Essay Treaty of Waitangi Act 1975 – Constitutional Monarchy – Law Assignment Help

Assignment Task:

Question 1,

 which will present you with a proposition relating to Te Tiriti o Waitangi, the Treaty of Waitangi and the Waitangi Tribunal.

You MUST re-read and ensure you understand the material in lectures for week 6 and 7. You MUST re-read and ensure you understand the whole of chapter 5 of the textbook (“The New Zealand Legal System: Structures and Processes”, Ruru, Scott, Webb, 6th ed., LexisNexis 2016). You must re-read Ani Mikaere’s piece on Te Tiriti and the Treaty (in “reading” and on TALIS). You must listen to Khylee Quince’s lecture on Te Tiriti.

What should you focus on, when re-reading the lectures and other material? 

• The wording of Te Tiriti, especially “kawanatanga” and “tino rangatiratanga”
• The wording of The Treaty, especially “sovereignty” and “exclusive and undisturbed possession of lands…”
• The meaning and importance attached to He Whakaputanga by respected M?ori commentators and rangatira
• Make sure you understand why the NZ Maori Council took the case to court in the 1987 “lands case” or “SOE” case. The relevant law was the State Owned Enterprises Act 1987. How did the NZ Maori Council argue that the text of the Treaty of Waitangi was relevant?
• Make sure you understand the relevance of the Waitangi Tribunal’s finding to the court judgment in the “lands/SOE” case.
• Make sure you understand Crown arguments in the forestry and mining cases referred to in lecture 7
• Read Treaty of Waitangi Act 1975, especially sections 4 and 5. Make sure you understand the powers of the Waitangi Tribunal and the limitations on those powers
• Think about the fact that the Waitangi Tribunal is not a court. Think about the fact that the Treaty is not incorporated into law. Does this mean that the duties owed to Maori by the Crown are meaningless? Can be ignored? Are inadequately protected?

Here are the key self-test questions you should be able to answer, having completed the readings:

1. Read the text of the Te Reo document and the English document – what are the key words that have caused controversy? Why?
2. Why does Mikaere say that Maori should resist the idea that Te Tiriti and The Treaty have anything to do with each other?
3. Explain in your own words what He Whakaputanga is, what it said and why Associate Professor Quince, Mikaere and Jackson all state that it is vitally important to an understanding of the significance and meaning of Te Tiriti o Waitangi
4. What was the “lands” or “SOE” case (NZ Maori Council v Att-Gen 1987) about? Explain in your own words one of the court’s significant findings in the case and what it meant for M?ori
5. Identify two “principles of the Treaty of Waitangi” that the court in NZ Maori Council v Att-Gen 1987 stated were relevant in considering matters relating to M?ori?
6. Explain why “interests in land” was such an important concept and phrase discussed in the forestry and mining cases
7. Where in the Treaty of Waitangi Act 1975 would you find evidence that the Act regards Te Tiriti and The Treaty as two different language versions of the same document?
8. Explain in your own words why Mikaere and others take issue with (do not agree with) the approach taken in the 1975 Act?
9. Give two examples of ways in which Waitangi Tribunal reports have been influential and have delivered promised guarantees under the Treaty of Waitangi?

Question 2, 

which will present you with a proposition relating to constitutional arrangements in Aotearoa.

You MUST re-read and ensure you understand the material in lectures for week 4 and 5. You MUST re-read chapters 3 and 4 of the textbook(THE NEW ZEALAND LEGAL SYSTEM STRUCTURES AND PROCESS) chapter 3 explains the nature of the constitution in Aotearoa; chapter 4 looks at arguments for reform of the existing arrangements. You MUST re-read and ensure you understand the whole of Sian Elias’s Henry Harkness Lecture 2011 “Fundamentals: A Constitutional Conversation”, in “reading” on BB. You MUST re-read pp 8-10 and 16-18 of New Zealand’s Constitution: A Report on a Conversation – He Kotuinga mo Te Kaupapa Ture o Aotearoa (2013), in “reading” on BB.

What should you focus on, when re-reading the lectures and other material?

• Using the USA Constitution as a reference point, make sure you understand the purpose of a country’s Constitution; the legitimacy of government comes from the Constitution
• Review the history of NZ’s constitution; make sure you understand the relevance of He Whakaputanga, Te Tiriti, The Treaty and the Proclamation of British Sovereignty
• Ensure you understand what it means to have a “constitutional monarchy”
• Make sure you understand what constitutional principles and conventions are and note some important ones in NZ
• Make sure you understand why the rule of law is regarded as one of the most important principles underpinning the legal system in Aotearoa
• Explain in your own words why some commentators are concerned that the Executive branch of government in Aotearoa has too much power (compared with Parliament or the courts)
• How might a single written constitutional document curtail (limit, act as a check on) state/government or Executive power?
• What sorts of rights are in the Bill of Rights Act? Are these sufficiently safeguarded by existing constitutional arrangements?

