scholarly journals The Constitutional Role of the Courts under the NZ Bill of Rights: Three Narratives from Attorney-General v Taylor

2017 ◽  
Vol 48 (4) ◽  
pp. 547
Author(s):  
Claudia Geiringer
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Attorney General ◽  
Bill Of Rights ◽  
Close Analysis ◽  
The Common ◽  
The Relationship ◽  
Court Of Appeal

In Attorney-General v Taylor, New Zealand's Court of Appeal upheld the High Court's recognition, and exercise, of an implied jurisdiction to make (non-binding) declarations of legislative inconsistency with the New Zealand Bill of Rights Act 1990 (the NZ Bill of Rights). Recognition of this novel jurisdiction says something important about the evolution of judicial-legislative relations under the NZ Bill of Rights. The question is: what exactly? This article suggests that a close analysis of the Court of Appeal's decision in Taylor in fact discloses three interwoven narratives that speak to the constitutional role of the courts in enforcing the NZ Bill of Rights: the NZ Bill of Rights as "legal benchmark"; the NZ Bill of Rights as "facilitator of inter-branch dialogue"; and the "common law-fuelled bill of rights". The article unpicks these narratives, explores the relationship between them and discusses the extent to which they succeed in accommodating or justifying the new declaratory remedy.

The King Reports and the common law in South Africa

2020 ◽  
Vol 11 (2) ◽  
pp. 167-172
Author(s):  
J. Michael Judin
Keyword(s):  
South Africa ◽  
Design Methodology ◽  
Common Law ◽  
Bill Of Rights ◽  
Content Type ◽  
The Supreme Court ◽  
Task Team ◽  
The Common ◽  
Court Of Appeal

Purpose This paper aims to discuss the King Reports and Codes and the development of South Africa’s common law. The role of developing the common law is explicitly recognised in the Constitution, as is the obligation to give effect to the spirit, purport and objects of the Bill of Rights. With decisions of the Supreme Court of Appeal being based on the King Code, the King Code is now an integral part of South Africa’s common law. Design/methodology/approach When the task team drafting King IV commenced their work, one of the important issues raised with Mervyn King, as Chairman, was the challenge to ensure that King IV was aligned to the now firmly entrenched common law principles taken from King I, King II and King III. It is believed that this has been achieved and it is hoped that King IV (and the subsequent King Reports that will inevitably follow because the corporate milieu keeps changing) continues to enrich South Africa’s common law. Findings The King Reports and Codes have been made part of South Africa’s common law. Originality/value This paper fulfils an identified need to study the King Report and Code, as it relates to South Africa’s common law.

scholarly journals To whom will ye liken me, and make me equal? Reformulating the role of the comparator in the identification of discrimination

2021 ◽  
Author(s):  
◽  
Asher Gabriel Emanuel
Keyword(s):  
New Zealand ◽  
Attorney General ◽  
Child Poverty ◽  
Chief Executive ◽  
Bill Of Rights ◽  
Group V ◽  
Analytical Reasoning ◽  
Recent Developments ◽  
Court Of Appeal

<p>The use of comparator groups has to date been central to establishing a breach of s 19 of the New Zealand Bill of Rights Act 1990. The New Zealand courts’ approach to the formulation of comparator groups admits a lack of a clear methodology. This paper argues that, in the absence of a framework guiding the formulation of the comparator, the methodology permits arbitrary and inconsistent decision-making. The flexibility of the approach risks premature exclusion of claims in reliance on intuitive rather than analytical reasoning, limiting the transformative potential of nondiscrimination provisions. Of particular concern is the involvement of matters of justification at the comparator stage. The High Court judgment in B v Chief Executive of the Ministry of Social Development is emblematic of these concerns. Recent developments at the Court of Appeal in Ministry of Health v Atkinson and Child Poverty Action Group v Attorney-General have provided some guidance, but have not gone far enough. This paper recommends that the courts depart from requiring a comparator for claims under s 19. Where comparators are necessary, it is proposed that the courts defer to the claimant’s choice of comparator, and decouple the identification of differential treatment from questions of causation.</p>

scholarly journals To whom will ye liken Me, And make Me equal? Reformulating the Role of the Comparator in the Identification of Discrimination

2014 ◽  
Vol 45 (1) ◽  
pp. 1 ◽  
Author(s):  
Asher Gabriel Emanuel
Keyword(s):  
New Zealand ◽  
Social Development ◽  
Attorney General ◽  
Child Poverty ◽  
Chief Executive ◽  
Bill Of Rights ◽  
Analytical Reasoning ◽  
Recent Developments ◽  
Court Of Appeal

