The law in New Zealand until 1840 was tikanga Māori and Māori customary law – the customs and methods of governance by which Māori society was ordered. After the British Crown and Māori signed the Treaty of Waitangi in 1840, the British presence increased strongly and brought English law with it. Māori custom is still recognised as part of New Zealand law as long as certain criteria are met. These are:
Aboriginal title (applied, for example, in a 2003 Court of Appeal decision about the title of the foreshore and seabed) and the Treaty of Waitangi are important protections for Māori.
The Imperial Laws Application Act 1988 preserves as part of New Zealand law some of the Magna Carta, initially a charter in 1215 and pass passed by the English Parliament in 1225. It says that ‘No freeman shall be taken or imprisoned, or be disseised [dispossessed] of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor condemn him but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right.’
The English way of thinking about law and English legal institutions exerted a profound influence over New Zealand law from 1840. While that influence has waned since about 1960, the two legal systems still have much in common.
Also around 1960 international law and international obligations under treaties began to have a significant impact on New Zealand law. These continue to increase in a highly globalised world.
Common law is law built up through legal decisions rather than by legislation. The common law of England came to New Zealand, but New Zealand developed its own common law. England, Australia and Canada are among the other countries with common law and even in the 2000s New Zealand courts look to those jurisdictions when they cannot find any applicable law in New Zealand.
The key characteristic of common law is that it is made by judges. Common law systems use the building blocks of precedents to decide cases. Doctrine accumulates over time, which means the past greatly influences the future. When judges are faced with a new issue, they look to see what previous cases can tell them about how to resolve it. They decide cases and give reasons, in this way building up the precedents from which the law is made. Common law is flexible, not static.
Common law was once a much more powerful influence in New Zealand’s legal system than it is in the 2000s. Statutes (laws) passed by Parliament have supplanted much of it. English statutes, as they were applicable to the circumstances of the colony, came to New Zealand with the common law. In 2012, 53 of them and some 10 pieces of subordinate legislation were still in force in New Zealand – they were preserved and specified in the Imperial Laws Application Act 1988.
New Zealand has had its own Parliament since May 1854. From 1856 Parliament has been very active in passing laws. From 1841 to 1853 New Zealand was a Crown Colony, ruled by a governor, and a firm foundation was laid for the law in New Zealand. During that period, laws called ordinances were made by the Legislative Council, whose members were appointed rather than elected. None of these remain in the law, but some ordinances from the old Provincial councils, which existed between 1852 and 1876, linger – for example, the University of Otago Ordinance 1869.
New Zealand has a strong commitment to the rule of law, coupled with deep and long legal traditions. It has a rich culture of the law, and the law is etched into the fabric of society in a way that causes little controversy and is broadly accepted by the community. New Zealand courts enjoy a reputation for fairness and impartiality.
The contribution that law can make to a community is best if it is taken for granted and can be relied upon. Law is essential to the good governance of any country.
A famous English judge, Lord Bingham, wrote in 2010 that the core of the rule of law is ‘that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.’1
Law is a method of adjusting relations and ordering human behaviour. It is complicated because it must cover most aspects of human life and activity.
The prime function of the law in New Zealand is to provide methods for settling disputes. It is often said that the courts are there to provide people with justice according to law.
Parliament passes the law, but judges interpret it. The statutes (written laws) are interpreted by judges in the courts, and statutory interpretation is a most important judicial function. The rules of interpretation are contained in the Interpretation Act 1999. These require the judges to follow the fundamental rule: ‘The meaning of an enactment must be ascertained from its text and in the light of its purpose.’
The New Zealand Bill of Rights Act 1990 affirms fundamental rights and freedoms set out in the International Covenant on Civil and Political Rights. While the Bill of Rights is not a superior law to which all other laws are subject, judges are required to interpret other statutes to be consistent with it if at all possible. In New Zealand the courts have not been given power to declare acts of Parliament unconstitutional or strike them down.
The law in New Zealand is divided into two broad parts – criminal law and civil law.
Criminal law involves a contest in the courts between prosecutors and criminal defendants – those accused of offences. New Zealand was something of a pioneer in criminal law. It adopted a criminal code in 1893, and since then for a person’s behaviour to amount to a criminal offence that offence has to be contained in statute passed by Parliament. The offence cannot be manufactured by the judges using the methods of the common law.
In 1956 Patrick Devlin, a renowned English judge, stated ‘Each jury is a little parliament’.1 He considered that trial by jury was more than just an instrument of justice; it was important in preserving freedom and resisting tyranny.
