N O I T U T I THE CONSTRSATION CONVE EB–JUL F 2013 nui a p a p He kauaupapa ture te k 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 www.ourconstitution.org.nz or call 0508 411 411. Join the conversation on www.facebook.com/TheConstitutionConversation 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 www.cap.govt.nz 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. 2 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.” EMERITUS PROFESSOR JOHN BURROWS 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.” HINUREWA POUTU Constitutional Advisory Panel member NEW ZEALAND’S CONSTITUTION | New Zealand’s Constitution 3 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 concerns. 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). 4 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.” SIR TIPENE O’REGAN Constitutional Advisory Panel Co-chair NEW ZEALAND’S CONSTITUTION | New Zealand’s Constitution 5 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.” SIR GEOFFREY PALMER Former Prime Minister and constitutional lawyer 6 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 7 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 http://www.peo.gov.au/students/cl/constitution.html) 8 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 www.ourconstitution.org.nz Email a submission to [email protected] with “CAP submission” in the subject line. You can attach documents to your email. Post a submission to: Submissions Secretariat, Constitutional Advisory Panel C/o Ministry of Justice DX SX10088 Wellington 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.” DEBORAH CODDINGTON Constitutional Advisory Panel member For more information go to: Parliament www.parliament.nz Ministry of Justice www.justice.govt.nz New Zealand Legislation www.legislation.govt.nz Introduction to the Cabinet Manual” by Rt Hon Sir Kenneth Keith www.cabinetmanual.cabinetoffice.govt.nz/node/68 The Constitution Conversation www.ourconstitution.org.nz 10 NEW ZEALAND’S CONSTITUTION | New Zealand’s Constitution Glossary 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 treaties. 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: ION UT THE CONSTRITSATION E FEB–JUL 2013 CONV ui papa na ture u a k e H ap te kaup ›› Talk to whānau, friends and family. ›› Access resources online at www.ourconstitution. org.nz 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 www.facebook.com/ TheConstitutionConversation ›› Take some time and start reading. ›› Make a submission! www.ourconstitution.org.nz 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. 6078 NZC_1 Be part of it!
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