Constitution of New Zealand
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The constitution of New Zealand consists of a collection of statutes (Acts of Parliament), Treaties, Orders-in-Council, Letters patent, decisions of the Courts and unwritten constitutional conventions. There is no one supreme document — the New Zealand constitution is not codified or entrenched. New Zealand's constitution is thus similar to that of the United Kingdom and Israel.
New Zealand is a constitutional monarchy with a parliamentary system of government. This system is often known as the Westminster system. The head of state and notional source of executive, judicial and legislative power in New Zealand is the monarch, currently Queen Elizabeth II. The Queen is represented in the Realm of New Zealand by a Governor-General.
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[edit] Sources of constitutional law
The constitution includes, but is not limited to, the following sources (in alphabetical order):
| Cabinet Manual | 2001 | Conventions | Describes the conventions of the constitution. |
| Constitution Act | 1986 | Statute | Describes the three branches of government |
| Electoral Act | 1993 | Statute | Describes the election of Members of Parliament. |
| Imperial Laws Application Act | 1988 | Statute | Incorporates important British constitutional statutes into New Zealand Law, including Magna Carta, Bill of Rights (1689), Act of Settlement 1701. |
| Judicature Act | 1908 | Statute | Describes the Jurisdiction of the New Zealand Judiciary. |
| Legislative Council Abolition Act | 1950 | Statute | Abolished the Legislative Council with effect from 1951. |
| Letters Patent constituting the office of Governor-General of New Zealand | 1983 | Letters Patent | Describes the powers of the Monarch, constitutes the office of the Governor-General and the Executive Council. |
| New Zealand Bill of Rights Act | 1990 | Statute | Enumerates the Rights of Citizens against the state; enacts into law New Zealand's obligations under the International Covenant on Civil and Political Rights. |
| Supreme Court Act | 2003 | Statute | Ended appeals to the Judicial Committee of the Privy Council and established the Supreme Court of New Zealand as New Zealand's new final court of appeal. |
| Statute of Westminster Adoption Act | 1947 | Statute | Adoption of Statute of Westminster, formally granting New Zealand full independence from the United Kingdom |
| Treaty of Waitangi | 1840 | Treaty | A Treaty between Māori chiefs and the British Crown. |
[edit] Elements of the constitution
The Constitution Act describes the three branches of Government in New Zealand: The Executive (the Sovereign and Cabinet), the legislature (Parliament) and the judiciary (Courts).
[edit] Sovereign
Part one of the Constitution Act 1986 describes "The Sovereign", the reigning Monarch who is New Zealand's Head of state. Section 2(1) of the Act declares "The Sovereign in right of New Zealand" as Head of state, section 5(1) describes the Sovereign's successor as being "…determined in accordance with the enactment of the Parliament of England intituled The Act of Settlement". This means that whosoever is Head of State of the United Kingdom under the Act of Settlement 1701 shall be Head of state of New Zealand.
[edit] Monarchy
New Zealand is a constitutional monarchy. The monarchy in New Zealand has been legally distinct from the British monarchy since New Zealand ratified the Statute of Westminster 1931 with the Statute of Westminster Adoption Act in 1947. The British Crown and New Zealand Crown are thus legally distinct.
There have occasionally been proposals to abolish the monarchy and establish a republic. Unlike its neighbour Australia, New Zealand has not yet held a referendum on the matter, but a number of prominent politicians (including the current Prime Minister) believe that an eventual move to republicanism is inevitable. Opinion polls however have shown that a majority of New Zealanders favour keeping the monarchy.
[edit] Governor-General
The Queen's representative in and over the Realm of New Zealand is the Governor-General. The Office is largely ceremonial, although the Governor-General exercises a number of so-called 'reserve powers'. The Office is nominally non-partisan, the Prime Minister advises the Queen who is to be appointed as the Governor-General.
Increasingly, the Governor-General is representing New Zealand abroad and is accorded the same respect and privileges of a Head of state. It can be argued that the de facto head of state is the Governor-General while the de jure head of state remains the Queen.
