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Chapter 5-10

COMLAW 101 Chapter Notes - Chapter 5-10: Mischief Rule, Marx Brothers, Royal Assent


Department
Commercial Law
Course Code
COMLAW 101
Professor
Philip
Chapter
5-10

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[ Lecture 3, Jan 9 ]
NZBORA rights are not absolute, courts cannot refuse statutes
A journalist wants to publish an article about a minister that states the minister is
involved in the sale of class A drugs in NZ. Employer refuses to publish the story
saying that if it does, X will be imprisoned and M will shut down and the minister
cannot be prosecuted by the police for the drug dealing. Is M correct?
1.
Involves constitutional statute & constructional doctrine
NZBORA - freedom of speech, X has freedom of expression, can publish the story
because no law preventing ppl from exposing illegal behaviour by politicians (but note if
it was not true X and M could be sued in defamation, but not imprisoned as defamation
is a civil law, not a criminal law)
Rule of Law - the Minister must follow the same law as everyone else, so the minister
can be prosecuted for drug dealing
Analogy to fiduciary duty/trusteeship - must provide upmost care and cause no
harm, maori iwi land cannot be confiscated and give the land back if it's known to
be bad contaminated land, not like a commercial transaction
1.
2.
Honor of Crown
3.
Fair and reasonable redress - many maori land confiscated, cannot be returned as
now it's private ownership also not enough money to pay back everyone
4.
Principle of exchange
5.
Active protection - save the language from dying as it is a taonga a treasure of
maori
6.
Right of self-regulation - taken to marae and sorted on their own
7.
Duty to consult
8.
Principle of development, relationship continues to evolve. If education goes up
no longer need to pump money in
9.
The treaty
Only when adopted in statutes
-
Waitangi Tribunal has role in relation to some major treaty settlements eg.
'Sealord' settlement 1992
-
Maori business opportunities, sizeable part of economy, understanding maori
values and tikanga impt
-
Are principles of the Treaty enforceable as law in NZ?
We don't actually have full separation of powers
Are the principles of the treaty enforceable by law? - only when adopted in
statutes
Waitangi Tribunal roles - major treaty settlements, "Sealord" settlement 1992, Wai
262 flora and fauna claim - plants and culture only given guardianship but no
ownership
Conclusions on the Treaty of Waitangi
Week 2
Tuesday, 9 January 2018
7:56 PM
COMLAW 101 Page 1

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NZ economy statues
Economic constitutions, although not actual constitution they are statutes generally
agreed by all major political parties and seen as stable, effective, and helpful
Who must authorise expenditure by executive/ If NZ gov wants to spend
money? - Parliament (1688 BORA)
Parliaments rights to raise taxes (1688 BOR)
Budget speech (Minister of Finance) - sets out expenditure often
annual basis
Appropriations Bill - a specific bill of estimates
Estimates examined by specific Finance & Expenditure select
committee
HOW? The appropriations process
Reduce debt, have a buffer, don't spend more than you earn, predict
tax rises and give advance notices, don’t do anything too risky
Transparency & advance notice - annual fiscal strategy report, regular
economic & fiscal updates, annual statement of tax policy changes
Business - can predict tax and gov policy, know which minister
responsible and type of spending, know where the gov will be
pumping in money
Auditor General - the watchdog, officer of parliament but not part
of/independent of Gov so can call out gov. Checks if appropriated
money is spent properly, checks if proper processes are followed,
checks contracts are not corrupted or given to friends
Contains principles for responsible fiscal management & accountability
(p64-65)
Public Finance Act 1989 (PFA)
PART D
The Institutions of our state - the judiciary, parliament, executive
One make, one interpret, one carry out law
Parliament ( legislature/house of representatives(MPs) + Governor General - plays a key
role in legislature process)
Scrutinizes and debates gov performance eg ministerial question time
-
Debates proposed legislation (bills) and listens to public submissions
-
Passes new laws (with assent of GG)
-
Role: provide members of the executive and money for them to govern. Member of the
cabinet = executive member. Cabinet member is chosen between MPs
Self-regulation by own rules /committees
-
Freedom of speech for MP while in debating chamber - can't be sued for
defamation 1688 BOR
-
Speaker referees debate and procedure, and maintains order
-
If speaker says "order" must sit down or can be kicked out of debating chamber
-
Independence
Acts legislatively to sign bills into Acts
-
Presides over exec council, signs orders in council and other delegated legislation
-
Other powers: dismiss a gov that has 'gone mad' and call an election eg in
Australia governor general sacked the prime minister, caused a constitutional
crisis
-
Governor General
Elected leader of majority party/coalition in parliament
-
Allocates ministerial roles, advises GG
-
Prime Minister
Minster must be MPs
-
Ministers of the Crown
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Minster must be MPs
-
Currently 20 coalition ministers in cabinet and 5 out of cabinet, 3 green party
ministers outside cabinet
-
Oversee mgmt. of gov departments or crown institutes eg immigration, police
-
Prime minister + some ministers of crown (20 MPs)
-
Cabinet informally creates policy and introduces it to parliament - if cabinet
decides to put bill before parliament normally becomes an act = law, normally
passes as is majority
-
Cabinet
Governor general + prime minster + all minsters of the crown
-
Can pass some delegates legislation
-
Executive Council
[ Lecture 4, Jan 10 ]
Ensures executive does not abuse its power eg fitzgerald v muldoon
-
Can strike down delegated legislation, if they are acting beyond their powers, eg
auckland council should only pass laws for Auckland not Hamilton
-
Is subordinate to parliament ~ bill of rights 1688
-
Has power to interpret legislation
-
The Judiciary = Courts
Separation of powers
-
Judges are appointed not elected
-
Tenure and remuneration, judges are protected from being sacked or have salary
affected
-
MPs not meant to criticize court decisions
-
Disobeying judicial orders (eg name suppression) = contempt of court eg. Cannot
publish name of someone but news media does it anyway, can face consequences
-
Judicial Independence
Supreme court 2004 (used to be privy council(used to be in London)) > court of
appeal > high court (used to be called supreme court before 1980, check the name
for past cases) > district courts
Lower courts must follow rulings of higher courts (doctrine of precedent and
doctrine of stare decisis)
-
Appellate courts: courts that get appeals, can only appeal to supreme court if
allowed, grant leave
-
First instance courts: first time you hear it, high court and district, if it's over
$350,000 must be high court first.
-
Specialist courts and tribunals (eg employment court, employment relations
authority, disputes tribunal)
-
Hierarchy
Cause lawyers are expensive
-
Courts provide a framework for the hearing of cases, for the bringing of
prosecutions and the resolution of disputes. Other options also exist
-
Eg mediation(both parties happy win, cheaper but not binding); arbitration: hire
your own judge(one party lose, is usually binding)
-
Does not have to be publicised, good for publicity if business cause does not have
to be public
-
Dispute resolution
Plaintiff (starts proceedings & seeks a remedy) makes the complaint, must
Terminology
Civil cases
COMLAW 101 Page 3
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