New Zealand`s Constitution - The Constitution Conversation

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New Zealand’s Constitution
Join the Conversation
There’s a Constitution Conversation going on and you’re invited to be part of it!
The Constitutional Advisory Panel is committed to ensuring that you – along with your friends, whānau,
family, colleagues, communities and iwi – have an opportunity to tell us what you think. It’s your
constitution and your conversation.
We invite everyone to submit their views on:
›› What are your aspirations for Aotearoa New Zealand?
›› How do you want New Zealand to be run in the future?
Near the back of this booklet, you’ll see a set of questions about New Zealand’s constitution. We encourage
you to consider these questions, chat about them with others and send us your views. Whether or not
New Zealand should have constitution written down in a single document is just one of the constitutional
topics that the Panel is considering. The other topic areas are:
›› The role of the Bill of Rights Act 1990 in our constitution.
›› The role of the Treaty of Waitangi in our constitution.
›› Māori representation in local and national government.
›› Electoral matters such as the size of Parliament and the length of its term.
We want to hear from you!
You can make a submission by post, email or online. Submissions close on 1 July 2013.
For more information, go online to or call 0508 411 411.
Join the conversation on
C onstitutional Advisory Panel
The Constitutional Advisory Panel is an independent advisory group set up to listen to, consider and
report on New Zealanders’ views about a range of constitutional issues. It will report back to the
Government by December 2013.
The Panel members are Emeritus Professor John Burrows (Co-chair), Sir Tipene O’Regan (Co-chair),
Peter Chin, Deborah Coddington, Hon Sir Michael Cullen, Hon John Luxton, Bernice Mene, Dr Leonie
Pihama, Hinurewa Poutu, Professor Linda Tuhiwai Smith, Peter Tennent and Dr Ranginui Walker.
For more information about the Panel go to
Personal opinions expressed in this booklet do not represent the views of the Panel or the Government. They are presented here to
stimulate your thinking and conversations.
NEW ZEALAND’S CONSTITUTION | New Zealand’s Constitution
The role of a constitution
All organised groups have a constitution. Businesses, churches, marae, sports clubs, community
organisations and schools have their own rules and procedures so everyone knows what’s expected, how
decisions are made and what to do if there’s a dispute.
Many of the rules that govern the way groups operate are written down, but there are almost always
expectations that are not written down. These may be customs or ways of behaving that are taught or
explained to people who belong to that group.
New Zealand’s constitution is the set of rules that determines how our country is governed and how we all
live together. It reflects who we are – our unique history, values and aspirations.
“A country’s constitution is a set of rules about
who exercises power in society – and how
people’s rights are protected. The constitution
belongs to the people and our panel has been set
up to listen to the public’s views.”
Co-chair, Constitutional Advisory Panel
“When I think of a constitution, I think of the
kawa and tikanga on our marae, which is our
constitution. It’s the way we go about doing
things, the rules that guide us in how we relate to
each other, how we behave and how we deal with
certain issues, how we look after each other and
our environment.”
Constitutional Advisory Panel member
NEW ZEALAND’S CONSTITUTION | New Zealand’s Constitution
Our unwritten constitution
New Zealand has a constitution – it’s just not all written down in a single document. Unlike many other
countries, New Zealand does not have a single law called “the Constitution”. Because it is found in many
different places, it is sometimes called an unwritten constitution.
The rules for how we elect governments, how they make laws, how those laws are enforced and how we
ensure that people’s rights are protected are found in a number of different places. These include:
›› Legislation including the Constitution Act 1986, the Electoral Act 1993 and the New Zealand Bill of
Rights Act 1990.
›› British laws adopted by New Zealand through the Imperial Laws Application Act 1988, for example the
Magna Carta.
›› The powers of the head of state the Queen who appoints the Governor-General as her representative.
›› Some decisions of the Courts, such as the 1941 Privy Council decision that held the Treaty of Waitangi
was not legally enforceable unless incorporated into statutory law.
The Treaty of Waitangi is reflected in our constitutional arrangements because it is regarded as a founding
document of New Zealand’s government.
There are other constitutional principles which are generally understood and agreed to, such as the rule of
law – that all of us, including governments, must follow the law.
We also have practices or conventions which have developed over time. These guide the behaviour and
decisions of politicians, such as when they have to make an urgent decision while handing over power after
an election.
D id you know ?
