Law 121GLaw and SocietyStream 3

Part AGovernment

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Lecture 2Parliamentary Supremacy and the Relationship between Common Law and Statute

Guidance is needed to know how to behave. Learned behavior. Good law arrives from where society should be going. A blurred line between social norms and laws i.e. spitting on the floor is considered unacceptable but it it not punishable by law. The defining difference between illegal and legal rules is to do with the enforcement of the state. Illegal system: enforceable social norms (Veber). You should be able to do what you like unless you are breaching someone elses rights. What is meant by rights here? Positivism versuses natural law.

Separation of power (Judiciary, parliament and executive) and the role that the various elements of our democratic system play. *

StructureCommon law and statutesDifferencesRelationship between common law and statutesHistorical background

Common law: comes from Britain (we are an ex colony of Britain until 1986 when it become constitutionally clear that we were no longer under the rule of UK, should we get rid of this stuff or keep with tradition?) Largely derived by judges to what they percieved the law should be (Judge made law) This is guided by the doctrine of president in the heirachal system of courts, presidents are usually created by the highest level of court. Check what laws have said before, what the higher courts have said. Also based on the values that the judge considers typical of society Statutes: Made by parliament. Parliament consists of House of Rep and Gov Gen who signs the statutes and thereby create law. Very minor role but still the rep of the Queen. This is a convention rather than power thing. Imperial statutes are very old doccuments; Bill of Rights and Magna Carta which fill the role of a constitution. These are largely derived from Britain. Public (citizens and state), commercial law Criminal law. Local and national laws. Differences: Statutes are prospective while common law looks back at the past. In common law, the judges must have the dispute before them rather than Parliamentary supremacyIn 1688, Britain revolution, Parliament wanted a decent King that they could tell what to do.

Relationship*

Common lawInheritance from mother BritainDevelops incrementally through application of principles to new fact situations by judgesJudge-made lawDoctrine of precedentEmbodies certain values (e.g. respect for individual dignity and individual possession of property)

StatutesAlso referred to as acts or sometimes legislationLaw made by ParliamentParliament consists of House of Representatives plus Governor GeneralBroad range of areasImperial statutesTypes of statutes

Some differencesCommon law is backward-looking; statutes are prospective.Different formJudges must have dispute before them; Parliament has greater freedom

RelationshipWhere there is direct conflict: statutes prevail over common lawParliament is supreme:Parliament can pass statutes that override the common law;Judges must accept Parliaments statutes as valid;Parliament has ultimate authority to determine what the law is.

Historical BackgroundThe Glorious Revolution 1688Bill of Rights of 1688 establishes Parliamentary sovereignty

Development of Parliament and limitations on Crowns power

Relationship between common law and statute

Lecture 3Annexation of Aotearoa/NZ

Do we actually have a constitution like every other country? Constitution is above parliament but NZ does not have a set constitution. Is what we have enough to secure human rights, democracy etc? Parliament would become inferior to the constitution> Uk also doesnt have a constitution but is part of the EU, the european law is superior to British Law. We have a constitution on several pieces of paper and is not supreme. We have constitution because of the Treaty. Is parliament soverign? The NZ govt. takes a view that Parliament is sovereign. The discovery of NZ by the British Crown. The view that the majority holds. *

Structure Timeline / key dates So what really happened?

There is a number of decades where Britain took power of NZ. The separation between soverengty (Legal act) At what point did north and south island became part of Britain at different times. People are not quite sure when England disowned us. Transitional period. NZ is like a teenager/young adult. Maori people have strong bonds with the land/ancestors. Think of themselves as part of the land. Very holistic and Tribal. Pakeha used to be like this, but this happened along time ago. Mismatch in time frame. Common ground needed in order to move forward. *

Timeline Formal legal stepsLetters patent (15/6/1839)Receiving of English law in NZ (14/1/1840)Signing of Treaty of Waitangi (6/2/1840)Hobsons proclamations (21/5/1840)North island by cessionSouth island by discoveryNotification of proclamations (2/10/1840)

There are a number of events that lead to the establishment of British law in NZ. British interest in NZ was much bigger than the interest of the French. A few thousand British setlers were here, forming their own govt. Leutenient Hobson, 1839, had the status of Gov. Gen. He received a letter on the 15 June 1839, a letter patent, certain wishes are expressed, not legally binding, but is conventiooanl to follow otherwise you may risk losing your job for example. The letter said that the process of annexation is followed through. 3 weeks prior 6th of Feb, it was later established that english law was received. It tooks a law in 1858, to establish that by the time there was the Treaty Britain law had already been implemented. The negotiators themselves had good intentions (they wanted to live there) The big companies in England called the shots. Hobsons proclamation is a legal doccument under which the gov. gen. proclaimed that the north Is. Was encorpoarted into the annexation by britain by cession and the south Is. By discovery. Cession refers to a voluntaryy transfer of territory and normally occurs after a war, cesses surrender. Legally transfering sovereihnty to the birtish crwon and in return the british would prtect them. Th esouth is. Was empty(no maori of signifcance) there was no legal relationship with them. (similar to protuguel and spain). *

What really happenedSo far, discussing legal events. What happened on the ground?

James Belich gives some background to annexation of NZ:Commerce, Christianity and colonisationProcess over period of decadesNominal sovereignty isnt actual control

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Belichs three scalesThree different strands to consider when we want to figure out what happened

Intervention scalePower exerted to obtain empireOstensible authority scaleNominal or imagined situation (refer above)Actual control scaleSuccess of intervention and substance of authority

What factors influenced annexation?3Cs: Commerce Christianity Colonisation

Not just pushes from Britain to acquire new colony; also pulls from interests in NZ and NSWAnglo/French rivalry & myth of empire

The three CsChristians: missionariesMissionaries in New ZealandParent organisations in EnglandColonists (organised immigration)Wakefield, NZ CompanyCommerce and capitalistsMerchants in NZ and NSWMerchants in London

Other factorsAnglo French rivalryMyth of empire

If we really are in that situation that we must do something it is only another proof of the fatal necessity by which a nation that once begins to colonize is led step by step over the whole globe

Lecture 4The Declaration of Independence & the Treaty of Waitangi/Te Tiriti o Waitangi

*The Treaty confirms the transfer of sovereignty to the British Crown on the 6th of Feb 1840The Treaty set a new foundation yet to be fully understood and applied. Who is in charge?

StructureLegal agreements: ascertaining meaningBackground Declaration of independence 1835Treaty of Waitangi/Te Tiriti o WaitangiDebates about the treaty (at the time)Where to now?

*Legal agreements: contents of various articles of the Treaty not being quite clear about the meaning and what the obligations are. The vagueness of any Treaty lead to interpret every single word. If the wording is not quite clear, you go back to the past, what was the understanding when the Treaty was signed originally? Find a similar case that helps. The ambiguities of contracts is not the problem, it is more the different languages of the Treaty. The Maori understood very differently to the english. Cultural clash as well. Typically, when Maori enter Treaties it is under good will/ intention, the spirit of living together. But the British dont think like this. Background: Declaration is important because of its words, it helps us to understand the Treaty more closely. Neither the British side or Maori side have claimed an underlying importamce compared to the Treaty, it is more of a marginal importance. More to send the French govet. A signal, the French guy that claimed land in Northland, Busby didnt want this to lead to French annexation. Debates about the Treaty: (at the time) How the Treaty was perceived?

BackgroundMaori text of Declaration and Treaty written in Missionary Maoriwh was not used in written Maori until 1845, so wenua = whenua

Why did missionaries have such a big role?

*Missionaries were very knowledgable of maori language and understood Maori to a degree that they could meaningfully communicate with Marois. Rev. Henry Williams a witness to the dec, of independence and was later asked to write the Treaty. No written Maori language. There was a great trust on the missionaries. Huge responsibilty.

Declaration of IndependenceNote the political terminologyindependence and independent state= rangatiratanga and w[h]enua rangatirasovereign power and authority = kingitanga and manafunction of government (How to minister affairs, who sets the law) = kawanatanga

*Any translation from any text (Maori) into another language requires the authorization of each party. Here, the Maoris didnt authorise the english translation but the Treaty was only technically only in the Maori language.

