Constitutional Law

PARLIAMENTARY PRIVILEGE:
to protect unfettered democratic debate in the House & ability of MPs raise issues w/out fear (absolute but may be waived)

Statutory basis of privilege in NZ Section 242(1) of the Legislature Act 1908 The House of Representatives and the Committees and members shall hold, enjoy and exercise such privileges, immunities and powers that were held by the Commons House of Parliament of Great Britain and Ireland. Article 9 of the Bill of Rights 1688 applies as law in NZ and is the foundation of freedom of speech in the House: That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament

1. Fundamental Privilege Uninhibited speech is the quintessential requirement of open debate (Phillip Joseph). Historically, the members guarantee of free speech secured the independence of the House of Parliament from the Crown. Today, the privilege ensures uninhabited discussion in debates without fear of recrimination or impeachment by any court, person or body. Members may speak without fear of civil liability (Dillon v Balfour [1879]) or criminal prosecution for sedition or criminal libel (Eliots case [1629]). Article 9 also secures the power of the House to punish members for abuse of the privilege. 2. Proceedings in Parliament The privilege of free speech covers all proceedings in parliament. Immunity from suit or prosecution extends to parliamentary staff in their diverse official capacities and also to members of public involved in parliamentary proceedings.

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No action will lie against a member of the public for defamatory testimony before a select committee or for a petition presented to Parliament. 3. Any Court or place out of Parliament Under art 9, freedom of speech is a corporate privilege that protects Parliaments proceedings against inquiry or examination in any court or place out of Parliament. This includes a royal commission. In Peters v Davison the full court was critical of the Davison Commission of Inquiry for drawing adverse inferences about the plaintiff from the plaintiffs speeches in the House. 4. To impeach or question Article 9 does not render inadmissible in court everything that is said or done in parliamentary proceedings. Article 9 has arisen for examination in defamation actions in which the litigants have sought to lead evidence of speeches in the House. In Prebble v TVNZ [1994] the Privy Council said that what is crucial is the purpose for which the evidence is sought, not its origin or source as part of the parliamentary record. 5. Words or deeds covered Covers all functions associated with the law-making process: for example the drafting of bills, introductory speeches, debates, select committee hearings, and even the A-G report (Mangawaro Enterprises Ltd v A-G [1994] an alleged failure by the A-G to report to the House a bill that was claimed to be inconsistent with BORA was a proceeding in Parliament and protected under art 9). - Caucus meetings to not qualify as proceedings in Parliament. - Members communications are protected if they relate to proceedings in Parliament 6. Parliamentary papers, reports and broadcast of proceedings Art 9 does not protect the publication of reports proceeding outside Parliament. Members who publish copies of speeches they have made in the House will not
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be covered. Defamatory statements will be actionable and their publishers liable even though the original statements are privileged. Stockdale v Hansard [1839] established that it was no defence at common law that a report of parliamentary proceedings was published by order of the House. However, New Zealand enacted the Privileges Act 1856 which is now reenacted under the Legislature Act 1908 (amended in 1992) and the Defamation Act 1992 to protect against defamation. 7. Defences for Defamation S 13 of the Defamation Act 1992 confers absolute protection on the publication, carried out by or under the authority of the House of Representatives, of any document or official record of the proceedings of the House. S 16(1) qualified privilege; no action for defamation may lie for the publication of a fair and accurate report of proceedings in the House. The defence is defeasible and will be rebutted if the plaintiff can show improper motive. The plaintiff must establish that the defendant was predominantly motivated by ill will towards the plaintiff, or otherwise took improper advantage of the occasion of publication (s 19 Defamation Act) 8. Media Journalists reporting parliamentary reports or papers may incur criminal or civil liability for sedition, contempt of court, breach of copyright, breach of confidentiality, or breach of the States law and order or security laws. Defamation is a tort designed to protect reputation. The law imposes liability where this communication to third persons of something that would tend to lower their estimation of the plaintiff, and the defendant does not prove a defence.

Qualified Privilege: to protect democratic debate in public arena and the ability of citizens to be informed TVNZ v. Prebble
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Prebble was Minister for State-Owned Enterprises and sues TVNZ for defamation saying the programme meant that he secretly sold state assets in return for donations to the Labour Party and that he had arranged for all incriminating documents to be destroyed. TVNZ denies that the programme bore that meanings alleged and even if they had, it was justified as it is a matter of public concern and protected by qualified privilege. Judge said only reputation in the sector of the plaintiffs life is relevant to alleged defamation.

If Member of Parliament sues someone for defamation, that member waives Parliamentary privilege about what s/he has said in Parliament If a fair trial cannot be had without reference to others statements in Parliament, the plaintiff MoP must either gain the consent of the House/those MPs to waive their privilege, or must forgo the suit. Lange v. Atkinson Lange applied to strike out the respondents defence that certain allegedly defamatory statements were protected by the defences of political expression and qualified privilege. The statements made by North and South magazine were a critical review of Langes performance as a politician and PM and cast doubt of his recollection of certain events in which he was involved. Held 1. The defence of qualified privilege applied to generally-published statements made about the actions and qualities of those currently or formerly elected to Parliament and those with aspirations to be members, so far as those actions and qualities directly affected their capacity to meet their public responsibilities. Therefore what is a public concern and not of private concern. Appeal was dismissed. High Court Judgement
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Importance of Right to Freedom of Expression and the protection of reputation had to be balanced. Electoral rights affirmed in s 12 of NZBORA 1990, cannot be properly exercised without sufficient knowledge about policies and candidates. ICCPR, art 19, everyone shall have the right to hold opinions without interference and everyone shall have the right to freedom of expression including the right to impart, seek and receive information. But there is also s5 of BORA justified limitations Elias J defined political discussion as ...discussion which bears upon the function of electors in a representative democracy by developing and encouraging views upon govt. The media shouldnt be treated more restrictively than individuals. The freedom protected under s 14 of BORA is not simply freedom to impart but also freedom to seek and receive as well. Inhibition of media expression disadvantages those who would hear. The plaintiff doesnt have to prove that the words are false, this falls on the defendant to prove that the defamatory words are true in substance (not every minor detail). If the words are an opinion, the defendant must prove it is their genuine honest opinion. Qualified Privilege is granted for the common convenience and welfare of society (Toogood v Spyring [1834]). The defendant does not enjoy privilege unless the recipient of the publication had a legitimate legal, social or moral duty or interest to impart the information. Qualified Privilege protects speech critical of an elected officials (or an aspiring to be elected official, or a past elected official) actions and qualifications so far as those directly affect that persons capacity to meet public responsibility, and so long as any material falsity in the speech in question was not made with ill will or for improper advantage (actual malice) s 19 of Defamation Act 1992 = Rebuttal of qualified privilege due to malice Absolute Privilege where a defendant has unqualified protection and no defamation proceedings can successfully be brought even if the defendant
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was acting maliciously. These occur when it is in the public interest for the person to have complete freedom of expression without exposure or risk of litigation.

LEGITIMACY & NECESSITY:

The Legitmacy of the government is usually tied to the legitimacy of the constitution. The constitution gives power the authority. We accept parliament to have power to legally legislate because of the constitution. Authority is not due to fear but because there is a claim to the moral right to govern. There are three possible claims to legitimate authority according to Beran, H. These are procedural, substantive and effective. 1. Procedural - gained power in the procedurally correct way. Eg. The Treaty of Waitangi; e.g. by election with secret ballot and each person has the claim to vote. 2. Substantive - gained power in a procedurally irregular way, but uses power to do good things. 3. Effective - is governing effectively. i) the people are going along with it and habitually following the commands without a lot of coercion (Kelsen) ii) can tell who legitimate govt is by the people accepting the power of the revolutionary govt. People have stopped challenging the authority (Austin). iii) Courts assert their authority by being umpires between revolutionary movements and different claims to authority and they determine what counts as legitimate authority. Grundnorm (Kelson) i) will be established in fact and ii) all legal basis of authority will go back to that. In most systems when you go back historically, there will have been a revolution. NZ has had an evolving govt.
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There are two ways in which a grundnorm changes and that is by (a) prescribed methods (most systems have an internal way of changing the grundnorm) or (b)illegally (revolution). According to Kelson, H If [the revolutionaries] succeed, if the old order ceases and the new order begins to be efficacious....then this order is considered as a valid order [because the people are conforming to the new order]....If the revolutionaries fail....their undertaking is interpreted, not as legal...but as an illegal act, as the crime of treason. For example the Rhodesian case, the Courts had to decide whether the law still exists even though the grundnorm has changed. The courts decide ordinary law persists even though there has been a revolution. Efficacity: in order to know if the govt is efficacious, need to define the term.... It is defined as is it working? For example the Mitchell case (Mitchell v Director of Public Prosecutions [1986]) its working and also is not oppressive, the people are accepting it. Efficacy can be recognised by the willingness of the people to obey and through freedom of speech (people could protest if they wanted but they are not and there is an opportunity to vote). Efficacy and Legitimacy E.g. the Mitchell case The revolution was successful because the Govt became firmly established and there was no competitor (as tested in the Rhodesian case). The govt was effective because the people were obeying and conforming to mandates and their obedience and conformity was due to popular acceptance and support and not due to coercion or fear of force. The Mitchell case is important because it showed that in order for the govt to be considered legitimate there must be evidence of efficacy and it must not appear that the regime was oppressive and undemocratic. In the Fiji case, the Court of Appeal decided the interim govt had failed to discharge its onus of establishing that the new regime was effective. The effectiveness test: 1. a revolutionary govt must be firmly established (no other govt vying for power)
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2. its administration must be effective (the maj of people are behaving in conformity wherewith In Mitchell v DPP the court identified two additional elements: 3. conformity and obedience must be due to popular acceptance and support not through coercion or fear of force 4. must not appear that the regime was oppressive and undemocratic