The use of comparator groups has to date been central to establishing a breach of s 19 of the New Zealand Bill of Rights Act 1990. The New Zealand courts' approach to the formulation of comparator groups admits a lack of a clear methodology. The author argues that, in the absence of a framework guiding the formulation of the comparator, the methodology permits arbitrary and inconsistent decision-making. The flexibility of the approach risks premature exclusion of claims in reliance on intuitive rather than analytical reasoning, limiting the transformative potential of non-discrimination provisions and offending against the proper construction of s 19. Of particular concern is the involvement of matters of justification at the comparator stage. The judgments of the High Court and Court of Appeal in B v Chief Executive of the Ministry of Social Development and G B as Executor of the Estate of B of Whangarei v the Chief Executive of the Ministry of Social Development respectively are emblematic of these concerns. Recent developments at the Court of Appeal in Ministry of Health v Atkinson and Child Poverty Action Group Inc v Attorney-General have provided some guidance, but have not gone far enough. The author recommends that the courts defer to the claimant's choice of comparator, and decouple the identification of differential treatment from questions of causation.

scholarly journals The "Lord Cooke Project": Reviewing Lord Cooke's Extrajudicial Writing

2013 ◽  
Vol 44 (1) ◽  
pp. 247
Author(s):  
Tim Cochrane ◽  
Elizabeth Chan
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Bill Of Rights ◽  
Complete Collection ◽  
Treaty Of Waitangi ◽  
The Common

This note discusses key themes arising from Lord Cooke's published extrajudicial writing.  These themes cover Lord Cooke's conception of the common law, the interpretation of the Treaty of Waitangi, the development of bill of rights jurisprudence in New Zealand and overseas, and the role of judges. This note arises out of the authors' involvement in the Lord Cooke project, a Victoria University of Wellington initiative that will make a complete collection of Lord Cooke's extrajudicial writings available online.

scholarly journals To whom will ye liken me, and make me equal? Reformulating the role of the comparator in the identification of discrimination

2021 ◽  
Author(s):  
◽  
Asher Gabriel Emanuel
Keyword(s):  
New Zealand ◽  
Attorney General ◽  
Child Poverty ◽  
Chief Executive ◽  
Bill Of Rights ◽  
Group V ◽  
Analytical Reasoning ◽  
Recent Developments ◽  
Court Of Appeal

<p>The use of comparator groups has to date been central to establishing a breach of s 19 of the New Zealand Bill of Rights Act 1990. The New Zealand courts’ approach to the formulation of comparator groups admits a lack of a clear methodology. This paper argues that, in the absence of a framework guiding the formulation of the comparator, the methodology permits arbitrary and inconsistent decision-making. The flexibility of the approach risks premature exclusion of claims in reliance on intuitive rather than analytical reasoning, limiting the transformative potential of nondiscrimination provisions. Of particular concern is the involvement of matters of justification at the comparator stage. The High Court judgment in B v Chief Executive of the Ministry of Social Development is emblematic of these concerns. Recent developments at the Court of Appeal in Ministry of Health v Atkinson and Child Poverty Action Group v Attorney-General have provided some guidance, but have not gone far enough. This paper recommends that the courts depart from requiring a comparator for claims under s 19. Where comparators are necessary, it is proposed that the courts defer to the claimant’s choice of comparator, and decouple the identification of differential treatment from questions of causation.</p>

The Relationship between Disability Non-Discrimination Law and Quota Schemes

2019 ◽  
pp. 94-117
Author(s):  
Lisa Waddington
Keyword(s):  
Public Sector ◽  
Common Law ◽  
Civil Law ◽  
People With Disabilities ◽  
Public And Private ◽  
The Public ◽  
The Common ◽  
Public And Private Sector ◽  
The Relationship

This chapter explores the relationship between disability quota schemes and non-discrimination law in Europe. While at first sight they seem to sit uneasily beside each other, the chapter reveals how, in some instances, quota schemes can serve to facilitate compliance with non-discrimination legislation. At the same time, the chapter explores seeming incompatibilities between the two approaches and considers whether there are differences between common and civil law jurisdictions in this respect. Tentative conclusions suggest that there is a greater willingness to establish quota schemes through legislation in civil law jurisdictions compared to common law jurisdictions, and that quota schemes in civil law jurisdictions are more likely to provide for the imposition of a levy in the case that employers fail to meet their quota obligations through employing the required number of people with disabilities. There also seems to be some indication that there is greater awareness of the potential for conflict or tension, in various forms, between non-discrimination law and quota schemes in common law jurisdictions than in civil law jurisdictions. Finally, the two schemes operating in the common law states are only applicable to the public sector—whilst in civil law states quotas are generally applied to both public and private sector employers. This may indicate different perceptions regarding the role of public sector employers and the legitimacy of imposing quota requirements.

scholarly journals HOW STRICTLY DID THE ATHENIAN COURTS APPLY THE LAW? THE ROLE OF EPIEIKEIA

2013 ◽  
Vol 56 (1) ◽  
pp. 27-48 ◽  
Author(s):  
EDWARD HARRIS
Keyword(s):  
Common Law ◽  
General Rule ◽  
Nicomachean Ethics ◽  
The Common ◽  
The Law ◽  
Principles Of Justice ◽  
The Relationship ◽  
The City ◽  
Positivist Approach

