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"ON BEING A LAWYER"
"Law should be common sense"...it should reflect the society it governs
What do we need rules?
● To set standards
● To keep the peace and maintain order
● To keep people safe
● To maintain equality - we live under the rule of law not the rule of man, therefore, everyone is equal under the law
(in an ideal world)
What is Law?
● ...is centrally concerned with social order
● ...we need rules to govern how we live
● ...rules backed by the coercive power of the State
○ The more complex society became, the more rules we needed
✩ Parliamentary Supremacy
Parliament is the highest supremacy and law-making institution in New Zealand (not like in the USA where the
Constitution can rise above). New Zealand must do law as set by Parliament, the courts cannot strike Parliament down.
New Zealand is a "statutory universe" - it is the most pervasive type of law.
> Legislation is passed by Parliament, MPs vote to pass the Acts
> This can result in tension between judges and Parliament
● Make, repeal and amend laws
○ For a Bill to become and Act, the majority of MPs (51%) must vote in favour of it WHAT DO WE MEAN BY THE LAW?
"The law cannot make a man love me, but it can stop him from lynching me" Martin Luther King Jr.
Law techniques as a means of social control:
1. Penal Technique a. Any statute that creates an offence or a crime is an example of the penal technique b. The State enforces it (prosecutes)
i. E.g. Crimes Act (theft, arson, murder etc.)
2. Grievance-Remedial Technique a. This technique involves one individual/institution suing another individual/institution b. The State is not involved, but the penal technique may also be available i.
e.g. in a car crash the State would prosecute for careless driving, but the owner of the other car can also sue for damages
3. Private Arranging Technique a. The law sets out framework for private transactions so that they are done in a way that makes them valid under that law i.
E.g. Marriages Act; Births, Deaths & Marriages Act; making a will etc.
4. Constitutive Technique a. This allows for the smooth operation of commerce b. It recognises a group of people as a singular legal entity/person i.
5. Administrative Regulatory Technique a. This technique promotes things that are beneficial to society, but need to be regulated i.
E.g. food ingredients, practice of medicine & law, medicine and the way it is marketed, building codes etc.
6. Fiscal Techniques a. The law that imposes a complicated set of societal controls over what we can retain of what we earn i.
Tax law/Fiscal legislation ii.
E.g. ACC levies, EQ levies etc.
7. Social Benefit Conferment a. This is how the Government spends much of the money it draws from the fiscal technique b. Tax money is paid out for social benefit i.
E.g. the "dole", ACC, student loans/allowance
NZ HIERARCHY OF COURTS
"New Zealanders can't afford justice"
(Privy Council - UK)
Court of Appeal
Also: Tribunals e.g. Waitangi Tribunal, Disputes Tribunal
● A judge does not preside
● Lay people don't need a lawyer
● Deals with lower level issues
● Cheaper (cases don't usually go to court unless worth $100,000+)Note: if you win at High/District court you only get a contribution to your legal fees, not a full amount STATUTORY INTERPRETATION
The Law is not black and white. The meaning of words within legislation can change depending on the context that they are used in (context dictates what words mean). There is no such thing as a right answer, we have to come up with a solution. You can create your argument out of "absolutely anything". There are 2 ways of approaching this when interpreting a statute:
1. The historical approach - where words are interpreted based on the meaning they had at the time they were written
2. The ambulatory approach - where words are interpreted based on what meanings can be attributed to them in a modern context
A word may mean several things depending on who it is directed at. E.g. R v Bentley - "Let him have it Chris"
→ words become crucial
The Interpretation Act
Section 5 (Crucial) - Ascertaining the meaning of Legislation
● (1) words → (2) purpose of Parliament
Section 6 - Enactments apply to circumstances as they arise
● This means taking words in an ambulatory/modern context
○ "An Act is always speaking" which means that law should always serve the current society
● Legislation cannot be repealed all the time as it is a time-consuming process and expensive, so legislation needs to have a good shelf-life
● R v Murphy held that the law shall not be frozen in time. Legislation must consider social context and must be interpreted in accordance with the world as it is today, not as it was.
