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legal studies

lg201 why we have laws ncea level 2

2011/3


legal studies ncea level 2

Expected time to complete work This work will take you about 12 hours to complete. You will work towards the following standard: Unit Standard 8543 (Version 4) Describe the role of law and its relationship with New Zealand society Level 2, Internal 2 credits In this booklet you will focus on these learning outcomes: •• describing the differences between laws, rules and customs •• identifying the reasons for laws in society •• describing the characteristics of an effective law •• understanding how laws reflect values in society. You will continue to work towards this standard in booklet LG202.

Copyright © 2011 Board of Trustees of Te Aho o Te Kura Pounamu, Private Bag 39992, Wellington Mail Centre, Lower Hutt 5045, New Zealand. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means without the written permission of Te Aho o Te Kura Pounamu.

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contents 1

Life without law

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Rules, customs and laws

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Effective laws

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Why we have laws

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The law and you

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History of New Zealand law

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The Treaty of Waitangi

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The law and society

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Media file

10 Answer guide Glossary

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how to do the work When you see

Check the answer guide.

Your teacher will assess this work.

1a

Complete the activity.

You will need: •• pen, pencil, paper, ruler. Resource overview Each lesson should take about one hour. Write your answers to the self-marked activities on your own paper or in the spaces, where provided. At the end of each lesson, mark your practice work using the Answer Guide. The answers give you essential feedback. Use them to help you learn. Always: •• ensure you have attempted all activities on your own before referring to the answer guide •• check your answers carefully after you finish each activity •• add any corrections or amendments in a different colour •• try to work out why any of your answers are wrong •• study any reasons given for an answer. Phone or email your teacher if you would like to discuss your work. When you have finished the booklet, complete the teacher-marked work and send the booklet back to your teacher. It will be returned to you after it is marked. Use the glossary at the end of the booklet to revise key terms.

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life without law

A better way is to study legal studies! ‘But beware. If you are a student new to learning about the law you are liable to get hooked! The law is more than just an academic subject, it can become fascinating and compelling. In one sense you come to it fresh and yet in another it is already familiar to you. Law is about life and living, and it belongs to everyone.’ Martin Lawrence, n.d., Legal Studies, p7

newspapers and other media

Most of the materials you need to complete this course are in the booklets sent out to you. But the law is alive, it is always around you and constantly changing. So to get the most out of your study you will need to read newspapers, magazines and watch television for current cases and points of law. You will need to keep a media file, which is a collection of newspaper, magazine and other media items on relevant legal topics. Later you will be told how to keep your media file.

glossary

At the end of each booklet there is a glossary of legal and other terms used in that booklet.

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life without law

life without law

Now, as you head off into your study about the law, you are going to spend the first lesson considering what life would be like without any law. At times you may feel there is too much law and that life would be better with less of it. By the end of this lesson hopefully you will see that law is essential. 1a

Look carefully at the drawing below.

1. Identify five examples of illegal or prohibited behaviour from the drawing. 2. Take one of your examples and say: a. whether there is a possibility of conflict between the participants b. what the outcome of that conflict might be c. whether the outcome of the conflict is fair to each person involved. 3. How would law help to: a. prevent the conflicts from arising? b. balance the interests of the conflicting parties? Check the answer guide.

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life without law

case study: rwanda

Here is another more serious situation that arose in 1994 in a country where law and order broke down. It illustrates more clearly what can happen in a lawless society.

mayhem in rwanda

Rwanda became a hellhole of anarchy, murder and looting as the tribal rivalry between the Hutus and the Tutsis spread. The carnage started when the Presidents of Rwanda and Burundi died when their plane crashed at Kigali airport. It seems that the plane was shot down by the Rwandan presidential guard, who are Hutus, who then began killing all the Tutsis they could find. The violence quickly escalated as the army and civilians joined the spree. In Kigali, gangs of Hutu men went on a wild killing spree, murdering women and children on sight, and looting from abandoned shops and the houses of the dead. Bodies piled up in the streets, with the smell of decaying bodies filling the air. It seems that the Hutu civilians, armed with machetes, ruled the city and no one could control them. 1b

1. What event started the bloodshed in Rwanda? 2. Why was the bloodshed able to continue? 3. What happened to order and safety in Rwanda? 4. How do you think order and safety could have been restored? 5. What happened to the relationship between people in Rwanda? Think about which groups were suffering without protection. Check the answer guide.

lawless society and order

The words ‘law’ and ‘order’ go together for good reason. As you have seen, when the law is disregarded or laws aren’t obeyed, order can soon disappear and the opposite situation can arise, that is, chaos or anarchy. Maintaining order in society is a process of resolving conflicts between people. The law is a tool which helps maintain order.

lawless society and safety

Without law the safety of people in the community and their property is jeopardised. In the Rwandan example the armed took over. The lives and property of the rest were not safe. The law provides a means of protection for life and property. The Rwandan example may be extreme and a situation like that is unlikely to occur in New Zealand, but there have been situations in New Zealand when particular groups have been temporarily cut off from the law, such as after earthquakes or large floods, and looting has taken place. When the towns became ‘lawless’ property was no longer safe. © te ah o o t e k ur a p o un a m u

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life without law

lawless society and social relationships

In the absence of law, anarchy, that is, disorder or lawlessness can arise. Cooperation and organisation are lost and people have to fend for themselves. People will conflict but in a lawless society there is no means for resolving these conflicts. The strong will dominate, often through violence. The law provides a means for social relationships to be relatively peaceful between citizens and between organisations and provides protection for them. The law is a tool for enabling people to live together in harmony. 1c

1. Without law what is likely to happen to order, safety and social relationships? 2. Do you think there can be order, safety and friendly social relationships without law? Give a reason for your answer. Check the answer guide.

