Matthew S.R. Palmer & Dean R. Knight. The Constitution of New Zealand: A Contextual Analysis
Year: 2025
Type: article
Abstract: Knight and Palmer’s The Constitution of New Zealand: A Contextual Analysis provides an excellent overview of New Zealand’s Constitution today. This review explains why. It then critically examines how the authors address te Tiriti o Waitangi, tino rangatiratanga, and Māori rights more broadly, including under international law. While the specific chapter on te Tiriti o Waitangi is excellent, there are other sections in the book—focused on other elements of the Constitution—where some of the conclusions could potentially be more nuanced and sensitive to Māori perspectives. One example might relate to the perceived strength of the rule of law in New Zealand. The book provides an overview of New Zealand’s constitutional ethos, the establishment of the New Zealand state, the ongoing role of the Crown, New Zealand’s unique democratic structure, and the principal institutions of government: Parliament, the Executive, and the Judiciary. Under the chapter on accountability and transparency, Knight and Palmer include analysis of, for example, administrative tribunals and the ombudsman. The chapter on human rights precedes the chapter on te Tiriti o Waitangi, and is followed by chapters on local and global governance. The final chapter considers the future of constitutional change in New Zealand. The Constitution of New Zealand does exactly what it is intended to do as part of the Constitutions of the World series. It methodically “provides scholars and students with accessible introductions to the constitutional systems of the world, supplying both a road map for the novice and, at the same time, a deeper understanding of the key historical, political, and legal events which have shaped the constitutional landscape of each country.”1 The book will, in fact, have broader appeal, including to practicing lawyers, the judiciary, officials in local and central government, political lobbyists, and the interested general public. Given that both authors advocate for more civics education earlier in New Zealand’s school system, the book might also be used in higher-level secondary curricula. One of the greatest strengths of the book is the authors’ realist approach, coupled with their exceptionally deep understanding and lived experience of many facets of New Zealand’s Constitution, and their renowned academic rigor. The focus is more on reality than theory (at 11)—in other words, on how the Constitution functions in practice and within a broader social, economic, cultural, and political context. The reader gains more holistic and more nuanced insights than might be found in formal or positivist approaches to the Constitution. Another strength of the book is the breadth of its coverage, evident from the outline of the contents above. In traversing aspects of the Constitution that might not always be included in works on this topic, and in showing how they intersect, the book offers a full and vivid picture of New Zealand’s Constitution. This is especially evident in the chapter on accountability and transparency and in the detailed description of the important and powerful role of officials. The book is clearly structured and a pleasure to read. Complex constitutional structures, institutions, and concepts are lucidly explained. Readers will also enjoy occasional metaphorical flourishes in descriptions of how the Constitution works, such as the analogy between the place of te Tiriti in the Constitution and Mt. Ruapehu. There are a few things that The Constitution of New Zealand is not. While every student of constitutional law would benefit from the overview it provides, it does not offer detailed analysis of specific cases, instead summarizing developing common law. In other words, it does not replace constitutional or public law coursebooks, even if it deepens one’s understanding of New Zealand’s Constitution more generally by enabling readers to step back and gain a holistic picture. Before critically assessing the book against the backdrop of Māori experiences of New Zealand’s Constitution, it is important to acknowledge that the authors do not purport to read the Constitution through a “Māori lens,” nor do they undertake a deep dive into Māori rights under the Constitution. Rather, the book provides an overview of the Constitution as a whole, with some sections devoted to that important kaupapa (“issue”). Moreover, both authors—and Palmer especially—have devoted significant attention to te Tiriti o Waitangi and Māori rights under law, with Palmer’s monograph, The Treaty of Waitangi, among the more important scholarly contributions of recent times.2 Nonetheless, the overall picture painted of the fundamentals of New Zealand’s Constitution in Knight and Palmer’s book is overly optimistic when one overlays the reality of Māori experiences. There is not, and cannot be, a singular “Māori view” of New Zealand’s Constitution. However, the fact of the injustice faced by Māori under that Constitution is unavoidable. Second, while the focus on Māori rights in specific chapters and sections is excellently done, it may unintentionally draw attention away from the fact that every element of New Zealand’s Constitution—while predominantly Westminster in structure—impacts the realization of Māori rights, whether through the Executive, local government, or accountability mechanisms. In other words, the chapters that explain the “bread and butter” structures of New Zealand’s Constitution do not address the Māori context as fully as they might. To set the scene, consider a few examples—selected at random—of Māori experiences of the New Zealand Constitution. A very different story emerges when one begins with the illegitimacy and illegality of the Crown’s claim to sovereignty over New Zealand in 1840 and ends with Parliament’s 2021 express and deliberate overturning of Supreme Court and Waitangi Tribunal decisions upholding iwi land rights.3 In the intervening period, laws were passed that ensured the Māori vote counted for less than that of non-Māori.4 Land was confiscated. A statutory Māori land regime was established that facilitated further land loss. The Crown undertook a military campaign against Māori seeking to uphold their rights as guaranteed under te Tiriti o Waitangi.5 The story continues: Parliament overrode the fundamental