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Public Law - Parliament
Terms in this set (38)
Parliament is made up of House of Representatives and Sovereign
S 18: Sovereign calls and dissolves P, carries out actions on advice of PM, so in practice PM decides when P will meet
S 10: Only way to become a member of the House is to be elected under the Electoral Act
S 16: An Act becomes law when GG assents to it
S 22: Govt. cannot raise or spend money without HoR's consent
House of Representatives
One legislative chamber in Parliament. Normally 120 members, current Parliament is 121
HoR as the legislature
House does discussing, debating and voting on proposed law. GG then signs into law what is passed by HoR (does not become law until GG has assented). No limits on what Parliament can legislate on, and no body can review or declare an Act invalid except Parliament itself. Failure to follow standing orders will not invalidate an Act. If GG refuses to assent would not have force of law (unlikely to occur). GG will under convention do as PM advises
HoR provides the government
Effectively decides who will be government and hold power over Exec, even if GG formally appoints government. Ministers of the Crown only keep positions while retain majority support of HoR in issues of confidence and supply.
HoR represents the people
Only directly elected part of our governmental structure.
HoR give consent to taxation and public spending
When Minister asks HoR for money, vote is always a confidence vote. If House says no, govt. falls and must resign. Cannot govern without confidence. Ministers must take the House seriously. Minister of Finance presents the Budget to the House, debated, initial vote given, estimates sent to Select Committees, report back to House, Final debate and final vote. Govt. will ensure it has majority. Govt. can go back to the House with an increase supply Bill (again need members to pass) and can validate spending after it has mistakenly taken place through a Validation Bill.
HoR scrutinises the current government
House can hold govt. accountable. Govt. needs ongoing support from HoR to govern, MPs can check what govt. is doing to see if deserves support. Question time in the House allows MPs to ask Ministers questions. Debates in the House. Select Committees (9-12 MPs on each): oversee an area of policy, hold inquiries, report back to the House, decisions can be accessed by public (accountability).
HoL, 1974. Pickin brought strip of land running alongside railway line, bought it because thought railway line would be closed down. 1836 Act that if Railway no longer need, whoever owns neighbouring land gets the railway land. However, Board got Parliament to pass private Act overriding 1836 Act and giving ownership to Board if railway closed. Pickin argued new Act was invalid. Board had tricked P into passing it and P had failed to follow own Standing Orders by not advertising that the Act would be passed. Act is thus invalid. Court said this was outside their jurisdiction - how it became law is not a question for P. Failure to abide by rules cannot be looked at in court.
HoR as an institution
Deeply political. Government camp and opposition camp. Advantages to being in government: can provide Ministers of the Crown, make decisions about running country, pass legislation. Opposition tries to undermine current government and take their jobs. Division within the parties. Mostly put disputes aside and support grouping in order to keep government or try to get into government. Governing parties only have to stick together on matters of confidence and supply. On other matters, support parties may disagree with government. Sometimes the opposition gets a win (e.g. Members Bills). Can have occasional votes on conscience basis (same sex marriage)
Get an electoral and party vote. Electorates create 71 of the seats in Parliament. Parties then get overall share of the House that very closely matches party vote. Electorate MPs take seats first, and rest are filled from list MPs. Qualify by getting more than 5% of the party vote, or if your party wins an electorate seat. Once seats are determined, try to set up Parliament with 61 seat majority. House is now more representative, makes a majority government unlikely and means legislation cannot be rushed through as need to discuss. Electoral Commission review in 2011 - recommended changes such as keeping P fixed at 120 seats. Minister of Justice declined - maybe as changes could remove National's support parties.
2006 law validating misspend of money used for electioneering. Spending was unlawful as was against the rules (s 22 Constitution Act). Moral and political obligation to repay money that was misspent. Parliament also gave retrospective validation to the spending. As sovereign, said that action was and is lawful.
Police Holding Youth Court info
Had no legal power to hold onto it, accidental mistake, breach of Privacy Act. Could not use info to catch people down the track. People convicted using unlawfully held info could argue unlawful. P fast-tracked legislation to fix this issue. Amendment to Policy Act passed in a single day, so no unlawfully held info.
Act change to validate police oaths
Some officers had sworn oaths in front of wrong person, legality of actions taken as officers under challenge. Amendment to Police Act moved though with urgency validating the oaths so no one could challenge their convictions
Amending and repealing legislation
Parliament can amend and repeal legislation expressly (by passing new Act saying the old one is no longer law). Where 2 conflicting enactments, general rule is an earlier Act is impliedly repealed by the passage of a later inconsistent Act. Parliament is deemed to have known there was this earlier law and decided to change it. Later Act created by a P that is reflecting our current society.