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rules, customs and laws We live in a society that is full of rules. Some are cultural customs, for example, when a man takes his hat off in a Christian church, but a woman doesn’t. There are other types of rules, such as it is a grammatical rule that a sentence ends with a full stop. But these are not laws, so how do we know the difference between rules, customs and laws?

cultural customs

A custom is the usual or habitual way of doing something and will vary according to the particular culture. Customs cover many aspects of our lives such as what we wear, what we eat and how we eat it, and how we are buried. In New Zealand the custom is for men to wear trousers, whereas in the Pacific Islands men wear lavalava. Customs also govern what we eat. In Western cultures soup is usually eaten at the beginning of a meal but in Asian countries soup is last. But there is no law about these things. If men in New Zealand want to wear dresses there is no law to prevent them or we can eat our soup last if we wish. In most cultures there are many rituals and customs surrounding birth and death, but most of these are not laws. For example, many people take the placenta of a newborn baby and bury it, but there is no law that says you must. Customs are a wide set of guidelines for social behaviour.

rules

Rules are statements about how a person ‘should’ or ‘ought to’ behave. Rules are directives on how or how not things should be done or how people should behave. Many rules have punishments if they are broken. There are many rules in society about how you should behave. Your family may have rules such as the time to be in at night and whether you are permitted to drive the car or not. Schools have rules such as finishing work set, being polite to others, not littering the grounds and many more. Clubs and other organisations also have rules about the subscription to pay, or attendance at meetings.

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rules, customs and laws

Professions, like lawyers and doctors, have ethical rules about how their members should behave. 2a

1. What is a custom? 2. Name three customs that you follow. Who else observes these customs? 3. What is a rule? 4. Name three rules that you follow. Who else do these rules apply to? Check the answer guide.

laws

So what is a law? A law is a rule or set of rules legally or constitutionally established in order to set the standards of behaviour and to punish or penalise those who offend those standards of society. Let’s look at this definition bit by bit. The first part says a law is a rule or set of rules. You already know that a rule is a directive telling people how they ought to behave. Rules have some sort of authority over people, so the first part of the definition is implying that a law is about directing and controlling, giving orders. But does this apply to all rules in society? You have already seen that it does not. The second part of the definition tells you which rules are laws. The rules that are laws are those that are legally or constitutionally established. You will look at how laws are constitutionally established later. For now you just need to know that this means laws are the rules that have been created by the legal institutions – Parliament and the courts.

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rules, customs and laws

To set the standards of behaviour refers to the generally accepted behaviour in a particular society. Where the standard set is generally accepted the law will have majority support. Laws are different for different societies, but the laws apply to everyone who lives in that society. In order to punish or penalise those who offend means that the legal institutions, such as the police or the state, will apply the laws that are legally made and punish or penalise those who break them. For example the police would not punish you for coming home late but they would punish you for stealing. You may still be punished for breaking family or club rules but not by the state. By now you should be able to see that laws have special features which distinguish them from the other rules and customs of society. These are that laws are: •• legally or constitutionally established •• enforced by punishing those who offend •• applicable to everyone. 2b

1. The Crimes Act 1961, Section 167 states that:

‘Killing is murder in each of the following cases:

• if the offender means to cause the death of the person killed •  if the offender for any lawful object does an act he knows to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting anyone.’ a. Is the above statement a law? b. What makes it a law and not just a rule or cultural custom? 2. ‘Subscriptions for the Tainui Tennis Club are $150 per annum and due by 1st November.’

Is this statement a law? Explain why or why not.

Check the answer guide.

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effective laws You have seen that laws have special features which distinguish them from rules and customs. Just because a law has these features it does not mean that the law will be obeyed and that the law will achieve the purpose for which it was passed. For laws to be effective there are some characteristics which they must have. These are that the law is: •• recognised •• acceptable •• equitable •• enforceable •• unambiguous.

recognised

Have you heard of the statement ‘Ignorance of the law is no excuse’? It means an individual charged with an offence cannot claim that they didn’t know they were breaking the law. This implies that people need to be aware that the law applies to many things they do. Of course not everyone can know every law! But there are certain laws that everyone should know, for example that murder and stealing are illegal.

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acceptable

Acceptance of the law is important. If society does not accept the law, people may not obey it. For example, in the USA in the 1920s there was a period known as Prohibition, when the manufacture and sale of alcohol was prohibited by law. However, as you may know from history or from one of the many movies made about the era, the law was not accepted by the people generally and many broke it. One famous (infamous) way people broke this law was in night clubs called ‘speakeasies’ where instead of having their alcoholic drinks in glasses they would drink them out of cups so it looked like they were having a cup of tea or coffee!

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effective laws

A more recent example of laws being deliberately broken, because they were not acceptable to some people, was in New Zealand on Anzac Day. The law stated that shops were not allowed to open before midday on Anzac Day, but many shopkeepers opened in the morning anyway. Generally the law will be accepted by society if it reflects the needs and values of the community. However, these needs and values do not stay the same, and the law needs to change too. The law does change but not always at the same speed as other social changes in the community. 3a

1. Why must a law be recognised? What could happen if most laws were not recognised? 2. Read the article and answer the questions which follow.

daughters of misery

In India, Ramesh Patel’s wife has just given birth to another daughter, but this is no occasion for joy. Ramesh looks ahead 15 or 20 years when he will have to sell everything he owns to provide a marriage dowry for her. A son would bring him money – the dowry of his wife – but this little female means he will become poorer than he already is. The Dowry Prohibition Act, passed in India in 1961 and tightened in 1984 and 1986, is a farce. When the time comes for his daughter to marry he will have to pay. For Ramesh the law does not exist. a. What is a dowry? b. What do you think the Dowry Prohibition Act tries to do in India? c. Which characteristic of an effective law does the Dowry Prohibition Act lack? d. Explain why it lacks this characteristic in India. Check the answer guide.

equitable

How often have you said ‘That’s not fair!’? Probably many times. There will have been times when you have felt that you have been punished more harshly than someone else for the same misdemeanour, times when you have felt that you have not been treated fairly. Equitable means being fair and it is important that effective laws are fair or equitable to everyone. If two people are guilty of the same offence it is expected that they would receive similar punishments. However, being fair doesn’t always mean treating everyone the same. Would it be fair to give a young child the same punishment for taking some lollies from the dairy as you would give an adult for the same offence? Or even if both people were the same age but one had a long history of shoplifting but the other did it for the first time as a dare? Obviously the law needs to have some consistency in how it treats people, but it also needs flexibility to take account of individual differences and so treat people fairly.

