Nzlpe notes - Unit 1 - Sources and Development of the Constitution PDF

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Sources and Development of New Zealand Constitution...

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NZCLE – NEW ZEALAND LEGAL SYSTEM Unit 1 - Sources and Development of the Constitution New Zealand legal system in context New Zealand has unwritten constitution like the UK. • It inherited the English legal system when it became a British colony in 1840; • NZ’s constitution evolved and developed through gradual adaptive process. The adoption of English laws and subsequent are slow, there is neither a defining event that created a new constitution nor a specific document called “The Constitution”. The term “unwritten” means in the sense of contrast with countries which constitutions are found in a single source document. Such constitutions often have a foundation status and entrenched provisions that stipulates the process by which it can be amended, like Australia and America do.

English legal inheritance adapted to New Zealand 1.

Story of NZ development: Bigwood observes the influence of the ELS on NZ: “…by end of 19th century, most of the colonial law in NZ had evolved into mature legal system…In mainstream law the treaty of Waitangi was viewed as a nullity. The legal system was avowedly British. Constitutional ties, and dominantly British immigration, preserved close links with British-political, cultural, trade, intellectual, family and personal. Parliament and executive were broadly Westminster models. Independence from England had evolved incrementally, recently and incompletely. Symbolic links, such as an English monarch as head of state and an English honours system, continued. Most of NZ’s influential leaders and professionals were born of educated in England. The law was required to operate in an environment that was strongly towards “home”.”

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Importance of legislation: Several commentators have notice the importance of legislation, rather than case law, and there with influence in our legal history.

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Impact on NZLS: As per Bigwood, “it was far harder to transplant the ELS to NZLS than we often realise. The survival and the reassertion of the Treaty is a constant reminder that the process of adaption and negotiation to achieve a legal system accepted by all kiwi are ongoing.”

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Socio-political-legal foundations associated with the Westminster parliamentary system of government NZLS’s inheritance included the socio-political foundations associated with the Westminster parliamentary system of government. WPS such as democracy, individual rights, the rule of law, the separation of powers, the sovereignty of Parliament and the independence of the judiciary are among the principles that lie at the foundation of the NZLS. Page%1%of%7%

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NZCLE – NEW ZEALAND LEGAL SYSTEM 5.

The unique NZ experience of the foundation The NZLS’s foundation is not unique but added with features that reflect the specific NZ experience is what making it unique. This experience is expressed not only through the law-making process and the legal structure, but also in substantive matters such as traditional common law areas of torts and contract have followed different path in NZ. And the NZ electoral system has also move away from the Westminster first-pass-the post system.

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Dual legal system NZ has a dual legal system. An English one for regulating relations amongst the settlers, and a subordinated version for the indigenous people. This was expressed so in the Treaty of Waitangi.

Main feature of New Zealand Constitution New Zealand inherited the central features of Westminster parliamentary system. Namely, a democratic constitutional monarchy, an independent public service, legal profession and judiciary, and a common law system and the notion of an unwritten constitution. The New Zealand constitution is sourced from formal legal documents, court’s decisions and parliamentary practices, etc. New Zealand has a parliamentary system of government with the base of The Treaty of Waitangi being the founding document of government. The constitution must also be seen in its international context, because New Zealand governmental institutions increasingly have regard to international obligations and standards.

Sources of the NZ Constitution New Zealand Constitution is not found in a single document. While The Constitution Act 1986 is the primary source of the New Zealand constitution and can be subject to change by the Parliament at any time. The Constitution Act 1986 The Act recognises Queen Elizabeth is the head of State of New Zealand and General-Governor is the representative of the Queen. The Act covers the Executive, the Legislature and the Judiciary. The provision relating to Executive pin down its parliamentary character that only the member of Parliament may eligible for holding the offices of member of the Executive Council or be the Minister of the Crown.

For the part of the legislature, it provides that parliament composes of the Sovereign and the House of Representative. It stipulates the power of Parliament, term of the Parliament and dissolution of Parliament, etc. Page%2%of%7%

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NZCLE – NEW ZEALAND LEGAL SYSTEM The Act confers to the Parliament the full law making power and put down the constitutional principles about parliamentary control of public finance. The provisions relating to the judiciary reinforce the judiciary independence by providing protection to the Judges against removal from office and reduction of salary.

