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NEW ZEALAND JOURNAL of PUBLIC and INTERNATIONAL LAW NEW ZEALAND CENTRE for PUBLIC LAW Te Wananga O Nga Kaupapa Ture a Iwi O Aotearoa

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NEW ZEALAND JOURNAL of PUBLIC and INTERNATIONAL LAW NEW ZEALAND CENTRE for PUBLIC LAW Te Wananga O Nga Kaupapa Ture a Iwi O Aotearoa LAW OF PUBLIC AND INTERNATIONAL NEW ZEALAND JOURNAL 3 VOL NO 1 JUNE 2005 NEW ZEALAND CENTRE FOR PUBLIC LAW Te Wananga o nga Kaupapa Ture a Iwi o Aotearoa New Zealand Journal of Public and International Law NZCPL OCCASIONAL PAPERS 1 Workways of the United States Supreme Court Justice Ruth Bader Ginsburg 2 The Role of the New Zealand Law Commission Justice David Baragwanath 3 Legislature v Executive-The Struggle Continues: Observations on the Work of the Regulations Review Committee Hon Doug Kidd 4 The Maori Land Court-A Separate Legal System? Chief Judge Joe Williams 5 The Role of the Secretary of the Cabinet-The View from the Beehive Marie Shroff 6 The Role of the Governor-General Dame Silvia Cartwright 7 Final Appeal Courts: Some Comparisons Lord Cooke of Thorndon 8 Parliamentary Scrutiny of Legislation under the Human Rights Act 1998 Anthony Lester QC 9 Terrorism Legislation and the Human Rights Act 1998 Anthony Lester QC 10 2002: A Justice Odyssey Kim Economides VOLUME 3 • NUMBER 1 • JUNE 2005 • ISSN 1176-3930 11 Tradition and Innovation in a Law Reform Agency SPECIAL CONFERENCE ISSUE: PARLIAMENT Hon J Bruce Robertson 12 Democracy Through Law Lord Steyn THIS ISSUE INCLUDES CONTRIBUTIONS BY: 13 Hong Kong's Legal System: The Court of Final Appeal Hon Mr Justice Bokhary PJ 14 Establishing the Ground Rules of International Law: Where To from Here? Hon Dr Michael Cullen Andrew Geddis Bill Mansfield Jeffrey Goldsworthy Claudia Geiringer 15 The Case that Stopped a Coup? The Rule of Law in Fiji George Williams Lord Cooke of Thorndon Neill Atkinson Terence Arnold QC Grant Morris Available from the New Zealand Centre for Public Law Janet L Hiebert Faculty of Law, Victoria University of Wellington, PO Box 600, Wellington, New Zealand e-mail [email protected], fax +64 4 463 6365 FACULTY OF LAW Te Kauhanganui Tatai Ture © New Zealand Centre for Public Law and contributors Faculty of Law Victoria University of Wellington PO Box 600 Wellington New Zealand June 2005 The mode of citation of this journal is: (2005) 3 NZJPIL (page) The previous issue of this journal is volume 2 number 2, November 2004 ISSN 1176-3930 Printed by Stylex Print, Palmerston North Cover photo: Robert Cross, VUW ITS Image Services CONTENTS Foreword Alberto Costi................................................................................................................................... vii Parliament: Supremacy over Fundamental Norms? Hon Dr Michael Cullen .....................................................................................................................1 Is Parliament Sovereign? Recent Challenges to the Doctrine of Parliamentary Sovereignty Jeffrey Goldsworthy............................................................................................................................7 The Myth of Sovereignty Lord Cooke of Thorndon...................................................................................................................39 Parliament and the Courts: Arm Wrestle or Handshake? Terence Arnold QC..........................................................................................................................45 Rights-Vetting in New Zealand and Canada: Similar Idea, Different Outcomes Janet L Hiebert.................................................................................................................................63 The Unsettled Legal Status of Political Parties in New Zealand Andrew Geddis ..............................................................................................................................105 Judging the Politicians: A Case for Judicial Determination of Disputes over the Membership of the House of Representatives Claudia Geiringer ..........................................................................................................................131 Parliament and the People: Towards Universal Male Suffrage in 19th Century New Zealand Neill Atkinson................................................................................................................................165 James Prendergast and the New Zealand Parliament: Issues in the Legislative Council during the 1860s Grant Morris .................................................................................................................................177 165 PARLIAMENT AND THE PEOPLE: TOWARDS UNIVERSAL MALE SUFFRAGE IN 19TH CENTURY NEW ZEALAND Neill Atkinson* While much has been written about women's suffrage and separate Maori representation in New Zealand, less attention has been paid to the third great expansion of the electoral