The constitution of a nation is the set of rules that govern how a government can exercise public power. A constitution identifies who or what institutions should exercise power and how they should do it. The government is usually the most powerful coercive force within a country, so the rules about how a government should exercise power are very important.
In a democracy the purpose of a constitution is to prevent the government from abusing its power over the people of a nation, and to ensure that the government exercises its power as the people wish. It can be complicated to create, as people will disagree over how a government should exercise its power.
The Australian constitution is contained in the Commonwealth of Australia Constitution Act 1900. The act was passed by the UK Parliament after two conventions and referendums in the colonies of Queensland, New South Wales, Victoria, Tasmania, South Australia, and Western Australia. New Zealand decided not to join the Commonwealth of Australia, but this is still possible if it wants to do so.
Written or unwritten?
In most countries the constitution is a written document. The USA, Australia, Canada, China, India and almost every other nation have a single written document. A written constitution usually provides for the basic institutions that exercise public power, and how they do it. It also usually provides procedures for how the constitutional rules are enforced and how they may be changed.
Unlike most countries, New Zealand follows the UK in considering itself to have an ‘unwritten’ constitution. New Zealand has had a succession of constitution acts, passed first by the UK Parliament in 1846 (but then suspended) and 1852, and then by the New Zealand Parliament in 1986. These acts have contained key provisions relating to the institutions and procedures of government.
The Constitution Act 1986 brought together key legal provisions regarding the institutions and procedures for the exercise of power that had previously been scattered in several places. It was organised in four main parts, dealing with:
- the sovereign – the king or queen and their representative in New Zealand, the governor-general
- the executive – government ministers
- the legislature – the House of Representatives which, together with the sovereign, is Parliament
- the judiciary – judges.
Canada, Australia and other former British colonies have also had constitution acts, initially passed by the UK Parliament, which have been referred to as ‘the constitution’ in those nations. But, since around 1860, New Zealand has not considered one act to be its constitution.
Outside the US Constitution
One of the most distinctive constitutional characteristics of the USA is that the Supreme Court can strike down legislation passed by Congress if it is inconsistent with the US Constitution. However, most Americans do not realise that this is not provided for in the written US Constitution itself. Rather, it was devised by the Supreme Court in its judgment in the case Marbury v Madison in 1803.
It is not clear why New Zealand’s constitution is regarded as unwritten. Key institutions and rules governing the exercise of public power in Australia, Canada and the USA are also based on practice or convention outside written provisions of their constitutions. But those nations still consider their constitution to be in one written document.
Perhaps aspects of New Zealand’s constitutional history have led to a greater focus on the importance of constitutional conventions rather than written documents. Possibly New Zealand’s ability to amend the Constitution Act itself from 1857 lessened its apparent significance. Or perhaps it is significant that New Zealand’s Constitution Act 1986 is not supreme law: the New Zealand judiciary does not have the role or power to strike down other laws as inconsistent with the act.
Whatever the reasons, like the UK, New Zealand considers that its basic institutions and procedures governing the exercise of public power – its constitution – are set out in both written documents and unwritten practices.
Fitzgerald v Muldoon
A month after winning the 1975 general election, Prime Minister Robert Muldoon issued a press statement saying that compulsory superannuation contributions no longer needed to be made. After a public servant (a Mr Fitzgerald) took Muldoon to court, Chief Justice Richard Wild declared that the prime minister’s statement breached article 1 of the Bill of Rights 1688, which prohibited the suspension of the law by regal authority. However, recognising that Parliament would pass the necessary legislation, the chief justice adjourned the case for six months to allow that to occur.
Sources of New Zealand’s constitution
New Zealand’s constitution is located in a variety of laws, court judgments, other instruments of government and constitutional conventions. Different scholars and commentators identify and emphasise different elements of the constitution. But there is general consensus that New Zealand’s constitution includes:
- statutes passed in the UK before New Zealand was independent, such as the Magna Carta, which was confirmed as statute law in 1297, the Bill of Rights Act 1688 and the New Zealand Constitution Act 1852
- statutes passed by the New Zealand Parliament, such as the Constitution Act 1986 and the Electoral Act 1993
- significant court judgments, such as Fitzgerald v Muldoon (1976), which declared that the prime minister could not suspend the law
- elements of other instruments of New Zealand branches of government, such as the letters patent (legal documents issued by heads of states or governments which confer rights and privileges) and the Cabinet manual
- constitutional conventions.
Many commentators consider the Treaty of Waitangi to be part of New Zealand’s constitutional arrangements, but the position of the treaty is disputed.