| Constitution Act 1986 | |
|---|---|
 | |
| New Zealand Parliament | |
| |
| Passed | 13 December 1986 |
| Commenced | 1 January 1987 |
| Amended by | |
| 1987, 1999, 2005 | |
| Related legislation | |
| New Zealand Bill of Rights Act 1990, theElectoral Act 1993 | |
| Status: Current legislation | |
TheConstitution Act 1986[1] is anact of theNew ZealandParliament that forms a major part of theconstitution of New Zealand. It lays down the framework defining fundamental political principles of governance, and establishes the powers of the executive, legislative and judicial branches of state. It outlines the roles and duties of themonarch, thegovernor-general,ministers and judges. The Act repealed and replaced theNew Zealand Constitution Act 1852 and theStatute of Westminster, and removed the ability of theBritish Parliament to pass laws for New Zealand with the consent of the New Zealand Parliament.
After the1984 election there was an awkward transfer of power from the outgoingThird National government to the newFourth Labour government in the midst of a financial crisis. Outgoing Prime Minister SirRobert Muldoon was unwilling initially to accept instructions from incoming Prime MinisterDavid Lange to devalue the currency. Ministers hurriedly constructed an argument to convince Muldoon to comply, drawing on the ethos of past transitions, as there was no convention.[2] Eventually he relented, but only after his own party caucus had threatened to replace him. A press statement was made on 17 June outlining the behaviour of outgoing governments, which was dubbed the "caretaker convention".[3]
An Officials Committee on Constitutional Reform was established by the Labour Government to review New Zealand's constitutional law, and the Constitution Act resulted from two reports by this committee. The issue of the transfer of power from outgoing to incoming governments (and hence prime ministers) was not resolved by this Act, however, and the transfer ofexecutive powers remains a matter of unwrittenconstitutional conventions.
The Officials Committee on Constitutional Reform reported back to Parliament during February 1986.[4] The Committee recommended that New Zealand adopt an Act to restate various constitutional provisions in a single enactment that would replace the New Zealand Constitution Act 1852, thus "patriating" the Constitution Act to New Zealand.
The recommendation followed events in Canada, which had recentlypatriated its own constitution, and Australia, which had recently removed any residual power of the British parliament to legislate in Australia. The Canadian Parliament began the process by passing theConstitution Act, 1982, and the British Parliament had renounced its right to pass legislation on behalf of Canada in theCanada Act 1982. The Australian Parliament passed theAustralia Act 1986 in 1985, and the British Parliament would pass its own Act in February 1986. This left New Zealand as the only original Dominion from 1931 that still had residual constitutional links to the United Kingdom.
A bill was introduced into Parliament during mid-1986, and was passed unanimously with the support of both the Labour and National parties on 13 December 1986. The act came into force on 1 January 1987. Amendments were passed during 1987 and 1999.
The Act repealed theNew Zealand Constitution Act 1852, renamed the General Assembly as the "Parliament of New Zealand" and ended the right of theParliament of the United Kingdom to make laws for New Zealand.
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The Act consists of four main parts:
Only section 17 of the Act, which says that the term of Parliament is "three years from the day fixed for the return of the writs issued for the last preceding general election of members of the House of Representatives, and no longer", isentrenched, by section 268 of theElectoral Act 1993. This provision requires that any amendment to section 17 can be made only by a majority of three-quarters of all votes cast in Parliament, or by a referendum. Section 268 of the Electoral Act 1993 itself is not entrenched, which means that Parliament could repeal the section and then amend section 17 of the Act. Thus, the provision is said to only be "singly entrenched". Some academics, includingSir Geoffrey Palmer,[5] argue that the whole of the Constitution Act should be entrenched.
The Act replaced theNew Zealand Constitution Act 1852, repealed theStatute of Westminster Adoption Act 1947 and removed the ability of the United Kingdom to pass laws for New Zealand with the consent of New Zealand's Parliament.
Unlike Canada, New Zealand was able to patriate its constitution without British approval. The British Parliament had already passed theNew Zealand Constitution Amendment Act 1947, as requested by the New Zealand Parliament in theNew Zealand Constitution Amendment (Request and Consent) Act 1947. The British Act allowed the Parliament of New Zealand to amend any part of the 1852 Act, including the abolition of theLegislative Council in 1951. Prior to that, a number of sections of the 1852 Act were unable to be amended by the Parliament of New Zealand, such as provisions establishing the Parliament itself.
Comparable acts