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LAW 121G

Parliamentary supremacy Parliament can enact any law it pleases, they create laws in the form of statutes- any contradicting common laws are ignored even if this means ignoring centuries of customs. The Manga Carta The glorious revolution and the bill of rights 1688 established parliamentary supremacy, developing parliament whilst limiting the crowns powers. However within NZ there is a separation of powers, as set out in the bill of rights and further consolidated by the constitution act 1986 which sets out our basic legal institutions. This causes a decentralization of power and has split the NZ government into three branches- the concentration of powers in 1 body is dangerous, However essentially parliament is supreme and can create any law it wants regardless of the separation of powers.  Executive- enforces (cabinet, police etc.)  Judiciary – interprets (Courts)  Legislative- Makes ( House of representatives and governor general)  The Executive and Legislative are not entirely separated and are connected by cabinet Useful cases that show the concept of parliamentary supremacy:  Fitzgerald v Muldoon 1975 – Muldoon exceeded authority only parliament can stop/ create laws Blackstone „ the pretended power of suspending of or execution of laws by regal authority without the consent of parliament is illegal‟  Parihaka 1878- 1879- Government can create any laws it pleases, overruling common law, the bill of rights and the writ of Habeas Corpus – Maori prisoners detention act 1880, West coast settlement act  NgatiApa v Attorney General 2003-created legislation to undermine ruling of courts and abolishing Maori customary rights Social deviance  This concept is built upon the idea that acts are deviant because society treats them as such, not because they are inherently deviant. Therefore what is considered to be deviant changes over time to reflect society‟s values.  This concept is seen through societies differing attitudes towards tax dodgers and dole bludgers, although the groups are both cheating the government. Attitudes of society and media towards the unemployed see them as „dole bludgers‟, this derogatory term embodies societies perception of them- people who take handouts while contributing nothing to the economy, this largely ignores the depressed state of their lives, many people who are on the benefit in New Zealand are single mothers who would be unable to survive without this assistance. This contrasts with attitudes towards tax dodgers where public tolerance is much higher, as egalitarian. Even though the less tax paid through loopholes in the law means more tax that lower socio economic groups have to pay. Although the idea that tax dodgers are being punished for hard work does somewhat prevail. The link between property, poverty and crime in recent times can be seen via the double standard that applies to dole bludgers and tax dodgers. Colonization of Aoeteroa Treaty : Britain began staking its claim over New Zealand almost a year before the treaty was signed, on the 15 June 1839 a letter patented to the governor of NSW that extended NSW jurisdiction to NZ. This letter and the treaty are contrary Britain‟s recognition of New Zealand‟s declaration of independence only a few years prior in 1835, this declaration reflects Britain‟s hesitation to form a new colony in that 1.they didn‟t want to incur the related costs.2. American and Indian colonies were fighting against imperial powers and rebelling .3. They didn‟t know who would toil the land due to the abolished slave trade. There were 3 main driving factors towards these steps of colonization 1. A rivalry between the British and French, the English Protestants (CMS) wanted to settle and convert people before the catholic French.2. Too much labor and capital in Britain and government wanted to shift these things to the colonies to prevent poverty and unemployment.3. Britain financial interests in NZ (trade, whaling etc). The treaty is a source of great controversy which stems from the two differing versions of the treaty, the Maori Te tirito Waitangi and the English, each promises different things, which lead to both Maori and Pakeha having differing expectations of What was being promised. Article 1: Maori- tribes grant Kawangatanga (functions of government to the queen, mainly to regulate British subjects) English- Absolute sovereignty is ceded to the queen. Article 2: Maori- crown confirms tino rangatiratanga (independence), independent control of Aotearoas resources. English- Queen guarantees undisturbed (owner will not interfere) possession of land and Taonga Katoa (things treasured). Article 4: Maori- respect Maori custom Tikanga- Maori law . In trying to understand this ambiguity, further confusion is cast upon the matter in looking at the declaration of independence, where the crown could have used the same wording such as Kingitanga (sovereign power and authority) or Rangitiratanga (independence ) to show what the British hoped to gain and ensure Maori understanding of what was being promised. Sealord Settlement: Basis to Maori claims to Fishery: 1.cosmology, Tangaroa 2. Te Tiriti gave total authority of all things precious to Maori. 