27836v2a Learners Guide

US 27836 v2a
Learner’s Guide
LEGAL STUDIES
Unit Standard 27836

Version 2 | Level 2 | Credit 4
Explain concepts
of democracy and
government in a New
Zealand context
Licensed to:
Western Heights High School
2018 - 2a © ATC New Zealand
www.instant.org.nz
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US27836v2a Learner's Guide Licensed to Western Heights High School

Explain concepts of democracy and government in a 25092018-US27836-136986 INSTANT Education Solutions
New Zealand context 2a © ATC New Zealand www.instant.org.nz
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About this
Learner’s Guide
Learning Purpose & Outcomes
In this guide you will learn about four concepts of democracy and government. These concepts
include:
• rule of law
• separation of powers
• liberal democracy
• rights and their limitations
You will also learn about a number of different aspects of government that relate to these
concepts. These aspects include:
• the Magna Carta and limits on the power of the monarch
• relationship between the tangata whenua and the Crown in relation to Te Tiriti o Waitangi
• Parliamentary sovereignty and statute as the highest form of law
• absence of a fully written constitution
• role of the courts
• delegated legislation
For each of the concepts listed above, you will look at specific examples from New Zealand. You
will also have the opportunity to complete your own research task.
There are a number of words and key terms that may be new to you. These words have been
highlighted the first time they appear in the guide and a defined at the back of the guide in the
glossary.
Licensed to Western Heights High School US27836v2a Learner's Guide

25092018-US27836-136986 INSTANT Education Solutions Explain concepts of democracy and government in a
2a © ATC New Zealand www.instant.org.nz New Zealand context
iii

1
Contents
Concepts of government 2
Rule of law 3
Separation of powers 6
Rights and their limitations 10
Liberal democracy 14
Aspects of Governance Part 1 19

Magna Carta 20
Te Tiriti o Waitangi 24
Parliamentary Sovereignty 30
Aspects of Governance Part 2 33

Absence of a written constitution 34
Role of the Courts 38
Delegated Legislation 43
Glossary 48

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LESSON 1:
Concepts of
government
Learning Objectives
In this lesson, you will learn about different concepts of government. A space has been left
By the end of this lesson, you will be able to explain what the on the right of every
following concepts of government are and how they operate in New page for you to make
notes about what
Zealand. you are learning.
Rule of law
Separation of powers
Liberal democracy
Rights and their limitations
What do What is government? Brainstorm some answers in the

You Think? space below.

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LESSON 1: Concepts of government
Rule of law
What is the rule of law?

The rule of law is the idea that all people are equal
before the law. Those involved in government must
make sure that they treat all people that they deal
with equally and fairly.
How is it applied?
According to the rule of law, the law must be implemented fairly for
all people regardless of who they are. A person should not be given
special treatment just because they are rich or have influence in
society (i.e. are a celebrity).
How does the rule of law apply in

New Zealand?
New Zealand has a very good record of applying
the rule of law.
Transparency International ranks countries
according to how they apply the rule of law.
According to this organisation, New Zealand has
consistently followed the rule of law, ensuring
fairness and equality throughout all society.
Check Your
1. Who does the rule of law apply to?
Understanding
2. How should different people be treated according to the rule of law?
Continued on next page...

4
3. A celebrity wants to skip passport control because they do not think they
should have to wait in line with all the other people. Is this permitted under the
requirements of the rule of law? Why? Why not?
Who is required to implement the rule of law?

All those who work for the government (including the judiciary,
legislature, and executive) are required to treat the people they deal
with fairly and equally. People working in government include:
• judges and other decision makers
• Members of Parliament and other people involved in the law
making process
• those working for the executive branch of government,
including government ministers, employees for government
departments, local government employees, and so on.
Legislation
One of the key laws that affirms the rule of law is
the Bill of Rights 1990. This law highlights a number
of civil and political rights that all apply to ALL
people in New Zealand.
The law applies to all actions of the legislative, executive, and
the judicial branches of government.
Check Your 1. Does New Zealand have a good record of

Understanding applying the rule of law? Explain?

5
2. What is one law that affirms the rule of law?
3. Who is required to implement the rule of law?

6
Separation of powers
There are three main powers in government. These are:
Legislature
The body that is responsible for making laws. It is
also known as Parliament.
Executive
The body that implements laws and runs the
administrative branches of government such as the
treasury, transport, education, health, and so on.
Judiciary
The body that makes decisions about specific
cases based on the law that has been created by
Parliament and common law.
An important concept of government is that each of the powers

highlighted above has to operate separately and independently. One
power is not to do the roles of another power.
Why is the rule in place?

This rule is in place in order to make sure that the government
does not do things that are against the rule of law or other aspects
of a liberal democracy. If each of the branches in government are
separate, they are able to stop each other from taking actions that
are undemocratic or against the rule of law.
Example
The executive may decide to create a law that requires all people
over 65 to pay 50% tax. This law is clearly undemocratic as it
is discriminatory against people of a certain age group. If the
executive had full control of the legislature and the judiciary, then
they would be able to implement the law and then punish people
for not following this law. However, because of the separation
of powers, this could not happen. The legislature would debate
the law and would (hopefully) come to the decision that this law
was undemocratic and wrong. Furthermore, even if the law was
passed, the judiciary may refuse to apply the law because of its
inherent unfairness (although it is generally bound to follow all
laws that Parliament creates).

7
What do In your own words, describe what the separation of

You Think? powers is.
New Zealand and the Separation of Powers

In New Zealand each of the three powers is considered to be
sufficiently separate from the other.
Has this always been the case?

No! Prior to 1996, New Zealand elected its government
through the FPP (First Past the Post) system. Under this
system, the executive government was easily able to
push laws through the legislature (Parliament) as it had
the majority of seats in the house. Basically, it could
pass any law through the legislature that it desired.
How did this change?