Other sources of the constitution The other major sources are from: i)

Prerogative instrument The Letters Patent issued by the Queen confers her powers in respect of New Zealand on the Governor-General who can exercise her prerogative power. By which the Queen or GG can appoint or dismiss members of Executive and Ministers of the Crown.

ii) Imperial legislation Relevant English and U.K. statutes (e.g. Magna Carta 1297, the Bill of Rights 1688, the Act of Settlement 1700 and the Habeas Corpus Acts, etc.) were formed part of the New Zealand laws by Imperial Laws Application Act 1988. Subsequently in 1986, the residual legislative powers that the British Government had in terms of the New Zealand Constitutional Act 1852 (UK) was revoked by Constitutional Act 1986, further the remaining uncertainties regarding the application of Imperial Laws were resolved by the Imperial Law Act 1988. iii) New Zealand legislations There are numerous specific enactments contain powers of the government. Generic legislation The primary generic legislation governing the public service that can be found in the State Sector Act 1988. Delegated legislation Delegation legislations (e.g. bylaws, regulations, Orders in Council, rules, ordinances, etc.) embody explicit legal rules in the same way as Acts of Parliament. The Courts The courts are governed by the District Court Act 2016 and Senior Courts Act 2016, as well as the other legislations deal with matrimonial and environment matters. Parliamentary power Parliamentary power can be found in Legislation Act 2012, which provides the same privileges and immunities as the House of Commons. Others of constitutional significance include the Citizens Initiated Referenda Act 1993, the Electoral Act 1993, the Fiscal Responsibility Act 1994, the Habeas Corpus Act 2001, the Human Rights Act 1993, the New Zealand Bill of Rights Act 1990, the Official Information Act 1982, and the Ombudsmen Act 1975. Page%3%of%7%

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NZCLE – NEW ZEALAND LEGAL SYSTEM iv) Common Law Common law sources of constitutional law were found in: a. Customary common law (which embodies 3 essential elements of the Westminster constitutional system):• the doctrine of parliamentary sovereignty • royal prerogative (include power to summon, prorogue or dismiss parliament, grant pardons, bestow honours, appoint ministers and assents to the Bills, making them Acts of Parliament.) • parliamentary privilege (Parliament itself has numerous extraordinary powers such as power to commit people for contempt, to regulate itself, for its members to be free from attendance at court proceedings and freedom of speech.) b.

Judicial precedents – that establish principles of constitutional law.

c.

Statutory interpretation – guide the court in interpreting laws made by parliament.

v) The Treaty of Waitangi TW is not legally enforceable in court but is recognised by many as our founding document. It incorporated and recognised as municipal law on the legislative side and Aboriginal (customary) Title on the common law side. New Zealand laws may sometimes accord a special recognition to Maori’s rights and interests which covered by Article 2 of the Treaty. Also, Maori institutions have a role within the wider constitutional and political system. vi) Customary International Law Part of the common law. The doctrine of incorporation has been followed by the courts. vii) Laws and custom of Parliament Rules regulating the functions, procedures, privileges and immunities of Parliament and parliamentarians. viii) Constitutional conventions which are non-legal source of the constitution and are rules of political conduct serving constitution purposes in which they have a sense of obligation attached to them, even though they are not legal enshrined. Conventions regulate the operation of the constitution and restrain the use of legal power arising from the prerogative or conferred by statute. •

Conventions relating to the Executive – Most significant and leading convention of the Constitution is that the Crown acts on the advice of its responsible Ministers. This convention sits at the core of the Westminster constitution. There are 3 essential elements that compose of democratization what would otherwise be an absolute monarchy:1. 2.

Parliament is elected by people; Ministers are responsible to Parliament; and Page%4%of%7%

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NZCLE – NEW ZEALAND LEGAL SYSTEM The crown exercises its powers on and in accordance with ministerial advice.

Conventions relating to Parliament Includes: 1. The rule against oppressive legislation, although this conflicts with the doctrine of Parliamentary Sovereignty 2. The rule against legislative judgements that interfere with the administration of justice 3. Impartiality of the Speaker 4. Judicial independence

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Other conventions, include 1. the conscientious integrity of the 3 branches of government 2. Police independence 3. The independence of the Attorney-General, despite being a minister 4. Public service neutrality 5. Budget secrecy Although conventions are non-justiciable and no legal remedies are available for breaching them, the democratic character of constitutional conventions is importance. The Queen and G-G have power to appoint and dismiss Minister and other holders of some important offices (e.g. judges, Ombudsmen, etc), summon and dissolve the Parliament. However, they do so only on the advice of Prime Minister or Minister who are elected by the New Zealand voters. Also, if the government loses the support of the House or the Prime Minister loses the support being the leader of that government, that government is likely to be changed, due to the unclear of their position and governing party.