Under the Criminal Procedure Act 2011, from 2013 people who have been charged with serious offences (those punishable with more than two years imprisonment) are entitled to a trial by jury. Previously people who faced the possibility of three months or more in prison could opt for trial by jury. A jury consists of 12 people selected from randomly chosen members of the public who come to court when summoned to do jury service.
Trial by jury goes back many hundreds of years in England, from where New Zealand acquired it. For a person to have his or her guilt or innocence decided not by an official of the state but by 12 members of the public puts a buffer between the state and the citizen, and increases public trust in the fairness of the system. It also provides on-going participation by the public in the administration of the criminal justice system.
New Zealand had the death penalty for murder up until 1961, when it was abolished in a free vote in Parliament. The death penalty for treason was abolished in 1989.
Civil disputes are contests over business or other matters between individual people or companies. They can take their disputes to the courts and have them dealt with there. Contracts, commercial law, revenue law and property law make up vast amounts of New Zealand legal doctrine. Civil cases are decided by a judge alone, sitting without a jury, except in defamation cases.
In the 2000s many civil disputes are dealt with by alternative dispute resolution techniques – negotiation, mediation and arbitration. Small disputes are dealt with informally and cheaply by tribunals presided over by referees.
There are extensive rights of appeal available in both criminal and civil cases. Final-level appeals can be taken to the Supreme Court by leave of that court. Whether the Supreme Court will hear an appeal is based on whether the case raises a matter of general or public importance, or a substantial miscarriage of justice, or involves a matter of general commercial significance.
New Zealand’s courts, in descending order of hierarchy, are the Supreme Court of New Zealand, the Court of Appeal, the High Court, the Courts Martial Appeal Authority, the District Court and various specialist courts.
New Zealand courts are staffed and serviced by the Ministry of Justice. Judgments are enforced under the rules of the various courts. People who do not obey court orders are subject to serious sanctions under the law of contempt of court.
Traditional English legal attire, including gowns and wigs, was simplified in 1996 at the instigation of the then chief justice, Thomas Eichelbaum. From then judges wore gowns in the District Court, the High Court and the Court of Appeal, but lawyers wore gowns only in the latter two courts, and wigs only on ceremonial occasions. A move in 2010 to reintroduce wearing of gowns in district courts divided the legal profession. Robert Lithgow, a Wellington QC, argued that gowns, scarlet robes, wigs and white gloves belonged ‘in the dress-up box’ and had no place in an egalitarian society such as New Zealand.1
In addition to courts, New Zealand has many tribunals where justice is dispensed. Tribunals tend to be quicker, cheaper and more user-friendly than courts. There are more than 100 bodies established by legislation in New Zealand that might be considered to be tribunals. Many of them play an important role in delivering justice.
Tribunals range from the Land Valuation Tribunal, the Copyright Tribunal and the Human Rights Review Tribunal, to the War Pensions Appeal Board, the Teachers Complaints Disciplinary Tribunal, the Tenancy Tribunals and the Disputes Tribunal. Some of these tribunals are presided over by judges, but many of them by lawyers appointed for the purpose and some by lay people.
In the early 2000s it was suggested that there was a need to rationalise the structure and pattern of tribunals. Reform had been called for over a period of many years.
Legal aid for people who could not otherwise afford legal services is available in New Zealand and covers both criminal and civil cases. In the early 2000s rules around legal aid were tightened. The Legal Services Act 2011 aimed to promote access to justice by delivering legal aid in a more effective manner. The act set out in detail what proceedings were eligible and how much could be paid. The act also set up a public defender system, which aimed to provide some competition to private lawyers, and to help keep control over the costs of the system.
The procedure of the general courts in criminal matters is governed by the Criminal Procedure Act 2011. This was the biggest reform since 1961 in how the courts dealt with criminal cases.
Civil procedure is governed by the District Courts Act 1947 and Judicature Act 1908, and the rules made under those acts. In 2012 the Judicature Act was under review by the Law Commission.
In the early 2000s there was a drop-off in the number of civil cases in the courts. Causes of this included high filing fees to cover the expenses of the government in supporting the courts, the costs of using lawyers, the increased use of alternative dispute resolution techniques and economic conditions.
New Zealand’s specialist courts have been created to provide different treatment for certain types of cases. The specialist courts each have particular rules.
In a 2004 speech Principal Family Court Judge Peter Boshier said, ‘Arguably, the Family Court is the most important Court as far as the public is concerned. It is a Court dealing with human experiences from pre-birth right through to post-death. It is a Court to which people come not because they have broken the law but because they need assistance or are in crisis. A whole range of human behaviour is on parade, from the joy and elation of a new baby being adopted through to the anguish of a bitter separation, the anguish of having to look after and make arrangements for an elderly parent and finally the grief of adult siblings in conflict over a deceased estate.’1
The Family Court was created in 1980 in the hope of playing a constructive role in reconciling family differences and breakdowns, rather than simply dealing with the aftermath of misery. A specialist group of judges and lawyers has grown up around the court. The system has reduced the sufferings the traditional common law approach to family law produced.