[edit] Executive
- See also: Prime Minister of New Zealand
The Head of Government of New Zealand is the Prime Minister. The Cabinet, which is responsible to Parliament, exercises executive authority. (The Cabinet forms the practical expression of a formal body known as the Executive Council.) The Prime Minister, as the leader of the political party or coalition of parties holding the majority of seats in the House of Representatives, leads the Cabinet. All Cabinet Ministers must be Members of Parliament (MPs) and are collectively responsible to it.
[edit] Legislature
New Zealand has a unicameral Parliament, the normally 120-seat House of Representatives. Since 1996, New Zealand has used the mixed member proportional (MMP) system, which is essentially proportional representation with single member seats (that usually do not affect the proportionality of the House). Several seats are currently reserved for members elected on a separate Māori roll. However, Māori may choose to vote in and to run for the non-reserved seats, and several have entered Parliament in this way. Parliaments have a maximum term of three years, although an election can be called earlier. In New Zealand, everyone (male and female) aged 18 years and over can vote, women having gained the vote in 1893.
[edit] Judiciary
New Zealand's judiciary is a hierarchy consisting of the Supreme Court of New Zealand, the Court of Appeal of New Zealand, the High Court of New Zealand, and the District Courts. These courts are all of general jurisdiction. There are several other courts of specialist jurisdiction, including the Family Court, the Youth Court, the Employment Court, the Environment Court and the Māori Land Court. There are also a number of tribunals which operate in a quasi-judicial capacity, such as the Disputes Tribunal, the Tenancy Tribunal and the Waitangi Tribunal.
New Zealand law has three principal sources: English common law; certain statutes of the United Kingdom Parliament enacted before 1947 (notably the Bill of Rights 1689); and statutes of the New Zealand Parliament. In interpreting common law, the courts have endeavoured to preserve uniformity with common law as interpreted in the United Kingdom and related jurisdictions. The maintenance of the Privy Council in London as the final court of appeal and judges' practice of following British decisions, even though, technically, they are not bound by them, both bolstered this uniformity. However, in October 2003, the House of Representatives passed legislation to end this right of appeal from 2004, and to establish the Supreme Court of New Zealand in Wellington, which began hearings in July 2004.
[edit] The Treaty of Waitangi
The constitutional place of the Treaty of Waitangi is a subject of much debate. Increasingly, the Treaty is seen as an important source of constitutional law. Indeed, references to the "Principles of the Treaty of Waitangi" appear in a number of statutes, although the principles themselves have not been defined in statute. They are instead defined by a common law decision of the Court of Appeal from 1987, the famous "Lands case" brought by the New Zealand Māori Council (New Zealand Māori Council v Attorney-General). There was great concern within Māoridom at that time that the ongoing restructuring of the New Zealand economy by the then Fourth Labour Government, specifically the transfer of assets from former Government departments to State-owned enterprises. Because the state-owned enterprises were essentially private firms owned by the government, they would prevent assets which had been given by Māori for use by the state from being returned to Māori by the Waitangi Tribunal. The Māori Council sought enforcement of section 9 of the State Owned Enterprises Act 1986 "Nothing in this act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi".
The text of the Treaty itself is included in the Treaty of Waitangi Act 1975, an act which established the Waitangi Tribunal to determine issues of breaches of the Treaty. The Act was initially prospective, but was later amended in 1985 so that claims dating from the signing of the Treaty could be investigated. The 1985 amendment also included the Māori text of the Treaty for the first time.
[edit] Bill of Rights
The New Zealand Bill of Rights Act 1990 sets out the rights of New Zealand citizens against the three branches of government, and certain government entities. The Act is not entrenched or supreme law, and can be amended by Parliament by a simple majority.
[edit] History
[edit] Early history
Prior to European Settlement of New Zealand, Māori society was based largely around tribal units with no national governing body. As contact with Europeans increased, there became a need for a single governing entity. In 1788 the colony of New South Wales was founded. According to Governor Phillip's amended Commission dated 25 April 1787, the colony included "all the islands adjacent in the Pacific Ocean" and running westward on the continent to the 135th meridian. Until 1840, this technically included New Zealand, but the New South Wales administration had little interest in New Zealand. Amid increasing lawlessness and dubious land transactions between Māori and Europeans, the British Colonial Office appointed James Busby as British Resident to New Zealand.
