TE PIRINGA FACULTY OF LAW Constitutional Law & Public Law (LAWS 107/201-15Y) 2015 Outline 1. Identification of Paper Paper: LAWS 107/201-15Y This paper carries 20 points 2. Staffing Gay Morgan (Convenor) Phone: Room: email: Office Hours: 838 4466 x6600 Law G.17 morgan@waikato.ac.nz Thursday, 2-4pm or by appointment Dr. Robert Joseph Phone: Room: email: Office hours: 838 4466 x8796 Law G.13 rjoseph@waikato.ac.nz Tues 11am to 1 pm, except for the 4th Tuesday of the month, unless otherwise notified, or by appointment (a) Description of the paper in University Calendar An examination of the constitutional framework underpinning the New Zealand system of government, including the Treaty of Waitangi, constitutional doctrines and conventions, controls on the exercise of public power, and the relationship between the citizen and the state. (b) Structure of the Paper General This is a whole year paper which examines the principles of constitutionalism and the framework of the New Zealand system of government, including the structure, processes and functions of key public institutions such as the Legislature, the Executive, and the Judiciary, and their interrelationship. Constraints on the exercise of public power by the Treaty of Waitangi, the New Zealand Bill of Rights Act and the Human Rights Act will be examined in relation to the overall constitutional framework. The primary methods of teaching the paper will be lectures and tutorials, which may employ the Socratic method, guest lectures, video and other visual and audio aids. The contents pages of the course materials indicate the conceptual structure of the course. The class is registered on 1 Moodle (http://elearn.waikato.ac.nz), which will be available to facilitate discussion, taking of quizzes and dissemination of hand-outs. Lecture and stream timetable and rooms: The lecture hours are: Tuesday, 9.00-11.00am, Venue: L.G01 (L Block) Tutorials weeks are listed below: Ten tutorial sessions, five per semester, will be held during the year. The five Tutorial weeks for each semester are indicated below and in the detailed lecture schedule provided at the end of this outline. Rooms and hours are on the University’s Timetable at http://timetable.waikato.ac.nz/. You need to join one of the tutorial groups to attend these sessions, which are a required element of the course. To do so, go online to iWaikato/My Papers, which lists the groups available and each groups meeting room and meeting time of day. There may be timetabling and room changes. Students should check the University’s Timetable timetabling before attending tutorials. Tutorial sessions Tutorial 1 runs Tutorial 2 runs Tutorial 3 runs Tutorial 4 runs Tutorial 5 runs MID-YEAR RECESS Tutorial 6 runs Tutorial 7 runs Tutorial 8 runs Tutorial 9 runs Tutorial 10 runs Week beginning 16 March 30 March 27 April 11 May 25 May 27 July 10 August 14 September 28 September 12 October Tutorial groups: HAMILTON Tutorial group Day Tutorial A Tutorial B Tutorial C Tutorial D Tutorial E Tutorial G Tutorial H Tutorial I Tutorial L Monday Monday Monday Monday Monday Tuesday Wednesday Thursday Friday 2 Time Rooms are Tentative, CHECK ON LINE 11am -12noon (TC.3.36) 12noon -1pm (TA.2.06) 1pm -2pm (TA.2.06) 2pm - 3pm (TC 2.68) 4pm - 5pm (LAW.G.02) 5pm - 6pm (A.G.11) 4pm – 5pm (LAW.G.03) 9am – 10am (MS4.G.01) 9am – 10am (TT.2.01) Tutorial M Tutorial N Friday Friday 2pm – 3pm (TA.2.06) 3pm - 4pm (TC.2.66) Note: the above list of tutorial groups are subject to change and some groups may not be available. ROOMS NOTED ARE TENTATIVE ONLY, CHECK THE ELECTRONIC CALENDAR BEFORE EACH SESSION. Tutorial groups: TAURANGA Tutorial group Tutorial A Tutorial B Day Wednesday Wednesday Time 5pm – 6pm (BOPP.DT.214) 6pm – 7pm (BOPP.DT.214) (c) Attendance Te Piringa Faculty of Law places great emphasis on providing students with opportunities for high achievement in law papers. Tutorials allow students to learn effectively in small groups. Attendance is therefore required for satisfactory completion of the paper. An understanding of topics and materials discussed in tutorials is essential for success in both internal assessment and examinations. A record will be kept of student attendance at tutorials. Students who do not attend at least two of the first 3 tutorials will receive a letter from the faculty. The letter will restate the importance of tutorials. The letter will also say that tutorial attendance will be a factor taken into consideration in the event that the student is required to apply for re-entry. 