Doctrine of Necessity When the State (including the grundnorm) is under threat, the doctrine of necessity will exist. SALUS POPULI SUPREMA LEX: (Latin "Let the good of the people be the supreme law" or "The welfare of the people shall be the supreme law") A constitution is not a suicide pact. If you have to do unconstitutional things in order to save the people or the State, then you should implement the doctrine of necessity. It is the GGs main role to protect the constitution and so doctrine of necessity will usually be cited by the GG. Joseph, A the doctrine provides for the legal recognition of unconstitutional acts: it characterises as lawful that which the constitution holds to be unlawful.the ends justify the means. To avoid legal chaos. There are criteria that have been set out for judging whether a situation is one justifying the departure from the Constitutional requirements. The Criteria: 1. Imperative necessity from exceptional circumstances unforeseen by the constitution that requires immediate action to preserve a vital aspect of the State 2. No other choice reasonably available (Mitchell test) Eg. The Mitchell test in the Rhodesian case. Its the courts invoking the doctrine of necessity even though technically the judges should resign.
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3. Action is reasonably necessary to maintain social order, peace and good government, and is no more or of no longer duration than necessary 4. Doesnt impair existing constitutional rights 5. Doesnt solely promote the revolution (or other unforeseen crisis)

Mitchell and Others v Director of Public Prosecutions and Another Decision of Grenadan Court of Appeal which upheld the unconstitutional acts and legislation of a revolutionary regime. When this regime was toppled, the court held the Governor-General was entitled to assume control for restoring order. Proclamations the G-G made were validated.... based on law of necessity In circumstances of chaos and breakdown of law and order following the overthrow of the revolutionary regime, the G-G, as the constitutional Head of State, who under the Constitution represented the executive powers of the State and shared legislative sovereignty was entitled to assume control of the affairs of State the Fiji case: Rep. of Fiji v Chadrika [2001]. Court held that the 1997 Constitution must continue to represent legal order of Fiji and any actions taken that were extra-constitutional cease to apply once the crisis has passed and are temporary in nature. The court pronounced the coup unsuccessful and held the doctrine of necessity could not be used to overthrow the 1997 Fiji Constitution. The Rhodesian case: Madzimbutu v Lardner-Burke [1968] Lord Pearce applying the doctrine of necessity after Southern Rhodesia had declared independence in 1965. High court asserted that laws or regulations made in the public interest and for the ordinary purposed of maintaining law and order were accepted. Historical recent Crises of Legitimacy in NZ
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1. Fitzgerald v Muldoon 2. Clyde Dam Saga Parliament acting as courts and putting aside the independence of the courts 3. State Sector restructuring and privatisation processes The govt was elected by only 30% of the population and majority of NZ was opposed to this...therefore this is not legitimate law. Rule of Law The govt has to act under the law. According to Dicey it is defined as: 1. Government according to the law 2. Equality before the law 3. Liberty of the individual According to Joseph, A. rule of law is applied: 1. Powers must derive from the law (Fitzgerald v Muldoon) 2. Subjection to judicial process (Judicature Act 1972) 3. Common law rights and protections (NZBORA) Fitzgerald v Muldoon [1976] Muldoon made a press statement declaring the end of a statutory law (the New Zealand Superannuation Act 1974) but Wild CJ ruled the Prime Minister had violated Article 1 of the Bill of Rights 1688 saying, That the pretended power of suspending of laws or the execution of laws by regal authority without consent of Parliament is illegal.1 Rule of law requires that law is applied equally to each person in that category. This has been breached in the past with the example of the Clyde Dam Saga where the government announced it would pass a special legislation for the Clyde hydro-electric dam (the Clutha Development Empowering Act 1982) after a court decision displeased the Executive. This is a clear abuse of rule of law (government according to law). However, this would not have been a breach of rule of law if a general law reform of the relevant statute had been made2. Constitutionalism Is a proposition that State Power is bounded by rules about:
1 2

2 NZLR 290 (CA) Brookfield, FM High courts, high dam, high policy *1983+ Recent Law 62

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1. the extent of State Power 2. how that power shall be exercised 3. how the constitutional rules themselves are changed Basis for Constitutionalism According to de Smith (numbers 1-4) 1. Govt accountable to an independent authority The govt (those who administer the law) must be accountable to an independent authority. E.g the Ombudsman who must not have any repercussions from the govt for doing their job. 2. Regular, broadly open elections, which elect the governors and the law makers. In NZ, the people elect the govt and some of those that are elected will also head other areas. For example the PM is also a MP. 3. Free Opposition 1688 Bill of Rights; guarantee the king could not punish people for what they said in Parliament (s9) no member of Parliament can be held accountable for what they have said in Parliament = freedom of speech. Parliamentary Privilege; to protect MPs from not being able to debate freely. 4. Civil Liberties protected by an independent and effective judiciary 5. Freedom of Speech 6. Democracy 7. Separation of powers 8. Treaty of Waitangi 9. Parliamentary Sovereignty 10. An evolving Constitution 11. Consent of the People 12. Govt not abusing Power 13. Rule of Law The Governor Generals main role is to protect the constitution Need 51% to get majority support and new legal order. (Rhodesia had support of maj of people).
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Cant use doctrine of necessity to prop up revolutionaries, therefore cant stick to courts decision because it will support revolutionaries. In this case they werent un/successful so they cant be tried for treason because the grundnorm has changed.

ABORIGINAL TITLE (Foreshore & Seabed):

Aboriginal Title Established by a group of native people who: -possess the lands claimed -have possessed the lands for a substantial period Benefits of the Title starting point full legal recognition of pre-existing and continuing M property rights. Limitations - Premised on assumption of Crown sovereignty - traditional uses of land - Evidentiary burden - Relative ease of extinguishment (Foreshore and Seabed Act 2004) How is it extinguished 1. By statute - must be clearly expressed, partial or complete - ambiguity interpreted in favour of the Aborigines - compensation is required

2. By sale or cession to the Crown or proven abandonment (voluntary) How has aboriginal title been applied in NZ? R v Symonds (1847) Doctrine of ab title applies Kauwaeranga (1870) Fenton CJ finds M do have property rights to the foreshore and seabed of Thames but wont award title, just use rights. Wi Parata (1877) Prendergast CJ finds M cannot enforce ab title property rights against the crown Te Weehi (1986) Williamson J finds that M can claim customary rights to fisheries
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Ngati Apa (2003)

SC find that Ab title does apply and M can go to court to ascertain their property rights to the foreshore and seabed Prendergasts legal principal was incorporated into Statute

Native Lands Act 1909

Foreshore & Seabed Crown legislated to extinguish ab title to foreshore Act 2004 and seabed

Can the NZ Constitutional framework protect Maori against abuse of power? To a great extent, New Zealands constitution consists of constitutional conventions which include rule of law, democracy, civil rights and natural justice. By following these conventions, the government of New Zealand proves its legitimacy and responsibility and prevents abuse of power.

Unfortunately, the Foreshore and Seabed Act is an example of when rule of law (law applies equally to each person in that category) has not been followed. In 2003, several Maori iwi and interest groups appealed to the Court of Appeal to determine whether the Maori Land Court had jurisdiction to declare the status of the foreshore and seabed. The main issue before the Court was due process; could the Maori Land Court enter into an inquiry to hear the claim? Elias CJ concluded, I am of the view that the appellants must be permitted to proceed with their applications to the Maori Land Court3. It was also held unanimously that native property rights continued until lawfully extinguished and the onus of proof was on the Crown4. The government subsequently and rapidly introduced legislation preventing Maori claims and customary rights in the foreshore and seabed being heard by the Maori Land Court.5 This resulted in a breach of rule of law according to the Waitangi Tribunal report that stated there should be one rule for all, A rule where all people whatever their race or colour had the right to have their case heard in the Courts of Law without government intervention. 6
3 4

Attorney-General v Ngati Apa [2003] 3 NZLR 670 Ibid, 643 5 Joseph, R New Zealand Foreshore and Seabed Policy Breaches Human Rights of Maori and including the Right to Self-Determination Select Committee Report on the Foreshore and Seabed Bill Extract, August 2004, 2 6 Tribunal Findings Justified in New Zealand Herald, 8 March 2004

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By keeping the Legislative separate from the Executive and the Judiciary, New Zealand has been able to limit abuse of power by allowing the courts to apply the law without any political bias or fear. However, New Zealands Parliament is the only authority in the country that can pass statutory law, thereby it has the power to overrule any court decision that it disagrees with. This is highlighted by Helen Clarkes answer to the Waitangi Tribunal saying, Because of Parliamentary supremacy the government can make and unmake any law it likes.7 This way of thinking shows how easy it is for the State to abuse its power and blatantly disrespect democracy and fairness. In addition, according to the Waitangi Tribunal Report, the Act removes the ability of Maori to go to the High Court and the Maori Land Court for definition and declaration of their legal rights to the foreshore and seabed8. This is a removal of due process and an extinguishment of a persons rights as a citizen of New Zealand to have their case heard in a Court of law and is an extreme breach of human rights and rule of law.

