Notes
Law Test Notes
Content of the notes (8)
Page 1
Law and Society
Overview
- Liberties, rights, and duties
- Morality v Law
- What is a law?
- Law and Society
Liberties, Rights and Duties
Liberty - something you are free to do
Right - something you can enforce against someone else
Duty - something you must do/not do
Rights and Duties
- A legal right is a clam the law will enforce
- a duty is an obligation the law will enforce
- If I have a legal right, someone else owes me a duty
- The law must enforce a right/duty
Example:
- Zak owns a car - has a liberty to sell it (no one owes him a duty to buy it)
- Zak agrees to sell his Car to Amy for $2000
- Zak has a duty to transfer car
- Amy has a duty to pay Zak
- Both have a right to enforce promises
- If either Zak or Amy doesn’t meet their duty, court will enforce it
Morality and Law
Morality - you should think about others
Law - you must drive on the left
The two are interrelated
Should the Law Impose Morality?
- Liberalism - only to prevent harm to others
- Paternalism - to prevent harm to the actor/protect society
- Does every law have a moral element?
A Dictionary Definition of "Law"
- the enforceable body of rules that govern a society
- a law is one of those rules
What does the Law do?
What is a Law?
Positivist approach - we can tell whether a rule is a law by observation:
- made by a lawmaker
- recognised by a community
- binding
-enforceable
Nuremberg Laws (Germany 1935)
- Excluded German Jews from German citizenship
- Prohibited them from marrying persons of "German or German-related blood"
- Jews were not allowed to:
Vote
Hold public office
Enforce property rights etc.
Were These Laws?
- made by a lawmaker?
- recognised by a community?
- binding?
- enforceable?
Natural Law Approach
- Proper laws cannot go against "nature"
- Nature law is universal - not specific to a particular community at a particular time
- Leads to universal humans rights e.g. unfair discrimination is not enforceable law
Is "Soft Law" Law?
- Soft law: guidelines, policy declarations or codes of conduct
- legally significant
- not legally enforceable
Society is a "living organism"
- Society is constantly changing
- Therefore law must also change
Law and Social Change
Law can:
- precede
- stimulate
- respond to
Social change
Gaps between Law and Society
- example of the motor car
- example of digitisation information
Who can change the law?
- Legislature (Parliament) makes "acts" (statutes)
- Judiciary (courts) decides cases which develop law
Page 2
Legal Systems and Types of Laws
Source of Law:
Customs
Courts
Statutes
Codes
- All equal Law
Evolution of Law
Customs (Unwritten) - Laws (Written):
Codes + Statutes
Court Decisions
English Common Law
- Before 1066CE, numerous customary systems in England
- After Norman conquest, move to centralised legal system
- Eventually law 'common' to the whole country developed
New Zealand Common Law
- NZ colony imported English law subject to local conditions
- Some English statutes still apply in NZ
- NZ is developing its own common law but still based on English common law
- Borrows from other common law systems
Historical Problems
- Key remedy damages i.e. monetary compensation
- What if you want someone to do something/stop doing something?
- Recognised legal ownership only
- What if you hold property for the benefit of someone else?
Beneficial Ownership
Equity
- Response to lack of remedies under common law
- Court of Chancery developed to provide different remedies e.g. injunction (stop doing something) and specific performance (do something)
- Concept of trusts recognised beneficial ownership
- Two different court systems developed in the UK (until 1870s) - "two rivers in the same riverbed"
- NZ courts could always provide common law and equitable remedies
Civil(ian) Law v Common Law
Civilian Law
Common Law
What are the original sources?
Roman codes; German customary laws
English customary laws
Where does it operate?
Europe, S America, Asia
English-speaking countries
Where do we find the law?
All relevant rules in one document (code)
Court decisions
How is certainty provided?
All courts follow the code
Courts follow previous decisions
Is the law systematic?
Can be: see German codes
Can be haphazard, based on historical
accident
Common Law v Civilian Judicial Systems
Feature
Common Law
Civilian Law
Pre-trial Procedure
Judge has no role
Judge directs
Trial Method
Adversarial
Inquisitorial
Key Role of Judge
Ensuring fair trial
Finding the truth
Who Decides Facts
Jury of random citizens
Judge
Appeals
May be restricted
Normal
Appeal Courts
Dissenting/minority opinions common
Normally unanimous decisions
Law
Case law important
Law is codified
Previous Decisions
Highly important
Less important but respected
What are the Advantages of the Common Law?