Treaty/TiritiSee text and basic guideMain dispute is over A1 and A2:Article 1: absolute sovereignty

versus kawanatangaArticle 2: exclusive undisturbed

possession versus tino rangatiratanga

*Sometimes a direct translation is not possibleHidden or open descends, there is no common ground. The english side never accepted the Maori side. Therefore the Treaty would have no validity and become a nullity and cease to ewxist. According to international law, the Maori did not transfer soveregnity. What appears to be an injust anexation (no legal doccument that justified or legitimized it) of Maori land and over time an unlawful occupation of land, can in fact develop into a lawful occupation over time, A revoltionary act did not happen over night. This would develop into establidhmet of a new country soveregin and in patetrdhip with maori and british settleer sand implying the westminster system of govt. injustice can vannish thst maori have tolerated, and benefitted from it .

Over time an unlawful contract can convert itself to a lawful document.

Debates over the Treaty/TiritiDebates included oral undertakings by Crown representatives.Included fourth article to respect Maori custom/law.What debates illustrated about Maori understanding of what was going on.What the British thought was going on

*The British translations dont quite match the Maori wording. T\

So where to now?Both sides locked into own cultural worldviews; at cross purposes

Later lectures: what is the legal status of the Treaty of Waitangi?

*Transfer of absolute sovereignty occurred (english), referring the continuation of Injustices have occurred: wars and land sales, which have lead to compensation that was later understood to be all illegal. Which has lead to the settlement protest as a form of compensation After 2017 the National party will likely want a fresh start; all uncertainties have been settled, the Treaty no longer has a place in NZ society except in history. One law for all.Labour and other parties have a more nuance view, the settlement protest itself is justifies but doesnt tell us what happens next, the legal status of the Treaty is left open. Legal status of Treaty is unclear not part of constitution, not an nullity, not enforceable because we dont know what the obligations are.

Lecture 5Parliament and the Enactment of Law

*Recap:Treaty is not cast in stone because of the disagreement about the meaning and legal status of the Treaty. The common British view is that NZ transferred sovereignty to the crown and was preceded by the declaration of independence, which had a similar function and made NZ a legal entity that was capable of be transferred. Why should maori accept it, Maori believed that their rights were not transferred but why would they? Their culture doesnt follow this. This lead to settlement protest- a payout for past injustices (land, wars) 2017 the pass has been settled. Disatisfaction of Maori and Pakeha, money doesnt acknowledge the relationship and respect and settling. You can not own the land/ atmosphere/ waters, the land deserves our care. Constitution framework of NZ Key governmental structures of out system- in what way is NZ very different to NZApplication of the rule of law- people create the law and then live under the law. The laws need to meet certain requirements in terms of not violating higher laws.NZ is unique in one sense, that we do not have constitution supremacy

StructureThe Constitution ActThe different branches of governmentThe Separation of PowersThe legislative process

*Separation of Powers- keeps each one in check The constitution act

The Constitution ActSets out some basic institutions of NZ legal systemRemoves residual power of English Parliament to legislate for NZThe impetus for the Act

*There should be a parliamentLength of parliament and what makes up a parliamentJudges should be protected in their jobs and must not be removed from office and have a secure salary. This appears in the constitution Act to stop the governental pressure and can be truly independent. They musnt feel threatened if their findings arent want the govt. want. This is the same in all countries. In NZ, judges appointed by judiciary rather than people appoint, in US, the President appoints the Judge, (kinda belong to a party)1986, NZ is a truly independent sovereign country and not reliant on Mother england. 1947, through legislative act of UK, it was a convention that the UK would refrain from influencing the govt. activity in NZ excl. The gov gen and privy council. Bad experience with Muldoon, who gave gov gen wrong information, played with Parliament Im going to be in charge so I can tell everyone else that we are going to change the lawIgnored due protest. Deep disrespect of law of Parliamentary process. Not a real constitution as it lacks supremacy, Bill of Rights are not enshrined in our constitution. Human rights are not directly enforceable by law. The assumption being the the executive, parliament and the judiciary will look after our rights. Equally can be said about democracy, each constitution has clear rules about democracy, you can sue govt. for a lot more things, a lot more standing rights, values expressed e.g. the govt. has to protect the environment. The reason we dont have this is because of history. Nzers dont get nervous about this because we trust our culture, our laws are democratic, judges havent failed us. The emergency legislation for the earthquakes is the dismantling of democratic process, or the restriction of demonstartion right, clearly unconsittuion biut we do not have a constitution.

Branches of governmentDifferent parts have different rolesSovereign/Governor GeneralExecutiveLegislature (Parliament)Judiciary (Courts)

*Each branch of the govt has a different role to play: sovereign: Queen Elizabeth, all political power rests with the Queen, but since 1688, no monarch can rule against parliament, ultimately parliament in charge. The gov. gen. acts on her behalf, their job is to legalise parliamentary laws ascend of laws. If we shift to a republic we would have a president and a prime minister, in some countries the President is more powerful than the PM. Executive: the PM and also the ministers- Cabinet (senior ministers and PM) who initiate new laws that become new laws and to execute laws as they exist and minister laws. Legislature: Parliament sits above the executive because Parliament is a direct representation of us and parliament elects the executive. Constitutionally speaking Parliament is above executive but not above Judges. Parlimant in NZ is very pronounced, the only body and highest body where law comes from because we do not have a supreme body of law (constitution) if we had a constitution we would have to follow it by designing laws that are written in the spirit of the will of the constitution. To some this is not democratic, unelected judges shouldn'tt tell us what to do. Democracy should be a bit richer than that, it should have human rights and the ability to stand up for human rights and have the ability to participate in law make, other countries have a lot more avenues for human rights e.g referenda, culture of demonstrations. Culture of demonstartions (free press) constl have clauses about free press, guidelines to how protest can occur so citizenz know what theyre doing. Media need to be objective and informative, not enough for entertainment TV is unconstitutional, because ethere are not enough elements of democracy. Radical people among the media (confused with left or right) have a prime role of keeping govt. honest. Countries with const. are not less democratic. They have only said while once at beginning at life of poloical for country there should be a prime rules,whuch is made by the people and not parliament. This is democratic procvdie dconst of proetest in proper, Highlight of social and cultural life, all countries admend th econst and add . This is where NZ is heading. Where we can identify who we really are, not just as an extension ofengland. Moving away from the Westminster system.

Separation of PowersBegins with 1688 Glorious RevolutionBasic idea: concentration of power in single institution is dangerousAn ideal, associated with Montesquieu and LockeNZ: not complete separation of powersCompare other systems, e.g. US

*Enactmant of a momnacrh ynder tohe terms of parliament which has establkished parliament supremacy. Essentially creating a democratic system. The development of democracy was a protest. Around 1700 where judges were employes and dismmed by King/queen. The judges have now become constituetedion independent. Basic idea is that all was to minmsed concentration of power in the hand of too fe; to avoid dictatorshiip. Both responding to absoulte monarchies and defined the concept of absolute poawer can be shared by atleast three, usually holding each other at bay. In NZ we dont have a complete separaction of powers, whoever has majority on parliament rules, although this is similar to other countries, NZ is different because there is nothing above them. Whoever happens to win elections is truly in charge and can release laws that they see fit. Only severe rules (e.g. ones that violate human rights), will not pass parliament. Due to mech. In parliament pretst under which parliametary legsialtve advisory board does, screens through laws ensure consistent with human rights etc. technical mechanism to ensure parliamet cant get away with everything. They oftem do though and rule closely to illegality. Certainly ongoing risk of too much power of elected govt. Compared to the US, which in some ways is more democratic, really good separation of powers, the US president is much more powerful thsn John Key buit if majoruty of power rules against him he cant pass bills. Lame duck. He can make decisions about war Budget has to be passed through congress. Germany (student parliament) and France. A culture of democratic education in our high school system.

