Part A (1-12) The Branches of Government and Historical Background
Constitution
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sets out the structures of government, its powers and its function, it also sets out limits for
the government and the rights of its citizens.
New Zealand is a constitutional monarchy – Queen is at the top (governor general can carry
out all the powers of the queen) Queen’s powers are restrained by the constitution
New Zealand’s constitution is made up of a series of documents – followed the UK’s
structure – no single document. Another example is Israel
NZ’s constitution is not supreme law, just need majority votes in parliament to change
(electoral act exception)
Key documents in the constitution
- Constitution act 1986 - Queen is head of state, governor general is Queen’s rep, three
branches of government
- Magna Carta 1297 – limit the powers of the monarch and set out basic human rights
- Bill of rights 1688 – giving parliament more power
- Electoral Act 1993 – who can vote
- Public Finance Act 1989 – how the government can collect tax
- State Sector Act 1988
- Official Information Act 1982 – Request information
- Ombudsman Act 1973
- NZ Bill of Rights – sets out rights of people of NZ
- Declaration of Independence 1835
- Treaty of Waitangi – Te Tiriti o Waitangi 1840
- Conventions
- International Treaties
- Royal prerogative powers – powers of the monarch
Annexation of New Zealand
When NZ was colonised depends on what the yardstick is
- Intervention - when Britain poured resources into NZ
 1833: James Busby appointed British Resident in NZ
 1840: very few resources put into NZ: 12 policemen and 1 warship
 1846: more resources put into NZ
 1864: more British troops in NZ than in Britain, spending £500 000 on NZ
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Ostensible authority - when on the books NZ was theoretically colonised
 1833: Busby becomes NZ Resident
 1835: Declaration of Independence
 1837-1839: Britain is going to intervene but doesn’t know how – contemplates partial
colonisation
 1839: Decides to colonise NZ fully; sends Hobson to NZ as British Consul
 15 June 1839: Letters Patent: NSW jurisdiction can be extended over NZ
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14 Jan 1840: Governor Gipps of NSW makes a proclamation The jurisdiction of the
NSW Governor is extended over NZ, Hobson is the Lieutenant Governor of NZ, Title to
NZ land must come from the Crown
19 January 1840: The proclamation is published in Sydney
30 January 1840: Hobson issues the proclamation in NZ
6 February 1840: Treaty of Waitangi and Te Tiriti o Waitangi signed by British reps and
some rangatira
21 May 1840: Hobson declares: North Island has been taken by cession, South Island
has been taken by discovery
16 June 1840: NSW law is applied to NZ
2 October 1840: Hobson’s May proclamation is gazetted in London
16 November 1840: Royal Charter issued: NZ declared a separate colony
30 March 1841: Treaty of Waitangi is ratified
Actual control - when intervention was complete, and Britain exercised true authority)
 Wars in NZ throughout the mid-19th century
 Strong passive resistance in parts of the country in the 1880s (eg Parihaka)
 Resistance until the 1920s
 Tuhoe never ceded sovereignty as determined by the Waitangi Tribunal
Declaration of independence
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1831: 13 northern rangatira (chiefs) sent a petition to King William IV asking for protection
1833: British sent James Busby out as the NZ Resident
1835: Busby brings together 34 rangatira from the north to draft the declaration
Four key parts of the Declaration:
- Chiefs declared NZ is a whenua rangatira (translated to mean independent state)
- Kingitanga (sovereign power) was held collectively by the chiefs
- A congress would meet in the autumn of each year
- A copy of the declaration would be sent to the King and he would be asked to be a parent of
the infant state
The Declaration was acknowledged by the Colonial Office - King agreed to protect the Māori people
France and the US both provided some recognition of the Declaration
Treaty of Waitangi
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William Hobson sent to colonise NZ
English version of the treaty is drafted by Hobson and Busby
4 February it is translated into Māori by Henry Williams and his son
5 February Māori chiefs debate the Māori text of the treaty well into the night
6 February, Māori chiefs and British sign the treaty
Waitangi Tribunal has found that both sides had good intentions
Both sides had very different understandings of what was agreed during the Treaty drafting process
Things went wrong because both sides were locked into their own world view and there was a lot of
cross-cultural miscommunication
Article 1
English version:
- Tribes cede absolutely their sovereignty to the Queen of England
Māori version:
- Chiefs grant the Queen of England kawanatanga (governorship) over NZ
Kawanatanga doesn’t mean sovereignty and so Māori didn’t think they were giving up sovereignty
Māori thought that they were giving the Queen a protective role in NZ – not sovereignty
Article 2
English version:
- Queen guarantees full, exclusive, and undisturbed possession…of lands, estates, forests,
fisheries and other properties
- Crown has exclusive right of pre-emption over land that Māori wish to sell
Māori version:
- Queen reaffirms rights of the rangatira (chiefs) to exercise tino rangatiratanga (absolute
chieftainship or independence) over whenua (lands), kainga (villages) and taonga katoa (all
things treasured)
In the Declaration of Independence Māori had secured independence through the use of the word
‘rangatiratanga’.
It was not clear to Māori that the English version of the Treaty gave the Crown the exclusive right to
buy Māori land
Article 3
English text
- Māori become British subjects and get rights of British subjects
Māori text
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The Queen will respect the rights and ways (tikanga katoa) of Māori as she does those of the
English
Article 4
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The Governor says the several faiths [beliefs] of England, of the Wesleyans, of Rome and
also of Māori custom, shall be alike protected by them
Branches of government
Separation of powers
To have three branches of government, each with their limited powers to ensure no one has too
much power
Courts
Lower courts must follow the precedents set by higher courts in the Hierarchy of the Courts
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Supreme Court
Court of Appeal
High Court
District Court
Tribunals
Legislature
Role:
- Supreme law-making body
- Also holds ministers/government to account
- Approves how tax-payer money is spent
Made up of:
- Members of parliament elected at elections
Executive:
Role:
- Day to day running of the country
Made up of:
- Cabinet (ministers)
- Public service
Problems with an overlap between executive and legislature
• Ministers are the main group that come up with ideas for legislation
• If they come from a party that commands a majority in the legislature then it makes
it very easy for them to get legislation through without much debate
Electoral systems
First Past The Post (FPP)
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Country divided into electorates
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Everyone who was eligible to vote got one vote to select their local MP
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The person with the most votes in an electorate became the MP
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The party in the country that won the most seats/electorates formed the government
Problems
If you have multiple parties running in an election, you’re likely to end up with a government that
doesn’t have the support of the majority of people
Parties that get a significant amount of the vote across the country (eg 20% across the country)
might get no seats in parliament if they fail to win in any individual electorate
Political science modelling shows that over time, FPP ends up with just two major parties. Many
people’s views are not captured by the views of just two parties
The party that is the government will have a very easy time getting its legislative agenda through
parliament as it will command a majority of the parliament
The Case for Change
In 1986 there was a Royal Commission that examined the electoral system. It found: Since 1954 all
governments had been elected with under 50% of the vote, In 1978 and 1981 Labour won more
votes across the country but the National Party’s votes were better spread out so it won these
elections
In 1980s/1990s people thought that both National and Labour governments were failing to live up to
their election promises. Had two referenda about whether two change the system:
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1992: non-binding referendum
1993: binding referendum
Mixed Member Proportional (MMP)
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Everyone gets two votes
Vote for the person you want to be your electorate MP
Vote for the party you want in power
There are more seats in parliament
Every electorate gets an MP in parliament
Plus there are extra seats that get filled up by different parties so that the final constellation
of the parliament is proportionate to the party votes people cast
A party must get 5% of the party vote to be eligible for a seat in parliament
Changes that came with MMP
• More parties in parliament
• Less likely that one party will get 50% of the seats in parliament because there are more
parties
• So parties have to join together to form coalitions to be able to make a government – this
means there is a need for more deliberation and negotiation to get laws passed
• Can have minority government
• Less friendly to executive power
• Government slows down
• Parliament is revitalised
• Some say it gives small parties too much power
• Can take longer to form a government
• The Governor-General more likely to have to exercise his/her powers
Legislative process
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MPs propose legislation - most proposed by cabinet, some by opposition MPs
Proposed legislation is called a bill
Attorney General checks the bill for compliance with the Bill of Rights before it goes to
parliament
Non-compliant bills can still become law – the Attorney-General just needs to explain where
the inconsistency arises so that this can be considered during the parliamentary process
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First Reading
Select Committee
Second Reading
Committee of the Whole House
Third Reading
Assent of the Governor-General
Courts
Statute and common law
Acts, legislation, statutes – made by parliament
- Drafts a bill
- Debates the bill
- Votes on the bill
- Sends it to the Governor General for her assent
Common law – made by judges
- Historically it was the most common form of law
- Judges make law when deciding cases and then apply those laws in future cases where
similar issues arise
Functions of the court
Settle criminal and civil disputes using statutory and common law
Debate regarding the extent to which courts can develop the law:
- Declaratory theory: judges should just declare and apply the law – not develop it
- Judges should develop the law in some situations eg to ensure a fair outcome, to ensure the
law keeps up to date with community views and values, or at the judge’s discretion
Determine the remedy
- Compensation
- Damages
- Jail time
- Fines
NZ’s Courts
General Courts
- Supreme Court
- Court of Appeal
- High Court
- District Court
- Tribunals
Specialist Courts
- Employment Court
- Environment Court
- Maori Land Court and Maori Appellate Court
- Court Martial and Courts Martial Appeal Court
- Coroners Court
- Waitangi Tribunal
Jurisdiction - the power and ability of courts to make decisions over particular issues or in particular
places. What jurisdiction each court has is set out in a statute.
