Constitution Act 1986

by Parliament of New Zealand

1986 No 114

Amendments

• Constitution (Amendment) Act 1987 No 134
• Constitution (Amendment) Act 1999 No 86
• Constitution (Amendment) Act 2005 No 48

An Act to reform the constitutional law of New Zealand, to bring together into one enactment certain provisions of constitutional significance, and to provide that the New Zealand Constitution Act 1852 of the Parliament of the United Kingdom shall cease to have effect as part of the law of New Zealand. [3 December 1986]

Be it enacted by the General Assembly of New Zealand in Parliament assembled, and by the authority of the same, as follows:

Section 1: Short Title and commencement

• (1) This Act may be cited as the Constitution Act 1986.
• (2) This Act shall come into force on the 1st day of January 1987.

PART 1: 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 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.

Cf 1983 No 20 s 3

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.

Cf 1924 No 11 s 23; 1983 No 22 s 3

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.

Cf 1924 No 11 s 25E; 1986 No 115 s 9

Section 4: Regency

• (1) Where, under the law of the United Kingdom, the royal functions are being performed in the name 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.

Cf 1983 No 20 s 4

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.

Cf 1908, No 42

PART 2: The Executive

Section 6: Ministers of Crown to be members of Parliament

• (1) A person may be appointed and may hold office as a member of the Executive Council or as a Minister of the Crown State only if that person is a member of Parliament.
• (2) Notwithstanding subsection (1) of this section,—
  • (a) A person who is not a member of Parliament may be appointed and may hold office as a member of the Executive Council or as a Minister of the Crown if that person was a candidate for election at the general election of members of the House of Representatives held immediately preceding that person's appointment as a member of the Executive Council or as a Minister of the Crown but shall vacate office at the expiration of the period of 40 days beginning with the date of the appointment unless, within that period, that person becomes a member of Parliament; and
  • (b) Where a person who holds office both as a member of Parliament and as a member of the Executive Council or as a Minister of the Crown ceases to be a member of Parliament, that person may continue to hold office as a member of the Executive Council or as a Minister of the Crown until the expiration of the 28th day after the day on which that person ceases to be a member of Parliament.

Cf 1979 No 33 s 9

Section 7: Power of member of Executive Council to exercise Minister's powers

Any function, duty, or power exercisable by or conferred on any Minister of the Crown (by whatever designation that Minister is known) may, unless the context otherwise requires, be exercised or performed by any member of the Executive Council.

Cf 1924 No 11 s 25(e)

Section 8: Appointment of Parliamentary Under-Secretaries

• (1) The Governor-General may from time to time, by warrant under the Governor-General's hand, appoint any member of Parliament to be a Parliamentary Under-Secretary in relation to such Ministerial office or offices as are specified in that behalf in the warrant of appointment.
• (2) A Parliamentary Under-Secretary shall hold office as such during the pleasure of the Governor-General, but shall in every case vacate that office within 28 days of ceasing to be a member of Parliament.

Cf 1979 No 33 12; 1985 No 48 s 5

Section 9: Functions of Parliamentary Under-Secretaries

• (1) A Parliamentary Under-Secretary holding office as such in respect of any Ministerial office shall have and may exercise or perform under the direction of the Minister concerned such of the functions, duties, and powers of the Minister of the Crown for the time being holding that office as may from time to time be assigned to the Parliamentary Under-Secretary by that Minister.
• (2) Nothing in subsection (1) of this section limits the authority of any Minister of the Crown to exercise or perform personally any function, duty, or power.
• (3) The fact that any person holding office as a Parliamentary Under-Secretary in respect of any Ministerial office purports to exercise or perform any function, duty, or power of the Minister concerned shall be conclusive evidence of that person's authority to do so.

Cf 1979 No 33 s 14

Section 9A: Solicitor-General may perform functions of Attorney-General

The Solicitor-General may perform a function or duty imposed, or exercise a power conferred, on the Attorney-General.

Cf 1924 No 11 s 4; 1952 No 81 s 27

Section 9B: Appointment of person to act in place of Solicitor-General

• (1) The Governor-General may appoint a barrister or solicitor of at least 7 years' practice to act—
  • (a) In place of, or for, the Solicitor-General during the absence from office of the Solicitor-General or if the Solicitor-General is incapacitated in a way that affects the performance of his or her duties; or
  • (b) During a vacancy in the office of Solicitor-General.
• (2) The performance of a function or duty or the exercise of a power by a person appointed under subsection (1) is, in the absence of proof to the contrary, sufficient evidence of the authority of that person to do so.

