New Zealand Constitutional Law: Manner, Form, and Conventions

Manner and Form Requirements

Trethawon - The Privy Council upheld the manner and form of restriction on the Australian legislature. Even though it can be distinguished on the basis that, at the time, Australia had a colonial legislature as compared to New Zealand's sovereign Parliament.

Westco (HC) - Manner and form requirements can be applied (Obiter). At [93], McGechan J said, “While the point does not arise directly in this case, which is not a “manner and form” case but is a “content” case, I see no reason why the Court could not intervene in cases of non-compliance with the mandatory manner and form requirements as to passage of legislation at some suitable point before enactment.” If the content of the legislation offends, the remedies are political and ultimately electoral.

Ngaronoa (SC) - Obiter: enforceability of the entrenchment provision - the authorities quoted indicate they favour that they are enforceable but would prefer to resolve on a real question of that issue.

Substantive Restrictions

Sir Robin Cooke said, "The legal system was built on two complementary and lawfully unalterable principles: the operation of democratic legislature and the operation of independent courts." Shaw (CA) - Manner and form can be applied, but the courts do not have the power to consider properly enacted laws.

Implied Repeal

Thoburn (UK) - Implied repeal cannot be applied to constitutional statutes, confirms Thoburn in Fitzgerald v R (NZ).

Key Constitutional Conventions (Responsible Government)

The Governor General Acts on the advice of her ministers. There must always, therefore, be a ministry there to advise her. The Ministry must retain the confidence of the house. No confidence - they must act in a caretaker capacity only.

Testing Confidence

• By declaration of the government (Prime Minister's statement in the House, in the first debate of the year)
• Implied vote (Budget or money bills)
• Express (originating from the opposition) as an amendment to a motion. The motion must be sufficiently open-ended to raise the government's survival.

Caretaker Conventions

Applies after general elections or mid-term if the government has lost confidence.