4. Learning outcomes Detailed learning outcomes are provided on Moodle, for the particular section of the course underway. Our general learning objectives for this paper are that students who successfully complete this paper will: Understand, be able to articulate and to work with general constitutional principles, particularly as and how they apply in New Zealand Understand, be able to articulate and to analyse New Zealand’s basic constitutional arrangements Understand, be able to articulate and to analyse constraints on public power, the reasons for those restraints and their limitations; and to be able to work with those restraints. Understand, be able to articulate, and be able to work with constitutional issues surrounding the Treaty of Waitangi 5. Workload Students should expect to spend 200 hours on this paper. The workload for this paper will vary according to the speed at which students read, engage with, and absorb material. As a general estimate, students can expect a workload of at least 9 hours per week in the teaching year for this course. This comprises 2 hours per week attending lectures, 1 hour attending tutorials during tutorial weeks, 3 to 4 hours preparation hours for lectures and tutorials, and 3 to 4 hours weekly 3 allotted for internal course assessment. In addition to lecture attendance, significant time will need to be spent on background and complementary reading. Students should allow for periods of more-focused research time in the preparation of assignments. 6. Required and Recommended Reading All law students are required to purchase, for use in all law papers, a copy of McLay, Murray & Orpin, New Zealand Law Style Guide, 2nd edition, Thomson Reuters (2011). This is available from Bennetts, at an approximate price of $37 including GST. In addition to the texts identified below, the Faculty of Law requires that students purchase the Course Material BOOKS and Reference Document Book for this paper. These are available from Waikato Print. Recommended (many of these references are on desk reserve, and all are available, in the Law Library). This list is in alphabetical order, and all are very good. Bolded readings are highly recommended. 4 M Belgrave, M Kawharu and D Williams (eds) Waitangi Revisited – Perspectives on the Treaty of Waitangi (Oxford University Press: Oxford, 2005) (call number KUQ354.W143) A Butler and P Butler The New Zealand Bill of Rights Act: a commentary (LexisNexis NZ, Wellington, 2005) (call number KUQ2095 .A3 1990 B88 2005) M Chen and G Palmer Public Law in New Zealand – Cases, Materials, Commentary and Questions (3rd ed) (Oxford University Press: 1993)(call number KUQ1710.C48) M Chen Public Law Toolbox (LexisNexis, 2011) (call number KUQ1710.C49) J Colin (ed) Building the Constitution (Institute of Policy Studies: Wellington, 2000) (call number KUQ1749.B85) M Durie Te Mana, Te Kāwanatanga – The Politics of Māori Self-Determination (Oxford University Press: Auckland, 1998) (call number KUQ354.D87) C Forsyth and I Hare, The Golden Metwand and the Crooked Cord (Oxford Press: 1998) (call number KD4879.A2G65) A Geddis Electoral Law in New Zealand (LexisNexis 2007) (call number KUQ2176 .G44) Gross and F Ni Aolain, Fionnuala Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge University Press, 2006) (call number K3344 .G76) G Huscroft and P Rishworth (eds) Rights and Freedoms (Brookers: Wellington, 1995) V Jackson and M Tushnet, Comparative Constitutional Law (2nd Ed) (Foundation Press, 2006) (call number K3165 .J32) P Joseph Constitutional and Administrative Law in New Zealand, (3rd Edition)(Brookers: Wellington, 2007) (call number KUQ1750.J68) S Levine and P Harris (eds) The New Zealand Politics Source Book, (3rd Edition)(Dunmore Press Ltd.: Palmerston North, 1999) (call number JQ5811.N535) M Mulholland and V Tawhai (eds) Weeping Waters: the Treaty of Waitangi and constitutional change (Huia Publishers, Wellington, 2010) (call number KUQ1870 .W1W44 2010) C Orange The Treaty of Waitangi (Allen & Unwin New Zealand Limited: Wellington, 1987) (call number DU418.2 .O63) M Palmer The Treaty of Waitangi in New Zealand Constitutional Law (Victoria University Press, Wellington, 2008) (call number KUQ354 .P38) G Palmer and M Palmer Bridled Power - New Zealand Government under MMP (4th ed) (Oxford University Press: Auckland, 2004) (call number JQ5881 .P3) S. Penk & MR Rose, New Zealand Method Handbook (2014, Thompson- Reuters, Wellington) P Rishworth The New Zealand Bill of Rights (Oxford University Press, Auckland, 2003) (call number KUQ2095.N44 2003) Report of the Royal Commission on the Electoral System (1986) (call number JQ5892.N585) Further material may be provided on the paper site on Moodle (http://elearn.waikato.ac.nz), the University of Waikato’s online learning system. Any such material is provided on the