Daniela Muth I. Introduction

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Daniela Muth*

I. Introduction

New Zealand and Germany are about 23,000 kilometres away from each other. For a German, New Zealand is 'at the other end of the world', and for a New Zealander it feels the other way round. The question is whether or not the two legal systems also mirror this great distance. Are there extreme differences or are the basic conceptions of both countries quite similar? This paper examines the fundamentals of the legal systems of New Zealand as well as of Germany. Through a critical comparison it will be investigated which legal conception leads to more benefits and provides the people - in the long-term - with the better solution. This depends on the ability of a legal system to distribute responsibility and to limit power. If all goes well in a society, nobody worries about constitutional limitations of power. Every legal system is fine as long as the rulers exercise their power responsibly. But the true value of a legal system becomes clear when powerful bodies seek to abuse their power. In this situation the fundamentals of a legal system should provide safeguards that maintain democracy and the rule of law. Only if a legal system can ensure such a protection is it valuable to the people. It is easy to say that an abuse of power is hypothetical and very unlikely. That may be so. But to offer solutions in problematic - and maybe hypothetical - situations, is the nature of legal rules. Therefore, a legal system should be steeled for when the case occurs. According to this premise, the basic conceptions of New Zealand and Germany will be investigated. In Part II it will be shown which kind of constitutional framework sets the basis for the two legal systems. Part III is focused on two constitutional principles which complement these constitutional frameworks.

II. Constitutional framework

A constitution is about power - the power of the state. It is the framework within which the law is created, serviced and administered. It describes and prescribes the major institutions of government, specifying and regulating their principal powers.1 Therefore, it provides the source of the powers and functions of the different branches of government. It also establishes the rights of citizens, and regulates the relationship between the state and the individual.

This general definition enables countries such as New Zealand to claim the existence of a constitution, despite the absence of a written document containing all its constitutional principles. This makes clear that a constitution does not require a special form. Rather any constitution is undoubtedly the product of history and a creature of time.

Today several types of constitutions exist, which all reflect their historical development. Also the constitutional frameworks of Germany and New Zealand were mainly influenced by legal history. Each of them symbolizes today one main type of constitution. In Part II similarities and differences between these conceptions will be shown and examined with regard to their effectiveness and their benefits to the people.

Sources of the Constitution of New Zealand

New Zealand does not have a written constitution. Therefore, it is often criticised for not having a constitution at all.2 This criticism rests largely on the interpretation of the word 'constitution' as a single document. But as described above, there is no exclusive requirement for a written form of constitution. Consequently, the critics are wrong. New Zealand does have a constitutional framework which is provided by a combination of different sources, both written and unwritten. The constitution is built up by legislation, the common law, conventions, as well as by the Treaty of Waitangi and by fundamental principles such as the rule of law.


Statute law provides a very important and large source of New Zealand's constitution. There are many Acts of constitutional significance.3 Legislation has sought to deal with the country's history and to recognise Maori interests in, for example, the Treaty of Waitangi Act 1975.4 Besides this, the most important formal legal documents are particularly the Constitution Act 1986, the Electoral Act 1993 and the New Zealand Bill of Rights Act 1990.

The Constitution Act 1986 brings together the most important aspects of the constitution. It defines the Head of State as well as the composition and powers of Parliament. Moreover, it contains provisions for the dissolving of Parliament, for the carrying over of parliamentary business and for securing judicial independence. The Electoral Act 1993 determines the electoral system of New Zealand,5 which is partly protected against undemocratic change.6 Basic rights and freedoms of individuals are affirmed in the New Zealand Bill of Rights Act 1990, providing protection against unlawful actions and abuses by the state.7

All these regulations are significant for a constitution. Nevertheless there is no document that could be identified as a written constitution. A document, known as 'the constitution' must be the fundamental source of the state's instruments and its authority. It has to be the highest level of law which sets the criteria for the legitimacy of all other law. But in New Zealand there is no hierarchy of statutes. No constitutional Act has the character of superior law or is entrenched against amendments.8 Moreover, no document can be called the source of New Zealand's state instruments and fundamental principles. Although the Constitution Act 1986 consolidates the various branches of government,9 it does not describe the general balance, relationship or division of power between them.10 Considering the terminologies, the Act itself is rather more declaratory than constituent.

Furthermore, a constitution as the most important basic document must be widely accepted by the people. If asked, most New Zealanders would reply they have never heard of the Acts above.11 Therefore none of the constitutional Acts of New Zealand can receive that identification of the people that is required for a written constitution.

Until now New Zealand's Parliament has not created a written constitution, but fixed the rules that already existed within the unwritten constitutional framework, restating and updating New Zealand's statutory constitutional law.

Common Law

The decisions of the courts form another constitutional source, what is known as 'judge-made-law', or common law.

This characteristic of New Zealand's legal system derives from England, where the common law developed in the 13th century. Before Parliament became the supreme law-making body, the courts were the major source of law. Over the years the decisions of judges, reported and quoted, became the basis of all modern common law systems. Consequently, much of the law in New Zealand is still found in cases ('precedents'). Judicial precedents either create law in areas previously undetermined, or they apply existing rules, clarifying the common law. They are used as a guide or as an authoritative rule in later, similar cases. Moreover, there is the so-called principle of stare decisis, which means that courts must follow precedents set by judgments made in higher courts. Any court bound by the precedent must come to a similar conclusion, unless there is a difference in material facts.

The judiciary also plays an important role in the development of constitutional principles and in the interpretation of constitutionally important statutes. For example the doctrine of parliamentary supremacy12 - a fundamental principle upon which New Zealand's whole government and legal structure is based - has its basis in judicial decision.13

Constitutional Conventions

Furthermore, there are long-standing and recognised practices known as constitutional conventions. Constitutional conventions are not law, but together with the law they form a part of New Zealand's constitutional framework.

The legal rules often transfer wide powers or discretions to governmental institutions. In practice, these powers are circumscribed by conventions which require them to be used only in a certain limited manner.14 In that way conventions control much political and constitutional behaviour, restraining and moderating the exercise of government power. Conventions often supplement the simple letter of the law. Moreover, they have been referred to in courts as an aid to statutory interpretation and so conventions may play an essential role in judicial reasoning. They developed over time and are supported by precedents and the expectation that there is a belief in the standards they impose. Their nature is informal, and this allows them to develop flexibly and to reflect the constitutional standards and needs of the day.15 Consequently, they cannot be enforced by the courts. There are no formal sanctions provided when they are breached. The only sanctions for breaching a convention are political, and rest with Parliament, with public opinion and ultimately with the electorate.16

The Treaty of Waitangi

Finally any understanding of New Zealand's constitutional position must include the Treaty ofWaitangi. With this Treaty of 1840 the Maori people exchanged their sovereignty for the guarantees of the Treaty and New Zealand became a British colony. Therefore, it is popularly referred to as the founding document of New Zealand.

It is undoubtedly an important and unique source of New Zealand's constitutional framework although the Treaty has no juridical standing for enforcement in the courts. It has socio-political, not legal, force.17 Over the years the Treaty of Waitangi has been increasingly recognised in domestic law, both through legislation18 and judicial consideration.19 Nevertheless, there is still great controversy over its meaning and interpretation.20 Its legal status has never been categorically and finally determined.21

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