Constitutional Law LAWS607
ASSIGNMENT – due 12pm (midday) 28 April 2020
FACT SCENARIO
You are an intern working for a (fictional) new political party, the Aotearoa Reform Party (ARP)
which intends to put forward a number of candidates at the forthcoming New Zealand general
election on 19 September. ARP’s most prominent member, a wealthy businessman and
philanthropist Grantham Morrigan, will be contesting the Ōhariu electorate seat in Wellington. Mr
Morrigan is polling reasonable well against the incumbent Labour MP Greg O’Connor. He is hoping
to win the Ōhariu seat which might allow ARP to bring in more MPs, even if the ARP party vote is
beneath the 5% threshold.
Mr Morrigan and the ARP board are preparing for their inaugural party conference to be held in
early July at which they will launch their policy platform for the election. A key issue (and Mr
Morrigan’s main reason for launching and funding ARP) is constitutional reform. At a February
2020 press conference, Mr Morrigan said that “New Zealand desperately needs a written
constitution” but did not elaborate further. The details of ARP’s policy and proposals for
constitutional reform (alongside its other policies) will be finalised at a (closed) board meeting on 3
May.
Mr Morrigan has asked you – the only ARP intern with a legal background – for help in drafting a
board paper dealing with the constitutional reform aspects of the proposed party policy. His
instructions to you state “I need a memorandum containing clear, informed analysis on the issues
noted below which can include identifying different options and comparative legal and other
advantages and disadvantages of each. Your advice should be balanced and supported by
relevant academic or judicial authority. I’m interested in your informed opinions, but ultimately, the
ARP board will make the final strategy decisions.”
TOPIC 1: legal status of a written constitution (40% of total marks)
Mr Morrigan is aware that there are different ways in which a written constitution might be
incorporated into New Zealand’s legal system. One option would be for a comprehensive
constitution to be passed as ordinary legislation. Another approach would be to protect the new
constitution from change by a future government or coalition holding a bare majority in Parliament
by using some sort of legislative entrenchment device.
A separate (but related) question is whether the constitution could be relied on by the courts to
invalidate other legislation which is inconsistent with the constitution.
Your task: topic 1:
With reference to relevant commentary and caselaw, explain the legal/constitutional implications
and comparative advantages and disadvantages for the proposed constitution of:
i. Entrenchment vs. non-entrenchment; and
ii. ‘Higher law’ status vs ordinary legislation.
TOPIC 2: Te Tiriti o Waitangi/Treaty of Waitangi (40% of total marks)
Mr Morrigan expects that issue of the place of Te Tiriti o Waitangi/Treaty of Waitangi in a new
constitution for New Zealand will be one of the most contentious aspects of any constitutional
reform process. He has a clear view that Te Tiriti o Waitangi/Treaty of Waitangi should be in the
new constitution in some form, but beyond that, has no firm opinions on how that might be done.
Your task: topic 2:
With reference to relevant commentary and caselaw, outline at least two different ways in which Te
Tiriti o Waitangi/Treaty of Waitangi could be included in a new constitution. Discuss the
legal/constitutional implications and comparative advantages and disadvantages of the alternative
approaches you describe. With reasons, explain which approach you consider appropriate.
TOPIC 3: wildcard issue (20% of total marks)
Mr Morrigan is aware that there are many different topics that might be addressed in a new
constitution for New Zealand. They might include – as examples only – protection of private
property rights, environmental rights, or restrictions on electoral financing. Mr Morrigan is keen for
his own thinking to be challenged, and so has asked you to identify and discuss an issue of your
own choice other than the two topics noted above.
Your task: topic 3:
With reference to relevant commentary and caselaw (if any), explain:
| i. ii. iii. |
What specific issue you consider should be included in the new constitution; How the issue might be addressed; and Why you think it is important to have this issue covered in the document. |
Assignment submission
The maximum length of your memorandum is 3000 words including footnotes. Marks will be
allocated for structure, analysis, clarity and logic. The New Zealand Law Style Guide should be
adhered to.
The assignment is due 12pm (midday) Monday 28 April 2020. Your marks will count towards 40%
of your final grade. You must submit your assignment through Turnitin.
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