The Legislative Authority of the New Zealand Parliament
The Constitution Act 1852 – an Act of the Imperial Parliament – is still New Zealand's basic constitutional document; but of the original 82 sections only a rump of 19 remains; and of these 19 a number can be regarded as no longer effective. New Zealand has an unwritten constitution in the sense that, as in the United Kingdom, the operation of Cabinet, the basic institution of responsible government, is governed by convention rather than by statutory provision. On the other hand, there are in New Zealand many Acts of Parliament which include provisions often found in written constitutions: for instance, the Royal Powers Act 1953, the Demise of the Crown Act 1908, the Deputy Governor's Powers Act 1912, the Civil List Act 1950, the Legislature Act 1908, the Electoral Act 1956, the Public Revenues Act 1953, the Judicature Act 1908, the British Nationality and New Zealand Citizenship Act 1948, the Public Safety Conservation Act 1932, the External Affairs Act 1943, and the Statute of Westminster Adoption Act 1947. There are, besides, the Letters Patent and Instructions of the Governor-General.
Under the 1852 Act the New Zealand General Assembly was authorised to repeal only a few comparatively unimportant provisions of the Act. The Assembly was given more extensive powers of amendment by an Amendment Act of 1857, passed by the Imperial Parliament. This Act permitted the repeal of all the provisions of the 1852 Act except certain specific provisions regulating, for instance, the establishment of the General Assembly itself and the extent of its legislative powers. It is not altogether clear when New Zealand acquired authority to amend these “entrenched” provisions of its constitution. There is some support for the view that the Colonial Laws Validity Act 1865 gave this authority when it provided that representative colonial legislatures had full powers to make laws respecting their own constitution, powers, and procedure. Nevertheless, the New Zealand Government after 1865 on a number of occasions sought Imperial authority for specific amendments to the 1852 Act. The issue was further confused when the United Kingdom Parliament, in enacting the Statute of Westminster, provided that nothing in the Statute was to affect the law relating to the amendment and repeal of the New Zealand Constitution Act. Special measures were taken to resolve the doubt when, after the adoption by New Zealand in 1947 of the Statute of Westminster, the United Kingdom Parliament, at the request of the New Zealand Parliament, passed a Constitution Amendment Act authorising the New Zealand Parliament to amend any of the provisions of the 1852 Act. In other words, the New Zealand Parliament gained full control over the Constitution of New Zealand.
There were other respects in which the nineteenth-century New Zealand General Assembly did not appear to be completely its own master. There were the Governor's powers to reserve New Zealand legislation for the signification of the Crown's assent; and there was the authority of the Crown to disallow New Zealand legislation even after the Governor had given his assent. The powers of reservation and disallowance were prerogative powers of the Crown which were also specifically set out in the 1852 Constitution Act. There are isolated instances of the use of both in the nineteenth century and, in respect of reservation, in this century. But it was clearly established at the 1926 Imperial Conference that they were to be exercised only on the advice of New Zealand ministers and the provisions still to be found in the 1852 Act are obsolescent.
Other restrictions on New Zealand legislative autonomy could not be disposed of by this conventional procedure. There were doubts as to whether the New Zealand Parliament had authority to legislate in respect of matters outside New Zealand (extraterritorial legislation); the Constitution Act itself and the Colonial Laws Validity Act 1865 prevented the New Zealand Parliament from passing legislation which was inconsistent (or repugnant) to legislation of the United Kingdom applying to New Zealand; and there was always the authority of the United Kingdom Parliament to pass legislation applying to New Zealand and even overriding New Zealand legislation. These issues were discussed at the 1926 Imperial Conference and, after discussions at a conference of experts in 1929, the Imperial Conference of 1931 approved a draft of the Statute of Westminster which was in the same year passed by the United Kingdom Parliament.
The Statute of Westminster came into immediate effect in Canada and South Africa, but New Zealand and Australia – suspicious that all this was going too far in the direction of Dominion “independence” – were given the right to adopt the Statute at a later date. In 1942 Australia adopted the Statute, as did New Zealand in 1947, conscious by this time that the New Zealand Parliament was under significant legislative disabilities. Now, extra-territoriality and repugnancy are no longer problems and the United Kingdom Parliament will legislate for New Zealand only with the request and consent of the New Zealand Parliament.
In recent years there has been limited public support for proposals that New Zealand should adopt “a written constitution”, which would be “entrenched” in such a way as to prevent its amendment by ordinary Act of Parliament passed by a simple majority. The only step in this direction that has actually been taken is to be found in the Electoral Act 1956. Section 189 requires that sections of the Act – those relating to the composition and number of electoral districts, the adult franchise, the secret ballot, and the life of Parliament – are not to be amended unless by an Act passed by a majority of 75 per cent of all members of the House of Representatives or unless the proposal for amendment has been carried by a majority of the electorate in a referendum. There is nothing to prevent Parliament from repealing section 189 itself, so the entrenchment involved is not very effective from the legal point of view. Nevertheless, since the provision was passed unanimously, it is likely to be respected both by National and by Labour Governments.