This changed when the MMP (Mixed Member Proportional) voting
system was applied in the 1996 elections. The MMP voting system
meant that the executive government would generally be ruled by a
coalition of different parties, and not one ruling party. Minor parties
in the coalition could oppose new laws proposed by the major party
both as part of their role in the executive and in the legislature. This
change created a greater division between the executive and the
legislature, therefore improving the separation of powers in New
Zealand.

8
Legislation
The Constitution Act 1986 is the main law that puts
into legislation the different branches of government.
Three sections in the act highlight the specific roles
of the executive, legislature, and judiciary. To read through the
different roles that each branch has, go to www.legislation.
govt.nz and type Constitution Act 1986 into the search bar.
Who is required to implement and follow the separation of

powers?
All the people who work for each of the branches of government are
required to implement and follow the separation of powers. These
include:
Judges. Judges should only make decisions on the

cases before them. They should not comment on
laws that are before Parliament or the way that the
executive has implemented laws.
Parliamentarians (those in the legislature).

Parliamentarians should not interfere with certain
judgements made in court. They also shouldn’t
interfere with the role of those in the executive. They
can, however, criticise the actions of the executive if
they think the actions are not in the best interests of
the public.
Government ministers (those in the executive).

Government ministers should not interfere with
specific judgements made by the judiciary. They
also should not interfere with legislative processes.
If all people and organisations involved in government follow their

set role and do not interfere with the other powers or branches
of government, then the separation of powers is thought to be
maintained. The chances that one branch of government can
override its powers (and therefore take actions that are considered
to be undemocratic) are restricted.

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Examples of the separation of powers

Executive government
The executive government is currently controlled by the Blue
Party. The Blue Party wants to make New Zealand more
attractive to investors and therefore wants to relax the rules
that are highlighted in the Resource Management Act 1991.
The Party cannot change the law themselves as the creation
of law is not a role of the executive government. Only the
legislative branch has the power to change laws. If the
executive branch just decided to make a law themselves,
they would be acting outside the separation of powers and
their actions would be sanctioned by the other two branches
of government as well as the general public.
Check Your 1. Which law refers to the separation of powers

Understanding in New Zealand?
2. Who is required to follow the separation of powers?

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All branches of government have a number of

rights. These are areas where they are permitted to
act. They also have a number of limitations or areas
where they are not permitted to act.
In this section, we will look at the rights and
limitations that Parliament or the Legislature has in
relation to making and repealing laws.
Around the world, most governments have limitations placed on
them in relation to how they make laws. Many governments restrict
law making action through using written constitutions. Other
countries, like New Zealand, have laws, rules, and principles that
limit the power of the legislature.
What do Why do you think it is important for Parliament to have

You Think? some limitations on their law making ability? Explain.
Rights and their limitations in New

Zealand
It is important to note Parliament is able to make any
law that it desires, provided that it follows proper
process. Although there are limitations in place,
these are ‘self-imposed’ limitations. Parliament
could easily create a law that abolishes these
requirements. (You will learn more about statute
being the highest form of law in the next lesson).

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Areas where Parliament has created laws to place limits on its power
include:
1. Laws that are against human rights or
civil rights.
If a law is against the Human Rights Act 1993
or the Bill of Rights Act 1990, the government
is told so by the Attorney General during the
law making stage. Although the government
can technically still go ahead and make the
law, it would be unwise to do so because of the
public backlash that would come from it.
2. Laws that are against the principles of the

Treaty of Waitangi.
The government is required to take the
principles of the Treaty of Waitangi into
account when making new laws. Although the
government can technically override this, there
may be protests and strong opposition if they do
(and this has often happened in the past).
3. Laws that are against Parliamentary

process.
The government cannot make any laws against
election law unless a ‘supermajority’ of 75%
is obtained. For example, the time between
elections can only be extended if over 75% of
Parliament votes to extend the time. Such a
high percentage means that a bill is unlikely to
pass unless there is an overwhelming reason
for a change to be made.
Who is required to follow the limitations placed on

government?
The branch of government known as the
‘legislature’ or ‘Parliament’ is required to follow
the limitations that are put in place. This includes
all the people who are working in Parliament –
Members of Parliament, The Speaker of the House,
assistants, and so on.
Who is required to keep the government accountable?

All citizens in society have the responsibility to make sure that
Parliament follows the limitations that are put in place. The media
and other watchdogs may make it known to the public if they
suspect that Parliament is acting beyond its limitations.

12
The office of the Attorney General will also make a comment if it

believes that Parliament is making a law that is against the Bill of
Rights. Section 7 of the Bill of Rights Act 1990 says that following:
7 Attorney-General to report to Parliament where Bill

appears to be inconsistent with Bill of Rights
• Where any Bill is introduced into the House of Representatives,
the Attorney-General shall,—
o (a)in the case of a Government Bill, on the introduction of that
Bill; or
o (b)in any other case, as soon as practicable after the
introduction of the Bill,—
bring to the attention of the House of Representatives any provision
in the Bill that appears to be inconsistent with any of the rights and
freedoms contained in this Bill of Rights.
Legislation
The following laws place limitations on the role of
Parliament.
1. The Constitution Act 1986
2. The Bill of Rights Act 1990
3. The Human Rights Act 1993
There are also a number of international treaties and covenants
that limit the power of government to make new laws. Although
the government could ignore these laws, they would probably
get a lot of criticism from the international community.
Examples include: The Universal Declaration of Human Rights,
International Covenant on Civil and Political Rights, and so on.
Try it for 1. Name some laws that put limits on the power of
Yourself Parliament in New Zealand.

13
2. What are three areas where Parliament is limited in its law making power?
3. Who reports to Parliament if a bill is inconsistent with the Bill of Rights?

14
Liberal democracy
Another important concept of government is the

idea of a liberal democracy.
What is a liberal democracy?

