LAWS 110 - Constitution and Treaty

What is a constiution?

A framework of fundamental principles under which a nation is constituted and governed. Concerned with how the power of the state is exercised, particularly related to how the institutions of government work and relate to one another. Framework for the relationship between the government and its citizens.

Is New Zealand’s constitution codified or uncodified?

uncodified - found in different statutes, common law, conventions

What are the four core principles of NZ’s constitution?

• Parliamentary sovereignty

• Separation of Powers

• Rule of Law

• Democracy

What are the three branches of New Zealand’s Government

• Legislature/Parliament/Pāremata

• Executive/Government/Kawanatanga

• Judiciary/The Courts/ Ngā Kōti

What is the Legislature made up of?

Governor General + The House of Representatives

What is the Executive made up of

• Governor General

• Prime Minister

• Cabinet

• Ministers

• Executive Council

• Government departments and public service

• Armed Forces

• Police

What is the main function of the Executive?

• Execute and administer the law

• Formulate policy

• Create new legislation

• Administer government departments

What is the main function of the legislature? - 4

• Represent the people

• Provide a government

• Propose and pass new law

• Hold the government to account

What is Parliamentary Sovereignty?

Parliament is the supreme law making body, it is the only body the can create and repeal law

What are the sources of New Zealand’s constitution? - 7

• Te Tiriti

• Legislation

• Letters Patent

• Constitutional Conventions

• International Law

• Common Law

• Parliamentary and executive rules and procedures

Supreme law

Constitutional legislation which restricts Parliaments ability to create laws that are inconsistent with it.

Judicial Review

The ability for the courts to strike down legislation that is inconsistent with the constitution

Why is the Constitution Act not the “constitution”

Deals with the processes and conventions of the crown, no mention of the rights on citizens etc.

Not entrenched or supreme law, just ordinary law that can be amended with the normal majority of parliament

Fitzgerald v Muldoon (1976)

Prime Minister Robert Muldoon tells Media superannuation scheme will no longer be in force.

Fitzgeralds employer stopped superannuation payments as a result.

Fitzgerald sought declaration from court that the PM’s implied repeal of the scheme was a breach of s1 of the Bill of Rights Act 1688 - Suspension of law by regal authority is illegal.

Court ruled in favour of Fitzgerald, law can only be suspended by the support of parliament.

Tyranny of the Majority

Result of parliamentary sovereignty - lack of separation between Executive and Legislature. Examples in NZ - Lesa v Attorney-General (1982)… overturned by Citizenship (Western Samoa) Act 1982, Attorney-General v Ngati Apa (2003).. overturned by Foreshore and Seabed Act 2004.

Referendum

Government or Citizen initiated. Government referendums can be binding or non-binding. Citizen referendums are non-binding and require at least 10% of eligible voter support. Citizen initiated referenda Act 1993

Lesa v Attorney-General (1982) overturned by Citizenship (Western Samoa) Act 1982 

• Case : The Privy Council's decision in Lesa v Attorney-General expanded the interpretation of citizenship laws, recognizing Western Samoans born between 1924 and 1948 as New Zealand citizens 

• Law : The New Zealand government swiftly passed the Citizenship (Western Samoa) Act 1982 to negate this decision, reasserting control over citizenship policy 

• Significance : This underscores the issues between judicial decisions / case law and parliamentary sovereignty - It demonstrates how legislative bodies can override judicial decisions that they find politically or practically inconvenient, highlighting legislative supremacy in New Zealand’s constitution 

AG v Ngati Apa (2003) overturned by Foreshore and Seabed Act 2004 

• Case : The Court of Appeal recognized the possibility for Māori to claim customary title over the foreshore and seabed, challenging the assumption of Crown ownership 

• Law :  In response, the Foreshore and Seabed Act 2004 took ownership of these areas in the Crown while attempting to provide a framework for recognizing certain customary rights 

• Significance : It highlights the potential for legislative bodies/ parliamentary sovereignty to limit judicial recognition of Māori claims and shows the challenges of integrating indigenous customs within a primarily Western legal framework, legislative bodies can override judicial decisions that they find politically or practically inconvenient – Tyranny of the majority 

Ministry of Health v Atkinson (2012) overturned by Public Health and Disability Amendment Act (No 2) 2013 

• Case : The Court of Appeal found the Ministry of Health’s policy discriminatory, affirming the rights of family caregivers to be compensated equal as other caregivers, was in breach of Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990 

• Law : The government responded by enacting the Public Health and Disability Amendment Act 2013, that explicitly allowed the exclusion of family members from being paid as caregivers and limited the ability to challenge this policy 

• Significance : Shows the conflict between legislative bodies and judicial protection of human rights - It calls the question on protecting minority rights from majoritarian legislative measures / Tyranny of the majority. The case highlights conflicts in New Zealand's constitutional framework, especially with regard to protecting rights from legislative breaches. 

Judiciary 

• Interprets and applies Parliament’s laws 

• Creates its own law (common law) 

judiciary is subordinate to who?

