Law 121G Notes
Part A – Branches of Government and Historical Background
Lecture 1
Ø 5 parts to Law 121G
- Branches of Government and Historical Background
- Concepts of Law
- Global Context of Law
- Law and Rights
- Constitutional Direction
Lecture 2
Pre-lecture notes
Ø Common Law – which is a historical Judge made law which derive from court decisions
Ø Statute Law – which a parliamentary law which is sent out in statutes and can override
common law as it is implemented as a legislation
Ø A constitution is the power of the state. States the major institutions of government and
regulates the exercise of those powers. However, it is affected by the national character
of the state
Ø NZ constitution is seen as a monarchy in that it has a parliamentary government and it’s
a democracy. Treaty of Waitangi is regarded as the founding document of government
Ø Constitution Act of 1986 recognizes that the Head of State is a representative of the
Queen
Ø Only members of parliament may be Ministers of the Crown and one minister may also
act for another
Ø Parliament contains the Sovereign and House of Representatives
Ø Members of the house are elected according to the Electoral Act of 1993
Ø Each parliament has a term for 3 years unless it is dissolved
Ø The government general is the only one with the right to dissolve, summon and
prorogue (discontinue a session) Parliament
Ø After the general election the Parliament must meet within 6 weeks for the return of
writs (form of written command)
Ø Constitution Act allows Parliament to have full power to make laws when the Sovereign
or Governor General assents (approve) to it.
Ø The Crown cannot levy taxes, raise loans or spend public money under the Act of
Parliament
Ø Prerogative powers of the Queen – which includes the fact that the queen has the
power to appoint the Government-General who can act upon her behalf. They are able
to dismiss Executive Council and Ministers of the Crown. Independent to statutes but
statutes can override these powers
Ø Other Statutes of NZ
- State Sector Act 1988
- Electoral Act 1993
- Judicature Act 1908
- Ombudsmen Act 1976
, - Official Information Act 1982
- Public Finance Act 1989
- NZ Bill of Rights Act 1990
Ø Decisions of courts which uphold rights of an individual to the power of the state
Ø Treaty of Waitangi which focuses of special recognition to Maori rights and interests.
Article 3 in Treaty states that Maori are citizens of the whole community. Many Maori
constitutions have a large say in the wider constitutional and political system.
Ø Conventions of Constitutions – which practice, control and transform the laws which are
created from the parliament or commons laws
Ø The Queen and Governor General are stated by law to have almost equal power which
can appoint Ministers, Judges, Defense Chief, Ombudsmen (investigate complaints of
individuals against companies and organization) and Controller and Auditor General)
and they can dissolve parliament, and dismiss any proposed plans submitted by the
Executive Council and Ministers
Ø But if a new law, economic and parliamentary changes than a government convention
must be put forward by the party with the Majority in the House from the electoral
Ø Convention has its own limit in which that if a Prime Minister loses support in the House
it can lead to a change in the Prime Minister.
Ø The General rule is that the Governor General acts with the advice of the Prime Minister
and Ministers
Ø Governor General also must inform, consult, advise and warn Ministers of their actions
Ø Political parties allow for a link between government, parliament and the people as the
party that wins the electoral will govern the House
Ø It is will the support of the House and party(ies) that make the government
Ø Importance of parties have increased in the parliament as they are able to make
decisions together according to how many votes they gain on the electoral and their
relationship will affect what statutes are put forward
Ø Prime minister is the general person that coordinates everything in government. It is the
head of government and chair of Cabinet
Ø The prime minister can also advise the Governor-General to call elections or to dissolve
the parliament as well as being able to hire, dismiss and accept resignation of ministers
Ø The role of the public service is stated in the State Sector 1988, Public Finance Act 1989
and Official Information Act 1982
Ø There main roles are to act in accordance with the law, imbued with the spirit of service
of the community, are to give free and frank advice to Ministers and where the
legislation provides act independently according to the legislation
Ø Public Service may act independently where the Ministers have little control or
responsibility
Ø These bodies set up separate from the government are regulatory agencies, providers of
services, state trading bodies and supervisory, control or advice agencies
Ø 1982 Official Information Act had reversed the Official Secrets Act 1951 meaning that
official information is available to those who wish to view it unless there is a reason that
forces it to stay private
Ø This allows for more effective communication and participation of the people in NZ and
to promote the accountability of Ministers and Officials
Ø Greater transparency makes it easier to develop policies towards government spending
and fiscal policy