Legislative ProcessRefer diagram (p 68)Where do ideas for new law come from?Government of the dayCoalition agreementsOther government MPsCommitteesOther relevant governmental bodies (government departments; Law Commission; Royal Commissions Individuals

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Pre-introductionDevelopment of policyConsultationVetting for compliance with Bill of Rights (1990)Get on legislative programme (decided by Cabinet Legislation Committee)Drafting: usually Parliament Counsel OfficeChecking: Legislation Advisory CommitteeDecision whether to introduce bill

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Introduction and beyondRules governing procedure of Parliament = Standing OrdersWell established proceduresFirst readingSelect committeeSecond readingCommittee of whole houseThird readingVoteAssent

*There is not a neat protest and vote for the right party. Complicated process. In reality there are conflicting interests. The whole parliamentary machinery is scared to follow every purpose all in the spirit of pularity and th einput of the variuous sectors of democracy. It can take a couple of ideas to end up as law. It depends how the govt of the day is wanting the law. This is dangerours, in other countries it is ruled as a constituion, we having standing orders, and guideliens, we can never be sure when an idea enetr the system. Most stuff comes from cabinet and follow through election promises and what came up during govt.time. Cabinet legistaltion comitee, roughly 60-70% of all laws entering this way. Cabinet istelf being ministers have portfolios and own responsibilities. Legistlation comittes, parliamentary council (lawyers, proper legal protest os followed, laws are matching up with higher laws.imporatnt law-bill of right) back to cabinet, where its s decided whether to be introducted to the house. Th e first reading, and then decided whether to go to slectect committee (swritw a submission and then you decide wherther your submission can be heard, kinda stupid, resource managemt act this year). The govt. introduces a bill when gov. gen. signs. Cabinet bills are cardefuly sought throuhg. Any MPs that are usualyy sitign outside of cabinet can introduce a bill. They have a chance that there bills can get through, provate memnber bills have th expectation that they dont get through because they are the opposition, but purely dfor argyment sake. Law reform bodies such as the law comission, body of lawyers that from tim to time pick up certain issues, e.g petrol, alcohol, a greater significance to any issue, that the law comisson cosider to be improtant of any imporatance, goes thoguht he creening of the house. Individuals can submit/ draft a bill usually comesfrom Unions, lobbing. Who knows what goes behind the scene- TPPA is very secret. What we have seen in various doccuments, is a sinister scenario, it would mean that under the investment protection programme, any kind of investment would be protected, the whole environmental field. The foregin companies can sue our country because we are not protecting their property rights. Neo-liber economics or market fundamentalism.

Lecture 6Courts and Juries

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StructureCourtsWhat are they?What do they do?Court structureThe concept of jurisdictionCharacteristics of court processJuriesHistorical developmentJuries today

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CourtsWhat is a court?An institutionA physical entity

Some history

*What is a court?An instituion where a body of persons are signed to resolves conflicts between parties ina oeaceful manner. The court refers to the judges. The physicla entity- the judge and th ecourt house (come hsitorically from the Kimgs Bench, judicial institution- kin/queen court)History:1840, a letter patent was issues to gov gen hobson to simply ask him to appoint judges, even when judicial law didnt apply, the settlers were proactive setting uo a courts system, effectively establishing sovereignty of court power. We have a v english suystem, the highest court on NZ was in london (the provy council made up of lords) You are awlsy seeing kegailtuy of actions in NZ being the highest of actioms. The last case of the privy council was a few weaks ago. Th supreme court replacing the privuy council. We have an independednt review system but the key chgaracteristcis are still english. In some places you can start to be a judge.

What do courts do?Resolve disputesInterpret and

apply the law(statutes)Clarify and

develop law (common law)

*Statutes- start with existing statites and bylaws that fit the case at hand. Only when tyou find that there are gaps, you draw dfrom common law an dprecedents, other cases. How the facts are being established. Judges tend to be conservative. Chief justice of the supreme court. How should you read judges. You are either a positivist vs naturalist (ask about the reasoning, whether it si condusince with long etablaihsed traditches, is it democratic etc) The intelligient and creative people tend to be natural lawyers.

Court structureSee diagram ( p 58)

Court structure is hierarchical. Allows parties to appealDivision of workload and specialisationDoctrine of precedent

*Hierachial structure with three levels Entry level (high/disrtict/specialist (enviornment etc)Judiciary reviwew you are lookimg at right application of the law sumpreme court This is to minimise the risk of legal or fatual mistakes. You then have to socnduer questions of juridsaiction of what court does- there are some unique constitution (enviromnement courts at national lebel-unlike other countries, india and china are following, came about the with the introduction of the resource management act, in 1991 we had the worlds most adnanced environmental act. And we need a pseacilailed court to deal with this, advisors to the ourt in order to get more scientific expertise into the court eroom and argue cases with much more scientific competencies. Not quite sth ebreak through, if the judgements are not found, and gone to other judges that arent quite so familiar with environemntal law. Judges can do anything with the exceoption of a few sub branches (maori rights and laws-maori land court, waitNGI tribunal- treatment of maori, make suggestiosn but it is up to the govt. of the day to make a decisoon)

The concept of jurisdictionThe power or ability to hear a certain caseMay also refer to geographical limitations

Types of jurisdictionOriginal versus appellate jurisdictionCivil versus criminal jurisdiction

*Civil law between peoplePublic law people and authority The rest is determined by the nature of the court. District court where not so much money is at state. Geograohical jurisdicition, anyone who comes into the country can be subject the juristdiction here but limiote dto any kind of offences you comit. Conflict of laws. Establish the exact jursidiction.

Characteristics of court processAdversarial process- adversarial protest

Open Justice- crucial, transparent (we want to see that justice is being done, people can watch)Access to justice- fundamental principle, equal human rights, regardless of financial situation (lawyers cost), a massive barrier to judicial system, but it is guaranteed

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The JuryHistorical developmentPredecessors of the juryCompurgation/wager of law- Trial by ordealTrial by battleJury trialArose out of administrative proceduresJurors used to provide information out of own knowledge

*The idea that the public who is receiving the judgement can also be judged. There to establish the facts to provide the Judge msterial to which he has to make the law. This comes from england when courts were not that independent. People were bribed. Lawyers can lie to win. Jurers have to be neutral and find out where the evidence really is. Get rid of adversierial system as the chance of a mistrial is too high. As a you fundamentally you are being exposed to the evidemce as being provide dbythe two parties, there is no mechanism that the truth should be coming ouyt all you have to do as a party is be better than the other side. Jurers are not able to get tp the bottom of it. The alternative would be jurers (lay people) who would work together with the judges, who all are trying to get to the bottom of it. They can ask for evidence themsleve. Thi scan be clumsy and slow and expensive (employ more judges) a much more genuine protest. Precescessors of the jury:

Juries todayTrigger of jury trial: any criminal offence punishable by more than 3 months imprisonmentRare in civil jurisdictionProcedures for jury selection regulated by statuteWhat are the pros and

cons of juries? Should we keep them?

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Lecture 7The executive versus the courts: Fitzgerald v Muldoon

*Maority on Parliament automatically has majority of the executive. They are in charge of what the executive does. These kind of powerful situations the PM is in is not being complemented by a constitution. We need to look out for a misuse of power.

StructureIntroduction

Fitzgerald v MuldoonOrigins of litigationThe bill of rightsRemedyaftermath

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IntroductionJudiciary versus executiveJudicial activismParliamentary sovereigntyForeshore and seabed Ahmed Zaoui

*Ongoing uncertainty, even if we have a ruling case, about who is in charge. The majority of parliament automatically forms the government and the executive is in charge and the PM can tell the judiciary what to do because they have majority in and are the executive. There has been many instances around this issue (1999-2009) Labour govt. The establishment of the supreme court in an attempt to get rid of privy council (english heritage)- should we have supreme court in the first place? Chief Justice shown with having a more independent supreme court in an attempt to constitutioanlise NZ more. People Michael Cullen Vice PM under Helen Clarke enagaging in certain debate about Judicial activism; sumpreme court for example; How should the building look? Budget? Do we have a supreme constitution which gives Judges the power because the highest is the constitution. Right now, udges have to let palriament make the final decisions about law. Judge Cook, judicial activist, questioning parliamentary sovereginty. It is an ongoing game, we do not know who is wrong. There is a danger where the executive wants to rish through laws and ignore human rights. Judges are constantly concerned with executive having too much power.Foreshore saga 2004, a ruling by the court of appeals that there are ongoing unsettled customary rights Maori towards the ownership and user rights around the coastal areas, were ruled under the highest court at the time, to be governed by customary law under the Treat. Reaffirming that any kind of change by ongoing customary laws laws would have to be coming through parliament. If there was an act that is over ruling customary rights. But still could be tested in courts according to the finding. This is delicate, the court of appeal ruling, despite parliamentary sovereignty, the ruling comes down to the Treaty. This is nothing new, had been the views of the courts for 20 or so years. But this created issues for Labor about who owns the beaches. Labor tries to please everyone; tells everyone that the sea belongs to everyone and is administered by the Crown-the Foreshore and seabed Act. But no one was happy, there were still a number anbout customary rights, Acts trump court decisos. Maori got quite split about this which lead to the creating of Maori party. Labor lost the 2009 election because the loss of strong maori vote. Ahmed Zaoui, was unlawfully held in prison the new incomcing supremem court ruled this a unconstitutional. There was some allegation that he was workinfg for Al-kheada. Sometimes judges win and sometime parliament does. The constitution and human rights guide us in making these decisions. We need a omnce and forever decision