Judiciary is subordinate to Parliament (Parliamentary sovereignty) including common law 

judiciary can review who?

While the judiciary cannot interfere with legislative decisions, it can review the actions of the executive to ensure they adhere to legislation

Esc rights

needs like housing, right to food, right to education 

The 1985 White Paper: A Bill of Rights for New Zealand had what ideas?

–Judicial review of statutes

–Treaty of Waitangi - recognized Māori rights

–Supreme law

ICCPR BORA nz

1. Right to self determination

2. non-discrimination

3. Right to Life

4. Freedom from Torture

5. Right to Liberty and Security

6. Right to Equality

7. Freedom of Movement

8. Humanity in detention

s 19 BORA

Everyone has the right to freedom from discrimination

s 18 BORA

Everyone has the right to freedom of movement and residence in New Zealand

BORA positives

An expression of fundamental values and rights. 

• Improved “rights culture”, eg police processes. 

• Some protection for minorities from “tyranny of majority.” 

• A check (of sorts) in legislative process. 

• A tool for statutory interpretation. 

BORA negatives

Parliament is still supreme. 

•Courts cannot use BORA to “strike down” Parliament’s legislation - no “judicial review” of statutes. 

•BORA does not protect ESC and other rights. 

•Remedies are not explicit 

issues with nz constitution - 6

Lack of a Single Written Constitution 

status of Treaty of Waitangi 

Entrenchment of Constitutional Laws 

Judicial Review 

Bill of Rights Act 1990 - not supreme

Executive and parliament overlap

is Parliamentary Privilege Act 2014 constitutional?

yes

is Royal Succession Act 2013 constitutional

yes

is Citizens Initiated Referenda Act 1993 constitutional

yes

is Human Rights Act 1993 constitutional

yes

is Privacy Act 2020 constitutional

yes

is New Zealand Bill of Rights Act 1990 constitutional

yes

is Public Finance Act 1989 constitutional

yes

is Official Information Act 1982 constitutional

yes

is Flags, Emblems, & Names Protection Act 1981 constitutional

yes

is Ombudsmen Act 1975 constitutional

yes

is Treaty of Waitangi Act 1975 constitutional

yes

Imperial constitutional legislation 

• Magna Carta 1297 

• Petition of Right 1627 

• Bill of Rights 1688   

1983 Letters Patent says whatt?

•  The Letters Patent Constituting the Office of Governor-General of New Zealand is a royal decree and a part of the uncodified New Zealand constitution.

• Clause 1: Office of Governor-General and Commander-in-Chief constituted over “Realm of New Zealand” 

• Cl 3: Governor-General’s powers and authorities 

• Cl 7-10: Executive Council 

• Cl 16: Ministers to keep GG informed 

• Cl 17: Ministers to obey, aid and assist GG 

Constitutional conventions 

• Constitutional conventions are non-legal rules of a political or constitutional nature 

• Enforced sort of like manners, or socially accepted laws 

Orthodox rule regarding legislation

Te Tiriti is not judicially enforceable unless it is incorporated in domestic law 

 

Secondary legislation

law created by someone other than Parliament e.g Minister. Examples of secondary legislation = regulations, rules and Orders in Council. 

treaty principles -5

• Partnership – a relationship of a fiduciary nature reflecting a partnership imposing a duty on the Crown  

• Participation – government should make informed decisions by receiving information by Māori in certain situations 

• Active Protection – protection of Māori interests by the Crown 

• Right of Redress – Crown to remedy past grievances 

• Right of Crown to govern and Māori Rangatiratanga – Crown has right to govern & Māori retain chieftainship over their resources & taonga 

Treaty of Waitangi Act 1975 established what?

the Waitangi Tribunal 

case for Treaty of Waitangi Act 1975

Hoani Te Heuheu Tukino v Aotea District Māori Land Board – suggestion to codify the Treaty in Statute (Treaty of Waitangi Act 1975) 

Treaty of Waitangi (State Enterprises) Act 1988 cases

Tainui Māori Trust Board v Attorney-General [1989] – Mining licence 

New Zealand Māori Council v Attorney-General [1989] - Forestry 

Attorney-General v New Zealand Māori Council [1991] – Broadcasting 

New Zealand Māori Council v Attorney-General [2012] - Hydroelectricity 

Tainui Māori Trust Board v Attorney-General [1989] was about?

Mining licence - played a role in defining and reinforcing treaty principles, including the duty to act reasonably and in good faith, active Crown protection of Māori interests, informed decision-making by the government, and the obligation to remedy past grievances. Treaty of Waitangi (State Enterprises) Act 1988

New Zealand Māori Council v Attorney-General [1989] was about ?

Forestry - "Lands" case or "SOE" case, was a New Zealand legal decision marking the beginning of the common law development of the principles of the Treaty of Waitangi. Treaty of Waitangi (State Enterprises) Act 1988

Attorney-General v New Zealand Māori Council [1991] was about?

