LAW101 Sources of Law, Three Branches of the Legal System, Tikanga

What is civil law?

A source of law that does not involve the state, i.e a dispute between an individual and a company.

What is criminal law?

A source of law that involves the state i.e state v person

What are the three sources of laws legal rules?

Legislation, common law, and tikanga

What is legislation?

Law made through parliament in the form of ‘Acts" by going from bill —> legislation

What is common law?

How the judiciary interprets and apply law in the courts.

What is tikanga?

Essentially Maori version of common law that is is a set of values and principles, practices and philosophies that operate within Te Ao Māori to guide actions that are right and just.

What does Tikanga Māori mean?

Tika means to do right which makes Tikanga Māori the right and just way of doing things in Te Ao Māori through application of principles

What are the three branches of government?

The legislative, the judiciary, and the executive

What is the legislative and their purpose?

Composed of Parliament/the House of Representatives, main function lawmaking by MPs debating bills through the Parliamentary process. Parliament is sovereign and its decisions are supreme by being the highest order of laws

What is the judiciary and their purpose?

Composed of judges and the Court, main purpose is resolve civil disputes and determine criminal responsibility. They interpret legislation, create precedent, and develop + apply common law. They do everything case by case but are bound by common law and precedent.

What is the executive and their purpose?

Composed of Cabinet- Crown ministers, the Prime Minister, and government departments. Main purpose is to decide government policy to determine bills. They also control delegated legislation

What branch of the legal system can the Executive check?

They check the Legislative by setting the legislative agenda to grasp what legislation is passed through the Legislative. Attorney-General reports. They can also soften the impact of laws by administration of the laws through government departments

What branch of the legal system can the Legislative check?

Check the Executive by publicly scrutinising their actions and monitor delegated legislation. The Ombudsman: an officer who investigates public complaints against the Executive.

Check the Judiciary by overriding common law (Parliamentary supremacy) under the guise of unacceptable interpretations or developments of law

What branch of the legal system can the Judiciary check?

Check the Executive through Judicial Review (criticising actions of the Executive to ensure correct processes are being followed). Review the legality of Executive actions (i.e Fitzgerald v Muldoon)

Check the Legislative by interpreting legislation narrowly or broadly to avoid injustices and suggest legal reforms in judgments

What is judicial review?

The judiciary reviewing the actions of the executive to see if they acted within the powers given to them through legislation

Where does Tikanga come from

Māori common law from the first law of Aotearoa (kupes law) and Te Tiriti.

List some of the values in Tikanga Māori from the NZLS framework

Whakapapa, kaitiakitanga, utu, mana, powhiri.

How is Tikanga Māori seen to be significant?

The NZLC and NZLS both acknowledge Tikanga’s undeniable role in our legal landscape, & Māori Law Society being a longstanding & prominent organisation promoting Tikanga. Parliament acknowledged Tikanga values through legislation: Orange Tamariki Act & Resource Management Act 1991

Outline the relationship between Tikanga and Te Tiriti

Te Tiriti promises were not endorsed like the Queens promise to protect chieftainship over land, villages and treasures by establishing ownership rights and legal authority over the lands which is now Crown sovereignty. Impacts led to less Māori land ownership, degradation of Te Reo Māori, and the health system. Social structures like whanau and hapu also were degraded making them hard to maintain as sources of Tikanga.

What would implementation of Tikanga do/why do we learn about Tikanga?

Has and will alleviate grievances from colonisation and Te Tiriti and ensure Māori rights are protected and enforced. Many virtues and needed principles are apart of Tikanga already and would help the legal system enforce them.

What are courts and what do they do?

Courts are in the Judiciary who deal with civil disputes with a Judge and determine criminal responsibility with a judge and jury. They use facts, legislation, and common law when making decisions. In hearing cases they also develop common law principle

What role do courts have in our society?

Beyond initial actions, they also affect our society: They maintain social order by upholding rights which gives citizens confidence and faith in the system. They constrain government power too by subjecting Parliament and the Executive to the law, holding them accountable

Do Courts make law?

In the late 19th century many believed Courts didn’t make ‘judge-made law’. This theory was done by seeing the Judiciary as only a channel for the application of law which ensured impartiality. They also believed in the historical role of Parliament being the elected lawmakers, and the Judiciary could step on the toes of the Legislative if they made law.

The theory has been rejected now as Courts make new principle and causes of actions through common law

What is Judicial independence and the importance

The most independent in the legal system as judges need to present judgements that are apolitical and impartial only based on law and evidence/arguments presented in court (channels for application of law). Therefore they need to be free from any restriction, other influences, pressures or threats. Consistency and faith in Courts is maintained

How is Judicial independence maintained?

Judges are appointed in an apolitical process by the Governor-General who is only a representative of the sovereign. Under the Constitution Act 1986 sections 23 and 24 judges cannot be fired unless under extreme circumstances nor can their salary be decreased during their occupation. The Oaths and Declarations Act 1957 section 18 makes judges take an oath that reinforces the apolitical and impartial decision principles

List the Court hierarchy

1. Supreme Court

2. Court of Appeal

3. High Court

4. District Court

5. Tribunals and Authorities

What does the court hierarchy provide?

System of appeals important for parties to feel that justice was upheld. Court hierarchy determines precedent by showing which court cases are binding who what courts. The hierarchy also streamlined the law making it accessible and efficient and also divides the judicial workload

What are Specialist Courts and why do they exist?

Courts that deal with certain issues in legal areas that are similar or unique in the field, creating a high volume of cases. Specialist judges may deal with the cases more consistently or accurately and some cases require specialist expertise or knowledge

What makes up Parliament

Recognised as a branch of the legal system through the Constitution Act 1986. Consists of a unicameral House of Representatives and the sovereign with 120 elected MPs

Overview of the lawmaking process

MPs represent the people and debate bills multiple times to ensure close scrutiny, meanwhile the public can share views at the select committee. Bills then become legislation once out of the lawmaking process. The process is reflective of the democratic nature of lawmaking through parliament which includes other processes like second readings or the Committee of the Whole House

How powerful is Parliament?

They can make laws overriding anything including the constitution or NZBORA. They can also constrain future Parliaments lawmaking abilities by creating entrenched legislation that requires a 75% majority in the House of Reps to repeal or amend

What is delegated legislation

Is giving Parliaments lawmaking power to the executive who can then make legislation that is more technical or less significant or more understood by the executive. The Executive must still legislate within the scope of power delegated from Parliament

How is legislation important?

It makes a framework of ideal societal standards and organises + protects citizens by determining rights and responsibilities of individuals. Specifically legislation shapes society and the economy