Topic 1: Legal Status of A Written Constitution

Concerning relevant commentary and case law, explain the legal/constitutional implications and comparative advantages and disadvantages for the proposed constitution of:

i. Entrenchment vs. non-entrenchment

ii. Higher law status vs. ordinary legislation

Answer 1: Legal Status of A Written Constitution

Issue

Whether the constitution could be relied on by the courts to invalidate other legislation that is inconsistent with the constitution?

Rule

  • Entrenchment
  • Non-entrenchment
  • Higher law status
  • Ordinary legislation
  • Article 4: Rule of law

Brief Facts

The constitution can be incorporated into different ways in New Zealand's legal system as per Mr. Morrigan. Ordinary legislation would be one option for a comprehensive constitution. To protect new law from change is by a future government for coalition holding a bare majority parliament by using legislative entrenchment device. Related to this the question that arises is whether the constitution could be relied on by the court to invalidate other legislation which is inconsistent with the constitution.

Application

Entrenchment vs. Non-entrenchment

“Entrenchment is a constitutional tool that renders legal change more difficult. It argues that entrenchment can, on occasion, help resolve constitutional problems by requiring law-making institutions to depart from the normal way in which these institutions bring about legal change.

Entrenchment rules are at their most attractive where there is a connection between the reasons for entrenchment, the reason why the normal rules of legal change are problematic in a particular area of law”1. It is a process of making any rule and regulation or any kind of legal changes in the constitution a bit difficult to regulate to be applicable. The rules of entrenchment are the most attractive because there is a connection between the happenings of the entrenchment. It is known for the changes in the constitution and making it a bit difficult to change or to get amended easily.

An established clause of basic law and constitution is that the upcoming amendments are really difficult to next to impossible to pass in the constitution, making the previous amendments invalid. A lot of procedure needs to be done to change an established law like supermajority, a referendum, or the consent of minority party2.

“There is no consensus among lawyers and political scientists about the nature of the entrenchment. Different writers use the term to refer to different sets of constitutional devices. At its most general, entrenchment has been used to describe any rule that is difficult to alter”3.

The clause of entrenchment which is mentioned in the common law or any basic law which is governed or is dealt with the constitution and its provision that helps in making certain changes and amendments which are either difficult orbit impossible to clear, these kind of changes and amendments are irrelevant in the law.

Non-entrenchment or non-entrenched laws does not change or bring any big amendments in the constitution as it has a constitution as the basic concept in setting up the rules and regulations. Non-entrenchment is not an attractive form of setting up the laws and regulations for the society, they differ from the public good and welfare.

The higher status of law vs. Ordinary legislation The constitution of New Zealand is the sum of laws and principles that determine the political governance of New Zealand. Unlike many other nations, New Zealand has no single constitutional document4. The rule of law in the Constitution state that every activity shall be based and also be limited by the rule of law, it also states that every activity must be in the public interest and proportional to the goals and aims pursued by an individual, it further states that the organs of the state and an individual or any private person must act and behave in good faith, every nation in New Zealand shall respect and have faith in the international law5. The benefit of the rule of law or proper constitution is that there are fewer chances of quick amendments and changes in the law. It applies to every individual of the country; also every single person is liable to follow the rules and regulations. Ordinary legislations are the form of rules and regulations which are implemented by the society itself and also are part of the rules and regulations made by the government for the people. Not much likely to be followed by the state or by the citizens as they are not compelled over the people of the society.

Conclusion

The above-mentioned facts and applications tell and clearly show that the constitution could be relied on by the courts to invalidate other legislation which is inconsistent with the constitution, and also there is the requirement of having a system and laws which are less flexible and are properly implemented over the society. Other legislation and rules which are followed or are implemented on the society and not mentioned in the rule book of government shall be implemented through the government so that it has recorded on the documents and no individual tries to violate the laws. The constitution of New Zealand is the sum of laws and principles that determine the political governance of New Zealand. Unlike many other nations, New Zealand has no single constitutional document, and it requires a legal document that binds every citizen of the country to follow the rules written in the constitution, as also it shall be the base of every other law implemented over the nations of New Zealand. The legal status of the country depends on the main and basic structure of the law, the way it is governed and the laws followed by the citizens, in such state of the country Constitution plays an important role and setting up the documented rights and legal duties for people shall make the legal system and courts more reliable and trusted by the citizens of the nation.

Topic 2: Te Tiriti o Waitangi/Treaty of Waitangi

Concerning relevant commentary and case law, outline at least two different ways in which Te Tiriti o Waitangi/Treaty of Waitangi could be included in a new constitution. Discuss the Legal/constitutional implications and comparative advantages and disadvantages of the alternative approaches you describe. For reasons, explain which approach you consider appropriate.