A liberal democracy is a form of government that
operates under principles of liberalism. For most
western countries, it is thought that a liberal democracy is the
best way for a government to operate. This is because a liberal
democracy offers the greatest rights to its citizens.
A liberal democracy typically:
has respect
for human
rights
protects
has an
minority
independent
peoples in the
judiciary
country
Elements
of a liberal
democracy has an
has universal
unrestrained
suffrage
media
has
has free and constraints
fair elections on executive
power

15
Although most countries are not able to meet these ideals perfectly,
a country is labelled as a liberal democracy if it strives to meet these
ideals. Countries that are considered to be liberal democracies
include:
Australia New Zealand United States

of America
Canada South Africa India Most countries

in Europe
Liberal democracy in New Zealand

In general, New Zealand is considered a liberal democracy. This is
because it strives to meet the different characteristics of a liberal
democracy when making and implementing laws.
What do Do you think New Zealand is a true liberal democracy?

You Think? Why? Why not? Explain.

16
Here are some reasons why New Zealand can be

considered as a liberal democracy
1. New Zealand has respect for human rights
New Zealand has a Human Rights Commission
where people can complain about human rights
abuses and these are investigated by a government
agency. If someone is discriminated against in
their workplace because of their ethnicity, this is
considered to be illegal (under human rights law) and
it is investigated by the Human Rights Commission.
2. New Zealand has universal suffrage

All New Zealand citizens over the age of 18 are
permitted to vote (unless they are in prison).
3. The media in New Zealand is unrestrained

The media is free to write about any story of public
interest, provided that it does not go against specific
legislation or decisions made by the court where there
is name suppression. For example, if the media wants
to criticise a policy of the government, they are free to
do so, provided that it is not against defamation law.
Who is required to follow the principles of a liberal

democracy?
Basically, all those who work for the government are required to
uphold all the principles of a liberal democracy. They do this by
following the laws and requirements consistently.
Examples
The Human Rights Act 1993 makes it illegal to discriminate
against someone based on their religion. It would be against the
principles of a liberal democracy for a judge to make a decision
based on the fact that a person is a Muslim or Christian.
Likewise, Members of Parliament cannot make laws that
restrict the media from reporting the news unless there is a
clear legal reason to do so that is not against the principles
of a liberal democracy.

17
Have there been any situations where the government has

made laws against the principles of a liberal democracy?
Yes! For example, in 2010 Parliament decided that prisoners who have
been sentenced to longer than three months in prison are not permitted
to vote. Many people have argued that this is against the fundamental
concepts of a liberal democracy. The principles of a liberal democracy
have not been followed by the government in this case.
Legislation
Technically, all laws created by the government
should have the aim of creating a liberal
democracy, where all people are treated equally.
There are a number of laws in New Zealand that
especially focus on the principles of a liberal
democracy. These include:
• Human Rights Act 1993
• The Electoral Act 1993
• The Treaty of Waitangi Act 1975
Try it for 1. What is a liberal democracy?

Yourself
2. Is New Zealand thought to be a liberal democracy? Why? Why not?

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3. In New Zealand, who is required to follow the principles of a liberal democracy?
4. What laws have a specific focus on creating a liberal democracy in New Zealand?

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LESSON 2:
Aspects of Governance
Part 1
Learning Objectives
By the end of this lesson, you will have knowledge of three different
aspects of governance. These include:
the Magna Carta and limits on the power of the monarch
the relationship between tangata whenua and the Crown in
relation to Te Tiriti o Waitangi
Parliamentary sovereignty and statute as the highest form of law.
You will also be able to explain the links that these have to concepts
of democracy and government and to identify examples related to
aspects of governance.
Look at the aspects of governance in the list above.

What do
Have you heard of any of these aspects before? Which
You Think? ones? Explain what you know about them.

20
LESSON 2: Aspects of Governance Part 1
Magna Carta
The Magna Carta was first issued in 1215. Although it is old, it

contains some very important principles. It places restrictions on the
power of the monarchy and protects the rights of citizens. The main
legal idea that comes from the Magna Carta is as follows:
“To no one will we sell, to no one will we refuse or

delay right or justice.”
This phrase basically means that:

• a person cannot be put in prison (or punished) if there is no law
that prohibits their actions
• judgement will not be by the King but by the person’s equals
• no one will be denied justice
A surviving manuscript of the Magna Carta.
This aspect of governance relates to:

Rule of Law
The Magna Carta says that all people who have
been charged with a crime are to be tried before
the law. The rule of law expands on this by
emphasising the requirement for equality in all
interactions with the branches of government.
Separation of Powers
The Magna Carta can be seen as the beginning of
the doctrine of the separation of powers. Under the
Magna Carta, the monarch did not have the right
to judge individual cases. Instead, individual cases
were to be heard according to the law and before a
judge. The Magna Carta emphasised that all power
was not to be in the hands of one person.

21

The Magna Carta places limitations on the monarch
and gives the right to citizens to have cases relating
to them heard in accordance with the law. Although
it is old, it still has importance today, even in New
Zealand.
The Magna Carta in New Zealand

In New Zealand, the monarch has very little actual power. Although
the monarch has a lot of symbolic power, they
are unable to change laws or impact politics in
New Zealand. The only time that you may see
the monarch involved in New Zealand politics
is through the Governor General. The Governor
General opens and closes Parliament, and also
signs off laws. These actions are also largely
symbolic.
It is because of laws like the Magna Carta that
the role of the monarch is restricted. In many ways, the Magna
Carta paved the way for countries like New Zealand and the United
Kingdom to be liberal democracies that embrace human rights.
Example
Colin Craig, leader of the Conservative Party, decided to sue Green
Party leader, Russel Norman, for defamation. Craig sued Norman for
defamation after Norman made comments about Craig at the ‘Big Gay
Out’ event in 2014. At the event, Norman announced that Craig thinks
‘a woman’s place is in the kitchen and a gay man’s place is in the
closet’.
Craig gave Norman a deadline to retract and apologise for his
comments; however, Norman refused to do so. Lawyers for Norman Colin Craig
said that his comments were 'colloquial suggestion' and were not
supposed to be taken literally. Norman said that he was suggesting
that Craig’s attitudes towards women and gay people were outdated
and disrespectful.
Craig said, ''I may have a difference of opinion on what we define as
marriage. But that is not vilifying people….This is really just about
public reputation and establishing accuracy around what people
think…'
On 10 October 2014, both parties settled the law suit out of court and Russell Norman
agreed to pay for their own legal expenses.