- Original jurisdiction: the ability to hear a case for the first time
- Appellate jurisdiction: the ability to hear appeals
Adversarial system
Most of NZ’s court system is run on an adversarial basis:
- Parties to the case are placed in opposition to each other and have to put forward their
cases
- Present evidence, call witnesses
- Judge (and sometimes jury) determines who wins
Advantages
- Fair system
- Everyone has a chance at presenting their case
- Reduce the role of judges to prevent bias
Disadvantages
- Damages relationships
- Doesn’t always get to the truth – two sides present two partisan views
- Outcome influenced by competence of lawyer
- Outcome also influenced by monetary means
Alternative systems
Inquisitorial system – common in Europe, judges play an active role in the case, they can do
investigations themselves.
Alternative dispute resolution – mediation and arbitration.
Judges
NZ judges are appointed by the Governor-General on advice of the Attorney-General
- Interpret and apply laws set down by parliament
- Develop the common law
- Receive high salaries
- Have jobs for life (until 70)
Juries
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12 people who decide the facts in a case
Made up of people from the electorate, no lawyers, MPs, police, and judges
Criminal cases are entitled to a jury trial where the maximum penalty is 3 months
imprisonment or more.
Civil cases the option to have a case heard is where the amount claimed exceed $3,000
Problems
- Personal biases
- Questions of reliability
- Expensive for the court
- People on a jury are inhibited from doing their day to day job
principles in judicial system
Open Justice
- Courts are open to the public
- Litigants and defendants have a right to a public hearing
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Court records are published
Equality before the Law
Access to Justice
- Everyone has the right to go to court
- Everyone has the right to representation
- (although going to court is very expensive)
Separation of power
Separation of powers
To have three branches of government, each with their limited powers to ensure no one has too
much power
Entick v Carrington 1765
Entick was producing pamphlets encouraging rebellion against the King.
Secretary of state issued a warrant for Carrington to search Entick’s home and seize documents.
Entick sued Carrington and the others for trespass and breaking and entering.
Entick argued the secretary of state had no right to issue a warrant for search and seizure
Carrington argued it was necessary for the warrant to be issued
Lord Camden’s judgement
- The executive can only issue a warrant if there is a law that allows for a warrant to be issued
- “If it is the law, it will be found in our books. If it not be found there, it is not the law”
- Must be a statutory law or common law
- There was no law that allowed the executive to issue this Warrant
Significance of this case
- Executive must act according to the law
- If the executive acts without a law, the court can rule against the executive
- If there is a law that allows the executive to do something, the court cannot stop the
executive from acting
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Parliamentary supremacy
Court cannot strike down the law even if it seems unfair, arbitrary or unjust
Parliament has very broad powers to make any law it likes
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The constraints on parliamentary law-making power are non-legal
Public opinion and the threat of losing an election
International obligations
Constitutional conventions
Fitzgerald V Muldoon
Sir Robert Muldoon NZ prime minister – 1975 – 1984
1974 Labour passed a compulsory superannuation scheme for NZ
Many people were unhappy about this it became the central Issue in the 1975 election campaign
National promised to get rid of the law and won the election
Muldoon stated: When parliament sits the scheme will be repealed, superannuation paid is
refunded, from this date no more contributions, superannuation board will not enforce requirement
to make payments
Without going through the process of parliament – there were no checks on the process, his
statement was also retroactive.
First judicial challenge – trade unions sued employers who were refusing to pay superannuation
contributions – arguing that the employers cannot ignore the law requiring compulsory payments
Attorney – General stayed the case
Second judicial challenge by Fitzgerald
Timing was tight as the case had to be brought before parliament sat
Standing
- To bring a case you must have an interest in the matter
- Fitzgerald had a pecuniary interest even though it was small
1688 Bill of rights says the pretended power of the suspending of laws by regal authority without the
consent of parliament is illegal
Issues:
- Does the 1688 Bill of Rights apply in NZ? Yes.
- Was Muldoon’s press statement a pretended power of suspending laws? Yes.
- Was Muldoon exercising regal authority? Yes.
Fitzgerald requested:
- Declaration that the press statement was illegal
- Injunction withdrawing the press statement
- Injunction to restrain the PM from continuing to instruct the superannuation board not to
enforce the law
The court granted the declaration but adjourned the injunctions for six months because the scheme
would’ve been withdrawn regardless
Significance of this case
The executive is bound by law
The judiciary can hold the executive to account
Parliament is supreme
Role of Courts in private entities
South Africa under apartheid from 1948 – 1994 – institutionalised racial segregation. Sanctions and
boycotts worldwide.
1977: Gleneagles Agreement – Commonwealth countries agreed to discourage their sporting teams
from playing South African teams
1960: No Maori were selected for the All Blacks when playing the Spring Boks
1970: Maori were allowed on the team as honorary whites
1973: South African tour called off by labour government
1981: NZ rugby union invited Spring Boks to tour NZ, 1 in 10 New Zealanders protested, violent
police response
1985 Case
South Africa invites All blacks over
- Non-binding vote in parliament wanted for them not to go
- Union ignores requests from Parliament and accepts the invitation to go
- Two lawyers members of Auckland rugby clubs decided to challenge the decision
Finnigan v NZRFU
Plaintiffs argue that NZRFU is breaching its rules
- NZRFU must promote, foster, benefit the game of rugby in NZ
- Going to SA would damage the game
Remedies sought
- declaration that the decision to tour was unlawful
- injunction stopping the tour from going ahead
before the case was heard, plaintiffs faced the standing issue
private law cases between individuals
public law cases between individuals and the state
Test for standing is easier for public law cases than private law cases
Case was first taken to high court – decided that plaintiff did not have standing
Treated as a private law case
Plaintiffs were members of Auckland rugby clubs which had contracts with provincial rugby unions
which had contracts with the NZRFU
no direct contract so no standing – no interest of a substantial nature
Court of appeal overruled the high court and found that there was standing
Private law case but could be argued that it had analogies with public law cases
Controversial decision and raised questions about whether the court had taken an activist approach
Interim injunction granted
To grant an interim injunction plaintiff must show
- they had a prime facie case
- the balance of convenience weighed in favour of an interim injunction
The union cancelled the tour
Some rugby players created the team “The cavaliers” and went to play SA anyways
Rugby union appealed the standing decision and wanted it overturned so it wouldn’t be a precedent
for future cases
- court of appeal declined appeal to privy council
- privy council declined appeal too
British control in NZ
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In the 1840s there were a number of wars – primarily in the north
In the 1860s there were a number of wars around the rest of North Island especially in
Waikato and Taranaki
In 1858 the Kingitangi movement was formed to try to unite iwi against the selling of land
NZ Settlements Act 1863
Legislation the NZ parliament passed to legitimise and facilitate land confiscation during the wars.
The Act suggests there is a problem with insurrection in the North Island and proposes to solve it by
taking land away from Māori and putting more settlers into the area
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People who engaged in rebellion had their land taken away as crown land
There are provisions in the law for compensations but there were many exclusions
Parihaka resistance
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At Parihaka, Te Whiti and Tohu lead a passive resistance movement
In 1879 the government was keen to buy and settle the land at Parihaka
Te Whiti and Tohu lead a passive resistance movement
They removed survey pegs, built fences across roads, ploughed the land
The government started arresting people – at one stage had over 200 people in jail
The people had not committed any crimes – there was no basis to detain them
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In 1879, the NZ parliament passed a number of pieces of legislation that authorised the
detention of Māori without trial and extended their detention indefinitely
Then in 1880, the government passed the West Coast Settlement Act
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West Coast Settlement Act 1880
It is an offence to:
- Wilfully and unlawfully obstruct any person authorised to do any act or thing in pursuance of
this Act
- Wilfully and unlawfully cut down, break, remove or destroy any building, bridge, fence,
survey pegs, or stations
- Wilfully and unlawfully dig up, plough, break or disturb the surface of land impeding its
occupation
- Unlawfully erect any fence or building on land impeding occupation
- Wilfully and unlawfully digs up, breaks, removes or destroys a highway
- Assemble (armed or unarmed) for any of the above purposes
Punishment:
- Up to 2 years jail with or without hard labour
- After that have to keep the peace for whatever period the Court says
Attack on Parihaka
• 19 October 1881: Government gives the residents of Parihaka 14 days to leave
• 5 November 1881: 1600 troops march on Parihaka
• The several thousand residents of Parihaka are waiting quietly on the marae –
children singing and playing
• Te Whiti and Tohu are arrested – they do not resist
• Days and weeks following 5 November 1881:
• Troops ransack and loot Parihaka
• Houses and crops are destroyed
• Many of the women are raped
• 1500 forcibly removed
• Some remain but face starvation
West Coast Peace Preservation Act 1882
Te Whiti and Tohu were arrested and jailed but they hadn’t committed a crime
The government passed the West Coast Peace Preservation Act 1882
The Act has specific provisions to deal with Te Whiti and Tohu:
• Governor in Council can issue orders for Te Whiti and Tohu to be kept in custody
• Only the Governor in Council can decide to discharge or release them (conditionally
or unconditionally)
• After they are released, they can be arrested again and kept in custody
• Anyone who disobeys the above provisions is liable for a £500 fine
Te Whiti and Tohu are detained until 1883
Fallout
There was land loss and language loss
People affected for generations
Post-traumatic stress
Intergenerational harm
R v Symonds
Facts
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Issue
Under Art 2 of the English version of the Treaty, the Crown has the right of pre-emption
Governor Fitzroy waives the right of pre-emption for a brief period
During the waiver period, McIntosh buys an island in the Firth of Thames from Māori
Later, Governor Grey sells the land to Symonds
Who owned the land?
If the Governor had the right to waive pre-emption then the land belonged to McIntosh
If the Governor did not have the right to waive pre-emption, the land belonged to Symonds
Judgment
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Governor Fitzroy did not have the right to set aside the right of pre-emption
The Crown is sovereign and has the exclusive right to acquire territory – it cannot give this
right away
Others can only acquire land through the Crown
This decision was based on the common law doctrine that Māori have native title until it is
extinguished by the Crown
The court noted that the common law is consistent with Art 2 of the Treaty but it did not
base its decision on the Treaty
McIntosh had argued that under Te Tiriti o Waitangi, Māori had the right to do what they
wanted with their land, but the court was not concerned with the Māori version of the
Treaty
Wi Parata v Bishop of Wellington 1877
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In 1848 Ngati Toa gave some land at Porirua to the Church in a way that was consistent with
Māori approaches to land ie not selling it.
