Commonwealth Constitutions

In 1840 New Zealand was, by letters patent (dated 16th November 1840), constituted as a separate colony, having previously been an extension of New South Wales. Later, in 1907 the colony became the Dominion of New Zealand. Until 1947 the New Zealand General Assembly, now the Parliament of New Zealand (s.14 Constitution Act 1986), was subject to the usual restrictions on colonial legislative power, namely the Colonial Laws Validity Act 1865 (UK). However, with the Statute of Westminster Act 1947 (NZ) the General Assembly gained full constituent power and with it unlimited legislative competence.

Today New Zealand is a parliamentary democracy based on the Westminster paradigm. Indeed, the constitution of New Zealand is in many ways similar to the British. It is in essence a fluid creature governed largely by convention. There is no written constitution. No lex superior. Only Acts and rules of the common law with constitutional special significance. In essence, the constitution of New Zealand might be reduced to the following proposition "What the Queen in Parliament enacts is law."

The main provisions of the New Zealand constitution are enumerated in the Constitution Act 1986. However this Act, although of special significance, is not a lex superior. It could, like any other Act, be repealed by a simple Parliamentary majority.

The Head of State is Queen Elizabeth II who is represented by the Governor-General when she is absent from New Zealand (s.2 Constitution Act 1986). The Governor-General is appointed and removed by the Queen on the recommendation of the Government of New Zealand. He holds office during Her Majesty's pleasure.

Executive power vests in the Queen, but is exercised on her behalf by the Governor-General acting on the advice of an Executive Council or Cabinet. The Governor-General appoints a member of the House of Representatives whom he believes is capable of commanding the confidence of that House to the office of Prime Minister. The Cabinet and all other ministers of the Crown, appointed on the advice of the Prime Minister, is composed entirely of members of the House of Representatives (s.6 Constitution Act 1986). Moreover, following the Westminster paradigm the Cabinet is responsible to the House of Representatives for the direction and management of the Government of New Zealand. If an administration looses a vote of confidence, then unless the Governor-General can appoint another person to effectively discharge the office of Prime Minister, the House is dissolved and a General Election held.

However, unlike the Westminster Parliament, the Parliament of New Zealand is a unicameral body composed of the House of Representatives and the Queen. The Legislative Council was abolished in 1952, having become largely moribund. There has been no serious attempt to institute a new second chamber. Equally, the term of the New Zealand Parliament is, at three years, shorter than the five year term of the Westminster Parliament. However, like Westminster, the Parliament "enjoys full power" to make laws (s.15 Constitution Act). Its power is, as Sir Geoffrey Palmer might put it, unbridled.

In 1996, following the endorsement of the people, a new electoral system based on proportional representation was introduced - MMP. Coalition government, it seems, will become an established feature of the constitutional and political landscape. This, of course, enhances the importance of the Governor-General and his exercise of the reserve powers.

In 1985 the then Minister of Justice, Geoffrey Palmer, published a White Paper - A Bill of Rights for New Zealand ?. He advocated an entrenched bill of rights modelled on the Canadian Charter (1982) to limit the sovereign power of Parliament. The provisions of the bill would have been enforced by way of judicial review. However, a roving select committee found little support and much hostility from the people of New Zealand for the proposed entrenched bill. The plans were dropped. Nonetheless, on the recommendation of the Justice and Law Reform Committee a statutory form of the proposed bill was introduced into the House of Representatives as an ordinary government measure. The New Zealand Bill of Rights Act (1990) was the result. The Act is, in essence, merely declaratory affirming New Zealand's commitment to the ICCPR. Section 4 states unambiguously that the Act is not to control the legislative supremacy of Parliament. No Act of Parliament is to be invalidated on the grounds that it is inconsistent with the Bill.

However, the New Zealand judiciary have creatively interpreted the Bill of Rights. For example in Baigent's Case [1994] 3 NZLR 667 the Court of Appeal fashioned a new curial remedy for breaches of the Act seemingly circumventing the provisions of the Crown Proceedings Act (s.6(5)). Equally, as in Canada under the Charter, the greatest impact of the Bill has been in the field of due process rights (see for example, Regina v. Kirifi [1992] 2 NZLR 8 - prima facie exclusion of evidence for breach of the Bill).

Thus while in theory the Bill of Rights might as an ordinary Act be repealed, it has since 1990 acquired a political status which make this impossible. Indeed, New Zealand seems to be following the route to an entrenched Bill of Rights that was paved by Canada: viz. a statutory Bill of Rights followed by a constitutional Bill a generation later.

The judicial branch of government is composed of a Court of Appeal, a High Court and District Courts having both civil and criminal jurisdiction. An appeal lies, by virtue of the Royal prerogative, from the Court of Appeal to the Judicial Committee of the Privy Council in London. Parliament is free to regulate the process, and could abolish such appeals. Indeed, the future of Privy Council appeals is currently under review.

Also of great constitutional significance is the Treaty of Waitangi (1840). The Treaty is in essence a compact between the Crown and the Maori people. The Maori recognised the sovereignty of the British Crown over New Zealand in return for its protection. Disputes arising under the Treaty are adjudicated by the Waitangi Tribunal.