Furthermore, the Committee on the Elimination of Racial Discrimination in 2005 also agreed saying, The legislation appears to the Committee...to contain discriminatory aspects against Maori9. The Special Rapporteur also reproved the government from a human rights perspective.10

This Act not only goes against the New Zealand Bill of Rights Act, 1990 (NZBORA) section 5 but also the International Covenant on Civil and Political Rights due to the discriminatory effect it has on grounds of race11 and the right to natural justice.12 When a Bill is inconsistent

7 8

Prime Minister Helen Clarke, Interview on the Foreshore and Seabed, on One News 8 March 2004 Waitangi Tribunal, Report of the Crowns Foreshore and Seabed Policy (Wellington, Legislation Direct, 2004) xiii 9 United Nations Committee on the Elimination of Racial Discrimination, New Zealand Foreshore and Seabed Act, 2004, Decision 1 (55) 17 February 11 March 2005 10 Stavenhagen, R United Nations Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous People, United Nations Economic and Social Council, E/CN.4/2006/78/Add.3 13 March 2006, 7 11 Bill of Rights Act 1990, Section 19 (1) 12 Bill of Rights Act 1990 Section 27 (1)

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with NZBORA, the Attorney-General must bring this to the attention of Parliament13 providing another check on the abuse of power. However, The Committee on the Elimination of Racial Discrimination (CERD) said, The requirement whereby the Attorney-General may bring to the attention of Parliament any provision of a Bill that appears to be inconsistent with the NZBORA is insufficient to guarantee full respect for human rights, in particular the right not to suffer from discrimination based on race, colour, descent or national or ethnic origin.14 This highlights another Constitutional Convention that cannot protect Maori from the abuse of power by the State. New Zealands constitution regards elections as an extremely essential part of the constitution with the Mixed Member Proportionate voting system (MMP) that ensures any Bill passed reflects the majority of Parliament and therefore reflects the majority of the people. However, as Maori are a minority, their rights may easily be put aside for the good of the nation as seen in the Foreshore and Seabed Act.

Yet, MMP proved to support Maori interests as the final outcome of the Act was the defeat of the Labour party at the last elections. The Act also provided the impetus for the creation of the Maori party that now has considerable power in Parliament and is successfully in negotiations with the present Government to repeal the Act, proving there are Constitutional frameworks in New Zealand that can protect the interests of Maori. Moana Jackson raised the question, How can this country establish constitutional frameworks that recognise the equally legitimate sovereign rights of Maori and the Crown to exercise governance?15

According to Raj Vasil, the federal principal could be adapted and applied to suit the unique New Zealand ethnic situation. He describes two possible ways of effecting that; the first is
13 14

Bill of Rights Act 1990, Section 7 United Nations Document CERD/C/NZL/CO/17 Concluding Observations of the Committee on the Elimination of Racial Discrimination (15 August 2007) 15 Jackson, M Where Does Sovereignty Lie? In James, C (ed) Building the Constitution (Wellington: Institution of Policy Studies, 2000) 197

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by dividing New Zealand into four provinces based on territory and the second is a Maori state within the State based upon ethnicity rather than territory. The second option could work in a similar way as the Vatican in Rome with Maori enjoying limited powers and authority derived from a written constitution and not the government of New Zealand.16 This would allow the Maori state to have responsibility for their health, housing, education, media, culture and language.

According to Maaka R, and Flera, A, indigenous people have the right for self-determination, to exercise control over land, their lives, and life-chances allowing indigenous peoples to move away from state determination.17 This is confirmed by Article 3 of the United Nations Declaration on the Rights of Indigenous Peoples. The Special Rapporteur18 made recommendations to the New Zealand Government, stating The Treaty of Waitangi19, the NZBORA and MMP should be entrenched constitutionally in a form that acknowledges Maori world-view and regulates the relationship between Maori and the Government. He also said the Waitangi Tribunal should be granted legally binding powers and given more resources and furthermore, Legal Aid should be available to Maori collectives (not just individuals).

TREATY OF WAITANGI:
Cases
R v Symonds [1841] The question is, who had title to the land, Symonds or McIntosh?
16

Maori Interest Progressed Ab Title must be protected on moral (natural law) and legal (positivist law) grounds. Ab Title to be respected. The

Maori Interest Not Progressed Doctrine of Imminent Domain means Crown has parliamentary sovereignty therefore they can extinguish native title.

Judges Justification Governor Fitzroy makes a decision (proclamation) which goes against Rule of Law.

Comments Doctrine of Imminent Domain prevails

Vasil, R Indigenous Rights and the Constitution in James, C (ed) Building the Constitution (Wellington: Institution of Policy Studies, 2000) 217 17 Maaka, R and Flera, A The Politics of Indigeneity Challenging the State in Canada and Aoteoroa in James, C (ed) Building the Constitution (Wellington: Institute of Policy Studies, 2000) pg. 37 18 Supra n14 at 20-23 19 Also backed up by CERD, stating, The Committee recommends that the State party consider granting the Waitangi Tribunal legally binding powers to adjudicate Treaty matters. Supra n 18 at 4

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The governor waived the Crowns right to pre-emption (article 2 of Treaty of Waitangi where Maori must sell to Crown) for Mr McIntosh.

treaty didnt create these rights but affirmed them (common law rights). Maori can do what they like among themselves (right to self-determination)

Kauwaeranga [1870] First foreshore and seabed case in NZ Hoterene Taupiri & others applied for certificate of title over foreshore & seabed. Basis for claim: Aboriginal Title: Maori always had the land.

Recognition of land used by Maori for cultural practises (Useful Domain). For the use and possession of the lands. Recognition that the indigenous people must be dealt with sincerity and good faith. The Treaty recognised as a compact (a contract binding in International law).

Recognised governance of Maori and possession of lands but not sovereignty. Rejected Maori claim to possession of foreshore and seabed. Maori ceded sovereignty to the crown but kept governance which means they are using the English text and not the maori text which says they kept sovereignty. Maori did not get a certificate of title but

Although they have Aboriginal Title, Judge cant give them title to the Foreshore and Seabed, due to the good of Public Interest.

Te Weehi [1986] Tom Te Weehi gathered undersized paua and he appealed based on Maori fishing rights.

Judge Fenton acknowledges Aboriginal Title and recognises the Treaty affirms the rights of the Ab Title. Judge says that if the Ab rights have not been clearly

Only a customary right to take shellfish but not a commercial right.

Judge acknowledges there is a customary right to take shellfish according their native rights. There can be a customary right to fish even if there is no ownership of Page 17 of 49

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extinguished (by legislation) then they still exist today. Therefore customary fishing rights still exist today. He overrides the decision made by Prendergast in Wi Parata and says we need to recognise Maori have their own law (tikanga).

the foreshore and seabed. Public Interest

Ngati Apa [2007] Several iwi and interests applied to Maori land Court for declarations as to the status of land comprised of foreshore and seabed.

Treaty affirmed property rights to Maori. Crown must respect M usage and property rights. No legislation in precise terms extinguished any M property interests in the foreshore/seabed. Tikanga overrides Crown prerogative and only way to extinguish is by

1. Maori land Court has jurisdiction ability to hear and answer questions regarding foreshore and seabed. 2. Overruled Ninety Mile Beach decision 3. held M customary land is recognised in NZ courts 4. held legislation Page 18 of 49

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selling or by statute and it must be clear. Argued the ninetymile beach judgement and wiparata case made bad law and shouldnt be followed. Extinguishment of ab title has to be done through statute and it must be with clear intent. If ab title is extinguished as a result of national interest there must be compensation

did not expressly extinguish customary title

Te Runanga o Te Ika Whenua [1994] BOP electric power board owns two dams and Te Ika Whenua have interests in the rivers. Basis for claim = ab title

Acknowledges Treaty and Ab title but it doesnt extend to electricity generated by dams as this wasnt done traditionally.

Appeal dismissed because the generation of power were never conceived at the time of signing the Treaty.

Similarities between the first four cases are Doctrine of Imminent Domain prevails, Aboriginal Title is to be respected and the Treaty didnt create these rights but affirmed them. Ab Title has not been clearly extinguished and therefore still exists today. But Maori ceded sovereignty and kept governance and Public Interest is more important.

Question One A. What is the contemporary legal significance of the Treaty of Waitangi? Your answer should include reference to: (i) Articles of the Treaty of Waitangi (ii) Issues regarding interpretation of the Articles of the Treaty (iii)Legal status of the Treaty as stated in Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] NZLR 641
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(iv) The Court of Appeals interpretation of the Treaty in New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 [20 Marks]

B. The Maori Land Court has had three distinctive roles since its establishment in 1862. Outline these roles and discuss how they have changed over time. [5 Marks]

i) Articles of the Treaty See systems test pg 10

It is obvious that significant differences exist between the Maori and the English texts of the Treaty and that the Maori text is not a correct translation of the English version. While this is the result of numerous linguistic and cultural differences, it has been alleged that the choice of words may also have been deliberate in order to sell the Treatys contents to Maori.

ii) Interpretations of the Treaty Articles Preamble In the English version the preamble sets out the desire and justification for the establishment of British sovereignty and civil govt in NZ. The Maori text is simplistic in translation and of particular interest is the use of the word kawanatanga to denote both Sovereign authority and civil government. The deliberate use of this word has raised some significant interpretative problems, particularly in relation to Article I. Article I This article is central to one of the greatest interpretative dilemmas in the Treaty debate. According to British expectations and intentions, it required that the Maori chiefs cede absolute sovereignty to the British Crown. Sovereignty was an important term in this context establishing the Crown's jurisdiction and ability to make laws for New Zealand it would be recognized both nationally and internationally. The Maori word kawanatanga was used to denote sovereignty but in fact the strict interpretation of the word means governance. Governance implies a lower standard of authority than that of sovereign

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rulers. Accordingly the Maori version cedes less to the Crown and reserves much more to the chiefs then does the English version (F M Brookfield, 1992). The use of the word kawanatanga has created significant controversy as to the true meaning of article 1. This has resulted in much academic debate and has proved to be almost impossible to reconcile. Maori believed that they were making a limited concession of rulership; believed that the Crown would have some limited power to protect Maori against the lawlessness of British subjects, rather than have the power to order and rule their lives and tribal practices. PROTECTION V RULERSHIP Article II The Queen was said to confirm and guarantee to Maori the full, exclusive, and undisturbed possession of their lands and estates, forests, fisheries and other properties so long as it was their wish to retain the same. The words te tino rangitiratanga were used in the Maori the text to convey the meaning of undisturbed possession of properties. Its literal translation is the unqualified exercise of chieftainship over their lands, villages, and all the treasures (Sir Hugh Kawharu New Zealand Maori Council v A-G [1987]. POSSESSION V CHEIFTANSHIP When viewed in conjunction with Article I, it appears the Maori text is irreconcilable with the English version. The Maori text can be interpreted to mean that Maori were to maintain their sovereignty with a lesser concession to the British. Use of the word taonga to denote possessions that were guaranteed has also been of some importance, particularly in relation to recent claims by Maori for intangible possessions. Taonga translates to treasure which encompasses non-material things such as culture, language and art. The 2nd part of Article I also raises some interpretation difficulties. The English version claims to secure to the Crown the exclusive right to pre-emption. There was no Maori term equivalent to the concept. Hokanga was the chosen translation but does not mean sell in the same way Europeans mean it. It is more like borrow or use. Article III This article presents fewer difficulties than the previous two. It extends to Maori the rights and privileges of British subjects. The effect of this provision is to provide that Maori and Pakeha are equal before the law.