Cf 1924 No 11 s 25B(1), (2); 1979 No 71 s 2

Section 9C: Delegation of powers of Attorney-General and Solicitor-General

• (1) The Solicitor-General may, with the written consent of the Attorney-General, in writing delegate to a Deputy Solicitor-General, any of the functions or duties imposed, or powers conferred, on the Attorney-General.
• (2) The Solicitor-General may in writing delegate to a Deputy Solicitor-General any of the functions or duties imposed, or powers conferred, on the Solicitor-General, except for the power to delegate conferred by this subsection.
• (3) A delegation is revocable and does not prevent the Attorney-General or the Solicitor-General from performing the function or duty or exercising the power.
• (4) A delegation may be made on conditions specified in the instrument of delegation.
• (5) The fact that a Deputy Solicitor-General performs a function or duty or exercises a power is, in the absence of proof to the contrary, sufficient evidence of his or her authority to do so.

PART 3: The Legislature

The House of Representatives

Section 10: House of Representatives

• (1) There shall continue to be a House of Representatives for New Zealand.
• (2) The House of Representatives is the same body as the House of Representatives referred to in section 32 of the New Zealand Constitution Act 1852 of the Parliament of the United Kingdom.
• (3) The House of Representatives shall be regarded as always in existence, notwithstanding that Parliament has been dissolved or has expired.
• (4) The House of Representatives shall have as its members those persons who are elected from time to time in accordance with the provisions of the Electoral Act [1993], and who shall be known as members of Parliament.

Cf 1956 No 107 ss 11, 13; 1975 No 28 s 4

Section 11: Oath of allegiance to be taken by members of Parliament

• (1) A member of Parliament shall not be permitted to sit or vote in the House of Representatives until that member has taken the Oath of Allegiance in the form prescribed in section 17 of the Oaths and Declarations Act 1957.
• (2) The oath to be taken under this section shall be administered by the Governor-General or a person authorised by the Governor-General to administer that oath.

Cf New Zealand Constitution Act 1852, s 46 (UK); 1950 No 3 s 2(4)

Section 12: Election of Speaker

The House of Representatives shall, at its first meeting after any general election of its members, and immediately on its first meeting after any vacancy occurs in the office of Speaker, choose one of its members as its Speaker, and every such choice shall be effective on being confirmed by the Governor-General.

Cf 1956 No 107 s 14

Section 13: Speaker to continue in office notwithstanding dissolution or expiration of Parliament

A person who is in office as Speaker immediately before the dissolution or expiration of Parliament shall, notwithstanding that dissolution or expiration, continue in office until the close of polling day at the next general election unless that person sooner vacates office as Speaker.

Parliament

Section 14: Parliament

• (1) There shall be a Parliament of New Zealand, which shall consist of the Sovereign in right of New Zealand and the House of Representatives.
• (2) The Parliament of New Zealand is the same body as that which before the commencement of this Act was called the General Assembly (as established by section 32 of the New Zealand Constitution Act 1852 of the Parliament of the United Kingdom) and which consisted of the Governor-General and the House of Representatives.

Cf New Zealand Constitution Act 1852, s 32 (UK); 1950 No 3 s 2(2)

Section 15: Power of Parliament to make laws

• (1) The Parliament of New Zealand continues to have full power to make laws.
• (2) No Act of the Parliament of the United Kingdom passed after the commencement of this Act shall extend to New Zealand as part of its law.

Cf New Zealand Constitution Act 1852, s 53 (UK); 1973 No 114 s 2; Canada Act 1982, s 2 (UK); Australia Act 1986, s 1 (Commonwealth)

Section 16: Royal assent to Bills

A Bill passed by the House of Representatives shall become law when the Sovereign or the Governor-General assents to it and signs it in token of such assent.

Cf New Zealand Constitution Act 1852, s 56 (UK)

Section 17: Term of Parliament

• (1) The term of Parliament shall, unless Parliament is sooner dissolved, be 3 years from the day fixed for the return of the writs issued for the last preceding general election of members of the House of Representatives, and no longer.
• (2) Section 268 of the Electoral Act 1993 shall apply in respect of subsection (1) of this section.

Cf 1956 No 107 s 12

Section 18: Summoning, proroguing, and dissolution of Parliament

• (1) The Governor-General may by Proclamation summon Parliament to meet at such place and time as may be appointed therein, notwithstanding that when the Proclamation is signed or when it takes effect Parliament stands prorogued to a particular date.
• (1A) The Governor-General may, by Proclamation, change the place of meeting of Parliament set out in the Proclamation summoning Parliament if that place is unsafe or uninhabitable.
• (2) The Governor-General may by Proclamation prorogue or dissolve Parliament.
• (3) A Proclamation summoning, proroguing, or dissolving Parliament shall be effective—
  • (a) On being gazetted; or
  • (b) On being publicly read, by some person authorised to do so by the Governor-General, in the presence of the Clerk of the House of Representatives and 2 other persons,—

  whichever occurs first.

• (4) Every Proclamation that takes effect pursuant to subsection (3)(b) of this section shall be gazetted as soon as practicable after it is publicly read.