3. Colonial Law: Aboriginal Title exists until state extinguished it in statute 3. Legislation, s88(2) Fisheries Act: nothing in this Act shall affect any Maori fishing rights. Background: concerns over depletion of fish stocks -> QMS 1986 introduce. Maori fisheries act 1989, 10% of quota MFC over 4 year as interim settlement, further legislation prevented. Sealord deal joint venture with Maori ½ shares of Sealord‟s quota giving Maori 23% quota, 20% of quota for new species and $150 million to develop new fisheries and in turn endorse the QMS, discontinue fishing litigation and agree settlement extinguished all customary fishing rights. Cons: contradicted original grounds for challenge to QMS, required Maori to accept it. Negotiators did not represent all of Maori. Criticized by W.T . Sealord case (1996). Question of who was bound by deal, CA said deed was not supported by all Maori. Issue was TOW(fisheries claims) settlement act 1992, gave statutory effect & binds everyone. Court challenge tried to get an injunction to stop bill being introduced but court cannot interfere with legislative process.Contrarty to TOW and TOWS constitutional status suggest crown should owe more obligation. Foreshore and Seabed Act: Ngati Apa v Attorney General- iwi from North of South Island, wanted declaration that certain foreshore and seabed in Malborough sounds was part of Maori customary title and wanted to bring this before the MLC, Crown objected before this could happen and appealed to High court who followed decision in the 90 mile beach case ( foreshore land between high and low water marks is crown land once customary title over adjacent dry land was extinguished)and therefore had been extinguished by extension. Maori appealed this to the CA, they overruled the HC, customary title has to be explicitly extinguished either by statute or alienation, 90 mile beach ruling deemed to be invalid as legal reasoning derived from Wi Parata, which says Maori entitlement of land depends on crown, transfer of sovereignty to crown did not extinguish native title (R v Symonds 1847 recognized at common law until dully extinguished) -> MLC has jurisdiction to hear claims (these rights do not depend on TOW).Govt creates legislation stopping Maori from taking this claim to MLC. Extra reading on FS & SB (DON’T NEED THIS I just found it confusing so made some more notes :) ) Govt said it would do what it took to make sure Maori did not attain exclusive rights 94% submissions apposed bill ( Maori and business round table, taking away property rights!). - Tribunal - Waitangi Tribunal raised concerns that people were being denied access to the courts because of legislation, it also took property rights away without compensation in return, an established part of law (see property lectures). Overrides due process. - They suggested instead that the Government did nothing, not panicked because no court had said Maori owned foreshore and seabed and it would‟ve been hard for Maori to get this decision anyway. Other suggestion was to ensure right to public access with agreement from Maori. Government ignored these proposals. They also suggested be consistent - consider application of lakebed cases. - If proven property rights extinguished, then provide compensation (more than discretionary „redress‟) - Have a longer conversation with Maori to try and sort out the issue - Legislation - Government said it would enact law based on four main principles: Access: „public domain‟ access for all NZers (although free access has been denied by Port companies, DOC etc.) Also assumes that Maori would deny access, something that could be easily overcome. - Protection: acknowledge customary interests (although in reality by denying Maori title Crown was restricting nature of customary right. Bill reduces Maori to tenants of land) - Regulation: right of the Crown to regulate public domain - Certainty: for those who use and administer foreshore - Produced bill which became Foreshore and Seabed Act 2004 which supersedes the Ngati Apa decision. S 13 (1) Makes the foreshore and Seabed now owned by the Crown. This prevented any customary rights the Maori may have had which may have allowed a court case to determine ownership. “the full legal and beneficial ownership of the public foreshore and seabed is vested in the crown, so that the public foreshore and seabed is held by the crown as its absolute property” [s 