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The New Zealand Constitution and the Power of Courts

28 Pages Posted: 28 Nov 2012 Last revised: 24 Feb 2015

Sir Geoffrey Palmer QC

Victoria University of Wellington - Faculty of Law

Date Written: 2006

Abstract

The New Zealand Constitution in 2006 is neither readily accessible nor easily understood. It is flexible, malleable and mysterious, and, to a large extent, uncodified and fluid. The nature and extent of judicial power is perhaps the leading issue in the constitutional debate. The place of the Treaty of Waitangi in the New Zealand Constitution and legal system has also attracted debate and controversy for twenty years. In considering constitutional issues, it is always useful to remember that constitutions are a human construct and are driven by social and political values.

This article provides an overview of how the New Zealand Constitution functions, its component parts, and subjects for possible reform. The New Zealand Constitution is near-unique in its non-codified form. While the New Zealand Constitution Act 1986 provides a framework within which the New Zealand system of government functions, it provides little guidance as to the distribution of powers to the various branches, or the rules under which they operate. Thus other sources of the Constitution – other statutes, judicial decisions, and constitutional conventions – must be consulted. After examining the functions of the Constitution Act, this article turns to discussion of other legislation including the Bill of Rights Act, non-legislative constitutional conventions, and broader principles and doctrines of New Zealand constitutional law such as separation of powers, parliamentary sovereignty and the rule of law.

The New Zealand system of government has many strengths, and the case for changing the Constitution needs to be well-developed with demonstrable and clear advantages flowing from the change. Its somewhat eccentric Constitution may not be of concern if it is judged to be working effectively, but there are demands for change. However, there is in New Zealand a great reluctance to engage seriously in the debate on constitutional issues because the traditions of pragmatism are so powerful. In some areas of public policy New Zealand can be innovative, but in constitutional matters, the country is extraordinarily conservative and the political culture remorselessly democratic. It is difficult to foresee any big constitutional changes in the immediate future.

Keywords: Constitution, Treaty of Waitangi, New Zealand Constitution, New Zealand Bill of Rights Act, reform

JEL Classification: K19

Suggested Citation

Palmer QC, Sir Geoffrey, The New Zealand Constitution and the Power of Courts (2006). Transnational Law & Contemporary Problems, Vol. 15, 2006; Victoria University of Wellington Legal Research Paper Series Palmer Paper No. 23. Available at SSRN: https://ssrn.com/abstract=2182244

Sir Geoffrey Palmer QC (Contact Author)

Victoria University of Wellington - Faculty of Law ( email )

PO Box 600
Wellington, 6140
New Zealand

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