- Develops organically from customer and practice
- Flexible
- Can adapt to local circumstances - it is a "family" of legal systems
- "Members of the family" can borrow from each other
- Minimises government intervention
- Facilitates individual freedom and commerce
Colonialism (European Empires 1914)
What Happens after Colonialism?
- Strong adherence to colonial law
- Weak adherence to colonial law
- Start again e.g. import "best" law
Map of Legal Systems
Postcolonial Legal Systems
- Strong adherence to colonial law - Australia, Canada, Hong Kong, NZ, Singapore, SA
- Weak adherence to colonial law - Malaysia, Indonesia
- Start again - Japan, China, Turkey
Strong - India
- Common Law systems based on the English model
- Separate personal law codes apply to Muslims, Christians, and Hindus
- Judicial review of legislative act (influence of US and Ireland)
Weak - Malaysia
Mixed system of
- English common law
- Islamic law
- Customary law
Weak - Indonesia
- Civil law system based on the Roman-Dutch model
- Influenced by customary law
Start Again - Japan
- Civil law system based on German model
- Anglo-American influence
- Respect for Japanese traditions
Start Again - Turkey
- Civil law system based on various European legal systems notably the Swiss civil code
Start Again - China
- Civilian law
- Influence of Japanese law
- Increasing Anglo-American influence
Common Law and Tikanga Maori
- Some accommodation in early years of settlement
- Mostly ignored by settlers
- Modern courts may consider claims of custom e.g. right to foreshore
- But always overrides by statute
Statute Law and Tikanga Maori
- Some recognition of communal land ownership
- Rangatahi Court for youth offenders
- Resource Management Act 1991
- Te Urewera Act 2014
Page 3
The Rule of Law
Some Legal Concepts
Form - the "shape" of a law - what is must look like
Doctrine - legal principles - how a rule becomes a law
Substance - the content of the law
Example - a statute
Elements of the Rule of Law
- Form - the law must be made in a particular shape
- Doctrine - compliance with legal rules about law making
- Substance - balance between individual and society
Formal Aspects
- Rule by law
- Law or rules
- But is that enough? Do you remember the 1935 Nuremburg Laws?
Doctrinal Aspects
- Requirements for making a law
- Lon Fuller's "morality of law"
- Examples: apply to everyone, published, easily understood, certain, etc.
Substantive Aspects
- Respect for fundamental human rights
- Respect for human dignity
What is the Rule of Law?
“…all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and public administered in the courts"
- Lord Tom Bingham, The Rule of Law (2011)
Bingham's Elements of the Rule of Law
- Everyone
- Is bound/benefits
- Publicly made
- Covers future acts only
- Courts decide disputes
Accessibility of the Law
Law should be:
- accessible
- intelligible
- clear
- predictable
Accessibility:
- Statue Law
- Judge-made Law
Law not Discretion
Rights/liabilities decided by:
- application of law decides
- NOT individual's judgement*
- Government officials do exercise discretion but at subject to judicial review
Equality before Law
- Laws should apply equally to everyone
- Objective difference allows different treatment
“ In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets, and steal loaves of bread"
- Anatole France
Human Rights
- Law must provide protections for basic human rights e.g. non-discrimination
Exercise of Power
Power holders must act:
- honestly
- fairly
- for the purpose of the power conferred
Dispute Resolution
- Should not be prevented by cost or delay
Fair Trial
- Dispute resolution must be fair (Not only in the courts)
Natural Justice
- No one may be a judge in their own cause
Nemo iudex in causa sua
- The other side must be heard
Audi alteram partern
State Services Commission Guidelines for a Fair Process
- Take a complaint seriously and act on it immediately
- Maintain confidentiality
- Give the problem resolution procedure priority and respond in a timely manner
- Inform the respondent the opportunity to respond to the allegations
- Do not ask irrelevant questions
- Keep both parties informed about progress of an investigation
- Give both parties a full opportunity to read/see and respond to all evidence collected in an investigation before a decision is made
- Consider all the evidence and weight it carefully before deciding whether there is substance to the complaint
- Provide both parties with a copy of the decision and the reasons for the decision, and their options in terms of settlement, review, etc.