The Environment Court developed in a similar way. A new comprehensive law, the Resource Management Act 1991, designed to promote sustainable management of the environment – water, land, air and coastline – required specialist judges and different procedures from the ordinary courts.
The Māori Land Court is the oldest of New Zealand’s specialist courts, having dealt with the alienation of Māori land since 1865 (when it was called the Native Land Court). It makes judgements on multiple ownership of Māori land, and on other issues relating to Māori land. Appeals from that court go first to the Māori Appellate Court.
The Employment Court is constituted by the Employment Relations Act 2000, and has functions under that act to regulate industrial relations.
The Youth Court deals with young offenders in a manner that is appropriate for their age.
The Coroners Court is established under the Coroners Act 2006. It has the purpose of helping to prevent deaths and to promote justice through investigation and identification of the facts and circumstances of sudden and unexplained deaths. Coroners make recommendations and public comments about cases.
A Courts Martial Appeal Authority is the court that sits over the top of the military justice system.
New Zealand has a substantial judiciary of approximately 200 judges. It is the function of the judges to say what the law is in any given case.
The judges are independent from the executive government (government ministers) and they are not answerable to it. Their independence is strongly protected by the Constitution Act 1986. The separation of powers between Parliament and the judiciary is an important protection for liberty and the rule of law. The Constitution Act prevents the salary of judges being reduced while they are in office and makes it very difficult for them to be removed from office.
The Constitution Act 1986 provides: ‘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.’
Pay and expenses for the judiciary are determined by the Remuneration Authority, an independent statutory agency. Complaints about judges are dealt with under the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004.
The head of the judiciary in New Zealand is the chief justice, who presides over the Supreme Court of five judges. The president of the Court of Appeal presides over the Court of Appeal, and there is a chief High Court judge and a chief District Court judge. In the High Court there are 35 judges and nine associate judges. There are more than 140 District Court judges. Judges are appointed by the governor-general on the recommendation of the attorney general.
Justices of the peace and community magistrates also sit in the District Court, dealing with minor offences and remands.
The attorney general and the solicitor general are the principal law officers of the Crown and responsible for many aspects of law, including providing legal advice to the Crown.
The attorney general in New Zealand is always a government minister, and therefore a member of Parliament and almost invariably a member of the cabinet. He or she has important responsibilities for the legal system, the rule of law and its integrity. The attorney general is titular head of the legal profession.
The solicitor general is a professional lawyer selected for the position on the basis of his or her legal knowledge, and heads the Crown Law Office, a government department which undertakes legal work for the government.
There are more than 11,000 lawyers in New Zealand issued with practising certificates by the New Zealand Law Society. The Law Society is the statutory regulator of the legal profession.
Most lawyers in New Zealand practise as barristers and solicitors, but 14% of them practise as barristers alone. A barrister works mainly in the courts and tribunals, presenting evidence, making submissions on behalf of clients, representing parties in criminal trials, handling domestic disputes in the Family Court and dealing with civil claims. A solicitor handles general legal advisory work, commercial work and property transactions, and arranges finance. Solicitors draft wills, administer estates and advise on tax, forming companies, making contracts and raising or securing loans.
This fusion in the New Zealand legal profession stems from its earliest days in 1841, when conditions made departure from the English separation of barristers and solicitors inevitable. However, by the 2000s not all barristers were also solicitors, and these barristers must receive instructions from solicitors. Many barristers specialise in advocacy before the courts.
In 1896 Parliament passed an act that made it possible for women to enter the legal profession. Ethel Benjamin from Dunedin was the first woman to be admitted to the practice of law in New Zealand, in 1897. There were few women lawyers until the late 20th century. However, from the 1990s more than 50% of those entering the profession were women.
Queen’s Counsel (QC) and Senior Counsel are lawyers of particular distinction who are given higher rank. Sometimes they are called ‘silks’ because they wear silk gowns in court. They are selected by the attorney general and the chief justice, who must both agree on the appointment. The title Senior Counsel replaced QC in 2006, and the first appointments of Senior Counsel were made in 2008. In 2011 there was a bill before the Parliament for Senior Counsel to revert to the title of QC.
