New Zealand Constitution: a fusion of legislative acts, case law (stare decisis), customs (conventions) and treaties

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Author: Alexei Avtonomov

DOI: 10.21128/1812-7126-2020-5-26-38

Keywords: case law (stare decisis); constitutional interpretation; construction; conventional norm; custom; New Zealand; Treaty of Waitangi


The article examines the genesis of the Constitution of New Zealand, the formation of its constituent parts and the main sources of constitutional law; it generally profiles the Constitution. The article shows the mutual influence and interweaving of the components of the unconsolidated Constitution of New Zealand in contemporary conditions. In particular, the constitutional provisions presented in the Treaty of Waitangi are examined, and attention is focused on the contemporary problems of its current interpretation and application, although the historical context of its drafting and conclusion is shown. The article deals with the interpretation of some basic constitutional terms when using different official languages of New Zealand, first of all Maori and English tongues. In this regard, one of the urgent issues, which are being discussed quite widely in New Zealand, is the discrepancies found in the wording of fundamental constitutional provisions in the official texts of the Treaty of Waitangi in these two languages. The article examines a number of court decisions containing constitutionally significant precedents (stare decisis), including those on the application of the Treaty of Waitangi. The article shows how, as a result of the judicial complex interpretation of the Treaty of Waitangi and the legislation, the principles of the said Treaty have been developed. The article provides a general characterization of the laws and other regulatory legal acts that together form part of the unconsolidated Constitution of New Zealand. Special attention is paid to the 1986 Act of Constitution because of the importance of the constitutional issues regulated by this statute. The development of constitutional provisions in the 1986 Act of Constitution in comparison with the previous 1852 Act of Constitution is presented. At the same time, the laws, which are considered in New Zealand as an integral part of the Constitution, are summarized. The place and role of the laws of the United Kingdom of Great Britain and Northern Ireland in the modern Constitution of New Zealand are determined. Along with this, other regulatory legal acts that form part of the Constitution are being investigated, in particular, the Letters Patent and the Cabinet Manual. The article also presents New Zealand customs, which have constitutional significance, including conventional norms, and the peculiarities of their application.

About the author: Alexei Avtonomov – Doctor of Sciences in Law, LLD, Professor, Vice-rector of the Institute for International Law and Economics named after A.S.Griboedov, Moscow, Russia.

Citation: Avtonomov A. (2020) Konstitutsiya Novoy Zelandii: splav normativnykh aktov, sudebnykh pretsedentov, obychaev i dogovorov [New Zealand Constitution: a fusion of legislative acts, case law (stare decisis), customs (conventions) and treaties]. Sravnitel’noe konstitutsionnoe obozrenie, vol.29, no.5, pp.26–38. (In Russian).


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