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PUBLIC LAW 211, Checklist, Key Cases, Emergency Powers
Is there express…
PUBLIC LAW 211
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Legislature
Key cases
- Fitzgerald v Muldoon: exec cannot remake/suspend law.
- Taylor v NZ Poultry Board: don’t read in powers to limit rights; principle of legality.
- Vauxhall/Ellen St Estates: later statute prevails where irreconcilable.
- R v Poumako / R v Pora / D v Police: courts narrow retrospective or rights‑curtailing provisions.
- British Railways v Pickin: courts won’t probe Parliament’s internal procedure.
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Checklist
- Is the power delegated? If yes, was it used for its purpose or ultra vires?
- Do two statutes conflict? Try to read both together; if irreconcilable, later Act prevails (implied repeal) unless earlier Act protects fundamental rights (court may read narrowly).
- Any manner‑and‑form (entrenchment) issue? Check for supermajority requirements.
- Principle of legality: rights not displaced by general/ambiguous words — need irresistible clearness to limit rights.
Key Cases
- De Keyer's (1920) / Burmah Oil Co Ltd v Lord Advocate
- statute overrides prerogative where inconsistencies lay
- Miller (No.1 (2017) & 2 (2019))
- preogative subject to legal limits (justiciability)
- Entick v Carrington [1765] & Choudry v AG [1999]
- executive agents need legal authority
- Adegbenro v Akintola [1963]
- GG reserve power to dismiss PM via letter of no confidence
- Whitlam
- GG reserve power to dismiss PM via minority opinion
- Bennett/Gray episode Tasmania (1989)
- GG reserve power to dismiss PM via challenging political situation
- Byng (1926)
- GG reserve power to dismiss PM via forceful dissolution of Parliament for an election
Emergency Powers
- Is there express primary legislation empowering the emergency action? If yes, test the socpe and limits
- If relying on prerogative, check whether statute alrwady regulates the area (De Keyser) or whether the prerogative is justiciable (Miller)
- If invoking necessity require extreme facts and explain narrow scope (Fiji v Prasad)
- Always test NZBORA implications (s5 justification and pricniple of legality)
Prerogative Powers
- Identify claimed prerogative and historical basis
- Is there statute on point? If yes, apply De Keyser - the statute wins
- If no statute, consider justiciability (does the issue concern pure political decision beyond the courts?
- If justiciable, apply usual JR grounds (legality, reasonableness, fairness)
Parliament is sovereign; courts respect comity but police limits on delegated power and protect fundamental rights by interpretation.
Set out doctrine (delegation, implied repeal, legality), apply statutory wording, argue for narrow reading where rights affected, flag political remedies where appropriate.
Mandatory relevant considerations (Peko‑Wallsend):
a) not every relevant factor is mandatory.
b) mandatory if express or obviously relevant to the subject/test
c) failure to consider mandatory factors = statutory error
d) materiality test, omission must have realistic prospect of affecting the outcome
Procedural fairness
- Right to hearing - disclose prejudicial reports, providing an opportunity to respond (Ridge v Baldwin & Daganayasi)
- Legal representation - required in some contexts if complexity or serious consequences
- Bias - Saxmere test - would a fair-minded informed observer reasonably apprehend a lack of impartiality. McGrath refines for non-judicial decision makers
Irrationality / Unreasonableness
- Wednesbury - Very high threshold
- Wolf - sliding scale / heightened scrutiny depending on the nature of the decision
Improper purpose
Unison Networks v Commerce Commission [2007]
- discretion must serve a statutory prupose
Remedies
- Certiorari (quash decisions)
- Madamus (remake the decision)
- Prohibition (restrict a person from making the decision)
- Injuction (prevent a future Act
- Declarations - (court state for the record about the poor decision making)
- Cannot give money
- Court does not have to grant any remedy Skyline Enterprises v Queenstown Lakes DC
Practical test Hansen sequencing (flexible)
- s4 Ascertain Parliament's intended meaning
- Is that meaning apparently inconsistent with a right?
- If yes, is the inconsistency justified under s5?
3.1. (Oakes proportionality test)
1) Is the relevant objective of sufficient importance to warrant overriding the right?
2) Is the limiting measure rationally connected to its purpose?
3) Does the limiting measure impair the right no more than reasonably necessary?
4) Is the limit proportional to the importance of the objective?
