Talk:Constitution Act 1986

merge

I think that this article needs to be merged into the larger (and more generic) one on New Zealand's constitution. Unless somebody proposes adding a new article for each significant piece of legislation then there seems to be no reason why this Act should have its own seperate article. Anyway, thoughts and howls of opposition (or support) welcome.Tobit 01:11, 6 January 2006 (UTC)

I think all significant acts of Parliament should have their own articles. Take a look at the links to the article to get an idea of how significant this article is. Admittedly, I added many (but not all) of the links, but I wikified existing references rather than add the term gratuitously into articles. The article could stand to be improved, especially by someone with some legal knowledge.-gadfium 08:49, 6 January 2006 (UTC)

The New Zealand constitution is not this act. This act is part of the constitution, consequently it should be seperate. Otherwise the Treaty of Waitangi should be part of the New Zealand Constitution article, but it is seperate. Likewise, there needs to be seperate articles on the Cabinet Manual IMHO. --LeftyG 04:28, 7 January 2006 (UTC)

I don't think the articles should be merged. I started the constitution article mainly to describe the various acts and conventions that make up our constitution. As Greg states above, this Act is not the constitution itself - I do think this article needs to be expanded, particularily the context of it should be fleshed out - the main reason for the Act wasn't actually the constitutional crises of '84, but the fact that the old Constitution Act had been virtually repealed and the constitution was in a bit of a mess. --Lholden 07:31, 9 January 2006 (UTC)

I'll join in the crew against merging. We have a Constitution Act, 1867 article separate from Constitution of Canada and a First Amendment to the United States Constitution separate from United States Constitution; New Zealand is no less a country. CanadianCaesar The Republic Restored 01:05, 14 January 2006 (UTC)

Confused

Was this act an act of the UK parliament, and simultaneously (but separately) an act of the NZ parliament ? This is how (I think and without referring back) the Canada Act 1982 was passed. The article seems to suggest (I think erronously) that this act was an NZ act only.

Minor point: it's incorrect to say that there's no written constitution in NZ. Like the UK, there's no codified constitution, but most (if not all) of the constitution is written. Statute law and some other aspects of the consititution are written and have formal legal standing in some way. Other parts of constitutional law might have no formal legal standing, but I am willing to wager that someone somewhere has written down in a serious work (a textbook if nothing else) all else that is reasonably regarded as being a part of the consitution.--Phillip Fung 05:28, 17 July 2006 (UTC)

No, it is an Act of the New Zealand Parliament only. The provisions repealed existed in the previous (1852) Constitution Act, the New Zealand Parliament simply did not carry them over. You are right about the "written constitution" bit. --Lholden 06:10, 17 July 2006 (UTC)

UK Act

Why was there no mirror legislation passed by the UK Parliament as in the case of Canada and Australia when they repatriated their constitutions? Astrotrain 15:19, 5 September 2006 (UTC)

Because there was no need for it, New Zealand had the right to alter its own consitution --Lholden 22:12, 5 September 2006 (UTC)

New Zealand got the right to alter its Constitution when the UK Parliament passed the New Zealand Constitution (Amendment) Act in 1947, thus this act, unlike Aussie and Canada, did not need to be passed in both parliaments Brian | (Talk) 06:48, 27 June 2007 (UTC)

The Commonwealth of Australia "got the right" to alter its Constitution in 1901 when the Commonwealth of Australia Constitution Act (Imp.) was passed. Simultaneous legislation was passed in Australia (a) to terminate the right of Great Britain to legislate for Australia and (b) because the states were still British colonies at the time. Did New Zealand achieve (a) unilaterally? —Felix the Cassowary 14:00, 14 August 2007 (UTC)

New Zealand had had the right to alter the Constitution Act 1852 (Imp.) by Acts of its own parliament since the Act itself was passed. (a) was achieved by the Constitution (Amendment) Act in 1947, although there was a residual provision in the 1852 Act that allowed the UK to legislate for NZ at our Parliament's request. This was what was removed (or more correctly, not carried over) in 1986. --Lholden 20:39, 14 August 2007 (UTC)

Act/article name?

