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Section 2: Overview

Note #5
Constitution Act 1986, s 15.
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Note #6
Constitution Act 1986, s 14.
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New Zealand is a democratic constitutional monarchy in which Parliament is the supreme lawmaking body. New Zealand is not a federal system: the unicameral Parliament has complete power to make law for all of New Zealand5. Parliament consists of the House of Representatives and the Governor General6. The three branches of the New Zealand government are the legislature, the executive and the judiciary. In theory the three branches have separate membership and functions. While there are significant areas of practical overlap between the executive and legislative branches, the combination of constitutional convention and the nature of the electoral system preserve an adequate separation of powers.

Note #7
Remedies are stay of proceedings, exclusion of evidence, and Baigent damages (damages for the breach of the New Zealand Bill of Rights Act), see Andrew Butler & Petra Butler, The New Zealand Bill of Rights Act 1990: a commentary (Lexis Nexis, Wellington, 2005) pp 965 et seq. Part 1A of the Human Rights Act 1993 gives the Human Rights Review Tribunal (and the courts on appeal) the right to declare legislation inconsistent with s 19 BORA (freedom from discrimination).
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Note #8
Constitution Act 1986, ss 23 and 24.
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In the context of human rights, the legislature creates human rights legislation, the executive is responsible for implementing policies that comply with the legislation and the judiciary has a significant role to play in enforcing human rights. While judges may provide several different remedies for breaches of human rights7, because of the principle of parliamentary sovereignty, their powers do not extend to striking down legislation that is inconsistent with human rights. The independence of the judiciary is an important constitutional principle. Judges have security of tenure and salary so that judges may be free of fear or favour when deciding cases8. In New Zealand the courts have been instrumental in developing remedies for breaches of the New Zealand Bill of Rights Act 1990. The fundamental protections for human rights in New Zealand are contained in the New Zealand Bill of Rights Act 1990 (BORA) and the Human Rights Act 1993 (HRA). While both acts are important parts of the New Zealand constitution, neither of them are supreme law and can, in theory, be amended by a simple majority in Parliament.

Section 2.1: Sources of Law

Note #9
Department of the Prime Minister and Cabinet: Cabinet Office "Cabinet Manual 2008" 2008, (accessed: 23 June 2011).
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Note #10
Department of the Prime Minister and Cabinet: Office "Cabinet Manual 2008" 2008, (accessed: 25 June 2011) para 7.60.
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Note #11
See also already the Long Title to the Race Relations Act 1971 which stated as one its two purposes that it was an Act to, among other matters, implement the International Convention on the Elimination of All Forms of Racial Discrimination. The Race Relations Act 1971 was amalgamated with the Human Rights Commission Act 1977 in the Human Rights Act 1993.
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Note #12
See A Butler & P Butler The Judicial Use of International Human Rights Law in New Zealand (1999) 29 VUWLR 173; K Keith Roles of the Courts in New Zealand in Giving Effect to International Human Rights- with some history (1999) 29 VUWLR 27; A Conte From Treaty to Translation: The use of international human rights instruments in the application and enforcement of civil and political rights in New Zealand (2001) 8 Canta L Rev 54.
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Note #13
For example: Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA): Tavita had exhausted all his appeal rights in regard to staying in New Zealand prior to the birth in New Zealand of his daughter. The issue was whether the Minister, in deciding whether to execute the removal order, was required to take the interests of the child into account (in accordance with the International Covenant of the Rights of the Child which New Zealand has ratified). In the context of an interim order application under s 8 of the Judicature Amendment Act 1972, the Court of Appeal said no more than that it was arguable that there was such an obligation. The Court did observe, however, that it would be hesitant to accept the Minister's argument that he and the NZIS were entitled to ignore international instruments as this implied New Zealand's adherence to the Covenant and the Convention were partly window-dressing. See A Butler & P Butler "The Judicial Use of International Human Rights Law in New Zealand" (1999) 29 VUWLR 173; K Keith "Roles of the Courts in New Zealand in Giving Effect to International Human Rights- with some history" (1999) 29 VUWLR 27; A Conte "From Treaty to Translation: The use of international human rights instruments in the application and enforcement of civil and political rights in New Zealand" (2001) 8 Canta L Rev 54.
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New Zealand does not have a written, entrenched constitution. Rather, the constitution of New Zealand consists of certain statutes adopted from the United Kingdom, certain New Zealand statutes, constitutional case law, the Treaty of Waitangi, the prerogative powers of the Sovereign, and constitutional conventions9. The Treaty of Waitangi is a document signed by the Crown and the indigenous people of New Zealand, the Māori, on 6 February 1840. The Treaty has not been incorporated into New Zealand law and is not considered directly justiciable. Nevertheless, the principles of the Treaty are taken into account when passing legislation10. New Zealand ratified the core international human rights treaties, however, they have not been incorporated into New Zealand law as such- although both, the BORA and the HRA, were passed in order to affirm New Zealand's commitment to its international human rights obligations, in particular the International Covenant on Civil and Political Rights11. In an established line of case law courts have affirmed the necessity and utility of interpreting the domestic human rights provisions in the light of equivalent international provisions and jurisprudence developed there under12 but have also referred to New Zealand commitments under international human rights law when interpreting ordinary statutes13. Section 19 BORA prohibits discrimination against individuals by the government and the HRA prohibits discrimination in the private sphere.

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