- Ensure any disciplinary action is proportionate to the level of behaviour complained of
- Offer right to appeal or review
International Legal Order
- Government must comply with their international obligations
Rule of Law in Practice
- No one is above the law
- Even Parliament must behave according to its own law making rules
- Laws should not cover future conduct
- Laws should be publicly accessible and clear
- Everyone has access to courts
- Judges are independent
Not Rule of Man
- No one's power is absolute
- Powers granted according to rules
- Exercise of power can be reviewed
Page 4
Categories of Law 1
Legal Relationships
Public and Private Law
Criterion
Public Law
Private Law
Relationship
Vertical
Horizontal
Examples
-
Constitutional law
-
Administrative law
-
Revenue (tax) law
-
Criminal law
-
Commercial law
-
Property law
-
Tort law
-
Family law
Criminal and Civil Law
Criterion
Criminal Law
Civil Law
Source
Statute
Common law, statute
Parties
Queen (R) v Accused (defendant)
Plaintiff v [‘and’] Defendant
Burden of Proof
Beyond reasonable doubt
Balance of probabilities
Outcome
Acquittal or penalty on conviction
Award of a remedy e.g. damages
Key Features of Common Law Courts
- Hierarchical (not all courts are equal)
- Precedent-based (must follow previous decisions of higher courts)
- Adversarial (not inquisitorial as in civilian law)
- Judge is a neutral 'referee'
- Jury decides matters of fact in serious cases
Court Hierarchy and Precedent
Adversarial System and Judge as Referee
- Parties agree on the issue to be resolved
- Parties present arguments
- Judge ensures "fair play"
- Judge decides whose argument is more persuasive
Juries
- Magna Carta 1215 (1297) s 29
- 12 random electors
- Decide facts of serious cases
Ministry of Justice (UK) Are Juries Fair (2010)?
Juries (68,000 investigated)
- make up their minds properly
- convict more than they acquit
- convict in cases of deception, drugs, and theft
- take much case in establishing defendant's state of mind
- convict more than they acquit in rape cases
- (All white) do not discriminate against ethnic minorities
- (Women) change their minds more than males
Why are some wrongs crime?
For certain acts*
- Individual compensation is insufficient remedy/deterrent
- The State ought to take action, not leave it to harmed individual
- Deliberate harm ought to be punished
- The act harms society, not just an individual
* The same action can also ba a tort (civil wrongs)
Some Characteristics of Criminal Law
- Coercive
- Interferes with freedom (paternalistic laws)
e.g. bike helmet laws
- Requires a criminal intention (mens rea)
- High burden of proof must be met
Elements of a Criminal Offence
1. Actus reus (criminal act)
2. Mens rea (criminal intention)
3. No valid defence
Onus (burden) of Proof
Type of Action
Who Must Prove?
Level
Civil
Plaintiff
Balance of probabilities
Criminal
Prosecution
Beyond reasonable doubt
Wilmington v DPP (1935) AC 462
Facts
- W’s wife, V, left him
- W stole gun
- Went to V’s house
- Gun was discharged, killing V
- Proved beyond reasonable doubt that W killed V
- W claimed it was an accident
Decision
Lower courts
- W had to prove it was an accident
House of Lords
- Prosecution must prove all elements of crime beyond reasonable doubt
- The accused is ever required to prove their innocence
- Prosecution must disprove any defence beyond reasonable doubt
Criminal Procedure Act 2011 - Categories of Crime
Category
Characteristic
Example
Who hears?
