Our Legal Framework

Our Legal Framework-The institution of our state (the three arms of government

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1) Introduction: Encompasses the separation of powers doctrine 2) Parliament: • NZ’s constitutional structure derived (copied, unoriginal) from the Westminster style of government is parliamentary sovereignty. • Parliament = legislature = the House of Representatives plus the GG a) Functions of Parliament: • Parliament as unequalled, indisputable (not open to question, impossible to doubt) law making power. Having the right to make or unmake any law whatsoever, and that such law was unable to be set aside or invalidated by any person or body. • There is no higher law such as an entrenched Bill of Rights or written constitution to which Parliament is answerable Provides members of government (the executive) and provide money for them to govern such as Budget (money from taxation to build uni, road). Become part of executive bcos they are part of Cabinet Scrutinizes (expand, examine with great care) and debates the government’s performance. Reason why we have opposition party and the role of opposition is keep the govt honest. Debates proposed legislation (Bills) and listens to public submissions Legislation passed through the House of Representatives is required to be assented to by the GG Give the enormous potential for misuse and abuse of such sovereign authority, it is important that some checks and balances exist to temper the exercise of the power Other checks exist in Parliamentary procedure (the process of a Bill’s passage, use of select committees which scrutinise (analyse, analyse) proposed legislation, and Standing Orders dictating the debating process), public opinion: the law itself (BORs Act) and the watchdog role that statutory officers. Legislation which emanates (comes, stems) from the parliamentary process is supreme. It overrides the common law, judicial precedent and other Judge made law. It includes delegated legislation passed by subordinate bodies upon whom a lawmaking power is granted Neither judiciary nor the Executive has the power to create any which prevails over parliamentary law a) Independence of Parliament: • Self regulation by its own rules/committees: overseen by person called the Speaker who give Standing Orders and those orders will be send out of House Page 1 of 7

Our Legal Framework-The institution of our state (the three arms of government • Freedom of speech of members of Parliament (Bill of Rights 1688) they

can say whatever they like within the house of Parliament so if they step outside, they will be sued. • Immunity (resistance, protection) from civil action or criminal prosecutor for anything said in the House such as BORs 1688 1) The Executive: a) Govern General: • Is to act as the Queen’s representative in NZ • Gives the royal assent to bills and signs Orders in Council and other kinds of delegated legislation • Is appointed by the Queen on the recommendation of the PM for a term of five years • GG always acts on the advice of the PM based on the constitutional convention, in some case, GG may be able to override or ignore such advice • GG can refuse to act on advice that she should refuse to assent to a bill that has been passed • Presides over Executive Council (GG + PM + Cabinet: Minister of Crown), signs orders in council and other delegated legislation. They give notices and orders in Council and these are two majors type they can pass Executive Council • Notices such as election • Orders such as flooding, earthquake • They can suspend the P and grant honours (Queen’s Representative) as these things King used to do a) PM: • The office of the PM only exists by constitutional convention. • Act as the elected leader of the majority party or coalition (union, association) group in the House to allocate ministerial portfolios among those selected by caucus (group, league, union) to be members of Cabinet to preside (control, lead) over Cabinet and to advise GG • Many appointment to political, judicial and military offices and honours awards are made on the nomination or advice of the PM • Leading diplomat as he/she is a presented person for NZ in overseas • Leader of party with the most vote in P which chosen by the Party a) Ministers of the Crown: • The constitutional Act 1986 states that only Members of Parliament may be appointed as Minister of the Crown or as Parliamentary Under Secretaries Page 2 of 7

Our Legal Framework-The institution of our state (the three arms of government • In the House, senior members of the majority party can be selected to

become Minister • Overseen the management of govt departs or crown institutes or enterprise (scheme, activity, project) • Minister may be resign if managerial ineptitude (lack of ability/skill, incompetence) is revealed in connection with his or her portfolio or caught up in criminal activity • Minister now is only accountable for the later task under the convention • Run govt department: Minister Policy, immigration • Responsible for a department in which they in charged and if problem arise, they will resign a) Cabinet=PM + Ministers of the Crown: • Informal, deliberative (co suy nghi, than trong, chu tam) body created by convention • Formulates government policy, legislative programme • Comprises ministers of the Crown who are government Members of P appointed by the GG (on the recommendation of the PM), not all ministers sit on Cabinet • Ministers are allocated portfolios (areas of responsibility) and are concerned with formulating policy within the ambit of their portfolios • Chaired by PM • Is subject to collective/individual ministerial responsibility, meaning that Cabinet must present a unanimous (common, agreed) front on government policy and that individual ministers accountable to P for their initiatives and policies pertaining (thuoc ve, co quan he) to their sphere of operation • The Cabinet informally creates policy and introduces it to P in the form of Bills to become legislation • Policy people a) Executive Council = GG + PM and Minister of the Crown: • Formal constitutional organ comprised of all ministers with the GG preside (control, in charge) • PM is sworn in as member by GG • Provides formal communication link between the govt and the GG • Tenders advice to the GG for formulation of delegated legislations (notices, orders and proclamations) and it can be challenge by the Court 1) The judiciary = the Courts • Separation of Power: Court interpret legislation by finding the purpose of legislation (Interpretation Act 1999) a) General functions of the judiciary within the framework of government: Page 3 of 7

