The Constitution Act 1986 is the principle statement of New Zealand's unwritten constitution. The Act came into force from 1 January 1987, and replaced the New Zealand Constitution Act 1852, which started out as an Act of the British Parliament.
Part one of the Act is the most important for the republic debate, because it defines the "Sovereign" as New Zealand's head of state, and notes that the Governor-General is appointed by the Sovereign.
Key sections
Here's a section by section breakdown of part one of the Act:
Part I The Sovereign
Section 2 Head of State
(1) The Sovereign in right of New Zealand is the head of State of New Zealand, and shall be known by the royal style and titles proclaimed from time to time.
(2) The Governor-General appointed by the Sovereign is the Sovereign's representative in New Zealand.
Section 2(1) defines who New Zealand's head of state is - the Sovereign, and states that the Governor-General represents the Sovereign. What it doesn't tell us is how the Sovereign becomes Sovereign, or exactly how and when the Governor-General is appointed or dismissed from office.
Section 3 Exercise of royal powers by the Sovereign or the Governor-General
(1) Every power conferred on the Governor-General by or under any Act is a royal power which is exercisable by the Governor-General on behalf of the Sovereign, and may accordingly be exercised either by the Sovereign in person or by the Governor-General.
(2) Every reference in any Act to the Governor-General in Council or any other like expression includes a reference to the Sovereign acting by and with the advice and consent of the Executive Council.
This section states that the Governor-General's powers come from the Sovereign, and the Sovereign can excercise powers other Acts may give to the Governor-General. The sub section (2) defines any reference to the Governor-General in Council also equating to the Sovereign in Council.
Section 3A Advice and consent of Executive Council
(1) The Sovereign or the Governor-General may perform a function or duty, or exercise a power, on the advice and with the consent of the Executive Council if that advice and consent are given at a meeting of the Executive Council at which neither the Sovereign nor the Governor-General is present if the Sovereign or the Governor-General is prevented from attending the meeting by some necessary or reasonable cause.
(2) The performance of the function or duty, or the exercise of the power takes effect from the date of the meeting unless another time is specified for the performance of the function or duty, or for the exercise of the power, to take effect.
(3) Neither the validity of the performance of the function or duty, nor the validity of the exercise of the power, can be challenged in any legal proceedings on the ground that the Sovereign or the Governor-General was not prevented from attending the meeting of the Executive Council by some necessary or reasonable cause.
This section defines the way the Executive Council gives advice to the Governor-General. It reflects the constitutional reality that the "Queen reigns, the Prime Minister and Cabinet rule, so long as they have the support of Parliament".
Section 3B Exercise of powers and duties by Administrator
(1) The Administrator of the Government may perform a function or duty imposed on the Governor-General, or exercise a power conferred on the Governor-General, if--
(a) The office of Governor-General is vacant; or
(b) The Governor-General is unable to perform the function or duty or exercise the power.
(2) The performance or exercise by the Administrator of the Government of a function or duty imposed, or a power conferred, on the Governor-General is conclusive evidence of the authority of the Administrator to perform the function or duty or exercise the power.
This section ensures that, should the Governor-General's office be vacant, an "Administrator of the Government" performs their duties.
Section 4 Regency
(1) Where, under the law of the United Kingdom, the royal functions are being performed in the same and on behalf of the Sovereign by a Regent, the royal functions of the Sovereign in right of New Zealand shall be performed in the name and on behalf of the Sovereign by that Regent.
(2) Nothing in subsection (1) of this section limits, in relation to any power of the Sovereign in right of New Zealand, the authority of the Governor-General to exercise that power.
A "Regency" is when the Sovereign cannot act as Sovereign, and someone else fills that role (usually the heir apparent). This section simply underlines the fact that New Zealand's head of state is not a New Zealander - the Regent of the United Kingdom will be Regent of New Zealand. Subsection (2) also unpins the fact that the Governor-General essentially acts as New Zealand's head of state de facto.
Section 5 Demise of the Crown
(1) The death of the Sovereign shall have the effect of transferring all the functions, duties, powers, authorities, rights, privileges, and dignities belonging to the Crown to the Sovereign's successor, as determined in accordance with the enactment of the Parliament of England intituled The Act of Settlement (12 & 13 Will. 3, c. 2) and any other law relating to the succession to the Throne, but shall otherwise have no effect in law for any purpose.
(2) Every reference to the Sovereign in any document or instrument in force on or after the commencement of this Act shall, unless the context otherwise requires, be deemed to include a reference to the Sovereign's heirs and successors.
This section sets out how the Sovereign becomes Sovereign, which is further set out by the Act of Settlement 1701.
References
- New Zealand Legal System (Third Edition - 2002), Chapter 4, part 2.1(i)
- Constitution Act 1986 from Wikipedia
- Constitution Act 1986 from Wikisource