● "Adapting the law to take into account changed conditions is consistent with the Courts role in development of the common law and with the principle of statutory interpretation which gives statutes a 'dynamic' or ambulatory interpretation and treats them as applying to circumstances as they arise" - R v Chilton THE STRUCTURE OF A STATUTE
Change in legislation
There is a difference in the layout and terminology between legislation written before and after 1999. It was changed to make it easier for lay people to read - accessibility.
Pre Interpretation Act 1999
Since the Interpretation Act 1999
Analysis/Contents - This appears
The analysis was not considered part directly after the statute name and is a of the law the statute created.
collection of all the marginal notes (the bold words at the beginning of each section). It acts as a table of contents.
The analysis has since become contents, although its function is unchanged. Under s 5(2) and (3), the analysis/contents is available to help determine meaning (whether the statute was enacted before or after 1
The long title ("An Act to provide") This appears in bold at the beginning,
immediately before the first section,
and sets out the legislative motive for passing the Act.
Again, there is no reference to the long title in the Interpretation Act 1999 and the wheel is turning full circle. The long title is being abandoned in favour of either a preamble which appears immediately before the enacting words
"The Parliament of New Zealand enacts as follows") or a specific
'purpose' section, devoted to making the legislative intent explicit.
Statutes used to begin with a lengthy
"Preamble", setting out the background which preceded the legislation and what Parliament intended to do in the provisions. In the latter half of the 20th century these became relatively rare, used only in legislation with constitutional or social significance. The function of the preamble was largely given over to the long title. Interestingly, there is no reference to the long title in the Acts
Interpretation Act 1924 (the precursor to the 1999 Act). Nevertheless, it is frequently used by the Courts as a guide to the intent of Parliament,
though it cannot override unambiguous provisions.
The date of assent - This is the final step of the legislative process - the assent by the Governor-General
This was the italicised date immediately below the long title.
A Bill became "law" (gained status of a statue) when the Governor-General assented to it (s 16 Constitution Act 1986). In terms of when a statute came into force (when its provisions began to have legal effect), if the statute did not nominate a particular date in section 1, then the assent date was also the date of commencement.
The date of assent is now immediately below the title to the Act (since long titles are no longer used).
Since the Interpretation Act 1999, the assent date continues to serve the same function of denoting the commencement of legislation where no specific date is stated. Statutes assented to after 1 November 1999 come into force the day after the date of assent. (s8(2)).
(Bills now include a distinct clause stating when the bill comes into force.
So there is less reliance on s 8(2)).
The title (name) of the Act
The first section contained a "short title" for referring to ("citing") the Act. If a date was prescribed from which the
Act is to take effect, this would also be included here.
Section 1 now contains a "title" (no longer called the "short title" because there is no "long title"). The commencement date will appear separately (usually in s 2).
The interpretation or definition section
- This is the internal dictionary for the statute
The internal dictionary almost always appeared in section 2.
The interpretation section will certainly appear early in the statute, most often after the title section or commencement section.
The marginal note - These are the words in bold print at the beginning of
Marginal notes were inserted by the drafters and could be altered up to the
Marginal notes are available to help ascertain legislative meaning (whether each section. Originally, they were placed in the margin as a visual guide to the section content. Sometimes they are called "section headings"
although that is not their proper name.
point of Royal Assent. They were therefore considered as unreliable to the effect of a section and were not to be used in interpreting its words.
However, in practice marginal notes were inevitably consulted at least as an indication of the section subject matter.
pass before or after November 1 1999).
Headings - These may appear between groups of sections which divide the Act into various Parts (if it is lengthy) or divisions.
Division into parts, divisions and subdivisions was permitted but these headings were not to affect the Act's interpretation.
Anything which appears on the face of the statute is available to help determine its meaning (s 5(2) and (3)).
However in this does not mean headings can be used to support a meaning "in contradiction" of the text and purpose of the statute.
5. Ascertaining meaning of legislation…
(2) The matters that may be considered in ascertaining the meaning of an enactment include the indications provided in the enactment.
(3) Examples of those indications are preambles,
the analysis, a table of contents, headings to Parts and sections, marginal notes, diagrams, graphics,
examples and explanatory material, and the organisation and format of the enactment.
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