This is a single section from Chapter 4. Read the full chapter here.

Fundamental constitutional principles and the rule of law

Legislation should be consistent with fundamental constitutional principles, including the rule of law.

Legislation should be consistent with fundamental constitutional principles. Officials should carefully consider the impact of fundamental constitutional principles on proposed legislation, particularly when the legislation will:

  • change or reshape State power (for example, by creating or removing new powers for the State, significantly shifting power between branches of the State, or removing powers from the State);
  • change the relationship between citizens and the State in a fundamental way (for example, by encroaching on the operation of democratic processes, individual dignity or liberty, equality before the law or access to the courts);
  • modify the fundamental structures or functions of the State (for example, by altering the scope or operation of representative democracy, altering the scope of parliamentary sovereignty, not observing the separation of powers, conferring law enforcement functions or powers on private sector bodies, or affecting judicial independence and impartiality); or
  • modify or remove safeguards and limitations imposed on the exercise of State functions (for example, the rule of law, human rights, the spirit and principles of the Treaty of Waitangi, or natural justice).

The following are some of the most important constitutional principles in New Zealand law.

The rule of law: The full scope of the rule of law is the subject of debate, but at its core are the following principles:

  • Everyone is subject to the law, including the Government—People and institutions that wield power must do so within legal limits, and be accountable for their actions; everybody is equal before the law and is subject to it. The application of legislation to the Government itself is considered in more detail in Chapter 11.
  • The law should be clear, and clearly enforceable—The law should be publicly accessible and able to be easily understood by all to whom it applies. Rights and obligations need to be matched with enforcement mechanisms (civil or criminal) and remedies so that people and/or the State can enforce it.
  • There should be an independent, impartial judiciary—Certain decisions must be made by judges who are independent of the government. Judges interpret legislation and develop the common law. They decide disputes between individuals and between individuals and the Government. Courts are the only institutions that should impose criminal convictions or sentence people to imprisonment.

To properly perform these functions and to maintain public confidence in the judicial system, judges must be impartial in respect of the matter before them, and be independent of the Executive and Legislature. Legislation that affects a judge’s appointment, tenure in office, or financial security will potentially affect judicial independence.

There should also be effective access to justice and redress for individuals (access to courts is the subject of a specific guideline below).

Representative democracy and free and fair elections—Members of the House of Representatives are chosen through regular free and fair elections in which almost all citizens and permanent residents may vote and put themselves forward for election (subject to some restrictions in the Electoral Act 1993). Parliament’s role as a forum of democratic participation and debate gives it the strongest contemporary justification for asserting sovereign law-making status (see parliamentary sovereignty below). Any attempt to affect either the process by which elections are conducted or the eligibility criteria to vote or stand as a candidate will be the subject of considerable scrutiny.

Parliamentary sovereignty—Parliament is the supreme law-making body of New Zealand and comprises the House of Representatives and the Governor-General. The House of Representatives has the exclusive power to regulate its own procedures. One Parliament cannot prevent a subsequent Parliament from repealing or amending existing legislation, or from passing new legislation. The courts can neither invalidate legislation passed by Parliament nor interfere with the legislative process. It is often said that Parliament can legislate to do anything. Yet this does not mean that it should, particularly where human rights or fundamental constitutional principles are affected.

Separation of powers—Each branch of Government (executive, legislature, and judiciary) must perform only those functions associated with that branch and not intrude into, or assume the functions of, another branch. This principle helps to prevent the concentration of power in one branch of government and helps to reduce the potential for abuse by ensuring those responsible for making the law cannot direct how that law will be enforced against themselves, and by ensuring those responsible for enforcing the law cannot change the law to remove procedural safeguards. While the executive and legislative branches share a common membership in New Zealand (Ministers must be members of Parliament), there is still a functional separation between the two branches that means the legislature can hold the Executive to account. Separation between the legislature and the judiciary requires that legislation should not direct the punishment and guilt of named or identifiable people without due process of law. Legislation that does so appropriates judicial power and undermines judicial independence, as well as offending against the rule of law. Stringent protections must be maintained to keep the judiciary separate and independent from the other branches to enable proper judicial scrutiny.

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