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In summary, the two versions of the Treaty have caused great confusion. The British, on one hand, viewed the Treaty as a treaty of cessation, by which they attained sovereignty over NZ. Maori, on the other hand, perceived that their sovereignty was retained with some lesser concession of rulership to the British. In recent times, the Court of Appeal has attempted to alleviate these difficulties by refusing to apply the literal approach to the Treaty and, instead, giving attention to its spirit and intention (New Zealand Maori Council v A-G [1987]).

iii) Legal Status as stated in Hoani Te Heuheu Tukino Te Heuheu established the extent to which the treaty could be enforceable in Court. The rule derived from this case is that any rights purporting to be conferred by... a treaty of cession cannot be enforced in the Courts, except in so far as they have been incorporated in the municipal law (p596). The plaintiff was therefore not able to rely on the Treaty as a direct source of legal rights but was required to refer the Court to some statutory recognition of the right claimed. In this case the statute had been repealed. After WWII, a shift in the general attitude towards the Treaty is clearly discernible. This change has occurred on a much greater scale over the last 20 years. As a consequence, there have been a number of significant legal developments. In 1975 the Waitangi Tribunal was established to investigate Maori claims and there has been a marked increase in legislative recognition of the Treaty (Environment Act 1986, SOE Act 1986, Conservation Act 1987). Judicially, the most significant decision reflecting the new attitude towards the Treaty and Maori interests is the 1987 New Zealand Maori case.

iv) New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 In 1986-87, the govt reorganised the public sector and embarked on the process of creating state-owned enterprises (SOEs) which was the first step towards privatisation and involved the massive transfer of Crown assets to SOEs by the State-Owned Enterprises Act 1987. Understandably, many Maori had concerns because once land had past to a third party, there would no longer be a place for Maori to make any claims to that land. In response to the Waitangi Tribunal, two provisions were inserted into the Bill. Section 9: Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.

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Section 27: set out a procedure for dealing with pending and future Tribunal claims. It stipulated that there would be no sale of SOE land to private interests if the land was subject to a Tribunal claim lodged prior to the Bill getting royal assent. In the NZ Maori case, the Court was required to determine the relationship between ss9 and 27. The NZMC (NZ Maori Council) argued that s 9 offered statutory protection in relation to any transfer of Crown assets. The Crown submitted that s 27 was a code that would have the effect of completely overriding the provisions of s 9. Secondly, the Crown argued that s 9 did not apply to the transfer of land (as opposed to other assets). The Court rejected the Crowns argument and upheld the NZMCs claim. It had not been Parliaments intention that s 27 was to be a code and thereby used to defeat the purpose of s 9 or that it excluded land. The Crown had breached s 9 by not having regard to the principles of the Treaty. The case has been hailed as a landmark judgement this case is perhaps as important for the future of our country as any that has come before a NZ Court (Cooke P, p651). However, the Treaty cannot be enforced unless incorporated into our domestic law. The decision is important because it attempted to clarify the relationship between Maori and the Crown by regarding their interaction to be in accordance with the spirit and principles of the Treaty. The Council abandoned a literal interpretation of the documents in favour of a more liberal approach. The Treaty was seen as a living instrument (p655-656, Cooke P) capable of continuing evolution. The Court applied the principle of partnership where each party must act in a spirit of reasonableness and good faith toward each other and that the Crown must actively protect Maori in relation to use of land and other interests (p 664, Cooke P). However, there was no general duty to always consult Maori. The Court also drew an analogy between partnership and fiduciary duty. partnership require parties to act in utmost good faith and trust toward each other. Fiduciary

b. Maori Land Court The Court is empowered to investigate Maori land issues. 1. To investigate and order change to the title of Maori land 2. Appoint trustees for that land 3. Change the status of Maori land The Treaty of Waitangi has great impact on the way the jurisdiction is exercised.
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Question Two: Abuse of Arbitrary Power: Waitara Suspension of habeus corpus (right to fair hearing, innocent until proven guilty), use of armed forces and subsequent legislation. What role did propaganda and the use of media have in vilifying (make malicious statements about) Wiremu Kingi? Why? Who benefitted from this? What fundamental rights were violated with the passing of legislation at the time? What parallels are there between Nazi Germany govt and colonial govt? What role to lawyers/law students play in the restraint in arbitrary power?

Up to 1827, Waitara was occupied by Ngatai-Awa by unbroken descent from remote ancestors. A section of Ngatai Awa moved down to Waikanae (Wellington) in order to establish trade with the whalers and settlers. 1830 Waikato (Tainui) invades Waitara and South of Waitara Valley but never settled there. Ngatai Awa flees to Sugar Loaf Reef. Waikato retreated. 1840, Waikato is paid off as the land owners of Waitara 1842, Te Pakaru (chief of Waikato) moves from Waikato to take possession of Waitara but Wi Kingi warns him off and Te Pakaru leaves. 1841 (one year after Treaty signed) settlers move to New Plymouth in order to establish farming and agriculture (nz is based on farming and ag) established by Carrington through Colonel Wakefield. 1844, Commissioner Spain recommended title to Taranaki be awarded to the Settlers. A lands claim investigation and was overturned. 1858, More natives than settlers during this time and they owned 2 million acres of land while the settlers only had 60,000 land that is described as they most rich and arable soil of the colony. 1859, Governor Gore Browne upholds the sale by Teira to NZ Company

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1844 Taranaki Question Investigated Commissioner Spain awards title to the settlers on the assumption that the enslaved or fugitive members of Ngatai-awa Tribe had, by their captivity or absence, lost all claim to the land. Just an assumption without any research. Governor Grey overrules the Land Commissioners recommendation. He would allow in all their integrity the claims of the Ngatai-awa tribe who were not parties to the sale in 1840. According to Carrington they had arrived in 1840 and agreed to buy the land from those who were occupying it at the time. No evidence that those who agreed to sell the land had the rights to the land. Hursthouse describes the process for buying land, the govt officers were scrupulous in obtaining the consent of every individual interested; title deeds in Maori tongue, signed by men women and children, conducted in public and all were satisfied both native and European. A solid process with the exception of Waitara. 1841, Potatau (first king of the kingitanga, from Tainui) received money for Waitara ($500). No full investigation over who truly owned the land. 1854, according to Ngatai-awa, no consideration on earth would induce those natives (from Cape Egmont to Patea) to let or sell an inch of their land for any purpose whatsoever. Wiremu Kingi (pre-eminant Chief of Ngatia-awa, fought with Waikato, instrumental in allowing Wellington to be settled, had lineage to be considered sole owner of Waitara and Maori custom allowed right of veto of Chief over any land dealings). 1854, Prosperity. Ngatai-awa tribe was very prosperous under Wi Kingi. Teira was a landseller and beloved of the settlers. (member of Ngatai-awa under Wi Kingi, grudge against Wi Kingi). Sold his part of the share of Waitara to the settlers. But when translated into English, they left out that it was Teiras part of the share that was being sold. So when asked if Teira owned the land Wi Kingi said yes because he owned it in addition to everyone else in the tribe. Governor Brown upheld this sale. Teira was therefore considered to be loyal due to selling the land. 1880, legislation that took land off the rebel Maori; West Coast Settlement Act 1880. Made it legal to take Wi Kingis land when he didnt want to sell. But under s 4 of that Act, land shall be set aside/reserved for loyal Maori and Teira was considered to be loyal. So in 1880, Teira came back and asked where is my land? I was loyal. So when the crown went back to investigate, Wi Kingis interest proven, reserve created and taken under Maori
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Reserve Lands Act, moved to market rental 2000 (Jim Bolger). some justice but a long, long time after. British prime minister approved of 10,000 soldiers to come to nz to settle matters (land wars) and create peace. But the minister wasnt told that it was to take land off those who are just trying to protect their land from being taken off them or that the instigators were the NZ company. After Wi Kingi is charged with rebellion he stated, friend colonel Murray, salutation to you in the love of our Lord Jesus Christ, and explains with love that he is not in rebellion and has no desire for evil but for love. Richmond confesses that military force is required to get the land they want. By affecting the natives to the point of rebellion, they could get the land. They knew that Wi Kingi had claim to the land and he would defend it and so now they are legally right to attack and go to war. The Waitangi Tribunal on Governor Browne and Waitara incident The causes of the war are many. In this case, they point generally to the conclusion that the governor started it. Most especially he disregarded maori law and authority...the disregard of customary tenure, institutions and process occurred despite the advice of the Board of Native Affairs. In that respect, the Governors actions were contrary not only to the Treaty but also to principles of law. People in the NZ govt were saying, you cant do this, this is wrong but the demand for land for the settlers was very strong.

