The New Zealand Constitution and the Power of Courts

• Author: Geoffrey Palmer
• Position: President, Law Commission, Wellington, New Zealand.
• Pages: 551-578

Page 551

I Introduction

The purpose of this Article is to describe as briefly and accurately as possible the basic features of the New Zealand Constitution as they exist in 2006.¹ The Article also indicates some of the directions in which constitutional change may travel, and discusses the nature of the debate over the role of the Courts in New Zealand's constitutional arrangements.

It is desirable that discussion of possible changes to the constitutional arrangements should proceed on the firm understanding of the current features of New Zealand's Constitution. Unfortunately, stating the present position with the precision and clarity that lawyers are prone to seek is doomed, not only because of the somewhat indeterminate nature Page 552 of the constitutional enterprise in New Zealand, but also because there is serious doctrinal controversy about some of its central elements.

Despite the apparent simplicity of the New Zealand Constitution, or perhaps because of it, many complexities lurk not far beneath the surface. Even the core is indefinable, and writing this Article brought to mind Lewis Carroll's delightful nonsense poem, "The Hunting of the Snark,"² in which the Snark is both imaginary and elusive. The New Zealand Constitution in 2006 is neither readily accessible nor easily understood. The New Zealand Constitution is flexible and, to a large extent, uncodified and fluid. The Constitution is both malleable and mysterious. It is an iterative Constitution in a state of constant and often silent evolution. The cumulative effect of decisions by the Executive government, the Parliament, and the courts alter its features, if not its fundamental configuration, every year. In a constitution like New Zealand's, law and politics tend to merge into each other-political battles are more influential in determining what the rules are than court decisions.³ It should be observed that almost every constitution inevitably appears as a work in progress.

The Constitution Act 1986 is the most important constitutional law New Zealand has. Yet, it lacks many of the features that constitutions have in other comparable countries, such as Australia, Canada, and the United States. These other countries' documents are called constitutions and cannot be altered by a simple legislative act, and provide some reasonably extensive rules and principles under which government must be conducted. Both the United States and Canada have guaranteed rights and freedoms that allow the courts to strike down legislative acts as unconstitutional and declare them invalid. The High Court of Australia has powers to do the same in the name of federalism, although there is no extensive set of rights and freedoms contained in the Commonwealth of Australia Constitution Act 1900. Perhaps the most ambitious and interesting of modern constitutions is that of South Africa.⁴ Page 553

The nature and extent of judicial power is perhaps the leading issue in the constitutional debate.⁵ This is true in New Zealand, where, and there is irony in this, the essential features of the constitutional arrangements provide a more modest platform for judicial lift-off than elsewhere. It may be a false dichotomy to regard this as a choice between the judges or Parliament as to who has the final word or supremacy. It may be both, in a collaborative enterprise called the business of government, as Professor Philip Joseph has recently argued.⁶ These issues fundamentally revolve around the doctrine of parliamentary sovereignty, which has changed from being an unexceptional statement of traditional New Zealand orthodoxy, to an object of active and sustained criticism. It is natural that lawyers would regard the judicial power and the courts as important elements in our Constitution; but regardless of whether one does or does not favor more judicial review of legislative action, there is an argument that, for much of the Constitution in New Zealand, the judges are not the most important interpreters. As Professor Matthew Palmer suggests, approximately ten public officers in Page 554 New Zealand have a significant role in determining what is constitutional.⁷

The biggest constitutional change in New Zealand in the Twentieth Century was the adoption of the mixed-member proportional (MMP) system of electing Members of Parliament, although this cannot yet be regarded as an enduring change. Debate about the place that the Treaty of Waitangi occupies in the New Zealand Constitution and the country's legal system has attracted strong controversy for twenty years. There seems little prospect of a community consensus emerging on that matter.

New Zealand does adhere to the rule of law, but there is a large area of vagueness surrounding that notion when it is subjected to analysis. New Zealand remains a constitutional monarchy, although it has also been described as a disguised republic and the present Prime Minister has stated that "we are a de facto republic, as in Australia."⁸ Whether New Zealand will move to become a de jure republic will be driven by democratic preferences, but the consequences of such a move will be profound in constitutional terms and may serve to unlock a whole range of issues that could propel New Zealand toward a written constitution.

If the Constitution is to be changed, then there are challenging issues as to how to accomplish that change, some of which have been examined by Professor Bruce Harris.⁹ In considering constitutional issues, it is always useful to remember that constitutions are a human construct and are driven by social and political values. A constitution cannot be seen, touched, heard, or smelled, but it does have a profound influence on how power is distributed and how public decisions are made. Such is the nature of the thought and discussion that this Article is designed to stimulate. Has New Zealand's constitutional moment arrived? In many ways, the New Zealand Constitution is essentially a political constitution and changing it formally will involve a substantial degree of political consensus.

The Constitution Act 1986 governs some of the main powers assigned to the branches of government in New Zealand, such as sovereign, executive, legislative, and judiciary. Yet in many ways, the nature of the Act is fragmentary. It is necessary to look outside the Act for the nature and extent of many of the powers. Such powers are in judicial decisions, other acts of Parliament, instruments of the royal prerogative, the Treaty Page 555 of Waitangi, international law, parliamentary law, and procedures and constitutional conventions. International law in particular is an increasing source of obligations that have to be embedded in the New Zealand legal system so that the country can meet the increasing web of international arrangements that regulate so many human affairs, from international trade to combating terrorism to the promotion of human rights.

Constitutional conventions are recognized, while norms, practices, or customs are generally followed.¹⁰ For example, almost all of Cabinet government is a creature of constitutional convention. Collective Cabinet responsibility, individual ministerial responsibility, and restraint on the exercise of power by the Queen or Governor-General are all examples of important constitutional conventions. Notably, many of these are not legally enforceable in the courts. For this reason, one of the best practical guides to the conduct of government in New Zealand is the Cabinet Manual 2001.¹¹ This document, published by the Cabinet Office and agreed to by Cabinet, sets out many of the constitutional conventions and procedures of the Cabinet in New Zealand. The Cabinet Manual 2001 contains some of the most important conventions relating to Cabinet government and ministerial responsibility.

In addition to the sources discussed above, a number of broader constitutional principles and doctrines infuse the New Zealand Constitution. These include matters such as the following: centrality of democratic government,¹² idea of a politically-neutral party public service,¹³ rule of law, independence of judiciary, separation of powers, freedom of expression,¹⁴ transparency, access to official information,¹⁵ and ministerial responsibility. The content and range of these doctrines, if sometimes disputed, nevertheless do represent a set of values that exert a powerful influence on the behavior of the system of government. Page 556

In a democracy, and New Zealand is one of the world's oldest,¹⁶ public opinion ultimately determines what happens.

II The Constitution Act 1986

Part I of the Constitution Act deals with the Sovereign in right and title of New Zealand, who is declared as the Head of State of New Zealand. It also provides that the Governor-General is the Sovereign's representative in New Zealand. There are also provisions about the exercise of royal powers by both the Sovereign and the Governor-General.

When a Regent is appointed in the United Kingdom, the royal functions in right of New Zealand shall be performed in the name and on behalf of the Sovereign by that Regent. The final provision relating to the Sovereign addresses the demise of the Crown and provides for the transfer of all the powers to the Sovereign's successor, as determined by the United Kingdom Act of Settlement 1701.¹⁷

The Executive is dealt with in Part II of the Constitution Act. It provides that a person may be appointed and hold office as a member of the Executive Council or as Minister of the Crown only if that person is a Member of Parliament (MP). This...