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Study Guide

COMLAW 101- Final Exam Guide - Comprehensive Notes for the exam ( 66 pages long!)


Department
Commercial Law
Course Code
COMLAW 101
Professor
Philip
Study Guide
Final

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UOA
COMLAW 101
Final EXAM
STUDY GUIDE

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Questions to think about
If a business follows the law that business is acting ethically? Depends - Fair Trading Act 1986, ethical
acts are forced. A business could be acting within law but not ethically - sweat shops, no regulation
saying you can't. Law is different from ethics but there can be overlaps
1.
Ethical breaches can lead to greater consequences than breaching the law? Yes - example, an
accountant may breach the NZ institute of Chartered Accountants code of ethics and be struck off as a
member. Also plagiarism - copyright can lead to being kicked out of uni or losing job, not necessarily a
breach of law
2.
Parliament is the supreme law making body - but is not that only one, courts can also make law, but
courts can always be overruled by parliament. Judge made rule being overruled - law of negligence
(Donoghue V Stevenson - snail in the bottle case)
3.
Legislation overrules some judge made laws related to personal injury why? Accident compensation
Act 1972/2001. judge made law of negligence overruled.
There are TWO types of legislation 1. made by parliament 2. Delegated legislation made by others
4.
But parliament must give the power to another for delegated legislation, must be authorised
Delegated legislation can be challenged whereas legislation cannot be challenged
Even when an act of parliament is against the constitution, courts cannot challenge, because of the
sovereignty of parliament. This is unlike America. Even if it is against fundamental rights e.g.. Not to
be discriminated against under the NZ Bill of Rights Act
5.
6.
Part B: The Constitution of New Zealand
Involves history, politics, law
Why do businesses need to understand the constitution - need to know what gov can and cannot do,
how to influence change,
What is a constitution? In a democracy "the state" has obligations to its citizens, has limited power. A
constitution regulates the behavior of state and scope of gov power. Government power is limited by
the constitution. State - political community under one government. State != Gov. Gov changes but
state does not change, state had legal monopoly on force, gov controls state
The NZ constitution is UNWRITTEN, it is scattered - conventions, found in statutes, court decisions
The constitution is not a higher law above parliament unlike US. E.g. NZBORA section 4 and Quilter V
Attorney - General (Page 7) lesbian couple wanted to get married, Human Rights Act 1993
Statue
Bill of Rights Act 1688
1)
(England, pg 10) - This Act gave power to parliament as in the past there was a
power struggle between the parliament and monarchy/crown in the end
parliament won. Is less about citizens this gave the sole right to make or
unmake legislation and complete freedom of speech for MP in parliament no
risk of defamation MP can challenge anyone. Example Fitzgerald v Muldoon,
the court could challenge the prime minister as PM is not MP but executive
NZBORA 1990
2)
Rights such as: not be unreasonably detained/false imprisonment, not be
searched without just cause, freedom of expression and association. If conflict
occurs between NZBORA, parliament statutes prevail. Example, Amendment act
2010 disqualification of sentenced prisoners, prisoners not allowed to vote
Constitution Act 1986
3)
Not a constitution, consolidates statutory rules governing the structures of gov
NZ'S constitutional law is found in statutes, doctrines and conventions
Week 1
Friday, 5 January 2018
1:59 PM
COMLAW 101 Page 1
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Not a constitution, consolidates statutory rules governing the structures of gov
in NZ(separation of powers), the sovereign (queen. Governor general). The
executive (cabinet), the legislature (parliament, the judiciary (courts). Judges
cannot be fired unless misconduct, parliament cannot sack lawyer for disliking
(Judicial independence)
Electoral Act 1993
4)
Rules around conduct of elections, voting age. Section 268 says you cannot
change some things eg term of parliament and voting age unless 75% vote in
parliament or majority in popular referendum
Doctrines
parliamentary sovereignty/supremacy
1)
Principles
Prerogative powers
2)
Judicial subordination to parliament (courts must do what parliament says i.e.
must follow the relevant Act) no parliament can bind its successors (later
parliament can change act passed by a former parliament)
Rule of law
3)
Power of king and queen, many were removed by parliament, BOR 1688,
Constitution Act 1986. existing powers - grant honors (knighthoods, dames),
pardon offenders, Assent to bills (governor general by convention never said
no), enter treaties, declare war
Everybody is accountable to the law, no one is above the law eg prime minister,
no retrospective legislation. Concept of due process, everyone has right to a fair
trial. Magna Carta 1215 established right to due process and right to justice
(Imperial laws application act 1988). Example Hamed V R armed police arrests,
unlawful and unreasonable acts of the police. Evidence found were through a
process that was illegal so , did parliament retrospectively authorise police
actions? (The video camera surveilance act 2011) this retrospective law was
dropped/cancelled after the heavy debate that this was against the rule of law.
R v Poumako - home invasions, retrospective, 1998 offence, 1999 July law
passed 1999 October sentencing. Courts applied the old law as they deemed it
justifiable
Conventions
The Justice system of NZ: https://www.justice.govt.nz/about/learn-about-the-justice-system/how-the-
justice-system-works/who-makes-and-applies-the-law/
Questions
False. Ministers are the most important MPs of the governing party coalition
All Members of Parliament (MPs) are Ministers. True/False
True, to be a Minister you must be a member of Parliament (MP)
Ministers must be MPs. True/False
Yes, there are lots of different tribunals and even some specialist courts. Eg for disputes under
$15,000 (or $20,000 if both parties agree) then the Disputes Tribunal is normally the best place.
There is also, eg the Motor Vehicle Disputes Tribunal, Tenancy Tribunal, Employment Tribunal
and Employment Court
Are there any other bodies which also resolve disputes apart from the courts?
COMLAW 101 Page 2
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