Sources of the Constitution

Sources of the Constitution

Vocabulary

Divisible Crown

  • The Crown acts as a distinct Head of State in each Commonwealth realm.

The Crown and Governor-General

Evolution of the Governor-General

  • Demonstrates New Zealand's constitutional maturity and increasing sovereignty from the United Kingdom.

  • Transition from UK-born appointees to New Zealand-born appointees.

Governor-General Term

  • Five years.

Governors-General

1946–1952: Sir Bernard Freyberg

  • Often incorrectly identified as the first NZ-born Governor-General.

1967–1972: Sir Arthur Porritt

  • First NZ-born Governor-General.

  • Remained strongly attached to the UK.

1972–1977: Sir Denis Blundell

  • First resident New Zealander appointed Governor-General.

1977–1980: Sir Keith Holyoake

  • Appointment controversial because he was a former Prime Minister.

1980–1985: Sir David Beattie

  • Former High Court judge.

  • Controversy surrounding personal importation issues.

1985–1990: Sir Paul Reeves

  • Archbishop of New Zealand.

  • Controversially supported an unpopular Prime Ministerial candidate.

1990–1996: Dame Catherine Tizard

  • Former Labour Mayor of Auckland.

  • Appointment controversial due to political background.

  • Term extended to cover transition to MMP.

1996–2001: Sir Michael Hardie Boys

  • Appointed to assist constitutional transition to MMP.

2001–2006: Dame Silvia Cartwright

  • Former Chief District Court Judge and High Court Judge.

  • Known for medical research contributions.

2006–2011: Sir Anand Satyanand

  • First Governor-General of Asian descent.

  • Former District Court Judge and Ombudsman.

2011–2016: Sir Jerry Mateparae

  • Former Chief of the New Zealand Defence Force.

2016–2021: Dame Patsy Reddy

  • Distinguished lawyer and business leader.

2021–Present: Dame Cindy Kiro

  • Former Chief Executive of the Royal Society.

Official Information and Government Transparency

International Trends

Reactive Disclosure

  • Information released only upon request.

Proactive Disclosure

  • Information released automatically without request.

Law Commission Review

  • Identified an international movement toward proactive disclosure.

Official Information Act 1982 (OIA)

Purpose

  • Promotes public accountability and citizen engagement.

  • Creates a right of access to official information.

  • One of New Zealand's most significant constitutional developments.

  • Established a presumption of availability.

Section 5: Principle of Availability

  • Official information should be made available unless there is good reason for withholding it.

Section 4

  • Promotes accountability of Ministers and officials.

Jurisdiction

  • Applies to bodies listed in:

    • Schedule I of the Ombudsmen Act 1976

    • Official Information Act

Reasons for Withholding Information

Conclusive Reasons (s 6)

May override the presumption of availability:

  • Protection of New Zealand's security.

  • Defence interests.

  • International relations.

  • Protection of confidential information supplied by foreign governments or international organisations.

Other / Defeasible Reasons (s 9)

  • Prima facie reasons for withholding.

  • Subject to a balancing test.

  • Information may still be released if public interest outweighs competing interests.

Administrative Reasons

Include:

  • Frivolous or vexatious requests.

  • Information cannot be found.

  • Information does not exist.

  • Request would require substantial collation.

  • Information is soon to become publicly available.

Ombudsman Enforcement

  • Ombudsman administers and investigates OIA complaints.

  • Ultimate responsibility remains with the Executive.

Executive Council Veto

  • Introduced in 1987.

  • Permits Executive Council to veto Ombudsman recommendations for release.

Danks Committee

  • Established to review the culture of governmental secrecy.

  • Led to creation of the OIA.

Practical Use

  • Widely used by:

    • Lawyers

    • Journalists

    • Parliamentarians

    • Private citizens

Price Study Findings

Analysis of 1,000 OIA requests identified:

  • Breaches of the 20-working-day response rule.

  • Wrongful refusals based on vagueness.

  • Unauthorised withholding grounds.

  • Failure to cite legislation.

  • Strategic delays.

  • "Substantial collation" pretexts.

  • Punitive administrative charges.

Privacy Act 1993

  • Allows individuals to access personal information held about themselves.

  • Complements the OIA.

Royal Titles Acts

Royal Titles Act 1952

  • Prioritised the Queen as Queen of the United Kingdom.

  • New Zealand listed among "other territories."

Royal Titles Act 1974

  • Prioritised New Zealand over the United Kingdom.

  • Reflected emergence of separate Crowns throughout the Commonwealth.