following terms: University of Waikato owns the intellectual property rights, including copyright, in and to this site, or has acquired the necessary licenses to display the material on the site. As a student of the Te Piringa Faculty of Law, you are granted a limited license to use (access, display or print a single copy) the material from the papers in which you are enrolled for the purposes of participating in the paper only, provided the information is not modified. Materials may not under any circumstances be copied, stored, distributed or provided in any form or method whatsoever to any third party. Any other use of the material is prohibited. None of the material may be otherwise reproduced, reformatted, republished or re-disseminated in any manner or form without the prior written consent of University of Waikato. To obtain such consent, please contact the Te Piringa Faculty of Law. 7. Online support Online support for this paper is provided via Moodle. 8. Assessment a) Requirements for assessed work Te Piringa Faculty of Law procedures for the presentation, submission and referencing of course work are set out in the Te Piringa Faculty of Law Undergraduate Handbook @ p.33 which is available from http://www.waikato.ac.nz/law/undergraduate. Assignment resources are available online at http://www.waikato.ac.nz/law/student/ b) Coursework: Final Examination Ratio: Course Work: Final Examination: c) Assessment Components Component Component Essay In class test 5 40% 60% Percentage of overall mark % Final Mark 20% 13 % Date Assigned 28 April Due date Due Date June 15 August 18 Quizzes 5% Tutorial Attendance & Prepared Participation Final Exam 2% 60% 7 over the year, see lecture schedule for Quiz weeks 5 per semester, see lecture schedule for tutorial weeks. To be announced ASSESSMENT COMPONENTS: Quizzes Completion of (generally) tri-weekly quizzes throughout Semesters A and B, are worth 5% of your total grade. Research indicates that completion of preparatory material significantly increases student success rates so we allocate marks for successful preparation. You can use any materials you wish while you are doing the quizzes and they can be accessed from anywhere that you can log onto Moodle. The quizzes will be opened at 12pm on the Friday each quiz week, and you will have 24 hours to access and complete the quiz. Once accessed, you have up to 3 hours (way way more than enough time!) to complete the quiz. After 3 hours, your access will be closed. The entire quiz enterprise will close completely at 12pm Saturday, so you must COMPLETE the quiz before that time. There are 7 quizzes in all and your final mark for this component will be calculated by adding up the 5 best quiz marks. Quizzes are designed both to help your learning and to give you the chance to earn marks that can improve your overall grade. There will be no make-up quizzes, no extensions, no exceptions. Short Essay An essay, of 5 pages in length, analyzing a topic to be given out the week of 17 March, must be submitted via Moodle (http://elearn.waikato.ac.nz), by June 15 at 4.00pm. The essay question will be available on Moodle. The mark awarded for this essay will constitute 20% of the final mark. COMPLETION OF THE ESSAY IS AN ESSENTIAL REQUIREMENT OF THE COURSE, students who do not complete the essay are not eligible to pass the course, except if special consideration has been granted. See section 8f(ii) below. Test A class test will be take place in the first hour of the lecture of the 18 August. The mark awarded for the Class Test will each constitute 13% of the final result in the Constitutional Law paper. Both the Essay and the Class Test are designed to give students the opportunity to analyse a Constitutional Law topic, to recognize Constitutional Law issues, and to use relevant material and concepts to explore those issues in a critical and sound manner. The Class Test also provides the students an opportunity to experience working under exam conditions. SITTING THE CLASS TEST IS AN ESSENTIAL REQUIREMENT OF THE COURSE, students who do not sit the IN CLASS TESTS are not eligible to pass the course, unless special consideration has been granted.