Constitutional

Aotearoa New Zealand’s constitutional arrangements are found in a range of statutes, documents, practices, conventions and institutions. They describe and create the institutions of the State, set out the constraints on the exercise of State power, and regulate the relationship between citizens and the State. At its most basic level, constitutional arrangements aim to ensure that State actions (including legislating, governing, and enforcing and upholding the law) are legitimate and are accepted as such by the public. Because New Zealand’s constitution is not all set out in one document, and much of it is found in practices and the common law, it’s known as an ‘unwritten constitution’.

Principles such as the separation of powers, the rule of law, restraint and proportionality, and Aotearoa New Zealand’s commitment to representative democracy are critical to the operation of our country’s constitution. They inform the operation of the systems described here.

The constitutional regulatory area creates the foundations that underpin the courts and tribunals regulatory area. Together, these areas provide the platform upon which all other regulatory systems in Aotearoa New Zealand are based. The constitutional regulatory area also provides the framework for the recognition and implementation of international law.

This area includes the following systems:

Constitutional arrangements (foundations for the State)

The statutes in this system work with other constitutional conventions, principles and practices to provide the foundations upon which our system of government and law is built. These foundations include:

  • the institutions of the State, including the head of state (the sovereign and the Governor-General), the legislature (Parliament), the executive (the government), and the judiciary
  • the rules and principles protecting the independence of the judiciary
  • key constitutional principles such as the separation of powers, parliamentary sovereignty, the rule of law, and representative democracy
  • the relationship between the head of state, the legislature, the executive, and the judiciary, including limits on the executive’s power to legislate
  • the oaths of office for key constitutional decision-makers.

This system articulates the roles and functions of the branches of State, so the exercise of State power can take place within clear boundaries, be scrutinised, and be held to account. This system includes te Tiriti o Waitangi (the Treaty of Waitangi)) but isn’t described here as it’s treated as a separate system.

Constitutional arrangements (Tiriti o Waitangi (Treaty of Waitangi))

This regulatory system deals with the place of the Treaty as a founding document of Aotearoa New Zealand. A particular aspect for the Ministry is the application of te Tiriti o Waitangi (the Treaty of Waitangi) to State-owned enterprises to protect rights and interests in land presently in Crown ownership. This is governed by the Treaty of Waitangi (State Enterprises) Act 1988.

Tiriti o Waitangi (Treaty of Waitangi) settlement commitments

This regulatory system deals with settlement and other legislation administered by the Te Arawhiti - The Office for Māori Crown Relations, a recently-established departmental agency dedicated to strengthening engagement and partnership with Māori.

Te Arawhiti negotiates the settlement of historical Tiriti o Waitangi (Treaty of Waitangi) claims and works alongside the rest of the Crown, settled iwi and local government to safeguard the durability of historical Treaty settlements. Settlement commitments are contained in a growing volume of legislation, deeds of settlement and accompanying documents.

Te Arawhiti also processes applications under the Marine and Coastal Area (Takutai Moana) Act 2011.

Constitutional arrangements (transparency and scrutiny of executive action)

The independent institutions in this system have been established to scrutinise aspects of executive action and to hold the executive to account. They include the Independent Police Complaints Authority, Ombudsman, Privacy Commissioner, and the Human Rights Commission. This system uses a blend of advice, encouragement, compliance and enforcement to promote accountable, proportionate and lawful executive action.

This system aims to promote public confidence in the legitimacy of executive action by fostering transparency in decision-making and actions and holding executive agencies to account.

Constitutional arrangements (powers of the State)

This system brings together statutes and constitutional principles that enable and regulate the use of coercive power by the State, including justifiable restrictions on movement, association and expression in relation to State institutions. Its objectives are to uphold the rule of law and ensure the exercise of State power is lawful, proportionate, and reasonable.

Constitutional arrangements (executive liability)

This system brings together statutes and constitutional principles that address the status of the Crown in court and the liability of the Crown before courts.

It aims to support the rule of law and encourage lawful actions by the Crown by clarifying when the Crown is liable at civil or criminal law, and how proceedings may be brought.

Constitutional arrangements (miscellaneous provisions)

This system brings together miscellaneous provisions that relate to aspects of Aotearoa New Zealand’s constitutional arrangements that don’t fit within the other constitutional systems we steward (for example, the Flags, Emblems and Names Protection Act 1981 (s 20)).

Human rights (international)

The Crimes of Torture Act 1989 implements the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment (and its Optional Protocol). This includes the establishment of a National Preventive Mechanism (NPM) to monitor places of detention and make recommendations for improving conditions. In Aotearoa New Zealand, the NPM comprises five agencies. 

Human rights (domestic)

The human rights system is a framework for the protection of fundamental rights held by individuals. It applies primarily to the actions of the State, but some legislation also governs interactions between individuals. This system includes the Ministry of Justice, whose role is to ensure laws are consistent, universally applied and in line with international laws and treaties. This system also incorporates the privacy system.

Democratic structures and processes

This system regulates Aotearoa New Zealand’s electoral system, including the legal and administrative processes for electoral events, electoral broadcasting, electoral finance, and the holding of referendums. Its purpose is to ensure ongoing public confidence in the legitimacy of general elections and the smooth transfer of power between governments following general elections.