22
Check Your
1. What happened in this case?
Understanding
2. If the case went to court, who would decide the outcome?
3. If the case went to court, what would the judge’s decision be based on?
4. Would personal opinion come into the case?
5. How does this situation relate to the Magna Carta?

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6. Imagine the judge is a Green Party supporter. How would this affect the case?

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Te Tiriti o Waitangi
The Treaty of Waitangi is New Zealand’s founding document. It was

signed in 1840 between the British Crown and various Māori chiefs
throughout the North Island of New Zealand. Prior to this time, a
large number of Europeans had arrived in New Zealand and created
problems with their lawless behaviour. The French also attempted
to take over New Zealand. Māori asked the British government for
protection. This eventually resulted in the two groups signing the
Treaty of Waitangi.
The Treaty had three articles.
• Article 1 established the British as the Governor of New
Zealand, responsible for the operation and running of the
country.
• Article 2 recognised Māori ownership of their lands and other
properties.
• Article 3 gave Māori rights as British subjects
There have been many problems with the Treaty of Waitangi
because the Māori version and the English version are very different
from each other.
Effects of the Treaty

The Treaty prevented anyone except
the Crown from buying land from
Māori. Although this worked to the
benefit of both parties in the beginning,
as the tribes willing to sell land
decreased, the Crown used more
dubious methods to buy land from
Māori. For example, although Māori
owned land in collective groups, people
appointed to buy land for the Crown
would not get consent from the whole
group or tribe before buying the land.
This caused a lot of conflict about the
validity of certain sales.
Eventually, the unfair purchase of land led to the New Zealand Wars.
The New Zealand Wars occurred from 1845 to 1872 between about
18,000 British troops and about 4,000 Māori warriors. It resulted in
extensive areas of the Waikato and Taranaki being confiscated by
the British.

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After this time, the Native Land Court

was set up. This court alienated more
Māori from their land. In 1860, Māori
held over 80% of all the land in the North
Island, by 1939 they only had 9% of the
land.
The importance of the Treaty and the
promises made in it to Māori were
gradually forgotten by the New Zealand
government. In fact, the Treaty was never
ratified by the British and it had no legal
force for over a century. One famous
New Zealand case in 1877 established
that the Treaty was a ‘legal nullity’ and
the courts or government did not have
to follow the terms of the Treaty. This
situation, unfortunately, continued in
New Zealand until the 1970s.
The Waitangi Tribunal

In the 1960s and 1970s, Māori were involved in a series of protests
against the New Zealand government. Although there had always
been some elements of protest towards the government, this was
the first time that the protests were seriously listened to.
The protests focused on issues that were important to Māori, such
as land rights, language rights, and other cultural rights. Having the
Treaty of Waitangi ratified was particularly important for Māori.
One outcome of the protests was the establishment of the Treaty
of Waitangi Act 1975. This law created a ‘Waitangi Tribunal’ where
Māori would be able to raise grievances. However, one key problem
with this law was that Māori could not raise grievances that had
happened in the past.
In 1985, the Treaty of Waitangi Act was amended so that the
Tribunal could investigate past grievances. This meant the Tribunal
was a much more effective tool in helping to create positive change
for Māori.
WAITANGI TRIBUNAL
TE RŌPŪ WHAKAMANA I TE TIRITI O WAITANGI

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The Treaty of Waitangi relates to the following concepts of

democracy and government.
Rights and Limitations

The New Zealand government is required to take
the rights of Māori into account when making
law. The Treaty of Waitangi is mentioned in many
specific laws. These include but are not limited to:
• State-Owned Enterprises Act 1986
• Treaty of Waitangi Act 1975
• Local Government Act 2002
The government cannot make changes that affect Māori without
consulting with them first.
Liberal democracy
A liberal democracy takes into account the rights
of all ethnic groups. Indigenous groups, such as
Māori, are recognised as having a unique and
important role in New Zealand society. Under
a liberal democracy, the views and opinions of
indigenous groups are taken into account when laws are changed or
updated.
Example
On 25 May 2009, a hikoi (protest) of
500–700 people was held in order to
protest the structure of the Auckland
super city. Protesters opposed proposed
legislation that would exclude Māori
from having seats on the Auckland
council. They argued that the legislation
would be against the principles and
spirit of the Treaty of Waitangi.
In response to the protest (and other public disapproval),
the law altered. The final law allowed for unelected Māori
representation on the super city council.