* 6 *If you are prevented from sitting a test, you must file for special consideration in order to PERHAPS be eligible for a make-up test. See section 8f(ii) below for instructions should the situation arise. The University regulations referred to therein impose strict conditions on eligible circumstances and a strict deadline, so act immediately should this occur for you. Tutorials Attendance and prepared participation at tutorials is an important part of consolidating your learning, and developing your skills at constitutional and legal problem solving, as well as working with and analysing constitutional and legal material. Your regular attendance and prepared participation at tutorials will count towards 2% of your final mark. Attendance at tutorials is also required for satisfactory completion of the paper End of Year Examination In the formal end of year examination (worth 60% of the final grade), students will be required to answer a number of questions covering the content of the entire paper including tutorial topics. The time and date of the exam will be announced during the second semester of the paper. This exam is a closed book 3 hour exam. d) Handing in, marking time and collection All assignments must be submitted electronically through Moodle (http://elearn.waikato.ac.nz). See Te Piringa Faculty of Law Undergraduate Handbook, available at http://www.waikato.ac.nz/law/undergraduate. It is the policy of Te Piringa Faculty of Law to return marked work to students within five weeks of submission. If you require assistance with Moodle, or encounter any problems, please contact the Help Desk. You can send a message to Help Desk by using the instant message service in your paper (from the participants list within the People block). Alternatively, you can email them directly at help@waikato.ac.nz or call 838 4008. e) Measurement of Achievement Achievement in examinations and tests will be measured primarily in terms of levels of understanding and knowledge gained. Achievement in assignments will be measured also in terms of fluency and accuracy of expression and referencing. Major deficiencies in structure, style, grammar and spelling will result in lower marks. f) Management of assessment deadlines, process for requesting extensions and special consideration, and for appeals (i) Extensions Students are required to complete and submit all internal assessments by specified dates. The meeting of deadlines is a mark of professionalism and its enforcement is essential for fairness to all students taking the paper. Handing in course work on or before the due date also facilitates the timely return of marked work by academic staff. Students should meet requirements as to time deadlines for course work, or make a request for an extension or special consideration in 7 appropriate circumstances (see Undergraduate Programmes Manual available from the School of Law Undergraduate website http://www.waikato.ac.nz/law/undergraduate/). Failure to comply with requirements as to the time deadlines for internal assessment without having successfully applied either for an extension or special consideration with supporting evidence before the due date will result in deduction of 2.5 marks for each day the work is late. Lateness of more than a week may result in the work not being marked. No deadlines may be extended beyond two weeks after the last teaching day of the semester(s) in which the paper is taught as final grades must go to the Board of Examiners at this time. Unless an extension in writing has been granted, a lecturer may refuse to accept a piece of work which is submitted after the specified date, and automatically award it no mark, or may lower the mark as a penalty for lateness. Applications for extension, on the form obtainable from the Law Reception, must be submitted to the Chief Examiner or nominee. Students should not submit the extension form to the lecturer, nor should students seek extensions from the lecturer via other forms of communication. Extensions will be granted only on evidence of illness, family bereavement, or serious personal accidents or circumstances. Please note that too many assignments due at the same time is NOT an acceptable reason, neither are claims that computers and/or printers have crashed. Account will be taken of the time in which the student has had to complete the internal assessment before the intervening event occurred. It will be important to consider if the grant of the extension will give the student in question an unfair advantage over other students. A maximum period of 14 days will be given as an extension unless there are exceptional circumstances. In determining applications the Chief Examiner or nominee may consult with the Convenor or lecturer of the relevant paper. When the Chief Examiner or nominee has made a decision on the application for extension, the nominated Administrative Assistant will advise the student of the decision by email. Following this, the extension form will be given to the relevant lecturer who will retain it until after the assignment is marked and returned to students. The form will then be placed on the student’s file. It should be