Official Secrets Act 1951

  • Information treated as government property.

  • Disclosure only permitted when a positive justification existed.

Letters Patent 1983

Purpose

  • Defines the office of the Governor-General.

  • Defines the Executive Council.

Reason for Revision

  • Replaced the 1917 version.

  • Older document was more suited to a Crown colony than an independent state.

Key Changes

  • Removal of colonial vestiges.

  • Changed terminology from "Dominion" to "State."

  • Governor-General required to consider ministerial advice.

  • Royal Instructions removed.

  • Executive Council membership restricted to MPs.

  • Sovereign acts on Executive Council advice.

  • Full delegation of Royal Prerogative powers.

Responsible Government

Section 6(1)

  • Ministers must be MPs.

Section 6(2)

  • Individuals who stood for election may be appointed Ministers for up to 40 days before becoming MPs.

Constitution Act 1986

Status

  • Premier constitutional statute.

  • Not a codified constitution because it lacks supreme constitutional status.

Objectives

  • Facilitate constitutional transition.

  • Consolidate fragmented constitutional rules.

  • Repeal the New Zealand Constitution Act 1842.

Part 1 – The Sovereign

Section 2

  • Sovereign is Head of State.

  • Governor-General acts as representative.

Section 3

  • Powers conferred on Governor-General are Royal powers.

Section 3(b)

  • Administrator acts if Governor-General is absent.

Section 5

  • No interregnum.

  • Royal authority transfers immediately.

Part 2 – The Executive

Section 6

  • Ministers must be MPs.

Section 7

  • Ministers may exercise powers within their portfolios.

Section 9A

  • Solicitor-General may perform Attorney-General functions.

Part 3 – Legislature (House of Representatives)

Section 10

  • Continued existence of the House.

Section 11

  • Members cannot sit or vote before taking the oath.

Section 12

  • Speaker must be elected.

Section 13

  • Speaker remains in office after dissolution.

Part 3 – Legislature (Parliament)

Section 14(1)

  • Parliament consists of Sovereign and House.

Section 14(2)

  • Same entity as former General Assembly.

Section 15

  • Parliament may make laws.

Section 16

  • Bills require Royal Assent.

Section 17

  • Parliamentary term is three years.

  • One of the few entrenched provisions.

Section 18

  • Crown retains ancient prerogative powers.

  • Includes power to summon, prorogue, and dissolve Parliament.

Section 19

  • Parliament must meet within the required period after return of writs.

Section 20

  • Bills, petitions, and business lapse upon dissolution.

Section 22

  • Crown cannot tax, borrow, or spend money without statutory authority.

Section 23

  • Judges protected from removal except for incapacity or misbehaviour.

Section 24

  • Judicial salaries cannot be reduced.

Citizens Initiated Referenda Act 1993

Definition

  • Allows citizens to initiate non-binding advisory referenda.

Process

  1. Submission of proposal.

  2. Consultation and determination.

  3. Collection of signatures.

    • 10% of eligible voters.

    • Within 12 months.

  4. Verification.

  5. Presentation to Parliament.

  6. Referendum.

Experience

  • Five referenda held within five years.

  • Governments ignored all outcomes.

Weaknesses

  • Non-binding.

  • No limits on subject matter.

  • Questions must be neutrally framed.

  • Compound questions can cause confusion.

  • Government cannot easily respond.

  • Overly simplistic yes/no format.

Referenda Postal Voting Act 2000

  • Permits referenda to be conducted by postal voting.

  • Intended to reduce election-day pressures.

Constitutional Cases

Commissioner of Police v Ombudsman

  • Cooke P described the OIA as a constitutional measure.

Fletcher Timber v Attorney-General

  • Reasoned by analogy with the OIA.

  • Influenced public interest immunity doctrine.

  • Restricted availability of immunity claims.

Atkinson v Lange

  • "The Queen's papers have become the people's papers."

India v Alberta

  • Colonies operate under separate Crowns.

Quark Fishing v R

  • Held UK and dependent territories share one undivided Crown.

  • Prerogative powers exercised on advice of UK Government.

  • Hoffmann J later acknowledged error in earlier reasoning.

Constitutional Commentary and Academic Sources

Halsbury's Laws of England

  • Paragraph 47:

    • UK and dependent territories constitute "one realm having one undivided Crown."

Joseph

  • Under international law there cannot be multiple Heads of State.

  • Separate Crowns require constitutional independence.

  • As long as Whitehall controls a territory, the UK remains responsible for governance.