Public Law 211
Lecture 1 – Introduction
Ø Power is good (Hobbes) – it’s important to have someone in power otherwise it
becomes the survival of the fittest – a bad leader is better than no leader –
governments need power to control people – people are nasty, and life should not
depend on the powers given at birth
Ø Power needs to be restrained (Locke) – people have inherent liberties and there is a
limit to what public power can do to us
Ø Courts are always trying to balance these two philosophies – they wish to give you
your rights but make sure that the government is able to function properly
Ø Idea of constitution – government according to a system of rules rather than
personal or arbitrary rule by a sovereign or council
Ø Basic functions of a constitution
Ø Constitute, define and legitimize power – supervise the power and make sure it is
used correctly
Ø Distribute power across institutions and office holders – executive, parliament and
judiciary
Ø Create controls over the misuse of power – judicial reviews, BORA 1990
Ø Create controls on the people who control power – for example judges – too much
power how do we control them
Ø Give citizens protection against the abuse of government power
Ø Functionally the NZ constitution does all of these things, but it is in an unwritten
form
Ø Form of NZ’s constitution – it contains laws that regulate matters that are
fundamental – BORA 1990, Treaty of Waitangi Act 1975 (present cases and can only
make suggestions), Constitution Act 1986
Ø Laws distinguished from ordinary legislation by more stringent procedure – Electoral
Act 1993 – special majority – this could give too much power to the government of
the day making it harder for future governments
Ø NZ unlike many others we don’t have a single text or set of rules known as a
constitution
Ø Legislation considered fundamental is not always entrenched – legislation
considered fundamental cannot be used by judges to invalidate other legislation
Ø We have legislative supremacy not judicial supremacy
Ø Ultimately constitution is enforced by politics rather than law – texts are never
complete – judges don’t deploy guns, tanks or money – liberty are the products of
politics they are not prior to politics
Ø NZ’s constitution is highly flexible – the life of most constitutions is 12 years and
continuously changing generation by generation – constitution is not based on strict
separation but on the theory of responsible government
Lecture 2 – History of Constitutional Law
Ø Constitutional history – 16th to 18th century the problem in Britain was that the Kings
and his ministers enjoyed too much power over parliament, courts and citizens
,Ø House of commons took away the power from the king – had to have a civil war, kill
the king and bring back a king
Ø The new problem was that too much power were given to the parliament – which
gave too much control over the citizens – until they are voted out – but still years of
control
Ø This gave a lot of power to the people who appoint these parties and the parties
themselves who appoint these ministers – so government dominates parliament
Ø Parliament means the HoR and the Queen – government means the ministers
Ø Prime minister Muldoon who ruled without parliament due to one act that was
passed and didn’t force parliament to meet
Ø We now have MMP system – this is designed coalition governments – ministers have
to compromise – reduce the power of political parties and increase power of the
Parliament
Ø Parties create lists of the ministers that go into the Parliament – even though they
are trying to reduce political party but actually increase it – the number of votes the
party get actually determines how many seats they actually get
Ø We now we have BORA 1990 due to the labour government was in power as they
felt they had too much power and during the end of their reign they created this to
help constrain governments
Ø In the 19th century the administrative group grew extremely fast and big – these are
the executive who deliver the service and regulate all tasks of the government
Ø There were then civil servants – who regulate and act on behalf of the government –
there is no mention of this in the big documents since it didn’t exist back then
Ø There was nothing to regulate the executive – until the 1960s when the judges
created government control by judicial reviews through writs from the past
Ø The new problem was that judges were not elected democratically – executive
acting under people who were democratically elected
Ø Judges – sometimes considered the least dangerous branch – they can’t make a
programmatic change like a statute – it’s done case by case – predict much more
what a judge will do rather than what government relatively – they are a-political –
they are not supposed to take someone’s view politically – they are more
conservative – they are not very radical – they cannot test many legal points they
don’t have control over what cases are presented to them
Ø Judges are meant to be independent – give them enough money so that they are not
bribed – they are not subject to 3-years so they may look longer into the future of
the effects of the case – they are very hard to get rid of – s23/24 in the Constitution
Act 1986 – gives the provision on how to remove judges and their salary
Ø Judges are accountable – through appeals – judges can be reviewed by higher courts
– recusals where when judges should step down – removal – cannot bring a civil law
action against a judge for losses (as this would mean litigation would not be finished)
Ø When at the top there is no real constraints – however, in the future you can be
overwritten by a new court
Ø Compulsory retirement age of 70 – can be acting judge till 75 – America judges can
stay as long they like
Ø International law – many problems that cannot be decided by just the governments
themselves – parliamentary supremacy won’t solve war, global warming, refugee