Given that the name of the Act is the Constitution Act 1986, isn't the title of the article wrong? The 1852 Act was the New Zealand Constitution Act 1852, passed by the UK Parliament. This Act is the Constitution Act 1986, passed by the NZ Parliament. So shouldn't the article title be "Constitution Act 1986 (New Zealand)" or something like that? - Simon

Yes probably. Propose a move. --Lholden 23:16, 18 October 2006 (UTC)

I would disagree, articles titles do not need to be the legal name. Brian | (Talk) 00:24, 19 October 2006 (UTC)

Actually you're right - it should probably stay where it is. The two enactments are, after all, linked --Lholden 02:16, 19 October 2006 (UTC)

The New Zealand Constitution (Amendment) Act 1947

In 1947, New Zealand adopted the 1931 Statute of Westminster which was passed by the UK parliament, and which gave New Zealand legislative independence. After the New Zealand Constitution (Amendment) Act was passed by the UK parliament in 1947, New Zealand then had full power to amend its own constitution, and so New Zealand became a totally independent nation requiring no further legislation from the UK parliament. Editors above have been asking why no parallel legislation was passed in the UK in 1986 in relation to the New Zealand Act 1986, as was the case with the Australia Act 1986 and the Canada Act 1982. The answer is that there was no need to, because the situation surrounding those acts in Australia and Canada was quite different from the situation surrounding the 1986 New Zealand Act. Prior to the passing of the Canada Act in 1982 and the Australia Act in 1986, Canada and Australia could not amend their own constitutions. Constitutional amendments in Canada and Australia had to be passed by the parliament in London. London also still possessed total sovereignty over the Australian states in matters which were not the preserve of the Commonwealth government in Canberra.

In 1986, New Zealand was already totally independent and had been since 1947. Hence, New Zealand's decision to amend its own constitution in 1986 did not require the involvement of the UK parliament. The New Zealand Act of 1986 was a purely New Zealand affair, and it should not be compared alongside the Canada Act 1982 and the Australia Act 1986. The latter two are of interest because they both involved the severing of their last constitutional ties with the UK. That had already happened in 1947 for New Zealand.

The reason that Canada and Australia retained the constitutional ties with the UK for longer than New Zealand did, relates to their federal constitutions and the balance of power between the state governments and the federal governments. New Zealand is a unitary state and so the patriation of the constitution in 1947 was a non-controversial issue.

Any claims that the 1986 New Zealand act had anything to do with severing constitutional links with the UK are wrong, because if the UK parliament was not needed for the purposes of passing any legislation in New Zealand prior to 1986, then New Zealand already had total legislative independence prior to the passing of the 1986 New Zealand Act.

The wording and the repeals in the 1986 New Zealand Act have all the hallmarks of a nation that was trying to take its independence 39 years after independence had already been granted.David Tombe (talk) 05:39, 30 January 2009 (UTC)

Your edit to the article made it sound like this act actually reduced the independence of New Zealand.

If Britain passes a law saying it can no longer make laws for New Zealand, presumably in the absence of anything else it could also pass a law repealing that. It is necessary for New Zealand to say it will no longer accept any law passed by Britain as being effective within its territories.-gadfium 07:30, 30 January 2009 (UTC)

Gadfium, I don't follow your point at all. New Zealand has been totally independent since 1947. There was nothing in New Zealand's 1986 constitution act that could possibly have altered that state of affairs one way or the other.

Somebody is trying to make out that New Zealand took its full independence from the UK in 1986, 39 years after full independence had already been granted. The New Zealand Act 1986 had absolutely no bearing on its state of independence, irrespective of what it said in that act.

Those so-called 'constitutional severance' clauses in the New Zealand Act 1986 were the equivalent of Spain passing an act of parliament prohibiting the parliament of Denmark to pass laws for Spain even with the consent of Spain.

Read the 1931 legislation and the 1947 legislation and you will then realize how ridiculous the 1986 New Zealand legislation is in relation to the issue of constitutional severance.

The point which you have made above touches on that question about whether or not the UK can repeal an act of independence for a former colony. It could, but that doesn't mean that the action would have any effect in practice. It is hardly likely to ever happen, and no nation needs to pass defensive legislation to cover for that eventuality, and even if they did so, it would be equally as meaningless. David Tombe (talk) 08:00, 30 January 2009 (UTC)

As I understand it, you are arguing that a substantial portion of this act was completely unnecessary and meaningless, which implies that the people who drafted and passed it didn't know what they were doing. I think you need a link to a reliable source to back that up, rather than simply stating your own opinion of the matter.-gadfium 08:54, 30 January 2009 (UTC)

Yes Gadfium, that is exactly my opinion. But I never actually explicitly stated that opinion. You quickly worked it out for yourself as soon as you examined the evidence in front of you, and I'm sure that you must now fully share that opinion.

