERAL Reserve Powers: Act without advice when: (1) PM or Cabinet does not enjoy the condence of the house (2) Advice by retiring PM (3) Advice is unlawful/ unconstitutional (4) Situations of "necessity! Reserve Powers: (1) Appoint/dismiss PM/ Government (2) Dissolve the HoR (3) Summon Parliament when not sitting (4) Refuse assent to bills/regulations Refusal to assent to bills: Better to: (1) Publicly protest (2) Resign (3) Dissolve Parliament and let the voters decide Government formation and dissolution: Formation/Dissolution of Parliament: (1) be politically neutral (2) Wait for politicians to resolve the crisis and delay interventions for as long as possible (3) Adopt the least intrusive form of involvement GG entitled to: (1) Kept informed (2) Consult/Question party leaders (3) Offer advice (4) Warn about future conduct (5) To delay (Oral political assurances sufcient because GG needs to know intentions today) Whitlem Crisis (Australia-75): PM condence lower house not upper: refused to pass supply; GG advised PM to resign GG dismissed without further appointed opposition without clear support supervise passing supply bill and new elections; Was there a convention?: (1) No precedent either way: upper house never attempted not to (2) Some actors felt bound others not (3) Clear need convention for government to operate GG Should give PM warning or wait until money ran out; not completely apparently political neutral - but did solve deadlock and people elected Lord Byng (Canada25): PM not clearly condence asked GG dissolve the house refused resulting in nocondence vote; GG appointed opposition leader who no condence; GG then accepted his
advice for new elections. GG must appear neutral; Could have: (1) Accepted rst advice to dissolve in an unstable HoR (2) Reinstated rst government as a caretaker government after dissolution Tasmania-89: Liberals had 17/35 seats and other two parties signed coalition agreement. Liberals refused to resign and advised GG dissolve, but he refused. Liberals resigned on rst day of Parliament and coalition government sworn in; GG: did not have to dissolve okay leave to politicians; No need take advice of dissolution b/c no clear support Caretaker Government: Situations: (1) Pending election after loosing condence (2) After an election when government defeated (3) During coalition negotiations when outcome unclear (4) Between governments without an election Quasi-situation: prior election when not lost condence: no major policy changes. Muldoon currency-84: Election won policy oating NZ$; Muldoon caretaker PM and Finance Minister refused to immediately implement; eventually did follow the advice; Convention: Caretaker government must act on the advice of the incoming if cannot be delayed. ROYAL PREROGATIVE common law powers the executive; need no authority to use powers; may be taken away or replaced by statute Main Ones: (1) Foreign affairs (2) National defence (3) Criminal justice (4) Appoint & dismiss Ministers (5) Award honours. Courts: admit existence but will review manner in which exercised (refused to interfere with entering into the EU under prerogative in Blackburn v AG). No new prerogative powers can be created (Case of Proclamations 1611) Burma Oil Company (Cut a part out of the defence prerogative, when it declared that bombing facilities was only allowed in cases of immediate attack) Statutes Override: Laker Airlines (Budget ight UK-US got all authorisations in UK; in US need formal signature of President; Crown pressure on US President not to sign - prerogative foreign affairs. H: After getting statutory authorisation in UK can!t use prerogative to prevent in US: deny statutory processes) Ofcial Information Freedom of Information Ofcial Information Act 1982: Ofcial information is information held by public sector organisations s4: Purpose of the act is provide access to ofcial information, promote accountability of Ministers and protect information that should be kept secret in public interest or for privacy reasons s5: Principle: ofcial information must be made available on request unless there is a good reason for withholding it Applies to all government departments and ministers and most government entitles (does not apply to MPs, Courts and Tribunals) Part II: Information to which there is a right of process: Requests (ss1214) must be particular and the requester has a duty to assist. Decisions have a time limit (s15) and refusals (s18) must have good reasons (s19): Sections 6 & 7: conclusive reasons for withholding Section 9: balancing act reasons Part III & IV: Information to which there is a right of access: Part III: Directory and Ofcial Information (ss20-21), Internal Rules (s22) and Reasons (s23) Part