LAWS213 - Public Law || A+ Verified Solutions.
Public Law (3) correct answers •broad concept embracing principles of administrative and constitutional law - G Palmer
•distribution and exercise of public power (both constitutional and administrative) - G Palmer
•sprawling mass of reality about how public decisions are made (who makes them, what rules do they have to follow, how can they be influenced) - M Palmer
Public v Private Law (1) correct answers •historically legality 'single and universal' but now the fundamentally political nature of the relationships which public law regulates necessitates methodologies distinct from private law - Laughlin
What is a Constitution (4) correct answers •symbol or body of fundamental principles under which nation is governed; mixture of written rules, institutional structures, procedures, norms and understandings - Palmer and Palmer •narrow - document having special legal sanctity setting out framework and principle functions of organs of government and principles by which they operate - Bradley
•wide - whole system of government, the collection of rules which establish and regulate this government - Bradley
•public power and how it is exercised, made up of structures, processes, principles, rules, conventions and even culture that constitute ways government power exercised - M Palmer
'Constitutional Law' (3) correct answers •ambiguous/no hard fast definition - Dicey/Bradley
•made up of law and convention - Dicey
•dispute about what public/constitutional lawyers should focus on: state, arrange, order and connect laws which form part of conception (Dicey), not only law of constitution but practise of it and how it works (G Palmer)
Constitutional Law v Adminsitrative Law (4) correct answers •English law distinguishes constitutional from administrative law - Feldman
•distinction easily drawn in jurisdictions with written conception, otherwise crude functional distinction made
•constitutional law concerns distribution of powers between branches of government, general principles governing their relationships and those guarantying fundamental rights of citizens •administrative law consists of detailed rules for control of government in so far as they rest on constitutional principles, it may be regarded as an aspect of constitutional law
Written v Unwritten (2) correct answers •written - legal, symbolic sanctity and accessibility, sets out framework and functions of organs of government and declares principles by which they operate. Often has high status and judicial enforcement, restricts scope of government power by requiring government action comply with constitution and courts may strike down inconsistent legislation. Necessary for federal jurisdictions - designates which powers belong to states and which to federal government
•unwritten - made up of range of sources and product of ordinary political processes, restraints are informal, political and oddity that both self-created and self-enforced - product of the legislature which is supreme and enforced by legislature itself along with informed public opinion, politics and history. Chimerical
Advantages/Disadvantages of Written v Unwritten (4) correct answers •flexibility v rigidity - unwritten not entrenched and can be amended to reflect values of contemporary society, means however that rights of individuals are subject to whims of government of the day
•ambiguity v certainty - unwritten conceptions can create uncertainty about what the law is and those who use it
•tradition v document - written constitutions are symbolic, easily identifiable symbols of a countries nationhood
•self v external enforcement - enforcement through courts may better protect rights of minorities,
risks politicising judicial appointments
What is(n't) Constitutional (2) correct answers •value judgement/'personal and subjective' •Jennings in M Palmer - 'what is in written constitution 'constitutional' what isn't, isn't. When there is no such document, quite impossible to amend a distinction which is not purely personal and subjective
Constitutional Sources (3) correct answers •Keith - Eng/UK Statutes, Constitution Act/NZ Statutes, relevant decisions of courts, international law, prerogative powers of Queen, conventions of constitution, ToW
•Joseph - Imp/NZ legislation, common law (customary, judicial precedent, statuary interpretation), customary intl. law, prerogative instruments, law and custom of Parliament, conventions of constitution, authoritative works
•M Palmer - instruments of: legislature (Imp/NZ), common law, judiciary (rules of court), Executive (intl. treaties), Sovereign (instruments of royal prerogative), common law of Parliament (instruments of legislature - Standing Orders), constitutional conventions, Executive (Cabinet rules and procedures)
Domestic Statutes - Constitution Act (6) correct answers •Sovereign ss 2-5
•Executive ss 6-9B
•Legislature ss 10-22
•House of Representatives ss 10-13
•Parliament ss 14-22
•Judiciary ss 23-24
Domestic Statues - Others (6) correct answers •NZBORA 1990
•Electoral Act 1993
•Official Information Act 1982
•Ombudsman Act 1975
•Judicature Amendment Act 1972
•Fiscal Responsibility Act 1994
Imperial Statues (Pre 1988) (3) correct answers •English Laws Act 1854 + successors - s1 - all laws of England existing on 14th Jan 1840 shall be in force so far as applicable to circumstances of NZ •reflects 'colony principle' - British law traditionally accompanied British settlers to new lands
•to resolve which states were applicable - Falkner
Falkner v GDC (1) correct answers •two stage test - what mischief does statutes address; does situation that gave rise to mischief, exist or likely to exist, in NZ
Imperial Statues (Pre 1988) Criticism (2) correct answers •left considerable discretionary power in hands of judges, they alone could decide whether law was 'applicable to NZ'
•such discretion arguably violated Dicey's 'rule by law' conception of rule of law (arbitrariness) and infringed on Raz' conception of 'formal legality', law was not capable of being obeyed at it was not clear which statutes applied
Imperial Statues (Post 1988) (2) correct answers •Imperial Laws Application Act 1988 ss 3(1) and 4 - only legislation in Sch 1 and subordinate legislation in Sch 2 part of NZ law, no other imperial laws are
•s5 - common law of England (including equity) so far it was part of NZ laws before commencement, shall continue to be
Prerogative Instruments/Powers (2) correct answers •Letters Patent - sovereign decrees originating from power of Sovereign to legislate without Parliament for Crown in right of NZ
•other powers of Sovereign - some exercised conventionally on advise of government, some exercised independently (power to appoint government)
Constitutional Conventions (3) correct answers •observed norms of political behaviour that are generally acknowledge to have attend a significant and status worthy of general acknowledgement - Palmer
•main political usage or principles which regulate relations between different parts of our constitution and exercise of power but which do not have legal force - Lord Wilson
•restrain and modify legal power (transformation from 'monarchy' to 'constitutional monarchy')
•facilitate constitutional development without formal change
Identifying Conventions (3) correct answers •no clear 'rule of recognition'
•'Jennings' test for established conventions - what are the precedents, did the relevant actors believe they were bound by a rule, is there a reason for the rule (in terms of needs of constitutional government)
•even then, conventions always emerging/crystallising/dissolving - questionable whether convention broken or changed
Consequences of Convention Disobedience (2) correct answers •depends on circumstances and precedent
•usually; conceptional crisis, political embarrassment, public disapprobation, change to convention or legal reform
Relationship Between Law and Convention (4) correct answers •conventions are not and cannot alter, the law