The Church promised to build a school on the land
In 1850, Governor Grey issued a Crown grant to the Bishop for the land
By 1877, there was still no school on the land so Ngati Toa asked for it back
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The Church refused to give it back and so Wi Parata (MP and chief) took the Bishop of
Wellington to court
Judgment
• Chief Justice Prendergast issued one of the most notorious judgments in NZ’s legal history
• The Crown has the power to extinguish native title (common law)
• Once the Crown has granted title to someone, the court cannot investigate any further and
question the action
• The Crown gave the land to the Church and so therefore the land belongs to the Church
Further comments (obiter dicta):
• The Court did not apply the Treaty because it said it was a ‘simple nullity’
• Māori were ‘primitive barbarians and savages’ and did not have the capacity to sign a Treaty
– therefore the Treaty is non-existent
• Britain acquired NZ through occupation and discovery and for these reasons, British
common law applies
Te Heuheu Tukino v Aotea District Land Board 1941
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The government created trust boards by statute to administer land
There was a trust board administering land on Ngati Tuwharetoa land in the central north
island
• The statute allowed the trust board to grant special rights over the land as a guarantee of
debt
• The trust board used the land to guarantee a debt; couldn’t pay the debt; and so had to sell
the land to pay back the debt
• Ngati Tuwharetoa wanted their land back and argued the statute that allowed the trust
board to use their land as a guarantee for a debt was contrary to the Treaty
• They argued that the Treaty allowed Māori to keep their land as long as they wanted
Judgment
• The acquisition of land in this case was an act of state
• Parliament has passed legislation authorising this state of affairs – the court cannot question
it
• The Treaty is only applicable if it has been incorporated into domestic legislation
• It hadn’t been incorporated here so it was not applicable
New Zealand Māori Council v Attorney General 1987
Background
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1970s and 1980s: period of activism – pushing for Māori rights and recognition
1984: Labour government takes power. It:
• Says that it will work to recognise Māori rights more than in the past and redress
past wrongs
• Moves to create State Owned Enterprises which would own many of NZ’s resources
and assets
Problem: if the government allows SOEs to own NZ’s resources and assets, the SOEs might
sell them off. This means that Māori won’t be able to claim land, resources or taonga that
they believe have been wrongly taken
Solution: government inserts s9 into the State Owned Enterprises Act
• Section 9: nothing in this Act shall permit the Crown to Act in a manner that is
inconsistent with the principles of the Treaty of Waitangi
Facts
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NZ Māori Council said that creating the State Owned Enterprises and giving them resources
is inconsistent with the Treaty of Waitangi principles and therefore a breach of the Act
• NZ Māori Council asked the Court for
• A declaration that creating the SOEs was in breach of the Act
• An injunction to stop the government from handing over the resources
Judgment
• The Treaty does not have force unless it has been incorporated into legislation
• Here the Treaty has not been incorporated into legislation; the ‘Treaty principles’ have been
• Court comes up with Treaty principles:
• The Crown has the right to govern
• The Crown must provide active protection for Māori
• The Treaty is in the nature of a partnership and the partners must act reasonably
and in good faith
• There is a right of redress for Treaty breaches
• The Court found that passing resources to the SOEs would violate the Treaty principles
Summary of cases
R v Symonds:
Apply the common law; note that the English version of the Treaty reflects the common law
Wi Parata v Bishop of Wellington 1877:
Treaty is a simple nullity
Te Heuheu Tukino v Aotea District Land Board 1941:
Treaty can be applied if it has been incorporated into domestic legislation; if it hasn’t, it cannot be
applied
New Zealand Māori Council v Attorney General 1987:
The Treaty can only be applied if it has been incorporated into legislation; here the Treaty principles
were put into legislation and so the court could use them
Maori Fishing rights
Background
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Māori rights to fisheries are protected by numerous legal sources
For a long time, however, they prosecuted for fishing/taking shellfish
Eventually, in 1986, a Māori person was prosecuted for taking paua
In defence, the person argued that he was entitled to take the paua because of s 88(2) of the
Fisheries Act: ‘nothing in this Act shall affect any Māori fishing rights’
Court agreed that he was entitled to take the paua because of s88(2)
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Labour government creates Quota Management System that divides country into zones
Prevent the depletion of fishing stocks
Improve the efficiency of the fisheries system
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In each zone, people are given rights to take a certain quota of fish: Individual Transferrable
Quota System
Quotas are the right to fish, quotas can be sold.
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Many of the initial quota allocations were given to big fishing companies not Māori
Small Māori fishers missed out on quota allocations
It was contrary to Māori fishing rights including rights in the Treaty
They had not agreed to give up their rights to fisheries
NZ Māori Council and Muriwhenua v Attorney-General 1987
NZ Māori Council and Muriwhenua argue the QMS is contrary to s 88(2) Fisheries Act
Court agrees:
 Halts the roll out of the QMS although does not repeal what has been done
 Negotiations needed between Māori and the Crown
An interim solution is negotiated:
 The Crown will set aside 10% of the QMS for Māori
 They will give Māori Fisheries Commission 2.5% of the QMS each year for four years
 Solidify this interim deal in Māori Fisheries Act 1989
Court adjourns the case:
 The case isn’t open and a long term solution hasn’t been reached
 But both sides now have time to come up with a long term solution
 Court will only step back in if a long term solution isn’t found
Ngāi Tahu Report from Waitangi Tribunal
 Ngāi Tahu (South Island iwi) went to the Waitangi Tribunal and made a claim for fisheries
along the coastline in the South Island
 Waitangi Tribunal found:
 Ngāi Tahu has rights to fish up to 12 miles off the coast
 Ngāi Tahu has right to development of commercial fishing practices up to 200 miles
of the coast – right to a reasonable share of deep water fishing
 The Quota Management System (which prevented the above rights) was in
fundamental conflict with the Treaty and Treaty principles
 Waitangi Tribunal recommends negotiations between Ngāi Tahu and the Crown
Long Term Solution
What the Crown will do under the deal:
• Crown give Māori $150 million so that it can buy part of Sealord (other part bought by
Brierley Investments)
• Crown would pass a law that guaranteed 20% of new quota scheme to Māori
What Māori will give up:
• All Māori commercial fishing rights would be extinguished
• Crown would recognise Māori non-commercial fishing rights but they would be legally
unenforceable
• Section 88(2) Fisheries Act would be repealed and Māori have to endorse the Quota
Management System
• Māori would not be able to continue any litigation (in the courts or WT) or start future
litigation about fisheries in any body of water
• There will be the creation of the Treaty of Waitangi Fisheries Commission to distribute
future profits to Māori
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Māori acknowledged that the payment of $150 million took money away from future Treaty
settlements
The deal is reached very quickly by 2 ministers and 6 Māori negotiators
• The deal gets taken to Māori around NZ for consultation over a short period
• Some Māori were happy and some were not
• There is a hui (meeting) of kaumatua (elders) in Wellington on 23 September 1992
• Some agree to sign the Deed of Settlement (setting out the deal), Some do not agree
• A bill is drafted to be introduced into Parliament – it will transform the contents of the Deed
into legislation
Te Runanga o Wharekauri Rekohu Inc v Attorney-General (Sealord Case)
Facts

13 iwi that did not sign the Deed take the Attorney-General to court to try to prevent the
introduction of the bill into parliament – they want to stop it becoming law
 They haven’t agreed to give away their rights under the Treaty
 Argue that it violates s 88(2) of the Fisheries Act
High Court
• Declines to dismiss the case as AG suggests
• But refuses to intervene in the legislative process and stop the law
Court of Appeal
• The Crown owes a fiduciary duty to Māori (duty of trust)
• They must act in good faith, consult with Māori and protect them
• The creation of the deed has been done in good faith, Māori have been consulted and while
not all agree many do
• It is a matter of public policy that the Courts do not intervene in the legislation making
process of parliament
• Legislation cannot be challenged before it has been passed, NZ legislation can’t be
challenged after it has been passed either
Waitangi Tribunal
• Māori challenge the Deed in the Waitangi Tribunal, argue that it is a breach of the Treaty
• Waitangi Tribunal says:
• The tone of the Deed is problematic
• Extinguishing non-commercial fishing rights is a violation of the Treaty
• But it refuses to say that Māori have a right to 100% of fish
Treaty of Waitangi (Fisheries Claim) Act 1992 passes parliament in December
 There are some changes in tone from the Deed but not substance
 There are a number of downstream issues:
 Contentious issues about how Māori should divide the dividends from Sealord
 Challenge to the Minister appointing the members of the Treaty of Waitangi Fisheries
Commission in the WT
State of the treaty
• The Court:
• Says that the Crown has a fiduciary duty to Māori
• Doesn’t interfere with parliamentary process
•
• Doesn’t examine whether the Deed complies with the substance of the Treaty
The Court never decided what fishing rights Māori had prior to the QMS – now it never will
Part B 13-17 Concepts of Law
Natural Law
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•
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Natural lawyers believe there is a universal code of moral principles that exists
independently of human made law
If human made laws accord with the universal moral principles then the human made laws
are valid and must be obeyed
If human made laws do not accord with the universal moral principles, the human made
laws are not valid and don’t have to be followed
Theorists
Aristotle: 4th century BC
• There is moral order that is intrinsic to the natural world
• We can work out what is moral by having regard to the natural world
• Human made laws should accord with the moral principles that we find in nature
St Thomas Aquinas: 13th century
• The laws of nature are moral principles set down by God
• Humans can discover God’s law/moral principles through reason
• If human laws go against God’s law then the human laws are not valid
John Finnis: 20th century
• Natural law is not based on theological ideas but on logic and practical reason
• As humans we can work out what is logical and proper
• Eg a legal system that looks after the welfare of its members is appropriate
• Eg a legal system that is arbitrary and tyrannical is not appropriate
Human rights
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In the 20th century, some natural lawyers suggested that human rights might be the
universal moral principles of natural law
Ideas about human rights have been around for centuries
Very prominent in the French and American revolutions
After World War II the international community adopted the Universal Declaration of
Human Rights
Sets out a wide range of rights: eg right to vote, right to health, right to education, right to
be free from torture
Some hold that if laws contravene these ideas then they are invalid and should not be
obeyed
It is useful to have an external standard by which to judge human made laws
It allows us to challenge and question immoral, unjust laws, e.g. it is a way to dispute laws
that allow for apartheid, racial discrimination, sexism, colonialism and other forms of
oppression
Criticisms
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Some question whether there are universal moral principles that we all have in common
If there is a universal moral code, it is not self-evident what it is and there is a lot of
disagreement about it
There is a risk that appeals to natural law can become a way to enforce a particular form of
morality or world view
Positivism
laws are valid regardless of whether they accord with moral principles. If a law has been made by the
right authority in the right way it is law regardless of whether it is moral or not.
