Access to New Zealand Law

Rosa Polaschek graduated from the University of Auckland, BA/LLB (Hons) as a Senior Scholar in Law. She has worked as a Judges’ Clerk at the High Court of New Zealand, and subsequently at the Crown Law Office. Her interests are in constitutional and public law, and human rights law. In 2017, she was awarded the New Zealand Law Foundation’s Cleary Memorial Prize, for a young for barrister or solicitor who shows outstanding future promise in the legal profession. In 2018, Rosa was awarded a Hauser Global Scholarship to study at New York University toward an LLM (Master of Laws) degree. The article below updates the previous version, authored by Margaret Greville.

1. The New Zealand Constitution

New Zealand, like Great Britain, has no formal written constitution. We do, however, possess a bundle of statutes, conventions and important documents that together make up our constitutional organisation. Key within this structure are the Treaty of Waitangi, the Bill of Rights Act 1990, and the Constitution Act 1986, amongst others. Authoritative information on our Constitution may be found via the website of the Governor General, and in particular an essay by the Rt Hon Sir Kenneth Keith (which is also provided as a foreword to the New Zealand Government Cabinet Manual), found at the Governor General’s website.

Historically, there was no push for a written constitution. New Zealand does not have a federal system of government and had no need to define the complementary responsibilities of a central government vis-à-vis component states, territories or provinces. When the Bill of Rights Act 1990 was passed into law, there was discussion about formalising the role of judges adjudicating on rights issues which led into a wider conversation about the constitutional structure, but this was not taken further at the time. However, the conversation is periodically restarted. In 2011, the Government formed a Constitutional Advisory Panel to consider options for future constitutional reform. After consultation with the public, a report was issued in 2013 which essentially called for continued conversation on these issues and noted no widespread support for a written constitution. The final Report which also provides a useful overview of contemporary constitutional issues, may be found on the Ministry of Justice’s website.

An outline of our current constitutional state of affairs might go something like this:

• New Zealand is a constitutional monarchy.
• Because our head of state is a monarch, New Zealand is also a “Realm.”
• It is a Westminster-style democracy.
• The Head of State is Her Majesty Queen Elizabeth II in right of New Zealand.
• The Representative Head of State is the Governor General (at present, Lt Gen Rt. Hon Sir Jerry Mateparae), who is appointed by the Queen on recommendation of the Prime Minister.
• The elected Head of Government is the Prime Minister (currently the Rt Hon Ms Jacinda Ardern).
• The Parliament is the legislature, made up of elected Members of Parliament.
• The Parliament is elected using the MMP (Mixed Member Proportional) electoral system.
• The Cabinet, which forms part of the Executive branch and head various Government departments and ministries, is drawn from senior members of the governing political parties within Parliament.

New Zealand has an independent civil service. It operates as a unitary state, without a federal system.

• It is a unicameral state, having only a House of Representatives in our Parliament and no Upper House.
• It does not have a written constitution, in the sense of a single entrenched legislative instrument spelling out the powers and limitations of the various branches of government.
• It does have a number of constitutional documents and conventions that collectively spell out some of the rights of citizens, while other rights are safeguarded by the operation of the common law.

One consequence of our constitutional structure, particularly the lack of an Upper House combined with drawing the Executive primarily from within the legislature, is that it is possible for legislation to be passed into law very quickly. This includes legislation on important, and even constitutional, issues. This can lead to subsequent amendments in order to clarify or remedy enactments that may have been passed in undue haste. It also means the scope for potential abuses of political power is greater, including for change which was not signalled to the electorate pre-election. This phenomenon was first glaringly documented by former Prime Minister Sir Geoffrey Palmer, in Unbridled Power (OUP, Oxford, 1987), although the position is now somewhat moderated through the MMP electoral process which ensures that no single political party controls a majority of the House of Representatives.

A second constitutional-like feature that tends to amplify the speed with which citizens can be made subject to laws (often without warning) is the simplicity with which secondary legislation can be brought into force: basically, by the signature of a Minister of the Crown.