IV: Personal information - access (s24) and correction (s26) Refusals: s18 has all substantive (State interests protected by "likely" (s6) others by the "necessity" test (s9)) and administrative reasons Problems: Ombudsman: has a power to recommend disclosure, that must be complied with after 21 days, unless the GG in council votes to veto the decision. The ombudsman will not investigate if an adequate remedy is available Judicial Review (yet to happen) Personal Information The Privacy Act 1993: Deals with natural people. Similar procedures to Ofcial Information Act: s6 privacy principles s11 limits on disclosure s34 who can make request s35 rules for getting personal information (generally no charge if info on requestor) s40 discretion 20 days s44: reasons for refusal Part VIII complaints Human rights tribunal remedy discretionary can be monetary Privacy Commissioner: Independent arbitrator for release of private information and investigates privacy issues with legislation. Ofce is independent and can make recommendations to Parliament. May cause the Human Rights Tribunal into action (may award damages) Role of Courts & Parliament as Arbitrators of Individual Rights Courts should protect minorities by taking human rights into account when expositing the law: now NZBoRA Lord Cooke!s fundamental rights: some common law rights go so deep even Parliament cannot destroy them (right to go to court; torture). Kirby J (oz) disagrees: (1) not much judicial support (2) democratic mandate (3) don!t know what rights are exactly (4) whether a right has even been infringed is controversial NZBORA Was not made supreme law b/c: (1) Gives judges too much power (2) Hard to change: continue to bind future generations Divided into three: Part 1: General Provisions Part 2: Civil/political Rights (ss8-27): Moral duty by the state to its citizens: Six groups: (1) Life and security to person (2) democratic/civil (3) non-discrimination/minority (4) search/seizure/detention (5) criminal procedure (6) access to justice Part 3: Miscellaneous: s28: not an exhaustive list of rights Effect on the Parliament: s3(a): NZBoRA applies to the legislature when it acts (including when passing legislation): s7: BoRA vetting: AG notied house if legislation might infringe on BoRA - then Parliament can do as it wishes. Process: (either by department of Crown Law Ofce) (1) If provision prima facie infringes a right in part 2 (2) Is infringement a reasonable limit prescribed by law that can exist in a democratic society (s5): Two steps - (a) is the objective of the limit important enough (b) are the means used rationally connected to objective and proportionate to it REVIEW OF BREACH OF BORA: : Does Act Apply to Action? s3(a) list of bodies; s3(b) imposes an obligation only in respect of acts done by public power, function or duty Ranseld Case: (Cranks banned from talk-back radio alleged a breach of s3(b) H: (1) No provision in NZ imposes on the radio a duty to allow them to participate on talk-back radio (2) s3(b) has three requirements: (i) act occurs in performance of public power, function or duty (ii) function, power or duty conferred by or pursuant to law (iii) must be public - fact dependant question, involves policy (3) Radios actions not covered by s3(b): private; no public funding; no government supervision; not fullling a government function (4) List of
factors 3. amendable to review not conclusive) Does it breach the BoRA: Moonen CA (Sensor acting lawfully when rejecting a pornographer's freedom of expression H: (1) Suggested approach: (i) does provision infringe a BoRA right - which one/s? (ii) if yes s5: is it justiable in a democratic society (identify objective: legitimacy/proportionality) (iii) if not justiable s6: can give it another reasonable interpretation (iv) if not apply it s4; Remedy: Tipping J nds a power by the court to declare the Act is inconsistent in s5) Hopkinson (Burnt ag in protest criminal offence H: (1) Used same approach as Moonan: but other approaches are okay (2) (i) D ts into natural reading of offence (ii) provision prima facie inconsistent with BoRA (iii) justied limit although criminal sanction to achieve b/c important to protect symbol but not proportionate b/c thinks staunch criticism is regarded as accepted in a mature NZ (iv) context and wording allow a narrower meaning, but conduct still falls within it (3) inconsistent but does not make a declaration) BoRA in the NZ Constitution: Does not limit Parliament, but changes the way it operates within the Rule of Law: AG and S7, Human Rights Tribunal, Courts and S6; Inuence of International Covenants: courts can take into account when interpreting law; Effect of BoRA on Criminals: minority in NZ that