New Zealand law contains some unusual features that have given New Zealand the reputation for being a legal pioneer in some areas. While much of the law passed by Parliament was influenced by legislation from England and the Australian colonies, necessity and local conditions produced some innovations. The codification of the criminal law was just one of these.
Many of the harsh rules of family law developed in England were gradually removed in New Zealand. Steps were taken in the 19th century to lessen the legal consequences of illegitimacy (having unmarried parents). Adoption laws were passed as early as 1881. The first measure to relieve the position of wives in respect to the control of their property by husbands came in 1860. The status of women was improved by the Testator’s Family Maintenance Act 1900. This allowed the court to override a person’s will if it did not provide adequately for family members.
Justifying old age pensions
The preamble to the Old Age Pensions Act 1898 reads: ‘Whereas it is equitable that deserving persons who during the prime of life have helped to bear the public burdens of the colony by the payment of taxes, and to open up its resources by their labour and skill, should receive from the colony a pension in their old age.’
In 1898 Parliament passed the Old Age Pensions Act. To modern eyes that law had features that would no longer be acceptable, for example an applicant had to be of good moral character and to have led ‘a sober and reputable life.’ Public examinations were held in open court by magistrates. There was a stiff means test. ‘Chinese or other Asiatics, whether naturalised or not’ were not eligible. But the statute was an important way point on the journey towards a welfare state. The Social Security Act 1938 was a further landmark, extending welfare into the health system.
New Zealand’s Land Transfer Act 1870 provided a great improvement on the system of title deeds in England. It was based on a South Australian model devised by Robert Richard Torrens and made a registered title conclusive and state-guaranteed. The same principles remain in law in the early 2000s – by then the register was operated on-line, a far cry from the big registers that used to be open to public search in land transfer offices around New Zealand.
Claims for damages
Part of the common law is what is known as the law of torts – civil wrongs. The most important is the tort of negligence. For many years, that allowed people injured on the road, at work or elsewhere due to the negligence of another to sue in the courts for damages. These personal injury cases were once very common in New Zealand and they took a great deal of court time because trial by jury was available. Compulsory insurance ensured that employers and motor vehicle drivers could meet the claims for damages – often high for people severely incapacitated.
One of the biggest law reforms ever undertaken in New Zealand was to get rid of the personal injury action and replace it with a statutory scheme that covers all injuries wherever and however they occur. Rehabilitation is provided and 80% of lost earnings paid, along with lump sums for pain and suffering and loss of bodily function. The scheme began in 1974 and in the early 2000s was contained in the Accident Compensation Act 2001. The scheme is financed by levies on employers, registered motor-vehicle owners and self-employed people, and through some general taxation. People can no longer sue for damages. The abandonment of tort actions for personal injury was a legal reform unique to New Zealand.
Treaty of Waitangi
The Treaty of Waitangi is part of New Zealand law only to the extent it is incorporated into statute. The Resource Management Act 1991 incorporated Māori terms and concepts, and reference to the treaty began appearing in other statutes.
A further mark of New Zealand’s legal self-confidence is to be found in modern developments in the law as it affects Māori. The Treaty of Waitangi Act 1975 established the Waitangi Tribunal and gave Māori ability to complain about breaches of the treaty by the Crown. The Waitangi Tribunal had power to make recommendations to the government. The Waitangi Tribunal is chaired by the chief judge of the Māori Land Court.
In 1985 the tribunal’s jurisdiction was extended to deal with Māori grievances going back to the signing of the treaty in 1840. Māori iwi and hapū made many claims. Soon it became clear that the tribunal could not handle them all, and tribes began negotiating directly with the Crown. By the early 2000s many settlements had been reached and enacted by Parliament.