27
Example
An example of how the Treaty has been used by the Courts to
influence the law is in the Ngati Apa decision. Eight Māori iwi
failed to be awarded rights to farm mussels on the west coast
of New Zealand. In 1997, they took the case to the Māori Land
Court claiming that the land was Māori customary land and
therefore they should have rights to farm it. The Māori Land
Court said that they did not have the jurisdiction to make a
decision on it because it was not Māori customary land.
The case progressed to the High Court. In the High Court, it
was ruled that when the dry land beside the foreshore had been
purchased by the Crown, the foreshore and seabed was also
purchased. It was therefore owned by the Crown in common law.
In 2003, however, the Court of Appeal overturned this decision
and decided that the Māori Land Court could determine
whether the foreshore and seabed could be regarded as Māori
customary land.
The ruling caused a lot of controversy with the public. Many
people thought that this would prevent them from having
access to the foreshore and seabed. Many claimed that if the
Māori Land Court had the jurisdiction to hear such claims then
pockets of beach around New Zealand may not be accessible
to all New Zealanders.
As a result, the government made a law called the Foreshore
and Seabed Act 2004. In this law, it was stated that all the
foreshore and seabed was the property of the Crown. This
effectively meant that iwi could not apply to the Māori Land
Court about claims relating to the foreshore and seabed.
In 2011, the foreshore and seabed act was repealed and
replaced with the Marine and Coastal Area (Takutai Moana) Act
2011. This act tried to resolve the issue of preventing Māori to
apply to the Court to have their customary rights recognised.
Although it allows iwi to do this in some limited situations, it still
does not give iwi the unrestricted right to do so.

28
Check Your 1. Why did eight Māori iwi take a case to the
Understanding Court of Appeal?
2. What did the Court of Appeal decide?
3. How did the public react to the decision that was made?
4. How did the government respond to the court's decision?

29
5. How was the Foreshore and Seabed Act 2004 altered in 2011?
6. What does this situation tell us about the importance of the Treaty of Waitangi in
New Zealand?

30
Parliamentary Sovereignty
Parliamentary sovereignty is an important

aspect of governance. It refers to the idea
that out of the three powers (the judiciary,
the executive, and the legislature), the
legislature, or Parliament, is sovereign.
In practical terms, this means that
Parliament can make any law and the other
two powers are not able to prevent it from
doing so. Statute made by Parliament is
always higher than any decisions made by
judges (the judiciary) and any actions taken
by the executive. If Parliament disagrees with any decisions made
by the judiciary, it is able to create new laws that block the judiciary
from making similar decisions in the future. Likewise, if Parliament
is unhappy with any of the actions taken by the executive, it can
also create laws that make it illegal for the executive to take certain
actions.
A good example of this was in the Ngati Apa case you studied in
the previous section. In this case, the courts made a decision that
created a public outcry. As a response to this, Parliament created a
law that blocked the court’s decision.
Public outcry MPs listen and Bill becomes

propose bill law
Parliamentary sovereignty relates to the following concepts of

government and democracy.

31
In the previous lesson, you learnt that the three
branches of government are to operate separately
and independently. Although they operate separately
and independently, this does not mean that they are
equal in power. Parliament (the legislature) is always
able to:
• make a new law to change the way that the judiciary is
interpreting current law
• make a law to change how the executive operates.

Parliament technically has the right to make any law
that it chooses. However, there are many checks
and balances in place that put limitations on its
role. These limitations include:
• not creating law that discriminates against
people according to the Human Rights Act 1993
• not creating law that is against the civil liberties of a person
according to the Bill of Rights Act 1990
• not taking actions that are against the principles of the Treaty
of Waitangi.
Example
The executive branch of government is responsible for the
administration and processing of marriages in New Zealand. In
2013, Parliament agreed to change the definition of marriage to
allow partners of the same gender to marry each other. The name
of this law is the Marriage (Definition of Marriage) Amendment Act
2013.
The executive government did not have the final say in the
decision, instead a Member of Parliament (called Louisa Wall)
proposed the law change and all Members of Parliament voted on
it.
All members of the executive who used to process marriage
applications are not able to oppose the new law or refuse people
who wish to marry each other. They have to follow the law of
Parliament regardless of their ethical or moral beliefs.

32
Check Your 1. What law change was made in 2013 according

Understanding to the information on the previous page?
2. Who had the final say in relation to this law change?
3. What happens if an employee of the executive government refuses to issue

marriage licences for same-sex couples? Are they be able to do this?
4. Is Parliament able to change the law back if it decided to do so? Why?
5. What does this scenario say about the sovereignty of Parliament?

33
LESSON 3:
Aspects of Governance
Part 2
Learning Objectives
By the end of this lesson you will have knowledge of three different
aspects of governance. These include:
absence of a fully written constitution
role of the courts
delegated legislation.
You will also be able to explain the links that these have to concepts
of democracy and government and to identify examples related to
aspects of governance.
Look at the aspects of governance in the list above.

What do
Have you heard of any of these aspects before? Which
You Think? ones? Explain what you know about them.

34
Absence of a written constitution
An aspect of government that is important to New Zealand’s specific

government is the absence of a fully written constitution.
A written constitution is a document that is the highest form of
law in a country. A constitution restricts politicians or lawmakers
from making any law or taking any actions that are against the
constitution.
One of the most famous constitutions in the world is the constitution
of the United States of America. You may have heard of Americans
claiming their ‘constitutional rights,’ such as the right to bear arms.
This right is entrenched in law and cannot be changed by lawmakers
(except in exceptional situations). A constitution gives people a
‘grounding’ or ‘base’ where their rights are guaranteed or protected
(unlike normal laws that can be changed by a simple majority).
New Zealand does not have a written constitution. This means that
there is no visible ‘base’ where a person has rights that cannot be
altered by a simple majority in Parliament.
Is it absolutely necessary to have a constitution?

