Sources of Law

The law of New Zealand consists of the common law, certain statutes of the United Kingdom Parliament, statutes of the New Zealand Parliament, and regulations, bylaws, and other forms of subordinate legislation made under statutory authority. International law, although it binds New Zealand in its relations with other countries, is not part of our law. A treaty entered into by this country has no legal effect internally. If it is to become part of the law of the land it must be embodied in a statute.

The common law, sometimes referred to as case law or Judge-made law, has been built up over the centuries by the Courts in England and, later, in New Zealand and other countries where it was introduced. Like any living law, the common law continues to develop. It is still occasionally said that the Courts do not make new law, but merely declare what the law has always been. By any practical test, however, the decisions of the Courts alter and add to the law. Most of the law of tort, for instance, is the creation of the last 100 years.

In New Zealand the policy of the Courts has been to preserve uniformity with the common law in England. This is partly for reasons of convenience and partly because of the assumption prevailing in New Zealand that there is a single common law, the law of England, and that there are not separate, though similar, common laws in different countries.

United Kingdom statutes in force in New Zealand comprise those passed before 1840 which were applicable to the circumstances of the colony at that date, and those passed between 1840 and 1947 which extended to New Zealand expressly or by necessary implication. Many of these statutes have, of course, since been repealed. In 1947 New Zealand adopted the Statute of Westminster, and our Parliament has since been the sole authority with inherent power to legislate for the country. There are no constitutional restrictions on the laws Parliament can pass. Formerly its powers were limited. First, there was a somewhat uncertain and ill-defined incapacity to make laws applying outside the country. Secondly, there was an incapacity to make laws conflicting with a United Kingdom Act extending to New Zealand. Both limitations disappeared in 1947. The United Kingdom Parliament has, however, power to make laws extending to this country at the request and with the consent of the Parliament of New Zealand. The making of such a request in future is most improbable.

Jurists have argued whether an Act passed by the British Parliament, which purported to extend to New Zealand in disregard of the Statute of Westminster, would be in force here. The question is, however, purely academic. If such legislation were passed it would doubtless be nullified by New Zealand legislation.

Lawmaking

The legal system includes the legislative machinery as well as the Courts. Legislation is primarily the function of Parliament. The Government accepts a positive responsibility for the continuous revision of the general law. The initiation and preparation of proposals for law reform is a function of the Department of Justice. An important part is also played by the Law Revision Committee, established in 1937. The Attorney-General is chairman. The Committee includes representatives of the Parliamentary Opposition, the legal profession, the University law faculties, and the principal legal Departments of State. Its role is to bring into the work of reforming the law those groups which by interest or expert knowledge can make a special contribution. Its existence ensures that law reform measures introduced into Parliament have been considered from different viewpoints and command a measure of informed support.

Public Acts and regulations are drafted in the Law Drafting Office. The ordinances of the 1840s, issued when New Zealand was a Crown Colony, began a tradition of good drafting that has continued to the present. Allowing for the inescapable complexity of much modern legislation, New Zealand statutes are distinguished by a clarity, accuracy, and simplicity that have been equalled in few other countries.

Courts

The Court structure in New Zealand is simple. The Courts of general jurisdiction are the Court of Appeal, the Supreme Court, and the Magistrates' Courts. All exercise both civil and criminal jurisdiction. There are in addition a number of specialist Courts. These include the Court of Arbitration, which makes awards governing pay and working conditions in industry and also makes general wage orders; the Compensation Court, which determines claims under the Workers Compensation Act; the Land Valuation Court, which determines disputes over the valuation of land and hears claims for compensation when land is taken for public purposes; and the Maori Land Court and Maori Appellate Court, which have jurisdiction in Maori land questions and some other matters affecting Maoris. Children's Courts have jurisdiction over offences (other than murder and manslaughter) committed by children under 17 or, in some circumstances, 18, and deal with neglected children. Wardens' Courts have jurisdiction in certain matters under the Mining Act. These last two Courts are presided over by Magistrates and have no separate staff or buildings.

Apart from these Courts are numerous administrative tribunals exercising functions of a judicial nature and performing an important and increasing role in the legal system

Court of Appeal

The Court of Appeal consists of the Chief Justice ex officio, and a President and two Judges of the Court of Appeal. An additional Judge or Judges of the Supreme Court may be nominated by the Chief Justice to sit on the Court of Appeal. Judges of the Court of Appeal are also Judges of the Supreme Court. As its name suggests, the Court has an appellate jurisdiction only. It hears civil and criminal appeals from the Supreme Court. Certain civil proceedings in inferior Courts may, on an order from the Supreme Court, be removed into the Court of Appeal for argument.

The first New Zealand Court of Appeal was established in 1846 and is something of a legal curiosity. With only two Judges in the colony, a Court of the ordinary sort was impossible. Following South Australian precedent, Sir George Grey set up an appellate Court comprising the Governor and the members of the Executive Council other than the Attorney-General. The confidence of litigants in this wholly lay Court cannot have been great. A more orthodox Court of Appeal was constituted in 1862, the members of which were drawn from the Supreme Court Judges, who thereafter had what one of them called “the melancholy pleasure of reversing one another's decisions”. This system continued until 1957, when the present Court was constituted.

