Laws 121: terms essay
The Constitution of New Zealand unlike most countries is not entrenched and is also not supreme law, which means there is no single document outlining the entire constitution. The New Zealand Constitution is made up of a large number of different Statutes, however this does not account for all our constitutional material. Part of our constitution is governed by convention, these ‘traditions’, while not legally binding help to restrain the executive. The Executive is made of the Prime minster, ministers, government agencies and state owned enterprises. This essay will discuss to what extent Constitutional conventions are more important than statutes in restraining the Executive in New Zealand
Statutes make up the bulk of the constitution and while not compiled in a single document, they are written. According to Wests Encyclopaedia of American law (2008), “Statute is a written law passed by the legislature. Statutes set forth general propositions of law that courts apply to specific situations. A statute may forbid a certain act, direct a certain act, make a declaration”. Statutes are the law that because of the rule of Law both the Government and the Public must adhere to.
Constitutional Conventions are
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Statutes and constitutional conventions are both key inhibitors preventing complete parliamentary supremacy. Parliamentary supremacy is the idea that Parliament can (in theory) pass any law they want to. This is considered one of the key factors in our parliamentary structure. However at the same time we actively try to inhibit and restrain Parliament by the means of checks and balances. While one of the main forms of this is the separation of power between the Executive, Legislature and Judiciary and idea proposed by Montesquieu in The Spirit of Laws 1748. The other way this is mitigated is through the use of Statues and Constitutional
Australia became an independent nation on January 1, 1901 when the British Parliament passed certain legislation allowing the six Australian colonies to regulate their own authority as part of the Commonwealth of Australia. The Commonwealth of Australia was established, and remains as, a constitutional monarchy, meaning that it was founded with a written constitution, and that the Australian head of state is also head of the Commonwealth (Queen Elizabeth II.) The Australian Constitution was initially drafted by several men in the 1890’s though it wasn't passed by the British Parliament until 1900 as part of the Commonwealth of Australia Constitution Act. By definition the Australian Constitution is a composition
It should grant and limit different powers and responsibilities to the different levels of government and set guidelines for making policy. It should not include specific policies or statutes (Brown et al. 59). Excessive details should be reserved for statutory laws. Writing solutions to specific problems in a constitution causes the need for frequent amending as new issues arise (Brown et al. 59).
Parliamentary sovereignty, a core principle of the UK's constitution, essentially states that the Parliament is the ultimate legal authority, which possesses the power to create, modify or end any law. The judiciary cannot question its legislative competence, and a Parliament is not bound by former legislative provisions of earlier Parliaments. The ‘rule of law’ on the other hand, is a constitutional doctrine which primarily governs the operation of the legal system and the manner in which the powers of the state are exercised. However, since the Parliament is capable of making any law whatsoever, the concept of the rule of law poses a contradiction to the principle of parliamentary supremacy, entailing that Parliament is not bound by the Rule of Law, and it can exercise power arbitrarily.
To give conventions justiciable entitlement would be taking away from the highly advantageous flexibility that the UK Constitution has attained from remaining uncodified. Further, the large volume of conventions may provide a difficulty in enforcing them within the courts. In contrast, it could be argued that codifying select conventions may bring certainty to many unclear areas, such as defining the Ministerial Code partly did, thus providing an easier structure for conventions to be enforced legally. However, conventions are merely seen as a moral and political obligations, and should not upon breach have legally enforceable consequences. The argument against whether the court should enforce conventions will be supported and discussed in this essay.
The principle of the separation of powers is that, in order to prevent oppressive government, the three powers of government should be held by separate bodies—the Legislature, Executive and Judiciary—which can act as checks and balances on each other. (Locke, 1690) Australia’s system of separation of powers (SOP) is a hybrid of the UK Westminster system of government and the American federal and constitutional features of government. This system of government was chosen because they provide essential philosophical and theoretical bases for which separation is essential and although this system incorporates the best aspects of the UK and US systems, many crossovers have been incorporated as a result. Consequently this shows vulnerability in the Australian federal and state system exposing it to exploitation, and mistreatment.