, crisis – move power to international institutions – international courts and civil
servants
Ø It has greatly who increased the power of the executive as they are the ones that go
for Treaty signing
Ø Power very diffuse and no one knows who has it and who to hold accountable –
international organisations don’t have to respond to anyone
Ø Constitutional law is dynamic and responsive – enduring universal values
Lecture 3 – Legitimacy of Power
Ø As a public lawyer it is important to consider who has the authority to do what – and
you should always question what gives that person that right
Ø Entick v Carrington (1765) – judges decide if it is the law then it will be in our
statutes or common law
Ø Common law values with a layer of statutes on top – common law represents the
norms and values of the community – and the layer of statute has holes in it to allow
the common law to come through and fill gaps
Ø Fitzgerald v Muldoon (1976) – the prime minister issues a press statement stating
the super annuation scheme had been suspended – suspending the law – there was
no doubt that he had the numbers in parliament to pass this law – but he hadn’t
done it through the parliament yet
Ø BORA 1689 – the pretended power of suspending laws or the execution of law by
regal authority without consent of Parliament is illegal – the court decides that it is
illegal for Muldoon to have done this
Ø This helps to make sure that collective decision making is important as it legitimizes
the law and enhances the outcomes for all
Ø Declaration of the Independence of NZ – s2 – all sovereign power hereby resides
with the chiefs and heads of tribes in their collective capacity, do not permit
legislative authority separate from themselves – nor any function of government to
be exercised unless appointed or acting under the authority of the congress
assembled
Ø British used international law, British law and the Treaty of Waitangi to claim
sovereignty over NZ in 1800s
Ø Article 1 – English text says that Maori give their sovereignty while in the Maori
version its chieftainship which were very different ideas
Ø Article 2 – British are taking something – British wanted to be the sole purchasers of
land from the Maori and then they wanted to sell it off to settlors at a higher price
Ø Article 3 – outlines the Natives of NZ her royal protection and Rights and Privileges
of British subjects
Ø The meeting of minds according to the Waitangi tribunal was that British were
getting external control of NZ (protection from other countries such as France or
USA) and they had control over their British settlors but no control over Maori
Ø In 1852 Britain passed the NZ Constitution Act – we had a constitution that was
given by the British parliament not made by the people
Ø S71 – gave some power to Maori’s to govern themselves – saying that in dealings
with themselves that particular districts should be set apart within which such laws,
customs and usages are observed
, Ø It also allowed for the assembly of parliaments – but these Maori districts never
really happened
Ø There was also a writ that meant that customs and common law of the aboriginals of
NZ would be respected a part of the common law as long as they were not
repugnant to general principles of humanity
Ø There was a governor that had to give assent to bills being passed and could send
them back to reviewed again, exercised control over native affairs – this is because
they didn’t trust settlor governments since they were too self-interested and just
wanted land – at the time the General Assembly was not proper law-making power
Ø After 1926 – it changed and there became different crowns for different
governments – the governor became the Governor General – became much more a
symbolic figure
Ø 1931 UK Statute of Westminster – giving many countries the ability to fully self-
govern – this was not adopted till 1947
Ø Any future request for the UK parliament to make law for NZ would have to be made
by the act of the NZ parliament – gave power to NZ parliament to change its own
constitution act
Ø Took till 1986 for the provisions of the Constitution Act 1952 to finally become part
of the NZ law – s15 parliament now has full law-making power
Lecture 4 – Constitution Act 1986
Ø Took from 1931 to 1947 – to take up autonomous power under the statute of
Westminster
Ø It took us till 2003 to remove the judicial counter of the Privy Council to the Supreme
Court of the NZ
Ø NZ has no real point at which the constitution really started – these events are
considered people events – people constituting themselves – but in NZ the
constitution changes happened by the elites – UK Constitution Act – Constitution Act
1986 was written by officials (civil servants) not by a community
Ø Parliament has not had law making power for that long – political and legal powers
were not always aligned – lawyers wanted to have full law-making power
Ø Constitution Act 1986 finally replaced the UK Constitution Act
Ø Constitution Act 1986 is merely declaratory – it’s the codification of the law –
describes things as they already are
Ø Starts with the Sovereign and Governor General – separate sovereign in relation to
each country – this is important since we need different advisors for different
countries – the sovereign does not represent NZ in foreign affairs it is instead done
by the Governor General – GG is appointed by the sovereign to represent them –
historically were military men – they report back to the queen
Ø HoR – s10 – there shall continue to be a HoR which is the continuation of the general
assembly – HoR is the people elected by the people
Ø Parliament includes the HoR and the sovereign or GG
Ø S15 – the parliament of NZ continues to have full power to make laws and the UK
does not have the power to make any laws for NZ or any laws it does make do not
apply to NZ
Ø S16 – a bill passed by the HoR shall become law when the GG assents to it and signs
it in token of assent