,Ø There needs to be a balance between the majority power and the rights of the minority
Ø The answer is not simply the majority decision but rather they must be based on
understanding of society, convention, Treaty of Waitangi and international obligations
Ø Due to many changes within the world over the past decades international relation has
become more important in deciding laws within a country
Ø Power is restrained by law, convention, practice and public acceptance
Ø Key elements in the electoral system can be amended only if the referendum approves
Ø Other constitutional change come from the Bill of Rights Act 1990 from the decision
made by courts and changing practices
Ø Branches of government such as the legislature, executive and judiciary should be
seperate from another to maintain accountability, fairness and liberty
Ø This theory was put forward by Montesquieu suggesting that each branch should be
separate so that they are not able to share the power of one another
Ø It suggests that if one person has control over different functions than they are able to
manipulate the system more
Ø Yet there still needs to be some interaction between the 3 branches in order to main
some form of practicality in order to coordinate and share some power
Lecture Notes
Ø Common Law: judge made law – made by judges through the court system, relies on
doctrine of precedent, hierarchy of courts and recorded and published
Ø Lower courts are bound by the decisions made by the higher courts
Ø Statute law: superior to common law and is the main form of law in NZ
Ø It is passed by parliament and assented to by the GG then it is written and published
Ø Parliament is the highest supreme law-making body. Statutes can override judge
made and common law and no person or body can override statute law
Ø Courts can’t override or strike down the legislation. The courts can interpret and
apply the legislation but needs to be in line with the parliament’s intentions
Ø In 1066 there was a monarchy that had prevailed in England and this meant that the
king and queen had the power to create any law and was not bound by their laws
and also acted as judges who would solve many matters within their kingdom
Ø Magna Carta 1215 was when the basic rights of citizen were set out and the king and
government were now also bound by the law
Ø Magna Carta’s law that still exists today is that all free men have the right to a free
trial and cannot be imprisoned except by the judgement of their equal (jury)
Ø A power struggle was going as the parliament gained more and more power but still
till 1500s the monarchy still had more power
Ø In 1688 the power of the monarchy was finally restrained. Passing the Bill of Rights
between parliament
Ø Rule of Law – everyone is equal under the law, everyone is subject to the law, law is
conducted by the public, decisions affecting rights must be made in accordance with
predetermined procedure and courts are open to all
Common Law Statute Law
Made by judges Made by Parliament
Retrospective Prospective
Drawn from principles as articulated and Written and published as statutes or Acts
applied in past judgements
, Often based on certain values of respect for Can be about anything specific or general
individual dignity and possession of
property
Judges must have dispute before Parliament has greater law-making
themselves freedom
Constitution
Ø Sets out how laws are made
Ø How the branches of government relate to each other
Ø Contain basic rights of citizens
NZ’S Constitution
Ø NZ is a constitutional monarchy
Ø Representative and responsible government
Ø Representative government through our electoral system
Ø Treaty of Waitangi is the founding document of law
Branches of Government
Ø Queen is the head of the state
Ø Parliament – legislature they made the law
Ø Executive – execute the law – ministers, cabinet and public services
Ø Judiciary - interpret the law
Ø This allows for the separation of power instead of leaving to one person
Ø This can lead to them exempting themselves from the law
Lecture 3
Ø The annexation gives the constitutional arrangements and legal system, contextual
understanding of social/historical/political factors, the role of the law – legal steps
and processes and illuminates conflicting understandings and expectations of
colonial power and the Maori
Ø Belich Scales – ostensible authority scale – how much imagined control did Britain
claim over NZ as they had legally gained control over NZ
Ø Intervention Scale – how much power did Britain exert on NZ – money, personnel
and resources
Ø Actual Control – how much power did Britain have over NZ
Timeline
Ø 1833, British Resident Busby arrived in NZ
Ø 1835 – Britain disclaimed sovereignty over NZ by recognizing Maori a sovereign
people through declaration of independence
Ø Between 1837 – 39, Britain tried to NZ as a protectorate/exercise partial sovereignty
over European settlements alone
Ø 1840 – Treaty of Waitangi signed, and Britain claims full sovereignty over NZ
Scale of Intervention
Ø 1930s – NSW Governors unilaterally assumed some responsibility
Ø 3 statues passed to acknowledge NZ was not with Majesty’s Dominion
Ø 1833 – appointment of James Busby as British resident in NZ – protect British trade
interests and regulate criminal activity in the settlements
Ø He was given very little resources to do anything as none of the empire had any