Fitzgerald v MuldoonThe origins of the caseNew Zealand superannuation Act 1974Muldoons actionsThe issueThe litigation and the plaintiffImportance of procedural decision of Beattie J

*Superannuation Act was created under the labor govt. which was compulsory. Employees had to contribute and employers had to match. Equivalnlent to kiwisaver except kiwisaver is not compulsory. Following the global trend to provide for Nzers in their old age. Nzers dont like to be forced. The state has an obligation to provide security to provide for its citizens, this is where compulsory came from. The national govt. campaigned against it. Compulsory vs. voluntary. NZ is a social welfare state- 2nd in the world. National had new thinking sounds like communism. National (Muldoon) won the election. Muldoon, even before he won the election, 12th december 1975, the superannuation board was told to put everything on hold in a letter. Telling them that there had been a press conference in three days time about the abolishment of the superannuation act so for practical reasons it was more efficient when it was the act to be squahsed. The issue is that the act which is in force, and there is a process that he need go through in order to get rid of a law. Parliament can not be act. You can not put an act on hold. An acrt can only be changed/ put on hold by parliament. Fitzgerald sued his own govt. He went to the superannuation board and tried to put money in his super. The super board regected it. He then adressed the attorney general, who refused to do something about it. He then privately prsecuted to legally act against the attorney general. By going to court and ask for an early herring asking for a declaration that the instruction in the letter should be withdrawn.Declarationa nd an injunction which would require a legal order that any act against the super act would be considered to be illegal. The declaration was granted but the injunction was not. Judge Beattie, had to decide whether or not to grant an early herring. Would it be too late to have a later herring. He granted the early herring as too much was at state. He alerted us to the bill of rights, in the absence of the constituition, we need to reosrt to common law and older principles, the Bill of Rights, says about dispensing power, Rule of Law Principle. English Laws Act, that english law dshoudl be applicable in NZ since 1858.

The Bill of Rights 1688S 1:Dispensing power - That the pretended power of suspending laws or the execution of laws by regall authority without consent of parlyament is illegall.

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Implications

RemedyPragmatism - why? You need to follow legal process (const. and Bill of Rights that restrict power)

Aftermath:Lessons about the separation of powers, and the rule of law. appreciate the court went to great lengths in the sense that the executive cannot act against parliamentShould the executive have the power to suspend law?Richard Nixon: Well, when the President does it, that means that it is not illegal.

*We can only exercise our power within accordance with the law. Urgency legislation, we need to act quickly.

Lecture 8Public Interest and Private Bodies: Finnigan v New Zealand Rugby Football Union

*Recap:Chief Justice telling the PM that you are bound by law and if you want to change it you have to go through due protest. The separation of powers: and the PM being reminded not stepping into the business of Parliament. Public law guides rights of Public authorityTodays case, is about an autonomous provate body being told by a court to behave in a certain manner and uphold HR standards, even though the HRs are being breach in south africa. The issue being that a public body is telling a private body how to behave politically All blacks should visit SAFundamentally, we live in a free society, its not the govt.business to interfere with private affairs or political views. We are entitled to do what we like unless we a re in breach of law. Within the boundaries, there are no set moral or ethics so we can do what we like.Here, there is no breach of law, we would really like the Tour to be reconsidered because so much is it stake : Nzs image, beauty of the gameThe Court advised the Union to cancel the tour and backed it up with legal concerns: the glenagles agreement (tell citizens to refran from any activities that showed the countries in support of the apartheid.)Can you be told?1980s-1970sA case that blurrs the boundaries between private and public

StructureBackground and historyLitigation round 1Litigation round 2PostscriptRelevance today?

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BackgroundSocial climate of the dayThe importance of rugbyThe problem of apartheidThe Tour of 1981

*The importance of rugby: the scared cow, bad about rugby splits society automatically. Key to our culture. It was about the arch enemy the Sprinboks. The favourite playing ground. Why should you interfere with such an important affair? Does the apatheid have any effect on sport? Dont mix politics with sport Dont want to be seen as proping up a bad form of govt. The splitting of the countries since the 1981 springbok tour. Break the law deliberatley to uphold a bigger picture. Where we stand on matters now effects how we are seen in the future. Vanuatu- global warming. Lawyers should be a bit more proactive; speak out in order to protect the law , including moral issues.

Litigation - Round 1The plaintiffsThe two grounds claimed by plaintiffsAgainst the objects [of the NZRFU]Wrong body

The standing issueJudicial activism?

*The Plaintiffs were uneasy, the 1981 tour caused much debate so whats going to happen in 1985. They were graduates from law school. Sir Ted Thomas and the Chief justice (current). These two plaintiffs, Finnigan and Ricodrdian, though about how thay could stop thw Tour without demonstrating? Some of us are members of a rugby club, surely being members of a private body, maybe we can express this uneasiness. The image of rugby (admired for the good reasons) and secondly what is the link between us playing in the local rugby club and the union. Parliament which was a new national Parliament, issued a statement callingupon the union to refrain from visiting SA, this was greeted by support from judges and civilians. Winston Peters, Plantiffs put their case on two grounds: against the object (the very nature of rugby ought to maintain its image and should not be seen as supportive of breaches in HR, an effort to convince the court that they have a right to get a court herring) and the wrong body (by syaying a matter of this, where infact the counciil of the union, hasdc decided to accpt th invitation of SA, thecouncil was seen as yhe wrong bofyd to amkethe deciosmn, the callwas that all members of the union make the vcall, all members are indirectly rugby players, because the decision is too big for the council to make.) Whether the case effects my personal interests and is there some kind of legal backing or not, decides whether I have standing. Need to show a little bit that our righst will be effected, distinguish ourselves from the general public. The iTThe issue of standing came about- is this a strong enough casemad eby the Plaintiffs in order to have a full hearing? The chief justice, sided with the defence, its not a matter in which the courts can interfere as it is a private body- The high court followed the Union, no standing granted. The case was then taken to the Appeal, under Justice Cook (judicial activism, can not mix politics and sport, (postivist) view,natural position( look at wider implications and derive findings on the basis of legal and political history). Higher principles at stakes regardless of statutes. Judge- concluded that it was unrealistic to hand the decision back to the whole union (hard to get all members to agree on something).The other angle: normal standing terms, there are rules under which you can prove that you have legally protected interest in the outcome of the case. The Jufge referred to an early case, Stininato (boxer, used to have association with the boxing association that ceased to exist, worried for his finances, because no one would want to use him, no contractual situation. It does not require a contrct to sue somebody (protect your interest)) Is there a contractual relationship between the rigby players and the Union. Creative thinking lead the udge to argue, while there is no contractual relation, there is a linking on contracts. So there is a bond with the union. This raised the issue that what the union does is more than managing rugby. Sometimes could be fundamental issues at state that club members have an interest in. If what was at stake was worse than what it happened. The reasoning lead the judge to say that it does involve more than the technical relations. The exposure of the case, makes it very public. The plaintiffs could have it tested. There is no way the Unioncan be proved to be right or wrong unless the plaintiffs are granted there standing. This person deserves to have a herring in court and grant the standing, the merits of the case willnever be able to looked at. Blurr of public and private but seem in favour of the public.

Litigation - round 2Plaintiffs substantive claimThe interim injunctionTactical games?Prima facie caseAre damages an adequate remedy?Balance of convenience

*The tour was about to happen. Have to see if they will win case. Went back to the high Court, the Court had to hear the case and make it quite urgent as this was a month prior the tour (17th July). The Court Herring was happening on the 8th of July. Happened on the 11th of July.They applied for interim injuction (in order to prevent the team from leaving until the trial was over, no parties can act on matters related to the case) It would not be accpeteable to wait any longer. Ted Thomas was representing of behalf of Plaintiffs, resorted to 1.5 days of presenting the case. Talked most of the time about the merits of the case itself, in fvour of the plaintiffs. Not all evidence has to be proven, because it is an interim junction. The judge only has to weigh up. The damage is not so great if the simply delay the tour. The judge granted the inetrim injunction. The tour had to be called off basically reasoning was that the interest of the nation and the public was at risk. Clear direction forom govt. and an Anonymous resolution of parliament that the Tour would not proceed. Parliament has no place in the Unions buiness vs. Parliament expresses the view of the people (for they were elected by the people). Parliament, Labour govt, signed the gleneagles agreement.The union called the Tour off, the parliament changed their mind.A Cavalliers team went (no maori) (B team under a different name)

PostscriptWhat happens to the tour?Significance of case?