UK clearing slums out of centre of its city, trying to make them better. Two Acts on how compensation should be paid to owner of the land from 1919 and 1925. Doctrine of implied repeal indicates 1925 Act should be the law. But s 7 of 1919 Act said provisions of any other enactment were to have no effect. Could it be impliedly repealed? P in 1919 had no power to stop future P's from operating. Could not have intended s 7 to apply in place of a later Act. But in a lower court.
Ellen St Estates
Another slum clearance case. Owner trying to prevent land being taken under statutory formula. 1930 Act valued land at 0 so he would get nothing. Argued 1930 legislation should have no effect due to inconsistency with 1919 legislation. UKCA: all future P's have sovereignty over their own law. P in 1930 free to repeal 1919 Act expressly, and equally can change the law by passing a new inconsistent Act. Upheld approach in Vauxhall.
S 268 Electoral Act
Manner and form provision that reserves aspects of electoral process. Need 75% majority to amend or repeal reserved provisions. Does not say P cannot pass law on these issues, but says can only pass laws in this particular way. Has no special legal status - single entrenchment. Protects other sections but it itself is not protected. In theory, majority vote in P could remove or repeal s 268. But would be morally outrageous, and no govt. has tried it. Previously, courts could not look at this and past P could not bind future. However, by putting in statute, hoped to have more force than if in Standing Orders or convention. Now, courts can step in and enforce manner and form provisions.
Taylor v AG (2016, HC)
Disagrees with ban on prisoners registering to vote. Inconsistent with being entitled to register to vote under s 74 Electoral Act. Section 74 subject to s 81(1)(d) disqualifying those in prison from registering. Taylor argued s 268(1)(e) identifies s 74 as a reserved provision to which manner and form requirements in s 268(2) apply. Amending s 81 has effect of amending s 74. Crown accepted amending s 81 has effect of changing s 74 and is inconsistent with NZBORA. However, disagrees with what s 268 actually protects. Does not cover all of s 74, just voting age of 18+. Court agrees. To read it as covering all of s 74 is not consistent with language used. S 81(d) is thus valid as did not have to use special procedure since it was not covered by s 268.
Manner and form provisions
Courts are only restricting P because they decided to put the restriction in. Interpreting, applying and upholding their law. In this instance, past P can bind future P. If procedure not followed, will strike the legislation down. What about implied repeal? Likely due to nature of the legislation attaching to the electoral process is worth protecting. Contrast to legislation that has been impliedly repealed - everyday issues P deals with all of the time, do not want to restrict legislating in these areas. More reason for courts to restrict P on issues of constitutional significance, compared to ordinary policy matters where implied repeal is allowed.
Deep lying common law rights
Cooke P makes obiter comments on this thesis, dating back to old English law. Protective backstop for citizens. Thinks Court can step in and protect individual liberties by refusing to recognise an Act of P in one of the following areas.
L v M
Cooke P does not think P can tell the courts not to look at something, as the courts' role of examining matters is so important, P cannot oust it.
Brader v Ministry of Transport
Cooke said P's law making power does not extend giving its power away to someone else. Can authorise Exec to make regulations, but could not authorise them to make Acts of P.
NZ Drivers Association
Cooke expressed reservations to the extent that P can restrict the rights of citizens to go to the courts. An Act cannot restrict a person going to court to determine the legality of how they are being treated.
Right to be informed about what is alleged against you and the right to be heard. Arguable some common law rights go so deep even P cannot be accepted by the courts to have destroyed them. Cannot remove natural justice rights.
Keenan v AG
A duty to answer questions is never enforceable by physical compulsion.
Builder's Labourers Federation Case (NSW CA)
Not binding, like Cooke's obiter comments. Kirby P likes the idea of there being limits on the state, but disagrees with what Cooke says. Most legal authority on issue has held deep lying CL rights do not exist. Would not be good if they were part of our law. Judges could ignore law. Very subjective as rights are not written down. How far do they go? Are they the same everywhere? Parliament is elected while judges are appointed. Why do judges know better? Judges can do some things when it comes to legislation. Try to interpret in a way that protects, rather than hampers, rights. S 6 NZBORA. If the legislation is clear, despite a judge considering it to be unjust, not for him to substitute his opinion for that of elected representatives of P. E.g. Taylor.
Shaw v Commissioner of Inland Revenue
3 judge bench in CA. Kind of situations where deep lying common law rights are invoked tend to be extreme (torture, cancelling elections). Parliament usually uses its power within reasonable limits and Court uses its power to water it down where it can be too harsh on rights. Situations where Cooke's suggestions might apply simply do not arise often. Can trust the institutions in our system to stick within their constrained roles. CA does, however, recognise the existence of the common law rights Cooke is discussing, but does not deal with the issue because not needed in this case.