The usual route to becoming a lawyer in New Zealand is to obtain a law degree from a New Zealand university, and to undergo and pass a course in professional training. There are particular arrangements that allow New Zealand and Australian lawyers to practise in both countries, subject to certain conditions. Foreign lawyers can be admitted in New Zealand subject to satisfying the Council of Legal Education that they have sufficient knowledge of New Zealand law.
Revising the law and keeping it up to date is an ongoing task. There is a great deal of pressure on the government’s legislative programme. Usually there are a hundred bills or more passed by the Parliament each year. Routine measures that will assist administration and introduce non-controversial changes nevertheless struggle for legislative attention. The introduction of the mixed-member proportional electoral system has increased the time taken to pass legislation, as the government often has to negotiate with other political parties to get its measures through.
The Law Commission was established by the Law Commission Act 1985 with the following principal functions:
The Law Commission is independent of the executive government and is required by law to act independently in performing its statutory functions. It has the power to initiate proposals for the review, reform or development of any aspect of the law of New Zealand. It consults with the public.
The commissioners are judges or senior practising or academic lawyers (from the university law faculties) appointed for fixed terms of three or five years. The president must be a lawyer or a judge.
In December 2011 the Law Commission proposed that a new Communications Tribunal, to replace the Broadcasting Standards Authority and the Press Council, could be set up to deal with malicious use of the internet as a publishing platform. It suggested that because young people in particular were vulnerable to cyber harassment, such a tribunal could regulate websites and grant takedown orders when content breached the law.
The Law Commission has produced many comprehensive reports leading to significant changes in the statute books. Within six months of receiving a report the government is obliged to table in Parliament a document that states whether it will adopt the Law Commission’s recommendations.
Important reports produced by the Law Commission in the 2000s and acted on by the government include:
In 2011 the commission completed a five-year project on privacy that has resulted in multiple volumes and numerous recommendations for change.
More than 120 major reports had been produced by the Law Commission by the end of 2011. However, the tasks set out in its statute remain aspirational goals – New Zealand has large quantities of law.
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.
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.
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.
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.
Over time the growth of state activity caused a considerable increase in the number of public servants, and their decisions and those of ministers of the Crown can impact seriously upon the rights and freedoms of people. In 1962 the Office of the Ombudsman was introduced to provide a person to whom grievances could be referred. The ombudsmen form opinions about the complaints made about central, regional and local government after carrying out investigations. An ombudsman may reach a conclusion that a decision has been unfair, contrary to law, unreasonable, unjust, oppressive or just plain wrong. While recommendations by the ombudsmen are not legally binding, they carry a lot of weight and are usually acted upon.
The ombudsmen also review, upon receiving a complaint, decisions to decline the release of information under the Official Information Act 1982. This statute plays an important constitutional role in keeping government transparent and open.
Historically in New Zealand too much policy has been contained in regulations rather than statutes (acts). Regulations are authorised by acts of Parliament but they are made by the governor-general in council on the recommendation of cabinet. For example, the Economic Stabilisation Act 1948 allowed regulations to be made to control all wages, prices and other aspects of the economy. In response to this problem the Regulations (Disallowance) Act 1989 was passed, and complaints about delegated legislation can be made to the Regulations Review Committee of Parliament.
In recent years there has been a proliferation of agencies to which the public can complain for review of various decisions or actions. Some of these are the Independent Police Complaints Authority, the Human Rights Commission, the race relations commissioner, the privacy commissioner, the parliamentary commissioner for the environment, the health and disability commissioner and the children’s commissioner.
Since the 1960s the courts have developed the techniques of administrative law to review the legality of government action. The Judicature Amendment Act 1972 said that ‘the exercise, refusal to exercise, or proposed or purported exercise by any person of any statutory power’ could be judicially reviewed by the High Court. Judicial review is a keystone of New Zealand public law and a significant contribution to the rule of law. Furthermore, the New Zealand Bill of Rights Act 1990 provides that ‘Every person whose rights, obligations or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.’ The grounds for judicial review are essentially those developed by the judges in cases that come before them, and it is a branch of common law assisted by statute.
At its base administrative law is about fairness. Breaches of natural justice or of legitimate expectations, illegality or irrationality, or lack of consultation when there should have been consultation, can make decisions invalid. In New Zealand the government is subject to the law and not above it.
Burrows, J. F., and R. I. Carter. Statute law in New Zealand. 4th ed. Wellington: Lexis Nexus, 2009.
Malone, Ryan. Rebalancing the constitution – the challenge of government law-making under MMP. Wellington: Victoria University of Wellington Institute of Policy Studies, 2008.
Spiller, Peter, Jeremy Finn and Richard Boast. A New Zealand legal history. 2nd ed. Wellington: Brookers, 2001.
Tribunal reform. Wellington: New Zealand Law Commission, 2008.