Laws are valid when:
• They have been created by a recognised law-making body
• The law-making body has followed the correct law-making procedure
In NZ, this means that under a positivist perspective, law is valid when:
• It is a statute that has been made by parliament
• It is a precedent in the common law that has been made by the courts
Theorists
John Austin
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•
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•
19th century legal philosopher in England
He believed that the sovereign is the sovereign because he/she is habitually obeyed
Parliament and the courts get their authority from the fact that people follow what they do
and recognise their laws as having the force of law
Potential problem with this is that people disobey the law all the time (eg speeding limits)
but we don’t regard this as the authority of parliament being undermined
Hans Kelsen
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was an Austrian who lived from the 1880s-1970s. He was forced out of his university job in
Germany during the Third Reich and he moved to the US
He believed that parliament has the power to make law because of the existence of
grundnorm (basic norm)
• The grundnorm is something that is presumed to underpin the entire legal system –
it allows all laws to be developed
• It is a hypothetical idea that we all accept
Kelsen came up with what he called the ‘pure theory of law’ - Law is self-contained; it
doesn’t have reference to rules, values or morals outside of it
H L A Hart
20th century legal philosopher at Oxford
Hart identified two sorts of rules:
Primary rules: laws that tell people what they can and can’t do, Eg we have freedom of
speech and we can’t steal
Secondary rules: laws that explain how the primary rules will be made, enforced and
changed, Eg courts can hear cases about legal disputes
•
•
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A key secondary rule is the rule of recognition: the rule of recognition is a rule that all other
rules must comply with to be accorded the status of law
In NZ the rule of recognition is that a law must be passed by parliament or created through
the common law (by judges)
What makes the rule of recognition valid?
•
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Hart says it is because it is widely accepted and put into practice by officials, people who
enforce the law and citizens
For Hart, the key to law’s validity is that the majority of people feel an obligation to obey the
law
This sets law apart from other rules, social norms, etiquette and customs
Criticisms
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What is the reason positivists gives for people obeying the law?
Why are rules that are created through the proper processes valid?
What does positivism do about immoral or unjust laws?
How do we know that the law-making bodies have the power to make laws?
•
Where is this set down and who decides?
Natural Law VS Positivism
Why do we obey the law
Natural lawyers believe we should obey the law because it accords with moral principles
Positivist lawyers believe we should obey the law because:
• We respect the legitimacy of the law-making body; and/or
• We fear the punishment that will come if we disobey the law (eg we’ll be pursued by police
and potentially fined or put in jail)
Potential issue with positivist reasoning:
• Some question whether it is really true that we obey the law because of a threat of being
punished/sanctioned if we disobey it
• Is this really why we observe the laws about say the right to freedom of speech?
Hart v Fuller debate
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When the Nazis were in power, there was a law that prevented people from speaking ill of
the Nazi Party and Hitler
A German soldier had time back home during World War II. While at home he said to his
wife that he disapproved of Hitler and other leading Nazis
His wife reported him to the Nazi party and he was prosecuted and sentenced to death
After the war, in 1949, his wife was prosecuted for procuring the imprisonment of her
husband (a criminal offence)
The wife argued that she shouldn’t be found guilty because she had been acting according to
a law in existence at the time
The German court held that that law was so monstrous (contrary to the sound conscience
and sense of justice of all decent human beings) that it should not be regarded as law at all.
Therefore the wife couldn’t rely on it to justify her actions
Hart’s View
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There is no question that the law was immoral but this does not affect whether it is valid
•
It is deeply problematic to decide that a statute that had existed since 1934 should not have
the force of law
•
The law should be regarded as valid and either:
•
The woman goes unpunished for her awful actions; or
•
Germany passes a statute that retrospectively makes what the woman did a criminal act
Fuller’s View
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Getting a retrospective law passed would have taken too long
•
It is better to say that a dictatorship that passes laws that are far from the moral order
ceases to operate as a legal system
Tikanga
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Translates to a system, value or principle which is correct just or proper.
Tikanga is a combination of fundamental concepts, principles and values core values that
guide people of Māori descent.
Tikanga guides behavior according to commonly understood rules that aim to keep a
balance of the spiritual and physical world
Passed on from generation to generation and is different from iwi to iwi
Link between the spiritual world and the natural worlds
Connection between people
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The Maori legal order was values oriented – not rules based.
Adherence to principles, not rules, enabled change while maintaining cultural integrity
•
Critical Legal studies
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CLS emerged in the 1970s
Created by people involved in the Civil Rights Movement and Anti-Vietnam Movement
They were concerned that the legal and political systems were deeply problematic and
favoured rich, white elites
They developed a theory to explain the problems they saw
1. Uninterested in the pragmatic or empirical concern
2. It is axiomatic that Law is politics
Key idea:
 Law presents as being natural, fair, good and just. However, in reality it works to favour the
wealthy and powerful and it disadvantages and marginalises other groups in society.
 There are gaps in laws, Laws cannot cover every situation so judges have to stretch the law
to cover gaps and when this happens they will inevitably bring in political views, moral
values and/or biases
 Judges can look at the same law and reach very different results – there is no objective right
answer – law can be used to justify many different ends
 Law is a codified form of society’s biases which works against marginalised groups
 Law tends to be written by and for the elites – it favours rich, white, men
 It is set up in a way that makes law seem natural, normal and just but in fact in reality, it’s
problematic and biased

When judges interpret the law, they have choices between different interpretations, it is
almost always interpreted in ways that protect the rich and powerful in society due to their
cultural and political views
Criticisms:
• CLS has been criticised for being overly critical and not providing any constructive solutions
• It is seen as nihilistic
• There is a strand of CLS scholars who think that law can be transformed and improved – they
think it is possible to come up with new legal approaches where everyone agrees on
different legal and political arrangements
• This has been criticised by feminists and critical race theorists who say that the idea that
there is one legal order that everyone can agree on and that will be fair for everyone is very
problematic
• They say that having any system that doesn’t acknowledge people’s differences will result in
injustice
Feminist Legal Theory
Feminists look at the way that the law treats women. They challenge the idea that law is rational,
fair and objective and that there is equality before the law
Approach 1: Male Monopoly in the Law
Historically women couldn’t practise law
1896 Ethel Benjamin first NZ woman to get a law degree and practice
Until 1970s, very few women went into law
Since 1980s at least 50% of law grads in NZ have been women but women have not tended to
progress to the higher ranks of the profession at the same rate as men
Men have favoured male interests in the law to the detriment of women
We’ve had legal tests that consider what the ‘reasonable man’ would do/think
We’ve had laws that have not protected women’s interests eg pay equity issues
Approach 2: Law privileges and enforces men’s views of the world
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Law is structured in a way that serves men’s interests
Law embodies a male culture and a male way of doing things
Eg the adversarial system we have in the courts
Eg the way that stranger violence in a public place is prosecuted but domestic violence is not
Eg the consent laws around rape are focused on whether the man reasonably believed that
the woman consented; not whether the woman did in fact consent
Proposed solution: change the legal system so that it supports women’s values, ethics and world
view
Criticism of this approach:
It makes big assumptions about what are masculine traits and what are feminine traits: it
essentialises men and women
Approach 3: Law as a Tool of Repression
•
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The problem with law is not just that its representatives are men or that there is a culture of
masculinity
The problem with law is that it presents itself as being objective, neutral and fair but actually
it subordinates women in many ways
Eg now we have the ‘reasonable person’ test not the ‘reasonable man’ test but arguably the
reasonable person is assumed to be male
Eg the idea that law is meant to be rational, objective preferences male attributes and
devalues qualities associated with women’s experiences
Third World Approaches to International Law
A lot of international law is created at the United Nations (UN) and enforced by the UN.
Key UN bodies include:
• General Assembly
• Security Council
• International Court of Justice
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TWAIL is a theory that challenges the idea that international law is a fair system that applies
equally to all states
TWAIL scholars argue that international law: Benefits European/Western states.
Disadvantages non-European/non-Western states
International law was central to establishing colonialism from the 15th – 20th centuries and
subjugating non-European states
International law continues to subjugate non-European states even though we no longer
have colonialism
International law in colonialism
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European powers created international law – they made it a form of law that could only be
created by and applied by states that looked like European states
European powers created international laws that said that places in the world that did not
have the features of European states could be conquered/taken over by European states
In places where it looked like there was some form of political community that was similar to
a European state (eg NZ), the European states created international treaties that deprived
indigenous peoples of their lands and allowed the European states to take over
Colonialism with all its violence, robbery and fraud, was perpetrated and justified by
international law
International law and the third world today
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After World War II decolonisation occurred
Most states that had been part of empires achieved independence
TWAIL scholars argue that although third world states are not subject to colonialism
anymore, international law still works to ensure that third world states are politically,
economically and legally beholden to Western states.
