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laws204 Flashcards

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1
Q

3 branches of govt

A

L, E J

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2
Q

s 14(1) Constitution Act

A

Parliament is made up of HOR and GG

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3
Q

3 features of NZ constitution

A

uncodified, not supreme, not entrenched

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4
Q

foundational principles of NZ constitution

A

Representative democracy and responsible govt, separation of powers, ROL

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5
Q

place of TOW in our constitution

A

Lord Cooke - cannot be ignored, evolved over last 186 years.

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6
Q

Role of the Sovereign (s 18, s 16 CA)

A

summon, prorogue, dissolve Parliament (s 18) bills require royal assent to become law (s 16) but in practice mostly ceremonial role

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7
Q

Who is in HOR

A

120MPs, only part of govt that is democratically elected, to become MP must win electorate/get in through party list, unicameral legislature (cf Aus, US)

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8
Q

5 main roles of Parliament

A

1) be legislature 2) provide representation for people 3) provide govt 4) approve supply of public funds 5) hold govt accountable

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9
Q

elections

A

MMP allows for more ideologies represented by minor parties

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10
Q

voting

A

2 votes (electorate and party)

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11
Q

what happens once make-up of Parliament is settled

A

parties form coalitions which must vote together on confident and supply votes. fueled by political accountability

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12
Q

mark prebble

A

iron rule of political contest (evolutionary game of survivial of fittest) . responsible govt, representative govt in action, creating political accountability

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13
Q

4 types of bills

A
  1. govt bills 2. members bills 3. local bills 4. private bills
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14
Q

process of bill becoming an act

A
  1. introduction 2. first reading 3.select committee 4. second reading 5. committee of whole house 6. third reading 7. royal assent
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15
Q

restrains of Parliamentary law making

A

hard and soft law constrains

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16
Q

AG v Taylor

A

Parliament is a bedrock and fundamental part of our constitution, power of court does not come from parliament, but all three branches of govt are sovereign in their sphere of influence yet codependent.r

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17
Q

hard law constraints

A

s 16 CA, s 268 Electoal act

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18
Q

Ngaramoa v AG

A

challenging prisoners disqualification from voting, key takeaway is that a court may strike down legislation if it does not comply with statutory constraint such as s 268 (inconclusive_

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19
Q

soft law constraints

A

Standing orders, Picken, LDAC, s 7 reports

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20
Q

political and moral constraints

A

supreme law limits, common law limits, Kiwi Party v AG

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21
Q

Comity

A

each branch of govt shall not interfere with another’s sphere of influence (parliamentary privileges act s 4(1)(b))

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22
Q

standing orders 116, 117

A

MPs should not discuss issues before the court, “may not use offensive words against judiciary”