noted that if an extension of longer than 14 days is granted, the assignment will not be automatically printed out and delivered to the lecturer, therefore the lecturer is responsible for ensuring the assignment is printed. In appropriate cases, when a student’s application for extension is declined the Chief Examiner or nominee will inform the student of the process for applying for special consideration. ii) Special Consideration The Assessment Regulations 2005 as set out in the University Calendar 2015 list in detail the university-wide policies and procedures, which apply concerning missed examinations, impaired performance or impaired preparation time for an examination, and missed or impaired course work. Students are responsible for ensuring that they comply with these regulations. Application forms for special consideration for internal assessment are available from law reception. iii) Appeals (University Calendar 2015, Assessment Regulations 2005, Reg. 24) A student may appeal against any decision taken under these regulations. An appeal, comprising a written statement of the circumstances of the appeal, together with supporting evidence if available, must be submitted by the student in writing to the Head of Student & Academic Services not more than seven days after the date on which notification of the relevant decision is received. 8 Appeals under this section are considered and decided by the Deputy Vice-Chancellor by delegated authority of the Education Committee. A decision by the Deputy Vice-Chancellor is notified in writing, and is final. iv) No electronic devices are allowed in any internal tests or exams. v) If you wish to submit your Internal Assessment in Māori, you need to obtain an application form from the Law Reception at least 14 days before the assessment is due. vi) If you wish to apply to write your official exams in Māori, you need to complete the official application form from the University’s Assessment Office. (refer to the Policy on the Use of Māori for Assessment in the University Calendar) 9. University Calendar Regulations and Policies Your attention is drawn to the following regulations and policies, which are published in the University Calendar 2015: Assessment Regulations 2005 Student Discipline Regulations 2014 Computer Systems Regulations 2005 Policy on the Use of Māori for Assessment Student Research Regulations 2008 Ethical Conduct in Human Research and Related Activities Regulations 2008. 10. Links to other papers Constitutional Law is fundamental to a student’s understanding of the constitutional system in New Zealand, and is integral component to the development of students’ analytical and writing skills across the Law One programme. The Paper has strong linkages with Systems and Societies, Legal Method, Jurisprudence and Administrative Law. 11. Fees Refer to http://calendar.waikato.ac.nz/admission/tableoffeesandcharges.html. 12. (a) (b) 9 Referencing guidelines and caution against plagiarism Referencing must be in accordance with the New Zealand Law Style Guide (2nd Ed) Thomson Reuters 2011. All written work submitted for the purposes of assessment must be your own work. Copying or paraphrasing all or part of another person’s work, be it published or unpublished, without clear attribution, is plagiarism. Plagiarism is misconduct and is dealt with under the disciplinary procedures of the University as outlined in the Student Discipline Regulations 2014 in the University Calendar. “Plagiarism means presenting as one’s own work the work of another, and includes the copying or paraphrasing of another person’s work in an assessment item without acknowledging it as the other person’s work through full and accurate referencing; it applies to assessment presented through a written, spoken, electronic, broadcasting, visual, performance or other medium.” See section 3, Assessment Regulations (2015 Calendar) (c) The Te Piringa Faculty of Law’s policy regarding plagiarism is Te Piringa Faculty of Law Undergraduate Programmes Manual, available from: http://www.waikato.ac.nz/law/undergraduate/. 13. Health and safety The Law School’s Health and Safety representative is Ms Renee Rewi in LAW.G 71 on extension 6727, but if she is not available, please report the incident to the Law Reception - Room Law G.44 or call ext 4167. 14. Class representation Contact details for the Student Representation Coordinator, Academic Services Division, are as follows: Jeanie Richards, Student Services, ext. 8221, email: student.reps@waikato.ac.nz. 15. Complaints procedures The brochure Student Concerns and Complaints Policy provides details of the University’s process for handling concerns and complaints and is available from Faculty and School Offices, The Gateway and Student Services Division and is contained in the Calendar 2015. See also the document Student Support Structure at Te Piringa Faculty of Law, available from law reception. 