2. The Treaty of Waitangi Within the Constitution

The Treaty of Waitangi has a special and evolving place within the structure of New Zealand’s social, legal and political make-up. The Treaty was signed in 1840 between representatives of the British Crown and various Māori chiefs. There are both Māori and English versions of the Treaty, which are not always compatibly interpreted. It is now broadly acknowledged as one of the founding documents of New Zealand, but as also having legal significance. Although the Treaty is not legally binding unless incorporated into statute, it is relatively common for statutes to refer to the “principles of the Treaty” and to require actions to be undertaken consistently with those principles. As the principles have never been legislatively defined, this wording has led to extensive judicial discussion. New Zealand courts and academic discussion has also increasingly recognised the role of Māori customary rights as a source of law to be considered, although how that should be done remains contested.

The Waitangi Tribunal was established in 1975 as a permanent commission of inquiry to investigate claimed breaches of the Treaty of Waitangi. Its reports provide historical and legal analysis and are a comprehensive source of understanding about the historical relationship between Māori and the Crown as well as developing areas of Māori legal jurisprudence. One example is the report of the tribunal known as “WAI 262” (notably, the complaint was lodged in 1991 and a final report delivered in 2011), which discusses the potential future of the Māori-Crown relationship and relates to Māori rights to mātauranga Māori or Māori knowledge, and indigenous flora and fauna.

3. The New Zealand Legal System

3.1. Origins of New Zealand Law

A comprehensive analysis of the development of the New Zealand legal system, authored by former Prime Minister and legal reformer Sir Geoffrey Palmer, is available at the online encyclopaedia of New Zealand, Te Ara.

As a general outline, New Zealand operates on a common law legal system, in which Parliament is supreme. This means that Parliamentary law (statute) is superior to other forms of law, supplemented by the common law (law developed by judges) and, where appropriate, customary law. Customary law in New Zealand includes Māori customary law, tikanga. New Zealand has also become increasingly part of multi- and bilateral international agreements and treaties. Although these are not directly legally enforceable unless passed into legislation, such international agreements are considered by the courts when developing the common law. There is a presumption that Parliament intended to legislate consistently with international law.

Most New Zealand law was originally based on English law, which was imported into New Zealand after the signing of the Treaty of Waitangi. Both the New Zealand common law and statute reflect that heritage, although both now bear a distinctively New Zealand flavour. This is a result of the common law system of precedent, meaning that each case which is heard draws on legal principles developed in earlier cases. Cases are heard in an adversarial fashion, so the law is applied to the facts of a particular case and judicial development of the law occurs as the old law to new facts. Over time, this has caused a move away from some British legal doctrines. Similarly, while some English statutes remain applicable in New Zealand (such as the Magna Carta: see the Imperial Laws Application Act 1988), they have progressively been replaced with New Zealand legislation.

Where Parliament has comprehensively legislated in an area – for example, in criminal law – there is considered to be no room for customary law to remain. However, judicial interpretation of those statutes is authoritative as law within the common law system and will be applied in future cases. For example, the Crimes Act 1961 is usually characterised as a code: the judges cannot create a “new” crime, and no new offences have appeared without legislation. However, in passing judgment on activities covered by the Crimes Act, the judges customarily use common law principles to guide them in making a decision.

Further details on New Zealand’s early development may be found at the 1966 Encyclopedia of New Zealand. See also, J Ruru, D Webb, and P Scott The New Zealand Legal System (6th ed., LexisNexis, Wellington, 2016); and P Joseph Constitutional and Administrative Law in New Zealand (4th ed., Thomson Reuters, Wellington, 2014).

3.2. The Parliament

The Parliamentary website is an invaluable source of information on everything to do with the New Zealand Parliament and how it works, as well as a vital free resource for anyone seeking copies of Bills, Order Papers, Supplementary Order papers, Parliamentary Debates, Select Committee Debates and Reports, Journals of the House, Standing Orders, and Speakers’ Rulings, amongst other things.