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effective laws

enforceable

For a law to be effective those who offend must be able to be punished or in other words the law must be enforceable. However, just creating a law and saying it will be enforced does not always mean that the law is effective. There must be ways that the law can be enforced, for example offenders must be able to be caught. An example of this idea of enforcement is in northern Australia where there is no speed limit on the back country roads. Why not, you might ask? Well, northern Australia is a vast area with huge distances between one place and another. Also, very few people live there and so there are not many police. So how would the few police they have be able to enforce a speed limit in all that wilderness?

unambiguous

Laws must be clear to everyone and not have double meanings. They need to be clear enough so that people can understand them. If people are to obey the law they must be able to understand their rights and responsibilities in relation to that law. 3b

1. What is meant by equitable? 2. What is meant by enforceable? 3. What is meant by unambiguous? 4. In each of the following situations say which characteristic(s) of an effective law is missing. a. Although it is illegal there is widespread use of marijuana across all sections of New Zealand society. b. The law in China only permitted couples to have one child, but was ignored by many. c. Māori Prisoners Act 1880 stated that ‘... it is not deemed necessary to try the natives in order to inflict punishment’. d. Drunken drivers killing others but not being charged with manslaughter. Check the answer guide.

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why we have laws Now that you know what a law is and what makes it effective you can start to think about the reasons why laws were developed. You have looked at lawless society and you saw that without laws several problems could occur. Chaos or anarchy could arise. People and property might not be safe, social relationships could break down and conflicts could arise. The main reasons why laws are developed are to: •• maintain order •• regulate social relationships •• resolve conflict •• protect people and property •• promote equity.

maintain order

The law helps to maintain order in society by prohibiting disruptive behaviour. The law states what is or is not disruptive so individuals can know what type of behaviour is expected of them. For example the law tells you that running down the main street throwing rocks through the shop windows is not acceptable behaviour! The law makes some type of behaviour ‘offences’ and will punish those who do not obey. The law also regulates many of our day-to-day activities such as working conditions, buying and selling goods, and driving. All of these laws establish boundaries of conduct and help to maintain order as you go about your daily life.

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why we have laws

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regulate social relationships

The law helps people to live together peacefully and to work cooperatively. It says what is acceptable and unacceptable behaviour. There are laws about living together in neighbourhoods; there are noise control limits, building codes and other laws to help people live together. For example, if you want to add on to your house you have to get legal permission to do this. This makes sure the addition is built to an acceptable standard and that it does not interfere with any of the neighbours’ houses. The law provides a means for social cooperation and organisation. 4a

1. Read this dialogue and answer the questions which follow.

Joe ‘I don’t think all these laws we have are necessary. I know how to behave and I shouldn’t have to conform if I don’t want to.’

Ann

‘Yeah but not everyone is good like you. Life could be chaos without laws!’

a. What does Joe mean by conform? b. Are laws necessary to tell people how to behave? c. How do laws create order? 2. Define regulating social relationships in your own words. Check the answer guide.

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why we have laws

protect people and property

The law offers people protection from harm. The law works on the basis that people have a general duty not to hurt each other or to damage each other’s property. This hurt or damage can take many forms such as: •• physical injury •• loss of or damage to property •• loss of personal reputation •• buying something defective. The law makes these actions illegal and so tries to protect people from harm. However, these activities do take place so the law also provides the right for the harmed person to take action against the people or organisation that caused the harm. The law can require compensation and/ or punishment from the person who caused the harm.

resolve conflict

Although the law states what is acceptable and unacceptable behaviour for most situations, people do not always obey those laws and disputes can arise. The law provides a way for peaceful and structured dispute resolution – it would be impossible to settle disputes if everyone tried to resolve disputes by different methods. Not everyone has the same ability to exercise their rights and the law protects those who are less able.

The law has a range of methods and legal bodies to deal with the variety of disputes that arises. For example, there is the Disputes Tribunal for consumer disputes or the Tenancy Tribunal for rental disputes.

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why we have laws

promoting equity

Equity means being fair. But life isn’t always fair and some people don’t treat others fairly. Laws are introduced to encourage fairness, such as men and women being paid the same wage for the same job, laws that prevent discrimination and laws that ensure employees are treated fairly by employers. 4b

1. What are the functions of the law? 2. Which function of the law do each of the following examples indicate? a. The Employment Authority reinstates a school principal after a claim of unfair dismissal is upheld. b. Two youths are charged with the murder of a doctor. c. Ten students are arrested for breaking windows and vandalising cars when a student party gets out of control. d. A neighbour wants permission to build a garage on his/her boundary. e. The law states that men and women must be paid the same wage for the same job. Check the answer guide.

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the law and you The law affects almost every part of your life – your birth (and in some cases even your conception), your death, your education, your marriage and your job. You make contracts almost everyday when you buy things from the shop, you eat food that is made according to certain health regulations, you observe laws when you drive on the road and live in a family. You live in a society that is bound by laws. The law influences most aspects of your life and in this lesson you will look at its impact on your life: •• in the family •• at work •• at school •• in social situations.

the law as a family member

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Everyone has some kind of family. For some people their family is their parents or guardians and brothers and sisters, while others may include in their family their grandparents, aunties, uncles, cousins and in-laws. For others their family may not include any blood relatives but instead their partners, their flatmates, their friends or even their pets! There is no one definition of a family and different laws define the family in different ways. The one thing the definitions do have in common is that being in a family means that there are rights and responsibilities in belonging to that family. Some aspects of family life that are subject to the law are marriage, divorce, and the rights and responsibilities of parents and children.