New Zealand has never had a written constitution and it has not
experienced any major problems in relation to human rights or the
operation of government. The rationale for not having a written
constitution is that Parliament represents the will of the people and
the will of the people should always prevail. Parliament has made
laws that protect its citizens and these are regularly updated to give
greater rights to citizens.
On the other hand, if a written constitution existed, then law that
is against constitutional rights could be overruled by the courts.
However, without a written constitution, it is harder for the courts to
make a definitive statement against discrimination (as they have to
follow law that is written by Parliament).
Absence of a written constitution relates to the following concepts
of government and democracy.
Rights and limitations

Having a written constitution places an enforceable
limit on the rights of government and protects the
rights of citizens. Not having a written constitution
effectively means that Parliament can make any
law they desire. While the laws made by Parliament
may accurately reflect the will of the majority of

35
people, this does not necessarily mean that human rights will be
fully protected.
Rule of law
A written constitution normally states that all citizens
have equal rights. Without this right written into a
constitution, it is technically able to be ignored by
Parliament (although they would be severely criticised
by the media and other ‘watchdogs’ for doing so).
Example
Over the last decade, there has been a lot of debate about
New Zealand developing a written constitution. Currently, New
Zealand is only one of four countries in the world that do not
have a written constitution. Many people think it is time for
a written constitution to be developed. In November 2013,
a report was published by the Constitutional Advisory Panel
about the status of New Zealand’s constitution. Reasons to
create an unwritten constitution were also analysed.
It stated that a written constitution would:
• make the constitution more accessible and easier to
understand
• make the constitution a more effective check on state power
because it would give the judiciary authority to check whether
legislation was consistent with the constitution.
• protect important rights, institutions, and values.
However, there were also reasons why changing to a written
constitution would not necessarily be very beneficial. These
included:
• the current constitution is already working well, resulting in
a stable and effective government
• the current flexibility and ability to adapt to changing
circumstances has allowed the country to develop
pragmatic solutions to issues as they arise
• the values of government can stay in line with changing
social values with an unwritten constitution (but not so
easily with a written one).
Part of the document included a number of recommendations
to the government about creating a written constitution. They
recommended that:
• elements of the current (unwritten) constitution should be
entrenched

36
• there is currently no public support for a supreme

constitution (such as the constitution in the United States of
America)
• the current constitution is difficult to understand because it
is made up of a number of different sources. There should
be greater access to documentation that outlines how New
Zealand’s constitution operates and what the functions of it
are
• people should be given the opportunity to voice their
opinion about whether New Zealand should adopt a written
constitution or not. Without information, it is very difficult
for the public to decide whether they would like a written
constitution or not.
Check Your 1. What are New Zealand’s constitutional

Understanding arrangements?
2. What would be the benefits of New Zealand adopting a written constitution?

37
3. What are some reasons for keeping our current constitution?
4. In your opinion, would the rule of law be strengthened in New Zealand if the
constitution was written?

38
Role of the Courts
Another aspect of government is the

role of the courts (or judiciary). The
courts are one of the three branches
of government. Their role in the
functioning of government is very
important. As part of their role they:
• interpret law
• add to law
• ensure that the law is implemented fairly and accurately.
Interpreting the law

The courts interpret the law that has been developed by Parliament.
When a case is heard before the courts, the courts need to apply
legislation to the specific case. Judges (or a jury) are required to
decide on what the interpretation of the law should be. Lawyers will
argue specific interpretations based on the needs of their clients,
trying to convince the judge or jury that their interpretation is correct.
For example, section 219 of the Crimes Act 1961 states:
Theft or stealing is the act of,—

(a) dishonestly and without claim of right, taking any property with
intent to deprive any owner permanently of that property or of any
interest in that property;
There are many different ways that this law can be interpreted. For
example, what is the meaning of dishonestly? What does ‘intent to
permanently deprive’ mean? How is dishonesty proven? How can it
be proven that a person intended to permanently deprive a person?
One way to interpret the law is to base the interpretation on past
cases. If a law was interpreted one way in the past, then it can
be argued that it should be interpreted that way in the future. In
court cases lawyers will often refer to past cases to prove their
interpretation.
Adding to the law

Parliament is unable to write law that covers each and every
situation that may occur. Courts, therefore, need to ‘add’ to the law
so the situation that is before the courts is adequately responded
to. For example, downloading and streaming movies without paying
is a relatively new activity. Ten years ago, people were not able to

39
download or stream movies in the way that they currently do. Until
recently, there were no laws that covered this, even though most
people would agree that it was an activity that should be prohibited
by law.
The courts are able to use their power to add to existing laws. They
can expand the law to cover areas that were not initially thought of by
Parliament. For example, let’s look at s219 of the Crimes Act again.
It says:
Theft or stealing is the act of,—

(a) dishonestly and without claim of right, taking any property with
intent to deprive any owner permanently of that property or of any
interest in that property;
Downloading and streaming movies without paying was probably

not on the mind of Parliament when this law was enacted. However,
the courts could add to the law by making statements that
duplication of electronic files is considered as ‘taking property,’ or
streaming a movie online is ‘intent to deprive’.
An example of this actually happening in New Zealand is in the Ngati
Apa case. In this case, the courts added to what can and cannot be
considered as Māori customary law.
Often Parliament will see that the courts are adding to law and will
then make their own laws to reflect the intent of Parliament (and
not the courts). For example, the Foreshore and Seabed Act 2004
was a response to the courts decision on what can and cannot be
considered as Māori customary law.
Ensuring that the law is implemented fairly and

accurately
At all times, it is the role of the courts to implement the law fairly
and accurately. Judges must make decisions based on the law as it
is written. They must interpret the law according to rules that have
been set in previous cases. They
must make sure that justice is
served in all cases. Fortunately, in
the New Zealand judicial system,
if one party does not think that
the law has been applied fairly,
they are able to appeal a case.
This means that the case will be
heard again.