Some of the following links are particularly helpful:

• How Parliament Works: an overview of the Parliamentary system.
• Parliamentary Practice in New Zealand: a comprehensive guide to the rules, practices and procedures of Parliament.
• Standing Orders, Speakers Rulings, and Sessional Rulings. These are all the rules and orders that govern Parliamentary behaviour
• Bills – this is a record of all proposed Bills presented to the Parliament since 2002, together with their movement through the House, and if passed into law, their titles upon enactment. For modern Bills (since 2008), the Bill page will contain a copy of links to all relevant public submissions, Select Committee processes and Parliamentary speeches, and any other information about the Bill.
• Select Committees: These are a central part of the New Zealand constitutional system: they vet Bills, consider public submissions and make amendments to Bills before the House votes on a final version of proposed legislation. They can be influential in developing Bills, and slowing down the legislation process to allow public input. In certain circumstances, the majority of the House can always call for urgency in the debates, and by-pass the Select Committee stage altogether. Use of such procedure is often criticised. It is also possible to view public submissions to the Select Committees. These often present useful insights into just how the public actually views the proposal in question.
• Parliamentary Debates (or “Hansard”) are recorded here back as far as 2002. Historic debates can also be found at the Hansard’s historical website
• The Journals of the House. These are the authoritative record of the House of Representatives.

3.3. Legislation

All current official New Zealand legislation can be found on the Parliamentary Counsel’s website, which also has useful links to finding historical legislation and other useful resources. Paper copies of legislation can also be purchased from Parliament or selected bookshops. The New Zealand legislation website also contains a number of Legislative Instruments and some Regulations, although as of 2018 a project was underway by the Parliamentary Counsel Office to consolidate all secondary legislation online in the near future.

Another useful source is NZLII, the New Zealand Legal Information Institute platform. The service provides PDF copies of almost all historic legislation in New Zealand, as well as a number of other useful sources including:

• Repealed Acts: a chronological collection of repealed Acts arranged in order of their original enactment.
• New Zealand Historical Acts – 1980 Consolidation: The Consolidated Statutes Enactment Act 1908 was passed to re-enact the consolidated remnants of all previous NZ legislation still in force. This is useful for reviewing legislative histories of many of our most fundamental enactments.

Both LexisNexis (NZ) and Westlaw (NZ) also maintain their own statute databases, which they use as backbones to support all their respective interconnected online legal materials. CCH (NZ) maintains selected groups of statutes to support the various separate online subject collections they publish, but not a complete set.

Although these three online compilations of New Zealand legislation are not official, they are meticulously maintained, and often have associated commentary.

3.4. Legislative Instruments

Parliament can delegate law-making powers to various entities, including the executive. Such delegation is typically in technical areas, or areas subject to significant change in which it would not be practical for Parliament to have to constantly re-legislate. However, the areas of law covered by such delegated legislation can be significant. New Zealand’s specific immigration rules, for example, are set by the executive. Such legal instruments can be referred to as ‘delegated legislation’, ‘subordinate legislation’, ‘disallowable instruments’, or ‘regulations’.

Executive legislation must be within the power delegated by Parliament and can be reviewed by the courts. They are also subject to the scrutiny of Parliament in some circumstances, notably through the possibility of complaint to the Regulations Review Committee.

A more detailed description can be found on the University of Wellington’s website, and an authoritative guide to the various forms of delegated legislation can be found in R Carter, J McHerron and R Malone Subordinate Legislation in New Zealand (LexisNexis, 2013).

As mentioned above, many of the most significant legislative instruments can be found on the official NZ Legislation website, which sets out an overview

4. The Courts

4.1. Courts

The structure of New Zealand courts is as follows. The Courts operate in a hierarchical system: the judgments of the Supreme Court are binding precedent for all courts below; decisions of the Court of Appeal are binding on lower courts, and the High Court binds the District Court. This is set out in the diagram above (note that not all appellate pathways are that linear: some decisions of the District Court in criminal jury trials particularly will be appealed directly to the Court of Appeal). The Environment, Youth and Family Courts operate as divisions of the District Court and are equivalent to the District Court within the hierarchy. The Employment Court is separate again and is at the same level as the High Court, in that its decisions are appealed directly to the Court of Appeal.