interest
Part A – Branches of Government and Historical Background
Lecture 1
Ø 5 parts to Law 121G
- Branches of Government and Historical Background
- Concepts of Law
- Global Context of Law
- Law and Rights
- Constitutional Direction
Lecture 2
Pre-lecture notes
Ø Common Law – which is a historical Judge made law which derive from court decisions
Ø Statute Law – which a parliamentary law which is sent out in statutes and can override
common law as it is implemented as a legislation
Ø A constitution is the power of the state. States the major institutions of government and
regulates the exercise of those powers. However, it is affected by the national character
of the state
Ø NZ constitution is seen as a monarchy in that it has a parliamentary government and it’s
a democracy. Treaty of Waitangi is regarded as the founding document of government
Ø Constitution Act of 1986 recognizes that the Head of State is a representative of the
Queen
Ø Only members of parliament may be Ministers of the Crown and one minister may also
act for another
Ø Parliament contains the Sovereign and House of Representatives
Ø Members of the house are elected according to the Electoral Act of 1993
Ø Each parliament has a term for 3 years unless it is dissolved
Ø The government general is the only one with the right to dissolve, summon and
prorogue (discontinue a session) Parliament
Ø After the general election the Parliament must meet within 6 weeks for the return of
writs (form of written command)
Ø Constitution Act allows Parliament to have full power to make laws when the Sovereign
or Governor General assents (approve) to it.
Ø The Crown cannot levy taxes, raise loans or spend public money under the Act of
Parliament
Ø Prerogative powers of the Queen – which includes the fact that the queen has the
power to appoint the Government-General who can act upon her behalf. They are able
to dismiss Executive Council and Ministers of the Crown. Independent to statutes but
statutes can override these powers
Ø Other Statutes of NZ
- State Sector Act 1988
- Electoral Act 1993
- Judicature Act 1908
- Ombudsmen Act 1976
, - Official Information Act 1982
- Public Finance Act 1989
- NZ Bill of Rights Act 1990
Ø Decisions of courts which uphold rights of an individual to the power of the state
Ø Treaty of Waitangi which focuses of special recognition to Maori rights and interests.
Article 3 in Treaty states that Maori are citizens of the whole community. Many Maori
constitutions have a large say in the wider constitutional and political system.
Ø Conventions of Constitutions – which practice, control and transform the laws which are
created from the parliament or commons laws
Ø The Queen and Governor General are stated by law to have almost equal power which
can appoint Ministers, Judges, Defense Chief, Ombudsmen (investigate complaints of
individuals against companies and organization) and Controller and Auditor General)
and they can dissolve parliament, and dismiss any proposed plans submitted by the
Executive Council and Ministers
Ø But if a new law, economic and parliamentary changes than a government convention
must be put forward by the party with the Majority in the House from the electoral
Ø Convention has its own limit in which that if a Prime Minister loses support in the House
it can lead to a change in the Prime Minister.
Ø The General rule is that the Governor General acts with the advice of the Prime Minister
and Ministers
Ø Governor General also must inform, consult, advise and warn Ministers of their actions
Ø Political parties allow for a link between government, parliament and the people as the
party that wins the electoral will govern the House
Ø It is will the support of the House and party(ies) that make the government
Ø Importance of parties have increased in the parliament as they are able to make
decisions together according to how many votes they gain on the electoral and their
relationship will affect what statutes are put forward
Ø Prime minister is the general person that coordinates everything in government. It is the
head of government and chair of Cabinet
Ø The prime minister can also advise the Governor-General to call elections or to dissolve
the parliament as well as being able to hire, dismiss and accept resignation of ministers
Ø The role of the public service is stated in the State Sector 1988, Public Finance Act 1989
and Official Information Act 1982
Ø There main roles are to act in accordance with the law, imbued with the spirit of service
of the community, are to give free and frank advice to Ministers and where the
legislation provides act independently according to the legislation
Ø Public Service may act independently where the Ministers have little control or
responsibility
Ø These bodies set up separate from the government are regulatory agencies, providers of
services, state trading bodies and supervisory, control or advice agencies
Ø 1982 Official Information Act had reversed the Official Secrets Act 1951 meaning that
official information is available to those who wish to view it unless there is a reason that
forces it to stay private
Ø This allows for more effective communication and participation of the people in NZ and
to promote the accountability of Ministers and Officials
Ø Greater transparency makes it easier to develop policies towards government spending
and fiscal policy