Broadcasting - "Lands" case or "SOE" case, was a New Zealand legal decision marking the beginning of the common law development of the principles of the Treaty of Waitangi. Treaty of Waitangi (State Enterprises) Act 1988

New Zealand Māori Council v Attorney-General [2012] was about?

Hydroelectricity - "Lands" case or "SOE" case, was a New Zealand legal decision marking the beginning of the common law development of the principles of the Treaty of Waitangi. Treaty of Waitangi (State Enterprises) Act 1988

• Hapū

• - Subtribe 

• Iwi

• Tribe 

• Ngāi Tahu

• Principal iwi of Te Waipounamu 

Nireaha Tamaki v Baker (1901)

Legal issue: whether land passed through the NLC & whether the 2000 acres had been ceded? Ceded give up (power or territory) 

criticised the Wi Parata decision & confirmed Māori custom in law (recognised Native land until it was extinguished) 

Wallis v Sollicitor-general (1903) 

Legal issue = whether Crown was entitled to the lands held in the Charitable Trust? and if the land/fund had become Crown property? 

criticised Wi Parata and referred to the Treaty as having force of law 

Hoani te Heuheu Tukino v Aotea District Maori Land Board (1941) 

Legal issue = whether the Court had jurisdiction to challenge the validity of the statutory charge? Whether the Treaty was a right declared under the Imperial Act and Colonial Laws Validity Act? 

Codified the treaty

New Zealand Māori Council v Attorney-General

Legal issue = whether s 9 protects against Maori interest being transferred & Did the Crown establish any system to consider each asset passing to the SOE

confirms the Treaty principles (Partnership, Participation, Active Protection, Right of Redress, Right of Crown to govern and Māori Rangatiratanga) 

District Inquiries WT

area based, 37 Inquiries in total 

Kaupapa Inquiries WT

deal with nationally significant issues affecting Maori as a whole – military veterans – health services – Maori women – housing – education – social services – identity and culture 

Remedies Inquires WT

occur when the Waitangi Tribunal has already found a claim to be well-founded. 

Historical Claims WT

matters occurring before 21 September 1992 

Contemporary Claims WT

matters occurring on or after 21 September 1992 

Crown motivations for treaty

• Colonial competition (French interests) 

• Financial motives (trade in flax, timber, whales) 

• Humanitarian concerns – treating their colonisers better 

• The 1835 Declaration of Independence

Maori motivations for treaty

• Trading relationship with crown 

• Protection from bad settlers and lawlessness 

• Stop fighting between tribes 

• Protection from private land purchasers 

English version of treaty stated?

• Māori give the British Crown ‘absolutely and without reservation all the rights and powers of sovereignty’ over their lands 

• Are guaranteed ‘undisturbed possession of their lands, forests, fisheries, and other properties 

Maori version of treaty stated?

• Māori would have rangatiratanga (total control) over all their lands and taonga (everything important to them) for as long as they wished 

• If Māori wanted to sell land, they must sell it to the Governor (pre-emptive clause), who would then sell it to settlers 

Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) 72 (SC) 

• Ngāti Toa in an agreement with Anglican Bishop of Wellington for a school + gifted land to build the school  

• School was not established!!  

• The Treaty was a “simple nullity” (this case impacted Māori society for decades) 

R v Symonds (1847) NZPCC 387 (SC) 

• Both Mr McIntosh and Mr Symonds purchased the same parcel of land.  

• Legal issue = who has the better claim?  

• Governor Fitz Roy’s certificate was unlawful; Native Title is extinguished by free consent of Native people to the Crown – the crown should have told / officialised Mr Symonds 

• the Treaty was confirmed as a valid legal document  

 

doctrine of customary title 

The common law doctrine of customary title is a means of acknowledging the continued right of Indigenous people to enjoy the benefits of the land which have been continuously enjoyed 

The State-Owned Enterprises Act 1986 prohibited the Crown from acting in a manner …?

"inconsistent with the principles of the Treaty" 

 s 4 of the Conservation Act 1987, which requires that the Act be interpreted and administered so as ….?

to give effect to the principles of the Treaty of Waitangi 

Resource Management Act 1991 makes reference to…?

Māori relationship with land and the principle of kaitiakitanga, as well as saying to “take into account the principles of the Treaty of Waitangi” 

Section 4 of the New Zealand Public Health and Disability Act 2000 states?

"recognise and respect the principles of the Treaty of Waitangi, and with a view to improving health outcomes for Māori" 

Taumata Arowai—the Water Services Regulator Act 2020 requires its board to …

“uphold the Treaty of Waitangi (Te Tiriti o Waitangi) and its principles” 

The Education and Training Act 2020 provides for the establishment and regulation of our education system that … ?

“honours Te Tiriti o Waitangi and supports Māori-Crown relationships” 

Arguments in Favor of Judicial Review

Protection of Fundamental Rights: BORA

Uphold rule of law

Maintaining Constitutional Integrity

Safeguarding Minority Rights

Arguments Against Judicial Review

Democratic Legitimacy: unelected judges

Separation of Powers Concerns: disrupts balance between legislative and judicial branch

Judicial Activism: judges imposing personal opinion