On this page:

Who’s in charge?

When we ask who’s in charge, we really asking what kind of constitution we have. New Zealand is a constitutional monarchy. The Queen is the head of state of New Zealand and the Governor-General as her representative. They each can exercise the same powers.

Parliament (the legislature) is sovereign. That means it has full power to make laws – or Acts, as they are known. Usually, these laws only require a majority vote in Parliament. However, some laws cannot be changed unless they have a certain number of votes in favour of the changes or a referendum is held. These are called “entrenched” provisions and usually are provisions that relate to changing the Constitution.

The Executive consists of the Ministers of the Crown, members of the Executive Council and Parliamentary Under-Secretaries. The Executive Council has a law-making function because it can make legislative instruments (regulations and rules). But legislative instruments can only be made if there is a power to do so in an Act. If they are made without that power, they are ultra vires or outside the scope of the Act.

The judiciary is independent of the executive and the legislature. This is important because it ensures that judges can interpret the law and apply it without political interference. For example, if the government tries to act under a regulation where there is no power to make that regulation, the court can intervene and declare the actions to be ultra vires.

So, the answer to the question is that Parliament is in charge of making our laws and the courts interpret those laws. But the government has wide executive powers that allow it to run the country subject to the laws of the land.

Do we have a written constitution?

The answer to this question is yes and no. Most people think of a constitution as a single written document. We have several written documents as well as conventions and constitutional principles.

The Constitution Act 1986 sets out the basics of New Zealand's constitutional arrangements. It gives formal recognition to the Sovereign, the executive, the legislature and the judiciary.

There is a range of Acts that are directly relevant to our Constitution such as the Electoral Act 1993.

Some acts regulate the relationship between the state and the individual. One of the most important statements of our rights as the New Zealand Bill of Rights Act 1990. But it is not the only one. New Zealand law still incorporates certain English and United Kingdom statutes, such as the Magna Carta 1297, the Bill of Rights 1688, and the Act of Settlement 1700. These were confirmed as being part of our law by the Imperial Laws Application Act 1988.

A critical constitutional document is the Treaty of Waitangi. The law can in some circumstances give special recognition to Māori rights and interests such as those covered by Article 2 of the Treaty. 

But some of our Constitution comes from our historical arrangements. For example, the Queen has prerogative powers which are used to appoint and dismiss members of the Executive Council and ministers of the Crown. These powers come from our system of law which is called the common law.

There are also constitutional conventions and inherent powers that regulate our law-making. These are also ingrained in our common law tradition.

What is the rule of law and why should we care?

No one is above the law. This is the fundamental statement of the rule of law; that we all agree to abide by the laws of the land, and there are consequences for those who don’t.

This means that government authority must be exercised in accordance with legitimately enacted laws that are transparent and known to all. In this way, there is protection against arbitrary government action.

The principles that are inherent in the concept of the rule of law include (as set out in the International Bar Association’s Rule of Law Resolution of September 2005):

  • an independent, impartial judiciary;
  • the presumption of innocence;
  • the right to a fair and public trial without delay;
  • a rational and proportionate approach to punishment;
  • a strong and independent legal profession;
  • protection of confidential communications between lawyer and client;
  • equality of all before the law.

We should all care about the rule of law. It is important because it prevents totalitarianism, mob rule and arbitrary interference with the lives of citizens. There is also considerable support for the view that the rule of law is essential for sustained and inclusive economic growth. 

What do barristers have to do with the rule of law?

 Barristers are independent legal practitioners and (in most cases) specialist advocates who appear in courts and tribunals, in front of judges, arguing cases for their clients’ causes.  Barristers do not belong to law firms and are therefore not constrained by partnership obligations or duties to a firm’s other clients (see “What is the difference between a barrister and a solicitor”).  They play a significant role in promoting the rule of law by their independent advice and advocacy in support of their clients’ rights and interests.  

The values of the independent bar contribute to upholding and promoting the rule of law – through ensuring justice for all, independence, fearless representation, professionalism and integrity, excellence in advocacy, equality and diversity, and collegiality and wellbeing.

Is the law really an ass?

 No. That is a popular view but simplistic to the point of being (if you’ll pardon the pun) asinine.  The law protects citizens from arbitrary action by the state. It regulates relationships between citizens when they have a dispute so that these don’t spill over into violence. It provides consequences for those who do not follow the law and who harm others.

Some laws may not be popular. Politicians decide what they should look like and sometimes the motivation to enact them has more to do with an upcoming election than it does with solving a problem.

Sometimes a law seems bad simply because people do not understand the processes involved in its application. An example of this is name suppression. There is a full range of factors that go into the decision to suppress a defendant’s name. Bottom line, sometimes the public interest lies in suppressing the name because of that range of factors. (Read more about name suppression)

It is critical to remember that judges do not make the law. Your political representatives make the law. Judges can strike down laws where they violate constitutional principle, but ultimately Parliament can override this.

Basically, you get the laws you vote for.