Law 121 Part Two, Government Branches------SECOND PART

KennyYu

COPYRIGHT INFRINGEMENT IS ILLEGAL



Public Interest in Private Bodies: FINNIGAN v NZRFU
Background
Maori players always excluded from All Black tours to South Africa(1928, 1949)
Apartheid system in South Africa from 1948
1960 “No Maoris No Tour” campaign but NZRFU continued policy of excluding Maori
United Nations sanctions against SA
1973 Labour Government called off tour SA tour to NZ
1977 Commonwealth Gleneagles agreement: Govt’s to discourage sporting contacts with SA
1981 SA Tour in NZ
1981 NZRFU invited SA to tour NZ
PM Muldoon ‘discouraged’ but refused to intervene, election bonus
Country & families divided
Legal challenges failed
Mass disobedience, riots , arrests: 300,000 protested
1985 proposed NZ tour to SA
Invitation for All Blacks to tour SA
1985 Timeline
17 April NZRFU accepted invitation to SA
20 May case lodged in High Court
10 June Cassey J --- motion to strike out. Plaintiffs had no standing & NZRFU has power to decide
21 June Court of Appeal: NZRFU has power to decide, but Plaintiffs had standing to challenge the lawfulness of decision.
8 July High Court hearing of case began
11 July Plaintiffs sought interim injunction to stop tour
13 July Casey J granted injunction
15 July NZRFU announced tour postponed
17 July All Blacks due to leave on tour
Legal Standing
Only people with special interest affected by decision can challenge NZFRU decision
Finnigan & Recorden (lawyers) active members of Auckland rugby clubs
Not “mere busybodies” or mischief makers
No implied contract between Plaintiffs and NZRFU
But Plaintiffs linked to Union by chain of contracts
Genuine interest in whether NZRGU acted against objects of ‘promoting, fostering, developing game of rugby’.
Court of Appeal Considers:
Plaintiffs may be the only people who can argue that NZFRU acted unconstitutionally, aside from action of affiliated union or general meeting.
NZRFU technically a private sports body
But decisions have analogies with public law
Take ‘judicial notice’ that significant number of NZers for & against tour
Affects international standing of NZ
In 1981 the courts applied law impartially
Must do so now in assessing NZRFU decision
High Court Decisions
Plaintiffs had strong prime facie case that tour not promote NZFRU’s objects
Arguable that NZFRU shut eyes to impact
Potent factor was public & national interest
Clear govt & Parl. Message
Risk of violence & bloodshed
So must ensure NZRFU decision arrived at legally
Public law analogy
Higher obligation on NZRGU
Decision important to rugby & to NZ
Cooke suggests special area where boundary between public&private is not realistic
NZRFU must show more than good faith
Must show duty of care appropriate to statutory body that exercises powers which affect legal rights or legitimate public expectations.
Must be reasonably & honestly considering interests of NZ rugby





The Balance of Powers & the Enactment of Law
Constitutional Act :
•        Sets out some basic institutions of NZ legal system
•        Removes residual power of English Parliament to legislate for NZ
•        The impetus for the Act
Branches of Government:
•        Different parts have different roles
•        Sovereign / Governor General
•        Executive
•        Legislature(Parliament)
•        Judiciary ( Courts)
Separation of powers:
        Begins with 1688 Glorious Revolution
        Basic idea: concentration of power in single institution is dangerous
        An ideal, associated with Montesquieu and Locke
        NZ: not complete separation of powers
        Compare other systems, e.g. US
Legislative Process
        Refer diagram
        Where do ideas for new law come from?
        Government of the day
        Coalition agreements
        Other government MPs
        Committees
        Other relevant governmental bodies (government departments; Law Commission; Royal Commissions
        Individuals
Pre-introduction
        Development of policy
        Consultation
        Vetting for compliance with Bill of Rights (1990)
        Get on legislative programme (decided by Cabinet Legislation Committee)
        Drafting: usually Parliament Counsel Office
        Checking: Legislation Advisory Committee
        Decision whether to introduce bill
Introduction
        Rules governing procedure of Parliament = Standing Orders
        Well established procedures (see p 71)
        First reading
        Select committee
        Second reading
        Committee of whole house
        Third reading
        Vote
        Assent





The Executive vs the Courts: Fitzgerald vs Muldoon
Parliamentary Sovereignty/Supremacy:
It means that the legal power of Parliament is unlimited. There is no higher law-making authority.
Whatever the theoretical extent of Parliament’s power, in fact it is restrained from abusing that power by the weight of public opinion, particularly as felt by politicians through elections, as well as by international obligations and constitutional conventions
Parliamentary supremacy was effectively wielded by the Cabinet----The Executive.
The Executive branch of government must act in accordance with the law. In a fundamental manner, the judicial branch of our government does control actions of the Executive.

Under our constitutional arrangements, the general understanding is that a court cannot strike dow an enacted rule, however bad. There must be rules, but the quality and content of the rules, at least of those made by the Legislature, are determined by the political process.

Unlike United States and Canada which is federal system, NZ would require the court, to act as umpire between a federal government on the one hand and state governments on the other. The basic legal rule of our constitution is that Parliament is supreme. When it passes legislation, that is the law. There is no higher law. For these reasons the courts in our system of government do not often have the opportunity of deciding cases that involve the fundamental relationships between the elements of our government.
Cases: in 1976, Fitzgerald vs Muldoon
It demonstrated that the courts can be bold in checking the excesses of executive power.
In the broadest sense, the case of Fitzgerald vs Muldoon demonstrates, perhaps more than any case ever decided in NZ, the division of governmental powers between the three great components of the constitution: Parliament, the Executive, and the Judiciary. Each has its role to play. To preserve balance in the system, the activities of each in relation to the others must remain within proper boundaries. In the final analysis, the courts will say what those boundaries are.

The Bill of Rights 1688: ‘that the pretended power of suspending of laws or the execution of laws by regal authority without consent of Parliament is illegal’.

Problem to think about: Should the executive have the power to suspend law?

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