New Zealand Constitutionalism

Introduction

New Zealand's constitution is a set of contrasts:
- Considered 'unwritten' but found in written sources.
- Can change rapidly but has maintained its character for over 150 years.
- Independent but more Westminster-like than Westminster.
- Centralized authority with a strong executive and legislative supremacy.
- Values egalitarianism and representative democracy.
- Aims to protect indigenous Māori interests through democratic majority rule.
- Proud of upholding the rule of law but has few institutional safeguards.
These features reflect public trust in government and the power of convention, making the constitution flexible but also vulnerable.
New Zealand's constitution exists in practices, habits, conventions, and norms.
Constitutional lawyers study the life and times of the constitution as performance art.
The approach to understanding the constitution is based on constitutional realism.

Constitutional Essence

Constitutional Collision and Evolution

The cultural and legal collision in New Zealand occurred between British law and Māori law in the first half of the nineteenth century.
British settlers brought their legal traditions to a land occupied by Māori, who governed according to their tikanga.
Contact and trade between Europeans and Māori iwi (tribes) and hapū (sub-tribes) increased from Cook's visits (1769–1779) until the 1830s, especially after Sydney was established in 1788.
Engagements, tensions, and conflicts arose between the differing interests of British commercial, religious, and government groups and the interests of iwi in the 1830s.
In 1840, te Tiriti o Waitangi / the Treaty of Waitangi was negotiated, and Britain asserted sovereignty.
1840 marked the point at which the coercive force of the British Crown began to be applied in New Zealand through the establishment of British government.
Relationships between the Crown, Māori, and other New Zealanders have been fundamental to New Zealand culture, society, and constitutional dynamics.
These relationships have been a source of tension and grievance, with a growing willingness to recognize both world views.
The primary constitutional avenue for this collision is te Tiriti o Waitangi.
From the 1970s to the 1990s, the meaning and legal status of te Tiriti were reinterpreted through constitutional dialogue between the Waitangi Tribunal, the executive, the courts, and Parliament.
The relational meaning of te Tiriti has become a settled part of New Zealand’s constitutional landscape, with its legal force growing over time.
Other legal manifestations of the constitutional collision between Māori and the Crown include the common law of customary rights and fiduciary rights.
The recognition and/or enforcement of Māori tikanga by the common law has begun.
Since 1840, New Zealand’s constitution has evolved in fits and starts, with intense periods of constitutional realignments in the 1840s-1860s and the 1980s-1990s.
British forms of governance followed the assertion of sovereignty in 1840.
The 1840s to 1850s saw British settlers wrest control of government from the Colonial Office through demands for representative and responsible government.
In 1858, the New Zealand Parliament gained the ability to amend parts of its constitutive statute, the New Zealand Constitution Act 1852 (Imp), around the time settlers began to outnumber Māori.
The increasing political power of settlers reflected and engendered increasing armed conflicts between the Crown and many Māori iwi, from the mid-1840s to the late 1860s.
By the 1920s, the government effectively controlled all of New Zealand.
Early British governance was based on a series of provincial divisions, until these were eventually abolished in 1875, making New Zealand a unitary state.
From then, there were only isolated significant constitutional changes for around 100 years.
The period of political and social ferment in the 1870s to 1890s saw the government establish national infrastructure and a significant welfare state.
This was accompanied constitutionally by:
- The establishment of the first political party (the Liberal Party) in 1891.
- Women’s suffrage in 1893.
- The decision not to join the Australian federation in 1901.
- The establishment of a politically neutral public service in 1912.
The reaction to the 1930s depression saw the consolidation of the welfare state and development of a two-party electoral system contested by the Labour and National parties.
The acquisition of independence from Britain was a series of steps:
- Acquisition of dominion status in 1907.
- Passage of the Statute of Westminster by the United Kingdom allowing effective independence in 1931.
- New Zealand’s eventual adoption of independence under the Statute of Westminster in 1947, motivated by the desire to abolish the appointed upper house (the Legislative Council), which was effected in 1950.
From then until the 1990s, New Zealand’s Cabinet government effectively exercised unbridled power.
The Muldoon administration from 1975 to 1984 demonstrated the autocratic potential of unbridled power, causing an economic crisis.
A constitutional backlash followed in the mid to late 1980s.
Measures introduced by subsequent governments included restructuring of the public service by the State-Owned Enterprises Act 1986, State Sector Act 1988, Public Finance Act 1989 and Fiscal Responsibility Act 1994.
The Constitution Act 1986 brought together the scattered constitutional provisions in the statute book in one ordinary statute.
Changes to parliamentary procedures made the House of Representatives more effective.
The New Zealand Bill of Rights Act 1990 protected civil and political rights and freedoms with the power of an ordinary statute.
From 1986 to 1996, politics was fundamentally restructured as the electoral system was changed from first-past-the-post (FPP) to mixed-member-proportional (MMP).
Te Tiriti o Waitangi was given legal recognition by the establishment of the Waitangi Tribunal in 1975; the Tribunal’s reinterpretation of the principles of te Tiriti from 1983 to 1986; passage of legislation recognising those principles in various Acts from 1986; and court confirmation and enforcement of the principles from 1987.
Overall, executive power has been significantly bridled.
Since the 1990s, the pace of constitutional development has slackened.
The removal of the Judicial Committee of the Privy Council as New Zealand’s highest court in favor of a patriated Supreme Court, in 2003, has been the main additional development.
Two current developments that may prove significant are the adoption of well-being as a public finance yardstick and the increasing recognition and enforcement of tikanga by the courts.