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the law and you

marriage and divorce

The law specifically states who can and cannot get married. For example, the following cannot get married: •• people under 16 years •• people already married •• people in prohibited relationships, for example, there are certain family members you cannot marry, such as your uncle or aunt.

parents and children

The law influences you and your parents from the moment you are born. Your parents have a responsibility to register your birth and give you a name. Although you can call yourself anything you like, that name is your ‘official’ name and can only be changed through the law. Parents have a responsibility to look after their children until they reach a certain age. According to the Age of Majority Act 1970, ‘a person reaches full age on attaining the age of 20 years’. So until you are 20 you are considered under the age when you can make all decisions for yourself, and your parents must provide you with minimum standards of care, such as food, shelter, clothing, medical treatment and protection from danger.

the law and education

Your education is also governed by the law. The law states: •• when you have to start school (by six years although you can start at five) •• how long you have to stay there (until 16, but you are entitled to free education until you are 19) •• what you are taught there (the National Curriculum) •• how you will be assessed (New Zealand Qualifications Authority) •• whether schools may or may not accept you as a student. 5a

1. Below is a timeline of the ages when you can legally do certain things. Copy the timeline and complete it.

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the law and you

2. Give two examples of how the law impacts on your family life. 3. Give two examples of how the law impacts on your education. Check the answer guide.

the law in social situations

The law also has a big influence on your social activities. There are laws that affect any clubs and societies you may belong to. For example, there are laws that state whether or not members are liable for any debts the club might have. There are also laws that govern other types of social (or some might say anti-social) behaviour such as drinking alcohol, smoking cigarettes, using other drugs and buying fireworks. For example: •• many drugs such as cannabis and LSD are illegal •• alcohol use is restricted to people 18 years and over •• people under 18 cannot buy cigarettes •• people under 14 cannot buy fireworks. The law also regulates social relationships, especially those that involve sex. For example, sex with certain relatives (incest) is illegal. You can only legally consent to sex, both heterosexual and homosexual, once you are 16. The law can also prevent you from being in a public place if you are under 16 and you are considered to be in danger (either from yourself or someone else).

the law and work

The world of work is also subject to the law. The law states at what age you can begin work and at what age you can retire. For example: •• you can leave school and get a job once you are 16, but before that any job must not interfere with your schooling

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•• you can retire any time you like but you will only get government superannuation (the pension) once you are over 65.

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the law and you

The law also sets minimum working conditions that you are entitled to such as: •• the minimum wage you must be paid •• the number of days of paid holiday you can take •• the number of days of paid sick leave you are allowed •• a safe and healthy workplace. The law also sets out the qualifications you need for certain types of work, for example, to be a doctor you must have a medical degree and be registered to practise. Other professions may have similar restrictions on who can do the work. 5b

1. Make a timeline to show the age when you can: a. start a full-time job b. buy cigarettes c. consent to sex d. be paid government superannuation. 2. Identify two ways the law influences social situations. 3. Identify two ways the law influences work. Check the answer guide.

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history of new zealand law New Zealand has a collection of its own laws called New Zealand law. It is interesting to see how this collection of New Zealand law reflects its Māori and British colonial pasts.

māori law

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The Māori community had a recognised legal system that guided, monitored and controlled its society for centuries. The traditional Māori ideals of law had their basis in religion and the mystical. These became oral traditions and sacred beliefs. Like all legal systems it developed a rational and practical way to deal with questions of mana, security and social stability. There were laws of: •• Tangaroa which related to the use and protection of fisheries •• taonga which related to the exchange of ‘treasures’ •• dispute settlement and punishment of offenders. An important aspect of Māori law was the belief that antisocial behaviour resulted from an imbalance in the spiritual, emotional or social wellbeing of an individual or whānau. This belief led to an emphasis on the group rather than the individual. Tribal histories are full of examples where a whānau had to accept the consequences of a member’s wrongdoing. The institution of muru illustrates this idea of group responsibility.

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history of new zealand law

muru

Muru is a method of dispute resolution where a wrongdoer’s whānau had to ‘pay’ the offended person or family for the wrongdoing. The utu, or price of compensation, was decided through ritualised kōrero (discussions).

rāhui

Another important aspect of Māori law is ‘rāhui’. Rāhui is when activities are banned for a certain time. It was (and still is) used to prohibit entry to areas polluted by death, to ensure the conservation of food supplies and to act as a control over other resources.

tapu

Tapu is very complex and is a major force in Māori life and law, because every person is regarded as being tapu or sacred. Tapu is important because it makes everyone obey the acceptable behaviour established by the ancestors. Any breach of tapu would be punished. Māori observed these laws for hundreds of years. Many of these laws are still practised as customs, such as tapu and rāhui, but they are not codified (organised) into the body of New Zealand law.

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history of new zealand law

british law

When the early European settlers arrived in New Zealand they brought with them traditional British laws that had governed them for hundreds of years. New Zealand law today is based on these traditional British laws, so let’s have a brief look at their history.

1066 – the norman conquest

Britain’s legal system began as local customs. This was called common law. Most legal disputes were heard by gatherings of important local leaders (moots). After the conquest of England by Duke William of Normandy (the Norman Conquest) there were the beginnings of a government which became the supreme law-making body. Parliaments, which consisted of the king’s nobles, were summoned to discuss the business of ruling and law. The courts became kings’ courts and the legal system moved away from being locally based. The system of government established after the Norman Conquest relied on an unspoken agreement between the leader (generally the king) and the subjects. The agreement was that rulers had obligations to protect the citizens from outside enemies and to keep the peace. In return the citizens would pay taxes and support the king against enemies.

