Nzcpl Conference 2013

Total Page:16

File Type:pdf, Size:1020Kb

Nzcpl Conference 2013 13 FACULTY OF LAW NZCPL Conference 2013 “Unearthing New Zealand’s Constitutional Traditions” T IS OFTEN SAID that New Zealand’s dominant constitutional tradition is pragmatism – 29-30 August 2013 Ithe “number eight wire” approach to constitutional change. But this hides other, and Parliament Buildings often richer, narratives from our constitutional past. This conference seeks to take a Wellington, New Zealand deeper look at, and to shed more light on, the fundamental ideals on which our constitution is based. It will carry on the Centre for Public Law’s own tradition of inquiry Hosted by: into our constitution by bringing together a number of distinguished scholars from New Hon Chris Finlayson QC Zealand and abroad to reflect on these important questions and to begin unearthing the Attorney-General of country’s traditions of constitutional thought. New Zealand Keynote speakers: Professor Philip Joseph For more information or to register Professor David Hackett Fischer University of Canterbury your interest, please contact: University Professor and Earl Warren Professor Rt Hon Sir Kenneth Keith Events Coordinator of History at Brandeis University International Court of Justice New Zealand Centre for Public Law, Emeritus Professor Andrew Sharp Professor Geoff McLay Fellow in New Zealand Studies, Birkbeck College, Law Commission/ Phone +64-4-463 6327 University of London/University of Auckland Victoria University of Wellington Email [email protected] Opening address: Professor Janet McLean www.victoria.ac.nz/nzcpl-conference Rt Hon Dame Sian Elias University of Auckland Chief Justice of New Zealand Dr Grant Morris Other speakers include: Victoria University of Wellington Professor Richard Boast Rt Hon Sir Geoffrey Palmer QC Victoria University of Wellington Victoria University of Wellington Dr Petra Butler Dr Matthew Palmer Thorndon Chambers Victoria University of Wellington Professor Tony Smith Professor Shaunnagh Dorsett Victoria University of Wellington University of Technology Sydney Mamari Stephens Dr Kirsty Gover Melbourne Law School Victoria University of Wellington Dr Mark Hickford Dr Damen Ward Department of Prime Minister and Cabinet Senior Associate, Simpson Grierson Catherine Iorns Professor David Williams Victoria University of Wellington University of Auckland Moana Jackson Te Wananga o Raukawa The New Zealand Centre for Public Law Dr Carwyn Jones acknowledges the generous financial support of Victoria University of Wellington the New Zealand Law Foundation for this event..
Recommended publications
  • What the New Zealand Bill of Rights Act Aimed to Do, Why It Did Not Succeed and How It Can Be Repaired
    169 WHAT THE NEW ZEALAND BILL OF RIGHTS ACT AIMED TO DO, WHY IT DID NOT SUCCEED AND HOW IT CAN BE REPAIRED Sir Geoffrey Palmer* This article, by the person who was the Minister responsible for the introduction and passage of the New Zealand Bill of Rights Act 1990, reviews 25 years of experience New Zealand has had with the legislation. The NZ Bill of Rights Act does not constitute higher law or occupy any preferred position over any other statute. As the article discusses, the status of the NZ Bill of Rights Act has meant that while the Bill of Rights has had positive achievements, it has not resulted in the transformational change that propelled the initial proposal for an entrenched, supreme law bill of rights in the 1980s. In the context of an evolving New Zealand society that is becoming ever more diverse, more reliable anchors are needed to ensure that human rights are protected, the article argues. The article discusses the occasions upon which the NZ Bill of Rights has been overridden and the recent case where for the first time a declaration of inconsistency was made by the High Court in relation to a prisoner’s voting rights. In particular, a softening of the doctrine of parliamentary sovereignty, as it applies in the particular conditions of New Zealand’s small unicameral legislature, is called for. There is no adequate justification for maintaining the unrealistic legal fiction that no limits can be placed on the manner in which the New Zealand Parliament exercises its legislative power.
    [Show full text]
  • Parliamentary Sovereignty As a Barrier to a Treaty-Based Partnership
    LYDIA O’HAGAN PARLIAMENTARY SOVEREIGNTY AS A BARRIER TO A TREATY-BASED PARTNERSHIP LLM RESEARCH PAPER LAWS 526: COMPARATIVE CONSTITUTIONALISM FACULTY OF LAW 2014 2 Contents Abstract .......................................................................................................................... 3 Word length ................................................................................................................... 3 I Introduction ................................................................................................................. 4 II The Treaty of Waitangi and Parliamentary Sovereignty in New Zealand ........... 6 A The Treaty of Waitangi: What is it and what does it provide for? ................... 7 B The Orthodox Doctrine of Parliamentary Sovereignty .................................... 10 C The Drift of Parliamentary Sovereignty onto New Zealand shores ................ 11 1 Crown acquisition of sovereignty .................................................................... 12 2 Development of Crown-in-right of New Zealand ........................................... 16 III Tension between Parliamentary Sovereignty and the Treaty ............................. 17 A The Treaty in Legislation ..................................................................................... 18 1 Early Recognition: Section 71 of the New Zealand Constitution Act 1852 (UK) .......................................................................................................................... 18 2 Incorporation into domestic