Constitutional Sketch

The essence of contemporary constitutional relationships can be sketched in seven points:

These are relationships between the people, Parliament, the Sovereign, Cabinet, ministers, the public service, and the judiciary.
They are encapsulated in principle and convention and reinforced by legislation and interpretations, but not bound up in superior legal rules.

Representative democracy:
- New Zealanders have a deep attachment to democracy, manifested through the election of members to the relatively small (120 member) House of Representatives.
- Since 1990, the introduction to the Cabinet Manual has presented democracy as the ‘underlying principle’ of New Zealand’s constitution.
- The primacy of this principle is reinforced by the rare entrenchment of electoral laws.
- Changes to the franchise and electoral system have been central to New Zealand’s constitutional story.
- Māori men got the vote in 1867 and Māori and Pākehā women in 1893.
- The change from a FPP electoral system to a MMP system is the most fundamental constitutional reform of recent times.
Legislative supremacy (parliamentary sovereignty):
- In New Zealand, Parliament may still ‘make or unmake any law whatever’ and make and unmake governments.
- The legislative power of Parliament is not subject to formal constraint.
- The judiciary is not supposed to be able to strike down legislation for any reason.
- This flows from the commitment to representative democracy and historical struggles.
Sovereign’s obligation to act on ministerial advice:
- This convention is fundamental to the democratic nature of New Zealand’s constitution.
- Legislation confers on the Governor-General legal powers which, if exercised without check, would revive the monarchical nature of government.
- Convention requires that almost all of the Sovereign’s powers may only be exercised on the advice of ministers.
- The Governor-General acts on the advice of ministers only if ministers have the confidence of the House of Representatives.
Collective Cabinet responsibility:
- Parliament expresses its confidence in the government as a whole, not individual ministers.
- Cabinet operates through deliberative processes, and key parliamentary votes confirm whether a Prime Minister and their Cabinet commands the confidence of the House of Representatives.
- The collective character of Cabinet also generates conventions of confidentiality and solidarity.
- Cabinet and ministers must speak as one and should not reveal difference and dissent.
- Innovations allow coalition and support parties to maintain their distinctive positions on some matters even if at variance from the government.
Individual ministerial responsibility:
- This convention remains a bedrock foundation for executive government, even if somewhat overshadowed by collective responsibility.
- It makes clear the identity of the political actor to whom responsibility for a matter of government policy or operations is assigned.
- The minister is responsible to the House of Representatives for all matters within their portfolio.
- Responsibility principally means the obligation to explain and fix things within their portfolio – more than the obligation to resign for governmental mistakes.
Public service neutrality and loyalty:
- Convention requires public servants to be loyal to the government of the day, to be politically neutral, and to provide ministers with free and frank advice.
- Government departments, directed by ministers, are the core of the legal entity known as the Crown.
- The duty of loyalty requires public servants to do what ministers say, subject to political neutrality and free and frank advice.
Rule of law and judicial independence:
- The rule of law expresses the ideal that it is the law itself that should rule.
- Judges are charged with ensuring that the demands of the rule of law are met.
- Judicial independence provides a necessary condition for them to do so.
- Together with representative democracy, the rule of law is a key constraint on the exercise of power.

These principles and conventions sketch the fundamentals of how public power is exercised in New Zealand.
It is important to understand the underlying reality of the constitution, rather than just its formal clothes.