Our Legal Framework-The institution of our state (the three arms of government

• Ensure the executive arm does not abuse its power • Monitors the validity of delegated legislation • Is subordinate to P bcos P supreme under separation power of doctrine • Has power to interpret legislation bcos of Interpretation Act 1999 a) Judicial independence: • Judges are appointed not elected so change in government judge will stays therefore they are apolitical • Independence from political influence is a cornerstone of NZ’s legal system, the Courts, nevertheless, makes decisions, which have more substantial political and social impact. • MP cannot criticise Judges on the decision that they make according to separation of power doctrine. If they contempt (dislike) the court, they will be fined a) Court hierarchy: District Court hears appeal from Dispute Tribunal and it is also court of first instance (case,Court case in point) (Criminal, Civil Case goes first time) Appellate • Doctrine orofAppeal precedent: consistency and certainty as follow hierarchy = case thereforeCourts case can go to DC if lower $ and HC if higher $ is pre hearing • Rule: Lower courts must follow the ruling of higher courts (doctrine of precedent and doctrine of stare decisis): Civil case require $ →HC. $ ➢ instance Facts of →the case are different (it’s a way of avoiding the binding Ct first case precedent of HC) so not follow goes first ➢ Case of/with similar facts can be decided the same no matter what →hear Appeals from court they go to District Court • The process of appeal: ➢ Matter of law ➢ Sometimes mistake (given wrong direction to a jury) by Judges • Appellate courts cf court of first instance as case goes first ➢ Appellate jurisdiction (rule, command, authority) = jurisdiction hear appeals • Special courts and tribunals ➢ Youth court ➢ Waitangi Tribunal ➢ Disputes Tribunal ➢ Employment/Environment Court a) Dispute resolution: • The courts provide a framework for the hearing of cases: for the bringing of prosecutions and the resolution of disputes •

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Our Legal Framework-The institution of our state (the three arms of government • One of the primary functions of any legal system is to provide

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mechanisms for resolving business disputes with a minimum of disruption to ordinary business activity Resolving business disputes is adversarial system Destructive (unhelpful, negative, critical) to business relationship E.g. company trade with another end up in court so their business relationship destroyed Features of civil cases = criminal case Terminology: ➢ Plaintiff: initiatives processing & seeks a remedy → bring preceding (previous/past) against defendant ➢ Defendant: person who answer the complaint or defends the proceedings bought by therefore plaintiff v defendant An adversarial system: ➢ Parties = on opposite sides ➢ Judge = umpire (referee, arbiter) and to find the winner → quality of law is important. ➢ Inquisitional (enquiry, investigation, examination) is important system: Judge ask and expect answers → truth →involve proceedings (found in Civil Law) A claim is brought by a plaintiff. The claim may be met by a defence by the defendant and the defendant may bring a counter claim against the plaintiff. Case often has single defendant, plaintiff Case often have a single plaintiff and a single defendant. Variations: a plaintiff can select multiple defendants to sue, more than one plaintiff may bring the action, defendants can join third parties to a claim to spread responsibility A plaintiff will usually sue the person with the most money = deepest pocket Procedure in civil cases: Plaintiff files statement of claim in court and serves it on defendant. Plaintiff will file statement of claim “The Pleading” ➢ A statement of claim contains cause/s of action ➢ A cause of action consists of the facts (not law). This must be proved in order to qualify the plaintiff for a legal remedy. Plaintiff asks for a remedy. ➢ Cause of action → supported by the facts: elements must be proved → fact has to support those elements → successful Tort of negligence: ➢ Duty owed Page 5 of 7

Our Legal Framework-The institution of our state (the three arms of government

➢ Breach of duty ➢ Harm/loss has occurred ➢ Therefore to succeed → all elements must be proved • Statement of defence (defendant’s response): denies facts in plaintiff’s statement therefore Judge has to be umpire to test whether the fact in the plaintiff statement of claims are correct or defendant • The trial is the examination of the case before the court. The trial is a fact-binding process. If facts are disputed, the plaintiff has to prove those facts therefore plaintiff v defendant • Standard of proof = balance of probabilities = civil case 51% of plaintiff is successful • The plaintiff must show all the elements of a cause of action have been made out, and the plaintiff must show it is entitled to a remedy • What remedies can the courts award? ➢ Civil ➢ Damages =compensation for a wrong done ➢ Injunctions: court order to prevent actions → stop someone doing something • Defendant can avoid liability if the defendant can prove the facts which support a defence: question of evidence as to whether the facts plaintiff has set out are untrue (incorrect) ➢ Evidence Act sets out the rule of how/what evidence you can bring to the Court • The Judge will apply the appropriate legal rules to the decided facts, concluding in a judgement, thereby determining the dispute • Decision becomes the case becomes part of case law. Its significance as a precedent depends on which court in the hierarchy it was decided in. Case law: status of the court is important and it increase every time when court make decision • A successful plaintiff may have to enforce the court’s decision against an unwilling defendant. Debt get judgement orders v defendant to seize goods order over wages to pay the debt → you may be successful and then have to enforce that judgement by judgement orders • The majority of cases settle before proceedings are filed or at least before trial ‘settle out of Court” • An unsuccessful/dissatisfied litigant (plaintiff, complainant may wish to appeal the courts’ decision. Have to ask leave of the Court to appeal to the next court in a hierarchy → role of parties reserve when you going on appeal ➢ Appellant becomes defendant. Brings the appeal Page 6 of 7

Our Legal Framework-The institution of our state (the three arms of government

➢ Respondent becomes plaintiff. Responds to the appeal • Litigation (court case, lawsuit) can have very negative effects on a business. Relationship will be destroyed by court proceedings • Those involved in a dispute may seek alternative dispute resolution (ADR) way of maintain the relationship so they do not have to go to court ➢ Mediation and conciliation (parties reach a negotiated settlement): go to mediation first instead of court (get negotiated) → called Win/Win solution ➢ Arbitration is appointed (negotiate, mediation, settlement) (an arbitrator hears the dispute; the arbitrator’s decision is binding on the parties). Court proceedings: arbitration Act 1996

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