*The reasoning of the court could go to some length in order to justify a ruling that may be better for the public. Apply the law in a very strict sense, the opposite result could of happened, easy ways out, the Judges were partial to the Plaintifss. They looked at the wider effect of the the law. We cannot escape fundamental principles, when it comes to HR it is our job to protect them. We are a far more connected world know. So it is far more relevant now. Collective responsibilty vs. human rights. Do they apply across nations and cultures? Racisim is universal. Apartheid is nolonger accpetable. Advancement of the humanity standard thanks to the plaintiffs, judges, councils etc.

Lecture 9The impact of colonial law on Maori

Context;Muldoon- how the law can be ignored by the powerful. Finnigan- how the law can be manipulated for a good way The idea of a perfect law. Law can fall into the wrong hands. The powerful the majority, the ruler, The law is subject to a wider social and political context. Society should have an influence on lawsTh maori wars/ early colonial law is an example of an utter misuse of law

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StructureBackground: NZ warsNew Zealand Settlements Act 1863Parihaka and Te WhitiThe legislative responseWest Coast Settlement (Nth Island) Act 1880West Coast Peace Preservation Act 1882Concluding thoughts

BackgroundAssertion of British control

New Zealand WarsFought between Maori and British between 1845 and 1872Maori eventually defeatedThe Costs of defeat

Land confiscationConfiscation not main means of obtaining landBut definitely historical grievanceConfiscation occurred through the law: NZ Settlements Act 1863What does the Act do?What is needed to trigger the Act?

Parihaka and Te WhitiTown in central TaranakiAt the time, home of Chief Te Whiti, who resisted Taranaki settlers

How did he do this?What happened?What did Parliament do?

The legislative responseMaori Prisoners Trials Act 1879Confiscated Lands and Maori Prisoners Trials Act 1879Maori Prisoners Act 1880Maori Prisoners Detention Act 1880

West Coast Settlement (North Island) Act 1880

Look at text of this Act in the materials:What does this Act do?To what area does it apply?Does any person really mean any person?

West Coast Peace Preservation Act 1882Sacking of ParihakaWhat to do with Te Whiti (& Tohu)?Pass a new lawWho did it apply to?What could be done to them?What else did the law do?

Concluding thoughtsSo, this period saw the enactment of draconian laws.

Is this an overstatement?

What does this tell us about law?

Lecture 10The Treaty/Tiriti in the Courts (1840s-today )

StructureThe early cases (pre 1975)Two major positions in early casesThe casesSummary/what do these cases illustrate about law?

The recent cases (post 1980s)Why did change occur?Assessment: how much really changed?

Two positionsCrown as the source of all property rightsMaori reliant on good grace of crownMaori had no law of their own

Crown title subject to pre-existing rights of native people until extinguished by lawAboriginal title or native title

R v Symonds (1847)A contrived, test caseAffirms Crowns exclusive right to purchase land from MaoriArticulates doctrine of aboriginal titleTreaty of Waitangi declaratory of aboriginal title

Wi Parata v Bishop of Wellington (1877)FactsCourt unwilling to question Crown grantPrendergast CJ on Treaty of Waitangi:Maori tribes lacked capacity to enter into treaty: the Maori tribes were incapable of performing the duties and therefore assuming the rights of a civilised communityTreaty of Waitangi: so far indeed as that instrument purported to cede the sovereignty it must be regarded as a simple nullity

Legacy and impactFindings in favour of crown right to control all titles to land included in statutesRejection of treaty of Waitangi as a treaty of cession persisted into 20C: In re the ninety mile beach (1963)

Te Heuheu Tukino (1941)Facts

Privy Council regarding Treaty of Waitangi:Rights conferred under such a treaty of cession cannot be enforced in court unless incorporatedMust be able to point to statutory recognition of Treaty

SummarySo, three ways of dealing with the Treaty up to 1975:its a simple nullity: Wi Parataits not incorporated: Te Heuheu Tukinoits merely declaratory of aboriginal title: R v Symonds

Do the various cases fit together?

Post 1980: backgroundSocial change Greater recognition of Treaty in other areasLiterature on complicity of courts in violationsWork of certain lawyers and academicsMaori challenges to legitimacy of NZ stateChange of government

Law a little slower to change

NZ Maori Council v AGThe Principles of the Treaty of WaitangiAka the SOE Lands case

S 9 State Owned Enterprises Act 1986 included reference to principles of the Treaty of WaitangiGovernment privatisation: transfer of assetsIn this case 10M hectares of landPotential claims through Waitangi tribunalNot enough protection for claims: breach?

The principlesPartnership: duty to act in good faith towards each other and to be reasonableCrown must actively protect Maori interestsIncludes making informed decision and consulting maoriProvide process to remedy past breachesMaori: recognise the queen; reasonable cooperation

AssessmentsKelsey: genuine victoryCA interpreted principles as giving greater safeguards for MaoriJudicialisation of treaty Concentration on principles to exclusion of textsHow much really changed?Did the legal status of the treaty change?

Parliament and the Treaty of Waitangi: Te Runanga o Wharekauri Rekohu v AG

Lecture 11

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StructureBasis of Maori claim to fisheriesBackground: fisheries legislation and the QMSThe litigationDiffering views about the merits of the Sealords DealIssues resolved by the courtsUpshot

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Basis of Maori claims to fisheriesMaori cosmology & tikanga: Tangaroa, god of the sea, is one of the original ancestorsMaori text of Tiriti o WaitangiEnglish text of TreatyColonial law, aboriginal title: prior Maori rights to fisheries continue until extinguished by statuteColonial law on Treaties: Maori rights are only enforceable if recognised in domestic law Legislation, s88(2) Fisheries Act: nothing in this Act shall affect any Maori fishing rights

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BackgroundDepletion of fish stocks: the tragedy of the commons Introduction of QMS (Quota Management System) in 1986QMS was meant to:Prevent over-fishingImprove efficiency of industry

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Timeline1986: QMS1989: Earlier litigation; Maori Fisheries Act 19891992: Waitangi Tribunal issues Ngai Tahu Fisheries Report1992: Sealords deal9/1992: Deed of settlement 10/1992: court challenge: Te Runanga o Wharekauri Rekohu v Attorney General 11/1992: WT issues report on Fisheries Settlement12/1992: Treaty of Waitangi (Fisheries Settlement) Act 1992

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Sealords deal (in deed of settlement)Joint venture to buy half share of Sealords (which held 26% of quota); result = 23% (10% + 13%) 20% of quotas for new species went to maoriCrown to pay 150m$ to develop fisheriesMaori Fisheries Commission to be reconstituted.Provision for non-commercial/traditional fishing

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Differing perspectives on meritsContradicted original grounds for challenge to QMS and required Maori to accept quota. Commercial quota would not get back fishing rights.Government appoints members of MFC and ToWFCNegotiators did not represent all MaoriConsultation was not meaningfulWaitangi tribunal criticismsCF: Court of Appeals more optimistic view

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Te Runanga o Wharekauri Rekohu v Attorney General

Just who was bound by the deed of settlement?Maori negotiators viewGovernment viewIn the end, issue not important - why?

Why was the court challenge unsuccessful?

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UpshotParliament is supreme in making law: it may deny future litigants the right to go to court concerning Maori commercial fisheries issues.Courts will not interfere in parliamentary proceedings.Courts never decided what Maori fishing rights actually existed prior to QMS, and now never will (see esp. s 9)What is the constitutional status of the Treaty of Waitangi?

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Guidance is needed to know how to behave. Learned behavior. Good law arrives from where society should be going. A blurred line between social norms and laws i.e. spitting on the floor is considered unacceptable but it it not punishable by law. The defining difference between illegal and legal rules is to do with the enforcement of the state. Illegal system: enforceable social norms (Veber). You should be able to do what you like unless you are breaching someone elses rights. What is meant by rights here? Positivism versuses natural law.

Separation of power (Judiciary, parliament and executive) and the role that the various elements of our democratic system play. *Common law: comes from Britain (we are an ex colony of Britain until 1986 when it become constitutionally clear that we were no longer under the rule of UK, should we get rid of this stuff or keep with tradition?) Largely derived by judges to what they percieved the law should be (Judge made law) This is guided by the doctrine of president in the heirachal system of courts, presidents are usually created by the highest level of court. Check what laws have said before, what the higher courts have said. Also based on the values that the judge considers typical of society Statutes: Made by parliament. Parliament consists of House of Rep and Gov Gen who signs the statutes and thereby create law. Very minor role but still the rep of the Queen. This is a convention rather than power thing. Imperial statutes are very old doccuments; Bill of Rights and Magna Carta which fill the role of a constitution. These are largely derived from Britain. Public (citizens and state), commercial law Criminal law. Local and national laws. Differences: Statutes are prospective while common law looks back at the past. In common law, the judges must have the dispute before them rather than Parliamentary supremacyIn 1688, Britain revolution, Parliament wanted a decent King that they could tell what to do.