Answer 2: Te Tiriti o Waitangi/Treaty of Waitangi

The treaty of relevant commentary can be included in the new constitution as it is not an ordinary law. It has been given the statutory recognition as the Treaty of Waitangi Act 1975, which was created by the Waitangi Tribunal. This Act the power and jurisdiction to examine the breach of the Treaty back to the time of its signing in 1840. It is also the main cause of recommending such Act by the tribunal and for the cases which can be ordered by the government itself. “While substitution and related preferences to the Treaty it has been included in more than a number or score of statutes, the Treaty does not operate through statute unless the statute refers to or incorporates the Treaty specifically. That said, the courts can and do use the Treaty when interpreting particular statues but cannot enforce the Treaty as a general matter in New Zealand law”6.

Treaty of Waitangi should be included as essential to Constitution as it is the major and important because it is the first constitutional document of New Zealand. This Treaty is the particular source or can be called the key source of the government of New Zealand and to the moral-political claim in governing the legitimacy of the country7. Advantage of being the first document of the constitution and being in existence since 1975 gives and lays a major impact on the citizens of the country because its existence and relevance shall be indicated to the people and will build interest in the citizens to know more about the Act and its credentials. The disadvantage for the same will be that it might lead to the excessive powers to the constitution and which shall not lead to the welfare of the citizen in the long run.

The constitution provides that where issues arise that relates to the Treaty or involves the courts and other tribunals also have the power to request advice or ask for an opinion from the Waitangi Tribunal. Further, it is mentioned that the constitution needs such amendments in the laws and regulations because it has to change power, so has the power of changing the heads of the state shall have an impact over the bringing on the Treaty and including it in the Constitution. The state will inherit all the obligations and responsibility o the existing Crown in the current situation8. The advantage of including such powers in Constitution shall build the preference and relevance in the citizens also shall provide the extreme power to the head of the nation to find out the proper rules and regulations which can be implemented over the states and a deserving leader can be chosen by the Crown.

The disadvantage of this is that it gives a lot of power to the Crown for the selection of the head of the state and further related procedure which might lead to the state of the dictatorship, or domination of the single power. The approach of including Treaty in the constitution because it is the first document of the constitution can impact the laws in the society also it has the power to regulate and amend the rules and regulations that shall be more effective in framing up the constitution and setting up the basic structure of law in the nation. The Treaty was established in the year 1840 and was mainly recognized as carrying the legal effect in some early and previous decisions of the colonial courts. This particular treaty was denied in the year 1877 by the Chief Justice in parts of simple nullity.

 Preference to utilize the Treaty as something like the tool in all the appropriate situations and also as the implementation lies in the common law doctrine irrespective of the Treaty it includes the doctrine of aboriginal title. It is also said that the common law of England is inherited by the legal system of New Zealand and can only expire when the extinguishment of legislation is done explicitly. In the year 1986, the High Court gave the credit to the explicit doctrine in the case of Te Weehi v. Fisheries Officer10. Concerning the situation of the doctrine, the Australian High Court decided in the case of Mabo11, to add the weight and potential to the relevance and existence of the view in New Zealand. He potential was given preference and also it became evident in the case of Maori which was brought to the foreshore and seabed12.

Topic 3: Wildcard Issue

Concerning relevant commentary and case law (if any), explain:

i. What specific issue you consider should be included in the new constitution;

ii. How the issue might be addressed?

iii. Why you think it is important to have this issue covered in the document.

Answer 3: Wildcard Issue

Issue

What specific issue is to be considered that can be included in the New Constitution?

Rule

The Protection of Rights of Labor

Abolition of Child Labor

Brief Fact

Mr. Morrigan is aware that many different topics might be addressed in a new constitution for New Zealand. They might include – as examples only – protection of private property rights, environmental rights, or restrictions on electoral financing. Mr. Morrigan is keen for his thinking to be challenged.

Application

The Constitution is the basic structure of every law in the nation; also every country their constitution and every other law is regulated on the behalf of the basic structure which provides certain rules and regulations that are to be implemented on the society and are to be regulated over the citizens of the nation. The New Constitution talks about every law possible but does not include the rules and measures for the labors of the society also does not talk about the protection of the rights and duties of them. The government needs to think about the labor class of the country so that their rights and duties can be protected and can be provided with the relief and also prevent them from exploitation by the employers. Problems of labor which include female labor also and need to be provided with the rights of leave, average wages daily also for female labor the maternity leave and half of the salary, this shall create more influence in the new constitution.