1
Fine only
Parking offence
DC – no judge
2
Max 2 years prison
Common assault
DC – judge, no jury
3
Max more than 2 years prison (but not
category 4)
Wounding with intent
DC – judge, defendant chooses jury or not
4
Very serious offences
Murder
HC – judge and normally a jury
Different Forms of Liability
- Liability for Intentional Crime
- Strict Liability
- Absolute Liability
Intentional Offences
- Most criminal offences
- Prosecution must prove
Actus reus
Mens Rea
beyond reasonable doubt
Mens Rea
E.g. Crimes Act 1961, s 291 Theft or Stealing
(1) Theft or stealing is the act of
(a) dishonestly and without claim of right, taking any property with intent to deprive owner permanently of that property or of any interest in that property;
(2) an intent to deprive any owner permanently of property includes an intent to deal with property in such a manner that -
(a) the property cannot be returned to any owner in the same condition; or
(b) any owner is likely to be permanently deprived of the property or of any interest in the property
Strict Liability Offences
- Focus on public welfare
- Protect public from people undertaking risky activities
- Threat of criminal prosecution motivates safe behaviour
- Defendant best placed to know about and minimise the risks
Conviction for Strict Liability
- Prosecutor must prove the actus reus beyond reasonable doubt
- No need to prove intention
- Statutory defences may apply
- Common law defence of total absence of fault (on a balance of probabilities)
Sound Plus Limited v Commerce Commission (1991) 3 NZLR 329
- SPL charged breaching Fair Trading Act 1986, s 10
- SPL advertised its electronic goods were duty free when those goods did not attract duty
- High Court: s 10 is an offence of strict liability
- FTA 1986 regulates conduct in the interest of public welfare
Absolute Liability
- Like strict liability
- No defences available
- If ambiguity, court will find against absolute liability
Page 5
Categories of Law 2
Legal Relationships
Some Basic Ideas
- We can own property
- We are free to exchange our property
- We must not harm others
Individual Property Rights
- We can have property rights in things
Example:
- right to occupy
- right to exclude others
- right to sell
Free to Exchange
- We can bargain with others
- Exchanging our property maximises our utility
- Common law assumes we know what benefits us most
… there was a 250-year ground lease in place for Chews Lane from Wellington City Council at peppercorn rental of $1 a year with no reviews
Must Not Harm Others
- Some forms of harm are crime
- Some forms of harm deserve compensation
- The law does not recognise all forms of harm
Contracts
- A legally enforceable agreement to exchange things
- The “thing” exchanged (‘consideration’) is often a promise
Example:
I promise to paint your house if you promise to pay me $5000
Basics of Contract
- A process must be followed (an offer must be accepted)
- ‘Consideration’ must be exchanged
- There must be a true agreement (meeting of minds)
When is there no true agreement?
- Uncertainty
- Legal incapacity
- Duress (force or equivalent)
- Misrepresentation (misleading statements)
- Mistake
- Undue influence (e.g. abuse of position)
- Unconscionable bargain (unjust agreement - not just a bad bargain)
What if I don’t do what I’ve promised?
- Breach of contract
- Remedies
Damages (Normal)
Specific performance (unusual)
Injunction (unusual)
Torts (Civil Wrongs)
- Courts must have recognised the wrong
- Different torts have different requirements
Rylands v Fletcher (1868) UKHL 1
- R had reservoir built on his land
- Reservoir burst, flooding F’s mine
House of Lords decision
- If you keep something on your land that will cause harm if it escapes
You bear the risk
You are responsible for damage caused
Mayor of Bradford v Pickles
( 1895) AC 587
- P stopped the flow of water under his land to BCC’s waterworks
- P motive was to make BCC pay for the water
- Was this a tort?
House of Lords decision
- No legal restriction on P to access the water
- He was free to use his land as he wished
What if I commit a tort?
- I am a ‘tort feasor’ (defendant if sued)
- Remedies
Damges (usual)
Exceptional (punitive) damages (unusual)
Injunction (could be appropriate)
Account of profits (could be appropriate)
Contracts: Statutory Intervention
- Common law assumes equal bargaining power
- Many business are more powerful than individuals
- More information, more bargaining power
Consumer Protections
- stop sharp business practices
- Provide minimum guarantees in consumer contracts
Fair Trading Act 1986
- Covers people in trade
- Creates crimes
- Creates ‘statutory torts'
Examples
- Section 9 misleading and deceptive conduct generally
- Section 13 false or misleading representations
Consumer Guarantees Act 1986
- Contracts between traders and consumers
(end users of domestic goods and services)
- Implies guarantee to all consumer contracts
- Example: section 6 and 7
Torts: Statutory Intervention
- Torts for physical injury significant part of the law
- What if the victim can’t afford to sure?
- What if the tort feasor can’t pay damages?