As well as following the decisions of New Zealand courts which are higher in the hierarchy, New Zealand courts also consider decisions from other common law jurisdictions, especially Great Britain, Australia, and Canada. In general, the higher New Zealand courts may look for comparison or guidance from the highest level decisions in other jurisdictions.

The High Court, Court of Appeal and Supreme Court are referred to as the Senior Courts. Although the courts have inherent jurisdiction and control their own procedure, they also operate within the limits set out in the Senior Courts Act 2016, the High Court Rules 2016 and the Court of Appeal and Supreme Court Rules (all available on the New Zealand legislation website).

The NZ Courts pages are very user-friendly. Information and judgments are delivered promptly, and the Courts have a Twitter account which announces new decisions of public interest as well as the daily lists for the Senior Courts.

4.2. Special Jurisdiction Bodies

As well as the courts, there are also a number of bodies with special jurisdiction which do not appear in an orthodox hierarchy but make judicial decisions in areas of particular specialisation such as the Coroners, or the military Court Martial system.

4.3. Tribunals

This is a “catch-all” expression that includes a variety of decision-making bodies with different specialist functions. Each operates under its own particular structure, typically created by individual statutes. While some have statutory rights of appeal to the District Court and higher, they may also be judicially reviewed. Note that while the Waitangi Tribunal is listed among and accessed from the Tribunals page on the Ministry of Justice website, it has its own administration and comprehensive website.

For a good overview of the decision-making bodies, see the Directory of Decisions maintained by the Law Librarians at the University of Waikato.

Many of the authorities provide access to their decisions, although not all offer complete and comprehensive access, in most cases because of the withholding material that is sensitive for commercial or personal reasons, or because of the large numbers involved.

If the Ministry websites do not provide access to decisions, a good place to seek out the available online decisions of various New Zealand tribunals is the New Zealand Legal Information Institute (NZLII).

Accessing New Zealand Case Law: Three sources of free online New Zealand judicial decisions are:

• The Courts of New Zealand website;
• Judicial Decisions Online; and
• NZLII.

On the Courts of New Zealand website, the Courts provide access to all decisions handed down by the Supreme Court, decisions of particular public interest of the Court of Appeal and High Courts, and also to press releases, judicial speeches and other relevant information about current hearings, including transcripts of trial in the case of Supreme Court actions.

Separately, the District Court’s website is updated with important decisions from the District Court and its divisions in the Youth and Family Court.

Judicial Decisions Online provides a comprehensive database of all decisions of the Supreme Court, Court of Appeal, and High Courts. However, it does not always have all decisions (particularly if they are subject to suppression orders), and only has decisions of the Court of Appeal from 2003 and the High Court from 2005.

NZLII has a more extensive collection of historical New Zealand case law from the Senior Courts. The Law School at Victoria University of Wellington has also (as part of a research project) identified many cases decided early in New Zealand’s legal history. These cases may be found at the University of Wellington’s website.

4.4. Subscription Access to New Zealand Case Law and Reports

Subscription-only legal databases in New Zealand (primarily Westlaw NZ, LexisNexis NZ and, for more specialist subjects, CCH) have comprehensive compilations of cases, both reported and unreported. These can include material suppressed to the general public, but available to lawyers for research purposes. Westlaw and LexisNexis also both offer databases of unofficial case law summaries and case citator functions, notably BriefCase (Westlaw) and LinxPlus (LexisNexis).

The Law Library at the University of Auckland has produced a list of New Zealand subject-specific law reports.

There are no official reports of cases in the sense of being legislatively determined. However, the leading law reports are the New Zealand Law Reports (NZLR), which are published by the New Zealand Law Society. The NZLRs contain all leading and significant cases handed down in New Zealand and are a useful source of defining cases. They do not publish every decision handed down, even by the Superior Courts, and are therefore not a complete statement of New Zealand case law.

The New Zealand Law Reports are not available free of charge, but only either by purchasing print versions or accessing online through LexisNexis NZ. All Supreme Court decisions are now reported in the NZLR, together with arguments of Counsel. Inclusion of cases decided in the Court of Appeal and High Court is by selection on the basis of perceived significance.

