What is the definition of Tikanga?
The first law of New Zealand
Values, customs, practices that operate within te ao Maori
Emphasis on the relationships between people and relationships to the land
Specialist courts are important and needed because…
- The issues raised in certain legal areas may be similar, or unique to the field, and create high volumes of cases
- A body of specialist judges can deal with the issues more quickly; and perhaps more consistently and accurately
- A legal area may require specialist expertise or knowledge
Examples: tribunal court, family court, environment court, māori land court
Ngati apa - timeline of the foreshore and seabed case.
- Ngāti Apa and others bring a case to the māori land court - and they win
- The government appeals to the high court (and wins)
- Ngāti Apa appeal to the court of Appeal and WIN!
- The government responds with a policy and then a bill.
- The Waitangi tribunal declares that the governments policy is inconsistent with the Treaty of Waitangi.
- Foreshore and seabed act 2004 gets passed.
- Eventually we had a change of government, new govt created a new policy to replace the ‘Foreshore and Seabed Act 2004’ which was Marine and Coastal Area Act 2011
Common law explained.
We can talk about common law as the law from the courts, vs legislation as law of Parliament. We can also talk about it as being a common law system.
Common laws difference is the courts play a central role in deciding what the law is, and in developing the law.
How did New Zealand get its first parliament?
NZ Constitution Act 1852 - Legislation passed by English government for NZ.
It set up an elected body that was called the General Assembly.
Only had power to make laws for peace, order, good government in NZ but couldn’t be repugnant to the law of England.
Describe the similarities between our legal system and Englands.
Same institutions:
- courts and parliament
- similar court hierarchy
- Westminster democracies
Methods of lawmaking are the same:
- Lawmaking by elected legislature
- Trial by jury in the courts
- Precedent based decision making through the court (rather than reliance on a comprehensive written code - as in civil law systems)
- Royal assent on our legislation.
Explain ways our legal system now differs from Englands.
- Aspects of our legal system are simpler e.g. we don’t have a separate court of Equity
○ We never had a separate court in NZ (could go to one court) better for litigants in our legal system - From 1986, our Parliament has total sovereignty over making its own laws - the English parliament cannot do so even if we wanted it to
- Unlike England we have a unicameral legislature (house of representatives) (England has a bicameral arrangement)
- We never adopted the strong distinction between barrister/solicitor = more flexibility in our legal profession.
- Our criminal law is codified (Crimes Act 1961)
5 ways our legal system is unique for NZ context.
- The Waitangi Tribunal investigates breaches of te Tiriti o Waitangi / the Treaty of Waitangi
- Some English cases are still applied by our courts, others are not.
○ We can draw on England but only for when necessary to use decide of we want to apply their English case or use a different rule - Our courts draw on tikanga māori
- We have a raft of legislation that is unique to us / parliament has passed heaps of legislation passed that’s unique for us
for example, the accident compensation legislation, which means tort law plays a reduced role in our legal system compared with the UK and other common law systems. - Te ao Marama (culturally appropriate way to address criminals in NZ)
Why is Tikanga relevant today?
Te Tiriti - respecting Tikanga is essential to honouring the treatys principles
Legal system - Tikanga is increasingly being recognised in NZ’s legal system. Tikanga also was the first law of NZ.
People - Using Tikanga supports a more equal society between Māori and Pākeha in NZ
Common law - Tikanga is relevant in developing the common law in NZ.
What are NZ’s 3 authoritative sources of law?
- Legislation
- Common law
- Tikanga Māori
What is the Legislatures function?
Make legislation, represent voters, debates the law.
Function is law-making and also provides a forum for the scrutiny of government.
What is the Executives function?
Formulates policies, enforces the law, administers the law.
Function is to formulate policies to go before parliament, execute and administer Parliaments laws.
What is the Judiciaries function?
Makes precedent, interprets the law, reviews executive actions.
Interpret and apply legislation and common law principles, resolve disputes brought before them and holds the government to account by scrutinizing government action (judicial review).
What is delegated legislation?
It is “regulations” or “bylaws” that are made by the Executive - it is given the power to do so by the Legislature.
Why do we have/need delegated legislation?
Delegated legislation is often less important than statutes or very technical in nature and is better left to experts rather than generalists who sit in Parliament.
- E.g. a local bylaw is a form of delegated legislation made by city and district councils with expert knowledge on their local areas.
Parliament does not have time to pass the huge quantity of delegated legislation.
Why is ‘judicial independence’ important?
- The independence of the judiciary is crucial to maintaining fairness and impartiality in the application of the law.
- This principle ensures that the judiciary is free from interference by the executive or the legislature, also they are appointed via an independent, apolitical process.
- Judges make decisions based on the law and legal precedent, not on political pressure.
What sections of the Constitution Act 1986 ensure judicial independence?
Section 23 protects judges from government dismissal (except on the grounds of “misbehaviour” or “incapacity” etc).
Section 24 prevents the government from reducing a judges salary while in office.
These protect the judge who delivers a decision unfavourable to the government.
Why is the work of the legislature important to us?
- They represent voters (us)
- The decisions they make affect us as the legislation they produce we have to abide by.
- ## Holds the government accountable through scrutinising government actions and policies. Ensures the government acts in public interest.
Why is the work of the Executive important to us?
- Enforce the laws and make sure that they are carried out effectively
- oversee the functioning of key public services (healthcare, education, transport, social welfare)
Why is the work of the Judiciary important to us?
- Checks on the executive and legislature through judicial review
- Help maintain social order
+ determine criminal responsibility
+ resolve civil disputes between individuals - Help constrain government power
Relationship between Judiciary + Executive
In judicial review proceedings, courts scrutinise executive action.
- delegated legislation can be challenged under the process of judicial review.
The executive administers laws, while the judiciary reviews executive decisions to ensure they are lawful. The executive appoints judges, but cannot interfere with their decisions.
Relationship between Judiciary + Legislature
The judiciary resolves disputes by applying Acts of Parliament – and will often need to interpret exactly what an Act means.
- Sometimes legislation is vague or ambiguous, in ways that require judicial interpretation.
The judiciary interprets laws made by Parliament, ensuring they are applied fairly. Parliament can pass new laws in response to judicial interpretations, but cannot influence judicial rulings in individual cases.
Relationship between Executive + Legislature
Members of the Legislature hold the Executive to account by asking questions in Parliament.
The executive might, when administering legislation, soften or shape its impact.
The legislature passes laws and holds the executive accountable for its actions. The executive implements laws and proposes new legislation.
What are 4 principles that underpin the interactions between the 3 branches of government?
- separation of powers
- checks and balances
- accountability
- independence of judiciary