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history of new zealand law

1215 – the magna carta

By 1215 the ‘agreement’ between the citizens and King John was breaking down. King John had tried to fight an unsuccessful war to recover Normandy for the English crown. But this was a huge drain on the wealth of the country. Taxes were set at extortionate rates and those who refused (or couldn’t pay) were imprisoned and their land was confiscated.

The barons rebelled against King John and forced him to sign the Magna Carta at Runnymede. The key rights that John had to grant were that: •• all free men were to be tried by their peers (equals), not the king •• no free men were to be imprisoned without a trial •• no one should be dispossessed of their land without a trial •• the king was bound by the law in the exercise of his power. The importance of the Magna Carta is that many of the basic legal rights we have today came from it and it is still part of New Zealand law. The Magna Carta is considered to be the first statute, that is, a formally written law. 6a

1. What similarities are there between Māori law and early English law? 2. Why are rāhui and tapu now considered to be customs rather than laws? 3. Why do you think the Magna Carta is sometimes called the ‘great document of freedom’? Check the answer guide.

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history of new zealand law

1689 – bill of rights

The Magna Carta began the process of taking the power away from the rulers and giving it to the people. This process continued over several centuries and has developed into the democratic style of law making and government we have today. Another important period in this development of the law was the civil war in England in the seventeenth century over who controlled the country – Parliament or the Crown? The result of this war was the Bill of Rights signed in 1689. Some of the key points in the Bill of Rights are that: •• Parliament was established as the supreme law-making body, not the sovereign (king or queen) •• the sovereign must obey the laws made by Parliament •• taxes can not be raised without the consent of Parliament •• the freedom of speech in Parliament is not to be questioned. The Bill of Rights also repeated some aspects of the Magna Carta, particularly that no free man should be imprisoned or punished without trial and that he should be tried by his peers. However, you should know that these rights did not apply to everyone – only free men. Women, children, servants and slaves were excluded. The Bill of Rights established the partnership between the Parliament and the Crown that is still in operation today, which is that Parliament creates the laws but they are still subject to royal assent. That is, that the king or queen, or their representative the Governor-General, still approve all laws passed by Parliament. The Governor-General can veto bills but by convention never does.

new zealand constitution act 1852

The New Zealand Constitution Act 1852 has since been replaced by the Constitution Act 1986, but at the time when it was passed it established the political and legal framework of New Zealand. In other words, this Act said that all the laws and the legal system of Britain applied in New Zealand from that time on. The New Zealand government did not have to make new laws for New Zealand; all the British laws applied here as well.

6b

1. The Magna Carta started a trend for law making to be taken away from the ruler and given to the people. How did the 1689 Bill of Rights continue that trend? 2. It has been said the next step in this trend for New Zealand is to remove the provision of royal assent. Write two or three sentences giving your opinion as to whether New Zealand laws need royal assent. Check the answer guide.

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7

the treaty of waitangi The Treaty of Waitangi is an agreement between the British Crown and the Māori tribes signed in 1840 to secure: •• New Zealand as a British colony •• autonomy for Māori •• citizenship for all New Zealanders. When the Treaty was signed, New Zealand became subject to the laws of England because the Māori, by signing the Treaty, conceded sovereignty to the British. It was at this point that English common law, the Magna Carta and the Bill of Rights, became part of New Zealand law.

So what is the place of the Treaty in New Zealand law today? First you need to know what the Treaty of Waitangi says. 7a

1. Read the introduction to the English version of the Treaty of Waitangi below, and then answer the questions which follow. Her Majesty Victoria Queen of the United Kingdom ... regarding with Her Royal Favour the Native Chiefs and Tribes of New Zealand and anxious to protect their just Rights and Property and to secure to them the enjoyment of Peace and Good Order has deemed it necessary in consequence of the great number of Her Majesty’s Subjects who have already settled in New Zealand and the rapid extension of Emigration both from Europe and Australia which is still in progress to constitute and appoint a functionary properly authorised to treat with the Aborigines of New Zealand for the recognition of Her Majesty’s Sovereign authority over the whole or any part of these islands ... a. What was the Queen anxious to protect for the Māori? b. Why was this considered necessary?

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the treaty of waitangi

2. Now read the first article of the Treaty and answer the questions which follow.

article the first

The Chiefs of the Confederation of the United Tribes of New Zealand and the separate and independent Chiefs who have not become members of the Confederation cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty which the said Confederation or Individual Chiefs respectively exercise or possess, or may be supposed to exercise or possess, over their respective Territories as the sole Sovereigns thereof. a. What are the Māori chiefs agreeing to cede (give) to the Queen of England? b. Do you think, at that time, the chiefs understood the concept of sovereignty (or government)? Give a reason for your answer. Check the answer guide.

We can only guess what Māori thought of the Treaty when they signed it. But in light of Māori culture and what followed it seems likely that they saw themselves as entering into an alliance with the Queen. She would govern the settlers and Māori would continue to govern themselves as before.

article the second

Her Majesty the Queen of England confirms and guarantees to the Chiefs of New Zealand and to the respective families thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess ... This article is guaranteeing the Māori at least the same rights to their land as outlined in the Magna Carta and the Bill of Rights. Some commentators (for example, E T J Durie in The Treaty in Māori History) believe the Māori text goes further than this by guaranteeing tino rangatiratanga (full authority) in respect of their lands and villages. The Māori version also uses ‘taonga’ where the English version uses ‘other properties’. In Māori the word taonga means treasures both material and non-material.

article the third

In consideration thereof Her Majesty the Queen of England extends to the Natives of New Zealand Her Royal protection and imparts to them all the Rights and Privileges of British subjects. The final article then gives Māori the same rights and privileges as British people, that is the same rights as stated in the Magna Carta and the Bill of Rights. However, the Māori version translates ‘Rights and Privileges’ as ‘tikanga’ which usually refers to customs.