Media influence One settler at the time confesses, why the very Gazettes were falsified, the Maori was on one side and the English on the other and there were falsehoods on the face of it. The englsih said, the land is Teiras but I will not allow it to be sold. But on the Maori side, the land is Teiras but it is no more his property than the property of the rest of us, and I will not allow it to be sold which made all the difference. It was nothing but an attempt to rob the Wi Kingi of his and; one of the most unjust things ever done Chief J Martin answers the question whether it was lawful and just to take the land by armed force as no. Chief Justice Sir William Martin brochure: The Governor has no more right to seize land from Maori as he would if he were buying land from a Pakeha. The Govt did not stay to obtain legal sanction for its act.

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The NZ company was then sold to the NZ govt so all the dealings of the NZ company then became the dealings of the nz govt. The Taranaki Herald complained that nothing had been settled and the following day, Mr Richmonds brother wrote urging the use of force.

Who benefited from this? Mr Richmond who was a member of Parliament for New Plymouth and was the Native Minister. He and his relatives had money invested in Taranaki and he depended on the votes of the people who were in the same position. He spoke sympathetically of the Maori but his legislative proposals would do little to help Maori, infact one proposal disenfranchised practically the whole of the Maori people and another removed al disputes about the ownership of native lands from the jurisdiction of courts of law. He wrote to the Resident Magistrate in New Plymouth saying, what the magistrates have to do to place the Govt technically in the right is to bring the contumacy of the natives up to the point of actual defiance of the Govt, ie High Treason. It was hard to get the Maoris at Waitara up to that required point though. The farthest they were willing to go in the way of contumacy was to build a fort on the coveted land. It was enough and they were attacked. Mr Richmond was under steady and increasing pressure from his constituents, who had had enough of negotiations and wanted resolute action. (H Miller, 1966). One of Richmonds kinsmen wrote, teach the natives a lesson; occupy Waitara by force; deport Wi Kingi, if the natives fire a shot hang him together with all the leaders H. A Atkinson to Richmond, 1860. NZ prime minister (Mr Stafford) wrote to his Native Minister urging the need for a srong party in NZ and for action. Two months later he was more precise; land question must be settled and that speedily. Large numbers of emigrants. He wrote, were already on the sea; and land must be found for them. (Stafford to Richmond, 1859)

What rules were broken? Everyone is equal before the law. Article III of the Treaty
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Article II of the Treaty (which Governor Browne upholds) that land is protected. Maori appealed to the law. The day before the survey was attempted a former superintendent of the province wrote to Mr Richmond that he had been informed by natives that the Waitara people intended to obstruct the survey as far as was necessary to get someone arrested in order to test what remedy they had in law (C. Brown to C.W. Richmond, 19 Feb, 1860) This was correct as on the day of the surveying, a crowd of women and old men followed him around and pulled up pegs (southern cross, Feb, 1860). They were unarmed (Taranaki Herald, 1860) and there was no violence (Browne to Secretary of State, 1860) not even noisy language and it was all done in the least objectionable way possible (Taranaki News, 1860) . But no one was arrested. It is clear why, because Mr Richmonds aim was not to convict some women and old men but to provoke the chiefs to fight (to bring contumacy). Numerous appeals for judicial inquiry were disregarded or rejected. A month after the survey and four days before the fighting began, the leaders of the Waikato tribes asked for an inquiry but no notice was taken (Halse to Smith, March 1860) and a month after that Bishop Selwyn demanded a judicial investigation (Selwyn to Stafford, april 1860) with the same result. Later in the year similar requests came from the retired Chief Justice Sir William Martin and leading cheif (Renata) of Hawkes Bay and from the leading cheif of Waikato. Nothing is more remarkable about the whole affair than the willingness of the Maori leaders to have the dispute settled by some form of judicial inquiry. But the govt had other ideas and so fighting came; but the govt had to start it. When the troops landed in from sea at Waitara on 5 march, 1960, the people fled the approaching soldiers and watched from a distance as their houses were burnt down. This continued for 10 days without Maori firing a shot but instead they built a fort on the disputed block and on their refusing to abandon it, Colonel Gold opened up on them with rockets and 24 pound howitzers, and the war was on. This is what Mr Richmond had carefully orchestrated. They only fear of some of his Taranaki supporters was that fighting might stop too soon. The rebels wrote the editor of Taranaki Herald have the effrontery to make some sort of overture of peace...there can be no peace with murderers and assissins (referring to the deaths of three settlers 10 days after the troops attacked the people of Waitara).

Parihaka was invaded 5 November, 1881. It was a prosperous village. They only way they could have any survival was through peaceful surrender and peaceful process. Te Whiti advocated the pulling out of survey pegs and then digging in gardens etc.
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Place your trust and forbearance in peace...let the booted feet come when they like, the land shall remain firm forever...I stand for peace. Though the lions rage still I am for peace...I am here to be taken Te Whiti. Soldiers led by John Bryce who later became the native minister and he instigated the policy of shoot the Maori on site. His nickname among Maori is the murderer. He was native minister. The soldiers were met by children playing on the road side and the women were singing but the soldiers were so amped for war, they ramsacked the village for two months. If they had met the soldiers with force they would have died, no question, so in order to survive so that injustice could be redress later at an appropriate time. Governor A Gordon, Te Whiti advocated peace and non-resistance...his main offence has been....that he is opposed to the passing of land from natives into European hands. A Royal Commission showed that natives had disappeard, in which their dwellings and cultivations had been destroyed, to which British subjects demanded that no native should be allowed to return, and in which when a poor creature came back to seek for a resting-place he was shot without enquiry and apparently without exciting remark until, in later years, a Royal Commission recorded the occurance without condemnation. New Zealand Hansard 1882, Sheehan stated Bryce (the native minister) was; putting his foot down on the Native race again. They only want their rights...I do not see why justice should not be given them

Question Three: The social and legal problems of the future can no longer be dealt with only in the context of domestic law. Discuss with reference to a pressing international concern (nuclear war) with particular response to the context and the legal response in question. Nuclear war is the antithesis of everything. It is five minutes to midnight; the threat of a second nuclear age and the expected consequences of climate change push the Doomsday Clock closer to midnight. There are approximately 30,000 nuclear weapons on the face of the earth at present; each one containing 4 x the magnitude of Hiroshima. There is a 15 minute warning to respond. In one lecture (1 hour) could have four NW exchanges. There is the risk of accidents (lost them, run them over, fires) but by pure grace of God we havent set one off. 150 woops. With nuclear weapons; there are no survivors. Even the innocent, the civilians, will die. The 1982 Independent Commission on Disarmament and Security Issues warned, a full scale nuclear exchange could bring about the extinction of humanity. The extent of the
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environmental damage is described by Al Gilespie in The Illusion of Progress as having the potential to destroy the functioning of most of the ecosystems on the planet following the nuclear winter. Despite the possibility that such weapons could bring the end of the human race, in terms of international law the question of whether they are illegal to possess, or use in self defence if necessary, has been avoided. That is, despite the cataclysmic risk they represent, they are not prohibited, illegal or even questioned; therefore, any decisions to reduce weapons have to be made by negotiation. Humanity had a window of opportunity after WWII before the cold war started. One year after the atomic bombs were used in Japan, the USA put forward the first attempt to control the future use of such weapons. Eisenhower said US (in good faith) would hand over their NW to the UN. The Barach Plan (at the first session of the UN Atomic Energy Commission): The complete transfer of all US weapons, atomic power facilities and atomic know-how to international control. The Soviets rejected the US proposal, calling it a transparent attempt to monopolize NW to the disadvantage of all other states. Up until the 1960s there were very few limitations or controls on NW. The first law was in 1963 with President Kennedy and the first law was the Partial (Atmospheric) Test Ban Treaty (which only the USSR and US abided by:) no more atmospheric testing of NW. It was the first step in building a system. In 1968, second law; The Non-Proliferation Treaty(NPT) which was reviewed in 1995 and 2000; tried to stop the proliferation of nuclear weapons to states other than the five superpowers. In 1972, towards the end of Vietnam war, the first Strategic Arms Limitation Talks (SALT) agreement was signed to reduce the number of weapons. The cornerpiece of SALT I was the third law; The Anti-Ballistic Missile Treaty, 1972; the idea of this treaty is that we dont build defences against NW. Mutually Assured Destruction (MAD) because both sides know that they can completely obliterate the other side (everyone, including the children). If both have the same fear, then both have incentive not to allow war but if one has a defence then you might wish to strike them before the defence is made. The theory has taunted those that dont like NW but the theory has worked for the last thirty years because the Russians were rational and so were the US cos neither side wants to die. 1979, preparing for SALT II; further reductions on NW. No sooner had the negotiations been pencilled in, the Soviets decided to invade Afganistan which led to Regan ripping up the SALT agreement and saying, no more NW agreements with the Russians. Regan set up an entirely new approach to arms control (and proliferation) which was eventually to become the START (Strategic Arms Reduction Talks). However, between 1980 and 86, Regan stoked up the arms race. It equated to 3.6 tons of TNT per person on the planet at that time
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(overkill?). Hes working on an irony; the irony is the man who takes us closest to N war is the one who brings peace. In 1986, > double NW of today. The first real break-through in nuclear arms controls in the period came with the 1987 Intermediate Range Nuclear Forces Treaty (INF) which eliminated an entire class of nuclear offensive arms and established an intrusive on-site inspection regime. Soon after came START I (1991): which limited US and Soviet strategic offensive forces and (7,600 NW each) and in addition built elaborate verification and on-site inspection regimes. START II (1993); banned the use of Multiple Independent Re-Entry Vehicles and mandated even deeper cuts in strategic forces. This treaty has not been ratified by Russia but has by the US, has been supplemented by a framework START III which has detailed verification and dismantling regimes. If all the START agreements come into fruition, the numbers of strategic warheads will be reduced to between 3000 and 3500 on each side. The focus on NW reductions have between the superpowers have meant that other confirmed nuclear powers (China, France, India, Pakistan and the UK) have not partaken in reduction talks. There are many undeclared but states that are suspected to have NW such as Israel, North Korea, Iran and Libya. Such concerns have lead to the 1995 NPT Review and Extension Conference and the Comprehensive Test Ban Treaty (CTBT); to ban testing not only in the atmosphere but everywhere. The CTBT was eventually agreed to by all five nuclear powers but in 1999, the US Senate refused to ratify the CTBT resulting in the treaty being killed. The NPT had a follow up conference to the 1995 meeting in 2000. The objective was to fulfil the goals of becoming universal, indefinite duration, and reduction of NW weapons globally. However the 2000 conference failed to achieve a timetable or specific commitments, although the five central nuclear powers renewed unequivocal commitment to the ultimate goals of a complete elimination of NW and a treaty of general and complete disarmament under strict and effective international controls. The situation was well summarized by the 1996 Canberra Commission: the possession of NW by an state is a constant stimulus to other states to acquire them. START III turns into new treaties (SORT), treaty between US and R, on Strategic Offensive Reductions (SORT). This treaty is to take the number of NW down to 2,200 each by the end of 2012. Still enough to destroy entire earth many times over. But things at this point start to unravel. There is no verification protocol on the SORT agreements and the treaty will terminate in 2012 so if you want to rebuild you can. We live in faith that US will do what they say and R also. Problem is, neither side can be trusted and neither trusts the other.

