The constitution of New Zealand is the sum of laws and principles that determine the political governance of New Zealand. Unlike many other nations, New Zealand has no single constitutional document. It is an uncodified constitution, sometimes referred to as an "unwritten constitution", although the New Zealand constitution is in fact an amalgamation of written and unwritten sources. The Constitution Act 1986 has a central role, alongside a collection of other statutes, orders in Council, letters patent, decisions of the courts, principles of the Treaty of Waitangi, and unwritten traditions and conventions. There is no technical difference between ordinary statutes and law considered "constitutional law"; no law is accorded higher status. In most cases the New Zealand Parliament can perform "constitutional reform" simply by passing acts of Parliament, and thus has the power to change or abolish elements of the constitution within normative democratic constraints summed up by the principle that law-making reflect the policy demands of the electorate. There are some exceptions to this though – the Electoral Act 1993 requires certain provisions can only be amended following a referendum.
After decades of self-governance, New Zealand gained full statutory independence from Britain in 1947. It is a constitutional monarchy with a parliamentary democracy. The monarch of New Zealand is the head of state – represented in the Realm of New Zealand by the governor-general – and is the source of executive, judicial and legislative power, although effective power is in the hands of ministers drawn from the democratically elected New Zealand House of Representatives. This system is based on the "Westminster model", although that term is increasingly inapt given constitutional developments particular to New Zealand. For instance, New Zealand introduced a unicameral system within a decade of its statutory independence.
Sources of the constitution
The constitution includes, but is not limited to, the following sources: NameDateTypeDescription Principles of the Treaty of Waitangi 1840 Conventions The Treaty is an agreement that was made between Māori chiefs and representatives of the British Crown. It is New Zealand's "founding document". References to the "principles of the Treaty of Waitangi" appear in a number of statutes. Cabinet Manual 1979 Conventions Describes Cabinet procedures and is regarded as the "authoritative guide to decision-making for ministers and their staff, and for government departments." Official Information Act 1982 Statute Provides for freedom of information and government transparency. Letters Patent Constituting the Office of Governor-General of New Zealand 1983 Letters Patent Describes the role of the governor-general and function of the Executive Council. Constitution Act 1986 Statute Describes the three branches of government. Replaced the New Zealand Constitution Act 1852. Imperial Laws Application Act 1988 Statute Incorporates important British constitutional statutes into New Zealand Law, including Magna Carta, the Bill of Rights 1689, and the Act of Settlement 1701. New Zealand Bill of Rights Act 1990 Statute Enumerates the rights of citizens against the state; enacts into law some of New Zealand's obligations under the International Covenant on Civil and Political Rights. Electoral Act 1993 Statute Describes the election of members of Parliament. Senior Courts Act 2016 Statute Describes the jurisdiction of the New Zealand Judiciary and constitutes New Zealand's senior courts including the Supreme Court of New Zealand as New Zealand's final court of appeal.
Elements The New Zealand constitution is uncodified and is to be found in formal legal documents, in decisions of the courts, and in practices (some of which are described as conventions). It establishes that New Zealand is a constitutional monarchy, that it has a parliamentary system of government, and that it is a representative democracy. It increasingly reflects the fact that the Treaty of Waitangi is regarded as a founding document of government in New Zealand. The constitution must also be seen in its international context because New Zealand governmental institutions must increasingly have regard to international obligations and standards.
The Constitution Act 1986 describes the three branches of Government in New Zealand: The Executive (the Executive Council, as the Cabinet has no formal legal status), the legislature (the House of Representatives and Sovereign in Parliament) and the judiciary (Court system).
Sovereign
As per the Constitution Act 1986, New Zealand is a constitutional monarchy, wherein the role of the reigning sovereign is both legal and practical. The underlying principle is democracy, with political power exercised through a democratically elected parliament – this is often stated as "The [monarch] reigns but the government rules so long as it has the support of the House of Representatives." Part 1 of the Constitution Act describes "The Sovereign", the reigning monarch, as New Zealand's head of state.
Section 2(1) of the Act declares "The Sovereign in right of New Zealand" as head of state, and section 5(1) describes the sovereign's successor as being "determined in accordance with the enactment of the Parliament of England intituled The Act of Settlement". This means that the head of state of the United Kingdom under the Act of Settlement 1701 is also the head of state of New Zealand. Under the Imperial Laws Application Act 1988, however, the Act of Settlement is deemed a New Zealand Act, which may be amended only by the New Zealand Parliament. "The Crown in right of New Zealand" has been legally divided from the British monarchy following New Zealand's adoption of the 1931 Statute of Westminster in 1947.