- Accident Compensation Act 2001
Accident Compensation Corporation
Everyone in NZ has
- 24-hour, seven-a-day-week,
- no-fauly comprehensive injury cover
Through ACC
Page 6
How Parliament Makes Law
Basic Principles of the NZ Constitution
- Parliament Supremacy - Parliament (House of Assembly + Governor-General) can make any law on any matter
- Rule of law - Parliament must follow its own law-making rules
- (Separation of powers)
Separation of Powers
- Tyranny: king has absolute power to
make laws
administer the law
decide disputes about the law
- Democracy: no one has all powers
Three Organs of Government
Statute Law (Act of Parliament)
Tyranny of the Majority
- First past the post electoral system - whoever gets the most votes in a particular electorate wins a seat in the legislature
- If party A comes second in every vote, they have no representation in Parliament
- If party A wins 51% of seats, they can make any law they want
- If party A wins 48% of seats, party B wins 47% and party C 5% of seats, A might still be able to make laws
FPP Problem
Proportional Representation - Who can make laws?
Party A
Votes 700,000
Seats 1.8
Party B
Votes 600,000
Seats 1.6
Party C
Votes 600,000
Seats 1.6
New Zealand and Simple Majority Democracy
NZ has the “fastest lawmaker in the West"
Geoffrey Palmer Unbridled Power: An Interpretation of NZ’s Constitution and Government (1979)
Government of the day had unrestrained power to make any law it wished
What can be done to ‘bridle’ law-making power?
Note: many people support FPP because it allows decisive government
What has New Zealand done?
- Retains a unicameral legislature but role of select committees enhanced
- Introduced mixed member proportional representation (MMP)
- No devolution of powers to ‘provinces'
- NZBORA respected but not entrenched - Parliament an pass laws contrary to NZBORA
MMP
Each voter gets two votes:
for a party (‘party vote’) - largely decides the total number of seats each party gets in Parliament
For an electorate MP (‘electoral vote’) - works off an FPP basis
MMP - sharing the seats
- 1 electorate or 5% of the party vote
E.G. 30% of the party vote - 36 MPs (30% of 120 seats)
- If party A wins 20 electorate sets it will have 16 list MP's
MMP and Coalition Government
- Coalitions or agreements between political parties are usual under MMP
- 2014 election results
Comparison using 2014 Election Results
Sources of Legislation
Select Committees
- SCs work on behalf of the House
- SCs often consult with experts and the public
- Important SCs are chaired and the majority from leading party in Parliament
- Problems with Bills (draft legislation) are often picked up at SC stage
- Minority opinions on controversial issues are often given
How Parliament makes a Law
- Bill introduced
- 1st reading
- Select Committee
- 2nd reading
- Committee of the whole House
- 3rd reading
- Royal assent
Urgency
- Minister moves urgency motion
- No advance notice needed
- Not debated by the House
- But Minister must give reasons
- Under urgency
House may proceed with that business until it is completed
Sitting hours of House may be extended
- 2008-2011, 70 Bills were subject to some form of urgency
Subordinate (non-Parliamentary) Legislation
- Legislative instruments (previously know as statutory instruments or regulations) e.g. issued under powers given to a Minister by an Act
- Other instruments e.g. notices issued by a Minister
- Bylaws e.g. rules controlling dogs issued by a local authority
Why Delegate Legislation?
- Simplification - leave technical or local material out of the Act itself
- Practicality - easier to amend or repeal than the process of passing a new Statute
Local Authority Bylaws
- A territory authority may make bylaws for its district for 1 or more of the following purposes:
(a) protecting the public from nuisance
(b) protecting, promoting and maintaining public health and safety:
(c) minimising the potential for offensive behaviour in public places
- Local Government Act 2002, s 145
Invalid Bylaws
The High Court can declare a bylaw invalid if it is
- Ultra vires (outside the empowering provision);
- Repugnant to the general law;
- Uncertain;
- Unreasonable; or
- Inconsistent with the New Zealand Bill of Rights Act 1990 (Local Government Act 2002, s 155(3))
Schubert v Wanganui District Council
(2011) NZAR 233
Background
- Wanganui District Council (Prohibition of Gang Insignia) Act 2009, s 5 allowed WDC to make a bylaw specifying where gang insignia were banned at all times
- S, a Hell’s Angel, argued the bylaw was invalid because
- ultra vires (geographic extent of the ban effectively prevented the display of gang insignia in every public place in the Wanganui district)
- contravened NZBORA 1990 - a disproportionate restriction on the right to freedom of expression
Schubert v WDC
Decision
- Relevant power allowed WDC to ban in particular places, not the entire district - ultra vires
- Right of freedom of expression had not been given proper consideration - breach of NZBORA
Page 7
How Judges Make Law
What is the Judge's Role?