Section 7 AG's report
Has to check Bills before they go to the house for NZBORA consistency. A-G is both a politician and neutral overseer of govt.'s responsibilities. Is given advice by legally trained officials about Bills, looks at report and determines if he agrees with it. Can give his own opinion. Advice consists of reading through the Bill and looking to see if anything in it limits the rights in Part 2. If nothing limits rights, nothing to report and A-G's role finishes. If Bill does limit one of these rights, A-G has to go on and see if limit is justified under s 5 (Hansen test). If found to be justified, no inconsistency with NZBORA and nothing to report under s 7. If limit is not justified, there is an inconsistency with NZBORA. A-G has duty to report that inconsistency to HoR.
AG's report on Prisoner Voting Bill
Applying test to disenfranchising prisoners Bill. Found Bill limits right to vote under s 12. Government's purpose in removing rights from prisoners is a significant and important objective (does have a purpose). However, Bill fails the means part of the s 5 test because there is no rational connection between what govt. wants and how it is going about it. Report attached to Bill. Went ahead anyway, as is up to MPs.
Boscawen v AG
Electoral Finance Bill put quite extensive restrictions on amount people other than those in political parties could spend on election campaigning. Intention was to level playing field and prevent wealthy grounds from flooding advertising marketLimited freedom of expression, AG examined but held it was a justified limit due to need for equality in elections. No s 7 notice issued. Likely got this wrong as a matter of law (limits so widely applied that they were not proportionate). Millionaire opposed Bill and its impact on right of NZers to say what they believed at election time. Sought declaration AG had not done what s 7 required of her. Purpose of s 7 process: simply advice to P giving AG's opinion. Cannot go to court and ask for their opinion. Court cannot get involved - interfering with P's law making process, area for HoR to oversee. Comity. Courts cannot get involved with area that is left for P. Issue determined to be non-justiciable. For HoR to police the matter.
No direct incorporation of international law into NZ's domestic law. Dualist system. Two sources of international law: custom and law created by agreement. Traditionally, prerogative power of the Executive who went out and made treaties. Parliament had no say in what treaties NZ entered into.
Impact of treaties
Treaty might contain promise that NZ will accept as binding decisions of international committee. Can radically constrain what you can do as a country. Courts do not directly apply international law, but can look at international obligations in deciding what NZ's domestic law means. Interpret domestic law through a lens of our international obligations. Courts assume Executive will not make decisions without considering our international obligations. Treaty may contain a promise that NZ will introduce legislative changes to comply with its terms.
Parliament's involvement with international treaties
Exec branch do all the actual negotiating with other countries. Overseen by Ministry of Foreign Affairs and Trade. S 6A OIA: can refuse to release any info if it would prejudice national security or IR of NZ. Only after deal has been made that it comes before Parliament. Before this it is very secret. Cabinet must have first approved of it. Leadership of party currently enjoying confidence and supply in the government who make up Cabinet must have already said yes to the treaty. Parliament's ability to actually do anything is severely limited. Scrutiny process governed by Standing Orders 384-387. Not legal rules, failing to follow will not call the treaty's validity into question. David McGee suggests process in Standing Orders and included in Cabinet Manual has been followed so often and so consistently, a constitutional convention has arisen and would be constitutionally improper to ignore.
Standing Order 384
Sets out which treaties P should get to look at. To join multilateral treaty, have to follow special process in treaty itself of ratification etc. In bilateral treaty, just need 2 countries agreeing it will come into force. Standing Order 384(1): P gets to sell all multilateral treaties before NZ joins, unless there is urgency (will look at afterwards). If NZ wants to leave multilateral treaty, P looks at this before it happens. Also gets to see major bilateral treaties with significance to NZ.
National Interest Analysis
Treaty when given to P accompanied by National Interest Analysis looking at impact of treaty for NZ. Analysis written by same department who negotiates the treaty so not always very detailed in regard to possible risks of the treaty.
Select Committee scrutiny of treaties
Foreign Affairs, Defence and Trade Select Committee then looks at is and reports back to P. May hear public submissions. Has 15 sitting days to submit its report - not much time for people to make submissions against the Treaty. With TPPA, report had to be written before all submissions heard. Always comes back with approval. Even if disapprove, it is only advice.
Law changes under treaties
If law change is required, NZ's process is to change the law before it enters the treaty.
Withdrawing from treaties
Agreeing to a treaty does not bind us forever - can renounce. But withdrawal can have significant international consequences. NZ dependant on international agreements for trade and needs to be bound into a bigger network of IR. Future governments are in effect bound by treaties.
THIS SET IS OFTEN IN FOLDERS WITH...
Public Law - The Executive
Public Law - Introduction
Public Law - NZBORA
Public Law - Treaty of Waitangi
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OTHER SETS BY THIS CREATOR
Juris S2 - Moral Limits of the Law
Juris S2 - Obligation to Obey the Law
Juris S2 - Intergenerational Justice
Juris S2 - Human Rights