Since the Treaty of Waitangi was first signed in 1840, many Māori feel they have a special relationship
with the Queen because of their ancestors’ commitment to the Treaty. From the mid-19th century,
Māori delegations visited Britain seeking the support of the sovereign for resolution of Treaty-based
Although the Treaty has never been fully incorporated into New Zealand law, it is formally among our
constitutional arrangements, in part because of its inclusion in Acts such as Section 9 of the StateOwned Enterprises Act 1986. Court rulings have further defined and explained these decisions of
Parliament (see Treaty of Waitangi booklet).
NEW ZEALAND’S CONSTITUTION | New Zealand’s Constitution
What’s the difference – a written
or an unwritten constitution?
New Zealand is one of three countries in the world that does not have a written constitution – the others
are the United Kingdom and Israel.
Some advantages of our unwritten constitution are that it is flexible and adaptable. Because most of our
constitutional arrangements are not set in stone, they change and evolve over time.
However, this flexibility also means that New Zealanders may not have certainty about what will happen.
Our guiding rules may be changed or applied inconsistently in different situations.
Some advantages of a written constitution are that people know clearly what the ground rules are.
However, having certainty may mean that future Parliaments and future generations are tied down to the
beliefs and understandings of a certain period of history. It can be hard to adapt the rules to respond to
new and different circumstances.
“[The constitution is] the cloak of law which
determines how all the other laws are made and
administered. You’ve got to have one and one
of our great questions is should we have it in
one single code or document, or is it better to
have this mixture of law and evolution that we
adjust as we go. We’re engaged to find out how
New Zealanders want that cloak to be woven or
repaired so it continues to function and protect
our citizenship.”
Constitutional Advisory Panel Co-chair
NEW ZEALAND’S CONSTITUTION | New Zealand’s Constitution
New Zealand’s
“pragmatic” constitution
In 2005, Parliament’s Constitutional Arrangements Committee held an inquiry to review New Zealand’s
existing constitutional arrangements. In their report, the Committee wrote:
“Although the characterisation of New Zealand’s constitutional history did not come easily to us, we rapidly
agreed on the characteristic qualities of New Zealand’s approach to constitutional change throughout its
modern history. We adopted the tag of “pragmatic evolution”. By this we mean New Zealanders’ instinct to
fix things when they need fixing, when they can fix them, without necessarily relating them to any grand
philosophical scheme.”
While the 2005 Committee felt the current structure of New Zealand’s constitution has served the country
well, others believe its unwritten nature makes it difficult to comprehend and apply.
“It’s difficult to characterise the nature and
quality of New Zealand’s constitution and the
reason for that is it evolves remorselessly;
it changes before your very eyes. It’s highly
flexible… It’s like the hunting of the snark. The
snark is both imaginary and elusive and the New
Zealand constitution is neither readily accessible
nor easily understood.”
Former Prime Minister and constitutional lawyer
NEW ZEALAND’S CONSTITUTION | New Zealand’s Constitution
What does our constitution
look like in practice?
New Zealand is a representative democracy. This means voters elect people to represent them
in Parliament.
The power to make decisions is divided between:
›› Parliament (also known as the Legislature or the House of Representatives).
›› Government (also known as the Executive).
›› Courts (also known as the Judiciary).
These three branches together are called the state. This separation of power ensures that each branch acts
as a check and balance on the power of the others.
The head of state is the Queen, represented in New Zealand by the Governor-General. The GovernorGeneral appoints Ministers and assents to Bills passed in the House, on the advice of the Prime Minister, so
long as the government has the support of the majority of Parliament.
In New Zealand, Parliament is the ultimate decision-maker under the principle of “parliamentary
sovereignty”. The Courts interpret what the laws passed by Parliament mean in particular cases. In New
Zealand, judges do not have the power to review or strike down legislation.
T he Realm of N ew Z ealand
There’s more to New Zealand than meets the eye. While New Zealand is an independent sovereign
nation, we are also part of the Realm of New Zealand. Our Realm includes Tokelau, the Cook Islands,
Niue and the Ross Dependency in Antarctica. The Cook Islands and Niue are self-governing states
which have a free association with New Zealand. New Zealand represents these Pacific Island nations
in matters of foreign affairs and defence. New Zealand has a more “hands-on” role in Tokelau and the
Ross Dependency – administering the public affairs of these two territories.
NEW ZEALAND’S CONSTITUTION | New Zealand’s Constitution
Should our constitution have a
higher legal status than other laws?
In many countries, constitutional law is supreme law. This means that Parliament must only pass laws that
comply with it, and there may be special rules about making changes to the law. New Zealand does not
have any supreme law.
Some parts of New Zealand’s constitutional arrangements are protected – for example parts of the
Electoral Act 1993 or Constitution Act 1986 can only be changed by a referendum or by a vote of 75 per
cent of members of Parliament (MPs).
