LEGAL OVERVIEW - LAWS101

First known lawyer

Cicero in Roman times. Reemerged in 18th C England.

Cab-Rank rule

Lawyers have limited grounds for which they may decline to act for a client:

a) issue not in area of expertise

b) too busy

c) client cannot pay for lawyer’s service

d) conflict of interest

Why does the Cab-Rank rule exist?

All people deserve to be able to access the service of justice and the law. We can’t deny people access to justice.

Legislature

Parliament: most important function is law-making and the passing of laws. Also provides a forum for the scrutiny of government. Provides citizens’ representation.

Parliament is…

Sovereign; it can pass any laws that it likes and its laws are supreme.

Executive

The policy-maker and proposer of legislation. Responsible for executing laws and putting them into effect.

Cabinet is…

the engine room of the executive. Made up of government ministers, the Cabinet sets the direction of government policy. Government departments sit beneath Cabinet, giving effect to the legislation related to the department.

Judiciary

Interprets and applies the law (sometimes creates law through common law), and resolves disputes and holds the government to account through judicial review.

Judiciary - importance

In our adversarial system of justice, we need the courts to tell us who is right and wrong and to provide us with legal certainty. Holding the government to account is important to citizens; they hold a lot of power. Filling gaps in legislation helps with legal certainty.

Judicial independence

Most separate of all three government branches. The judiciary needs strong independence from the other two branches in order to hold the govt to account and interpret and apply the law.

MMP and FPP

MMP since 1996

Role of Tikanga

2022 Peter Ellis case -- “tikanga is part of the values of the NZ variety of the common law.”

Acts with te reo and tikanga

• Resource Management Act 1991

• Oranga Tamariki Act 1989

Tikanga is…

The first law of NZ.

Tikanga today…

Despite Māori practicing tikanga, as a matter of legal reality, Parliament is sovereign today, and in theory can supersede tikanga.

Impacts of English law on tikanga

• Land/whenua was sold or acquired by the Crown, often on unfavourable terms for Māori

• Language: te reo not able to be spoken

• Health/wananga: impact of diseases like measles and flu

• Social structures: impact on hapu, iwi, and whanau as sources of tikanga

What is tikanga?

A set of values, customs, practices, laws, and philosophies that operate within te ao Māori.

Difference between tikanga and state law

Tikanga has no central authority; it is a product of communities.

Noa

free from restriction (opposite of tapu)

Manaakitanga

respect/generosity

Rangatiratanga

rights of self government/chieftainship/self-determination

Utu

reciprocity/balance

Whanaungatanga

the glue that holds tikanga together - relationships

Kaitiakitanga

guardianship of environment/or that the environment is the guardian of us

What does ‘common law’ mean?

Either common law as law of the courts or a common law system.

Features of a common law system

The courts (makers of law), the judiciary (source of law)

Common law applies

cases through precedent

Common law countries connect to…

England: the original common law country. Common law spread through colonisation.

Difference between common/civil systems

Common law has courts play key role in development and application of law, whereas civil law relies on codified law. Civil law relies less on precedential forms of decision making.

Common law origins - early societies

Law was divided between religious law and law of the people; a comprehensive set of laws would be placed in a public location (Babylonia 1750s BC)

Law of the people

Evolved into written code and was taken around Roman Empire

Roman law in England

43-426 AD

England post-Roman invasion

Returned back to the law they had prior which was based on customs (unwritten traditions). There was variation between regions as was based on local custom not common law.

Law becomes more common and consistent - influences:

William and Edward

Late 800s

King Alfred the Great created the shire as the basic unit of government. Each shire had a court

William the Conqueror

1066 - had power across all the land and directed local courts to apply the same law. This centralised rule helped make common law.

Henry II

1154-1189 introduced the writ system. Writs were issued to bring an element of compulsion to the law.

Another feature of Henry II

Trial by jury

Signing of Magna Carta

1215 - concepts such as the rule of law founded

Edward I introduced…

Model Parliament in 1295, which NZ Parliament is based

Equity and Court of Chancery

Law lacked flexibility and was becoming rigid. Equity was the body of law that decided cases based on justice rather than rules. This was eventually done in separate court of Chancery.

October 1769

Cook arrived and increased number of European settlers

6 Feb 1840

Signing of treaties

May 1840

Governor Hobson sent by Crown to make NZ a colony

May 21, 1840

Hobson claimed sovereignty

May 3, 1841

NZ proclaimed a colony

Legal mechanisms to establish common law in NZ

Courts were established through legislation: legislative body was ‘The Legislative Council.’ Led to establishment of Supreme Court (now High) in 1841.

1846

Magistrate’s Courts established

1862

Court of Appeal established

1847 - R v Symonds

Confirms English common law applicable in NZ

Act that clarified and confirmed common law applicable:

English Laws Act 1858

Parliament originates from:

• advisors to King in Anglo-Saxon era

• William Conqueror ‘curia regis’ - King’s Council

• These advisors had some influence and advised the King

Signing of Magna Carta (principle)

1215 - The King must rule in consultation with others. King and government not above the law.

Representative body emerges:

13th C: De Montfort’s Parliament 1265. Establishes a Parliament. Included both commoners and noblemen. Edward picked up on this idea in 1295.

Edward III

Introduced new laws which saw Parliament gain more power.

Power struggles between King and Parliament over 17th C:

Charles I didn’t like Parliament having so much power. Parliament tried to constrain him with Petition of Rights 1628. He didn’t like this, so dissolved Parliament and ruled alone for 11 years.

English Civil War

1642-1651: King loses and there is period of no King. Parliament appoints on monarch: William of Orange on terms of Bill of Rights.

Bill of Rights

1689: free speech for MPs in Parliament, Parliament must meet frequently, Parliament must consent, Parliament is sovereign law maker.

Parliament came to NZ via:

New Zealand Constitution Act 1852

1947

NZ became self-governing and Parliament adopted Statute of Westminster Act 1931.

1986

Parliament repealed NZ Constitution Act 1852, and replaced with The Constitution Act 1986.

1988

Imperial Laws Act 1988 wiped all English legislation from NZ statute books (except Magna Carta). This is the cutting of all ties from the English legal system.

Westminster System

Government characterised by: ceremonial head of state, Prime Minister, cabinet of ‘responsible ministers,’ and representative and democratically elected legislature.