Relationship*Do we actually have a constitution like every other country? Constitution is above parliament but NZ does not have a set constitution. Is what we have enough to secure human rights, democracy etc? Parliament would become inferior to the constitution> Uk also doesnt have a constitution but is part of the EU, the european law is superior to British Law. We have a constitution on several pieces of paper and is not supreme. We have constitution because of the Treaty. Is parliament soverign? The NZ govt. takes a view that Parliament is sovereign. The discovery of NZ by the British Crown. The view that the majority holds. *There is a number of decades where Britain took power of NZ. The separation between soverengty (Legal act) At what point did north and south island became part of Britain at different times. People are not quite sure when England disowned us. Transitional period. NZ is like a teenager/young adult. Maori people have strong bonds with the land/ancestors. Think of themselves as part of the land. Very holistic and Tribal. Pakeha used to be like this, but this happened along time ago. Mismatch in time frame. Common ground needed in order to move forward. *There are a number of events that lead to the establishment of British law in NZ. British interest in NZ was much bigger than the interest of the French. A few thousand British setlers were here, forming their own govt. Leutenient Hobson, 1839, had the status of Gov. Gen. He received a letter on the 15 June 1839, a letter patent, certain wishes are expressed, not legally binding, but is conventiooanl to follow otherwise you may risk losing your job for example. The letter said that the process of annexation is followed through. 3 weeks prior 6th of Feb, it was later established that english law was received. It tooks a law in 1858, to establish that by the time there was the Treaty Britain law had already been implemented. The negotiators themselves had good intentions (they wanted to live there) The big companies in England called the shots. Hobsons proclamation is a legal doccument under which the gov. gen. proclaimed that the north Is. Was encorpoarted into the annexation by britain by cession and the south Is. By discovery. Cession refers to a voluntaryy transfer of territory and normally occurs after a war, cesses surrender. Legally transfering sovereihnty to the birtish crwon and in return the british would prtect them. Th esouth is. Was empty(no maori of signifcance) there was no legal relationship with them. (similar to protuguel and spain). *

**The Treaty confirms the transfer of sovereignty to the British Crown on the 6th of Feb 1840The Treaty set a new foundation yet to be fully understood and applied. Who is in charge? *Legal agreements: contents of various articles of the Treaty not being quite clear about the meaning and what the obligations are. The vagueness of any Treaty lead to interpret every single word. If the wording is not quite clear, you go back to the past, what was the understanding when the Treaty was signed originally? Find a similar case that helps. The ambiguities of contracts is not the problem, it is more the different languages of the Treaty. The Maori understood very differently to the english. Cultural clash as well. Typically, when Maori enter Treaties it is under good will/ intention, the spirit of living together. But the British dont think like this. Background: Declaration is important because of its words, it helps us to understand the Treaty more closely. Neither the British side or Maori side have claimed an underlying importamce compared to the Treaty, it is more of a marginal importance. More to send the French govet. A signal, the French guy that claimed land in Northland, Busby didnt want this to lead to French annexation. Debates about the Treaty: (at the time) How the Treaty was perceived? *Missionaries were very knowledgable of maori language and understood Maori to a degree that they could meaningfully communicate with Marois. Rev. Henry Williams a witness to the dec, of independence and was later asked to write the Treaty. No written Maori language. There was a great trust on the missionaries. Huge responsibilty.*Any translation from any text (Maori) into another language requires the authorization of each party. Here, the Maoris didnt authorise the english translation but the Treaty was only technically only in the Maori language. *Sometimes a direct translation is not possibleHidden or open descends, there is no common ground. The english side never accepted the Maori side. Therefore the Treaty would have no validity and become a nullity and cease to ewxist. According to international law, the Maori did not transfer soveregnity. What appears to be an injust anexation (no legal doccument that justified or legitimized it) of Maori land and over time an unlawful occupation of land, can in fact develop into a lawful occupation over time, A revoltionary act did not happen over night. This would develop into establidhmet of a new country soveregin and in patetrdhip with maori and british settleer sand implying the westminster system of govt. injustice can vannish thst maori have tolerated, and benefitted from it .

Over time an unlawful contract can convert itself to a lawful document. *The British translations dont quite match the Maori wording. T\*Transfer of absolute sovereignty occurred (english), referring the continuation of Injustices have occurred: wars and land sales, which have lead to compensation that was later understood to be all illegal. Which has lead to the settlement protest as a form of compensation After 2017 the National party will likely want a fresh start; all uncertainties have been settled, the Treaty no longer has a place in NZ society except in history. One law for all.Labour and other parties have a more nuance view, the settlement protest itself is justifies but doesnt tell us what happens next, the legal status of the Treaty is left open. Legal status of Treaty is unclear not part of constitution, not an nullity, not enforceable because we dont know what the obligations are. *Recap:Treaty is not cast in stone because of the disagreement about the meaning and legal status of the Treaty. The common British view is that NZ transferred sovereignty to the crown and was preceded by the declaration of independence, which had a similar function and made NZ a legal entity that was capable of be transferred. Why should maori accept it, Maori believed that their rights were not transferred but why would they? Their culture doesnt follow this. This lead to settlement protest- a payout for past injustices (land, wars) 2017 the pass has been settled. Disatisfaction of Maori and Pakeha, money doesnt acknowledge the relationship and respect and settling. You can not own the land/ atmosphere/ waters, the land deserves our care. Constitution framework of NZ Key governmental structures of out system- in what way is NZ very different to NZApplication of the rule of law- people create the law and then live under the law. The laws need to meet certain requirements in terms of not violating higher laws.NZ is unique in one sense, that we do not have constitution supremacy *Separation of Powers- keeps each one in check The constitution act *There should be a parliamentLength of parliament and what makes up a parliamentJudges should be protected in their jobs and must not be removed from office and have a secure salary. This appears in the constitution Act to stop the governental pressure and can be truly independent. They musnt feel threatened if their findings arent want the govt. want. This is the same in all countries. In NZ, judges appointed by judiciary rather than people appoint, in US, the President appoints the Judge, (kinda belong to a party)1986, NZ is a truly independent sovereign country and not reliant on Mother england. 1947, through legislative act of UK, it was a convention that the UK would refrain from influencing the govt. activity in NZ excl. The gov gen and privy council. Bad experience with Muldoon, who gave gov gen wrong information, played with Parliament Im going to be in charge so I can tell everyone else that we are going to change the lawIgnored due protest. Deep disrespect of law of Parliamentary process. Not a real constitution as it lacks supremacy, Bill of Rights are not enshrined in our constitution. Human rights are not directly enforceable by law. The assumption being the the executive, parliament and the judiciary will look after our rights. Equally can be said about democracy, each constitution has clear rules about democracy, you can sue govt. for a lot more things, a lot more standing rights, values expressed e.g. the govt. has to protect the environment. The reason we dont have this is because of history. Nzers dont get nervous about this because we trust our culture, our laws are democratic, judges havent failed us. The emergency legislation for the earthquakes is the dismantling of democratic process, or the restriction of demonstartion right, clearly unconsittuion biut we do not have a constitution.

*Each branch of the govt has a different role to play: sovereign: Queen Elizabeth, all political power rests with the Queen, but since 1688, no monarch can rule against parliament, ultimately parliament in charge. The gov. gen. acts on her behalf, their job is to legalise parliamentary laws ascend of laws. If we shift to a republic we would have a president and a prime minister, in some countries the President is more powerful than the PM. Executive: the PM and also the ministers- Cabinet (senior ministers and PM) who initiate new laws that become new laws and to execute laws as they exist and minister laws. Legislature: Parliament sits above the executive because Parliament is a direct representation of us and parliament elects the executive. Constitutionally speaking Parliament is above executive but not above Judges. Parlimant in NZ is very pronounced, the only body and highest body where law comes from because we do not have a supreme body of law (constitution) if we had a constitution we would have to follow it by designing laws that are written in the spirit of the will of the constitution. To some this is not democratic, unelected judges shouldn'tt tell us what to do. Democracy should be a bit richer than that, it should have human rights and the ability to stand up for human rights and have the ability to participate in law make, other countries have a lot more avenues for human rights e.g referenda, culture of demonstrations. Culture of demonstartions (free press) constl have clauses about free press, guidelines to how protest can occur so citizenz know what theyre doing. Media need to be objective and informative, not enough for entertainment TV is unconstitutional, because ethere are not enough elements of democracy. Radical people among the media (confused with left or right) have a prime role of keeping govt. honest. Countries with const. are not less democratic. They have only said while once at beginning at life of poloical for country there should be a prime rules,whuch is made by the people and not parliament. This is democratic procvdie dconst of proetest in proper, Highlight of social and cultural life, all countries admend th econst and add . This is where NZ is heading. Where we can identify who we really are, not just as an extension ofengland. Moving away from the Westminster system.