Busby convened the Confederation of Chiefs of the United Tribes of New Zealand, which adopted the Declaration of Independence of New Zealand at Waitangi in 1835. While this Declaration was acknowledged by King William IV, it did not provide a permanent solution to the issue of governance. In 1839 Letters Patent purported to extend the jurisdiction of the colony of New South Wales to New Zealand, in effect to annex "...any territory which is or may be acquired... within that group of Islands known as New Zealand". The exact legal effect is unknown, however the Colonial Office recognised that it had not annexed New Zealand by its subsequent actions. It later appointed Captain William Hobson to acquire British sovereignty over New Zealand by Treaty.
On 6 February 1840, the Treaty of Waitangi (Te Tiriti o Waitangi) is first signed at Waitangi. On the 21 May Hobson issued proclamations of British Sovereignty over New Zealand. The basis of the proclamations was discovery of the South Island and Treaty for the North Island. The proclamations were largely made in response to the New Zealand Company settlements in Port Nicholson (Wellington and Britannia, later Petone) establishing their own 12-member governing council. Hobson sought to prevent the establishment of what he saw as a 'republic', that is, an independent state outside of his jurisdiction. Later that year Letters Patent were issued pursuant to the New South Wales Continuance Act (Imperial), which recognised New Zealand as a dependency (sub-colony) of New South Wales. Hobson was then declared Lieutenant-Governor of New Zealand and divided the colony into two provinces (North Island — New Ulster, South Island — New Munster) after the Northern and Southern Irish provinces. In 1841, New Zealand was established as a colony in its own right.
[edit] Self-government
The Imperial Parliament (Westminister) passed the first New Zealand Constitution Act empowering the government in New Zealand in 1846. The Act was to be fully implemented in 1848, but was never put in place because the Governor-in-Chief at the time, Sir George Grey, declined to apply it for a number of reasons. Instead, the Act was suspended for five years. Grey ruled with the powers of a dictator for the next five years; appointing Provincial councils at his pleasure.
Following the suspension of the 1846 Act, the Imperial Parliament moved again to grant New Zealand self-government with the New Zealand Constitution Act 1852. This Act was based almost entirely on a draft by Sir George Grey, the main difference being the appointment of the Governor by the Secretary of the Colonies, and not by the (New Zealand) House of Representatives. The new Act did not take affect in New Zealand until 1853.
The Act provided:
- That New Zealand be divided into six provinces. Each province had an elected Superintendent, and the power to pass sub-ordinate legislation (Ordinances). The Governor retained the right to veto legislation, and the Crown also had a right of disallowance within two years of the Acts passage;
- A General Assembly comprising the elected House of Representatives, appointed Legislative Council (Upper House) and the Governor was constituted to pass law for the: "...peace, order and good government of New Zealand";
- An Executive Council consisting of the Governor and Ministers.
The first enactment of the first Parliament of New Zealand elected under this Act was the English Laws Act of 1854, which affirmed the application of all English statutes in existence as at 14 January 1840 to New Zealand; specifically the Bill of Rights 1689, and Habeas Corpus. The powers of the New Zealand Parliament were clarified by the Colonial Laws Validity Act (Imperial) of 1865, which allowed a measured amount of legal independence. Under the Act, the New Zealand Parliament could pass laws inconsistent with British statutes or the common law, so long as Imperial statute was not specifically applicable to New Zealand. Where this occurred, the New Zealand statute would be void.
The first major reform of the 1852 Constitution Act came in 1876 with the Abolition of Provinces Act, which repealed section 2 abolishing the Provinces from 1 January 1877, thus centralising New Zealand’s government in its bicameral Parliament.
In 1891 the composition of Legislative Council was changed, Councillors were no longer appointed for life; instead for terms of 5 years.
[edit] Dominion and Realm
The Imperial Conference of 1907 resolved to allow certain colonies to become independent states, termed 'Dominions'. Following the Conference, the House of Representatives passed a motion requesting that King Edward VII "take such steps as he may consider necessary; to change New Zealand's official name from 'The Colony of New Zealand' to 'The Dominion of New Zealand'. Prime Minister Sir Joseph Ward prompted to move to "…raise up New Zealand" and assured that it would "...have no other effect than that of doing the country good". On 9 September a Royal Proclamation granting New Zealand Dominion status was issued by King Edward VII. The proclamation took effect on the 27 September. As a result, the Office of Governor became Governor-General in 1917 to reflect more fully New Zealand's status as a Dominion.