"The Crown" is regarded as the embodiment of the state, with the monarch at the centre of a construct in which the power of the whole is shared by multiple institutions of government acting under the sovereign's authority. The monarch is a component of Parliament, and the Royal Assent is required to allow for bills to become law. In practice the monarch takes little direct part in the day-to-day functions of government; the decisions to exercise sovereign powers are delegated from the monarch, either by statute or by convention, to ministers of the Crown, or other public bodies, exclusive of the monarch personally. Moreover, as the monarch is not normally resident in the country, the sovereign's representative in and over the Realm of New Zealand is the governor-general. The sovereign appoints the governor-general on the advice of the prime minister, who usually consults with the leader of the Opposition about the nomination. The office is largely ceremonial, although the governor-general holds a number of "reserve powers", such as the ability to dismiss the prime minister in exceptional cases. Section 3(1) of the Constitution Act states "Every power conferred on the Governor-General by or under any Act is a royal power which is exercisable by the Governor-General on behalf of the Sovereign, and may accordingly be exercised either by the Sovereign in person or by the Governor-General".
Government institutions
New Zealand's legislative, executive and judicial branches function in accordance with the Constitution Act 1986 and various unwritten conventions, which are derived from the Westminster system.
New Zealand has a legislature called the New Zealand Parliament, consisting of the King-in-Parliament and the House of Representatives. According to the principle of parliamentary sovereignty, Parliament may pass any legislation that it wishes. Since 1996, New Zealand has used the mixed-member proportional (MMP) system, which is essentially proportional representation with single member seats (that can affect the proportionality of the House, but only to a limited degree). Seven electorates are currently reserved for members elected on a separate Māori roll. However, Māori may choose to vote in and to run for the non-reserved seats, and several have entered Parliament in this way.
The Cabinet, which is responsible to Parliament, exercises executive authority. The Cabinet forms the practical expression of a formal body known as the Executive Council. The prime minister, as the parliamentary leader of the political party or coalition of parties holding or having the support of a majority of seats in the House of Representatives, chairs the Cabinet. Section 6(1) of the Constitution Act 1986 states, "A person may be appointed and may hold office as a member of the Executive Council or as a Minister of the Crown only if that person is a member of Parliament". The prime minister and all other ministers take office upon receiving a warrant by the governor-general; this is based on the principle that all executive power ultimately stems from the sovereign. A government must be able to gain and maintain the support of a majority of the MPs in order to advise the governor-general and sovereign; this is the principle of responsible government.
New Zealand's judiciary is a hierarchy consisting of the Supreme Court of New Zealand, the Court of Appeal of New Zealand, the High Court of New Zealand, and the District Courts. These courts are all of general jurisdiction. There are several other courts of specialist jurisdiction, including the Employment Court, the Environment Court and the Māori Land Court, as well as the Family Court and the Youth Court, which operate as specialised divisions of the District Courts. There are also a number of specialised tribunals which operate in a judicial or quasi-judicial capacity, such as the Disputes Tribunal, the Tenancy Tribunal and the Waitangi Tribunal.
Law
New Zealand law has three principal sources: English common law; certain statutes of the United Kingdom Parliament enacted before 1947 (notably the Bill of Rights 1689); and statutes of the New Zealand Parliament. In interpreting common law, there is a rebuttable presumption in support of uniformity with common law as interpreted in the United Kingdom and related jurisdictions. Non-uniformity arises where the New Zealand courts consider local conditions to warrant it or where the law has been codified by New Zealand statute. The maintenance of the Judicial Committee of the Privy Council in London as the final court of appeal and judges' practice of tending to follow British decisions, even though, technically, they are not bound by them, both bolstered this presumption. The Supreme Court of New Zealand, which was established by legislation in October 2003 and which replaced the Privy Council for future appeals, has continued to develop the presumption.
Judgment was delivered on 3 March 2015 in the last appeal from New Zealand to be heard by the Privy Council.Privy Council Appeal, Pora (Appellant) v The Queen (Respondent) (New Zealand), judgment UKPC 9.
Treaty of Waitangi
The place of the Treaty of Waitangi in the constitution is the subject of much debate. The Treaty has no inherent legal status, but is treated in various statutes and is increasingly seen as an important source of constitutional law.
The Treaty of Waitangi Act 1975 put the text of the Treaty in statute for the first time (as a schedule) and created the Waitangi Tribunal to investigate claims relating to the application of the principles of the Treaty. The Act was initially prospective but was amended in 1985 so that claims dating back to the signing of the Treaty in 1840 could be investigated.