may be oppressed by majority; courts play a role in protecting them and use BoRA to do so. Arrest and Detention NZ BoRA 1990: s21: unreasonable search and seizure; s22: not to be arbitrarily arrested or detained; s23: rights of person arrested/detained: reasons; lawyer; validity of arrest Crimes Act s315: sub(1): no common law powers of arrest (Police v Cox); sub(2) must be an imprisonable offence. Initial Contract with the Police: No Power to Detain short of Arrest: Blundell (Dated younger girl, uncle saw in street detained police also detained while inquiry H: (1) Detention short of arrest unlawful (2) False imprisonment = restraint of personal liberty); Duffy (Cancer patient thought drunk despite explanation H: (1) Wrongful arrest for being drunk judged objectively w/ what p/o knew: looked drunk but gave a reasonable explanation (2) Not taking immediately to station was reasonable). Power to question short of arrest: Rice v Connolly (Obstruction: anything that makes P/O work more difcult; false information yes; say nothing no); Elder v Evans (Suspecion of being poor - but arrest for not answering question H: unlawful arrest, but small award b/c brought it on himself) Edwards (drunk motorbike ho helmet p/o H: (1) Holding and stopping from entering house was unlawful detention short of arrest = false imprisonment: should be claiming to arrest); Everitt (bike currier H: (1) not a detention but a request for inspection (2) arrest for bike grazing was on reasonable grounds of assaulting p/o). What constitutes an arrest: (1) Touching (must be rst step in a formal arrest) or acquiescence + (2) words (must be brought home); Regina v Inwood (arrest question of fact: must understand you are under arrest); Thomson (Suspected drunk; while p/o locking car he went away H: words must be accompanied by either touching of acquiescence: neither here); ITW (Female p/o grabbed boy running out of van and dragged to street H: P/o did not say arrest but okay b/c formal arrest was inevitable outcome - but he is not guilty of obstruction b/c under circumstances actions reasonable). When can police exercise right of arrest: Power of citizen to arrest: ss 34-38; R v N (shop detention: not a power of arrest, but an immunity) Source of power to arrest w/o warrant: s315(2)-(4): good cause to suspect Anderson (Information police has at time of arrest must satisfy "reasonable suspicion!: objective test; not high standard of proof) Discretionary nature of power to arrest: Saints Article; Neilsen (s22 - former p/o advised to escort police or would be arrested for alleged thieving of $200 from former employer H: Police have discretion: here b/c nature of offence a summons would be better: improper exercise of discretion) Prevention of breach of peace: No statutory def; no offence. Police have common law power to do what is reasonable to prevent an anticipated breach of the peace: Williams; Minto. Legal Consequences of Unlawful Arrest: long time and expensive Civil Action: Harris (Aggravated police in court holding cell and was beaten up and dragged afterwards H: focus on police wrongful conduct: degree of violence; treatment afterwards: $30,000). Habeas Corpus: determine legality of detention (precedent over any other case) Civil Action for BoRA breach: Hewitt (Bring either under common law or BoRA - under BoRA may get more where not available or inadequate) General discretion to exclude (real) evidence for unfairness: Hall (drunk 17 y/o crashed asked police to phone dad or lawyer and was told no; doctor for blood test gave full examination: lost test wanted to use examination in trial H: no police discretion b/c local judge said to do it all the time: exclude evidence b/c special circumstances); Murphey (Common law application to exclude because warrant was invalid H: (1) Common law discretion to exclude evidence survived Shaheed (2) mere fact it was unlawful does not make it unfair show something over and above - nothing special here) Exclusion of evidence breach on BoRA: Shaheed (No balancing if: (a) trivial (b) not connected (c) would be discovered legitimately test: (1) Was there an unreasonable breach? give weight to fact BoRA right breached (2) Balancing proportionate response to breach? (a) nature of right (b) seriousness (c) deliberate or reckless (good faith=neutral) (d) nature of evidence (e) importance of evidence (f) credible legal system (g) availability of alternative remedies); R v Maihi (Guy who drove out of gang headquarters had car searched despite protest H: (1) Fact search unlawful not necessarily unreasonable (2) unreasonable b/c was not an emergency and had alternatives and had only suspicion no belief (3) use NZ values when assessing balancing test (4) exclude b/c not enough public interest in small crime for breach of BoRA). Arrest under NZBoRA (remember Shaheed!): s23: Arrest or detention under any enactment: Goodwin (Not excluded b/c held not to be an arrest or detention under an enactment) s22: Arbitrary arrest or detention: Goodwin 2 (Baby died husband interviewed told can go but asked to wait and interviewed again after statements compared and incriminated himself H: clearly arbitrary (left open whether any unlawful = unreasonable)); R v M (Islander raped student in part police came to work at night told to come with them did not understand and interpreter not experienced H: Mixed objective/
