LAWS110: Constitutional Law 5

Announcements

  • Privileges Committee Decision:

    • Duncan Webb discussed Te Paati Maori breaching house privilege.
    • Proposed suspension of two leaders for 21 days.
    • Chris Bishop deferred the debate until after King's Birthday weekend due to the budget.
    • The budget is constitutionally significant.
    • Suspending MPs affects their ability to participate in parliamentary proceedings.
    • Suspension punishes both the MPs and their electorate.

  • Tareo Quiz:

    • Reminder about the quiz this week.
    • 83 people have completed the quiz.
    • Attend the Tareo Mari workshop before taking the quiz.

Judicial Branch

  • Branches of Government: Reviewing the branches of government.

    • Duncan talked about parliament.
    • Executive discussed.
    • Judiciary to be covered.

  • MMP (Mixed Member Proportional Representation):

    • Complex system.
    • Emphasis on civics education.
    • Exam will not require explaining how MMP works.

Key Aspects of MMP

  • Election Criteria:
    • A party needs 5% of the party vote or one electorate seat to be elected.
    • Electorate seats (65 general, 7 Maori) are geographically elected.
    • List MPs (48 or 51) are selected from party lists based on national vote proportion.

MMP Quirks and Executive Power

  • 2017 Election Outcome:

    • National Party: 44% of the vote, 56 seats.
    • Labour Party: 36-37% of the vote, 46 seats.
    • Minor Parties: Greens (9), New Zealand First (9), ACT Party (1).
    • Winston Peters (New Zealand First) chose to form a coalition with Labour.
    • Government: Labour, New Zealand First, and Greens.
    • The party with the most votes doesn't always end up in power.

  • 2023 Election:

    • National: 38% (48 seats).
    • Labour: 26% (34 seats).
    • Greens: 11%.
    • ACT: 8%.
    • New Zealand First: 6%.
    • Te Paati Maori: 3% (won 6 electorate seats leading to overhang).
    • Parliament size increased to 122 due to overhang.
    • Government: National, New Zealand First, ACT. Total of 67 seats out of 123.

  • Hamilton East/West By-election: Increased total seats to 123 due to a by-election.

  • Party Vote Importance: Party vote determines overall proportionality.

MMP and Executive Dominance

  • Executive Dominance Question: Did MMP reduce executive dominance over parliament?

    • Single Party Majority: Less likely under MMP.
    • 2020 Labour government was an exception but chose to partner with the Greens.

  • Negotiation and Compromise:

    • Political parties must negotiate to form a government.

  • Smaller Parties' Influence:

    • Smaller parties can influence larger parties due to the need for coalitions.

  • Diversity:

    • Increased diversity in parliament.
    • Women: 45% of MPs.
    • Maori: 27%.
    • Pacifica: 6%.
    • Asian descent: 6% (underrepresented).

Critiques of MMP

  • Downsides of MMP:

    • 2017 outcome: National got the most votes but didn't form the government.

  • Minor Parties' Control:

    • Tail wagging the dog.
    • Treaty Principles Bill example.

  • Overhang:

    • The fact that Te Party Maori won so many electorate seats (6) despite only receiving 3% of the vote, lead to an oversized parliament (123 instead of 120 MPs).

  • Thresholds:

    • The 5% threshold is often debated.

  • Referendum:

    • 2011 referendum: 57% wanted to keep MMP, 42% did not.

  • Conclusion: MMP has added more checks to the executive branch by requiring compromise.

The Courts, the Judiciary (Na Kote)

Supreme Court

  • Current Judges:
    • Justice Joe Williams: First Maori member.
    • Justice Forrest Miller.
    • Justice Susan Glazebroek.
    • Chief Justice Dame Helen Winkelman.
    • Justice Stephen Koch.
    • Justice Ellen France.

Functions of the Judicial Branch

  • Interprets and applies parliament's laws.
  • Creates common law via precedence.

Appointment of Judges

  • Judges are appointed by the Governor-General on the advice of the Attorney-General.
  • Attorney-General (Judith Collins) should act apolitically.
  • Different from the political process in the US.

Retirement of Judges

  • Retirement age is 70.
  • Two judges (Forrest Miller and Susan Glazebroek) will retire next year.
  • Judges from the Court of Appeal are often "bumped up"."

Relationship Between Courts and Parliament

  • Parliamentary Sovereignty: Duncan presented as a skeptic, but it's important to consider the other side.
  • Can the courts stop parliament from making inappropriate laws? No.
Case Studies
Falema'i Lesa v Attorney-General (1982)
  • Background: New Zealand's role as colonial administrator of Samoa (1914-1962).
  • Citizenship Status: Unclear during New Zealand's administration.
  • Dawn Raids: Resulted in cases about deportation of alleged overstayers.
  • Falema'i Lesa's Argument: She was a New Zealand citizen because she was born during the period when New Zealand administered Samoa.
  • Privy Council Decision: All Samoans born between 1924 and 1948 were New Zealand citizens.
  • Impact: 100,000 Samoans would have to be recognized as citizens.
  • Citizenship (Western Samoa) Act 1982: Overturned the Privy Council decision with exception of miss Lesa which kept her citizenship.
  • Citizenship of Western Samoa Restoration Amendment Act 2024: Restored citizenship to people born between 1924 and 1948 (about 3,500 people).
Attorney-General v Ngati Apa (2003)
  • Foreshore and Seabed Case.
  • Context: Helen Clark's Labour Government.
  • Issue: Whether the Maori Land Court had jurisdiction to consider claims whether the foreshore and seabed was Maori customary land.
  • Misunderstanding: The public thought the court decided all foreshore and seabed was Maori customary land.
  • Result: Public protests.
  • Foreshore and Seabed Act 2004: Crown owns foreshore and seabed on behalf of all New Zealanders.
  • Tariana Turia: Left the Labour Party and set up Te Paati Maori.
  • Marine and Coastal Area (Takutai Moana) Act 2011: Repealed 2004 act.
Family Carers Case
  • Cliff Robinson: Primary carer for his two adult children with disabilities.
  • Issue: Challenging government policy not to pay family carers.
  • Discrimination: Family carers wouldn't get an allowance, but non-family carers would.
  • Court of Appeal Decision: Policy was unlawful discrimination on the grounds of family status.
  • Public Health and Disability Amendment Bill: Overturned the decision.
  • Reason: Cost to taxpayer.
  • Public Health and Disability Amendment Act 2020: Some payment of family carers in certain situations.

Common Themes and Questions

  • Commonality: All cases involve minorities.

    • Samoans, Maori, and people with disabilities.

  • Cherry-Picked Cases? Yes. But parliament often uses its power against minorities. Known as the tyranny of the majority.

  • Effectiveness of New Zealand's Constitution: Not very effective at protecting minorities.

  • Parliamentary Effectiveness: In the end, parliament did address the issues.

    • Amended/repealed acts.

  • Judicial Review: New Zealand's courts lack the power to strike down legislation.