NZ Constitution

Colony

A territory under the immediate political control of a State, distinct from the home territory if the sovereign

Dominion (NZ as a dominion)

A semi-independent entity under the British Crown that constituted part of the British Empire

Realm

A fully independent nation, with a British Monarch as Head of State

Republic

A fully independent nation where supreme power is held by the people with an elected or nominated Head of State

Constitutional Monarchy

System of government in which a country is ruled by a monarch whose power is limited by a constitution

Features of the constitution (3)

Unwritten (No single document referred to as the constitution)

Not entrenched (no rules to repeal or amend the constitution) (parliament supremacy, voting elements typically need ¾ of the house)
Not supreme (courts cannot use it to overrule and invalidate other legislation)

Principles of NZ’s legal system

Parliamentary supremacy

Rule of law (everyone is subject to the law, equality before the law)
Separation of power (not equal in power)

Parliamentary supremacy (1) and how power is restricted (3)

Parliament can pass any law it like and that overrides common law, international law and public opinion

Restrictions: elected every 3 years, MMP forces collations, rule of law

Prisoner voting case (NZ: Attorney-General v Arthur Taylor)

NZBORA 1990 states
- s12 every 18 years+ NZ citizen = right to vote

• s 5 rights are subject to reasonable limits as prescribed in law and demonstrably justified in a free and democratic society

• In 2010, s 80(1)(d) of the Electoral Act 1993 was amended to read = All people in prison on election day are unable to vote
  

High Court (2015) - decision

• Parliament was wrong to ban all prisoners from voting, but the amendment is valid

• Court of Appeal (2017) and Supreme court (2018) agreed.

• Cannot strike it down however

[urgent claim to Waitangi tribunal, held in 2019 that the amendment is inconsistent with the TOW)

what can the courts do when they don’t like what parliament does

may make a declaration of inconsistency with the treaty etc

doctrine of native title

where sovereignty changes the new sovereign power does not automatically acquire property until those original inhabitants wish to sell it

according to Wi Parata how did Britian acquire sovereignty of NZ?

claimed it was entirely by discovery and British has priority of occupation as a territory inhabited only by savages

Ngai Tahu Report 1991

• Settler were told to find ‘vast Crown domain’ for all those coming to settle in NZ

• Te tiriti Article 2 gets in the way (get around this by saying that ‘wild and waste lands’ don’t count, ‘its inconceivable that… could own all land’, reserve a portion of land for Māori

• (use this as an introduction to show what happened after the treaty)

R v Symonds 1847 (High court when it was named supreme court)

• Doctrine of Native title stands

• King owns all land DOES NOT = land inhabited by indigenous population

• Article 2 of treaty cannot be undermined (it has legal force)

Native Lands Act 1862

• establishes Māori Land Court

• act makes direct reference to the Treaty (english text)

• British law applies

• changing land from customary land to Māori freehold land to make it easier to by and sell

• must be done with the consent of Māori

Native Settlements Act 1863 (1)

Forcible confiscation of land

Native Lands Act 1865

Purpose to deliberately dispose of customary land (customary → general land)

Wi Parata HC 1877 (Facts, issue, rule, ratio)

Facts: Land gifted to anglican church for school to be established, no school was ever built, crown issued title of land to the church
Issue: Should the land be returned to Ngāti Toa

General rule: On the cession of territory by one civilize power to another, the rights of private property are invariably respected'

Ratio: Church has legitimate Crown title to the land

Māori not 'civilised' enough to hold customary title

• The treaty was therefore a 'simple nullity'

• Say's NZ was discovered

• Native Rights Act - courts have to apply it, its supreme this act applies but actually it doesn't ->>> a statute cannot call into being that which does not exist

• States that it follows all case law (it doesn't)

Nireaha Tamaki v Baker 1901 (privy council)

Wi Parata is ‘rather late in the day to extinguish Māori Customary law

Endorses R v Symonds

(NZ courts ignore this judgement for year)

Re the Ninety-Mile Beach Court of Appeal 1963

Any Māori customary property in the foreshore had been extinguished once the contiguous land above high water mark had lost the status of Māori customary land. Such status could be lost by Crown purchase or vesting order made by the Māori land Court.

relies on Wi Parata

Te Heuheu Tukino v Aotea District Māori Land Board

• Statutes must incorporate the treaty in legislation for it to have effect

NZ Māori Council v AG 1987

• Section 9 State owned enterprises act states that ‘nothing in this act may be in contradiction to the principles of the treaty.’

• The treaty is constitutionally important , it protects fundamental rights

• Courts must interpret it widely- Anything other than this would say that the treaty doesn’t matter

• Establishes that the treaty is an embryo rather than fully formed ideas

• questioned what the principles were?

• Partnership/consultation, active protection, acting in good faith, duty to recognise and remedy past breaches

A-G v Ngati Apa 2003

• Hapu wanted to build marine farm

• Asked Māori land court questions of jurisdiction of Foreshore + Seabed

• Māori land - yes + appellate court- not sure send to HC

• HC applies the re 90 mile beach

• CA: The precedent is wrong in law - R v Symmonds is going to apply (Native title still stands unless and until expressly extinguished by statute)

 

Trans-Tasman Resources LTD v Taranaki-Whanganui Conservation Board 2021

• EEZ Act

• S12 'giving effect to Treaty principles'

• S 59 ' decision-maker (minister) must take into account'

• Existing interests

• 'Of any other law' - Tikanga ✅ applied through common law

Matike Mai

6 indicative constitutional models, aim: To develop and implement a model for an inclusive Constitution for Aotearoa based on tikanga values.  There ought to be a sphere where there is Māori leadership, one where there is crown and one

Where there is joint.

Constitution Act 1986 ‘s central rules

King is NZ’s head of state; governor-general is his representative

Executive - only MP’s may be ministers of Crown

Legislature - Has full power to make laws, 3 year ter,

Crown cannot levy taxes except by or under an Act of Parliament

Prerogative powers of the King

residual powers of the sovereign, exercised by Cabinet/Government/Parliamet

• Letters Patents (written orders of the Sovereign)

• Appoints the Governor-General

• Appoint and dismisses Ministers of the Crown

NZ Constitution Act 1852 (Uk)

Established a bicameral General assembly modelled on the UK Parliament (house of representatives (elected lower house), Legislative council (appointed upper house), Governor)
English Laws Act 1858 (NZ) formally adopts English law into NZ

Had to own property to vote - rich white men only basically

Maori Representation Act 1867 (NZ)

Māori men can vote in new 4 Māori electorates - only 4 seats thus they only have influence on 4 seats (backwards because they were the majority population)

Can only sell land to the crown

Establishment of the Māori Land Court (legislation and when was it permanently established, why and how was treaty viewed in each year, what was english rules?) (9)

Native Lands Act 1862 - Ascertainment of the Ownership of Native Lands and for granting Certificates of Title

Why:

• Crown want's to get land from customary land into a freehold title - need to issue a certificate of title - official piece of paper with name on it

• Makes it easier for Crown to buy the land from Māori

• Bring Māori system into something understood by English law
  
  Includes:

• Clear reference to the treaty - positive

• Permanently established in 1865

  • Crown using legislation to take land

  • No recognition of treaty still recognition of Māori customs

• Under English rule eldest son would get all land - law changes to all children get equal share - extreme fragmentation - can’t do anything with that land