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the treaty of waitangi 7b

1. How do the ideas of ‘full exclusive and undisturbed possession’ and ‘tino rangatiratanga’ differ? 2. In Article the Second which version, the Māori or the English, gives greater rights and protection to Māori? Explain your answer. 3. In Article the Third, Māori are promised the ‘Rights and Privileges of British subjects’. a. What do you think that meant? b. What was promised in the Māori version? Whose tikanga would Māori expect to be protected? Check the answer guide.

the treaty in law today

In the years immediately after signing the Treaty the courts recognised the Treaty as valid and binding in law. However, following the Land Wars there was a long period in New Zealand’s history when the Treaty was not recognised in law. In 1975 the Government passed the Treaty of Waitangi Act which firmly placed the Treaty back into New Zealand law. The Treaty of Waitangi Act established the Waitangi Tribunal and gave the Tribunal the power to hear any claim that the Crown was not observing of the Treaty. This means that any action taken or any policy adopted by the Government (the Crown) must obey the principles in the Treaty. This firmly establishes the Treaty of Waitangi as a fundamental document of New Zealand law. 7c

The Māori laws of rāhui, tapu and muru are not an official part of New Zealand law. How could this contravene the principles of the Treaty of Waitangi? Check the answer guide.

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8

the law and society The law is a reflection of the culture and values of a particular society. In this lesson you will look at how the law reflects those values.

values

All societies have a set of beliefs and ideas about what is acceptable and what is unacceptable behaviour. These beliefs and ideas are the value system of society. The values current in a particular society will be reflected in the law. For example, most people would agree that murder, robbery and assault are not acceptable behaviour and should be prohibited by law. This is because people value personal safety and security. Other values are not so universal, particularly moral values. What language is obscene? What is disorderly behaviour? Should abortion or euthanasia be permitted? These are more difficult to incorporate into the law because people have different beliefs about moral values. 1. Give one value or belief that you have that is also part of the law. 2. Give one value or belief you have that is not part of the law. Check the answer guide.

values and the law

The law reflects the common values of the majority of the people in a society. New Zealand has a Māori and Western European Christian background and our law reflects that background. Let’s look at some examples of laws that reflect the values of the majority of the people.

marriage and civil unions

In New Zealand, since 2005, same-sex couples have been able to enter into a legal relationship called a civil union. This law change reflects that most people believe that same-sex relationships and marriages should both be legal. The laws of marriage vary from one culture to another. In New Zealand, since 2013, the law now allows for marriage for both different and same-sex couples. However, in some countries, one man can legally have several wives.

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the law and society

carrying weapons

As you know from American television programmes, carrying a gun in the United States is legal. However, in New Zealand it is not. New Zealand has strict laws about who may own and buy guns and other weapons. This reflects the majority view that weapons should not be carried in public. In the United States the right to carry weapons is part of the Constitution. The majority of people in the USA still want to be able to carry weapons and their law allows them to do this.

the sanctity of life

In New Zealand we have a strong belief that we should not kill another human being. Murder is illegal, we do not have the death penalty, and euthanasia is illegal. The definition of euthanasia is a ‘gentle and easy death’. Generally we think of euthanasia as the mercy killing of someone who believes in the right to die. They may be terminally ill and in great pain or not have any quality of life. These laws against killing another person reflect the values we hold. In some countries there is the death penalty and euthanasia is allowed. This reflects the different values of the people in those countries.

alcohol

The laws about drinking and buying alcohol also reflect the values of that society. Different countries have different laws about alcohol because they have different values towards alcohol. For example, in New Zealand until 1999, people under 20 years of age were not allowed to buy alcohol and most alcohol had to be bought from special shops (bottle stores). Many other countries did not have these restrictions, and in 1999 New Zealand law changed so that 18 year olds could buy alcohol and go to bars. Wine and beer could also be bought in supermarkets, but spirits still have to be bought from bottle stores. This is not the case in all countries. For example, all alcohol can be bought from supermarkets in France. On the other hand some countries ban alcohol altogther. In Saudi Arabia alcohol is illegal because Islamic religious laws are enforced. 8b

1. Why do you think different countries have different laws relating to alcohol? 2. Do you think all alcohol should be able to be bought in supermarkets? Why/why not? 3. Ask two other people their views on selling alcohol in supermarkets. Check the answer guide.

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the law and society

driving

Another value that is held in New Zealand is that people should drive on the road in a safe and reasonable way. The driving laws reflect this. There are laws about: •• who can drive •• the speed you drive at •• the side of the road you drive on •• drinking alcohol and driving. 8c

1. Do you value safe driving? 2. How do you feel when you see unsafe drivers on the road? 3. Do you think the law should enforce safe driving? Why? Check the answer guide.

personal reputation

People also value their reputation. The law recognises that you have a reputation and that other people should not wrongly defame that reputation. The law allows you to sue people who try to damage your reputation.

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9

media file An important objective of this programme of learning is to interest you in the law and how it operates in society. To encourage this, one of your tasks is to compile a media file. A media file is a collection of newspaper and magazine articles, letters and editorials and other media (for example television or the Internet) items relating to specific aspects of the law. You should send in your media file with your other activity answers.

why compile a media file? A media file will help you to:

•• relate your booklet work to real situations •• develop an awareness of the effect of the law in your life •• understand the links between the various topics you study in this course •• develop research skills.

what do you have to do? 1. collect media articles What articles? When there is a media file lesson you will be told what aspects of the law to find articles on. For example, in this lesson you have to collect three articles about any aspect of the law. In other lessons the articles will be more specific.

From where? Any media source such as:

• the Internet • newspapers • magazines • journals • radio and television items. Collecting media items is easy! Over the page is a selection of law-related articles from only one day in The Dominion newspaper.

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the dominion, 15 february 1995

media file

What would they put in newspapers without the law?

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media file

2. report

On each article you collect you will write a brief report which may include:

• the source and date of the article • the issue or area of the law • who is involved in the issue • the outcome of the issue • why the law is needed • how others not involved might be affected. The content of your report will be different in each booklet depending on what aspect of the law you are looking at. There will be questions for you to answer which will help you write your report.