Generally
- Understand the purpose of law in society
- Help the law achieve its purpose
Specifically
- Resolve disputes
- Interpret statutes
- Develop the common law
Role of Interpreting Statutes
Judicial Interpretation
- Allows new statutes to be applied
- Can give old statutes new meaning
Limits of Interpretation
- Must be within the scope of the words of the statute
- Interpretation cannot repeal legislation
Constitutional Position of Judges
- Is there a supreme or basic law e.g. USA (and many others)?
- Is there no supreme or basic law e.g. NZ?
- Scope of judicial review
Changing the Common Law
- Judges created the common law
- Judges can change the common law (subjects to rules)
- Common law reflects social needs
- Judges change the common law to reflect changes in social needs
Judges and Parliament
- For statutes, Parliament is the 'senior partner'
- For the common law, the judge is the 'senior partner'
Change v Stability
- Change affects security, certainty and stability
- "Law must be stable and yet it cannot stand still"*
- How fast should the law change?
* Roscoe Pound Interpretations of Legal History (1923)
Consideration of the System
- Must follow the rules of the system
- Parliament must follow the laws for making statutes
- Judges must follow the rules for changing the common law
Judicial Decision-Making
In a dispute, judges must:
- Identify the relevant facts
- Bring those facts into the law
- To provide a resolution to the dispute
Judicial Reasoning
Judges use:
- Inductive reasoning; and
- Deductive reasoning
Example of Inductive Reasoning
- Plato was a man and Plato was mortal
- Socrates was a man and Socrates was mortal
Therefore all men are mortal
- Particular to general
Inductive Reasoning in the Law
- The judge extracts the law from the particular facts
- An issue of fact is made an issue of law
- This is inductive reasoning
- Particular to general
Example of Deductive Reasoning
- All men are mortal
- Socrates was a man
- Therefore, Socrates is mortal
- General to particular
Deductive Reasoning in the Law
- If a new case has similar facts to already-decided cases
- The judge relies on the generality of the already-decided cases
- This is deductive reasoning
- General to particular
Other Considerations
- Justiciability - which disputes can the courts hear?
- some disputes are political
- Standing - who can take a dispute to court?
- some people have no interest in a dispute
Metaphors for Common Law Development
- Theseus's boat - no piece of wood the same at the end as the start of the journey
- Chain novel or a soap opera
Donoghue v Stevenson [1932] UKHL 100
Background
- Donoghue visited a cafe with a friend
- The friend bought her a bottle of ginger beer which contained the remains of a decomposing snail (bottle was not clear glass)
- D became ill
- D had no direct relationship with shopkeeper but sued the manufacturer for her loss
Donoghue
Issue
"The question is whether the manufacturer of an article of drink sold by him to a distributor in circumstances which prevent the distributor of the ultimate purchaser of consumer from discovering by inspection any defect is under any legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health" (Lord Atkin)
Donoghue
Court Reasoning
- Court was bringing the particular facts into the general law i.e. inductive reasoning
- People shouldn't harm their 'neighbours' - applied to manufacturers and consumers
Donoghue
Future Court's Deductive Reasoning
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to harm your 'neighbour' - applies to giving negligent advice
Case Law v Statute Law
Case Law
Statute Law
Difficult to find and understand
Easy to find; some difficulty in
interpretation
Relates to a specific issue
Tends to provide general law
Cannot override statute
Can override statute and case law
Flexible; allows for new development
Judges limited in ability to develop
statutes
Non-democratic
Made by elected legislators
Courts may be bound by out-of-date precedents
Statutes can make major changes to the
law
Hierarchy of General Courts
Do We Get the Best Decision?
Brooker v Police
Court
Decision
No. Of Judges
District Court
Guilty
1
High Court
Guilty
1
Court of Appeal
Guilty
2
Supreme Court
Guilty
2
Not-guilty
3
Page 8
Judicial Review
What is Judicial Review?
Review by the High Court of a-
- a decision;
- proposed decision;
- refusal to exercise a power of decision
Courts supervise the exercise of power to ensure it is lawfully exercised
Origins of Review
- Historical jurisdiction to review decisions of public bodies
- Judicature Amendment Act 1972
- Exercise of non-statutory public powers reviewable at common law
Grounds for Invalidating a Bylaw
- Ultra vires (outstanding the empowering provision)
- Repugnant to the general law (against common law or statute)
- Uncertain
- Unreasonable or
- Inconsistent with the New Zealand Bill of Rights Act 1990
Does Judicial Review Challenge Parliament?