Cf New Zealand Constitution Act 1852, ss 44, 82 (UK)

Section 19: First meeting of Parliament after general election

After any general election of members of the House of Representatives, Parliament shall meet not later than 6 weeks after the day fixed for the return of the writs for that election.

Cf The Bill of Rights, Article 13 (UK); Constitution of Australia (1900), s 5

Section 20: Lapse or reinstatement of parliamentary business

• (1) Any Bill, petition, or other business before the House of Representatives or any of its committees during a session of a Parliament (any parliamentary business)—
  • (a) does not lapse on the prorogation of that Parliament and may be resumed in the next session of Parliament (a session of that Parliament):
  • (b) lapses on the dissolution or expiration of that Parliament, but may be reinstated in the next session of Parliament (a session of the next Parliament).
• (2) Parliamentary business is reinstated in that next session if, after that dissolution or expiration, the House of Representatives resolves that the parliamentary business be reinstated in that next session.

Parliament and public finance

Section 21: Bills appropriating public money (Repealed)

Cf New Zealand Constitution Act 1852, s 54 (UK)

Section 22: Parliamentary control of public finance

It shall not be lawful for the Crown, except by or under an Act of Parliament,—

• (a) To levy a tax; or
• [(b) to borrow money or to receive money borrowed from any person; or]
• (c) To spend any public money.

Cf The Bill of Rights, Article 4 (UK); 1977 No 65 ss 53(1), 70

PART 4: The Judiciary

Section 23. Protection of Judges against removal from office

A Judge of the High Court shall not be removed from office except by the Sovereign or the Governor-General, acting upon an address of the House of Representatives, which address may be moved only on the grounds of that Judge's misbehaviour or of that Judge's incapacity to discharge the functions of that Judge's office.

Cf 1908 No 89 ss 7, 8, 9

Section 24. Salaries of Judges not to be reduced

The salary of a Judge of the High Court shall not be reduced during the continuance of the Judge's commission.

Cf 1908 No 89 s 10

PART 5: Miscellaneous Provisions

Section 25. General Assembly Library to be known as the Parliamentary Library

• (1) The library heretofore known as the General Assembly Library shall, as from the commencement of this Act, be known as the Parliamentary Library.
• (2) The officer heretofore known as the Chief Librarian of the General Assembly Library shall be known, as from the commencement of this Act, as the Parliamentary Librarian.
• (3) Subject to section 27 of this Act, all references to the General Assembly Library or to the Chief Librarian of the General Assembly Library in any other enactment or in any document whatsoever shall hereafter, unless the context otherwise requires, be read as references to the Parliamentary Library and to the Parliamentary Librarian respectively.

Section 26.United Kingdom enactments ceasing to have effect as part of the law of New Zealand

• (1) As from the commencement of this Act the following enactments of the Parliament of the United Kingdom, namely,—
  • (a) The New Zealand Constitution Act 1852 (15 and 16 Vict, c 72); and
  • (b) The Statute of Westminster 1931 (22 Geo V, c 4); and
  • (c) The New Zealand Constitution (Amendment) Act 1947 (11 Geo VI, c 4),—

  shall cease to have effect as part of the law of New Zealand.

• (2) The provisions of sections 20, 20A, and 21 of the Acts Interpretation Act 1924 shall apply with respect to the enactments specified in subsection (1) of this section as if they were Acts of the Parliament of New Zealand that had been repealed by that subsection.
• (3) Without limiting the provisions of subsection (2) of this section, it is hereby declared that the effect of section 11 of the Statute of Westminster 1931 (22 Geo V, c 4) (which section declared that the expression Colony shall not, in any Act of the Parliament of the United Kingdom passed after the commencement of the Statute of Westminster 1931, include a Dominion or any Province or State forming part of a Dominion) shall not be affected by virtue of the Statute of Westminster 1931 ceasing, by virtue of subsection (1) of this section, to have effect as part of the law of New Zealand.

Section 27. Consequential amendments to other enactments

The enactments specified in Schedule 1 to this Act are hereby amended in the manner indicated in that Schedule.

Section 28. Repeals

• (1) The enactments specified in Schedule 2 to this Act are hereby repealed.
• (2) The Regulations Amendment Act 1962 is hereby consequentially repealed.
• (3) Section 2(2) of the Primary Products Marketing Amendment Act 1977 is hereby consequentially repealed.
• (4) Section 5 of the Civil List Amendment Act 1985 is hereby consequentially repealed.

Section 29. Transitional and consequential provisions relating to Parliament

• (1) The Parliament in being at the commencement of this Act (before the commencement of this Act called the General Assembly) shall continue in accordance with and subject to the provisions of this Act.
• (2) As from the commencement of this Act, every reference to the General Assembly or to the General Assembly of New Zealand in any enactment passed before the date of commencement of this Act and in any document executed before that date shall, unless the context otherwise requires, be read as a reference to the Parliament of New Zealand.
• (3) Subsection (2) of this section shall not apply in respect of the Acts Interpretation Act 1924.