Providing daily wages and no exploitation of the labor class of the country shall bring enlightenment to the constitution of the nation. It is very important issues that need a spark in the society to bring balance between other class of the society and the labor class of the society. Providing an employee with its own and codified Act shall enhance their value in the society, also any wrong done against them shall be given justice with proper laws and regulation of the Constitution of the country. No worker shall be discriminated against based on its work and no rules for them; any worker will be able to work in the ambit of the law and shall also follow the instructions mention in the Act.

The major issue that has been included in the constitution is the protection of the fundamental and legal rights of the workers of the society, which shall bring resistance to the exploitation of the workers. This Act and rule shall also protect the employers of an industry from facing the loss of by an employee to the production and employment. Maternity leave shall be provided to the female and the half salary of the period shall be included as it is an important point for the female worker to manage the condition of pregnancy. All the protective measures should be provided to the workers who are involved in the work of construction, machines, engravings, also any chemical work. Protection of health and safety of life should b the moral duty of the employer to take care and full prevention of. Children should be prohibited from working in the factories which consist of hazardous substances and the creation of bangle making or matchsticks. Child labor should be banned and no children should be allowed to enter the room or any employment which includes machines and chemical substances.

The constitution being the basic structure should include every possible right for every working class of society. This shall be implemented over the people and will also be followed by the groups of society. Protection of the fundamental and legal rights of an employee shall create an emphasis on the New Constitution of the country.

The implementation of the Act shall bring unity in the working class and shall also provide them with equal opportunity and equal rights as other class of works have. Prohibiting child labor in any industry plays an important in developing the educational background and interest in the education system, which shall develop the knowledge of a child regarding the other activities of the surroundings. Abolition of Child labor is the main issue in society, rather studying children below the age of 14 starts working and does not move towards the brighter world by the means of education. New Constitution should carry every detail on the labor law and implementation of this Act shall be based on the codified law. The point of vicarious liability shall also be dealt with in the same as the duty of the employer is more than the employee regarding any employment.

Conclusion

The main motive of this Act and involvement of the fundamental rights of the working class is very important to provide them the basic facility of the remuneration and the compensation provided to the female, children worker, and male worker to get their daily wages and particular safety measures. Every person has their rights regarding work profile and employment. Protection and prevention from every kind of exploitation shall reduce by bringing up such laws and implementations over society. Prevention of employer and employee rights and regulations shall be invented and introduced to society. Providing females the equality and protective rights against every facility provided to the male workers of the industry. The major point discussed above is of vicarious liability and the duties of an employer towards an employee regarding the protection and safety of the worker. Providing workers the daily wages and basic facility of living shall be of great help if mentioned in the codified law. Labor Act shall give workers their definition in law and legalize the work and wages earned by every labor who work on the daily wages.

Bibliography for Constitutional Law 

A. Cases

Attorney-General v Ngati Apa [2002] 2 NZLR 661

Attorney-General v Ngati Apa [2002] 2 NZLR 661

Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188.

Mabo Case 1992, 66 ALJR 408

Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680

Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) 72, per Prendergast CJ.

B. Books and Chapters in Book

R Albert, JI Colon-Rios - 2019

124 Harv. L. Rev. 627, 672 (2011); Melissa Schwartzberg, Democracy and Legal Change ch. 1 (2007). McDowell, Morag; Webb, Duncan (2002). The New Zealand Legal System (3rd ed.). LexisNexis Butterworth

C. Legislation

Article 72-74 and appendix to the Constitution

The Constitutional Advisory Panel

D. Internet Resources (only for reading)

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3522293 scholar.google.com/scholar?as_ylo=2019&q=case+laws+related+to+entrenchment+New+Zealand&hl=en&as_sdt=0,5

References for Constitutional Law 

Article 72-74 and appendix to the Constitution

Attorney-General v Ngati Apa [2002] 2 NZLR 661; Attorney-General v

Daryl J. Levinson, Parchment, and Politics: The Positive Puzzle of Constitutional Commitment 124 Harv. L. Rev. 627, 672 (2011); Melissa Schwartzberg, Democracy and Legal Change ch. 1 (2007).

Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188.

Mabo Case 1992, 66 ALJR 408. McDowell, Morag; Webb, Duncan (2002). The New Zealand Legal System (3rd ed.). LexisNexis Butterworth.

N.W. Barber, CON (2016), Vol. 14 No. 2, 325–350

Ngati Apa [2003] 3 NZLR 643(CA). R Albert, JI Colon-Rios - 2019

Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680

The Constitutional Advisory Panel

Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) 72, per Prendergast CJ.

Remember, at the center of any academic work, lies clarity and evidence. Should you need further assistance, do look up to our Constitutional Law Assignment Help

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