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New Zealand's Constitutional Arrangements: where are we heading?

NZ $50.00
Jack Hodder SC Sir Geoffrey Palmer Sir Ivor Richardson
Jack Hodder
Chapman Tripp
The RT Hon Sir Geoffrey Palmer
Chen Palmer & Partners
Sir Ivor Richardson

This book is only available in PDF format 
Published: 24 May, 2005
Pages: 272


The purpose of this paper is to describe as briefly and accurately as possible the basic features of the New Zealand Constitution as they exist in 2005. The paper also indicates some of the directions in which constitutional change may travel in order to better focus the discussions at the seminar. It is desirable that discussion of possible changes to the current arrangements should proceed on the basis of a firm understanding of what New Zealand has now by way of constitutional arrangements. Unfortunately stating the present position with the precision and clarity that lawyers are prone to seek is doomed not only because of the somewhat indeterminate nature of the constitutional enterprise in New Zealand but also because there is serious doctrinal controversy about some of its central elements.

The collection of papers assembled for the seminar has been selected to illustrate some of the more conspicuous landmarks on the battleground of constitutional ideas. Despite the apparent simplicity of the New Zealand Constitution, or perhaps because of it, many complexities lurk not far beneath the surface. Even the core is elusive and writing this paper brought to mind Lewis Carroll’s delightful nonsense poem “The Hunting of the Snark” in which the Snark is both imaginary and elusive. The New Zealand Constitution in 2005 is neither readily accessible nor easily understood. The temporal element in the title is deliberate. The New Zealand Constitution is flexible, to a large extent uncodified and fluid. The Constitution is both malleable and mysterious. It is an iterative Constitution in a state of constant and often silent evolution. The cumulative effect of decisions by the Executive government, the Parliament and the courts alter features of it every year, if not its fundamental configuration. In a Constitution like New Zealand’s law and politics tend to merge into each other – political battles are more influential in determining what the rules are, than court decisions. It should be observed that almost every Constitution inevitably appears as a work in progress.

The Constitution Act 1986 is the most important constitutional law New Zealand has.
Yet it lacks many of the features that Constitutions have in other comparable countries, for example Australia, Canada and the United States. They have documents called Constitutions that cannot be altered by a simple legislative Act and which provide some reasonably extensive rules and principles under which government must be conducted. Both the United States and Canada have guaranteed rights and freedoms that allow the courts to strike down legislative acts as unconstitutional and declare them invalid. The High Court of Australia has powers to do the same in the name of federalism, although there is no extensive set of rights and freedoms contained in the Commonwealth of Australia Constitution Act 1900. Perhaps the most ambitious and interesting of modern Constitutions is that of South Africa.

So it is that the nature and extent of judicial power is perhaps the leading issue in the entire constitutional debate. This also seems to be true in New Zealand, where, and there is irony in this, the essential features of the constitutional arrangements provide a more modest platform for judicial lift-off than elsewhere. But it may be a false dichotomy to regard the choice between the Judges or Parliament as to who has the final word or supremacy. It may be both, in a collaborative enterprise called the business of government – as Professor Philip Joseph has recently argued. At base these issues revolve around the doctrine of parliamentary sovereignty, which has changed from being an unexceptional statement of traditional New Zealand orthodoxy to an object of active and sustained criticism. It is natural enough that lawyers would regard the judicial power and the courts as important elements in our Constitution, but whether one favours more judicial review of legislative action or not there is an argument that for much of the Constitution in New Zealand the Judges are not the most important interpreters of our Constitution. As Professor Matthew Palmer suggests, approximately 10 public office holders in New Zealand have a significant role in determining what is constitutional.

The biggest constitutional change in New Zealand in the twentieth century was the adoption of the Mixed-member proportional system of electing Members of Parliament, although this cannot yet be regarded as an enduring change. What place the Treaty of Waitangi occupies in the New Zealand Constitution and the legal system has attracted strong controversy for 20 years. There seems little prospect of a community consensus emerging on that matter. New Zealand does adhere to the rule of law, but there is a large area of vagueness surrounding that notion when it is subjected to analysis. New Zealand remains a constitutional monarchy, although it has also been described as a disguised republic and the present Prime Minister has stated “…we are a de facto republic, as in Australia.” Whether New Zealand will move to become a de jure republic will be driven by democratic preferences; but the consequences of such a move will be profound in constitutional terms and may serve to unlock a whole range of issues that could propel New Zealand towards a written constitution.

If the Constitution is to be changed there are challenging issues as to how to accomplish it, some of which have been examined by Professor Bruce Harris.8 In considering constitutional issues it is always useful to remember that Constitutions are a human construct and they are driven by social and political values. The Constitution cannot be seen, touched, heard or smelt. But it does have a profound influence on how power is distributed and how public decisions are made. Such is the nature of the issues upon which this seminar is designed to stimulate thought and discussion. Has New Zealand’s constitutional moment arrived? In many ways the New Zealand Constitution is essentially a political Constitution and changing it formally will involve a substantial degree of political consensus.

The Constitution Act 1986 governs some of the main powers assigned to the branches of government in New Zealand, the:

  • Sovereign
  • Executive
  • Legislature
  • Judiciary

Yet in many ways the nature of the act is fragmentary. It is necessary to look elsewhere for the nature and extent of many of the powers. These are in judicial decisions, other Acts of Parliament, instruments of the royal prerogative, the Treaty of Waitangi, international law, parliamentary law and procedures and constitutional conventions. International law in particular is an increasing source of obligations that have to be embedded in the New Zealand legal system so that the country can meet the increasing web of international arrangements that regulate so many human affairs these days, from international trade to combating terrorism and the promotion of human rights.

Constitutional conventions are recognized, norms, practices or customs generally followed. For example, almost all of Cabinet government is a creature of constitutional convention. Collective Cabinet responsibility, individual ministerial responsibility and restraint on the exercise of power by the Queen or Governor-General are all examples of important constitutional conventions. And many of these are not legally enforceable in the courts. For this reason one of the best practical guides to the conduct of government in New Zealand is the Cabinet Manual 2001. This document published by the Cabinet Office and agreed by Cabinet sets out many of the constitutional conventions and procedures of Cabinet in New Zealand. Some of the most important conventions, relating to Cabinet government and ministerial responsibility are most usefully stated there.

In addition to the sources discussed above a number of broader constitutional principles and doctrines infuse the New Zealand Constitution. These include such matters as the centrality of democratic government, the idea of a party politically neutral public service, the rule of law, the independence of the judiciary, the separation of powers, freedom of expression, transparency, access to official information and ministerial responsibility. The content and range of these doctrines, if sometimes disputed, nevertheless do represent a set of values that exert a powerful influence on the behaviour of the system of government. In a democracy, and New Zealand is one of the world’s oldest, public opinion ultimately determines what happens.

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