right of habeas corpus to grant the Crown the power to detain Māori leaders indefinitely,6 then legislatively insulated executive action from judicial oversight, contravening Māori common law rights to aboriginal title7 and the express view of the Privy Council.8 Legislation was enacted to abolish tohunga, curbing traditional medicinal practices.9 Policies of assimilation have permeated New Zealand governance since colonization, including the punishment of schoolchildren for speaking reo Māori. Māori have been disproportionately abused in state care, are dramatically and appallingly overrepresented in the criminal justice system,10 and sit at the bottom of most socioeconomic indicators: we are poorer, die earlier, and are less educated.11 While some change is underway, courts have generally declined to judicially review Crown decisions related to Treaty settlements.12 The Crown’s confiscation of Māori rights in the foreshore and seabed in 2004 is internationally notorious. The possibility of judicial recognition was replaced by a legislative regime incapable of fully realizing Māori property rights, one that requires Māori to prove continued interest in the land—rather than requiring the Crown to prove it legally or legitimately acquired title.13 Waitangi Tribunal recommendations continue to be ignored.14 At the international level, New Zealand was one of only four states to vote against the UN Declaration on the Rights of Indigenous Peoples,15 and has repeatedly come under criticism from UN human rights bodies for the lack of executive and parliamentary accountability in upholding Indigenous rights. In December 2022, the government unilaterally ended work—against the express wishes of the National Iwi Chairs Forum—on the national plan of action intended to implement the Declaration domestically. There are also positive developments, though these are fiercely contested,16 and some are noted by Knight and Palmer. These include the Te Urewera settlement, the incorporation of Treaty principles in legislation, and the establishment of the Waitangi Tribunal and the value of its reports and research. A few pages are devoted to the increasing reference to tikanga Māori in the common law (at 145–6, 163), and the constitutional significance of te Tiriti appears to be gaining recognition, even if only in symbolic ways. Chapter 2 (“Aotearoa New Zealand”) and chapter 10 (“te Tiriti o Waitangi”) take seriously the need to debunk colonial myths—such as the notion that Māori ceded sovereignty or that the doctrine of discovery applied in Aotearoa. I fully support the authors’ decision to include the “actual text” of te Tiriti. It is surprising how many New Zealanders have never read it. Still, Knight and Palmer could perhaps have more clearly stated that the legality and legitimacy of the Crown’s claim to sovereignty remain in question. I am also not entirely convinced by Palmer’s interpretation of te Tiriti, particularly his claim that it is an agreement “upholding the Crown’s legitimacy, governing New Zealand for the benefit of all New Zealanders” (at 220, 150). The increasing incorporation of tikanga Māori into the common law is well captured, as is the description of te Tiriti as simultaneously within and outside the constitution. The authors rightly highlight the incoherence of this status and the ongoing lack of enforceability of te Tiriti. I agree with their emphasis on the Supreme Court’s decision in Wakatū v Attorney-General, especially given the importance of the Court’s finding that the Crown owes equitable duties to Māori (at 221–2).17 Returning to the overly optimistic portrayal of the constitution’s reality for Māori, five key themes emerge. First is the description of the executive. I fear that the executive is not nearly as constrained as the authors suggest—especially where Māori rights are concerned and where the executive considers that recognition of those rights would not be tolerated by the majority. The executive can control Parliament through several mechanisms, including urgency procedures, party whipping, and dominance of select committees. It can disregard or override findings of human rights or te Tiriti breaches. Moreover, accountability mechanisms such as judicial review are deficient when the executive gives its own decisions legislative force. Second, and closely related, is the danger posed by unrestrained parliamentary supremacy. Democracy unchecked by judicial review can enable the tyranny of the majority—as occurred with the foreshore and seabed legislation. Suggestions of common law limits on supremacy may have theoretical potential, but are unlikely to be effective when Parliament is determined to override Māori rights. This has been consistently noted by UN oversight bodies. Third, the illegitimacy—and, I would argue, illegality—of the Crown’s original assumption of sovereignty undercuts the notion that the rule of law is a fundamental principle of New Zealand’s Constitution (at 8). The New Zealand state is not based on law but on the sheer power and force of the Crown. Fourth, given the realities outlined earlier, I am not sure how many Māori would agree that there is a universal and deep attachment to the values of fairness and egalitarianism, and whether all Māori have faith in authority (at 17–18) in the description of constitutional futures (at 242–54). I agree to some extent that constitutional reform that goes against the grain of New Zealand’s constitutional culture is less likely, and that change is more likely to be incremental. However, the normative appeal of transformation—reforms that better reflect Māori claims and especially tino rangatiratanga—could be more strongly emphasized. In conclusion, Palmer and Knight’s book provides one of the best, most insightful, holistic, and accessible descriptions of New Zealand’s Constitution available. I commend it to all readers, including the general public. However, it might more fully engage, across all aspects of the Constitution, with the lived reality of Māori experiences—experiences that reveal the constitution’s central role in enabling, and continuing, the injustices of colonization.
DOI: 10.1093/icon/moaf035
Author: Claire Charters
Institution: University of Auckland
Language: English
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: hybrid
Estimated APC paid: $3,849
OpenAlex ID: W4414414755
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