*Enactmant of a momnacrh ynder tohe terms of parliament which has establkished parliament supremacy. Essentially creating a democratic system. The development of democracy was a protest. Around 1700 where judges were employes and dismmed by King/queen. The judges have now become constituetedion independent. Basic idea is that all was to minmsed concentration of power in the hand of too fe; to avoid dictatorshiip. Both responding to absoulte monarchies and defined the concept of absolute poawer can be shared by atleast three, usually holding each other at bay. In NZ we dont have a complete separaction of powers, whoever has majority on parliament rules, although this is similar to other countries, NZ is different because there is nothing above them. Whoever happens to win elections is truly in charge and can release laws that they see fit. Only severe rules (e.g. ones that violate human rights), will not pass parliament. Due to mech. In parliament pretst under which parliametary legsialtve advisory board does, screens through laws ensure consistent with human rights etc. technical mechanism to ensure parliamet cant get away with everything. They oftem do though and rule closely to illegality. Certainly ongoing risk of too much power of elected govt. Compared to the US, which in some ways is more democratic, really good separation of powers, the US president is much more powerful thsn John Key buit if majoruty of power rules against him he cant pass bills. Lame duck. He can make decisions about war Budget has to be passed through congress. Germany (student parliament) and France. A culture of democratic education in our high school system.

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*There is not a neat protest and vote for the right party. Complicated process. In reality there are conflicting interests. The whole parliamentary machinery is scared to follow every purpose all in the spirit of pularity and th einput of the variuous sectors of democracy. It can take a couple of ideas to end up as law. It depends how the govt of the day is wanting the law. This is dangerours, in other countries it is ruled as a constituion, we having standing orders, and guideliens, we can never be sure when an idea enetr the system. Most stuff comes from cabinet and follow through election promises and what came up during govt.time. Cabinet legistaltion comitee, roughly 60-70% of all laws entering this way. Cabinet istelf being ministers have portfolios and own responsibilities. Legistlation comittes, parliamentary council (lawyers, proper legal protest os followed, laws are matching up with higher laws.imporatnt law-bill of right) back to cabinet, where its s decided whether to be introducted to the house. Th e first reading, and then decided whether to go to slectect committee (swritw a submission and then you decide wherther your submission can be heard, kinda stupid, resource managemt act this year). The govt. introduces a bill when gov. gen. signs. Cabinet bills are cardefuly sought throuhg. Any MPs that are usualyy sitign outside of cabinet can introduce a bill. They have a chance that there bills can get through, provate memnber bills have th expectation that they dont get through because they are the opposition, but purely dfor argyment sake. Law reform bodies such as the law comission, body of lawyers that from tim to time pick up certain issues, e.g petrol, alcohol, a greater significance to any issue, that the law comisson cosider to be improtant of any imporatance, goes thoguht he creening of the house. Individuals can submit/ draft a bill usually comesfrom Unions, lobbing. Who knows what goes behind the scene- TPPA is very secret. What we have seen in various doccuments, is a sinister scenario, it would mean that under the investment protection programme, any kind of investment would be protected, the whole environmental field. The foregin companies can sue our country because we are not protecting their property rights. Neo-liber economics or market fundamentalism. *

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*What is a court?An instituion where a body of persons are signed to resolves conflicts between parties ina oeaceful manner. The court refers to the judges. The physicla entity- the judge and th ecourt house (come hsitorically from the Kimgs Bench, judicial institution- kin/queen court)History:1840, a letter patent was issues to gov gen hobson to simply ask him to appoint judges, even when judicial law didnt apply, the settlers were proactive setting uo a courts system, effectively establishing sovereignty of court power. We have a v english suystem, the highest court on NZ was in london (the provy council made up of lords) You are awlsy seeing kegailtuy of actions in NZ being the highest of actioms. The last case of the privy council was a few weaks ago. Th supreme court replacing the privuy council. We have an independednt review system but the key chgaracteristcis are still english. In some places you can start to be a judge. *Statutes- start with existing statites and bylaws that fit the case at hand. Only when tyou find that there are gaps, you draw dfrom common law an dprecedents, other cases. How the facts are being established. Judges tend to be conservative. Chief justice of the supreme court. How should you read judges. You are either a positivist vs naturalist (ask about the reasoning, whether it si condusince with long etablaihsed traditches, is it democratic etc) The intelligient and creative people tend to be natural lawyers. *Hierachial structure with three levels Entry level (high/disrtict/specialist (enviornment etc)Judiciary reviwew you are lookimg at right application of the law sumpreme court This is to minimise the risk of legal or fatual mistakes. You then have to socnduer questions of juridsaiction of what court does- there are some unique constitution (enviromnement courts at national lebel-unlike other countries, india and china are following, came about the with the introduction of the resource management act, in 1991 we had the worlds most adnanced environmental act. And we need a pseacilailed court to deal with this, advisors to the ourt in order to get more scientific expertise into the court eroom and argue cases with much more scientific competencies. Not quite sth ebreak through, if the judgements are not found, and gone to other judges that arent quite so familiar with environemntal law. Judges can do anything with the exceoption of a few sub branches (maori rights and laws-maori land court, waitNGI tribunal- treatment of maori, make suggestiosn but it is up to the govt. of the day to make a decisoon)

*Civil law between peoplePublic law people and authority The rest is determined by the nature of the court. District court where not so much money is at state. Geograohical jurisdicition, anyone who comes into the country can be subject the juristdiction here but limiote dto any kind of offences you comit. Conflict of laws. Establish the exact jursidiction. *

*The idea that the public who is receiving the judgement can also be judged. There to establish the facts to provide the Judge msterial to which he has to make the law. This comes from england when courts were not that independent. People were bribed. Lawyers can lie to win. Jurers have to be neutral and find out where the evidence really is. Get rid of adversierial system as the chance of a mistrial is too high. As a you fundamentally you are being exposed to the evidemce as being provide dbythe two parties, there is no mechanism that the truth should be coming ouyt all you have to do as a party is be better than the other side. Jurers are not able to get tp the bottom of it. The alternative would be jurers (lay people) who would work together with the judges, who all are trying to get to the bottom of it. They can ask for evidence themsleve. Thi scan be clumsy and slow and expensive (employ more judges) a much more genuine protest. Precescessors of the jury:

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*Maority on Parliament automatically has majority of the executive. They are in charge of what the executive does. These kind of powerful situations the PM is in is not being complemented by a constitution. We need to look out for a misuse of power. *