40
The role of the courts relates to the following concepts of

government and democracy:
Rights and limitations
The courts are limited in the legal decisions that
they can make. Judges cannot make decisions
that are clearly against the law. If a judge makes
a decision that is not fully in accordance with a
common understanding of the law, then he or she
will need to provide clear reasons for doing so.
The separation of powers ensures that Parliament is
sovereign over the judiciary and the executive. This
means that if the judiciary makes a decision that is
against the will of the general public, Parliament (as
representatives of the public) are able to enact laws
to repeal the decision made by the judiciary.
In this case study, you will look at how the meaning of laws have been altered by
Parliament. In particular, you will look at how the meaning of the word ‘dishonestly’ from
section 19 of the Crimes Act 1961 has been changed by judges.
R v Coombridge [1976] 2 NZLR 381 (CA)

Schindler owned two houses in the town of
Newton. He asked Coombridge to take care
of the properties for a while. As part of looking
after the properties, Coombridge was required
to collect rent from the tenants who were living
in the property. With the money collected,
Coombridge was then required to pay
Schindler’s mortgage. Coombridge discovered
that Schindler had moved to Australia and was not planning on returning to New Zealand.
As Schindler owed Coombridge a lot of money, Coombridge decided to keep the money
from the tenants for himself. Coombridge was charged with theft under s222 of the Crimes
Act 1961.
In order for Coombridge to be found guilty, he had to have acted dishonestly. In the Court
of Appeal there was an in depth discussion about whether Coombridge’s actions were
dishonest. It was decided that Coombridge had done nothing dishonestly (ie he honestly
believed that what he was doing was justified and he did not try to hide this). He therefore
was not guilty of theft under the Crimes Act.
R v Ghosh [1982] QB 1053

Ghosh was a surgeon at a hospital in Great Britain. He asked a patient to pay him directly
for an operation. All fees for operations were normally paid directly to the hospital.

41
The patient paid the fee to Ghosh. Ghosh was

subsequently charged with theft. At his trial,
Ghosh argued that he did not act dishonestly
because the money was legitimately payable
to him as ‘consultancy fees.’ In this case, the
judge asked the jury to consider the meaning
of honesty. He said that the jury needs to ask
themselves two questions.
a) Was the defendant’s conduct dishonest according to the standards of a ‘reasonable
and honest person’?
b) Did the defendant know what he was doing was dishonest (according to the
standards of a reasonable person)?
If both questions can be answered as ‘yes’ then Ghosh would be considered guilty. It was
decided by the jury that Ghosh did act dishonestly. He was found guilty of theft.
R v Hayes [2008] NZSC 3

Hayes was in a car accident and suffered
injuries. Hayes received ACC for these injuries.
She had to submit declarations signed by her in
order to receive weekly compensation payouts.
She received these payouts from 1997–2004.
About one year after the accident, Hayes
started working on her own business, related
to farming. She received payments from ACC while she was working on her business. This
was against ACC rules. Hayes was then charged with taking and dealing with documents
with intent to defraud.
The case went to the Supreme Court. In the Supreme Court, Hayes argued that she had not
acted dishonestly. She believed that the declaration she was making was that she could not
work in her old profession (as a school teacher), not that she could not work in any job at
all. Hayes argued that she did not think that running a business was being ‘employed.’ She
also argued that she was not intelligent enough to understand the form – and got evidence
from a doctor to prove it!
The judges did not follow previous decisions, such as the decision made in R v Ghosh. In
the Ghosh case, the judges stated that the following question needs to be asked:
Was the defendant’s conduct dishonest according to the standards of a ‘reasonable and
honest person’?
The judges in the Hayes case said that this question is no longer valid. They said that
the law created by Parliament does not state 'reasonable' at all in relation to the term
‘dishonestly’. It therefore doesn’t matter what a reasonable person thinks or would do. All
Hayes has to do is prove that she believed that she was not acting fraudulently.
A new trial was ordered on the basis of this legal reasoning.

42
Check Your 1. Explain the three main roles that the courts
Understanding have in relation to the law.
2. What can Parliament do if it does not agree with the way the judiciary has applied
a law?
3. What do the cases say about how judges can make changes to the law?

43
Delegated Legislation
Normally, only Parliament can create legislation. However, there are

a number of situations in New Zealand where the role of creating
legislation is delegated to other organisations. Local government is one
key area where the power to make law is delegated. Local governments
are able to make laws in a number of different areas. These laws,
however, only apply to the area where the council operates.
‘Local government’ is the term used to describe regional
government. Generally, a country can be divided into regions based
on geographic or demographic divisions.
New Zealand is a country that is divided into regions. Each of
these regions are run by local councils. Local councils can make
their own laws, called bylaws, in a specific number of areas. Each
council must follow national legislation when making new bylaws.
The relevant law relating to local government in New Zealand is
contained in the Local Government Act 2002.
There are 78 local governments in New Zealand:
Source: http://de.academic.ru/pictures/dewiki/78/NZTerritorialAuthorities.png

44
Section 10 Purpose of local government

(1) The purpose of local government is— (a) to enable democratic
local decision making and action by, and on behalf of,
communities; and (b) to meet the current and future needs of
communities for good-quality local infrastructure, local public
services, and performance of regulatory functions in a way that is
most cost effective for households and businesses.
(2) In this Act, good-quality, in relation to local infrastructure, local=
public services, and performance of regulatory functions, means
infrastructure, services, and performance that are— (a) efficient;
and (b) effective; and (c) appropriate to present and anticipated
future circumstances.
Local government is meant to help the local community with

decision making. It does this through creating bylaws and
implementing these bylaws. The scope of local government
responsibility is quite wide. For example, some of the areas that
local government may deal with includes:
providing
water
collecting
and
libraries
disposing of
rubbish
Responsibilities
of local
government
environmental
street lighting
planning
The delegation of legislation relates to the following concepts of

government and democracy.

45
Liberal democracy
It is believed that the citizens in a community
should have a say in how their community
operates. By letting the local government make
legislation, community members are able to
participate in decision making at a grassroots
level. Community members can easily meet with local government
to discuss legislation and any possible changes. This would not be
possible if Parliament controlled all decision making.