,Ø There needs to be a balance between the majority power and the rights of the minority
Ø The answer is not simply the majority decision but rather they must be based on
understanding of society, convention, Treaty of Waitangi and international obligations
Ø Due to many changes within the world over the past decades international relation has
become more important in deciding laws within a country
Ø Power is restrained by law, convention, practice and public acceptance
Ø Key elements in the electoral system can be amended only if the referendum approves
Ø Other constitutional change come from the Bill of Rights Act 1990 from the decision
made by courts and changing practices
Ø Branches of government such as the legislature, executive and judiciary should be
seperate from another to maintain accountability, fairness and liberty
Ø This theory was put forward by Montesquieu suggesting that each branch should be
separate so that they are not able to share the power of one another
Ø It suggests that if one person has control over different functions than they are able to
manipulate the system more
Ø Yet there still needs to be some interaction between the 3 branches in order to main
some form of practicality in order to coordinate and share some power
Lecture Notes
Ø Common Law: judge made law – made by judges through the court system, relies on
doctrine of precedent, hierarchy of courts and recorded and published
Ø Lower courts are bound by the decisions made by the higher courts
Ø Statute law: superior to common law and is the main form of law in NZ
Ø It is passed by parliament and assented to by the GG then it is written and published
Ø Parliament is the highest supreme law-making body. Statutes can override judge
made and common law and no person or body can override statute law
Ø Courts can’t override or strike down the legislation. The courts can interpret and
apply the legislation but needs to be in line with the parliament’s intentions
Ø In 1066 there was a monarchy that had prevailed in England and this meant that the
king and queen had the power to create any law and was not bound by their laws
and also acted as judges who would solve many matters within their kingdom
Ø Magna Carta 1215 was when the basic rights of citizen were set out and the king and
government were now also bound by the law
Ø Magna Carta’s law that still exists today is that all free men have the right to a free
trial and cannot be imprisoned except by the judgement of their equal (jury)
Ø A power struggle was going as the parliament gained more and more power but still
till 1500s the monarchy still had more power
Ø In 1688 the power of the monarchy was finally restrained. Passing the Bill of Rights
between parliament
Ø Rule of Law – everyone is equal under the law, everyone is subject to the law, law is
conducted by the public, decisions affecting rights must be made in accordance with
predetermined procedure and courts are open to all
Common Law Statute Law
Made by judges Made by Parliament
Retrospective Prospective
Drawn from principles as articulated and Written and published as statutes or Acts
applied in past judgements
, Often based on certain values of respect for Can be about anything specific or general
individual dignity and possession of
property
Judges must have dispute before Parliament has greater law-making
themselves freedom
Constitution
Ø Sets out how laws are made
Ø How the branches of government relate to each other
Ø Contain basic rights of citizens
NZ’S Constitution
Ø NZ is a constitutional monarchy
Ø Representative and responsible government
Ø Representative government through our electoral system
Ø Treaty of Waitangi is the founding document of law
Branches of Government
Ø Queen is the head of the state
Ø Parliament – legislature they made the law
Ø Executive – execute the law – ministers, cabinet and public services
Ø Judiciary - interpret the law
Ø This allows for the separation of power instead of leaving to one person
Ø This can lead to them exempting themselves from the law
Lecture 3
Ø The annexation gives the constitutional arrangements and legal system, contextual
understanding of social/historical/political factors, the role of the law – legal steps
and processes and illuminates conflicting understandings and expectations of
colonial power and the Maori
Ø Belich Scales – ostensible authority scale – how much imagined control did Britain
claim over NZ as they had legally gained control over NZ
Ø Intervention Scale – how much power did Britain exert on NZ – money, personnel
and resources
Ø Actual Control – how much power did Britain have over NZ
Timeline
Ø 1833, British Resident Busby arrived in NZ
Ø 1835 – Britain disclaimed sovereignty over NZ by recognizing Maori a sovereign
people through declaration of independence
Ø Between 1837 – 39, Britain tried to NZ as a protectorate/exercise partial sovereignty
over European settlements alone
Ø 1840 – Treaty of Waitangi signed, and Britain claims full sovereignty over NZ
Scale of Intervention
Ø 1930s – NSW Governors unilaterally assumed some responsibility
Ø 3 statues passed to acknowledge NZ was not with Majesty’s Dominion
Ø 1833 – appointment of James Busby as British resident in NZ – protect British trade
interests and regulate criminal activity in the settlements
Ø He was given very little resources to do anything as none of the empire had any
interest