*Ongoing uncertainty, even if we have a ruling case, about who is in charge. The majority of parliament automatically forms the government and the executive is in charge and the PM can tell the judiciary what to do because they have majority in and are the executive. There has been many instances around this issue (1999-2009) Labour govt. The establishment of the supreme court in an attempt to get rid of privy council (english heritage)- should we have supreme court in the first place? Chief Justice shown with having a more independent supreme court in an attempt to constitutioanlise NZ more. People Michael Cullen Vice PM under Helen Clarke enagaging in certain debate about Judicial activism; sumpreme court for example; How should the building look? Budget? Do we have a supreme constitution which gives Judges the power because the highest is the constitution. Right now, udges have to let palriament make the final decisions about law. Judge Cook, judicial activist, questioning parliamentary sovereginty. It is an ongoing game, we do not know who is wrong. There is a danger where the executive wants to rish through laws and ignore human rights. Judges are constantly concerned with executive having too much power.Foreshore saga 2004, a ruling by the court of appeals that there are ongoing unsettled customary rights Maori towards the ownership and user rights around the coastal areas, were ruled under the highest court at the time, to be governed by customary law under the Treat. Reaffirming that any kind of change by ongoing customary laws laws would have to be coming through parliament. If there was an act that is over ruling customary rights. But still could be tested in courts according to the finding. This is delicate, the court of appeal ruling, despite parliamentary sovereignty, the ruling comes down to the Treaty. This is nothing new, had been the views of the courts for 20 or so years. But this created issues for Labor about who owns the beaches. Labor tries to please everyone; tells everyone that the sea belongs to everyone and is administered by the Crown-the Foreshore and seabed Act. But no one was happy, there were still a number anbout customary rights, Acts trump court decisos. Maori got quite split about this which lead to the creating of Maori party. Labor lost the 2009 election because the loss of strong maori vote. Ahmed Zaoui, was unlawfully held in prison the new incomcing supremem court ruled this a unconstitutional. There was some allegation that he was workinfg for Al-kheada. Sometimes judges win and sometime parliament does. The constitution and human rights guide us in making these decisions. We need a omnce and forever decision*Superannuation Act was created under the labor govt. which was compulsory. Employees had to contribute and employers had to match. Equivalnlent to kiwisaver except kiwisaver is not compulsory. Following the global trend to provide for Nzers in their old age. Nzers dont like to be forced. The state has an obligation to provide security to provide for its citizens, this is where compulsory came from. The national govt. campaigned against it. Compulsory vs. voluntary. NZ is a social welfare state- 2nd in the world. National had new thinking sounds like communism. National (Muldoon) won the election. Muldoon, even before he won the election, 12th december 1975, the superannuation board was told to put everything on hold in a letter. Telling them that there had been a press conference in three days time about the abolishment of the superannuation act so for practical reasons it was more efficient when it was the act to be squahsed. The issue is that the act which is in force, and there is a process that he need go through in order to get rid of a law. Parliament can not be act. You can not put an act on hold. An acrt can only be changed/ put on hold by parliament. Fitzgerald sued his own govt. He went to the superannuation board and tried to put money in his super. The super board regected it. He then adressed the attorney general, who refused to do something about it. He then privately prsecuted to legally act against the attorney general. By going to court and ask for an early herring asking for a declaration that the instruction in the letter should be withdrawn.Declarationa nd an injunction which would require a legal order that any act against the super act would be considered to be illegal. The declaration was granted but the injunction was not. Judge Beattie, had to decide whether or not to grant an early herring. Would it be too late to have a later herring. He granted the early herring as too much was at state. He alerted us to the bill of rights, in the absence of the constituition, we need to reosrt to common law and older principles, the Bill of Rights, says about dispensing power, Rule of Law Principle. English Laws Act, that english law dshoudl be applicable in NZ since 1858.

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*We can only exercise our power within accordance with the law. Urgency legislation, we need to act quickly.*Recap:Chief Justice telling the PM that you are bound by law and if you want to change it you have to go through due protest. The separation of powers: and the PM being reminded not stepping into the business of Parliament. Public law guides rights of Public authorityTodays case, is about an autonomous provate body being told by a court to behave in a certain manner and uphold HR standards, even though the HRs are being breach in south africa. The issue being that a public body is telling a private body how to behave politically All blacks should visit SAFundamentally, we live in a free society, its not the govt.business to interfere with private affairs or political views. We are entitled to do what we like unless we a re in breach of law. Within the boundaries, there are no set moral or ethics so we can do what we like.Here, there is no breach of law, we would really like the Tour to be reconsidered because so much is it stake : Nzs image, beauty of the gameThe Court advised the Union to cancel the tour and backed it up with legal concerns: the glenagles agreement (tell citizens to refran from any activities that showed the countries in support of the apartheid.)Can you be told?1980s-1970sA case that blurrs the boundaries between private and public

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*The importance of rugby: the scared cow, bad about rugby splits society automatically. Key to our culture. It was about the arch enemy the Sprinboks. The favourite playing ground. Why should you interfere with such an important affair? Does the apatheid have any effect on sport? Dont mix politics with sport Dont want to be seen as proping up a bad form of govt. The splitting of the countries since the 1981 springbok tour. Break the law deliberatley to uphold a bigger picture. Where we stand on matters now effects how we are seen in the future. Vanuatu- global warming. Lawyers should be a bit more proactive; speak out in order to protect the law , including moral issues.

*The Plaintiffs were uneasy, the 1981 tour caused much debate so whats going to happen in 1985. They were graduates from law school. Sir Ted Thomas and the Chief justice (current). These two plaintiffs, Finnigan and Ricodrdian, though about how thay could stop thw Tour without demonstrating? Some of us are members of a rugby club, surely being members of a private body, maybe we can express this uneasiness. The image of rugby (admired for the good reasons) and secondly what is the link between us playing in the local rugby club and the union. Parliament which was a new national Parliament, issued a statement callingupon the union to refrain from visiting SA, this was greeted by support from judges and civilians. Winston Peters, Plantiffs put their case on two grounds: against the object (the very nature of rugby ought to maintain its image and should not be seen as supportive of breaches in HR, an effort to convince the court that they have a right to get a court herring) and the wrong body (by syaying a matter of this, where infact the counciil of the union, hasdc decided to accpt th invitation of SA, thecouncil was seen as yhe wrong bofyd to amkethe deciosmn, the callwas that all members of the union make the vcall, all members are indirectly rugby players, because the decision is too big for the council to make.) Whether the case effects my personal interests and is there some kind of legal backing or not, decides whether I have standing. Need to show a little bit that our righst will be effected, distinguish ourselves from the general public. The iTThe issue of standing came about- is this a strong enough casemad eby the Plaintiffs in order to have a full hearing? The chief justice, sided with the defence, its not a matter in which the courts can interfere as it is a private body- The high court followed the Union, no standing granted. The case was then taken to the Appeal, under Justice Cook (judicial activism, can not mix politics and sport, (postivist) view,natural position( look at wider implications and derive findings on the basis of legal and political history). Higher principles at stakes regardless of statutes. Judge- concluded that it was unrealistic to hand the decision back to the whole union (hard to get all members to agree on something).The other angle: normal standing terms, there are rules under which you can prove that you have legally protected interest in the outcome of the case. The Jufge referred to an early case, Stininato (boxer, used to have association with the boxing association that ceased to exist, worried for his finances, because no one would want to use him, no contractual situation. It does not require a contrct to sue somebody (protect your interest)) Is there a contractual relationship between the rigby players and the Union. Creative thinking lead the udge to argue, while there is no contractual relation, there is a linking on contracts. So there is a bond with the union. This raised the issue that what the union does is more than managing rugby. Sometimes could be fundamental issues at state that club members have an interest in. If what was at stake was worse than what it happened. The reasoning lead the judge to say that it does involve more than the technical relations. The exposure of the case, makes it very public. The plaintiffs could have it tested. There is no way the Unioncan be proved to be right or wrong unless the plaintiffs are granted there standing. This person deserves to have a herring in court and grant the standing, the merits of the case willnever be able to looked at. Blurr of public and private but seem in favour of the public.

*The tour was about to happen. Have to see if they will win case. Went back to the high Court, the Court had to hear the case and make it quite urgent as this was a month prior the tour (17th July). The Court Herring was happening on the 8th of July. Happened on the 11th of July.They applied for interim injuction (in order to prevent the team from leaving until the trial was over, no parties can act on matters related to the case) It would not be accpeteable to wait any longer. Ted Thomas was representing of behalf of Plaintiffs, resorted to 1.5 days of presenting the case. Talked most of the time about the merits of the case itself, in fvour of the plaintiffs. Not all evidence has to be proven, because it is an interim junction. The judge only has to weigh up. The damage is not so great if the simply delay the tour. The judge granted the inetrim injunction. The tour had to be called off basically reasoning was that the interest of the nation and the public was at risk. Clear direction forom govt. and an Anonymous resolution of parliament that the Tour would not proceed. Parliament has no place in the Unions buiness vs. Parliament expresses the view of the people (for they were elected by the people). Parliament, Labour govt, signed the gleneagles agreement.The union called the Tour off, the parliament changed their mind.A Cavalliers team went (no maori) (B team under a different name) *The reasoning of the court could go to some length in order to justify a ruling that may be better for the public. Apply the law in a very strict sense, the opposite result could of happened, easy ways out, the Judges were partial to the Plaintifss. They looked at the wider effect of the the law. We cannot escape fundamental principles, when it comes to HR it is our job to protect them. We are a far more connected world know. So it is far more relevant now. Collective responsibilty vs. human rights. Do they apply across nations and cultures? Racisim is universal. Apartheid is nolonger accpetable. Advancement of the humanity standard thanks to the plaintiffs, judges, councils etc. Context;Muldoon- how the law can be ignored by the powerful. Finnigan- how the law can be manipulated for a good way The idea of a perfect law. Law can fall into the wrong hands. The powerful the majority, the ruler, The law is subject to a wider social and political context. Society should have an influence on lawsTh maori wars/ early colonial law is an example of an utter misuse of law

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