13(1)] - Limited provision for „redress‟ – no clear entitlement to compensation to any Maori who have been deprived of property rights by the legislation. - General rights of access & navigation affirmed - Proven Maori customary activities of limited scale may be protected under Resource Management Act - Denied Maori‟s access to justice, breaching Magna Carta (due process) and the Maori right to a „fair trial‟ effectively.Reactions- Hikoi on Parliament. Tariana Turia voted against it then left Labour and formed the Maori Party. UN committee based around CERD (Convention for the elimination of all racial discrimination) complained about discrimination against Maori, elimination of customary rights and of compensation Court accused by supporters of „judicial activism‟ – although this is weak because line of precedents of Wi Parata was out of step with rest of law and internationally.Consequences-Use of parliamentary sovereignty to improve the will and power of majority at the expense of the minority (TWAIL, Tikanga).Maori Party now in Coalition with National party. Act likely to be repealed and will become public domain with possibilities of Maori Customary Title. Under MMP system can be used to get what you want, National‟s traditional conservative Pakeha party line being morphed by loyalty to Coalition party. Shows that minority can use the system to have their say.f national are to repeal it, it is likely that public usage must be assured.Argument that Parliamentary sovereignty used against minority must be tempered because now the minority is using it to fulfil its own agenda.Ministerial Review looks to repeal act, recognise customary rights, accept TOW and human rights as framework, accept principles of public access, equality, due process, good faith, right to develop and property rights (compensation). - Constitution Issues - -Role of courts – independent decisions on customary rights based on evidence proved in court - -Role of Parliament – Representative of the majority? Tyranny of the majority? - -Role of MMP in electing governments – post-election agreements may conflict with party policy in order to obtain parliamentary majority - -Role of Treaty of Waitangi – „framework‟ for policy or a cornerstone of the constitution? Treaty of Waitangi or Te Tiriti not part of constitution as seen by Parliamentary Sovereignty, can be stepped on at any time to extinguish rights, but should it be to protect Tino Rangatiratanga of Maori so their property rights are recognised and the minority is not discriminated against Supreme law v Ordinary law In New Zealand there is no one supreme law, all laws including the bill of rights, constitution act and common law can be overruled or amended by parliament .The bill of rights cannot override any other piece of legislation (s4). It is an ordinary statute (it does not require a special procedure for repeal or amendment) meaning that it is trumped by Parliaments legislation. According to s6, legislation should be interpreted consistently with the Act where possible. Statutes can be seen as supreme law in New Zealand which overrule any common law rules which can be seen as „ordinary laws‟ .  Statutes- Prospective, there is greater freedom in creating laws, they can anticipate and use statues prevent problems that have not occurred yet.  Common law- Retrospective, the judge must have a case before them in order to create law/ ruling and uses previous cases to help decide new ones (doctrine of precedent).Ruling of higher courts is binding on the lower courts when the case in question is relevant to the lower court (Stare Decisis).Contract and tort law still rely heavily on previous common law decisions e.g. Donoghue v Stevenson 1932 established the modern form of tort of negligence. However in the US they have the Bill of Rights, and in Canadian they have the Charter of Rights and Freedoms. These countries have a supreme law that binds the law making authorities .This makes whatever laws that the government makes (ordinary laws) subject to the right and freedoms set out in this supreme law. If the law making body contravenes the supreme law then the law and individual can be declared unconstitutional. Relevant cases:  Korematsu v US, since the American constitution is a supreme law in America and promises freedoms that were breached in this case, the ruling should have been ruled to have been invalid according to these principles  Parihaka, Maori prisoners detention act- since parliament creates supreme laws and overrules any court decisions, the parliament was able to use statutes to prevent Maori from obtaining the common law writ of Habeas Corpus Property  Different rights are granted to different people depending on the relationship that they have with it e.g. whether you own, re
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