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In 2002, US withdrew from the ABM Treaty (Anti-Ballistic Missile) causing Russians to withdraw from the START I. This has caused the ABM Treaty to go, the Comprehensive Testing Ban to go and SORT has no verification. It would be great if it were only the US and Russians but now we are talking about unstable countries such as Pakistan and India and North Korea. Iran are struggling for N power. More unstable regimes such as Libya, Syria. In addition to the proliferation of new NW states; there is the collapse of ABM, the collapse of START II, the lack of verification on the Moscow Treaty and failure of CTBT which has resulted in the complete failure of N control. The failure of the 2005 NPT Review Conference (the last review conference) not even a conclusion could be agreed upon. Not even a statement could be agreed, couldnt get a consensus. Not even a conclusion after four weeks of discussions. The whole architecture of International law in trying to control NW is in disarray.

Since 1993 there have been 183 confirmed incidences of N smuggling and 18 of these involving highly enriched Uranium. Although the biggest capture was 18.5kg (needs 20 kg for NW) with all criminal activity you only see what you catch. The estimate is that this is only a 5-10% snapshot of the actual movement of smuggling going on at the momement. MAD used to work because humans are rational because the people involved were not extremist radicals and they valued their lives and didnt want to die or to kill their children. But the people wanting NW today are no longer rational. It is estimated that there is a 75% chance that within the next 10 years terrorists will get a NW. That is pretty scary. It is five minutes to midnight. The risk is the non-rational actor,and so what we need is an international architecture that can control the situation but we are no where even close to that. Al Gilespie because if you have got a non-rational actor in the middle east and they let off a small N device in Israel and Israel didnt know where that came from, Israel would flatten the middle east and wouldnt find out where it came from. The risk is the domino effect. Solution: Need to be able to show there is a better alternative and remove certain catalysts. Unless you can solve the problems in the middle east you will just create another generation of anger.

In overtly simplistic terms, disarmament is a strategy to secure peace. Conversely, arms control is a strategy to secure advantage. Proponents of arms control often do not think that peace is achievable because of deep conflicts between opposing nations. Nevertheless, arms
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controls are pursued because of the risks that are presented if such controls are not achieved. This however requires some form of international security guarantor. The Canberra Commission concluded that the only solution to the problem that could bring about the extinction of humanity is the elimination of NW and the assurance they will never be produced again. A very similar conclusion was reached in 1996 by the Generals for Peace and Disarmament who recognised that the continuing existence of NW constitutes a peril to the safety and survival of the people we are dedicated to protect. Unfortunately, with nuclear powers insist on retaining their nuclear forces because they believe no one and nothing else is strong enough to guarantee their security. Bertrand Russell (Albert) Einstein Declaration in 1955 recognised that a new and powerful supra-sovereign body must be created to control the possibility of an exchange of weapons of mass destruction. Such a body would thus guarantee against the primary threat to global security. Despite the merit (and possible legality) involved in this suggestion, the way that the global community is currently constructed suggests that any such powerful supra-sovereign body is highly unlikely. Verification process is essential to the achievement and maintenance of NW-free world but this is highly intrusive and would be both expensive and unpalatable to many states. We are five minutes to midnight and despite opportunities to reduce the NW even further, these steps have not been taken. Humanity is stuck by a system which is outdated, wasteful and directly threatens the very survival of the planet.

Question B: He toka tu moana This proverb refers to the rock that hold firm against the pounding waves of the sea. It equates to Maori leaders who are steadfast and true, never wavering in their concern for the people despite the pressure from others. Discuss the qualities required of a traditional Maori leader. You may refer to male and or female leadership roles. What are the qualities required for the modern Maori leader? Structures Whanau (family) Iwi (Tribe) Hapu (Subtribe) Processes
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Whanaungatanga (relationships) Tika/Noa (right/wrong) Whakapapa (genealogy = glue) Utu (reciprocity) Concepts Te Wairuatanga (spirituality) Tapu/Noa (sacred/not sacred) Mana (leadership with credibility/reputation) Mauri (life force) Hapu: dual meaning sub-tribe and pregnancy because birth and new life occurs and is nurtured by the people together. Iwi: dual meaning bones and tribe = ancestral links Whanua: dual meaning to give birth and family = symbolic of human interconnectedness Whanaungatanga: inter-relationships of the whole community one to another. Relationships are vital to Maori social organisation. Maori do not operate in isolation. They work together as a whole unit. Inter-relatedness by whakapapa. Tapu and Noa: both go hand in hand, one is not separate from the other. Used as civil or social control or prohibition. E.g. dont throw shells back into the sea. Utu: balance through protection and maintenance of Mauri Mana: can go up and down and is determined by good works

Different concepts: Western Concepts: Individual Rights-based Compartmentalised Te Ao Maori (Maori World View: Collective Obligation, duty and responsibility-based Holistic, Balance, complementary, interdependence of spiritual and physical spheres

Traditional Leadership Nga toka tu moana (rocks that stand steadfast at sea) refers to the leader who is able to Withstand all the pressures of leadership, ie the relentless pounding of the waves. That leader Stands as a beacon for others to follow and emulate. Mandate to lead came from:
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Whakapapa or genealogy, either through ones mother or father. Both were important and one could choose. Acceptance and confirmation by the iwi. Demonstrated by a willingness to listen and obey instructions. Humility Confirmation by other iwi of leadership. Shown by acknowledgement at hui and on marae. Charisma, indicated by being able to inspire and to provide a vision for the members of the iwi (Dame Te Arikinui Te Atairangikahu) Ability to provide manaakitanga (hospitality and care) to the iwi and to manuhiri. Such consideration gave mana (respect and prestige) to the iwi and loss of mana was avoided. Wisdom from extensive knowledge of whakapapa history and other specialist knowledge Kanohi i kitea (person seen) and turangawaewae (place to stand) refer to the leader being present rather than delegating authority. Being supportive of the iwi by personal involvement. Putting the iwi before ones own interest. The leader is required to have a place to stand, that is to which they can identify like land or marae. A person with these qualities possessed mana (authority) and tapu (spiritually sanctioned) Tuakana/teina refers to the older and younger siblings. The tuakana had priority to leadership but could be passed over if the older doesnt have ability.

Leadership Roles Ariki: (paramount chiefs) was usually the first born of the most senior family in society (authority derived from whakapapa) Rangaitira: who headed various hapu and collectively advise the ariki Kaumatua: who headed whanau Tohunga: who had specialist knowledge in particular fields, sometimes rangatira were tohunga too. Maori leader expected to have a wide range of talents, but expected to consult others when necessary. Ability to mediate. Effect of colonisation: First contact saw mana of chiefs being indirectly undermined by a lessening in the Maori belief in tapu, the all pervasive spiritual force that controlled Maori behaviour and underpinned the mana of chiefs Tapu could be breached and no harm resulted, Christianity used the word tapu to mean holy
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The erosion of tikanga law and the breakdown of Maori social order added to the lessening of chiefly authority. Economic depression through the loss of land took away the ability to manaaki the iwi Maori women leaders were not properly recognised. Some Maori leaders collaborated with the colonial leaders.

Modern Maori Leaders: In modern Maori society seniority by birth gives only a very limited right to the exercise of leadership. The mana ariki still exists in the respect given to someone who is of the appropriate descent. Mention is made in obituaries and other public notices of a man being a chief or rangatira of a tribe. But this respect operates at a formal ceremonial or ritual level and not ordinarily in the affairs of everyday life. In practical matters, involving major policy decisions on the use of resources or the resolution of political problems, modern Maori society has turned to those men who, for the most part, have been marked by superior education and have been successful in professional life doctors, lawyers or to men who have demonstrated their ability to handle problems in a broad, statesmanlike way. A special type of leadership in this connection is provided by priests and other people prominent in religious affairs. High birth, i.e., genealogical seniority, is an asset in such public affairs, but lack of it is no detriment. But leadership is exercised in many different contexts and at different levels. Naturally the professional man, churchman, and Government official tend to exercise most authority in the spheres most directly concerned with their own experience. At the level of village affairs leadership may be provided by people distinguished for their practicality, their strong views, their multiple local kin connections, and other characteristics. Here, skill in public speaking is very important. Some of the principles of traditional Maori society still operate, if only to a limited degree, in these gatherings. The convention that an elder should speak before a younger brother or cousin still operates generally, if only as an ideal. There is still the custom at some marae that no woman addresses a gathering. Maori leadership in traditional society owed much to women, but their role tended to be a private rather than a public one. Today they play a very important administrative role. A striking feature of the modern Maori situation is the important role played by younger people. This is partly because of the increasingly high level of education reached by many of them, and partly because of their conviction that they understand the problems and the workings of modern New Zealand society better than do many of their elders. Fired with this enthusiasm, many of them are keenly preoccupied with problems of Maori development and welfare.

