The rule of Law (ROW) is an ambiguous concept and has been defined differently by different scholars. However, all agree that it forms part of the three principles that dominate New Zealand’s constitutional law. These principles are parliamentary supremacy, the separation of powers and the ROW. Although ambiguous, the main attribute of the ROW is the clear placement of restrictions it creates on arbitrary power. Rule by law instead of rule by man. This form of restriction occurred in Entick v Carrington. It was held that action taken by any government officials must be justified by positive law. In this particular situation, the bill aims to act as positive law to justify action taken by the HuaWhenua City’s officers against gang members wearing
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Formal and substantive conceptions. Formal conception disregards the content of law. Raz endorses the formal conception by defining the ROW through two overarching concepts: that "people should be ruled by the law and obey it" and "the law should be such that people will be able to be guided by it". Principles that are attributed to his notion include having the law as clear, open, prospective, relatively stable and general. Morality does not play a strong role in the formal conception. Hence, in this circumstance, the law is not general, but rather targets a particular group in society. However, he states that officers should be given discretionary powers. Clarity is an issue in s 4(b), by stating that the definition of gang also includes “any other specified organisation, association, or group of persons”. This is vague and broad, its reference to s 5 does not add clarity since it does not explain what circumstances are to be found “reasonably necessary” for a resolution to be made. This is difficult to pinpoint and for people to be guided by …show more content…
Although S 5(2) orders the council to consult with the community, s 5(3), the council still holds the power to decide whether the resolution is necessary or not, regardless of the community’s opinion. It also does not specify how and which part of the community is to be contacted. On the other hand, the legislation does provide officers with discretionary power in s 7. Analogously to Entick, where an officer searched the plaintiff’s residence without a warrant. Nonetheless, through s 7, it becomes state necessary that the officers arrest persons displaying or wearing gang insignia without a warrant. This was deemed unfit with the ROW, since it was not supported by positive law. This distinguishes that case since the legislation will act as positive
Formal and substantive conceptions. Formal conception disregards the content of law. Raz endorses the formal conception by defining the ROW through two overarching concepts: that "people should be ruled by the law and obey it" and "the law should be such that people will be able to be guided by it". Principles that are attributed to his notion include having the law as clear, open, prospective, relatively stable and general. Morality does not play a strong role in the formal conception. Hence, in this circumstance, the law is not general, but rather targets a particular group in society. However, he states that officers should be given discretionary powers. Clarity is an issue in s 4(b), by stating that the definition of gang also includes “any other specified organisation, association, or group of persons”. This is vague and broad, its reference to s 5 does not add clarity since it does not explain what circumstances are to be found “reasonably necessary” for a resolution to be made. This is difficult to pinpoint and for people to be guided by …show more content…
Although S 5(2) orders the council to consult with the community, s 5(3), the council still holds the power to decide whether the resolution is necessary or not, regardless of the community’s opinion. It also does not specify how and which part of the community is to be contacted. On the other hand, the legislation does provide officers with discretionary power in s 7. Analogously to Entick, where an officer searched the plaintiff’s residence without a warrant. Nonetheless, through s 7, it becomes state necessary that the officers arrest persons displaying or wearing gang insignia without a warrant. This was deemed unfit with the ROW, since it was not supported by positive law. This distinguishes that case since the legislation will act as positive