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23
Q

how comity restrains judiciary

A

Picken, Parliamentary Privileges Act

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24
Q

s 10 PPA

A

freedom of speech,

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25
exclusive cognisance
only the house can regulate internal proceedings including PP
26
kiwi party
SC process is not justiciable
27
what is executive
sovereign, gg, ministers of crown, cabinet, executive council
28
GG
represents sovereign, ceremonial, appoints PM, MPs, royal assent
29
PM/Ministers of Crown
Ministers must be MPs (CA s 6) and appointed by GG when GG satisfied they have confidence of HOR, All ministers members of executive council
30
cabinet
creature of convention that makes policy decisionsk
31
key cabinet conventions
confidentiality and collective responsibility
32
what are conventions
soft law, how constitutional actos should act, not legally binding but politically
33
Sir Ivor Jennings 3 three characteristics when identifying CC
1. precedent 2. sense of obligation 3/ rationale
34
when will GG exercise their powers (CC)
on advice of PM/Ministers unless no longer have confidence of the house (arguably most important)
35
CC - Appointment of PM and Ministers
GG appoint PM once confidence of HOR
36
CC - resignation of Ministry
resign if no longer have confidence
37
CC - caretaker convention
Introduced in 1984, following election, evoked in 2023
38
public service
two main roles (Public Service Act ss 11-12) 1) serve govt of day 2) serve public good by giving free and frank advice.
39
cartona principle
minister cannot be expected to exercise all powers personally, public services alter egos of them (based on ministerial responsibility)
40
ROL
1. executive bound by law 2) needs legal authority to act
41
entick v carrington
E only to exercise power if such power conferred through statute or common law.
42
webster v police
another NZ example of courts enforcing ROL on E
43
Fitz v Muldoon
breach of BOR 1688 power of suspending of laws without consent of P is illegal.
44
sources of E power
1. statute 2. royal prerogative 3. third source
45
borrowdale
E has to act within 4 corners of legislative grant of power and respect all decisions made
46
royal prerogative powers
appointing ministers and members of executive council, summoning, proroging and dissolving parliament, entering and exiting treaties, pardons for peoplr convicted, P can override these.
47
treaties
do not become law until enacted (diff between multilateral and bilateral) NIA,
48
justification for third source
E should have ability to do some things, not practical for P to grant what can be done e.g. day to day action.
49
limits to third source power
1. conflict with existing statute or avoid stauttory requirements 2. conflict with legal rights and liberties of citizens
50
hamed v r
police set cameras on land, SC held implied licence did not go that far
51
quake
third source power cannot be used where there is existing statute governing area which Parliament intends to be used
52
ombudsman
governed by ombudsman act 1975, swedish word for grievence person, broad jurisdiction to investigate (s 13(1)) even if decision is final
53
what cant O investigate
legislation gives right of appeal on merits unless unreasonable (s 13(7) and 17) or decisions of legal advisors to crown (confidential) and police( own complaints division)
54
O investigation process
oral, inform, private, wide powers, reccomendations (broad) s 22(1) - unlawful, unreaosnable, unjust, oppressive, discriminatory, anything but non-binding but persuasive
55
can O be sued?
no ss 25 & 26
56
advantages going to O
broad, cheap, more private
57
OIA
includes info held by dept, minsiter, organisation, purpose s 4 to increase availability of official information, "informatino made good unless good reason not to" s 5
58
process to make a reuqest under OIA
any NZ (s 12) oral but best in writing, 20 working days to decide, may be small charge
59
refusals of OIA
presumption of availability (s 5) s 6 sets out conclusive reasons, s 9 lists other reasons, s 18 administrative reasons
60
kelsey v minister of trade
request for info declined, blanket approach unlawful, if uncertain, decision made in favour of release of information,
61
select committe
subject and specialist, provudce non binding report summarising
62
regulations
forms of DL , clause 7.85 Cabinet Manual, 7.95 lays out steps, useful to relieve pressure of P busy sitting schedule RRR 1985
63
legislation Act s 114
minister to present regulations to House in line with procedures, subject to disallowance
64
comission of inquiry
official state investigation in a matter; usually done in response to public harm event
65
3 statutotyr forms of inquiry under s 6 public inquiries act
1. public inquiry 2. govt inquiry
66
procedure and outcome of inquiries
conduct interviews, summon witness, hold hearings, receive evidence, allow/resitrct cross examination
67
s 29 inquiries act
offence to fail to respond to summons, ignore inquiry orders or disrupt inquiry (non binding)
68
waitangi tribunal
established under TOW Act 1975 as response to maori aggravation over Cornw TOW breaches
69
s 6 TOW Act 1975
tribunal must consider any claim made by maori, likely to be prejudicially affected by, generally relating to relationship between Crown and Maori, inconsistent with TOW principles
70
He Aha i Pera Ai? Report
blanket ban, art 2 breaches
71
treaty settlements
final agt codifed in statute, rest of process has no legal framework, power subject to law,
72
skerret- White v Minister for Children
s7AA Oranga Tamariki Act; hold power to summon minister as witness. WT constitutional importance has a statutotyr duty to inquire into claims, relevant evidence heard
73
rangatiratanga
binds people together - absolute political sovereignty. exercise of mana tangata is activity of leadership. not through personal power but through personal resopnsibility where authority derived through whakapapa
74
PWA
s 16, Patrica Grace
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