Lecture 1 – Introduction
Ø Power is good (Hobbes) – it’s important to have someone in power otherwise it
becomes the survival of the fittest – a bad leader is better than no leader –
governments need power to control people – people are nasty, and life should not
depend on the powers given at birth
Ø Power needs to be restrained (Locke) – people have inherent liberties and there is a
limit to what public power can do to us
Ø Courts are always trying to balance these two philosophies – they wish to give you
your rights but make sure that the government is able to function properly
Ø Idea of constitution – government according to a system of rules rather than
personal or arbitrary rule by a sovereign or council
Ø Basic functions of a constitution
Ø Constitute, define and legitimize power – supervise the power and make sure it is
used correctly
Ø Distribute power across institutions and office holders – executive, parliament and
judiciary
Ø Create controls over the misuse of power – judicial reviews, BORA 1990
Ø Create controls on the people who control power – for example judges – too much
power how do we control them
Ø Give citizens protection against the abuse of government power
Ø Functionally the NZ constitution does all of these things, but it is in an unwritten
form
Ø Form of NZ’s constitution – it contains laws that regulate matters that are
fundamental – BORA 1990, Treaty of Waitangi Act 1975 (present cases and can only
make suggestions), Constitution Act 1986
Ø Laws distinguished from ordinary legislation by more stringent procedure – Electoral
Act 1993 – special majority – this could give too much power to the government of
the day making it harder for future governments
Ø NZ unlike many others we don’t have a single text or set of rules known as a
constitution
Ø Legislation considered fundamental is not always entrenched – legislation
considered fundamental cannot be used by judges to invalidate other legislation
Ø We have legislative supremacy not judicial supremacy
Ø Ultimately constitution is enforced by politics rather than law – texts are never
complete – judges don’t deploy guns, tanks or money – liberty are the products of
politics they are not prior to politics
Ø NZ’s constitution is highly flexible – the life of most constitutions is 12 years and
continuously changing generation by generation – constitution is not based on strict
separation but on the theory of responsible government
Lecture 2 – History of Constitutional Law
Ø Constitutional history – 16th to 18th century the problem in Britain was that the Kings
and his ministers enjoyed too much power over parliament, courts and citizens
,Ø House of commons took away the power from the king – had to have a civil war, kill
the king and bring back a king
Ø The new problem was that too much power were given to the parliament – which
gave too much control over the citizens – until they are voted out – but still years of
control
Ø This gave a lot of power to the people who appoint these parties and the parties
themselves who appoint these ministers – so government dominates parliament
Ø Parliament means the HoR and the Queen – government means the ministers
Ø Prime minister Muldoon who ruled without parliament due to one act that was
passed and didn’t force parliament to meet
Ø We now have MMP system – this is designed coalition governments – ministers have
to compromise – reduce the power of political parties and increase power of the
Parliament
Ø Parties create lists of the ministers that go into the Parliament – even though they
are trying to reduce political party but actually increase it – the number of votes the
party get actually determines how many seats they actually get
Ø We now we have BORA 1990 due to the labour government was in power as they
felt they had too much power and during the end of their reign they created this to
help constrain governments
Ø In the 19th century the administrative group grew extremely fast and big – these are
the executive who deliver the service and regulate all tasks of the government
Ø There were then civil servants – who regulate and act on behalf of the government –
there is no mention of this in the big documents since it didn’t exist back then
Ø There was nothing to regulate the executive – until the 1960s when the judges
created government control by judicial reviews through writs from the past
Ø The new problem was that judges were not elected democratically – executive
acting under people who were democratically elected
Ø Judges – sometimes considered the least dangerous branch – they can’t make a
programmatic change like a statute – it’s done case by case – predict much more
what a judge will do rather than what government relatively – they are a-political –
they are not supposed to take someone’s view politically – they are more
conservative – they are not very radical – they cannot test many legal points they
don’t have control over what cases are presented to them
Ø Judges are meant to be independent – give them enough money so that they are not
bribed – they are not subject to 3-years so they may look longer into the future of
the effects of the case – they are very hard to get rid of – s23/24 in the Constitution
Act 1986 – gives the provision on how to remove judges and their salary
Ø Judges are accountable – through appeals – judges can be reviewed by higher courts
– recusals where when judges should step down – removal – cannot bring a civil law
action against a judge for losses (as this would mean litigation would not be finished)
Ø When at the top there is no real constraints – however, in the future you can be
overwritten by a new court
Ø Compulsory retirement age of 70 – can be acting judge till 75 – America judges can
stay as long they like
Ø International law – many problems that cannot be decided by just the governments
themselves – parliamentary supremacy won’t solve war, global warming, refugee