Constitutional Perspective

Constitutional Realism

Constitutional realism involves delving beneath the formal legal robes of the constitution to detect the functional substance of how things work in reality.
It is a commitment to candour, to telling it as it is.
The American realists’ commitment to candour about the reality of law is applicable to the Constitution.
Understanding a constitution as a living set of practices was also an approach adopted by nineteenth century English constitutionalists.
A constitution, in anything more than a formal sense, is only an organization of men and women.
Constitutional law involves concurrent constitutional practice.
Constitutional realism emphasizes substance over form and reality over theory.
It looks to behavior and actions as a more reliable guide to the reality of the constitution than words and doctrines.
It stresses the importance of context and the dependence of institutions and procedures on the path by which they have evolved over time.
The ‘constitution’ which affects the behavior of the actors who exercise public power resides in the influences on those behaviors in reality – their incentives, constraints and powers that extend beyond formal processes and rules to encompass attitudes, beliefs, norms and cultures.
New Zealand’s constitution formally vests powers in certain institutions but, in reality, they are actually exercised by others.
Many principles and conventions are inconsistent with the formal substance of constitutional laws.
Most Westminster constitutions have a written constitution, bill of rights or superior document that stamps malleable convention with more rigid legal rules, but New Zealand does not.
A proper understanding of New Zealand constitution needs a realist’s eye.

Constitutional Elements

A core task is identifying the key elements that shape the constitution.
In the case of unwritten constitutions, this involves itemizing the various sources which supply constitutional rules in the absence of a complete and superior instrument.
A rule, norm or practice (an element) should be regarded as constitutional ‘if it plays a significant role in influencing the generic exercise of public power – whether through structures, processes, principles, rules, conventions or even culture’.
The key focus is on public power and the rules which shape that power – whether enabling or limiting power.
Significance and genericism qualify the group of rules that should be treated as constitutional.
The definition also enlarges the corpus of constitutional rules beyond the formal, ensuring more subtle human aspects that empower or constrain government are not lost.
The constitutional elements associated with each branch of government can be conceptualized in four categories: conventions, common law, instruments, and interpretations of those instruments.

Constitutional conventions:
- Conventions are social norms that constrain behavior within government.
- Conventions are binding constitutional practices.
- There must also be a reason for a convention; it must fulfill a function consistent with the wider constitutional system.
- Conventions are not legal rules, and they can be breached without formal legal consequences.
- A convention may change through a consistent change in behavior over time.
Common law:
- The common law is more formal than constitutional conventions because the norms are expressed through adjudication in court judgments and are enforceable through coercive means.
Instruments of each branch of government:
- The most formal rules are those recorded in instruments of each branch of government, whether in legislation, standing orders, rules of court, prerogative instruments, the Cabinet Manual and so forth.
Interpretations of instruments:
- The meanings given to instrumental rules can also be elements of the constitution.
- The judiciary has a primary role in interpreting legislation.
- Different branches of government and different officeholders engage in dialogue about the meaning and significance of the rules.

Constitutional Culture

Lawyers tend to focus primarily on institutions, procedures, and particular cases.
New Zealand and the United Kingdom have adhered less to the study of a text and cases than other jurisdictions, because of the absence of a foundational constitutional text.
The ebb and flow of underlying public opinion about how public power is and should be exercised influences the evolution of unwritten constitutional events more directly than do particular cases.
A concept of ‘culture’ refers to a general understanding of a group of people – their collective mindset or way of thinking about the world.
There is a close relationship between the culture and the identity of a community.
Any adequate conception of a ‘constitution’ must deal with the cultural elements that underpin it.
Key norms of New Zealand constitutional culture endure over time.
These norms are shaped by, and shape, the constitution.
Four key cultural attitudes to the exercise of public power in New Zealand:
- Egalitarianism
- Faith in authority
- Fairness
- Pragmatism
Overall, these constitutional norms pull in contradictory directions and manifest in different aspects of New Zealand constitutional arrangements.
These sorts of cultural attitudes ‘constitute’ New Zealand, in a more enduring though evolving manner than particular institutions, procedures or cases.

Egalitarianism

New Zealand sees itself as a fundamentally egalitarian society.
Ideas of equality and a belief in the collective have existed from an early stage of New Zealand’s settler society.
In Māoridom the interests of the collective tribal unit – the iwi or hapū or whānau – dominate.
An aspect still seen today is New Zealand’s ‘tall poppy syndrome’, where those over-inflating their own importance are cut down to size.
The underlying egalitarian ethos and rhetoric from the foundational elements of New Zealand culture still subsist in New Zealanders’ attitudes to the exercise of public power.
Egalitarianism still underlies and reinforces what is regarded as the strongest constitutional norm in New Zealand: representative democracy.
Māori tikanga expects rangatira (chiefs) to express the consensus of the iwi or hapū.
The demand for representative government was the natural expectation for a settler society conceived in the era of the Great Reform movement of 1830s Britain.
The ballot box was seen as the means of giving groups a stake in settler society.
The biggest constitutional change in twentieth century New Zealand was the introduction of MMP in 1993.
The confidence of the elected House of Representatives is the lifeblood of government.
The Governor-General may only ignore their ministerial advisors if those ministers have lost the confidence of the people’s representatives.
The only provisions in New Zealand law entrenched against amendment by a simple majority of the House are certain provisions relating to electoral law.
Democracy is the ‘underlying principle’ of New Zealand’s constitution.