The UN is a front for the big powers of the world and disadvantages the third world:
All states sit it in the General Assembly and get a vote but votes in the General Assembly are
non-binding
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Binding decisions are made by the Security Council which is dominated by the five states
that have a permanent seat on the Council (the P5) and the veto right: US, UK, France, China
and Russia
The system allows the P5 to authorise wars that help their interests and impose sanctions on
the third world
Economically:
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The international financial system keeps third world states in poor economic positions:
When decolonisation occurred, the colonial powers had stripped many third world states of
their resources and they left them in poor financial positions
 To survive, the new decolonised states needed loans from the international financial
institutions (the World Bank and International Monetary Fund)
 The loans came with conditions and requirements which were deeply problematic
 The loans have placed third world countries in deep debt and they have little hope of ever
emerging from that debt
Environmentally
 Climate change migration – caused by western developed countries but disproportionately
affect third world countries
 Western, developed states have contributed significantly to climate change
 Climate change is being felt most severely in parts of the third world. People in the third
world are being forced to flee their homes and it is predicted that up to 50 million will be
forced to flee their homes by 2050
 The international system provides people displaced by climate change with no help – they
do not fit the definition of refugees and there is no provision for them being helped
Solution
• Develop a vision for a more just and equal international system
• Develop an alternative international legal system
• Transform the conditions in the third world
• Ensure that all cultures are accorded equal respect
Part C (18-22) The Global Context of Law
Global challenges
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Climate Change
Involuntary Migration
Food security
Infectious Diseases
International laws as a response to global challenges
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Global challenges cannot be resolved by any one state acting alone, there’s a need for
coordination and cooperation and for disputes that arise to be settled peacefully
International law is a mechanism to try to enable coordination and cooperation on the
international stage and provide procedures for disputes to be settled peacefully
Under international law, states are meant to ensure that their domestic laws align with
international law but this doesn’t always happen
it has limitations (TWAIL, Feminism)
Statehood
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They can make international law
They run and participate in international organisations like the UN
They decide who the judges are on the ICJ
The test for statehood is controversial
• Some people think it is: Having a population, territory, government and the ability to enter
into international relations
• Others think that it is necessary for an entity to be recognised by other states as a state
• TWAIL scholars critique this approach for giving too much power to powerful, Western
states to determine whether an entity is a state or not
Which entities get to be states is contentious:
• There is a lot of power that comes with being a state
• Big questions about whether Taiwan, Palestine, Kosovo and Islamic State (ISIL/ISIS) are
states
Sovereignty
Sovereignty is having exclusive control and monopoly over a territory and nationals
It gives governments the right to use the natural resources and exclude foreigners
It prevents other states invading and taking natural resources
Sovereignty of New Zealand
• Under the British version of the Treaty of Waitangi: Māori ceded sovereignty to Britain
• Under te Tiriti o Waitangi: Māori did not cede sovereignty; sovereignty is shared with Māori
maintain control and independence over their affairs and the Crown getting governorship
• There are ongoing negotiations and debates about this
International Law
Sources of International Law
Treaties
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Treaties are agreements between states also known as conventions and covenants
Creates binding obligations that states must obey
The treaty making process has two stages: Signing and Ratifying
Customs
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Custom or customary international law is an unwritten form of law that emerges because
states all generally tend to do something in a particular way
The test for whether something is a rule of custom:
State practice: the majority of states are following the rule and have done so for a long
period of time
Opinio juris: states are following the rule because they think they have to – they think it is a
law
Examples of customary rules:
• Heads of state have immunity in other countries
• If someone might be persecuted in another country, they cannot be sent to that
country
It is possible for a state not to be bound by a rule of custom in they persistently object to it
Breaches of international law
International court or tribunal
The International Court of Justice (ICJ)
• Hears disputes between states
• Gives advisory opinions (legal advice) on particular issues when asked
The remedies you can get from a court or tribunal
• Declaration saying you have violated international law
• Reparations
• Compensation
The General Assembly can pass a resolution condemning the breach
Security Council:
 Impose sanctions on the state
 Authorise the use of force against the state
States can take unilateral measures:
 Impose sanctions
 Take countermeasures
 Withdraw their diplomats or end diplomatic relations
International Law in New Zealand
NZ has prided itself on being a good international law citizen
• We have been involved with establishing and supporting many parts of the international
system
• We were involved in drafting the UN Charter
• Numerous NZers have served as judges on international courts
• Numerous NZers have headed up international agencies
• We use international courts and tribunals to settle disputes
• We participate in treaty negotiations and work to uphold them
We are not always the perfect international citizen:
At times we’ve refused to be part of important international instruments
• Eg UN Declaration on the Rights of Indigenous Peoples
At times we have supported problematic international laws:
• Eg international laws that work to stop terrorism, undermine fundamental human rights
• Eg in the 20th century, we used the international legal system to exercise control over
countries in the Pacific eg Western Samoa and Nauru
Turning international law to domestic law
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Monism: when the state signs up to international law:
• It is bound by that law in the international system; and
• The international law becomes part of its domestic law
Dualism: when a state signs up to international law:
• It is bound by that law in the international system; but
• That law does not apply domestically until it has been incorporated into domestic
legislation
NZ adopts monism for customary international law
• Customary international law = state practice + opinio juris
• In NZ customary international law is applied by courts as part of the common law
• Exception: if a statute contradicts/overrides a rule of customary international law then the
statute prevails
NZ adopts dualism for treaties
• When NZ becomes a party to a treaty, it is immediately bound to obey the terms of the
treaty in the international system
• The treaty only becomes binding in domestic law when it has been passed into legislation
The executive arm of government has the ability to sign and ratify treaties
• The executive is the part of government that can conduct international relations
• Parliament passes legislation to turn treaty principles into domestic law
• Eg the NZ Bill of Rights turns key principles in the International Covenant on Civil and
Political Rights into domestic legislation
• This fits with the separation of powers - The executive isn’t making domestic law; the
parliament is
•
For most of NZ history, the executive has been able to sign and ratify treaties without input
from the other branches of government or the NZ public
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In the 1990s, concerns about the lack of transparency around treaty making enhanced
There were more and more international laws being signed and they were having more and
more impact on NZ law
There was concern about the amount of power the executive had and a push for the
parliament to have more say
New Treaty Examination Procedure 1997
1. The executive signs the treaty
2. The treaty is tabled in parliament
3. A National Interest Analysis is prepared
4. The treaty goes to the Foreign Affairs and Defence Select Committee
5. The public normally has a chance to comment on it
6. The executive ratifies the treaty
Aim:
• Ensure the process is more transparent and get participation from interested parties
• What can happen after the Treaty Examination Procedure:
• There can be a recommendation not to ratify the treaty
• There can be a recommendation that NZ make reservations to the treaty
Concerns:
• The public doesn’t always get a chance to comment (or an adequate chance to comment) on
treaties
• We don’t have a select committee that has expertise in treaties
• The ability for Māori interests to be taken into account is inadequate
• Increasingly, there are international agreements being made that are not formal treaties but
that have a big impact on NZ affairs eg the Christchurch Call
• There are no oversight provisions for these sorts of agreements
Human rights
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Human rights are a form of international law
They are agreed between states but are about individuals
They set out the human rights states promise to uphold
Examples: rights to freedom from torture; slavery
They are a relatively modern invention
Born out of World War II and closely tied to the United Nations
Human Rights Instruments
The Universal Declaration of Human Rights
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The fundamental document of human rights law, adopted by most of the brand-new UN in
1948. Linked to the UN Charter
• Sets out that “all human beings are born free and equal in dignity and rights”; freedom from
discrimination, right to life, liberty etc
• Endorsed by basically every state in the world
The International Convention on Civil and Political Rights
•
A successor to the Universal Declaration, along with the International Convention on Social,
Cultural and Economic Rights. Adopted by the UN General Assembly in 1966
•
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Covers political rights: self-determination, freedom of thought, speech, religion, assembly;
and many more.