In 1908 two enactments of constitutional importance were passed: the Judicature Act, which describes the Jurisdiction of the New Zealand Judiciary; and the Legislature Act, setting out the powers of Parliament. The latter is now largely repealed, and now preserves Parliamentary privilege.
Imperial Conference of 1926 affirmed the equality amongst Britain’s Dominions. In respect of the Governor-General, the Declaration stated that they held: "…the same position in relation to the administration of public affairs in the Dominion" as was held by the monarch in the United Kingdom. The Governor-General was thus bound by the advice of their responsible Ministers.
To give affect to the 1926 conference declarations, the Statute of Westminster 1931 was passed thus lifting the restrictions created by the Colonial Laws Validity Act 1865 so long as New Zealand adopted for the Statute as its own law. This occurred in 1947 with the Statute of Westminster Adoption Act. At the request of the New Zealand Parliament, Westminster passed the New Zealand Constitution Act (Request and Consent Act) to give affect to the Statute. Thus the New Zealand Parliament gained full sovereign powers to amend its own Constitution Act, although Westminster could still pass laws at the request of the New Zealand Parliament and New Zealand became an independent 'Realm'. It was not until the 1983 Letters Patent, the first amendment of the Letters Patent since 1917, that New Zealand is correctly described as the 'Realm of New Zealand'.
On the election of a National Government promising to abolish the Legislative Council in 1950, the Council was stacked with the so-called ‘suicide squad’ to allow the passage of the Legislative Council Abolition Act 1950 by the House of Representatives to abolish the Upper House. Despite proposals to re-establish an upper house, notably Jim Bolger's Senate proposal in 1990, New Zealand's Parliament remains unicameral.
In 1960 the Constitutional Society for Economic Freedom and Justice (CSEFJ) was formed to advocate a written constitution, restoration of the upper house of Parliament and a Bill of Rights. The society presented a petition to Parliament for a written constitution in 1961.
[edit] Reform
[edit] Constitutional crisis
Following the election of the Fourth Labour Government in 1984, a constitutional crisis arose. The incumbent Prime Minister Sir Robert Muldoon refused to implement the instructions of Prime Minister-elect David Lange to devalue the New Zealand dollar to head off a speculative run on the dollar. The crisis was resolved once Muldoon relented three days later, under pressure from his own Cabinet, which threatened to install the Attorney-General Jim McLay in place of Muldoon.
[edit] Official Committee on Constitutional Reform
The new government formed an Official Committee on Constitutional Reform to review the transfer of power following the constitutional crisis earlier in the year. As a result of the Committee, the Labour Government released the Bill of Rights White paper and also introduced the Constitution Act, the first major review of the New Zealand Constitution Act for 134 years. Prior to the 1986 Act, only 12 of the 82 provisions of the 1852 Act remained in place. The Act consists of five main parts:
- The Sovereign;
- The Executive;
- The Legislature;
- The Judiciary;
- Miscellaneous provisions
Along with this Act, Parliament also passed the Imperial Laws Application Act 1988 to clarify which English Acts are to apply to New Zealand.
[edit] Treaty of Waitangi
The Labour government also passed the Treaty of Waitangi Amendment Act 1985, which amended the previous Labour government's Treaty of Waitangi Act 1975, which put the Treaty of Waitangi in statute for the first time and created the quasi-judicial Waitangi Tribunal to address alleged breaches of the Treaty of Waitangi. The 1985 amendment included the Māori version of the Treaty (Te Tiriti o Waitangi) in statute for the first time and empowered the Waitangi Tribunal to consider claims dating back to 1840.
[edit] Electoral system
The fourth Labour government also began the process of electoral reform. It convened the Royal Commission on the Electoral System in 1986. The Commission suggested New Zealand change to the Mixed-Member Proportional ('MMP') electoral system.