However, other parts of New Zealand’s constitutional arrangements are not protected in this way – for
example, the New Zealand Bill of Rights Act 1990 can be changed by a majority vote in Parliament like most
other laws.
A ustralia – where the constitution rules supreme
In contrast to New Zealand, Australia has a written constitution which is its supreme
law. It is found in its Commonwealth of Australia Constitution Act 1901, which can only
be changed by referendum. The High Court of Australia has the task of interpreting the
Constitution and settling disputes about its meaning. It can invalidate any legislation or
parts of legislation it finds to be unconstitutional.
In Australia, people can test the meaning and application of the Constitution by applying
to the High Court. For example, in 2006 some states challenged the power of the
Commonwealth to introduce the “Work Choices” legislation which made changes to
employment conditions and industrial relations. However, the challenge was rejected by
a majority of the Court and the legislation was upheld.
(Source: Parliamentary Education Office
NEW ZEALAND’S CONSTITUTION | New Zealand’s Constitution
The topic questions are a guide to help you with your
submission. We welcome other comments on the topics.
What do you think?
We invite you to think about and submit your views on:
1. Do you think our constitution should be written in a single document? Why?
2. Do you think our constitution should have a higher legal status than other laws
(supreme law)? Why?
3. Who should have the power to decide whether legislation is consistent with the
constitution: Parliament or the Courts? Why?
Submissions can be made online, by email or post.
If you have any questions about how to make a submission, please call 0508 411 411.
You can make a submission in a number of ways:
Make a submission online at
Email a submission to [email protected] with “CAP submission” in the subject line.
You can attach documents to your email.
Post a submission to:
Secretariat, Constitutional Advisory Panel
C/o Ministry of Justice
DX SX10088
Submissions close on 1 July 2013.
NEW ZEALAND’S CONSTITUTION | New Zealand’s Constitution 9
“The constitution should always belong to
the people so that’s why it’s a really good
opportunity for New Zealanders to have their
say. We want to find out what keeps people
awake at night whether that be things like the
Treaty, the Bill of Rights, the rule of law, all those
sorts of things. I would love for New Zealanders
to know more about their constitution and care
about it.”
Constitutional Advisory Panel member
For more information go to:
Ministry of Justice
New Zealand Legislation
Introduction to the Cabinet Manual” by Rt Hon Sir Kenneth Keith
The Constitution Conversation
10 NEW ZEALAND’S CONSTITUTION | New Zealand’s Constitution
Act of Parliament: A law made by Parliament and given assent by the Governor-General.
Bills: Draft laws that are being considered by Parliament but have not yet become Acts.
Branches of state: The different bodies that make up the state. In New Zealand this includes the head
of state, the Legislature, the Executive and the Judiciary.
Constitution: The set of rules about how our country is governed and how we all live together.
Government: The Government – the Prime Minister and Ministers – sets New Zealand’s policy
direction and asks Parliament to make or change laws to implement their policies.
Legislation: Laws that have been passed by Parliament or under the authority of Parliament. The
main sorts of legislation are Acts and regulations.
Magna Carta: The Magna Carta of 1297 limits the powers of rulers. For example, no free man can be
imprisoned or punished without trial by their peers.
Parliament: In New Zealand, Parliament consists of the House of Representatives and the monarch.
Parliament makes laws and monitors government.
Rule of law: Fundamental principle that all members of society, including the government, must obey
the law.
Supreme law: A law that has a higher legal status than other laws, meaning Parliament must only pass
laws that comply with supreme law. The Courts could strike down inconsistent law. New Zealand has
no supreme law.
Unwritten constitution: A constitution which is not in a single document. Lots of different elements
set the constitutional rules, e.g. different statutes, court decisions, conventions and international
Written constitution: Usually refers to a single document called “the Constitution” which sets the
rules for how government operates and how people live together as a country, e.g. the Constitution of
the United States
NEW ZEALAND’S CONSTITUTION | New Zealand’s Constitution 11
Be part of the Constitution Conversation:
papa na ture
te kaup
›› Talk to whānau, friends and family.
›› Access resources online at www.ourconstitution. or order them by calling 0508 411 411.
›› Meet with colleagues, iwi or community groups to
discuss these issues.
›› Find out what others are saying by visiting
our Facebook page at
›› Take some time and start reading.
›› Make a submission!
A constitution is the set of rules that determines how
we live together as a country and how laws are made.
It’s your constitution and your conversation.
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Be part of it!