Ratified by 167 states, but still quite controversial
Other Instruments
• International Convention on Economic, Social and Cultural Rights
• Convention on the Rights of the Child
• Declaration of the Rights of Indigenous Peoples
• Convention on the Elimination of All Forms of Discrimination against Women
• Convention on the Rights of Persons with Disabilities
Feminist critics of human rights
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•
Feminists question the ‘universality’ of human rights
Some argue that men and women have different relationships with the state; and that
human rights are grounded on this masculine worldview
Indigenous rights critics
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Human rights have also been criticised by indigenous rights scholars
They argue that the universality of human rights is based on a Eurocentric worldview
Rights of the Environment
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Un’s 1945 charter does not refer to environmental protection
They did not have a dedicated environmental body environment until the United Nations
Environment Programme in 1972
•
1992 UN Conference on Environment and Development (Earth Summit)
• Pivotal moment in international environmental law
• Framework of environmental issues in two categories:
• Protection/conservation of nature: atmosphere, forests, oceans etc
• Human products/byproducts: chemicals, biotech, hazardous wastes etc
2016 Paris Agreement
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Agreement within the United Nations Framework Convention on Climate Change, signed in
2016, 195 signatories
It mostly isn’t legally binding; based on voluntary commitments to reduce carbon emissions
Example of the consensus-building strategy
Other Instruments
• Marine pollution: Convention on the Prevention of Marine Pollution…
• Biodiversity: Convention on Biological Diversity
• Regional agreements, eg North American Agreement on Environmental Cooperation
environmental constitutionalism
 sustainability as a foundational principle
 Shift from anthropocentric perspective to an environmental perspective
 “The adherence of any form of government to fundamental ecological principles”

Still mostly theoretical, but worth thinking about in a context where radical change is
needed to protect the environment
Part D 23-28 Law and Rights
Criminal Law
Process
• Conduct is committed
• Police investigation
• Person is charged
• Person enters a plea (guilty or not guilty)
• Person may apply for bail
• Hearing
• Verdict
• Sentence
Most crimes do not result in conviction
There is a big gap between the number of crimes committed in society and the number of people
who go through each stage of the process. On average, for every 1000 crimes committed:
 400 reported to police
 320 are recorded by the police as offences
 64 are cleared up (the rest are unsolved)
 43 people are convicted
 1 person ends up in prison
Discretion
Police, judges, lawyers and juries all have the ability to exercise discretion
Sometimes discretion is exercised according to formal criteria that have been set down in laws or
guidelines; sometimes discretion is exercised according to the social, cultural and personal values of
an individual
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+
Efficiency
Take account of people’s circumstances
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Domestic violence isn’t prosecuted as much
Discretion is often exercised against minorities
Juries
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It used to be that to get a conviction you needed a unanimous jury verdict – 12:0
One rogue juror could prevent a verdict
There was the potential for a juror to feel pressure
There were an increasing number of hung juries – in the High Court in 2001 13.1% of trials
resulted in hung juries
Change in 2008: You can be convicted by a 11:1 jury decision if the jury has deliberated for
at least 4 hours
+More efficient
+Lazy juries
- One person with a reasonable doubt, one person with genuine doubt and that’s a concern
Getting tough on crime
•
•
•
In 1999, there was a citizen-initiated (non-binding) referendum
The question asked was: do you want a reform of our criminal justice system placing greater
emphasis on the needs of victims, providing restitution and compensation for them and
imposing minimum sentences and hard labour for all serious offences
92% of the country agreed with the question
Labour’s response to the referendum
• Pass the Victims’ Rights Act 2002
• Alter parole periods
• Tighten up some sentencing
When National came to power, three-strikes legislation was introduced
• Under the three strikes legislation there are 40 serious violent crimes
• First offence: normal sentencing and a warning
• Second offence: serve the full sentence you are given and final warning
• Third offence: maximum sentence is imposed unless it would be manifestly unjust
• The strikes do not lapse over time
• The legislation has been controversial
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Discourage violent crimes
Get the worst offenders away from society
-
Crimes that aren’t violent are on the list
Hasn’t had any significant effect on crime rates
Prison isn’t the most rehabilitative – sometimes increases rates of reoffence
Prison is expensive
•
•
What concerns exist about the legislation?
At the 2017 election, Labour said that it would repeal the three strikes law but it lacked
backing from NZ First so it didn’t happen
NZ Bill of Rights Act 1990
• NZ BORA sets out a range of civil and political rights
• It applies to acts done by the executive, the legislature and the judiciary;
• And any person or body performing a public function, power or duty
• It is not entrenched - the NZ BORA is just a normal piece of legislation so it is
very easy to change
• It is not supreme law - it is possible for parliament to pass legislation that is
inconsistent with the NZ BORA
• Rights can be subject to reasonable limitations that are prescribed by law and
can be demonstrably justified in a free and democratic society
• When courts are interpreting legislation, they need to interpret it consistently
with the NZ BORA if possible
• New Zealand courts now make a declaration stating when a particular statute
appears to be in breach of the Bill of Rights Act, when it comes up in court.
•
There is a bill currently before parliament which, if passed, would mean the
Attorney-General must bring the declaration to the attention of the House of
Representatives.
When a bill is introduced into parliament, the Attorney-General has to issue a
statement setting out whether the bill is inconsistent with any rights in NZ
BORA
Search and Seizure
Section 21: “Everyone has the right to be secure against unreasonable search or
seizure, whether of the person, property, or correspondence or otherwise.”
Under the Search and Surveillance Act, the police can search you, your property or
car if:
• You agree
• They have a warrant
• In certain urgent circumstances / situations where evidence of serious crimes
might otherwise be lost.
• If you’ve been arrested they can
• Take any property you have on you
• Do an internal body search if they have reasonable grounds for believing you
have illegal drugs secreted in your body
So there are two questions when looking at the legality of searches:
1) Was it illegal under general laws?
2) Was it unreasonable under s 21 of the BORA?
Should illegally or unreasonably obtained evidence be able to be used against you
in court?
Evidence Act s 30(2)
• If the Judge finds that the evidence has been improperly obtained, he/she
must determine whether or not the exclusion of the evidence is proportionate
to the impropriety
• This means there is a need for the judge to undertake a balancing act
Hamed v R 2011 NZ SC
Facts
• Between May 06 and October 07 NZ police conducted extensive investigations
into alleged paramilitary training camps operating in Urewera ranges
• As part of the investigations, the police set up covert video surveillance on
private property
•
•
A number of search warrants had been issued under section 198 of the
Summary Proceedings Act but there was a question as to whether they
actually covered the covert video surveillance
At the end of the investigation 17 people were arrested and charged with
firearms charges and for participating in an organised criminal group
Issues
• Was it illegal or legal for the police to take covert video surveillance?
• Was the covert video surveillance an unreasonable search under s 21 of NZ
BORA?
• If the covert video surveillance was illegal or unreasonable, could it be used as
evidence in court?
Video surveillance was illegal
• Section 198 of the Summary Proceedings Act allows warrants for the search
and seizure of things that are reasonably believed to be on the property at the
time of applying for the warrant:
• Video surveillance is not a ‘thing’
• The images captured were not on the property at the time of applying
for the warrant
Video surveillance was a violation of s 21 NZBORA
• Whether a search is unreasonable under s 21 depends on the nature of the
place being searched, the degree of intrusiveness of the search on people’s
privacy and the reason it was occurring
• Here the video surveillance was unreasonable
Could the video surveillance evidence be used in the case?
• Because it was obtained illegally and unreasonably, the evidence was deemed
to be ‘improperly obtained’ under s 30 Evidence Act
• The issue then was to weigh the impropriety of the evidence against the need
for an effective and credible system of justice
• Here the court found that the evidence should be excluded
Impact of excluding the evidence
• The charges against 13 people were dropped and all charges about
participating in an organised criminal group were dropped
• 4 people were charged with firearms offences
Government’s Response
• The government was concerned that the ruling caused problems for a lot of
other surveillance missions
•
•
•
•
They sought to pass temporary legislation that declared that
• covert surveillance doesn’t amount to an unlawful search and
• cannot be deemed ‘improperly obtained’ evidence under the Evidence
Act
The temporary legislation was to be retrospective and have a 12 month sunset
clause on it
There was only 24 hours for the public to comment on the bill
• Huge outcry about the bill came in those 24 hours
Ended up passing a modified bill:
• Not retrospective; 6 month sunset clause
Permanent legislation in 2012
• In 2012, the government passed legislation on this matter that wasn’t
temporary
• Under this legislation you can only have video surveillance obtained via
trespass if it relates to an offence
• That is punishable via a prison term of 7 years or more
• That is against certain sections of the Arms Act
• That is against certain sections of Psychoactive Substance Act
Homosexuality and the criminal law
History
• In antiquity and the early Middle Ages, homosexuality was largely accepted:
• Up until the 14th century, England had a number of openly gay monarchs
• Homosexuality was largely accepted by society and the church
• Attitudes and laws changed in England during the Middle Ages:
• 1553: sodomy became punishable by death
• 1861: sodomy became punishable by life in prison or at least 10 years in prison
• 1885: acts of gross indecency were criminalised
• In 1895 Oscar Wilde was sentenced to 2 years of hard labour for acts of gross
indecency
• NZ followed British laws:
• 1893: sodomy was punishable by life in prison with hard labour; indecency between
males up to ten years’ hard labour
• Until 1941 could also get flogging and whipping
• Criminalised in NZ until 1986
• Prosecutions in NZ continued into the 1980s
• In 1973, more than 50 men were convicted for adult homosexual activities – 14
went to prison
The laws not only saw men punished for homosexual acts but they also influenced public attitudes
about homosexuality. There was open discrimination and gay bashing occurred.
Decriminalisation and stopping discrimination
It took many decades to get legislative change in NZ. Before the law could be changed, there was a
need to change society’s attitudes. A number of different initiatives were involved in this:
• Formation of organisations to lobby for change eg Dorian Society and NZ Homosexual Law
Reform Society
• International pressure:
• 1967: UK decriminalised sodomy (10 years after Wolfenden Committee report)
• 1969: US has Stonewall Inn riot in New York
• Growing sexual liberation generally
• Gay music and movies became popular
• Gay clubs emerged
•
Key dates:
• 1967: UK decriminalises homosexual acts
• 1986: NZ decriminalises homosexual acts
• 2003: US Supreme Courts criminalising homosexual acts is contrary to rights in the US
constitution
• 2013: NZ legalises same-sex marriage
Some of the changes above occurred through legislative changes in parliament
• This happened in the UK and NZ where there were not constitutional bills of rights that allow
laws to be struck down for violating rights
Some of the changes above occurred through challenges to laws in courts
• This happened in the US and there is a case where Australia was taken to an international
human rights body
New Zealand
• The road to get legislative change was long
• 1968 NZ Homosexual Law Reform Society petitioned parliament for a change
• 1974: private member’s bill put forward by Venn Young (National)
• 1979: private member’s bill put forward by Warren Freer (Labour)
• 1985/86: Fran Wilde (Labour) put forward a private member’s bill
• Wanted to decriminalise homosexual acts and end discrimination against
homosexuals
• Got the decriminalisation but not the anti-discrimination parts of the bill
• 835 000 NZers signed a petition against the bill
• It passed in 1986 49 votes to 44 votes
•
In 2013, Louisa Wall introduced a private member’s bill to legalise same-sex marriage
• Again there was a lot of debate
• For an example of how some attitudes had changed over time
United States
• When a country has a constitution with rights in it or a supreme bill of rights, it is possible to
argue that a piece of legislation violates rights and should be struck down
• In the US it took a couple of attempts for the Supreme Court to find that criminalising
homosexual acts was contrary to rights in the US constitution
1986: Bowers v Hardwick
Facts
•
Issue
•
Man was arrested in his bedroom for engaging in same sex fellatio
Was the law criminalising same sex fellatio a violation of the right to privacy which is
embedded in the 14th Amendment to the US Constitution
Majority (5-4)
• The right to privacy in the US Constitution does not extend to private homosexual activity
• Proscriptions against homosexual acts have ancient roots and go against Judeo-Christian
standards
Dissent
• The right to privacy does extend to private homosexual activity
• The constitution embodies a promise that a certain private sphere of individual liberty will
be kept largely beyond the reach of government
• Individuals have an interest in controlling the nature of their intimate associations with
others
Lawrence v Texas 2003
Facts
•
Police found Lawrence and Garner having sex in Lawrence’s apartment – Lawrence and
Garner were arrested and convicted
Issue
•
Were the men free as adults to have sex in exercise of their right to privacy under the 14th
Amendment to the US Constitution?
