Introduction

What is public law?

The institutions, rules and laws governing (1) the vertical relationship between government and citizens and (2) the horizontal relationship between the branches of government – how public power is constituted and constrained

Three branches of government

Legislature (makes law), executive (administers law), judiciary (interprets and applies law)

What makes up Parliament (s 14 Constitution Act)?

The Sovereign (Governor-General) and the House of Representatives

Which officers of Parliament sit with the legislature?

Ombudsman, Controller and Auditor-General, Parliamentary Commissioner for the Environment

What makes up the executive?

GG/Sovereign, PM, Ministers, Cabinet, Executive Council, and government departments and ministries

What is a constitution?

Base rules describing how a country operates – its institutions, what power they have, how it is distributed and limited

Three features of NZ's constitution

Uncodified, not supreme, not entrenched

Why is NZ's constitution uncodified?

No single document – principles are spread across many written sources, and some are unwritten

Why is NZ's constitution not supreme?

Courts can't strike down legislation for inconsistency (NZBORA s 4; parliamentary supremacy, Constitution Act s 15)

Why is NZ's constitution not entrenched?

Parliament can amend it by simple majority

Exception to non-entrenchment

Electoral Act s 268 reserved provisions – need 75% of MPs or a referendum

Foundational principle: representative democracy and responsible government

MPs are elected; government needs majority support of the House; held to account by opposition and public (confidence and supply, question time, select committees, elections)

Foundational principle: separation of powers

Power is spread across branches to check abuse; incomplete in NZ – ministers must be MPs and Parliament is supreme over courts

Foundational principle: rule of law

Everyone, including law-makers and officials, is subject to the law equally and needs legal authority to act (Entick v Carrington; Fitzgerald v Muldoon)

Lord Cooke on the Treaty

'Simply the most important document in New Zealand's history'

Te Heuheu Tūkino v Aotea District Māori Land Board (PC)

The Treaty, as an international instrument, has no domestic legal effect unless given effect by legislation

Wi Parata

Treaty described as a 'simple nullity' – shows how the Treaty's legal status has evolved

Effect of the Waitangi Tribunal's creation (1975)

Began increasing recognition of the Treaty in legislation; Treaty principles clauses now common; tikanga's role growing