Here are the key self-test questions you should be able to answer, having completed the readings:

1. Explain in your own words the key purpose of a written constitution?
2. Identify three arguments for a country’s having a written, rather than an “unwritten” constitution
3. Identify three arguments for the view that an “unwritten” constitution is adequate to safeguard citizens’ rights
4. What exactly does it mean to say Aotearoa has an “unwritten” constitution?
5. What does Associate Professor Quince say about the May 1840 Proclamation?
6. Name three features of the Constitution of Aotearoa?
7. Name three sources (places where we find rules about government and our constitutional arrangements) of the Constitution of Aotearoa?
8. What is the legal and constitutional status of the NZ Bill of Rights Act 1990?
9. Explain in your own words what it means if rights are “entrenched”.
10. Identify two arguments for the entrenchment of rights of citizens? How would rights be
    “entrenched” in Aotearoa?

In the final assessment, question 2 will deal with constitutional arrangements in Aotearoa. Whatever question I ask you in that 30 mark question, I want you to show that you understand the nature of the constitutional arrangements in Aotearoa (i.e. “unwritten” and what that means). I want you to explain the concerns that some academics and commentators have expressed, about the Executive branch of government having too many powers and not enough checks on their actions. I want you to discuss how well the existing arrangements safeguard individual rights and the rights of tangata whenua.

We could argue that the current constitutional arrangements in Aotearoa do not protect the rights of M?ori, as tangata whenua, or of individual citizens

Material supporting this would include: Constitution Act 1986 not superior or entrenched law; claims for breaches of constitutional rights cannot be heard by courts in Aotearoa; Bill of Rights is not entrenched; an “unwritten” constitution means that rights of citizens are not clearly spelled out or protected; a constitutional document that does not reference Te Tiriti and/or The Treaty cannot recognise or protect rights of Aotearoa’s indigenous people

Material opposing this would include: courts have regard to “the principles of the Treaty of Waitangi”; unwritten constitution means that there is flexibility in arrangements to respond in emergencies – e.g. Coronavirus; the principle of the rule of law allows challenge to government’s and state agencies’ actions; Official Information Act and other legislation allows Executive action to be overseen by courts

Question 3

, which will present you with a proposition relating to roles and responsibilities of judges and lawyers in Aotearoa’s courts.

You MUST re-read and ensure you understand the material in lectures for week 8, 9 and 10. You MUST re-read chapters 6 and 7 of the textbook (New Zealand’s court system; the legal profession). You should read the 2019 Judicial Conduct Guidelines, paras 9 – 35 (pp 4 – 7) and the Lawyers: Conduct and Client Care Rules 2008, both of which are in “reading” on BB.

What should you focus on, when re-reading the lectures and other material?

• What are the principles of judicial conduct outlined in Guidelines?
• Explain the key roles of judges in our legal system
• Explain the roles that lawyers undertake, if advocating for a client and advising a client – what is the difference?
• Why are lawyers held to high standards of ethical behaviour?
• Explain the lawyer’s duty to uphold the rule of law
• Explain the lawyer’s overriding duty as an officer of the court
• Why does a lawyer owe an obligation of strict confidence to his/her client?
• Explain ‘lawyer-client’ privilege – what does it mean when advocating for a client in court?

Here are the key self-test questions you should be able to answer, having completed the readings:

1. Explain in your own words what judicial independence is and why it matters in a legal system
2. What does it mean to be able for a judge to act “without fear or favour”?
3. Why should a lawyer not be simply a mouthpiece for their client’s position?
4. Why do lawyers need to advise clients about the law that opposes their client’s claim(s)?
5. Why do you need to be certified as a “fit and proper person” to enter the legal profession in Aotearoa?
6. Explain how the lawyer’s duty as an officer of the court and his/her duty to her client might come into conflict

In the final assessment, question 3 will deal with roles and responsibilities of judges and lawyers in the courts of Aotearoa. Whatever question I ask you in that 30 mark question, I want you to show that you understand the importance of judicial independence and the role of the lawyer as an officer of the court. Both of these are fundamental to the operation of our legal system. You will not need to show that you understand the detailed hierarchy of the court structure. That is the scaffolding around the court system, within which judges and lawyers perform their assigned roles. The purpose of the question will be to allow you to show that you understand the ethical duties placed on lawyers, when they are representing their clients before the court. The lawyer needs to balance – carefully and professionally – the duty to the rule of law and the administration of justice on the one hand and the duty to advocate for and safeguard the client’s interests on the other hand.

We could argue that the lawyer’s duty of confidentiality is more important than the lawyer’s duty to the court.

Material supporting this would include: rule 6 (2008 Rules) requires the lawyer to protect and promote the client’s interests to the exclusion of all others; rule 5 requires the lawyer to exercise judgment solely for the benefit of the client; under rule 8, the lawyer’s duty of confidence to the client continues indefinitely; judges’ independence of judgment requires both sides of a case to be presented fully by counsel

Material opposing this would include: under rule 2, a lawyer is obliged to uphold the rule of law and to facilitate the administration of justice; role of the judge relies on counsel’s duty as an officer of the court; under rule 5, lawyer must give objective advice; the judge must be confident that counsel will deal with authorities that do not support client’s position, as well as those that do; rule 2.1 states that the overriding duty of a lawyer is to the court