India was granted independence by the UK parliament in 1947. How would you react if in 2009, India were to pass a new constitution and state in it that no new acts passed by the UK parliament, in relation to the law of India, will be valid even if if they are passed at the request and consent of the Indian government? And then to proclaim that in 2009, India has finally broken its last constitutional ties with the UK.

That's exactly what New Zealand did in 1986. You asked for a link to a reliable source which confirms my belief that the drafstmen didn't know what they were doing. I can give you a link which shows that the matter has been noticed by others. Here is a quote from the link,

While Margaret Wilson may believe it happened in 1947, that then doesn’t explain why the last Labour Government appeared to declare independence again in 1986.

This quote is taken from the INVESTIGATE magazine. You can see it in the last paragraph of this web link at [1] David Tombe (talk) 16:17, 30 January 2009 (UTC)

I do not regard that as a reliable source. The article is obviously taking an extreme position. I'm afraid this undermines your argument.-gadfium 18:11, 30 January 2009 (UTC)

For reliable sources, you will need something to trump the New Zealand government. This will be difficult. A discussion in a well-regarded law review by constitutional lawyers would be a good start.-gadfium 18:13, 30 January 2009 (UTC)

Gadfium, You beat me to it. I was about to provide that very same New Zealand parliament link. It clearly states that full New Zealand sovereignty was obtained in 1947. And I could produce many other reliable sources which say the same thing.

So unless you can specify to me exactly what the final constitutional ties were that were severed by the 1986 constitution act, I am going to revert once again. I did read somewhere that New Zealand's 1986 act was similar to a man going back in time and shooting his grandfather before he was born so that he would no longer be descended from his grandfather. David Tombe (talk) 05:22, 31 January 2009 (UTC)

It's not up to me to interpret the act. Nor is your opinion of the act relevant. It might be relevant if you find an opinion of a constitutional lawyer, publishing in a reputable law journal. Tabloid magazine rants don't count.-gadfium 01:17, 1 February 2009 (UTC)

Gadfium, I've already said to you that I noticed the anomaly shortly after the act came out in 1986. The act purported to repeal the very UK acts which had given New Zealand its independence. It was like making a retrospective unilateral declaration of independence, after independence had already been granted amicably. I only dug up that Investigate magazine article on-line because you asked for a source. I wasn't basing my opinions on what it said in that article, but nevertheless, it illustrated that others had noticed the anomaly. I also discovered other articles on-line which commented on the anomaly and talked about New Zealand having cut the branch of the tree that it was sitting on. Ultimately, I was going to send you the New Zealand government article which you ended up producing yourself, and which highlights the dilemma. It states that New Zealand obtained sovereignty in 1947, and then contradicts itself by stating that all UK residual powers were removed in 1986. There were no residual powers after 1947. See my reply to Lholden below. David Tombe (talk) 04:14, 1 February 2009 (UTC)

With all due respect, what you or I think of the act is not important. See Wikipedia:No original research. We take note of the opinion of experts in the field, published in reliable sources. You need to link to such opinions.-gadfium 05:33, 1 February 2009 (UTC)

Gadfium, I don't know what original research you are talking about. And it's certainly not an issue that requires an expert in order to be able to see the point. And if you think that there are no existing reliable sources to back up what I am saying, neither are there any to back up what you are saying. The New Zealand government source is totally ambiguous, and even if it wasn't ambiguous, it is a primary source because it comes from the same authority that wrote the act in question. This is not a matter of citations or reliable sources. I merely saw what I considered to be an error in this article, and I set about to fix it. I knew that this act was a local New Zealand act and that it couldn't in any way have the authority of a Westminster act such as would be necessary to bring about the kind of constitutional amendments that it is being claimed to have done in this article. But I now realize that I have inadvertently stumbled on some kind of delicate and sensitive issue, and so I will leave the matter alone. It's hardly worth having an edit war over it. David Tombe (talk) 11:25, 2 February 2009 (UTC)

What were those residual legislative powers of the UK parliament prior to 1986?