Local government is only permitted to make laws
that are delegated to them by Parliament. For
example, they are able to make rules about areas of
land than can be used commercially or for industry.
However, they are limited with the kinds of laws that
they can make. They cannot make any laws in areas that have not
been delegated to them. For example, they are not able to make laws
that relate to what is considered a crime, or laws about social welfare.
Example
Regional councils can make bylaws in a number of different areas. One of the key areas
where bylaws can be made is in relation to public safety. In 2008 the Matatmata-Piako
District Council made a public safety by-law. The bylaw states that:
2. Safety in Public Places

2.2 General Instructions on Conduct in Public Places
2.2.1 No person shall in any public place:
a. place or leave litter or any materials or object or substance, which are likely to be hazardous
or injurious to any person, or likely to create a nuisance; or
b. deposit in or around a public litter receptacle any household or trade refuse; or
c. interfere with any refuse, which is awaiting collection by an authorised collector; or
d. drive any vehicle except on a formed road, or drive in a manner that is dangerous or
inconsiderate to pedestrians or other vehicles; or
e. leave any work, hole or excavation in a public place in a manner that could be a danger to
anyone entering or using that public place; or
f. take off or land any aircraft, hot air balloon, hang glider, parachute or similar aircraft except
in an emergency or in a location approved by an authorised officer; or
g. consume, inject or inhale any proscribed substances or offer or sell such substances to any
person; or
h. play any game or use any object including skateboards, roller blades, roller skates, bicycles,
mobility scooters or motorised scooters, recklessly or in a manner which may intimidate, be

46
dangerous or injurious or cause a nuisance to any person in the public place, or damage the
public place; or
i. use profane or obscene language on a public place or within the hearing of a person in a
public place; or
j. loiter or remain in or on a public place after being directed to move on by an enforcement
officer5
The Matamata-Piako has been delegated the role of making legislation under the local
government Act. One of the areas that they can make law is in addressing public safety.
They can make restrictions on the types of activities that people participate in at various
places within the region.
Check Your 1. What is delegated legislation? Name one

Understanding organisation that legislation is delegated to.
2. Why is local government given law making power?

47
3. What laws did the Matamata-Piako government make as part of their law-making
power?

48
Glossary
abolish formally put an end to

alienate make (someone) feel isolated or alone
appoint assign a job or role to (someone)
backlash a strong negative reaction by a large number of people
colloquial language used in ordinary or familiar conversation
common law law derived from previous judicial decisions
covenant an agreement
defamation the action of damaging the good reputation of someone
definitive done or reached decisively and with authority
delegate a person sent or authorized to represent others
deprive prevent (a person or place) from having or using something
dubious hesitating or doubting
grievance a real or imagined cause for complaint
implement put (a decision, plan, agreement, etc) into effect
inherent a permanent part of something
jurisdiction the official power to make legal decisions and judgements
liberalism the holding of liberal views
nullity an act or thing that has no legal basis
overwhelming very great in amount
override use one’s authority to reject or cancel
ratify sign or give formal consent to
sanction a threatened penalty for disobeying a law or rule
self-impose something that you require or expect of yourself
sovereignty supreme power or authority
suffrage the right to vote in political elections
symbolic serving as a symbol
treasury the funds or revenue of a state, institution, or society
unrestrained not restricted
vilify speak or write about someone in a negative manner
watchdogs an organisation that monitors the government

49

50

51

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Hamilton 3216
Phone: 0800 864 863
E-mail: instant@atc.org.nz
www.instant.org.nz
© ATC New Zealand


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US 27836 v2a

Unit Standard 27836

US27836v2a Learner's Guide Licensed to Western Heights High School

Licensed to Western Heights High School US27836v2a Learner's Guide

US27836v2a Learner's Guide Licensed to Western Heights High School

Aspects of Governance Part 1 19

Aspects of Governance Part 2 33

Licensed to Western Heights High School US27836v2a Learner's Guide

What do What is government? Brainstorm some answers in the

US27836v2a Learner's Guide Licensed to Western Heights High School

LESSON 1: Concepts of government

What is the rule of law?

How does the rule of law apply in

2. How should different people be treated according to the rule of law?

Continued on next page...

Licensed to Western Heights High School US27836v2a Learner's Guide

LESSON 1: Concepts of government

Who is required to implement the rule of law?

Check Your 1. Does New Zealand have a good record of

Continued on next page...

US27836v2a Learner's Guide Licensed to Western Heights High School

LESSON 1: Concepts of government

2. What is one law that affirms the rule of law?

3. Who is required to implement the rule of law?

Licensed to Western Heights High School US27836v2a Learner's Guide

LESSON 1: Concepts of government

There are three main powers in government. These are:

An important concept of government is that each of the powers

Why is the rule in place?

US27836v2a Learner's Guide Licensed to Western Heights High School

LESSON 1: Concepts of government

What do In your own words, describe what the separation of

New Zealand and the Separation of Powers

Has this always been the case?

How did this change?

Licensed to Western Heights High School US27836v2a Learner's Guide

LESSON 1: Concepts of government

Who is required to implement and follow the separation of

Judges. Judges should only make decisions on the

Parliamentarians (those in the legislature).

Government ministers (those in the executive).

If all people and organisations involved in government follow their

US27836v2a Learner's Guide Licensed to Western Heights High School

LESSON 1: Concepts of government

Examples of the separation of powers

Check Your 1. Which law refers to the separation of powers

2. Who is required to follow the separation of powers?

Licensed to Western Heights High School US27836v2a Learner's Guide

LESSON 1: Concepts of government

Rights and their limitations

All branches of government have a number of

What do Why do you think it is important for Parliament to have

Rights and their limitations in New

US27836v2a Learner's Guide Licensed to Western Heights High School

LESSON 1: Concepts of government

2. Laws that are against the principles of the

3. Laws that are against Parliamentary

Who is required to follow the limitations placed on

Who is required to keep the government accountable?

Licensed to Western Heights High School US27836v2a Learner's Guide

LESSON 1: Concepts of government

The office of the Attorney General will also make a comment if it

7 Attorney-General to report to Parliament where Bill