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Question A (1a) Jack has a complaint about a lawyer, explain to him the process involved. New Zealand Law Society (NZLS) NZLS is internally administered body regulating all practising lawyers which functions: 1. gatekeeper to the profession: ensuring that applicant for admission is a fit and proper person of good character 2. Enforcer of discipline can suspend/disqualify lawyer from practising law if guilty of misconduct 3. Deals with complaints against practitioners: misconduct and incompetence based on transgressions of rules and client care standards 4. Makes and enforces rules of conduct for practioners: Ruls of Professional Conduct for Barristers and Soliciters 5. Fidelity guarantee fund, which is funded by levy imposed on solicitors, from which claim may be made as a last resort for dishonesty on part of solicitor (essentially fraud); incompetence or negligence not covered 6. Check compliance with accounting standards to ensure financial discipline and prevent financial irregularities 7. Assists in making proposals for law reform 8. Continuing legal education of practitioners Rules of Professional Conduct Lawyers and Conveyancers Act 2006 Rules are the result of consultation with members of the profession and others as Minister may direct: open rule making process Essentially a statement of the standards of good conduct required and expected of practitioners Ethical code. Does not have force of law Complaints 1. Heard by the Standards Committee of the Law Society 2. Can resolve disputes by negotiation, conciliation, or mediation; or laying and prosecuting charges before Disciplinary Tribunal 3. Standards Committee can make orders of both compensatory and punitive nature, eg. apology, payment of money as compensation, order that work be done free of charge 4. Disciplinary Tribunal hears misconduct cases 5. Whole process overseen by Legal Complaints Review Officer (akin to Ombudsman of profession) affected party unsatisfied with decision of Standards Committee may ask the LCRO review matter; can change decision of SC or refer matter to Tribunal. Misconduct S 7 of Lawyers and Conveyancers Act 2006: includes disgraceful or dishonourable conduct, wilful or reckless breach of rules, charging of grossly excessive costs
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Only misconduct if reasonably regarded by lawyers of good standing as disgraceful or dishonourable Poor service or incompetence do not necessarily equate misconduct; most instances of dishonesty will likely amount to misconduct Example: conviction for offences against Revenue Orders range from suspension from practice for a time (up to 3 years) to striking off. Fine up to $30,000.

Unsatisfactory conduct New term introduced in 2006 LCA as a ground for complaint and discipline Amounts to conduct less serious than misconduct but which falls short of standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.

Ethics Loyalty to the client Conflict of interest to be avoided both by actual and appearance of conflict Between lawyer and client Between on client and another client, eg both parties to same transaction (allowed if informed consent given) Confidence, including confidentiality A practitioner has a duty to hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship, and should not divulge such information Exceptions: consent by client or if in the public interest Representation cab rank rule A practitioner must be available to the public and must not, without a good cause, refuse to accept instructions for services within the practitioners fields of practice from any particular client or prospective client

Question A (1b) Jack is from overseas and he would like to know how the NZ Court System Works The New Zealand Judiciary Characteristics New Zealands judicial branch of govt comprises the Courts and the Judges who preside over them. As with all common law countries, the Court system is hierarchical, with some Courts having higher authority than others. (Diagram of hierarchy) Functions of a Court
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Disputes resolution Interpreting, applying and enforcing the law Clarifying and developing the law

Adversarial System Most New Zealand Courts operate on an adversarial basis: parties are opponents, each party represents their side of case, judge acts as referee, judge or jury determines a winner. Judge plays a passive role. There is always a winner and a loser. There are Courts in NZ however that are inquisitorial: judge plays active role by asking questions, participates in determining the facts. The aim is to find the truth and there is not necessarily a winner or a loser. More expensive system. Examples Waitangi Tribunal and Family Court Open Justice and access to the Courts It is a fundamental principle of the NZ legal system that Court proceedings are both accessible, and open to the public. The heart of the principle is that justice must not only be done but it must be seen to be done (J Burrows, 1990). This principle can be broken down into 3 factors: The Courts must remain open, thereby allowing access to the Court by the public, subject to exceptions (privacy, interests of justice etc). The family court proceedings remain closed. Litigants and criminal defendants/accused have the right to a public hearing (s 25 of the NZ Bill of Rights Act 1990). Transparency with regard to court records, evidence and judgments (law reports, judgments on line). In all three circumstances, there is a right to publish those proceedings. Open justice promotes judicial accountability; enhance the publics knowledge and understanding of Court procedure and law. The Courts should also be accessible to everyone and should not impose preferential treatment on certain groups. This principle is at times compromised, especially for lower socio-economic groups that are disadvantaged by the high financial cost of bringing an action in the Courts. The NZ justice system has attempted to address this through: 1. The establishment of Disputes Tribunal offering a cheaper, less time-consuming dispute resolution. 2. Legal Aid financial assistance for both civil and criminal matters 3. The Duty Solicitor scheme provides alleged criminal offenders with free legal counsel on their first appearance in Court. 4. Many lawyers also provide services voluntarily to organisations such as Citizens Advice Bureaux and within prisons

Supreme Court

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The Supreme Court is New Zealand's final court of appeal since 1 January 2004, brought into existence by through legislation (Supreme Court Act 2003). The highest court previously was the Privy Council (based in UK) which served as a final court of appeal for whole British empire; decisions made before 31 Dec 2003 can still be appealed to PC. According to the Supreme Court Act 2003, it was established to recognise New Zealand as an independent nation with its own history and traditions, and improve access to justice and enable important legal matters, including those relating to the Treaty of Waitangi, to be resolved with an understanding of New Zealand conditions, history, and traditions. As the court of final appeal, the Supreme Court has the role of maintaining overall coherence in the legal system. In general, the court will only hear appeals coming from the Court of Appeal. The Court may however in exceptional circumstances, give leave to appeal a decision of a lower court. Appeals to the Supreme Court can be heard only with the leave of the court. It must give leave to appeal only if it is satisfied that it is necessary in the interests of justice (s12 and s13 Supreme Court Act 2003). The court can sit only as a bench of five to hear substantive appeals. It is able to appoint retired judges of the Supreme Court or Court of Appeal (under the age of 75) where it is not possible to convene a court of five permanent members. Composition: Chief Justice (head of NZ judiciary) and 4 or 5 judges; sits as a bench of 5 with decision reached by majority vote. The judges of the Supreme Court continue to be judges of the High Court, which maintains the formal integration of the higher courts judicature. The Supreme Court Act does not expressly prevent the Supreme Courts judges sitting in the High Court. However, it is not appropriate, except in exceptional circumstances, for judges of the Supreme Court to sit in the lower court on a case which could end up before the Supreme Court.

Court of Appeal Jurisdiction outlined in Judicature Act 1908 (brought into being by Judicature Amendment Act 1957) Appellate jurisdiction; meaning that this is not the first time for the case to go to court (original jurisdiction in very limited circumstances; has never been exercised). Hears appeals from High Court and District Court Inherent jurisdiction (jurisdiction that is not granted by legislation, e.g. contempt of court power of court not made by statute but inherent law they decided themselves) in limited instances to control its own processes.

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Composition: President and 5 or 6 judges; minimum of 3 judges on a case; 5 if matter of public importance. Currently there is the P and 8 judges. Decision made by majority vote. Procedure: relatively informal with both the counsel and the Judges freely discussing and questioning the facts and law pertaining to a case. Appeals are heard by way of rehearing. Although the Court has the power to hear further factual evidence, it is only in very rare circumstances. Generally cases are heard by presentation of the record of the trial of the Court below. Following the hearing, the Judges may present a single judgment or individual judgements, including those in dissent from the majority opinion. The Court of Appeal has a critical role in developing legal principle and maintaining consistency in the application of the law. It supervises through appeal the judgments of the High Court and ensures consistent application of the law in the High Court. The judges of the Court of Appeal have seniority over all the judges of the High Court, except the Chief Justice and the other judges of the Supreme Court. The President of the Court of Appeal has seniority over the other Court of Appeal judges. Amongst themselves Court of Appeal judges have seniority according to the date of their appointment. Like all superior court judges (Supreme Court, Court of Appeal, High Court judges), Court of Appeal judges are also High Court judges. The Court of Appeal is located in Wellington but also sits regularly in Auckland and Christchurch. If the Chief Justice is unavailable to be the Administrator of the Government, the next most senior available Supreme Court Judge will be authorised to perform this function. High Court Jurisdiction outlined in Judicature Act 1908 Almost unlimited original jurisdiction and also appellate jurisdiction from district courts and some administrative tribunals Inherent jurisdiction in limited instances (power to determine contempt of court), essentially to control processes Called the Supreme Court up to 1980 Comprises: Chief Justice, judges (up to 55) associate judges (formerly called masters they dealt with mostly commercial matters. Procedure: very formal and traditional. In trials each party to the action has the opportunity of making an opening statement; evidence is presented (which may involve witnesses giving oral evidence); and at the close of evidence, the parties argue their respective positions. The Judge then sums up the arguments and legal issues and presents his/her judgement.
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Sentence is usually passed down on the accused at a later date allowing counsel for the accused. The prosecutor also prepares submissions on aggravating features of the offence and the appropriate sentencing tariff. The Court may also request pre-sentence reports (victim impact reports or psychiatric assessments). Throughout the process, there may be many issues that need to be determined such as bail applications; questions of admissibility of evidence; whether there is sufficient evidence to proceed to full trial. These applications are known as interlocutory applications, and are heard in chambers in the Judges rooms or Court, with only counsel and Judge present.