franchise in the 19th century: the granting of the vote to all adult European men in 1879. This paper traces New Zealand's struggle towards universal male suffrage from the 1850s to 1879 and considers its role in shaping a new era of parliamentary politics in the 1880s and beyond. New Zealanders generally think of themselves as belonging to a young nation, but over 150 years of parliamentary elections – and more than a century of universal adult suffrage – makes this country one of the world's oldest continuous democracies. Indeed, New Zealand can with some justification claim to have been the world's first truly democratic nation. Within four decades of the establishment of responsible government in the mid- 1850s, the colonial Parliament had significantly extended the scope of the already comparatively broad electoral franchise established under the United Kingdom's New Zealand Constitution Act 1852 (UK). By granting the right to vote to adult Maori males in 1867, to all European men in 1879 and – most famously – to women in 1893, New Zealand led the world in the democratisation of government. Certainly, universal adult suffrage was attained here decades before it was achieved in older democracies such as the United Kingdom and the United States. Much has been written about New Zealand's world-leading campaign for women's suffrage, while the development and continued existence of separate Maori representation remains a contentious topic. Considerably less attention, however, has been paid to the * Historian, Ministry for Culture and Heritage. This paper is based on research for the book Adventures in Democracy: A History of the Vote in New Zealand (University of Otago Press in association with the Electoral Commission, Dunedin, 2003). 166 (2005) 3 NZJPIL third great expansion of the electoral franchise in the 19th century: the introduction of universal male (or "manhood") suffrage in 1879. Yet this reform, which followed a decade of passionate parliamentary debates and numerous false starts, arguably had a greater immediate impact on the character of New Zealand politics and the personnel of the House of Representatives than either Maori or women's suffrage. New Zealand's electoral framework was established by the Constitution Act 1852 (UK). In line with British political tradition, the right to vote was defined by sex, nationality, age and the possession of property. All male British subjects aged 21 years or older were able to register and vote in any electoral district in which they: (a) owned a freehold estate of the capital value of £50 or more, and had done so for at least six months prior to registration; or (b) possessed a leasehold estate of the annual value of £10, and either had done so for at least three years prior to registration or had three years left to run on the lease; or (c) were householders occupying a dwelling with an annual rental value of £10 (within the limits of a town) or £5 (outside a town), and had resided there for at least six months.1 Specifically excluded were "aliens" (that is, non-British subjects) and any person convicted of treason, felony or another "infamous" offence, unless he had received a free pardon or completed his sentence.2 Any registered voter was eligible to stand for election. This was no "one man, one vote" system: freeholders and leaseholders could register and vote in every electorate in which they held property (although they could only vote once in each district, regardless of how many properties they possessed there). This practice, known as "plural voting", was justified on the grounds that property owners had a legitimate "stake" in a district, even if they did not normally reside there. It was facilitated by the fact that until 1881 voting in different electorates was usually held on different days; moreover, polling stations for rural districts were usually close to – or sometimes even in – adjacent urban centres.3 In multi-member seats (in 1853 there were 1 New Zealand Constitution Act 1852 (UK), ss 7, 42. 2 New Zealand Constitution Act 1852 (UK), s 8. The term "infamous" was applied to treason, felonies and other serious offences (as distinct from misdemeanours), including "crimes against nature", such as buggery, bestiality and incest, and dishonesty offences, such as perjury and forgery. 3 See Neill Atkinson Adventures in Democracy: A History of the Vote in New Zealand (University of Otago Press, Dunedin, 2003) 27, 38. In 1853, for example, the only polling stations for the Christchurch Country seat, which on paper covered about a third of the South Island, were at the resident magistrate's offices in Christchurch and Lyttelton, (30 July 1853) Lyttelton Times Lyttleton 1. This was an arrangement that obviously encouraged plural voting by absentee country landowners residing in those towns. UNIVERSAL MALE SUFFRAGE IN 19TH CENTURY NEW ZEALAND 167 two three-member and nine two-member districts) electors were
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