Faith in Authority

New Zealanders generally trust their governors.
Collective action, by the state on behalf of the community, is not seen as the enemy of the people.
Māori revere strong rangatira.
New Zealanders generally admire strong Prime Ministers.
Settler society in New Zealand always looked to the state rather than away from it.
The cultural demand for, and trust in, authority found ideal expression in the principle of legislative supremacy.
New Zealand appears to be the last outpost where citizens appear content to dice with Dicey.
In New Zealand, Parliament can, and still does, make or unmake any law whatsoever, unconstrained by a ‘higher’ law, a written constitution or European law.
Māori and Pasifika attitudes are much more ambivalent, especially towards Pākehā-dominated majoritarian government.
The introduction of MMP sought to bridle executive power by restructuring the political sector after governments were seen to have broken promises.

Fairness

Fairness is a core animating ideal of New Zealand culture.
Fairness has both procedural and substantive dimensions.
Ideas of fairness bear on New Zealanders’ attitudes to how public power should be exercised.
Justice and the rule of law can be seen as formal corollaries of the notion of fairness.
The rule of law is a vulnerable constitutional norm in New Zealand.
Various law reform exercises in New Zealand over the years have exhibited a consistent suspicion about entrusting decision-making to court processes.
Public opinion polls seem to indicate that the courts do not fare too badly in terms of popular confidence.
Periodic public reviews have become gradually less antagonistic to the notion that the power of the judiciary might desirably increase.

Pragmatism

Pragmatism is the fourth aspect of New Zealand culture relevant to the exercise of power.
Grand theorizing is suspicious unless it relates to something concrete.
Problems should be fixed as they appear.
New Zealanders value innovation in pragmatic tinkering.
This pragmatic element of New Zealand culture appears to lie behind the determined assertion that New Zealand has, and should have, an unwritten constitution.
This assertion seems to be connected with New Zealanders’ cultural aversion to tying their hands in the future; a preference for presentism rather than originalism.
Periodic suggestions that New Zealand should write down key constitutional rules are still greeted with suspicion.
This is also consistent with Māori constitutional values, as the unwritten constitution, like tikanga Māori to some degree, privileges flexibility and pragmatic evolution.

Constitutional Dialogue

This book uses the structure of the traditional division of government into three branches: the executive, the legislature, and the judiciary.
Each branch has its own voice and speaks its own language.
This is a development of the metaphor of constitutional dialogue, where each branch of government issues its judgments, passes its legislation or executes its policies in reaction to each other’s decisions, over time.
The metaphor is a means of capturing an understanding of an important part of how New Zealand constitutional dynamics actually function in practice.
The dialogue metaphor moves academic debate away from the question of which branch of government is, or should be, ‘supreme’.
Features of New Zealand’s constitution develop through an iterative series of interactions between different branches of government.
The use of the dialogue metaphor also captures less rosy instances of inter-institutional discourse.
Nor will these dialogical developments always generate linear, neat or progressive outcomes.
Constitutional dialogue is covered in detail, particularly in relation to Māori rights and human rights.

Languages of the Branches of Government

Politicians in Parliament speak the language of politics.
The judiciary speaks the language of the common law.
The public service speaks the languages of policy and management.
Ministers speak, and translate between, the languages of politics and policy.
The most fundamental distinctions between these languages are when the pragmatism of politics or the generic nature of policy meets the specificity and principle of law.
The judiciary and its language of the common law seems likely to feel more confident on specific cases of injustice focusing on ‘rights’ than it does on issues of generic social or economic policy.
The judiciary has been prepared to ‘raise its voice’ in constitutional dialogue with the political branches of government on issues of fundamental human rights.

Conclusion

New Zealand has a single House of Parliament, a unitary state, no supreme law and a Cabinet used to getting its own way.
The legal form of its constitution is that of a monarchy.
By convention, the monarch’s representative acts only on advice from Ministers who have the confidence of the House of Representatives.
Cabinet acts collectively and is advised by a loyal and politically neutral public service.
New Zealanders fiercely uphold their right to vote out the government in general elections every three years.