A system of central government that is too powerful? (due to this unitary system of government) comparing to federal system of government. Background: many former British colonies including Canada, South Africa and Australia, adopted federal system of government and the legal implication of this are found in the constant efforts to balance state or provincial rights within a federal system. NZ has never had a federal system of government. Constitutional debate lacks the check and balances inherent to a federal system. NZ also lacks a second chamber within its Parliament. Thus, NZ’s unitary system of government and its unicameral parliament combine with the doctrine of parliamentary sovereignty produce a very powerful form of central government. Against absolute monarchy(Do NZ’s unitary system of government and its unicameral parliament combining with the doctrine of parliamentary sovereignty produce a powerful form of central government?) 1. 2. 3.

Parliament is elected by people; Ministers are responsible to Parliament; and The crown exercises its powers on and in accordance with ministerial advice.

It is in this accord to democratise what would otherwise be an absolute monarchy. Page%5%of%7%

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NZCLE – NEW ZEALAND LEGAL SYSTEM Development of the NZ constitution It has been said that it is better a process of gradual evolution rather than being subject of formal statement as if a revolutionary war of independence to break free from the British empire. Like Australia, via peaceful foundation of a new federation within the Empire. This gradual process went through numerous and varied changes in conventions that developed NZ from a British colonial constitution to a fully independent nation with an autochthonous constitution. However, some argued that NZ cannot have truly autochthonous constitution without a real revolution so the ultimate legal authority of the colonizer must remain. This is not the case. NZ has achieved autochthonous constitution through revoking the Constitution Act 1852 by the enactment of the Constitution Act 1986. So NZ has completed the process of an autochthonous. NZ also established the Supreme Court as highest appellate court in 2003 and abolishes appeals to the judicial committee of the Privy council. The Supreme Court Act 2003 which later repealed by the Senior Courts Act 2016 simply listed 11 Imperial enactments that ceased to apply in NZ. Thus, the Constitution Act 1986 and the Supreme Court Act 2003 illustrate the NZ Parliament’s unfettered parliamentary sovereignty. Some limits on constitutional change arise from the international obligations. Other constitutional changes arise from legislation, such as New Zealand Bill of Rights Act 1990, from court’s decision, from new prerogative instruments and from new conventions. Through the change of time and development, NZ’s last “relic of empire” is its status as a constitutional monarchy, with the Queen in right. There is little sign of any public demand for a change to republic, which would be radical and final step in the development of the NZ constitution. Although this can be done by an ordinary Act of the Parliament, such extraordinary nature of movement would require to be subject to a rigorous investigative process followed by referendum. Same approach that was taken to replace the “first-past-the post” electoral system with mixed Member Proportional system in 1993. Difference between the written and unwritten Written constitution is found from a single document and tend to set out and deal with state power in codified and defined ways, e.g. the USA. Unwritten constitution is not found in a single document, but sourced from legal documents, court’s decisions, conventions, etc. It is more abstract, but make greater use of successful precedent and current practice.

Advantages of written constitutions •

The advantage of having entrenched written constitution is to safeguard the constitutional provision from intervention by the Government. Since entrenched constitution cannot be altered in ordinary way.

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Also, the entrenched written constitution is supreme over ordinary statutes law. If there is any conflict between the supreme and ordinary one, court could struck down the inconsistent one. Page%6%of%7%

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NZCLE – NEW ZEALAND LEGAL SYSTEM In written constitution references can be made to the written document and any breach of the principles contained therein will clearly be “unconstitutional”.

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It is able to control arbitrary rule or governance in a sense that it places a check on the powers of the ruler so as not to abuse his power.

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A codified constitution also provides their nation with a clearly delineated list of fundamental laws and principles collated into one document.

Disadvantages of written constitution •

Entrenched written constitution provides inflexibility and rigidity in practice that cannot be altered in ordinary way but must by special procedure. So, government may obsess with power they try to change some of the rules in order to suit their interest.

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This type of constitution does not allow for a great amount of change over time and does not easily take into account the needs of the democratic system and people.

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As per the doctrine of parliamentary sovereignty, Parliament enjoyed unlimited law-making power but is powerless to enact unchangeable legislation. Parliament cannot make any law to bind its future successor’s power. So, if entrenched written constitution is adopted, the understanding of parliamentary sovereignty would be in different way.

Advantages of unwritten constitution [We do not need a written constitution.] Our unwritten constitution does everything well and effectively as what we want. It constrains state power, so that governments can’t just do anything they like once they get elected. It promotes stability in relation to some important values and ideals, so that things like fundamental human rights get the respect they deserve and aren’t easily overridden. And it confers legitimate authority on government institutions (such as Parliament and the courts) so that we have good reasons to believe that they deserve our respect. These are the basic functions of any modern constitution, and our unwritten constitution does each of them remarkably well.

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