Constitution is a set of rules which details a country’s system of government (Elliott & Quinn 2009, p. 2). Most of the time, the constitution is a written document, but in Britain, the constitution cannot be found written down in one document, and is known as an unwritten constitution. There are three basic fundamental principles of Britain’s unwritten constitutional tradition which are:
...ate from and more powerful than statute law. However, a constitution could not be drafted by a legislature. It had to be made by the people themselves. A constitution had to be drafted at a meeting, then ratified by popular vote.
For many years, the question of how adaptable and flexible the constitution is in Australia has been widely debated. As of now the atmosphere of verbal confrontation on protected change, has restored enthusiasm toward the issue in exploring whether the constitution is versatile and adaptable in meeting the needs of the nation following 100 years in being embraced.
The Rule of Law refers to the principle that law should govern a nation instead of being governed by the decisions of individual governments. The complexity of Parliamentary Bills make the legislative process more time consuming, harder to comprehend and as a result it makes it harder to reach to a final decision. In this respect Parliamentary scrutiny can be said to undermine the rule of
The word ‘constitution’ is commonly used to describe a written legal document that embodies a set of rules and principles that ‘establish and regulate or govern the government’ of a country. The United Kingdom, however, does not have such a document.
The most significant and challenge to the traditional view of parliamentary sovereignty was Britain’s membership of the European Community in 1972. The European Communities Act 1972 brought with it the requirement that European Law be given priority over domestic courts over conflicting issues of national law. This notion was a direct affront to parliamentary sovereignty, which required that if a later statute, contradicted and earlier statute, which sought to incorporate European Law into English Law, then the later statute should impliedly repeal the earlier statute. Therefore the European Communities act imposed a substantive limit on the legislative ability of subsequent Parliaments.
In a nutshell, parliamentary sovereignty exists because judges have for centuries consistently stated that they do not have the constitutional power to question Acts of Parliament. They have come to the conclusion that the judicial function is merely to interpret legislation in order to ascertain the intention of Parliament in passing it. The case Cheney v Conn gives an outline of this point. Due to the courts accepting judgments of the Queen in Parliament and allowing any law to be passed for centuries, parliamentary sovereignty is a known as a common law doctrine. Sovereignty is a fundamental rule of the common law. The sovereignty is not laid down in any statute. For as long as the judges accept the sovereignty of Parliament, sovereignty will remain the ultimate rule of constitution. As Salmond explains, all rules of law have historical sources. As a matter of fact and history they have their origin somewhere, though we may not know what it is. But not all of them have legal sources. Bu whence comes the rule that Acts of Parliament have the force of law? This legally ultimate, its source is historically only not legal. It is the law because it the law and not for any other reason that it is possible for the law to take notice of. No statute can confer this power upon Parliament for this would be to assume and act on the very power that is to be
A key feature of the unwritten constitution is ‘the Separation of Powers’. This exercises the idea of independence within ‘different functions of government’; it is represented by the legislature, the executive and the judiciary. Separating the three prevents a dangerous occurrence where power is entirely centralized in one group. Cooperating with one...
Historically the prerogative was exercised by the monarchy, the majority of powers are now used by ministers, and very few remained the personal preserve of the sovereign. The extent to which the judiciary and the legislature are able to regulate the exercise of prerogative powers by the executive has increased. However, there are still some who are concerned by the lack of control that can be exerted by the other constitutional bodies.
It has been observed that most constitutional monarchies have a parliamentary system in which the monarch may have ceremonial duties or reserve powers according to the constitution. In the United Kingdom, the rights and duties of the head of state are established by conventions. These are non-statutory rules which are just as binding as formal constitutional rules. The monarch’s reserve powers include the power to grant pardons, bestow honours, appoint and dismiss a prime minister, refusal to dissolve parliament, and refusal or delay royal assent to legislation. Strict constitutional conventions govern the usage of reserve powers. If these powers are used in contravention of tradition, it will generally provoke a constitutional crisis.