3. select, compile and communicate In LG209 you will have to collect or select about 10 media articles and compile these into a media file. These will relate to areas of the following topics: • why we need laws • making the law – parliamentary law, judge-made law and local body law • changing the law • crimes • the judicial system (the courts). You will have to collect some original articles of your own. For each article you will answer a series of questions about the article to communicate certain ideas. 9a

This will be explained more fully in LG209.

Your media collection task now is to collect three articles specifically mentioning the law. For each article: a. note the date and the source of the article b. state the issue and who is affected c. state why the law is needed, that is, describe what could happen if there was no law to cover the situation. Your teacher will assess this work.

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media file

Below is an example of what to do. (The news clipping is in the left-hand column.) Your article will be a recent one.

This is what you need to write about the article.

THE DOMINION Thursday, June 23, 1994

Source: The Dominion, Thursday 23, 1994.

Stop dragging the dog chain

Issue: Dangerous dogs. The people involved are the dog owners and those who are attacked by dogs.

If the Government can shake off its seemingly terminal bout of canine torpor, New Zealand may one day have a dog law that fits the times ... Meanwhile dangerous dogs continue to savage or terrify children, passers-by, posties, meter readers and others going innocently about their affairs. If those people were to mistreat a dog they could be fined up to $5000, whereas if a dog harmed them the owner would face a maximum $500 penalty. As an SPCA inspector commented, the law does not work in favour of protecting people from dogs. It is high time it did ...

Why law is needed: The reasons for this law are to provide protection for people, to maintain order by saying that merely having dangerous dogs is not acceptable. It will also help social cohesion by allowing people to live together peacefully. The law is needed because dangerous dogs are attacking innocent people and their owners don’t seem to be able or willing to control them.

Signs are that, even now, the legislation will fall short. Some breeds could be defined as dangerous, and owners would then have to comply with special restrictions. The law needs to go further, and ban the importation of dangerous breeds outright.

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answer guide How to use the answer guide

You will be checking your own answers except in teacher-marked activities. The answers give you essential feedback. Use them to help you learn. Always: •• check your answers carefully after you finish each activity •• try to work out why any of your answers are wrong •• study any reasons given for the answer •• write any corrections on your work. Phone or email your teacher if you are having any difficulties.

1. life without law 1a

1. Five of the following: robbery, assault, armed hold-up, disturbing the peace (loud party), reckless driving, arson (lighting an illegal fire), dog not under the control of the owner. 2. You could have chosen any of the above. Here is one example. Robbery. a. Yes there is conflict between the robber and the person being robbed. b. The outcome is probably that the robber will take the goods. c. No, this outcome is not fair to the person who has had their goods stolen. 3. a. The law can help to prevent this conflict by making robbery illegal. b. The law can help to balance the interest of the parties by protecting the weaker party.

1b

1. The death of the presidents of Rwanda and Burundi in a plane crash. 2. The bloodshed continued because after the presidential guard started it, the bloodshed was carried on by civilian gangs. 3. In Rwanda order broke down and safety was compromised. 4. More force was probably needed to bring the rebels into line. 5. Peaceful relationships between the people of Rwanda broke down and without protection, the unarmed (mainly the women and children) were dominated by the armed.

1c

1. Order and social relationships are likely to break down without law as happened in Rwanda. Chaos and anarchy may occur and people’s lives and property will not be safe. 2. This answer will be your own opinion, but it is unlikely that these can be maintained without law, because there will be some people who would seek to dominate the rest. (However, as a point of interest there have been communities, such as the Mbuti [Pygmies] where peace has prevailed without any obvious law enforcement.)

2. rules, customs and laws 2a

1. A custom is a habitual or usual way of doing things. Customs are usually associated with particular cultures. 2. These answers will be individual. For example, you might celebrate Hogmanay (New Year) if you are Scottish. If you are Chinese you might follow the custom of celebrating Chinese New Year in February. Other people from the same culture will also observe these customs.

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answer guide

3. A rule is a directive telling people how to behave, but it is not necessarily enforceable by the law. 4. These answers will be individual. Some rules you might follow are those set by your parents, school, clubs. The rules would apply to the members of that family, school or club only. 2b

1. a. Yes b. It is a law because it is legally constituted in the Crimes Act. It will be enforced and it applies to everyone. 2. No, this is not a law because it is not legally constituted and it only applies to members of that club. It is not punishable by the state (for example, the police).

3. effective laws 3a

1. The people to whom the law applies must know that it is a law. If laws are not recognised people would not be able to obey them. 2. a. A dowry is a wedding payment made by the bride’s family to the groom’s family. It used to be common in Western culture as well. b. The Dowry Prohibition Act tries to prevent families demanding these payments. c. The Dowry Prohibition Act is not acceptable to most of the people it applies to. d. Dowries are an important part of Indian culture.

3b

1. Equitable means being fair. 2. Enforceable means that those who break a law must be able to be caught and punished. 3. The law must be clear to everyone and not have double meanings. 4. a. acceptable, enforceable b. acceptable, enforceable c. equitable d. equitable

4. why we have laws 4a

1. a. To conform means to behave as others behave or to obey the law. b. Not always. For example, most people would not commit murder even if it was legal. c. Laws create order because they define the boundaries of acceptable behaviour for everyone. 2. Regulating social relationships means providing ways for people to live together peacefully and cooperatively.

4b

1. Maintain order; regulate social relationships; resolve conflict; protect people and property and promote equity. 2. a. resolve conflict

b. protect people and property

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answer guide

5a

c. maintain order

d. regulate social relationships or resolve conflict

e. promote equity

5. the law and you 1.

2. The law influences your family life through marriage and divorce laws and through laws which outline your parents’ responsibilities. 3. The law influences education by: saying when you can start and finish school, what you learn there, how you will be assessed. 5b

1.