Decision
• The decision in 1986 was wrong
• The court talked about Western civilisation and Judeo-Christian moral and ethnical
standards that go against homosexual acts but they didn’t consider other evidence
• UK decriminalised homosexual acts in 1967
• European Court of Human Rights found the criminalisation of homosexual acts was
contrary to human rights in the early 1980s
• Today most states have decriminalised homosexuality and only four still enforce criminal
laws regarding homosexual acts
Australia
Facts
• In 1994, Tasmania still criminalised homosexual acts
• Mr Toonen took Australia to the UN Human Rights Committee and argued that the law was
contrary to rights in the International Covenant on Civil and Political Rights
Decision
• Tasmania’s law violated the right to privacy and the right not to be discriminated against in
the ICCPR
Law and Rights in Times of Crisis
General issues about rights in times of crisis
• In times of crisis (eg natural disasters, wars, terror attacks and pandemics) executives often
seek to limit people’s rights
• Having some limitations is often understandable and necessary
•
•
•
•
•
•
However, a number of concerns also frequently arise. For example,
Governments overreach and limit rights too much
Governments limit the rights of particular groups eg on the basis of race or religion
Courts frequently are deferential to the executive and refuse to hold the government to
account for breaches of rights
Risk and measures that are designed to be temporary become permanent
Risk and measures that are designed for one form of emergency end up being used for other
purposes
•
International human rights law says that there are some rights that can never be derogated
from. Eg
•
International human rights law says that there are some rights that can never be derogated
from. Eg
• The right to life
• The right to be free from torture
• The right to freedom of thought, conscience and religion
Most rights can be limited in an emergency if
• The limitation is set down in a law
• The limitation is necessary, proportionate and reasonable
• The limitation is not done in a discriminatory way eg it applies to everyone and not
specific groups of people
•
World War II and the UK: The Liversidge Case
Facts
•
•
•
During WWII, there was a regulation that allowed the Home Secretary to intern people if he
had reasonable cause to believe they had hostile associations
The Home Secretary used this power to detain Robert Liversidge
He said that Liversidge was associated from time to time with Germans but provided no
evidence for this
Issue
•
•
Liversidge sought to challenge his detention
He argued that the court should be able to review whether the Home Secretary had an
objective basis for stating that he had reasonable cause to believe Liversidge had hostile
associations – Home Secretary should have to provide evidence for the view
House of Lords Decision
• If the Home Secretary made the decision in good faith then we don’t need to examine his
reasons and he doesn’t need to give a basis for why he locked someone up
• The fact that the order was made shows the Home Secretary believed Liversidge had hostile
associations
World War II and the US: The Korematsu Case
Facts
•
•
After Japan attacked Pearl Harbour in 1941, President FDR issued Executive Order 9066
which enabled the Secretary of War and military commanders to ‘prescribe military
areas…from which any or all persons may be excluded’
This order was used to lock up 120 000 Japanese Americans
•
Fred Korematsu ignored the order that was issued to lock him up. He was arrested and taken
to various camps – he challenged his detention
Issue
• Korematsu argued that it is unconstitutional to lock people up on the basis of race
US Supreme Court
• Compulsory exclusion of large groups of citizens from their homes except under
circumstances of direct emergency and peril is inconsistent with our basic governmental
institutions. But when, under conditions of modern warfare, our shores are threatened by
hostile forces, the power to protect must be commensurate with the threatened danger
• Found that in this case the detention was legal and he was convicted for evading detention
(it was a very controversial decision)
Redress
• A movement for redress began in 1980
• A Special Commission held that grave injustice was committed and recommended that
everyone detained should be paid $20 000
• There were legal efforts to reverse people’s convictions
• Based on ancient writs that required proof of misconduct by the prosecutor
• Evidence was found that evidence of the fact that there was no threat or evidence of
disloyalty was deliberately suppressed
• Courts overturned the convictions
• In 1998 President Clinton gave him the Presidential Medal of Freedom
9/11
US
•
•
•
World Trade Centre and Pentagon were hit by planes on 9/11 2011 by Al Qaeda
US responded by launching the War on Terror
In addition to launching military campaigns against Al Qaeda and other groups in numerous
countries, the US:
• Set up a detention centre at Guantanamo Bay where people caught during the War
on Terror were indefinitely detained without charge or trial
• Carried out enhanced interrogation practices
• Conducted racial profiling within the US
•
In 2002, NZ passed the Terrorism Suppression Act to deal with terrorist groups and terrorist
incidents
The legislation was drafted broadly and ended up being used in 2007 to carry out raids on
Tūhoe in the Urewera ranges
• Roadblocks, police with guns boarded as school bus, armed police searched 60
houses, arrested 18 people
Cases were referred to the Solicitor-General for prosecution
• The Solicitor General said there were no grounds to proceed with the prosecutions
under the Act
• Said the Act was too complex, incoherent and almost impossible to apply in the
circumstances
4 people were charged with possessing firearms; the community was traumatised
Police apologised in 2014
NZ
•
•
•
•
Covid-19
•
•
•
•
•
•
During level 4, measures were taken to put the country into lockdown and require people to
stay home and not go to public places
Questions have been raised about whether the orders were authorised by legislation –
currently being challenged in the courts
At the start of level 2, new legislation was passed to give the government the ability to make
orders to keep people at home, tell them not to go to certain places, set up roadblock etc
It was passed extremely quickly without going through the usual legislative processes
Concerns that the legislation violates rights and te Tiriti o Waitangi
Pressure has lead to a decision to start the select committee process now even though the
legislation has entered into force
Immigration Law and Rights
•
•
•
•
The fundamental idea behind human rights is that everyone should be treated equally and
with dignity
One of the problems with realising this idea in the world today is that the world is split into
different states
Different states treat people differently
States have the power to exclude people from being in their territory and to treat outsiders
differently
Immigration to NZ
•
•
•
•
Māori came from the 13th century
For much of the 19th century there were no immigration laws
People could just come
The people coming were British – mainly via the NZ Company and other organisations
Started to get immigration laws in the 1880s
Many of the early immigration laws were designed to respond to the arrival of Chinese people
• Chinese Immigrants Act 1881
• 1 Chinese person for every 10 tons of ship
• £10 pounds for every Chinese person
• In 1896 the law changed to 1 Chinese person for every 200 tons of ship and £100 poll tax
• In 1899 there were attempts to exclude Asian immigration more broadly and English
language tests were introduced
• Plus in the 1890s Chinese were excluded from the Old Age pension
Throughout much of the 20th century NZ had explicitly discriminatory immigration laws
In 1919 the parliament passed the Undesirable Immigrants Exclusion Act 1919
• Germans and Austro-Hungarians could not enter without express permission from AG
• Others could be banned if they were disloyal or disaffected or not of good character
In 1920 there were further restrictions placed on Asian immigration
• Other devices used in the 20th century: quotas, workplace restrictions, language tests and
limitations on who could become naturalised citizens
• Many of these laws remained in place until the 1970s and 1980s
In the 1980s there was a change in approach to immigration
• There was a focus on allowing immigrants into NZ if they had particular skills, money and
professional experience – the aim was to bring in people who would help the economy
• Points system
This system was sold as being neutral and non-discriminatory
• There have been challenges in recent years to the idea that NZ now has neutral, nondiscriminatory immigration laws – what might be the bases of these challenges?
Pacific
NZ has had a long interest in the Pacific
• In the 19th century we were involved in the slave trade in the Pacific
• Slaves to Peru
• Slaves to NZ
• Government looked to colonise the Pacific from 1880s onwards
• Cook Islands (1901), Niue (1901) and Tokelau (1925)
• Attempted to annex the Pacific after WWI
• Got a mandate over Western Samoa and Nauru
In the 1960s, NZ needed more migrants for labour so they brought in Pacific Islanders on short term
visas.
In the 1970s there was an economic downturn and unemployment concerns
• The government cracked down on visa overstayers from the Pacific (but not overstayers
from other parts of the world)
• Dawn raids in the 1970s: police raided homes in the middle of the night and deported Pacific
Islanders; and stopped them on the street and at their places of work and demanded to see
their passports
• Prosecuted Pacific overstayers but very few others
Citizenship Dispute
In the early 1980s questions arose as to whether people who had been born in Western Samoa
when it was under NZ control were entitled to NZ citizenship
• A woman who had been born in Western Samoa during NZ rule (Lesa) brought a case
asserting that she was entitled to NZ citizenship
• The case went all the way to the Privy Council
• The Privy Council declared that she was entitled to NZ citizenship
• The government passed legislation that changed the law
• People born in Western Samoa during NZ rule were not entitled to NZ citizenship
• There was a petition to undo this law in the early 21st century but it didn’t persuade
the government to change
Part E 30-32 Constitutional Directions
Treaty Settlement Processes
There was growing pressure on the Labour government (1972-1975) to hear grievances about the
treaty so the Waitangi Tribunal was created by legislation in the Treaty of Waitangi Act 1975
•
•
•
•
Functions and Powers of the Tribunal
Look at breaches of treaty principles
Initially only after 1975 but from 1985 could look at breaches from 1840
Make recommendations not binding decisions
Look at and report on whether proposed legislation was compliant with the principles of the
treaty
•
•
Who can bring a claim?