subjective test: (1) did he believe he was not free to leave (2) was it a reasonable belief should not be disadvantaged b/c did not know it was boss). Unreasonable search and seizure under NZBoRA: s21: Jefferies (searched car suspected of armed robbery and found drugs H: (1) Unreasonable if circumstances unreasonable or exercised in an unreasonable way (2) any search is an invasion of privacy, but extend depends on situation (3) Challenge unreasonable search also on common law (but wider and more elastic under BoRA) (4) No breach b/c reasonable circumstances (t description) and p/o didn!t go further than required); Pratt (strip search in public incriminating keys found at offset H: (1) strip search in public = unreasonable (2) Search cannot be split up: keys excluded and would not be found otherwise b/c could change pants); Grayson (Kiwi orchard search on tip off done quietly H: (1) Reasonable because nothing disturbed, did not go into house and was short and to the point (2) Nothing every observation is a search: fact and degree). Judicial Review JUDICIAL REVIEW Legislation: Application for review of statutory power - s 4(1) Judicature Amendment Act 1972 - s (3) interpretation of statutory power Remedies (High Court Rules): Mandamus (compel - s623); Injunction (restrain - s624); Prohibition (s625); Certiorari (review determination - s626); Removal of ofce (s627); Declaration & Injunction are "ordinary! remedies Standing: Boyd: Interference with personal rights. Self-Employed Deny only if clear no possibility of succeeding on the merits: suspicion of a case enough Finnigan: More important, the more likely granted; If not alternative plaintiff; Signicant body of opinion supporting SCOPE: CCSU (Minister exercise prerogative powers government intelligence!s trade union membership (fear of strike) argued told and opportunity to respond H: (1) If decision affects a person and decision maker empowered by public law then decision reviewable (Roskil: some prerogative not reviewable: high policy content or affect whole country) (2) legitimate expectation b/c past practice to keep membership BUT, fail b/c national security) Burt (GG declined pardon for murderer H: (1) Adopted CCSU: prerogative not immune if courts competent to deal (2) Failed: b/c safeguards over the prerogative) Bentley (Pardon after execution refused b/c long practice H: Court cannot review policy BUT secretary did not consider different kind of pardon, and he could do that). GROUNDS FOR REVIEW Wendsbury (Local authority refused under 15 cinema Sunday!s H: (1) Discretion is for the decision-maker: box analogy (2) So unreasonable no decision maker could reasonably (usually something else goes wrong: use as an umbrella)) Padeld (milk market board prices minister refused investigation committee under statute b/c of political complications. H: (1) No unfettered discretion for minister (if the minister so directs) (2) When exercising discretion: actually consider complaint; not misinterpret law; not take into account irrelevant consideration; regard relevant ones (3) IMPROPER purpose (foundation of): Discretion must promote policy and objectives of the Act (Act as a whole): political consequences improper (4) If court nds no reasons it will infer them) Ridge v Baldwin (decision large scale vs individuals) Daganayasi Investigation with medical referee produced unfavourable report appealed to Minister talked wrong doctors H: (1) NATURAL justice = fair play in action not technical rules; no procedures in Act and had legitimate expectation b/c son kiwi (2) mistake of FACT (Cooke): if decision-maker needs to determine certain facts to make a decision and gets wrong information: talked to wrong doctors (3) Cooke combines both grounds into "SUBSTANTIAL unfairness!) CREEDNZ (Cabinet: National Development Act speed up smelter H: (1) NATURAL justice: act intention to speed up; apex of government; consultation with local authority detailed in Act (2) BIAS: Decision is a policy one of cabinet, so test: whether their minds were not closed. (3) RELEVANCY: The more