Gadfium, I'll put the question more clearly. The official New Zealand parliament web link which you seem to think would be very difficult to trump, states that full New Zealand sovereignty was obtained in 1947. It then goes on to state,

In passing the Constitution Act 1986 (effective 1 January 1987), New Zealand “unilaterally revoked all residual United Kingdom legislative power.

Can you please tell me exactly what that residual United Kingdom legislative power was? I can tell you already that there was none, because it was all given over in 1947. The Investigate magazine were absolutely correct in saying that the Labour government in New Zealand declared independence for a second time in 1986. David Tombe (talk) 05:29, 31 January 2009 (UTC)

The residual power was the power to legislate on New Zealand's behalf at our request. Despite what you say, that isn't a normal power. --Lholden (talk) 07:16, 31 January 2009 (UTC)

Mr. Holden, I see now. The 1986 act made it that if New Zealand went to the UK parliament and requested the UK parliament to pass some legislation for New Zealand, that this would not be allowed under the 1986 New Zealand law. In which case, why would New Zealand be making the request?

If New Zealand didn't want the UK to be making laws for New Zealand, and if the UK had already said in 1947 that it wouldn't be making laws for New Zealand unless New Zealand so requested, then that was effectively the end of the issue in 1947. The 1986 New Zealand act merely outlawed what would be a potential total absurdity, as I have outlined in the paragraph above.

The scenario in question would be as follows. The New Zealand government goes to the UK parliament and says 'Could you please pass some legislation for us regarding the compulsory wearing of seatbelts in Auckland'. The UK parliament replies 'OK. We'll pass that law for you next week'. The New Zealand government then replies 'No you won't because we won't allow you to'. The UK parliament would then reply 'Well then why did you ask?'.

And you mean to say that you are changing your independence date from 1947 to 1986 to cater for such an absurd eventuality? David Tombe (talk) 07:58, 31 January 2009 (UTC)

I'm not sure why you're placing an emphasis on independence. New Zealand was for all practical purposes independent from 1907 (arguably before then, since British governors stopped telling the colonial government what to do in the 1880s). Independence is not relevant to the issue - the question is whether the residual power existed and whether it could've been enacted. That you can't think up any reason why it would be used is irrelevant. The fact of the matter is that the power existed, and the 1986 Act removed it. That is all that matters. --Lholden (talk) 20:35, 31 January 2009 (UTC)

Lholden, New Zealand's gradual steps to independence form an interesting topic for history scholars, and it is important that these steps are recorded correctly. I am fully aware of the point that you made above that New Zealand had been effectively independent in all domestic matters since the middle of the 19th century. And I am fully aware of all the many stages that culminated in the final constitutional link with the UK being ended in 1947, as can be read in many sources. And I read many of those sources before this 1986 act in question was passed. This 1986 act purported to declare independence for a second time.

You have tried to justify this on the basis that the UK still had a residual power to legislate for New Zealand after 1947. That power could only be exercised at the request and with the consent of the New Zealand government. That amounts to full independence. There can be no higher level of independence above that.

What you are trying to say is that the 1986 act means that the UK can't legislate for New Zealand even at the request of the New Zealand government and with its full consent. In other words it caters for the event of an absurdity that we all know will never happen. The New Zealand government publication which you supplied as a citation clearly exposes this anomaly. It says that full New Zealand sovereignty was obtained in 1947. It then contradicts itself by stating that in 1986, the UK lost its remaining residual powers to legislate in New Zealand. And everybody is supposed to read that and nod their head and say 'yes. I understand'.

The reality is that the 1986 New Zealand Constitution Act did not severe the remaining constitutional ties with the UK, no matter what it says in that act, because those ties had already been severed in 1947. David Tombe (talk) 04:34, 1 February 2009 (UTC)

"This 1986 act purported to declare independence for a second time."

Therein lies the disagreement. I'm not arguing that the residual power meant that New Zealand was not independent at all. New Zealand can be independent and still have constitutional ties to the UK. After all, we still have the Queen as our head of State - arguably we only have legal independence, but not symbolic.

The purpose of the 1986 Act was to (a) patriate the Constitution Act to New Zealand's Parliament (the 1856 Act was an Imperial one) and (b) clearly re-state key constitutional provisions in one document. The removal of the residual power of the UK Parliament to legislate for New Zealand was a byproduct of the Act, it was never intended as a declaration of independence. That's just something Ian Wishart has come up with by mis-reading a learned article by Lord Cooke of Thorndon.

