Looks like no one added any tags here yet for you.
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
Right to self determination
non-discrimination
Right to Life
Freedom from Torture
Right to Liberty and Security
Right to Equality
Freedom of Movement
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