important, general and obvious the consideration, the more ready must the court be to enforce it: considerations were opinions and cannot prove cabinet didn!t consider other side (4) error of LAW: "essential! to the nation: high test: dismissed b/c value judgement and no evidence of lesser standard applied) Scottish Ministers (Told Scottish parliament certain section would prevent courts from making an order against them; later as judge held section had that meaning H: (1) BIAS: Apparent bias enough; Test: fair-minded informed observer conclude a real possibility tribunal was bias (2) Reasonable observer consider bias) Evans (Young police ofcer good job stats, but bad reports meeting case not put to him; decided to re b/c small issue the municipality which was still being complied with H: (1) No unfettered discretion: regulations set criteria (2) Three criteria for dismissal: (1) pleasure (2) something against him (3) master-servant - use contract (3) NATURAL justice: Need oral hearing, disclose information and give an opportunity to reply (4) Found mistake of FACT (5) Found BIAS) Webster (foreshore license board changed to "user pays! valuer ascertain raised costs according to nearby house value H: (1) Contract based on statutory power, so it is reviewable (2) Act doesn!t exclude market value approach: used valuer price not arbitrary (3) NATURAL justice: Not consult every single license holder) Carmichael (Elderly couple moved oz health reasons superannuation discretion to demand money paid back based on 5 criteria. Only reason against them was that they had savings (one of 5 criteria - not inequitable) H: Decision UNREASONABLE and SUBSTANTIALLY unfair - no reasons; row of ticks with one cross may amount in other circumstances to the same) Hook (Store-holder at market urinated at side street when market closed. Argued with security ofcer. Next day he apologised, but was banned from the market for life. H: DISPROPRTIONALITY (part of unreasonableness): Evidence that such harsh measures not taken to others in the past) DELEGATED LEGISLATION Regulations Review Committee: Standing Order 197(2): (1) general accordance with objective (2) unduly trespasses personal rights and liberties (3) usual use of powers (4) unduly makes liberties dependant on administration (5) exclude Court jurisdiction (6) matters more appropriate for Parliament (7) retrospective where not authorised (8) proper consultation not used Alan Johnson: Initial assumption nothing wrong. Overall approach: McEldowney v Forde ((1) determine meaning of words used in the Act of Parlia-
ment itself (2) determine meaning of subordinate legislation (3) does it comply. Do so in light of objectives and scheme) General/Specic clauses: Objective/Subjective Test: Reade v Smith (Decided that when schools were full could compel student to alternative: Subjectively construed provision anything he thinks necessary for H: (1) Always inquire into whether reasonably applies (2) Regulation was not for due administration for the Act - okay to cap enrolment, but not to compel the students to go to another school - Act preserved parent!s freedom to choose) Interpretation Presumptions: NZ Drivers Association: Parliament presumed not to authorised encroachments on individual rights, taxes, or withholding access to courts. Ultra Vires: Repugnancy; Irrelevant considerations; Alan Johnston Sawmilling (Forest Act exempted SILNA land Trade Minister tried to defeat regulations of no exports unless authorised by him under export act: leverage negotiations H: (1) Reg 4 was repugnant: executive sough to defeat the exemption (2) BoR1688: prevents executive suspending operation or benet of laws by Parliament (3) IMPROPER purpose: regulations not made for purpose of empowering provision - sustainable forests vs import/export) Uncertainty (MoT v Alexander - too ambiguous for Parliament to consent); Unreasonableness (Turners & Growers v Moyle - so unreasonable making not contemplated by Parliament); Procedural Impropriety (Turners & Growers - failure to comply with procedures - right to be heard if uniquely personally affected); Unlawful sub-delegation (FE Jackson v Customs - cannot be sub-delegated unless Parliament says so). Consultation (Turners; Fowler v Roderique). TREATY OF WAITANGI ToW cannot be enforced in courts, unless a statutory recognition of it can be found (PC Hoani Te). In Lands Case Cooke J said in reference that the treaty is not a bill of rights and does not over-ride legislation. But he said it is a document that deals with fundamental rights and should be interpreted widely and effectively and that the Courts will not ascribe to Parliament an intention to permit conduct inconsistent with the principle!s of the