2. The law influences social situations by having laws on drug and alcohol use, and regulating certain sexual relationships. 3. The law states the starting age for work, and sets the minimum working conditions you are entitled to.

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answer guide

6a

6. history of new zealand law

1. The similarities are that Māori law and early English law were governed by customs and that they were locally based. Legal disputes were heard by local (tribal) committees. 2. Rāhui and tapu are not legally constituted into New Zealand law. They are not enforceable by the law if they are broken. Also they may not be recognised or accepted by everyone in New Zealand. 3. The Magna Carta set out some basic rights that still exist, such as no punishment without a trial and trials to be by one’s peers (that is, a jury). It freed men from being ruled completely by the king.

6b

1. The Bill of Rights 1689 continued the trend for giving more power to the people by: establishing Parliament as the law-making body, not the sovereign; allowing freedom of speech in Parliament; and by making the sovereign obey the laws. 2. This will be your own opinion as to whether New Zealand retains the monarchy or not. Many people still want the Queen to be our head of state, others think it should be an elected prime minister, or a president, as in the USA.

7a

7. the treaty of waitangi

1. a. The Queen was anxious to protect their just rights and property. b. It was considered necessary because of the large numbers of British settlers arriving in New Zealand. 2. a. The Māori chiefs agreed to cede all the rights and powers of sovereignty over their territories. b. It is unlikely as each chief governed their own tribe and there wasn’t any national government or sovereignty of Māori. It is most unlikely that any of the chiefs had knowledge of the British government and how it worked.

7b

1. ‘Tino rangatiratanga’ goes further than ‘full and undisturbed possession’ because it implies full authority over the land. ‘Full and undisturbed possession’ only implies occupation of the land. 2. The Māori version gives greater rights because it promises full authority over the land and all ‘taonga’ (treasures). The English version says ‘other properties’ which probably meant other assets such as houses, canoes and so on. 3. a. They would be promised the rights British subjects had under the Magna Carta. However, it is unlikely that the chiefs signing the Treaty would have been aware of what these were. b. They would expect that their own tikanga was going to be protected.

7c

This will be your own opinion but it could be argued that the laws of rāhui, tapu and muru were taonga and so protected by the Treaty. The Māori version of the Treaty guaranteed to protect all taonga and the Māori laws could be considered to be taonga. Therefore they should be incorporated in New Zealand law.

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answer guide

8. the law and society 8a

1. Answers here will be individual, but may include that you believe killing, stealing and harming others are wrong. 2. Again individual answers. For example, you may believe that euthanasia or smoking marijuana are acceptable, but at the moment they are illegal.

8b

1. Different countries have different alcohol laws because they have different values about alcohol. 2. This will be your own opinion. You may be in favour of supermarkets selling any type of alcohol because only people over 18 can buy it anyway. 3. This will be the views of two people you have asked.

8c

These answers will be your own opinion. Here are some examples. 1. Yes, I value safe driving. 2. It annoys me to see people passing recklessly because they could kill someone. 3. Yes, I think the law should enforce safe driving because it helps to protect people. People are in danger from reckless drivers.

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glossary acceptable

laws reflect the beliefs and values of the community

Bill of Rights document signed in 1689 to establish a partnership between the Parliament and the Crown custom

a usual or habitual way of doing things

deed poll

a legal document drawn up to change the name of a person

effective laws

are recognised, acceptable, equitable and enforceable

enforceable

mechanisms exist so that those who offend are able to be punished

equitable fair to everyone guardianship responsibility for the care of a child and to make decisions for that child’s upbringing Land Wars series of armed conflicts, between 1845 and 1872, fought over a number of issues, such as Māori land being sold to pakeha settlers law a rule or set of rules legally established in order to set the standards of behaviour and to punish those who offend those standards of society Magna Carta

freedom document signed in 1215 between King John and his barons

majority (age of) the age at which you are legally capable of making your own decisions (20 years of age) mana prestige, authority, control, power, influence, status, supernatural force in a person, place, object minor under the age of majority muru method of dispute resolution Norman Conquest

the invasion of England by Duke William of Normandy

rāhui

a ban put on a resource to conserve it

recognised

able to be understood and seen as law

rules directives on how or how not things should be done or how people should behave

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glossary

tapu holy, sacred, prohibited taonga material and non-material treasures, heirlooms tikanga custom, manner, way tino rangatiratanga

full authority

treaty an agreement between independent sovereignties unambiguous

clear to everyone and not have double meanings

whト]au extended family

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acknowledgements Every effort has been made to acknowledge and contact copyright holders. Te Aho o Te Kura Pounamu apologises for any omissions and welcomes more accurate information. Photos Cover: © iStock 601291 Extracts from articles Gardiner wants to raise, The Dominion, 21 June 1994; Stop dragging the dog chain, editorial, The Dominion, 23 June 1994, Wellington, New Zealand. Used by permission. Thanks To Nicholas Wong (a former Convenor of the Young Lawyers’ Committee) for his help in the development of this course.

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self assessment

lg201

Fill in the rubric by ticking the boxes you think apply for your work. This is an opportunity for you to reflect on your achievement in this topic and think about what you need to do next. It will also help your teacher. Write a comment if you want to give your teacher more feedback about your work or to ask any questions. Fill in your name and ID number. Student name: Not yet attempted

Didn't understand

Student ID: Understood some

I can describe the difference between laws, rules and customs. I can identify the reasons for laws in society. I can describe the characteristics of an effective law. I can understand how laws reflect values of socity. Please place your comments in the relevant boxes below. Student comment I can describe the difference between laws, rules and customs. I can identify the reasons for laws in society. I can describe the characteristics of an effective law. I can understand how laws reflect values of socity.

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Phone, fax or email your teacher if you want to talk about any of this work. Freephone 0800 65 99 88 teacher use only Please find attached letter Teacher comment

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authentication statement I certify that the assessment work is the original work of the student named above.

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