Other significant law reports include the New Zealand Administrative Reports and the Gazette Law reports for significant decisions prior to 1916. Again, these are only available either by purchase or via an electronic subscription through the publishers.

5. Legal Research in New Zealand

5.1. Case Law

As well as the general databases set out above, the subscription publishers offer case citators which assist in accessing case law and seeing how a case has been treated by subsequent courts. On LexisNexis, the New Zealand citator is CaseBase. This programme also interlinks with international databases in Australia and the United Kingdom. A similar case citator is available on Westlaw (NZ), although with slightly less comprehensive access to United Kingdom law.

5.2. Statute Law

The various methods for locating statute law in New Zealand have been set out primarily above. However, it is also worth noting that the legal publishers each provide statutory annotators, which show how legislation has changed and provide the ability to easily see developments in a legal provision. This comparison can be made by using the free sources of legislation, since the NZ Legislation website and NZLII have copies of earlier versions of statutes online but is significantly more time consuming.

5.3. Commentary

Various forms of commentary are available on a wide range of areas of New Zealand law. Leading textbooks include:

• Jeremy Finn, Stephen Todd and Matthew Barber Burrows, Finn and Todd The Law of Contract in New Zealand (6th ed., LexisNexis, Wellington, 2017)
• JF Burrows and RI Carter Statute Law in New Zealand (4th ed., LexisNexis, Wellington, 2009)
• Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed., LexisNexis, Wellington, 2015)
• Noel C Kelly, Chris Kelly and Greg Kelly Garrow and Kelly: Law of Trusts and Trustees (6th ed., LexisNexis, Wellington, 2005)
• Stephen Todd and others The Law of Torts in New Zealand (7th ed., Thomson Reuters, Wellington, 2016)
• Andrew Butler and others Equity and Trusts in New Zealand (2nd ed., Thomson Reuters, Wellington, 2009)

Various “loose-leaf” services are also available, which are typically subject specific copies of annotated legislation with commentary provided. Most of these are regularly used online (and interconnected with the statutes provided by the legal publishers, with cross-references to the leading cases). Print copies are available from all law libraries. Major New Zealand loose-leaf commentaries include, amongst many others:

• McGechan on Procedure (Westlaw)
• Sim’s Court Practice (LexisNexis)
• Adams on Criminal Law (Westlaw)
• Salmon on Environmental Law (Westlaw)

Various other annotated commentaries are available online, as well as various e-book versions of leading legal textbooks like Fisher on Matrimonial and Relationship Property.

New Zealand lawyers also still rely on English, and to some extent Australian, Canadian, and American legal monographs as well as locally published works.

5.4. Legal Encyclopaedias

LexisNexis (NZ) is the only producer of a legal encyclopaedia for this jurisdiction, the Laws of New Zealand. This is available in print and online and is relatively comprehensive in topics, but not always up to date. As part of the international LexisNexis network it offers the advantage of cross-references and sometimes links to and from similar legal encyclopaedic works in Australia and Great Britain. In a common law setting, this is a valuable asset. It provides an excellent “first look” place to begin a research exercise, because it offers immediate access to related subject matter that may be relevant.

Westlaw (NZ) has also produced a useful alphabetical compilation of extracts from its numerous legal publications, arranged to present an encyclopaedic overview of New Zealand law, but does not offer a comparable full encyclopaedia.

Te Ara, the New Zealand encyclopaedia, is available for free online. Although it is not a legal encyclopaedia, it had useful historical information and a good overview of New Zealand legal issues.

5.5. Legal Journal Articles

There are numerous legal journals operating within New Zealand. Additionally, many New Zealand legal scholars – perhaps most – write for international journals as well as indigenous publications. This means that a wide number of sources need to be tapped for a thorough search for New Zealand legal journal literature.