treaty. The Waitangi Tribunal: Set up under the Treaty of Waitangi Act 1975; Functions and Powers: Hear claims by Maori and make recommendations on action to take and on proposed legislation Legislative References to Treaty principles: Direct Reference to Principles of the ToW: SOE litigation Lands Case (SOE Act 1986 - s9 said Nothing in this Act shall permit the Crown to act in a manner inconsistent with the principles of the ToW - Waitangi Tribunal concluded land transfer to SOE detrimental to settlement process - Crown argued s27 dealt with land cases and s9 should not extend its meaning H: (1) S9 should not be read down: commanding language, in part 1 of the Act and land is the most important asset to Maori (2) Meaning of Principles of ToW: (i) basic exchange (ii) partnership (iii) active protection (iv) consultation (v) remedies for past breaches (3) Principles do not authorise unreasonable restrictions on the government to follow its chosen policy: ask what would a reasonable Treaty partner do (4) Government transfer to SOE was in breach of s9) Claw-Back: s27 if Tribunal recommends land to returned, it shall be returned Broadcasting Assets (transfer broadcasting rights to SOE; taonga Maori language would be affected H: (1) Acknowledge the underlying mutual obligations express and implied in the ToW: chief obligations is active protection (2) Crown must do what is reasonable in the circumstances: Crown could still full its obligations and therefore it is reasonable in the circumstances (control the SOE or legislate to control it) (4) Goods (radio waves) are substitutable. Cooke Dissenting: looks at the reality of te reo Maori and says the Crown must do more to preserve it) Indirect/Inferred Incorporation: Lands Case (interpreting ambiguous legislation not ascribe intention to permit conduct inconsistent with the principles of the ToW to Parliament) Huakina Development Trust (Issue whether local council had to consider Maori spiritual values when allocating water rights for efuent: relevant legislation did not refer to the principles of the Treaty or spell out relevant considerations H: (1) Principles of the Treaty and Maori beliefs on purity of water were relevant considerations (unlikely this outcome would be the same if a list of considerations existed)) Whale Watching CA-full (Granting of a whale watching license to compete with Nagi Tahu: nothing in the Act referred to ToW, but the conservation department had to operate under all it!s legislation - Conservation Act did refer to principles H: (1) Construe reference widely: b/c nothing in this Act contradicts, principles are imported as a consideration (2) Although not a traditional Maori activity, Nagi Tahu had an interest in the whale watching, which was related to Taonga (3) In this context a reasonable degree of preference in activity of whale watching of Nagi Tahu was required) Fisheries Litigation and Settlement: Fishing rights protected by legislation in some way since 1877. Reform in shing industry to allocate shing quota - s88(2) Nothing in this Act shall affect Maori shing rights. Te Runga o Muriwhenua (Interim Decision on allocating shing quota with the section: (1) Before 1840 Moari had a highly-developed shing industry with a commercial element to it (2) Preliminary breach of section). Crown eventually settled with most Maori in the Sealord deal, which was challenged in court, but then set into effect in legislation, putting all Maori claims in regard to sheries to rest Treaty Grounds for Review: (1) Consultation (either natural justice as treaty partner or ToW principles) (2) Error of law (take into account Treaty Principles) (3) Relevant Consideration (take ToW into account either express or implied + all decisions are fettered).

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Principles of the Constitution

KiwiLaw Blawg http://kiwilaw.blogspot.com

KiwiLaw Blawg http://kiwilaw.blogspot.com

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Controls on the Executive (Judicial Review)

KiwiLaw Blawg http://kiwilaw.blogspot.com

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Role of Courts & Parliament as Arbitrators of Individual Rights

Arrest and Detention

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Week 18 - 2 to 19 - 1 = official information Week 19 - 2

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Week 18 - 1 - Paul Roth

Week 18 - 2 - Paul Roth

Week 18 - 3 - Privacy Commissioner

Week 19 - 1 - Assistant Ombudsmen

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Week 24 - 1 - Justice Tipping

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KiwiLaw Blawg http://kiwilaw.blogspot.com

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