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History has played a significant role in shaping New Zealand’s current constitutional system. New Zealand has no entrenched single document that forms our constitution. Rather, history has shaped the evolution of New Zealand’s current constitutional system. Since colonial times New Zealand’s legal history has had a marked effect on the development of our constitution. A number of significant historical events have helped shape this. These include the 1840 signing of the Treaty of Waitangi which enabled New Zealand to inherit Britain’s key constitutional features, the passing of the 1931 Statute of Westminster which streamlined our process of law making, and the 1984 Constitutional Crisis which led to the passing of New Zealand’s current Constitution Act. These three key events in our legal history have played a significant role in shaping New Zealand’s current constitutional system.
The Treaty of Waitangi is regarded by many as New Zealand’s ‘founding document’. The treaty has had a significant effect on the evolution of New Zealand’s constitutional system. Britain gained interest in annexing New Zealand territory to expand its Empire. Prior to the signing of the treaty in 1840, Britain had no legal power over New Zealand. Although New Zealand was recognized as a British Colony through the Declaration of Independence in 1835, for Britain to obtain sovereignty over New Zealand, an agreement needed to be constructed. Signed on 6 February 1840, the Treaty of Waitangi effectively provided a blueprint which continues to underpin New Zealand’s current constitutional system. The treaty allowed New Zealand to adopt all British law prior to 1840, and allowed the British to embed their legal history in the foundations of New Zealand’s constitution, thus making English legal history essential to understand how the New Zealand constitution evolved. The legal history of England can be viewed as a battle for supremacy between parliament and the Crown. Over the long duration of this struggle, key documents shaped the formation of the English constitutional system such as the Magna Carta in 1215 and the Bill of Rights in 1689 . It was not until the mid-1970s that the Labour government set up the Waitangi Tribunal under the Treaty of Waitangi Act 1975. Initially the tribunal had very limited powers to make findings of facts and recommendations only. In a significant move, the Act was amended in 1985 to enable it to investigate Treaty breaches back to 1840. The lands case heard in the Court of Appeal in 1987 was the first to determine and define the principles of the Treaty of Waitangi. The case concerned the issue of transferring land to state-owned enterprises and was described by the then President of the Court of Appeal, Justice Sir Robin Cooke, as ‘perhaps as important for the future of our country as any that has come before a New Zealand Court.’ This case established the principle that if the treaty is mentioned in strong terms in a piece of legislation, it takes precedence over other parts of that legislation should they come into conflict. The court’s judgment became a precedent for later judgments and Waitangi Tribunal reports. Another case involving the determination of the Treaty’s principles was New Zealand Maori Council v Attorney-General 1987 (a case involving forestry). These cases marked the beginning of the common law development of the principles of the Treaty of Waitangi. Although it was more than 140 years since the signing of Treaty of Waitangi, the case law developed in the 1980s had a significant effect on the evolution of New Zealand’s constitutional system.
The 1931 Statute of Westminster is another important component in New Zealand’s legal history which shaped the current constitutional system. New Zealand’s road to Parliamentary Sovereignty was extremely gradual, but had a significant impact on the development of our current constitutional system. The Constitution Act 1852, twelve years after the signing of the Treaty of Waitangi, allowed New Zealand to make laws for the ‘peace, order and good governance of NZ’ provided they did not conflict with British laws. In 1865 the Colonial Laws Validity Act was passed giving New Zealand the opportunity to make laws outside of British boundaries, but only if the British law did not extend to New Zealand. This was a small step towards extending the country’s independence. The Statute of Westminster Act of 1931 molded our current constitutional system by streamlining the process of law making and allowing New Zealand to become a self-governing country. New Zealand was actually hesitant to adopt this statute, as few New Zealanders desired greater independence, instead believing such a development would weaken imperial unity and undermine cultural and economic ties with Britain. Gordon Coates, the Prime Minister of the time, did not want the statute to be passed and openly called it a ‘poisonous document’. Despite this, the Statute of Westminster was passed through British Parliament and Britain’s right to legislate for the dominions was formally abolished. It took until 1947 for the statute to be fully adopted in New Zealand. New Zealand was preoccupied with many issues, including The Great Depression 1929-35 and the Second World War 1939-45. New Zealand entered the Second World War to support Britain. When Britain could not defend New Zealand from attacks, New Zealanders lost confidence on Britain’s ability to protect them. By the end of the war in 1945, New Zealanders began to see themselves as a nation with an independent future moving away from Britain’s sphere of influence. New Zealand wished to abolish the Legislative Council, but in order for this to occur the New Zealand Constitution Act 1852 had to be amended – which in turn required the adoption of the Statute of Westminster. In 1947 the Statute of Westminster was passed in New Zealand. This formally proclaimed New Zealand as an independent country, with few ties to Britain. The adoption of the Statute of Westminster was a significant moment in New Zealand’s legal history and profoundly shaped New Zealand’s current constitutional system.
The 1984 Constitutional Crisis caused significant constitutional developments in New Zealand. Speculation in the media followed a leak that an incoming Labour government may significantly devalue the dollar. The Reserve Bank advised the Prime Minister, Sir Robert Muldoon, that the dollar should be devalued. Muldoon ignored this advice. In June 1984 Muldoon announced a snap election. This caused an immediate run on the dollar, as currency speculators believed a Labour win would mean devaluation. Despite a deepening foreign exchange crisis, Muldoon continued to refuse to devalue even after losing the snap election, thus causing an economic crisis as by constitutional convention an outgoing caretaker government implements the directions of an incoming government. Eventually Muldoon’s own party’s threats towards him caused him to agree with the incoming government’s desire to devalue the dollar and New Zealand’s currency was devalued by 20%. Muldoon’s actions exposed uncertainties in New Zealand’s constitutional arrangements. The new Prime Minister, David Lange, saw a need for legal change to prevent this situation from occurring again. Lange established the Officials Committee on Constitutional Reform to examine the New Zealand Constitution Act 1852 and establish rules to enable the smooth transfer of power after elections. Two reports from this committee eventually resulted the New Zealand Constitution Act 1986 being passed. The 1986 Act stated that the New Zealand Constitution Act 1852 ceased to have a place in New Zealand law and cut the last ties New Zealand had with British provisions and legislations. The 1984 constitutional crisis and the passing of the New Zealand Constitution Act 1986 was the last step towards New Zealand’s parliamentary sovereignty and, as such, was a significant moment in New Zealand’s legal history which substantially shaped New Zealand’s current constitutional system.
Historical events have, to a significant extent, been instrumental in the development of New Zealand’s current constitutional system. Key events in New Zealand’s legal history such as the Treaty of Waitangi which established New Zealand as a British colony, the Statute of Westminster which eventually made New Zealand self-governing, and the 1984 Constitutional Crisis which resulting in a review of New Zealand’s constitutional arrangements and cut remaining ties with Britain, have profoundly shaped New Zealand’s constitution. History’s effect on the evolution of New Zealand’s current constitutional system is clear and undeniable.
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