Who has supreme authority in New Zealand? The Queen? The Governor-General? The Prime Minister? The voters? Maori chiefs? All of the above? Or none of them?
In 1840, it was clear where sovereignty lay: with the chiefs of the various Maori tribes. The main purpose of the Treaty (in British eyes) was to gain a clear claim to sovereignty over New Zealand.
The English version of the Treaty makes this quite specific, although the original Māori version uses the term 'kawanatanga' instead of 'rangatiratanga', said to be the proper translation of sovereignty.
So after 1840, the British Queen was sovereign. But the world has moved on. In the 21st century, would either chiefs or monarch dare claim sovereign authority over and above that of the people?
If anyone is sovereign, it is the New Zealand people, through Parliament. New Zealand has a system of government that relies on each of its three parts (the Executive, the Legislature and the Judiciary) balancing the power of the other two. The Executive is, however, drawn from Parliament, to which it is ultimately accountable for its actions of day-to-day government.
The Crown, in the form of the Queen and her representative in New Zealand, does keep certain residual powers for situations in which, for some reason, there is no functioning Government. But the use of these powers is constrained and governed by constitutional convention.
However, New Zealanders may need to accept the need for a higher authority than the nation state. Belonging to the Commonwealth, the United Nations, the World Trade Organisation, and other international organisations implies that we accept being a member of a wider community and that, in various situations, we must limit our sovereign ability to do as we like. This could itself be seen as an act of sovereignty: we agree to take on certain obligations in return for the benefits from doing so. One of those benefits is an international system in which there is the rule of law governing relations between states. This means that countries such as ours can look to international rules to protect ourselves in situations where greater size, power and influence might otherwise give control (such as 'the law of the sea'). We ocassionally need to concentrate on improving and defending the multilateral system.
Civilisation has evolved from villages to provinces to nation states – each learning that co-operation achieves more than conflict.
We have chosen to belong to organisations such as the UN because we recognise that we can achieve more together than we can separately. We are also conscious of our regional responsibilities in the Pacific.
But accepting citizenship of the world means not only accepting that we have obligations to others, and rights to interfere across national boundaries when needed, but also that others can constrain our choices.
The people are sovereign. But our definition of ‘the people’ may be changing from ‘the people of New Zealand’ to ‘the people of our world’.
Parliament has, since 1999, had a role in the consideration of multilateral and bilateral treaties. This supplements the role that Parliament has always had in our constitutional system of approving and enacting any legislation required to implement international treaties before New Zealand can become party to them.
A leading New Zealand international lawyer, Sir Kenneth Keith, now serving in the International Criminal court, has said: “If it was ever true to say that the Parliament of New Zealand could make any law it liked, it certainly is not now”.
The New Zealand statute book, taken alphabetically, extends from the Abolition of the Death Penalty Act to the Western Samoa Act. The usual calculation is that between one quarter and one third of New Zealand public Acts give effect to international obligations and standards.
New Zealand is party to over 2000 treaties. They cover a very wide range of subject matter:
Sir Kenneth said that the growing pace of globalisation (in some respects returning to the level of a century ago), much greater public awareness, greater democratisation generally and a major extension in the coverage of treaties have undoubtedly led to and highlighted the need for greater parliamentary scrutiny of treaty making.
As a member of the Commonwealth, New Zealand is part of a group of nations that were once part of the British Empire. Though most of our formal ties with Britain have fallen away, two still remain: our retention of the Queen, and her representative the Governor-General, as our formal head of state, and the right of appeal to the Judicial Committee of the Privy Council in Britain.
The right of appeal to the Privy Council has changed. The Supreme Court Bill introduced into the New Zealand Parliament in December 2002 abolished the right of appeal from courts in New Zealand to the Privy Council.
When Margaret Wilson, subsequently Speaker, was Attorney-General in the second Clark Government she said the New Zealand Supreme Court would perform the traditional roles of a final court of appeal – error correction, clarification and development of the law. New Zealand in 2002 was still one of the few Commonwealth countries with appeal to the Privy Council – Australia ended all appeals in 1986.
Unlike the Privy Council, the Supreme Court is able to hear appeals of employment, environment and family court matters.
A court of final appeal in New Zealand means that more people have access to justice, Margaret Wilson said.
The law passed under the second Clark Government provides for an independent Supreme Court sitting above the Court of Appeal with its own judges and separate premises. The Chief Justice, as head of the New Zealand Judiciary, heads the Court and is normally the presiding judge. Four other permanent judges include one judge well-versed in tikanga Māori.
The former Attorney-General
said there is no connection between establishing a court of final appeal
in New Zealand and the debate about whether we should become a republic.
Canada and Australia both have their own courts of final appeal, and they
are not republics.
Find out more from the Constitutional Arrangements Committee report.
Updated 1 December 2005