All decisions of the Court of Appeal are final unless leave is granted to appeal to the Judicial Committee of the Privy Council sitting in London. Leave may be granted either by the Court or by the Judicial Committee itself in civil cases, but only by the Judicial Committee in criminal cases, and then only in very exceptional cases. The Judicial Committee and the House of Lords sitting as the highest Appeal Court for England generally have the same membership. Eminent Judges of Commonwealth countries are, however, appointed to the Judicial Committee from time to time. In retaining the Privy Council as the final Court of Appeal New Zealand follows Australia, but differs from Canada, India, and certain other Commonwealth countries. While most New Zealand lawyers clearly desire the retention of this right of appeal, there have been a few voices of dissent. It is indeed difficult to reconcile with either the status or needs of New Zealand the power of an overseas tribunal, however eminent, to determine our law.

Supreme Court

The Supreme Court was established in 1841. From the beginning it exercised the functions that in England were exercised by separate Courts and are still exercised by separate Divisions – Queen's Bench, Chancery and Probate, Divorce, and Admiralty. The Court comprises the Chief Justice and 15 other Judges, the number being fixed by statute. The jurisdiction of the Court is twofold – original and appellate. It has, by statute, a general jurisdiction to administer the laws of New Zealand. One aspect of this original jurisdiction is an inherent power to control inferior Courts and tribunals through the writs of certiorari and prohibition. This enables the Supreme Courts to determine the limits of jurisdiction of other Courts and is to be distinguished from its appellate function by which the Court reviews a case that was properly heard by a lower Court. All criminal cases and the great majority of civil cases determined in the Magistrates' Courts are subject to appeal to the Supreme Court. In a few instances an appeal lies to the Court against the decision of an administrative tribunal, for instance, the Licensing Control Commission.

Magistrates' Courts

The civil and criminal jurisdiction of Magistrates' Courts is exercised by permanent salaried Judges called Stipendiary Magistrates or more usually Magistrates. Justices of the Peace may sit as a Magistrate's Court to determine very minor criminal charges. The number of Magistrates is limited by statute to 40, there being 36 now holding office.

On the civil side, Magistrates' Courts are descended from the Resident Magistrates' Courts constituted by ordinance in 1846. Originally the jurisdiction of these Courts was confined to very small claims. Larger minor claims were determined by Courts of Requests before 1858 and, subsequently, by District Courts. These intermediate Courts gradually fell into disuse as the jurisdiction of Resident Magistrates' Courts (called Magistrates' Courts after 1893) increased. District Courts were abolished in 1925.

Magistrates' Courts have always enjoyed popularity as a speedy and inexpensive forum for determining everyday disputes. The confidence felt in them is reflected in the numerous and varied responsibilities placed on Magistrates and in the present extensive jurisdiction they possess. They may hear most civil claims up to £1,000 and actions for the recovery of land where the annual rent does not exceed £550 or the value of the land £7,000. With the agreement of the parties, a Magistrate's Court has jurisdiction whatever the amount in dispute. In exercising its jurisdiction the Court may grant the same remedies as the Supreme Court. The criminal jurisdiction of Magistrates' Courts grew out of the general jurisdiction in minor cases possessed by Justices of the Peace. It is now wide and is described in the article on Criminal Law.

Appointments to Judiciary

The freedom of the judiciary, both Judges and Magistrates, from control or influence by the Government is recognised as a fundamental constitutional principle and is strictly observed in practice. Judges and Magistrates are appointed by the Governor-General on the advice of the Minister of Justice. They are recruited from the legal profession, the qualification being seven years' practice (or, in the case of Magistrates, seven years' standing) as a barrister or solicitor. A qualified Court Registrar may be appointed as a Magistrate but this is seldom done. Appointments are not influenced by politics.

Judges of the Supreme Court hold office during good behaviour. They retire at 72 years. They may be removed by the Queen on an address from the House of Representatives, but this has never happened. There was said to be a convention that Judges in New Zealand received no promotion, and the practice is to appoint the Chief Justice direct from the practising profession. Since the reconstitution of the Court of Appeal, however, Supreme Court Judges have been appointed to that Court. A further supposed safeguard of independence is the statutory rule that a Judge's salary shall not be reduced while he holds office. It was on this ground that in 1932 during the depression the Judges are thought to have declined a request to forgo voluntarily part of their salary. The salary of Judges in office has, however, been increased from time to time. The withholding of an increase could be as much a threat to independence as a reduction. In truth, the real securities for judicial independence are public opinion, tradition, and the high integrity of those appointed as Judges.

Magistrates, who retire at 68, may be removed by the Governor-General for inability or misbehaviour. In practice the independence of the lower judiciary is as secure as that of the Judges.

Legal Aid

There is no formal provision in New Zealand for legal aid in civil cases. The Legal Aid Act of 1939 authorised regulations setting up a legal-aid scheme, but none have been made. In 1952 the New Zealand Law Society undertook to see that no one with a good case was denied access to the Courts because of lack of means. This did little more than formalise a long-standing tradition of the legal profession. In practice a person seeking assistance applies to the District Law Society, which looks into the case and the applicant's means and arranges for a lawyer to act for him where appropriate. The situation is not wholly satisfactory for various reasons. Sooner or later some form of payment by the State appears inevitable. There are, however, many advantages in keeping the administration of legal aid as much as possible in the hands of the profession.

In criminal cases legal aid may be granted by the Court. Counsel is assigned from a list of available lawyers and is paid by the State at the same rate as if he had appeared for the prosecution.

by Bruce James Cameron, B.A., LL.M., Legal Adviser, Department of Justice, Wellington.

• New Zealand, the Development of its Laws and Constitution, ed. Robson, J. L. (1954)
• The Constitution of New Zealand, Scott, K. J. (1962).