Abstract H. Meyer‐Laurin has claimed that the Athenian courts took a stricti iuris approach to the law and did not take extenuating circumstances into account. Other scholars (Mirhady, Todd) have claimed that the courts sometimes ignored the law and took extra‐legal considerations into account, which was called ‘fairness’ (epieikeia). The essay begins with a careful reading of Aristotle's analysis of ‘fairness’ (epieikeia) in the Nicomachean Ethics and the Rhetoric and draws on an important essay by J. Brunschwig. Fairness was not a doctrine that attempted to undermine the authority of the law or placed the law of the city in opposition to the unwritten laws or the common law of mankind. Nor did the application of fairness introduce non‐legal factors into adjudication. Rather, fairness dealt with the problem of treating exceptions to the general rule contained in a specific written law. The essay then shows how litigants used arguments based on fairness and how the courts sometimes took extenuating circumstances into account. When Athenian judges swore to decide according to the laws of Athens, they did not just consider the law under which the accuser had brought his case. They could also take into account general principles of justice implicit in the laws of Athens as a whole. In this way, they avoided a rigid positivist approach to law. Finally, the essay sheds some light on the relationship between Aristotle's Rhetoric and the arguments used in the Athenian courts.

Nervous Shock, Tort and Accident Compensation: Tort Regained?

1999 ◽  
Vol 30 (1) ◽  
pp. 197
Author(s):  
Geoff McLay
Keyword(s):  
Common Law ◽  
Practical Importance ◽  
Complex Interaction ◽  
Physical Injury ◽  
Compensation Scheme ◽  
Accident Compensation ◽  
The Common ◽  
Nervous Shock ◽  
The Relationship ◽  
Court Of Appeal

This case note examines the recent Court of Appeal decision in Palmer v Danes Shotover Rafts  dealing with the relationship between the common law and the Accident Compensation regime. The author acknowledges the practical importance of the Court's holding in Danes Shotover Rafts that plaintiffs who have not suffered physical injury can sue for nervous shock.  The author contends that the case is, like the exemplary damages cases, yet another example of the complex interaction between common law and statutory compensation regimes.  The author argues that the case may signal a judicial switch from a welfare or communitarian approach to the interpretation of the Accident Compensation scheme to a rights based approach and that gives primacy to common law rights rather than to the integrity of the Accident Compensation scheme.  A wider view not based solely on the statutory provisions, or on the assumption that the common law or statutory compensation regimes "trump" one another, but one which views the interaction between the common law and statutory compensation schemes as dynamic, may lead to a greater understanding of the relationship between statutory tort reform and the common law.

The Need for a Constitution in the United Kingdom

1979 ◽  
Vol 14 (3) ◽  
pp. 269-285
Author(s):  
Wilberforce
Keyword(s):  
United Kingdom ◽  
New Zealand ◽  
Legal System ◽  
Common Law ◽  
Bill Of Rights ◽  
The United Kingdom ◽  
Flexible Instrument ◽  
The Common ◽  
Definition Of ◽  
The Right

I was not surprised when, from several alternative subjects, you chose, as the title of my Lecture, the need for a Constitution in Britain. Those of us without a written constitution are indeed, a select club—New Zealand, Israel, the United Kingdom.I will start with a quotation from Lord Salmon. In a recent lecture, he said: In this country [U.K.] we have an unwritten constitution. I have always regarded this as a blessing and never agreed with the theoretical objections to it. It is superbly flexible and above all it has stood the test of time. It works—and works admirably. But I am beginning to wonder whether it might not be wise to evolve, not an elaborate written constitution but perhaps the equivalent of a modern Bill of Rights. A statute which should lay down our basic freedoms, provide for their preservation and enact that it could not be repealed save by, say, a 75% majority of both Houses of Parliament.One can recognize in this passage the views of an eminent common lawyer, believing in the strength and potentialities of the common law as a flexible instrument, in, of course, the right hands: of one who believes deeply in human freedom, and who is concerned about the threat to it: who desires an explicit definition of the basic liberties and who believes that these can be protected by a sufficiently strong, entrenched, legal system. In this he undoubtedly reflects the views of many people, probably of the majority of ordinary men.

Legality, Legitimacy, and Legislation: The Role of Exceptional Circumstances in Common Law Judicial Review

2020 ◽  
Author(s):  
Hayley J Hooper
Keyword(s):  
20Th Century ◽  
Judicial Review ◽  
Common Law ◽  
Attorney General ◽  
Central Component ◽  
Late 20Th Century ◽  
The Common ◽  
Constitutional Thought

Abstract Preventing the overconcentration of power is a central component of Western constitutional thought. However, in the British constitution power is generally concentrated in representative legislatures. Although these legislatures generally possess legitimating characteristics that courts lack, we cannot assume that this balance will hold true for all time. This article argues that the common law judicial review jurisdiction contains a power to invalidate the Acts of representative legislatures in certain extreme, hypothetical situations. The seeds of this line of thought began with dicta from a minority in Jackson v Attorney General and similar claims have appeared in several other landmark cases, such as AXA Insurance v Lord Advocate and Moohan v Lord Advocate. Rather than something novel, the power to invalidate legislation is best understood as a natural outgrowth of the seeds of a theory of legislative legitimacy present in the common law that began in the late 20th century.

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