- Invalidating a bylaw challenges the exercise of a delegated power
- Reviewing a decision does not challenge the Act which delegated the power
Courts' Right of Review
Courts
- may review any exercise of power that in substance has important public consequences
- ensure the law is followed when power is exercised and people are affected
Key Functions of Judicial Review
- Establishes principles of governance
- Protects individual interests from wrongful exercise of power
- Entrenches rule of law
- Makes public officials accountable
When is Judicial Review Available?
- An Act creates a discretionary power for a public official to exercise
- Somebody adversely affected by the exercise of that power challenges the decision
- Because public official's exercise of power inconsistent with the Act
Judicial Review is about Process
- Not about the merits of the decision
- Relates to how the decision was made
- If the process is correct, courts won't interfere
- But may look at weight given to different factors in the decision-making process
- Rules of natural justice highly relevant
When is a Decision Likely to be Overturned?
- Ultra vires
- Using power for an improper purpose
- Relevant factors ignored
- Irrelevant factors taken into account
- Insufficient weight given to human rights
Remedies
- Declaration that decision wrongly made
- Decision set aside
- Order to make the decision again properly
What Happens Next?
- Most common remedy is an order setting aside a decision + an order requiring reconsideration
- This can lead to the same decision but with a proper process followed
(Plaintiff probably cares about outcome, not process)
Seaton v Minister for Land Information
- Minister has power to order compulsory acquisition of land under Public Works Act 1981 for 'government work' i.e. roadworks
- Minister ordered compulsory acquisition of a piece of S's land so energy companies could relocate 3 electricity towers
- This would enable a road to be widened
Seaton v MLI
- S applied for judicial review of MLI's decision
- High Court: MLI exercised powers under the for an improper purpose
- Acquisition for purposes of energy companies, not government work under Act
MLI v Seaton
- Court of Appeal overturned High Court
- Definition of 'public work' in the Public Works Act 1981 included anything directly or indirectly for government work
- MLI used Act for an improper purpose
- Decision invalidated
Seaton v MLI (Supreme Court)
- Overturned Court of Appeal
- Re-siting the energy towers not indirectly part of road widening scheme
- (Ultra vires)
PS v North Shore Family Court [2011] 2 NZLR 7
- PS held under a compulsory treatment order made by a District Court Judge under the Mental Health (Compulsory Assessment and Treatment) Act 1992
- PS applied for judicial review of the order because the Judge failed to examine her in person, as required by the Act
PS v NSFC
- PS's application granted
- The Court declared:
- the compulsory treatment order was issued ultra vires
- insufficient consideration of rules of natural justice
McGrath v Accident Compensation Corp [2011] 3 NZLR 733 (SC)
- M seriously injured ankle in accident
- In constant pain
- Could on work 15 hours a week
- ACC pay weekly compensation for 6 years
- ACC require M to undergo a "vocational independence" assessment
McGrath v ACC
- M application for judicial review unsuccessful in the High Court and the Court of Appeal
- Supreme Court rules that ACC failed to comply with Accident Compensation Act 2001
McGrath v ACC
- ACA 2001 s 110(3) sets a threshold for power to require a vocational independence assessment
- S110(3) to protect claimants from unnecessary assessments
- ACC had not carried out any up to date medical assessments and had no information which supported its actions
- Notice quashed
Battison v Melloy [2014] NZHC 1462
Background
- Lucan Battison attended St John's College in Hastings (Paul Melloy was principal)
- PM instructed LB to cut his hair in accordance with school rules
- LB refused and was suspended
- School board of trustees upheld PM's decision
Issues
- Could the High Court review the decision?
- If so:
- Did the decision comply with the law?
- Was the decision unreasonable?
- Was the rule on haircuts uncertain?
Decision
- The board of trustees was performing a public function and their decision was subject to judicial review
- the suspension requirements of the relevant Act were not followed
- The decision to suspend was unreasonable (disproportionate) - alternatives should have been considered
- The school rules on haircuts was uncertain to someone seeking to comply
- LB was reinstated and awarded legal costs of $24,000
Information
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- Key Skills Bachelor of Commerce Note on Law Test Notes, created by Olivia Haslemore on 18/04/2016.
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- Olivia Haslemore
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