THE CONSTITUTION/LEGISLATURE (LAWS204)

Public law

law governing the structure and exercise of state power.

State

institution with authority to make and enforce binding rules over a population.

Public power

coercive authority exercised by the state over individuals.

Coercive power

authority that cannot be refused and is backed by legal force.

Rule of law

public power must be exercised according to law, not discretion.

State function

enables collective coordination, enforcement, and social order.

Legitimacy (constitution)

justification for why public power should be obeyed.

Constitution

system of rules defining institutions, powers, and limits of government.

Constitution as “operating system”

framework that structures how government functions.

Limited government

principle that state power must be legally and politically constrained.

Te Tiriti o Waitangi

foundational agreement shaping NZ constitutional arrangements.

Orthodox view of Te Tiriti

partnership between Māori and Crown in governance.

Alternative Tiriti narrative

colonial imposition and loss of Māori authority.

Treaty principles

legally recognised interpretations used in statutes and decision-making.

Treaty settlement process

mechanism for resolving historical breaches of Te Tiriti.

Te Tiriti status

not fully supreme law but influential through statutes and practice.

Constitutional realism

constitution operates through practice, norms, and political reality.

Constitutional contestation

disagreement over meaning and role of constitutional principles.

Politics

struggle between groups to control public power and decision-making.

Law

state-created rules enforceable through institutions and sanctions.

Politics-law relationship

law structures politics; politics shapes law.

Elections

legal mechanism that allocates political power through voting.

Rule of law constraint

government can only act within legal authority.

Political accountability

government constrained by public opinion and elections.

Executive power

authority to implement and administer law (government/Ministers).

Legislature

institution that makes laws (Parliament).

Judiciary

institution that interprets and applies law (courts).

Separation of powers

division of state functions between institutions.

Comity

mutual respect between institutions to avoid interference in functions.

Parliament

sovereign law-making institution in NZ constitutional system.

Constitution Act 1986 s14

establishes Parliament as Sovereign + House of Representatives.

Sovereign (GG)

formal head of Parliament exercising powers on ministerial advice.

Governor-General

representative of the Sovereign acting on constitutional convention.

Royal Assent

final formal approval required for bill to become law.

Constitutional convention

non-legal rule guiding how constitutional actors behave.

House of Representatives

democratically elected chamber of Parliament.

MPs

elected members who represent electorate or party lists.

Government formation

determined by majority confidence in the House.

Confidence

support required for a government to hold office.

Select committees

parliamentary sub-groups scrutinising legislation and policy.

Parliamentary scrutiny

process of questioning and reviewing executive action.

Cabinet

collective decision-making body of senior government Ministers.

Cabinet government

executive decisions made collectively by Ministers.

Government Bills

legislation initiated by Ministers (executive-driven law-making).

Private Member’s Bill

bill introduced by individual MP.

Legislative dominance of executive

most laws originate from government.

Party discipline

MPs vote according to party position to maintain government stability.

MMP

mixed member proportional electoral system in NZ.

Electorate vote

selects local MP by plurality.

Party vote

determines proportional representation in Parliament.

Threshold rule

party must reach 5% or win electorate seat to enter Parliament.

List MPs

MPs allocated to ensure proportional representation.

Electoral accountability

government can be removed through elections.

Reserved provisions (Electoral Act s268)

entrenched electoral rules requiring special process.

Entrenchment

legal requirement making constitutional change harder than ordinary law.

Entrenchment mechanism

75% MP majority or referendum required.

Procedural entrenchment

rules about how law must be changed, not banning change itself.

Substantive limit

absolute legal prohibition on Parliament legislating (NZ rejects this).

Orthodox sovereignty view

Parliament cannot bind future Parliaments.

Counter view (entrenchment debate)

Parliament may impose enforceable limits on itself.

Ngaronoa v Attorney-General

prisoner voting rights case on entrenchment interpretation.

Held (Ngaronoa)

legislation valid as it did not breach entrenched provisions.

Obiter (Ngaronoa)

uncertainty whether courts would enforce entrenchment.

NZBORA 1990

statutory protection of fundamental rights and freedoms.

Section 5 NZBORA

rights may be limited if demonstrably justified in a free society.

Hansen test

proportionality test for justified rights limitations.

Proportionality

balance between objective importance and rights impairment.

Section 7 NZBORA

Attorney-General must report inconsistent bills to Parliament.

Section 4 NZBORA

courts cannot strike down inconsistent legislation.

Declaration of inconsistency

judicial statement that law breaches rights (no invalidation).

Rights vetting

pre-introduction review of bills for NZBORA compliance.

Attorney-General role

law officer + political minister dual function.

Section 7 notice

warning to Parliament that bill may unjustifiably limit rights.

Select committee role (NZBORA)

must consider Attorney-General’s report.

Rights protection mechanism

political, not legally binding constraint on Parliament.

Parliamentary sovereignty

Parliament is supreme law-making authority.

Orthodox sovereignty

Parliament may legislate on any subject.

Section 15 Constitution Act 1986

confirms Parliament’s continuing law-making power.

Courts and legislation

courts must apply Acts even if inconsistent with rights.

Judicial role

interpret and apply law, not invalidate Acts.

Rule of law (institutional)

government bound by legal limits in exercising power.

Soft law

non-binding guidelines influencing behaviour of government actors.

Hard law

legally enforceable rules created by statute or common law.

LDAC guidelines

best-practice legislative drafting standards.

Soft constraint function

influences executive behaviour without legal enforceability.

Government Bill process

policy → Cabinet approval → introduction → parliamentary vote.

Cabinet control

no Government Bill proceeds without Cabinet agreement.

Legislative reality

executive dominates law-making process in Parliament.

Standing Orders

internal parliamentary rules governing procedure.

Standing Orders legal status

not law; enforceable only within Parliament.

Pickin principle

courts will not examine parliamentary procedure or Standing Orders compliance.

Parliamentary privilege

legal protection of parliamentary proceedings from external interference.

Article 9 Bill of Rights 1688

protects freedom of speech in Parliament.

Free speech privilege

statements in Parliament cannot be questioned in court.

Exclusive cognisance

Parliament has sole authority over internal proceedings.

Privileges Committee

body that investigates breaches of parliamentary privilege.

Contempt of Parliament

conduct interfering with Parliament’s functions.

Kiwi Party v Attorney-General

challenged firearms law and claimed constitutional invalidity.

Held (Kiwi Party)

no legal basis to invalidate legislation; Parliament remains sovereign.

Deep-lying rights argument

claim some rights are so fundamental Parliament cannot override them.