New Zealand Law Society - Constitutional principles in legislation

Constitutional principles in legislation

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Discussion about constitutional principles doesn’t typically draw the same level of passion from New Zealanders as the fortunes of the Black Caps or the All Blacks’ prospects in the next World Cup. Nonetheless, these principles, such as the separation of powers, the rule of law, and Parliamentary sovereignty, are exceptionally important and have a direct bearing on our lives.

To give an example, we’d all agree it’s wrong for someone to receive preferential treatment in our courts. That is if you have more money or look a certain way that you might get a different outcome to someone else in your situation.

This is contrary to the rule of law – a principle that means everyone is subject to the law, and it must be applied equally to all. When it isn’t, key foundations of society – such as the right to a fair trial, and the ability to hold to account those who break the law – can come under threat.

A weak or non-existent rule of law can be a feature of countries where democracy has broken down.

It’s certainly not a feature of New Zealand’s system of government, where we have an independent judiciary and a strong record of upholding civil and human rights. Many international organisations have recognised our very strong constitutional arrangements, which are based on laws passed by Parliament, court decisions and long-standing conventions about how our system of government operates.

Some commentators have suggested our constitution is under grave threat because the Judicature Modernisation Bill – which is currently before Parliament – does not include a reference to “New Zealand’s continuing commitment to the rule of law and the sovereignty of Parliament”.

That phrase is in the Act that set up the Supreme Court in 2003. The Judicature Modernisation Bill preserves much of the content of that Act, but places it in a new statute covering the Supreme Court, Court of Appeal and High Court.

To suggest the rule of law and the sovereignty of Parliament are under threat is scaremongering. These principles have always been the foundation of New Zealand’s constitutional arrangements and that won’t change.

They applied before the Supreme Court started 11 years ago and they continue to apply to all branches of government today, including the courts. It’s an oddity that the phrase about that commitment only exists in the Supreme Court legislation, as if only that court had to be aware of a commitment to these principles.

The reality is the 2003 law establishing the Supreme Court only reiterated the status quo – that the rule of law and parliamentary sovereignty apply in New Zealand.

There is legislation in force that reflected these principles long before the Supreme Court was created.

For example, the Constitution Act 1986 states Parliament has “full power to make laws”. This means Parliament is the supreme law maker in New Zealand, the defining feature of parliamentary sovereignty. The courts cannot strike down Parliament’s laws – they can only interpret them. The Judicature Amendment Act 1972 sets out the process for judicial review. This is the process by which the High Court can hold public officials, including ministers, to account for breaches of procedure and jurisdiction. Adherence to fair procedure by officials is another key feature of the rule of law.

These examples show the constitutional principles in question are well embedded in New Zealand’s constitutional fabric. Just because they’re not spelled out in the legislation that serves as the legal framework for New Zealand’s higher courts – which didn’t include such references until 2003 – doesn’t mean those principles don’t exist or won’t continue to apply.

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