Tribunal can’t start a case by itself
Need a claimant who is Māori and who has been prejudicially affected by an act (an act can
be legislation, regulations, policies or practices of the Crown)
•
•
•
What does the Tribunal do?
Tribunal is not a court – it is a Commission of Inquiry
Has looser rules of evidence, flexible where it sits, more flexible procedures
The Tribunal is tasked with looking at both versions of the treaty and is empowered how to
deal with differences between the two versions
•
•
•
•
Who sits on the Tribunal?
Initially it had 3 people: CJ of the Māori Land Court and two others (one of whom had to be
Māori)
Overtime the Tribunal’s workload has increased and it has taken on more people
Today it has up to 20 people
•
•
•
What approach has the Tribunal taken to cases?
Early on it took a narrow approach
When CJ Durie took over there was a more assertive approach
Today the Tribunal takes quite a legalistic approach
•
•
•
•
•
•
•
•
Treaty settlements
Going to the Waitangi Tribunal is not the only way to deal with grievances
Can also negotiate directly with the Crown
Some Māori have gone to the Tribunal first and then negotiated
Some have been frustrated by delays in the Tribunal and so have begun negotiations with
the Crown without going to the Tribunal
Government Approaches to settlements
Across the last few decades there have been different approaches to treaty settlements by
different governments
For example, in the 1990s, the National government proposed a fiscal envelope
$1 billion to settle all Māori claims
Māori saw it as a breach of the treaty
•
•
•
•
•
•
Since the 1990s, other governments have taken different approaches
Crown acknowledges its past actions – there is an historical account of what happened that
is agreed between the parties and the Crown apologises
Cultural redress: e.g. changing place names, transferring land, co-governance of lakes and
rivers
Commercial and financial redress
There is a recognition that full compensation for grievances is not possible
In 2017:
 85 deeds of settlement had been completed
 61% of expected cases finished
 53 claimant groups still to complete negotiations
 Concerns that have been raised:
 Only $2.2 billion has been spent on the settlements
 On average less than 1% of land has been returned
 Research has revealed that many Māori find the process traumatising and it has
divided communities
Racism
Racism in the US
The protests in the US are about what happened to George Floyd and how it is connected to a long
history of oppression and racism against African Americans
•
•
•
Slavery until the second half of the 19th century
Legal segregation and limited voting rights until the second half of the 20th century
Today an array of discriminatory measures, attitudes and systems continue; and no
reparation for past wrongs and harm
Racism in NZ
Long history of explicitly racist laws practices in NZ
• Colonisation – Māori lost more than 95% of their land
• The immigration laws explicitly discriminated against people from China and other nations
• Segregation in many parts of NZ life well into the second part of the 20th century
• Dawn raids in the 1970s
• These explicitly racist policies have had long term consequences and caused intergenerational trauma
• Today, our laws may no longer be explicitly racist but racism is not just about explicitly,
intentional laws, acts or policies
• In NZ today:
• 1 in 10 Pākehā families live in poverty; 1 in 5 Māori and Pasifika families live in
poverty
• The unemployment rate for Pasifika is 3 times that of the general population
• 51% of the prison population is Māori (Māori make up 15% of the population)
• 66% of the people shot by police in the last 10 years have been Māori
• Systemic racism is when policies, procedures and institutions disproportionately exclude
people of colour
• Sometimes it is quite easy to see but at other times it isn’t so obvious or explicit that
systems operate ways that privilege white people, white worldviews, white approaches and
white forms of knowledge
The Seabed and Foreshore Case
•
•
• Foreshore: area between the high tide and low tide marks
• Seabed: land covered by sea up to 12 nautical miles offshore
Issues over the seabed and foreshore in NZ have been long standing
Multiple bodies of law relate to it:
• Tikanga
• Te Tiriti o Waitangi and the Treaty of Waitangi
• Common law
Re Ninety-Mile Beach 1962:
•
•
•
Māori sought recognition of their rights on Ninety Mile beach
Court ruled that the Crown had assumed sovereignty over NZ – followed Wi Parata
The case has been severely criticised for suggesting the Crown had absolute rights to
land
Ngati Apa v Attorney-General (2003)
Facts
•
•
•
8 iwi pursued claims to the seabed and foreshore in Marlborough in the Māori Land Court –
asserted they had customary rights to the area
Māori Land Court decided that it was prepared to hear the claim
The decision to hear the claim was appealed (before the claim was actually heard)
Court of Appeal decision
• The Māori Land Act gives the Māori Land Court jurisdiction to decide whether iwi have
customary rights to seabed and foreshore
• It is likely that very few claimants will be able to meet the legal test to show they have
customary rights
• Have to show that there has been an ongoing relationship since 1840 and that the
customary rights have not been extinguished
• Narrow judgment: just saying that Māori have the right to have their claims heard
Government response
• The day after the case, the PM announced steps would be taken to confirm the Crown had
absolute title over the seabed and foreshore – needed to establish that the beaches and
seabed are for all NZers
• Attorney-General said she would introduce legislation to make it clear the Crown
owned the foreshore and seabed
• Seabed and Foreshore Bill 2004 was introduced
• Vests ownership of the foreshore and seabed in the Crown
• Provides for public access
• Didn’t apply to existing non-Māori foreshore ownership
• Some provision for Māori to claim customary rights and seek redress for them and
participate in decision making but no ability to assert full customary rights
Objections to the bill
• Tikanga objections
• Treaty objections
• Violation of due process rights
• Property rights of non-Māori not affected
This doesn’t sit well with the Crown’s argument that it needed to take this action to ensure free
access to beaches. The assertion from Labour that Māori customary rights will not be affected was
undermined by the fact that the Crown has ownership rights over the seabed and foreshore
Tribunal claim
• A claim was lodged in the Waitangi Tribunal arguing that the government’s approach was a
violation of the Treaty
• Tribunal report said:
• Yes there is a breach
• The government's approach raises 3 problems
• Overrides the rule of law by denying Māori access to the courts and
abrogating rights without compensation
• The Crown is overriding property rights
• There are poor processes for securing Māori participation in decisionmaking
• Tribunal says that the right solution is for an affirmation that Māori have not given up
ownership of the seabed and foreshore and full restoration of tino rangatiratanga
• This isn’t on the political agenda though and the Tribunal is tasked with coming up
with practical solutions so the Tribunal offers some other approaches
• Other options:
• The long conversation
• Do nothing and let the case proceed
• Provide for public access and inalienability of rights
• Improve the courts’ toolkit
• Have management involving the Crown and Māori
• Be consistent with other settlements/resolutions
• Provide compensation
Public Response
• Despite the Waitangi Tribunal report and 94% of public submissions on the bill opposing it,
the bill was turned into law
• Many Māori MPs in the Labour Party broke away and formed the Māori Party
• In 2008 election, National came to power with a confidence and supply agreement with the
Māori Party
• Said it would repeal the 2004 legislation
Marine and Coastal Area Bill 2010
• Repealed Labour’s act but replaced it with provisions that had strong similarities
• Renames ‘seabed and foreshore’ as the ‘marine and coastal area’
• States that it is a common space
• Nobody owns the marine and coastal area but the Crown has control over it
• Guaranteed public access
• Iwi and hapū may seek customary rights in the common space (both land and marine title)
• These rights do not give them freehold title
• Only have six years to make a claim
• Have to prove they have had the rights continuously since 1840
• Negotiate the rights with the Crown or get them from the High Court in a
recognition order
• Iwi, hapū and whanau can participate in the conservation processes in the marine and
coastal area
Constitutional change
Currently
• NZ is a constitutional monarchy
• We don’t have a single written constitution
• The rules in NZ are set out in a number of different places:
• NZ legislation
• UK legislation
• Treaty / Tiriti
• International law
Reasons for changing to a single written constitution
 Make the law accessible and known
 Create a greater check on state power
 Provide greater protection to rights, institutions and values
Reasons against changing to a single written constitution
 If it’s not broken, why fix it?
 There’s flexibility in it
 Don’t want unelected judges to have too much power
Different views on the future of the Treaty/Tiriti
• The treaty is fundamental to how the country is governed
• Have a treaty based multicultural future
• Treaty has no role in the governance of NZ
Options for the Treaty
• Place the treaty at the centre of our constitutional system
• Take steps to accommodate particular rights and obligations
• Confirm treaty as a tool of interpretation
• Make the treaty a standard for good process
• Make all legislation consistent with the treaty
• Establish a treaty court
• Create an upper treaty house in parliament
• Entrench treaty rights to reduce their vulnerability to change
• Maintain existing system
• Have a constitution without the treaty
The future of the NZBORA
At the moment, NZBORA:
• Sets out a number of civil and political rights
• Cannot invalidate legislation that is inconsistent with rights
Possible options for reform
• Make it supreme law – If there is legislation that violates it, the courts can strike it down
• Entrench it – make it harder to change (requiring more than just 50% in parliament,
requiring a higher % vote in parliament or nation wide referendum)
•
•
Include economic, social and cultural rights
Improve the existing procedures around NZBORA
Possible reasons not to change NZBORA
• Parliament should make decisions about rights because MPs are elected
• Don’t want to risk politicising judicial appointments, as they will have more power under
reforms
Other reforms
•
•
•
•
Move to being a republic - Have a NZ head of state not the Queen
Change the flag, remove the Queen from our money
Change the national anthem
Change the parliamentary term from 3 to 4 or 5 years