New Zealand Constitutional Law and Treaty of Waitangi Lecture Notes

Flashcards covering the Treaty of Waitangi, the structure of New Zealand's government, the legislative process, and key constitutional case law.

Why was the Treaty of Waitangi not historically included on the list of constitutional statutes?

Meanings differ between the two translations, it is an agreement between two states rather than a unified body (like the Crown), and it was not made part of law by Parliament.

How can the Treaty of Waitangi be enforced if it is not legally enforceable in its own right?

It is referred to by Parliament in specific legislation, such as the Treaty of Waitangi Act 1975, which makes its principles enforceable.

What powers does the Waitangi Tribunal possess regarding disputes and land?

It has the power to investigate disputes, make non-binding recommendations for compensation, and has the power to recommend the return of land if it is state-owned.

What are the four sources of New Zealand constitutional law?

1. Statutes (e.g., NZBORA and Human Rights Act), 2. Treaty of Waitangi, 3. Constitutional principles, 4. Constitutional underpinnings.

What was the significance of the 'Lands case' (NZ Maori Council V Attorney General [1987])?

It placed limits on the exercise of public power, established early treaty principles, and resulted in the Treaty of Waitangi (state enterprises) act 1988 to allow for tribunal land investigations.

What are the three arms of government described in the separation of powers?

The Executive (Government), the Legislature (Parliament), and the Judiciary (the Courts).

What is the role of the Executive Council?

Chaired by the Governor-General and comprising the PM and all ministers, its main role is to advise the Governor-General to make 'orders in council'.

What are 'prerogative powers' and who holds them?

Powers of the monarch exercised by the Governor-General, including opening/dissolving parliament, appointing the PM and ministers, giving royal assent, and declaring war.

What does 'Parliamentary supremacy' entail?

Parliament is the supreme law-making body; legislation is the highest form of law, and courts must apply statutes and cannot override them or strike down primary legislation.

What is the 'Rule of Law' as defined in the notes?

The doctrine that all people are equal before the law and the acts of officials carrying out government orders are accountable to the ordinary courts of law.

In the MMP system, how is an 'overhang' created?

An overhang occurs if a party gets more electorate seats than its share of the party vote (e.g., winning 7 electorates with only 5% of the party vote).

What is the 'Caretaker convention' in constitutional law?

A rule of good political behavior where an outgoing government must act on the advice of the incoming government and make no major policy decisions.

Compare the standard of proof in Civil versus Criminal cases.

Civil cases use the 'balance of probabilities' (easier to prove), while Criminal cases use 'beyond reasonable doubt' (higher standard).

What was the judicial outcome of Borrowdale v Director-General of Health regarding the COVID-19 lockdown?

The court held that for 9 days the lockdown was illegal, holding the government accountable for breaching human rights (NZBORA) despite the powers in the Health Act.

What are the seven stages of a bill becoming a law in New Zealand?

1. Introduction, 2. First Reading, 3. Select Committee, 4. Second Reading, 5. Committee of the Whole House, 6. Third Reading, 7. Royal Assent.

What is the difference between Public Service and an Executive Council?

The Executive Council advises the GG to make non-statute laws like orders in council, while the PM and ministers make up the Cabinet to develop bills/laws in specific areas like education.