    [Show full text]
  • 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 VOL NEW ZEALAND CENTRE FOR PUBLIC LAW Te Wananga o nga Kaupapa Ture a Iwi o Aotearoa New Zealand Journal of NZCPL OCCASIONAL PAPERS Public and International Law 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 11 Tradition and Innovation in a Law Reform Agency VOLUME 4 • NUMBER 1 • JUNE 2006 • ISSN 1176-3930 Hon J Bruce Robertson SPECIAL CONFERENCE ISSUE: THE EXECUTIVE 12 Democracy Through Law Lord Steyn 13 Hong Kong's Legal System: The Court of Final Appeal THIS ISSUE INCLUDES CONTRIBUTIONS BY: Hon Mr Justice Bokhary PJ 14 Establishing the Ground Rules of International Law: Where To from Here? Bill Mansfield Sir Geoffrey Palmer Evan Fox-Decent 15 The Case that Stopped a Coup? The Rule of Law in Fiji 4 George Williams NO Elizabeth McLeay Dean Knight 16 The Official Information Act 1982: A Window
    [Show full text]
  • Extraordinary Powers and Political Constitutionalism
    EXTRAORDINARY POWERS AND POLITICAL CONSTITUTIONALISM Sascha Mueller* Abstract During times of emergency situations extraordinary powers may be vested in the executive in order to prevent or reduce its impact. Emergency legislation is usually explicit about its extraordinary nature and requires triggers that enable the executive to use extraordinary powers. However, in recent times, New Zealand’s parliament has passed legislation that contains extraordinary powers, yet does neither draw attention to its extraordinary status, nor requires any triggers. As these acts did not directly deal with a threat to life or property, but instead likely had an economic purpose, it appears that Parliament created extraordinary powers out of convenience, rather than necessity. Due to New Zealand’s political constitution, acts of parliament cannot be challenged in court. This approach bears the danger of executive creep, where the executive gets more and more power in order to “get things done”, with little regard to constitutional safeguards. I. Introduction In 2010, the New Zealand Parliament passed the Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010 (ECan Act) in response to an alleged inability of the regional council, Environment Canterbury, to effectively manage Canterbury’s water resources.1 Between 2006–2008, Environment Canterbury had failed to meet the vast majority of statutory time limits when processing resource consent applications.2 Canterbury is the home of a large part of both irrigated land and water consumption in New Zealand, and the government decided to pass urgent legislation to rectify the situation. The ECan Act was passed under urgency in March 2010, and it contained several constitutionally significant provisions.
    [Show full text]
  • Rethinking Electoral Reform Processes After the Report of the Electoral Commission on the Review of the MMP Voting System
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by ResearchArchive at Victoria University of Wellington ASHLEIGH BENNETT Rethinking Electoral Reform Processes after the Report of the Electoral Commission on the Review of the MMP Voting System Submitted for the LLB (Honours) Degree Faculty of Law Victoria University of Wellington 2013 2 Contents I Introduction II The Electoral Commission’s Report A The Review B The Recommendations III The Response from the Government and Parliament A The Response B Consensus and Electoral Rules IV The Constitutional Implications A The Issue B Partisan self interest (a) The party vote threshold (b) The one electorate seat exception C Undermining the Democratic Process D Democratic Legitimacy and the Democratic Deficit E Finding a Solution (a) Introducing ‘deliberative’ processes (b) Citizens’ Assemblies on Electoral Reform (c) Introducing a ‘citizen initiated’ mechanism V Conclusion VI Bibliography Abstract The 2012 Report of the Electoral Commission on the Review of the MMP system recommended that several changes be made to the way in which future parliaments are elected in New Zealand. The lack of legislative response to the recommendations highlighted an issue inherent in New Zealand’s constitutional arrangements - that changes to electoral rules are designed and enacted by politicians, and there is no mechanism through which citizens can initiate or meaningfully engage with electoral reform processes. This paper looks at whether there is a better way that such proposals for electoral rule changes could be managed, proposing the use of ‘citizen initiated’ Citizens’ Assemblies on Electoral Reform. Key Words Constitution, Electoral Reform, Citizens’ Assembly, Deliberative Democracy, Citizen Initiated 3 I Introduction This report is about our democracy.
    [Show full text]