, crisis – move power to international institutions – international courts and civil
servants
Ø It has greatly who increased the power of the executive as they are the ones that go
for Treaty signing
Ø Power very diffuse and no one knows who has it and who to hold accountable –
international organisations don’t have to respond to anyone
Ø Constitutional law is dynamic and responsive – enduring universal values
Lecture 3 – Legitimacy of Power
Ø As a public lawyer it is important to consider who has the authority to do what – and
you should always question what gives that person that right
Ø Entick v Carrington (1765) – judges decide if it is the law then it will be in our
statutes or common law
Ø Common law values with a layer of statutes on top – common law represents the
norms and values of the community – and the layer of statute has holes in it to allow
the common law to come through and fill gaps
Ø Fitzgerald v Muldoon (1976) – the prime minister issues a press statement stating
the super annuation scheme had been suspended – suspending the law – there was
no doubt that he had the numbers in parliament to pass this law – but he hadn’t
done it through the parliament yet
Ø BORA 1689 – the pretended power of suspending laws or the execution of law by
regal authority without consent of Parliament is illegal – the court decides that it is
illegal for Muldoon to have done this
Ø This helps to make sure that collective decision making is important as it legitimizes
the law and enhances the outcomes for all
Ø Declaration of the Independence of NZ – s2 – all sovereign power hereby resides
with the chiefs and heads of tribes in their collective capacity, do not permit
legislative authority separate from themselves – nor any function of government to
be exercised unless appointed or acting under the authority of the congress
assembled
Ø British used international law, British law and the Treaty of Waitangi to claim
sovereignty over NZ in 1800s
Ø Article 1 – English text says that Maori give their sovereignty while in the Maori
version its chieftainship which were very different ideas
Ø Article 2 – British are taking something – British wanted to be the sole purchasers of
land from the Maori and then they wanted to sell it off to settlors at a higher price
Ø Article 3 – outlines the Natives of NZ her royal protection and Rights and Privileges
of British subjects
Ø The meeting of minds according to the Waitangi tribunal was that British were
getting external control of NZ (protection from other countries such as France or
USA) and they had control over their British settlors but no control over Maori
Ø In 1852 Britain passed the NZ Constitution Act – we had a constitution that was
given by the British parliament not made by the people
Ø S71 – gave some power to Maori’s to govern themselves – saying that in dealings
with themselves that particular districts should be set apart within which such laws,
customs and usages are observed
, Ø It also allowed for the assembly of parliaments – but these Maori districts never
really happened
Ø There was also a writ that meant that customs and common law of the aboriginals of
NZ would be respected a part of the common law as long as they were not
repugnant to general principles of humanity
Ø There was a governor that had to give assent to bills being passed and could send
them back to reviewed again, exercised control over native affairs – this is because
they didn’t trust settlor governments since they were too self-interested and just
wanted land – at the time the General Assembly was not proper law-making power
Ø After 1926 – it changed and there became different crowns for different
governments – the governor became the Governor General – became much more a
symbolic figure
Ø 1931 UK Statute of Westminster – giving many countries the ability to fully self-
govern – this was not adopted till 1947
Ø Any future request for the UK parliament to make law for NZ would have to be made
by the act of the NZ parliament – gave power to NZ parliament to change its own
constitution act
Ø Took till 1986 for the provisions of the Constitution Act 1952 to finally become part
of the NZ law – s15 parliament now has full law-making power
Lecture 4 – Constitution Act 1986
Ø Took from 1931 to 1947 – to take up autonomous power under the statute of
Westminster
Ø It took us till 2003 to remove the judicial counter of the Privy Council to the Supreme
Court of the NZ
Ø NZ has no real point at which the constitution really started – these events are
considered people events – people constituting themselves – but in NZ the
constitution changes happened by the elites – UK Constitution Act – Constitution Act
1986 was written by officials (civil servants) not by a community
Ø Parliament has not had law making power for that long – political and legal powers
were not always aligned – lawyers wanted to have full law-making power
Ø Constitution Act 1986 finally replaced the UK Constitution Act
Ø Constitution Act 1986 is merely declaratory – it’s the codification of the law –
describes things as they already are
Ø Starts with the Sovereign and Governor General – separate sovereign in relation to
each country – this is important since we need different advisors for different
countries – the sovereign does not represent NZ in foreign affairs it is instead done
by the Governor General – GG is appointed by the sovereign to represent them –
historically were military men – they report back to the queen
Ø HoR – s10 – there shall continue to be a HoR which is the continuation of the general
assembly – HoR is the people elected by the people
Ø Parliament includes the HoR and the sovereign or GG
Ø S15 – the parliament of NZ continues to have full power to make laws and the UK
does not have the power to make any laws for NZ or any laws it does make do not
apply to NZ
Ø S16 – a bill passed by the HoR shall become law when the GG assents to it and signs
it in token of assent