- If unjustified, prefer a s6 interpretation if it is reasonably open
- if not s4 requires application of Parliaments intended meaning
When s5 is less central
- Absolute rights/non-derogable rights means that s5 is not applicable - Fitzgerald v R [2021]
- Where reasonableness is built into the statute or there is no alternative meaning the courts then go straight to s6 - Cropp v Judicial Committee [2008] & Morse v Police [2012]
- Hansen is infleuntial, but not rigid Elias in Wadsworth v Auckland Council [2013] and Butler v Butler commentary
Key Cases
- R v Hansen [2007] - Sequencing for s4,s5,s6
- Moonen v Film and Literature Board of review [2000] - interpretive approach (first varient of Hansen)
- Fitzgerald v R [2021] - protect absolute rights - read s6 to avoid a breach
- X and Y v Chief Exec of Oranga Tamariki [2022]- remedies including damages and vindication
- Work to identify the Human right / section, run the Hansen test but explain the limits, caveats and propose appropriate remedies with justification (vindication, deterrance, proportionality)
- Is the treaty incorporated into statute? If yes, then it has legal force in that sole statutory context - Te Heuheu Tukino v Aotea District Māori Land Board [1941]
- Even if not, can Treaty principles be used as an interpretive aid? - Huakina Development Trust v Waitakto Valley Authority [1987] & Barton-Prescott v Director General of social welfare [1997]
- For customary title (coastal/foreshore) apply Ngati Apa --> MACA tests including Tikanga conformity, exclusive use/occupation since 1840, no substantial interruption and a high evidentiary threshold
- Ngati Apa common law recognition that customary title can survive
- MACA statutory procedure with strict tests of tikanga conformity, continuity of occupation since 1840 etc
- For crown obligations and remedies, consider NZ Maori council, state owned enterprises act and supreme court recogniton
- Maori customary law displaces English prerogative unless explicitly extinguished by statute
Key Cases
- R v Symonds (1874) - recognition of native title - important for supporting Maori property interests
- Bishop of Wellington v Wi Parata [1877] - treaty is a simple nullity - period of judicial marginalisation of Te Tiriti
- Huakina Development Trust v Waikato Valley Authority [1987] - Treaty may be used to interpret statutes even if not expressly mentioned
- Barton‑Prescott v D‑G of Social Welfare [1997] - consistent approach, need to interpret the treaty where relevant
- Te Weehi recognition of customary fishing rights via continuity of practise (conversion doctrine)
- Ngati Apa [2003] - foreshore and seabed customary title not extinguished by general statute pathways through Maori land court to recognition. Show continuity of practice on the lands (doctrine of continuity) to use the area as customary property
- Takamore v Clarke - Tikanga is a relevant and weighty consideration in private disputes - courts must balance tikanga and common law interests
- MACA 2011 - examples of statutory forms of recognition and the high evidentiary thresholds for CMT
- Start with the status of Te Tiriti within the specific statute. If the statute mentions Treaty, apply statutory interpretive obligations
- if customary rights claim, set out MACA, Ngati apa tests and assess the evidentiary hurdles
- Consider remedies through Waitangi Tribunal settlements, statutory recogntion or judicially enforceable fiduciary obligations
Pathways for customary rights and settlements
- Ngati Apa - claim can be brought to HC under common law doctrine of customary title. Must prove continuity of use
Remedy = judicial declaration of customary title or rights. Practical limits = cost, evidential burden
- Maori Land court - seek a declatory order in the Maori land court converting customary interests into statutory form of title where MLC has jusistiction - Ngati Apa confirms MLC role
This process is evidentiary and fact heavy outcomes inlcude recognition of customary land or related rights.
- MACA - for CMT must show exclusive use and occupation from 1840 to present without substantial interuption (Te whakatohea test applied by courts)
For PCR lower threshold than CMT, protection of particular tikanga practises, the scope is decided case-by-case.
- Contextual differences such as kawanatanga and Tino Rangatiratanga
- Using the treaty as an interpretive aid vs statutory incorporation
- Is there explicit statutory authority? If yes, assess the scope/purpose/limits
- If not, is the action reasonably incidental to statute?
- Does statute "cover the field"
- Is there a prerogative power applicable? - De Keyser: statute prevails
- Does action conflict with statute/common law/NZBORA
Executive acts under statute, prerogative or (contentious) third source, subject to Judicial review and political accountabilit. GG has reserve powers constrained by the convetion.
Start with the five step checklist apply De Keyser's reasoning if prerogative is invoked, stress legality and proportionality for emergency powers, note that conventions are a background, but not enforceable