2. Read the attached extract from the cabinet office manual. I will hand it out in class. The full manual is here:
http://cabinetmanual.cabinetoffice.govt.nz/
3. See if you can locate a diagram showing the NZ constitution. See if you can find one for the US constitution.
4. Read the Cabinet office Manual on lawmaking in NZ. Read this description of US lawmaking:
http://idiotsguides.com/static/quickguides/politicalsciencelaw/government_101_how_laws_are_created.html
We will be comparing the degree of complexity and its implications. In particular, in each country:
How do draft laws originate?
What is the system of committees which deal with bills? See if you can find out a bit about standing committees in the US
What procedures are there for public hearings on bills?
What is the system of voting on bills?
In the US - what is reconciliation? Has there ever been a NZ equivalent?
In the US - what is the filibuster? Is there a NZ equivalent?
6. Read the Canterbury Earthquake Response and Recovery Act 2010 (its short). Would it allow 1) use of prison labour for rebuilding Christchurch, 2) use of gravel from a sensitive waterway anywhere in NZ to rebuild Christchurch. 3) What ability is there to legally challenge these actions? 4) Do you think it is a legally appropriate response to the Christchurch situation or disproportionate? (in particular note the date it was passed) WHAT DOES IT TELL US ABOUT WHAT LAW MIGHT BE NEEDED IN FUTURE?
Constitutional structures continued
Had a look at the Canterbury Earthquake Recovery Act – noting the extraordinarily broad powers, with no right to take any matters to court to test the recommendations of ministers.
Noted the references in that legislation to the Interpretation Act 1999 and the Bill of Rights Act 1986 – and their influence on how laws are interpreted.
Also noted the reference to the Constitution Act 1986 – which is an ordinary law passed by simple majority of the Parliament – and for the most part simply restates what the constitutional arrangements are.
In terms of making law, the NZ system sees most law proposed through the government’s law making programme – see cabinet manual for details
Private member bills play a small part
Public right to make submissions and be heard on most bills
Passage of bills is simple through a single legislative house, with a simple majority in favour only required.
Compare this to the US system:
- bills are initiated mostly by private individuals
- a system of committees governs those that get floor of the House and Senate
- hearings are for invited submitters to give sides of the argument ie not a public submitter process
- House and Senate have to pass a common version (reconciliation process)
- Overuse of filibuster threat means that currently most laws require 60% to pass – a very difficult task
- President has limited veto powers
- http://bensguide.gpo.gov/6-8/lawmaking/index.html
- http://en.wikipedia.org/wiki/Filibuster
Supreme Court has the ability to strike down laws, but seems to act very politically.
(see for example the upcoming argument over Obamacare and whether it is constitutional. And Balkinization is a good site to follow Supreme Court: http://balkin.blogspot.co.nz/)
Overall, we see that the US system is more open to private lawmaking initiatives, but has detailed and complex arrangements for passage of legislation. Compare this to the NZ system which is (scarily?) free of checks and balances by comparison. Legislation like the RMA is relatively easily progressed in NZ. Would not really be possible in US (and with the added issue of states rights).
Interesting question – but what about the reach and power of the US Clean Air Act?
Note also constitutional arrangements in Australia: http://www.australiatravelsearch.com.au/trc/law.html
Looked at the court structure. Here is a diagram: http://www.courtsofnz.govt.nz/about/system/structure/diagram
Discussed the difference between these concepts – appeals on matters of law and fact, appeals on matters of law only, judicial review.
Different environmental statutes provide for different approaches. RMA allows for appeals to Environment Court from council decisions on matters of law and of fact. Fisheries legislation does not contain appeal rights, but judicial review actions can be taken to see if a minister applied the law correctly. We will be returning to these.
The place of the Treaty of Waitangi – where statutes mention it directly (eg State Owned Enterprises Act 1986 s9) it has to be given effect to. An example of how powerful that can be is the litigation surrounding the SOE Act 1986. If it is not mentioned, then several court judgments have indicated that it will be relevant to the interpretation of any statute dealing with things important to Maori ie where there is ambiguity, an interpretation will be preferred that gives effect to the Treaty rather than one that does not.
Statutory interpretation – started on it.
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