Sure, the power of the UK Parliament to legislate for New Zealand was an anomaly (although not totally inconceivable that it would never be used - cf Pitcairn Trials Act 2002, which came about as part of an agreement between the New Zealand and UK governments - arguably prior to 1986 the NZ Parliament could've simply requested the UK Parliament pass an enactment, rather than both countries having to make a formal treaty then pass individual Acts). The fact remains that the 1986 Act removed it. I'm yet to see that challenged by any reliable sources. --Lholden (talk) 05:39, 1 February 2009 (UTC)

Lholden, That's indeed a very interesting point regarding the Pitcairns. Prior to 1986, as you say, New Zealand, on assumption that they were agreeable to the scheme, could have said to the UK government, "OK. We'll go along with this. You just legislate whatever legislation we need to give our courts jurisdiction over the Pitcairn Islands". It would have had echoes of when HMG gave the Ross Dependency to New Zealand in 1908, or when HMG gave British New Guinea to Australia in 1906. Yes, interesting point, and I think that the Canada act 1982 and the Australia Act 1986 did indeed cater for that point, and that it was perhaps indeed outstanding as regards New Zealand.

But it raises more interesting questions. Who had the power to amend that residual link? By New Zealand doing it, it became an absurdity. Did the 1986 act prohibit New Zealand from making such a request. Or did it prohibit London from answering such a request? London might argue that New Zealand didn't have the power to do the latter. The scenario would be one in which New Zealand says to London, "OK. We'll go along with this. You just legislate whatever legislation we need to give our courts jurisdiction over the Pitcairn Islands". London then passes the act at Westminster. New Zealand then refuses to recognize the new powers that they have just been granted over the Pitcairns on the grounds that the new 1986 constitution forbids Westminster legislation from having effect even if it was made at New Zealand's own request. London then tells New Zealand that they had no right to make such legislation in 1986 because it was a matter purely within London's jurisdiction, providing of course that New Zealand were to make a request.

So maybe London should have passed an authorizing act for the 1986 constitution after all.

Anyhow, the main aspect of the 1986 act which interested me was the fact that it purported to repeal the very Westminster acts which had given New Zealand its independence in the first place. What did those purported repeals mean? Did they undo the independence? Would New Zealand have had the power to repeal an act of independence passed by Westminster? We've all seen those discussions which occasionally break out amongst people from former colonies and dominions in which they get all indignant at the idea that London would repeal their act of independence. The tone is "How dare they", and "would they have the right to do so?", and it all builds up to "this means war!".

But the issue of the independent nation itself repealing its own act of independence is even more absurd because it definitely wouldn't have the authority to do so. And what would it mean anyway? Revocation of independence, or even greater independence? That's why some textbooks were calling the 1986 act, going back in time and shooting one's grandfather, or cutting off the branch of the tree that you are sitting on.

Finally, patriation is a new word that came in to existence in relation to the patriation of the Canadian constitution in 1982. But we'll use it retrospectively. New Zealand's constitution was patriated in 1947. So I can't see how the 1986 act could have patriated it for a second time. David Tombe (talk) 14:58, 1 February 2009 (UTC)

Patriation means making all constitutional enactments local - again, the 1856 Act was an Imperial one. That fact didn't change in 1947. The New Zealand Constitution was not patriated in 1947, it was patriated in 1986. The 1986 Act removed an anomaly in our constitutional law that tied the UK Parliament to NZ's. I'm yet to see any verifiable, reliable sources to the contrary. --Lholden (talk) 18:22, 1 February 2009 (UTC)

Lholden, I'll take your word for it on patriation. But regarding the other issue, it would seem then that the anomaly in question still exists in South Africa and the Republic of Ireland. And I think you're probably stuck with it for good. It would require a Westminster Act to undo it, and that isn't going to happen because it would mean the New Zealand government having to request London to pass a law that would mean that London could pass no more laws for New Zealand even at their request. If such a request was ever made, I think they'd just give you a look. So the only other way is to assume it subversively. But that could never have any practical effect unless it was put to the test by requesting London to pass a law and then telling them they couldn't do it and waiting to see what the reaction would be. I think that the reaction would just be a look. I think it's an anomaly that will just be forgotten about, as it most certainly has been already in the Republic of Ireland and South Africa. David Tombe (talk) 19:13, 1 February 2009 (UTC)