10 Lecture Schedule A Semester Week Commencing Programme of lecture topics 2 March (Semester A Starts) PART 1: Constitutionalism: What is it, why and how does (or doesn’t) it work? Introduction: Constitutional Law Tools for Balancing and Taming the Power of the State Law, Power & The State – Its Changing Nature Legal Fundamentals, Rule of Law & Separation of Powers: considering a primary NZ Constitutional Case 9 March Constitutionalism and Constitutional Concepts in New Zealand and globally Constitutional Concepts: Constitutions Written and Unwritten; Constitutional culture, rules and understandings. Constitutional Conventions 16 March QUIZ WEEK TUTORIAL WEEK Constitutional Legitimacy, Authority and Effectiveness: What are these and how do constitutions attain and retain them? 23 March Public Power, Constitutionalism and New Zealand’s First (Indigenous) Peoples The Treaty of Waitangi and the Doctrine of Aboriginal Title as limitations on public power Founding Documents 11 30 March (3 April Good Friday) TUTORIAL WEEK The Doctrine of Aboriginal Title 6 April (Easter Monday & Tuesday) Teaching Recess 13 April Teaching Recess 20 April (25 April Anzac Day) QUIZ WEEK Historical Developments post-founding documents and understandings. 27 April (27 April ANZAC Day - observed) TUTORIAL WEEEK New Zealand’s Constitutional Arrangements Overview What is the New Zealand Constitution? Contested History 4 May New Zealand’s Matured Constitutional Arrangements – Have they worked? Late 20th Century Crises of Public Trust and Legitimacy Public Choice Theory and Capture of Institutions of Power 11 May QUIZ WEEK TUTORIAL WEEK New Zealand’s Electoral Reforms of the 1990s: Repairing Legitimacy New Zealand’s Electoral Reform 18 May Post Electoral Reform Developments: Indigenous rights v ‘Bridled’ majoritarian power: Statutory case studies 25 May TUTORIAL WEEK Constitutionalism Colonisation 1 June (1 June Queen’s Birthday) QUIZ WEEK Where to from here? Other methods of protecting rights and restraining power? 8 June Study Week 12 in the Context of 15 June ESSAY DUE Examinations 22 June Examinations 29 June Teaching Recess 6 July Teaching Recess/Enrolment Lecture Schedule B semester Week Commencing Programme of lecture topics 13 July (Semester B Starts) PART 2: Details of Constitutional Conventions and Institutions: Separation of Powers (Functions) and Rule of Law as tools to constrain public power in theory and in Fact Conventional Rules and Doctrines and Parliamentary Sovereignty, what separates Parliamentary Sovereignty from Mob Rule? 20 July Conventional Rules and the Executive: Representative Responsible (Cabinet) Government - Parliamentary Agent or Master? 27 July QUIZ WEEK TUTORIAL WEEK Conventional Rules and the Constitutional Role of the Judiciary: Rule of Law and how Judges DO Rule of Law and Constitutionalism. 3 August The Royal Prerogative: The Conventional and Legal Roles of the Governor General in our Constitutional Arrangements – an Effective Constitutional Guardian? 10 August TUTORIAL WEEK The Convention of ‘The Fourth Estate’ - The Freedom of speech, freedom of information and freedom of the press as essentials to the legitimacy of democratic constitutionalism and electoral oversight of Parliamentary Sovereignty 13 17 August IN CLASS TEST: 1 Hour Review: In search of NZ’s constitutional grundnorm(s?) 24 August Teaching Recess 31 August Teaching Recess 7 September PART 3: Controls on the exercise of public powers under Law: Rights as Restrictions of Public Power Rule of Law and Crown Liability: Remedies against the State? Liabilities and Immunities under Statute, Torts, and Contracts 14 September (17 September Kingitanga Day) TUTORIAL WEEK Introduction to enumerated rights: The International and Comparative Context: The French and American Bills of Rights of the late 18th century and their Australian, Canadian and European Progenies The International Covenants of 1966 (ICCPR, ICESCR) 21 September QUIZ WEEK The Domestic Framework for Rights Protection NZBORA 1990; Human Rights Act 1993 as amended 2001; 28 September TUTORIAL WEEK The New Zealand Bill of Rights 1990; sections 4, 5 and 6 5 October Substantive rights case studies: Bill of Rights Act and/or the Human Rights Act in action 12 October TUTORIAL WEEK QUIZ WEEK The Attorney General’s Duty to Report to Parliament; s 7 NZBORA 1990 14 19 October Study Week 26 October (26 October Labour Day) Examinations 2 November Examinations 15