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Primer on the New Zealand Constitution

By Steven | December 13, 2010

Here’s a “Simpleton’s guide to the Constitution” that I wrote for the The Press a few years ago. It seems timely to stick it up again given the government’s new Constitutional review (aka the “Consideration of Constitutional Issues”).      

At the law school where I work, you’ll sometimes find foreign students wandering around the law library looking baffled. “Where is your constitution?” they ask.

“Um. We have one. Really, we do,” we reply sheepishly. “It’s just that it’s not like almost every other country’s constitution, conveniently written down in one place.”

“Well, where is it written down?”

“Ahem. Yes. Well, some of it isn’t written down at all.”

At this point, you can see them wondering what sort of half-baked Mickey Mouse banana republic they’ve just washed up in. They are too polite to ask, though. If they did, we could happily explain that they are quite wrong. New Zealand is a monarchy, not a republic.

We may not have a glorious written constitution forged in the fires of revolution and inscribed with a bill of rights guaranteeing the fundamental rights of the citizenry, but that doesn’t mean we have no constitution at all. A constitution is like a blueprint for government; it sets out how governmental power is exercised: who’s got the power to make what decisions, how those people are chosen, who can make laws, who can interpret them, who enforces them. We have rules about those things, too. But you have to look in a variety of places to find them.

Where the Constitution of the United States, for instance, is a like the bedrock upon which their country is founded, our constitution is like a patchwork quilt under which our country snuggles.

It’s a patchwork that includes (among other things) our electoral laws, the Treaty of Waitangi, the laws that create our court system, some old British laws we’ve carried over from colonial days, Parliament’s Standing Orders, some letters from the Queen that set up the office of the Governor-General, our Bill of Rights Act, and a statute called the “Constitution Act.”

The Constitution Act sounds grand, but it’s not exactly steeped in antiquity. It was passed in 1986. Still, it’s the nearest thing we have to a constitution, and it contains some basic rules about how our government is structured.

It tells us that the Queen is our Head of State, and that the Governor-General acts on her behalf. It says that the Queen and our elected MPs together make up Parliament, which has “full power to make laws.” It sets out how this works: a Bill is drawn up and must be passed by the House of Representatives – but it only becomes law when it’s signed by the Governor-General or the Queen.

You might be surprised to learn that in this day and age, a woman with a fondness for corgis who lives half-way across the globe could have any political power in New Zealand at all. In fact, though, under our constitution the Queen is technically very powerful indeed. If she wanted to, she could dissolve our Parliament, sack the Prime Minister, pardon all our prisoners, and order our armed forces to attack Australia.

You’ll have noticed that she tends not to do things like this. There is a good and sound constitutional reason for this. Under our constitution, the Queen and the Governor-General always act on the advice of our government Ministers. This means that the monarch doesn’t really wield political power at all – the real decisions are made by our elected representatives.

The Queen and the Governor-General are like Superman except that they never take off their Clark Kent clothes.

Obviously, this is a fundamental cornerstone of our constitution. Obviously, something this important – the idea that the monarch’s power is always constrained by the advice of her Ministers – must be written down somewhere. Except that it’s not. It’s a “constitutional convention.”

A convention is an unwritten rule or guideline that tells people what to do in particular constitutional situations. It’s not enforceable in the courts. It evolves from years of practice and habit. Most of our conventions come from Britain.

If you think of the written rules of our constitution, like the rule that Parliament has law-making power, as the bones of our constitutional body, then conventions are like the ligaments and muscle tissue between the bones. They’re not as hard as the bones. They’re sort of messier. They don’t show up in an x-ray. But they’re vital in making the various limbs of the body work. And if important ones break down, your body faces a crisis, even if all its bones are still intact.

Another convention that might surprise you is the unwritten rule that the government resigns if it loses an election. What’s more, the whole notion of the Cabinet is a creature of convention. You won’t see it mentioned in any constitutional documents.

You can see why foreign law students get confused.

Why don’t we turn these things into proper written legal rules? Some people think we should. They say it’s unsatisfactory that such important principles are left up in the air. What if the Governor-General decided she didn’t want to sign a particular Bill into law? There would be a constitutional crisis.

Others argue that the faint possibility that the Governor-General may decide not to assent to a law may make the government think twice before it passes anything too draconian. They say that conventions work fine, and have the flexibility to change over the years in response to modern needs.

Our system is known as the “Westminster” system because it’s so closely modelled on the British constitution. It’s quite different from, say, the US constitution, and not just because our constitutional laws are scattered and some are unwritten. In the United States, the constitution is “supreme.” This means that it’s super-powered law. The rules in the constitution are treated as so important that all other laws have to comply with them. So if the US Congress tried to ban all newspapers, for example, the US courts would strike the law down because it’s inconsistent with the constitutional guarantee of freedom of the press.

This gives US judges a lot of political power, because they have a lot of latitude in the way they interpret the constitution. They have ordered the desegregation of schools and struck down anti-abortion laws, and more recently, decided the outcome of a national election.

New Zealand’s constitution is not supreme law. In fact, as we’ve seen, some of our constitution isn’t even law. Judges can’t use it to strike down laws – even laws that are inconsistent with our Bill of Rights Act. In our country, Parliament is supreme, and can make any law it likes.

The other big difference is that the US Constitution is “entrenched.” That is, there are special rules for changing it. It can’t be done without the agreement of three-quarters of the states, on top of other special processes. Most of New Zealand’s constitution can be changed by a simple Parliamentary majority.

Still, there are some similarities between our constitution and most others. We follow the “Rule of Law,” which at its most basic means that government power is controlled by law and not by “off-with-his-head” type whims. We also buy into the idea that “separation of the powers”. Power should be divided between different branches of government so that no-one has too much of it, or they might be tempted to use it to benefit themselves and their mates. So we have a legislature (the House of Representatives) that makes laws, an executive (the Ministries and Departments, national and local government agencies, police, etc) that administer the laws, and a judiciary that interprets laws. Each branch is supposed to restrain the power of the others. When you have one person who does all three, you have Saddam Hussein.

Of course, there are some rather big holes in this theory, at least in New Zealand. The most glaring problem: government Ministers form a vast power centre. They pull the strings of the Governor-General, they head up the executive, and they dominate Parliament. They can get Parliament to grant them wide powers to make regulations which have the force of law. At their behest, Parliament can overturn any court rulings they don’t like. This dominance has abated slightly under MMP, but it’s still important.

Finally, New Zealand has a thorny constitutional issue all of its own: the Treaty of Waitangi. Most agree that it’s New Zealand’s “founding constitutional document.” Most accept that it’s been breached a lot. Beyond that, there’s not much consensus. The Privy Council has held that the Treaty does not form part of our domestic law except when Parliament includes it in a statute. However, even when Parliament does include a reference to the “principles of the Treaty of Waitangi” in statutes, the meaning isn’t entirely clear.

The upshot: anyone charged with making recommendations about reform of New Zealand’s constitution will be confronted with several knotty problems:

Don’t expect easy answers. There aren’t any.

Topics: General | 5 Comments »

5 Responses to “Primer on the New Zealand Constitution”

  1. christopher mitson Says:
    December 15th, 2010 at 9:13 pm

    An extraordinarily fine piece.

    I particularly liked the comment “Where the Constitution of the United States, for instance, is a like the bedrock upon which their country is founded, our constitution is like a patchwork quilt under which our country snuggles”.

    Very apposite considering that beneath a quilt is usually where one slumbers without thinking too much of anything.

    I confess I didn’t realise Her Majesty could order our forces to attack Australia. Do you happen to have her phone number?

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