The Separation of Powers in 1984
New Zealand Law Journal, p. 178, June 1984
5 Pages Posted: 21 Dec 2012 Last revised: 24 Feb 2015
Date Written: 1984
For a long time New Zealand has looked to the United Kingdom as the source of its Constitutional Law. But the simple verities of Dicey in parliamentary sovereignty do not seem so secure to us as they once did. Given Lord Scarmans’s suggestions that the time has come in the United Kingdom for a reassessment of the safeguards offered by the system, it must certainly force New Zealanders to examine their own condition. It is important to reflect on the differences between the New Zealand situation and that of the British. Some of the checks against the abuse of power which exist in Britain are singularly lacking in New Zealand’s parliamentary system. Whereas Lord Scarman observes that the House of Commons is not sovereign, the New Zealand House of Representatives can assuredly destroy the system if it wishes. The ability of the New Zealand executive to dominate is much more easily accomplished in a small parliament. Government by caucus is a reality in New Zealand in ways which are simply impossible in larger parliaments. Developing caucus domination has reduced some of the vitality of New Zealand Parliament even when the vigour of its select committees has been increasing. There are many respects in which the New Zealand Parliament is deficient in holding the executive to account. There has also been a decline in the doctrine of ministerial responsibility, a failure to accept the conventions upon which the protection of that doctrine depends.
The necessary conclusion is that the first priority is to change the way the New Zealand Parliament works. The absence of a written Constitution, a Bill of Rights, an Upper House, a Federal System or any of the other usual institutions of modern constitutional democracy simply demonstrates the conceptual sterility of the New Zealand tradition, and it is because of this sterility that efforts should be made to change it. A redistribution of powers between the three branches of government should be undertaken. The first issue to confront is whether New Zealand requires a written Constitution. A Bill of Rights alone would offer great advantages. It would ensure that fundamental values are protected and would restrain the abuse of power by the executive in Parliament. It would provide an important source of education about the importance of fundamental freedoms in a democratic society and would allow a remedy to individuals who had suffered under a law which breaches the Rights. New Zealand has become a pluralistic society with significant minorities whose interests must be protected, and in that context New Zealand needs a commitment to a set of democratic Rights and Freedoms through a Bill of Rights.
Keywords: Constitutional law, New Zealand Constitution, New Zealand, Parliament, separation of powers, ministerial responsibility, Dicey, executive power
JEL Classification: K19
Suggested Citation: Suggested Citation