The following is a list of most New Zealand-published legal journals, with their publisher in brackets if known:

• Auckland University Law Review
• Australian & New Zealand Journal of Law & Education
• Australian and New Zealand Maritime Law Journal
• Australian and New Zealand Sports Law Journal
• Butterworths Conveyancing Bulletin – see Conveyancing Bulletin
• Canterbury Law Review
• Company & Securities Law Bulletin (LexisNexis)
• Competition & Consumer Law Journal (Australia & NZ) (LexisNexis)
• Conveyancing Bulletin (LexisNexis)
• Employment Law Bulletin (LexisNexis)
• Index New Zealand (Abstracts and descriptions for articles from a huge range of NZ periodicals)
• Journal of Contract Law (LexisNexis)
• Māori Law Review
• New Zealand Criminal Law Review
• New Zealand Family Law Journal (LexisNexis)
• New Zealand Intellectual Property Journal (LexisNexis)
• New Zealand Law Journal (LexisNexis)
• New Zealand Law Journal Archive 1925-2001 – LexisNexis – CD version – Only available in the Auckland HC Library
• New Zealand Law Review (Legal Research Foundation)
• New Zealand Law Students’ Journal
• New Zealand Women’s Law Journal — Te Aho Kawe Kaupapa Ture a ngā Wāhine
• New Zealand Yearbook of International Law
• Otago Law Review
• Victoria University of Wellington Law Review
• Waikato Law Review

The New Zealand Law Review is the most senior of these publications and includes regular helpful commentary on various subject areas which summarise recent court decisions and offer critical commentary. These are a useful starting point for understanding the New Zealand approach in areas like equity and restitution or administrative law.

Accessing most of these journals requires a subscription, or at least purchasing an individual article of interest, but some are entirely or partly freely available online through an online search (for example, the New Zealand Women’s Law Journal or the Māori Law Review). Others are available through NZLII, which is always worth checking. Unlike statute and case law, LexisNexis and Westlaw do not carry all major journals comprehensively. Journals can be found on variety of databases including Hein Online and AGIS Full Text. LexisNexis does provide an indexing service of all journals received by the New Zealand Law Society Library.

Government Agencies & NZ Information: A comprehensive list of all government agencies, departments and other entities can be found in the New Zealand Government A-Z. Official Government websites can be identified by the suffix “.govt.nz”, and often provide comprehensive background information on Ministries and Departments.

5.6. International Connections

A major source of information on everything to do with New Zealand’s international relations and obligations is the Ministry of International Affairs and Trade (MFAT) website, and the associated website, New Zealand Treaties Online.

The treaties site contains all our Treaty Series (bilateral, plurilateral, multilateral etc), and information about when they were entered into and the status of each Treaty.

The MFAT website offers a view of areas of special interest to New Zealand, such as Antarctica, law of the sea, international fisheries, the Continental Shelf and maritime boundaries, New Zealand representation overseas etc, which can often affect international legal developments from a New Zealand perspective.

6. Good Free Resources Online

6.1. The Parliament

Absolutely everything!

6.2. The Courts Website

The Courts of New Zealand official website, including their history, their operations, packaged information for legal professionals, students and others, full-text cases and transcripts, media releases, the judges.

6.3. NZLII

Mentioned a number of times, the New Zealand Legal Information Institute offers free access to a great deal of New Zealand legal information, both current and archival. This collection is growing all the time, with the addition of further information sought out by and offered to the NZLII.

6.4. Citation

New Zealand lawyers use the ubiquitous Cardiff Index to Legal Citation. We also have a New Zealand specific guide, Legal Citations of Aotearoa New Zealand (LCANZ).

6.5. Style

The official style for all New Zealand legal writing is: A Coppard, G McLay, C Murray and J Orpin New Zealand Law Style Guide (3rd ed., Thomson Reuters, Wellington, 2018).

6.6. NZ Law Society Libraries

This collaboration among the Law Society Libraries of Auckland, Wellington, and Christchurch is responsible for the production of the LINX database, and for maintaining the physical and online collections.

6.7. The New Zealand Law Society

The Law Society offers not only items of interest to its members, but also news items a d also information to assist the public. These include guides to different aspects of the law, how to find a lawyer, and more.

6.8. University Law Libraries

Each of these provides a lot of useful online help to members (some of their online resources are free to the public). Most have really helpful guides to New Zealand legal research.

• Otago
• Canterbury
• Victoria University of Wellington and Lost Cases
• Waikato University: also see their directory of decisions
• University of Auckland Davis Law Library