[edit] Bill of Rights
- See also: Electoral reform in New Zealand
The last major constitutional reform of the fourth Labour Government was the New Zealand Bill of Rights Act 1990. This Act puts New Zealand’s commitment to the 1977 International Covenant on Civil and Political Rights (ICCPR) into affect in New Zealand Law. However, the Act is neither entrenched nor supreme law (as was mooted in the White Paper of 1985) and can be repealed by a simple majority of Parliament.
[edit] Reform
Because it is not supreme law, the constitution is comparatively easy to reform, requiring only a majority of Members of Parliament to amend it, as illustrated by the abolition of the Legislative Council in 1950.
[edit] Referendum
There is no requirement for a referendum to enact constitutional change in New Zealand. However, there have been several referendums in New Zealand's history, most recently to decide the nature of electoral reform in New Zealand. Many groups advocate constitutional reform by referendum, for example the Republican Movement supports a referendum on the republic issue. Recently the government replaced the Privy Council as New Zealand's highest court of appeal with the new Supreme Court of New Zealand despite calls from New Zealand First, National and ACT for a referendum to be called on the issue.
The Citizens' Initiated Referenda Act 1993 allows for non-binding referenda on any issue should proponents submit a petition to Parliament signed by 10% of registered electors. In 1999 one such referendum was held, on the question of whether the number of Members of Parliament should be reduced from 120 to 99. Electors overwhelmingly voted in favour of the proposal. However, there were no moves to amend the Electoral Act 1993 in line with this result until 2006 when a bill was introduced by New Zealand First MP Barbara Stewart to reduce the size of Parliament to 100. The bill passed its first reading by 61 votes to 60, but was voted down at its second reading.
The lack of implementation of referenda has led to calls for such referenda to be made binding on the government of the day, similar to the direct democracy seen in Switzerland. Both the New Zealand First Party and the small Direct Democracy Party advocate binding referenda, along with the Better Democracy group.
Referendum on constitutional issues in New Zealand (outcome in bold) [1]:
| Year | Issue | Result |
| 1967 | Term of Parliament | 3 years 68.1% 4 years 31.9% |
| 1990 | Term of Parliament | 3 years 69.3% 4 years 30.7% |
| 1992 | Change of Electoral system | MMP 70.3% SM 5.5% STV 17.5% AV 6.6% |
| 1993 | New Electoral system | MMP 54% FPP 46% Turnout 85% |
| 1999 | Number of Members of Parliament | 99 MPs 81.46% 120 MPs 18.53% Turnout 81% |
[edit] Proposals for reform
- See also: Electoral reform in New Zealand and Republicanism in New Zealand
The small Libertarianz Party produced a written constitution seeking a Republic of New Freeland. However, considering the lack of support of this party, the production of such a document is of little consequence.
[edit] Inquiry into New Zealand's existing constitutional arrangements
During 2005, a select committee of the House of Representatives conducted an Inquiry into New Zealand's Existing Constitutional Arrangements. The Constitutional Arrangements Committee's Inquiry was conducted under five terms of reference, identifying and describing:
- a) New Zealand’s constitutional development since 1840;
- b) the key elements in New Zealand’s constitutional structure, and the relationships between those elements;
- c) the sources of New Zealand’s constitution;
- d) the process other countries have followed in undertaking a range of constitutional reforms; and
- e) the processes which it would be appropriate for New Zealand to follow if significant constitutional reforms were considered in the future.
The Committee made three key recommendations to the Government:
- That generic principles should underpin all discussions of constitutional change in the absence of any prescribed process,
- That increased effort be made to improve civics and citizenship educations in schools, and
- That the government consider whether an independent institute could foster better public understanding of, and informed debate on, New Zealand's constitutional arrangements.
On 2 February 2006, the Government responded to the report of the Committee. The Government responded favourably to the first and second recommendations, but did not support the third recommendation.
[edit] See also
- Constitutional law
- Monarchy in New Zealand
- Republicanism in New Zealand
- Independence of New Zealand
- Electoral reform in New Zealand
[edit] External links
- Electoral Commission
- Cabinet Manual on the constitution
- Constitutional Arrangements Committee of the House of Representatives.
- Better Democracy - Group advocating binding citizens-initiated referendums.
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