Appeals to the High Court from the district courts or other courts are generally conducted through a rehearing. That means the High Court judge can come to a different decision to the lower courts on the evidence presented and on the law. The High Court usually has its powers exercised by one judge. There is provision for the High Court to sit as a full court, which is defined as two or more judges sitting constituting the court. The full court is reserved for cases of particular significance. It is at the discretion of a judge to determine whether or not to constitute a full court. Certain offences, because of their seriousness, can be tried only in the High Court. They include murder and Class A drug offending. Most indictable offences are in a 'middle band' category which can be heard either in the High Court or in the district courts. A High Court judge determines, case by case, which court should hear the case. Because of the pressure of work in the High Court, most cases involving offending in this middle band category are sent for trial in a district court. The High Court's criminal jurisdiction includes the sentencing of offenders who have been committed to it for sentence by a district court.

District Court Jurisdiction outlined in District Courts Act 1947; specifically defined creatures of statute; no inherent jurisdiction; can only do what statute allows them to do. District courts since 1980; formerly called magistrates courts Original and appellant jurisdiction (appeals from Disputes Tribunal). Jurisdiction has increased in order to relieve High Courts workload. Over 100 district courts; Chief District Court Judge as head; various divisions (family, youth etc).

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The New Zealand District Courts have general jurisdiction for jury trials (where the maximum sentence is less than life imprisonment), all summary criminal matters and civil actions up to a value of $200,000. The Family and Youth Courts are divisions of the District Court. There are 133 District Court Judges. This includes the Principal Judges and Judges of the Environment Court. In addition to the Judges there are 52 Disputes Tribunal Referees and approximately 400 Justices of the Peace. They will often deal with minor offences instead of a judge. Procedure: Far less formal than the High Court but similar procedure is followed but with less legal argument as cases are decided largely on facts. Much of the workload tends to be administrative. Disputes Tribunal Formerly the small claims tribunal Regulated by the Disputes Tribunals Act 1988 Cheap, efficient, little formatilies. Inquisitorial. No lawyers (except in limited circumstances) Adjudicator known as referee; attempts mediation but if not successful will arbitrate. Jurisdiction for claims in contract and tort up to $7,500 ($12,000 if parties consent); general jurisdiction in respect of consumer protection law. Right of appeal to District Court but only limited circumstances where proceedings conducted in unfair manner and prejudiced proceedings.

Judiciary Judicial Independence Free from any interference, political or otherwise Non-political appointment process; appointments are not discussed in cabinet Tenure; no reduction in salary during tenure Judges cannot be removed on whim; requires address to parliament Judicial appointments Judges of Supreme Court, Court of Appeal, high Court, District Court appointed by GG on recommendation of Attorney-General Criticism that process not open and transparent Jury System Regulated by Juries Act 1981 Jury of 12 selected from electoral roll; decide factual issues; judge decides legal issues See 6.8 of McDowell and Webb for process outlined Used in criminal trials and civil trials (in limited circumstances) Criminal trials used where maximum penalty is 3 months imprisonment or more
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Civil trials option when amount claimed exceeds $3000

Everybody has the right to be judged by ones peers. In the Court system this equates to the use of juries. There are a number of people disqualified from sitting on juries, including practising lawyers, police officers, members of parliament, and judges. The use of lay people on juries is said to offer the trial process a fresh perspective on the proceedings, without hindrance from technical and detailed legal thinking. The jury system also represents an opportunity for members of society to participate actively in the administration of justice, and is, therefore, one of the closest links that the judicial system has with the wider community. The Registrar of the relevant Court selects the jury for a particular trial at the first instance by drawing a number of jurors by secret ballot. The lawyers who are involved in the case are also granted some power to manipulate the final selection, by challenging jurors as they are called forward to the jury box. Through this process 12 jurors are chosen. In the trial process the jury is confined to determining questions of fact. They are required to listen to the evidence presented in Court; discuss the case with no one, other than themselves; are discouraged from listening to media reports which may taint their opinion. The Judges role, in relation to the jury is to explain pertinent legal issues at the conclusion of the trial in a summing up. Disadvantages: Jury trials are often lengthy and costly Juries have been accused of being unreliable fact-finding body, particularly where the evidence or the legalities involved are detailed and complex. In civil cases where juries may be called upon to define the amount of damages payable to plaintiff, their decisions may be unrealistic and inappropriate. Lack of experience in the justice system may mean juries are unable to evaluate evidence impartially, and instead bring to their verdicts individual biases and prejudices. It is argued that they are particularly susceptible to making decisions based on subjective, emotional factors. The jury system is firmly entrenched in the administration of justice that is future role is absolutely assured.

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Section 7 NZBORA 7. Attorney-General to report to Parliament where Bill appears to be inconsistent with Bill of Rights at the introduction of the Bill into the House.
Chris Finlayson is the current Attorney-General of New Zealand Role of the Attorney General? - Supervising the States administration of the law - Providing legal advice to the government The Attorney General is recognised as being the principle law officer in New Zealand. The Attorney General is expected to act in a non-political fashion guided only by the service to fundamental principles of the Rule of Law

Purposes of the s 7 reporting duty Butler and Butler: two purposes 1. It makes NZBORA considerations a significant focus in the governments formulation of legislative policy proposals and in the drafting of legislation 2. ...where the promoter of a Bill proceeds with a version that is inconsistent with BORA, Parliament is informed of that fact and is able to squarely address issues of BORA-inconsistency... Politicians are reluctant to trigger this report so they will try to ensure the drafting of the Bill is done in a way so that a report is not required. Processes behind a s 7 report Ministry of Justice provides advice on consistency in relation to all Bills except Bills emanating from the Ministry of Justice Crown Law Office provides advice on Ministry of Justice Bills
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Section 7 reports are the ultimate responsibility of the A-G Since 2003, all advice to the A-G publicly available on the Ministry of Justice website The A-G decides whether the Bill is inconsistent with BORA. If he/she finds it is, then he/she determines if it is justified under s5 of BORA by: 1. Important and Significant Objective 2. Rational and Proportionate Connection Where a Bill is found to be prima facie inconsistent with a particular right or freedom, it may nevertheless be consistent with the Bill or Rights Act if the inconsistency is considered to be a reasonable limit that is justifiable under s 5 of BORA. A limit on a right can be justified in terms of s5 were it meets a significant and important objective and where there is a rational and proportionate connection between the limitation on the right and the objective. An example of a s 7 report The Wanganui District council Prohibition of Gang Insignia Bill. Clause 3 of the Bill: The purpose of this Act is to prohibit the wearing or display of gang insignia in specified places in the District Clause 6 of the Bill: (1) No person may wear or display gang insignia at any time in a specified place in the District (2) Every person who contravenes subsection (1) commits an offence and is liable ....to a fine not exceeding $5,000 $2,000 Section 14 of the NZBORA Everyone has the right to freedom of expression including the freedom to seek, receive and impart information and opinions of any kind in any form The A-G found clause 6 of the Bill was inconsistent with s14 of BORA (freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form). The A-G therefore brings this to the attention of the House of Representatives according to s7 of BORA and Standing Order 266 of the Standing Orders of the House. The A-G decided it couldnt be justified according s 5 because it didnt pass the test: 1. Important and Significant Objective
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He agreed that this first part of the test could be justified because the prohibition of gang insignia would reduce the likelihood of gang confrontations and intimidation of members of the public 2. Rational and Proportionate Connection He agreed with the rational but could not agree with the proportionality saying clause 6 is too broad and would limit a range of expression including political and cultural and even tattoos. He said there are already laws in place to cover the behaviour that prohibition of gang insignia is designed to address and the fine was too high ($2000) He concluded that the Bill appears to be inconsistent with s 14 of BORA and the inconsistency could not be justified under s5.

Deficiencies in s 7 According to Butler and Butler 1. The obligation only arises in relation to the introduction copy of a Bill There is no obligation for the A-G to report BORA inconsistencies that appear in amendments to the introductory copy of a Bill. Example; home invasion amendments to the Crimes Act 1961 and the Criminal Justice Act 1985. Particular amendments were introduced by way of Supplementary Order Paper (SOP) by a non-government MP and formed part of a deal agreed to by the govt in order to be able to pass its home invasion amendments. No report was undertaken on these amendments and they slipped onto the statute book without the benefit of a formal report. 2. There is no mechanism through which the s 7 reporting information can be channelled, such as a select committee dedicated to the BORA There is no productive use of the information gleaned through making a report 3. Borderline cases of inconsistency do not trigger a s7 report Because the A-G is only obliged to report when he/she is of the view that the provision IS inconsistent with BORA and not MAY BE inconsistent, Parliamentarians are not advised of a proposed measure which is a matter of fine judgment and are kept in the dark on many issues.
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4. No transparency. Reports by the A-G that are found consistent with BORA are not released to the public and Parliament are not advised of those Bills. Parliamentary sovereignty also means that even if a Bill is found inconsistent, there is nothing to stop Parliament from passing the Bill. Suggestions for reform 1. Establish a dedicated parliamentary select committee to review BORAconsistency for every Bill 2. Expand the vetting duty beyond introductory copy of Bills to include any amendments to the Bill amend the Standing Orders so the A-G can report BORA inconsistencies after the introduction of the Bill. 3. Release of all vetting advice received by the Attorney-General to the public and parliamentarians. At the moment this is not considered Official Information in terms of s 2 (1) of the Official Information Act 1982. Since 2003, A-G opinions are publicly accessible through the Min of Justice website but there needs to be more transparency as not all information is available on the website (only those Bills that are found inconsistent are released not those that are borderline but found consistent). Tessa Bromwich Of most concern is parliaments frequent failure to provide justification for the breaches of human rights identified by the Attorney General. Solutions Select committees need to increase the consistency in which they address human rights issues, regardless of how closely breaches are connected to bills policy objectives. A culture of justification needs to be developed under which the members in charge of bills subject to s7 reports are expected to articulate fully why they consider the breach(es) identified by the AG is justified

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