Law of New Zealand
Encyclopedia
The law of New Zealand can be found in several sources. The primary sources of New Zealand law are statutes enacted by the New Zealand Parliament and decisions of the New Zealand Courts. At a more fundamental level, the law of New Zealand is based on three related principles: parliamentary sovereignty
; the rule of law; and the separation of powers
. As a former British colony, the New Zealand legal system is heavily based on the English legal system, and remains similar in many respects. There are also important differences, which reflect the unique legal culture that has developed in New Zealand.
(priests) could also use supernatural means to punish those who violated the code of tapu, a spiritual belief system which controlled much of pre-Christian Māori life. The arrival of Europeans from the late eighteenth century undermined the power of both chief and tohunga. Europeans did not believe in tapu and widely violated it, and this, along with the influence of Christian missionaries, led Māori to doubt the effectiveness of the tohunga. The transient nature of many Europeans also made it difficult for chiefs to impose justice on them. As a result, New Zealand became increasingly lawless.
In the 1830s attempts were made to impose British law on British subjects in New Zealand, but these were unsuccessful. Missionaries and British officials such as James Busby
were sometimes called upon to pass judgement on wrongdoers, but the effect of these was entirely dependent on the will of the chiefs. The inability of anyone to adequately control the growing European population was a major factor leading to the Treaty of Waitangi
between the British Crown and Māori.
and English language versions of the Treaty are substantially different. The English version transfers sovereignty to Queen Victoria (in clause one) and grants Māori the rights of British subjects (in clause three). Although no specific mention is made in the Treaty of any legal system, these two clauses seem to imply that British law would be established in New Zealand. The Māori version, however, states that Victoria receives kawanatanga
(governorship) while the chiefs retain tino rangatiratanga
(absolute chieftainship) in clause two as opposed to the property rights promised in the English version. Although the third clause of the Māori version says that the Queen would treat Māori the same as people in England, many historians argue that Māori believed that the new governor would exercise his powers over the Europeans only, and that the chiefs would continue to rule over Māori. In the eyes of some modern Māori, the New Zealand legal system is invalid as it violates the Treaty's promise of tino rangatiratanga
(chieftainship).
Another problem with the idea that the Treaty established the rule of British law is that in 1840 Māori still controlled New Zealand. Although the British had sent a governor, they had not backed him up with troops and for the first few years of supposed British sovereignty, Europeans were significantly outnumbered and outgunned by Māori. Māori generally obeyed British law in European settlements and when they or their chiefs chose to, but there was nothing to make them obey the law in areas they controlled, which until about the 1860s was most of the country. British law, and later New Zealand law as passed by the New Zealand parliament was slowly established over the country, but it remained ineffective in Māori-controlled areas until the late nineteenth century at least. In practical terms, British-based law was established in New Zealand not through the Treaty of Waitangi but through conquest and settlement.
The Treaty was never ratified and has little standing in New Zealand law. In 1877 a judge ruled that it was a 'legal nullity'. In 1975 the Treaty of Waitangi Act
was passed establishing the Waitangi Tribunal
and enabling it to investigate and report on contemporary breaches of the Treaty, and recommend compensation. This had little impact until 1985, when the Act was amended to allow investigations into historic breaches. The Tribunal's rulings are not binding although in certain circumstances it can prevent or place conditions on the sale of state owned land. Since the 1980s references to the Treaty have appeared in various pieces of legislation, and legal rulings have established that it can be relevant even to legislation which does not mention it. However the government is not generally bound by the Treaty, nor are the people of New Zealand.
in 1980 and is different to the current Supreme Court
), and various lower courts subsequently established. After a series of experiments, a three-tier court system came into being: Supreme Court, District Court and Magistrates' Court, with the Magistrates' Courts coming into being in 1846. The Court of Appeal was set up in 1862, but consisted of panels of judges from the Supreme Court. The Court of Appeal was the highest court in New Zealand, although appeals could be taken from this to the Privy Council
in London. The District Courts were abolished in 1925 but later re-established. In 1957 the Court of Appeal was reconstituted to become separate from the Supreme Court, having its own judges. In 2004 a new Supreme Court was established, becoming New Zealand's court of last resort following the simultaneous abolition of the right to appeal to the Privy Council.
In 1865 a Native Land Court was established to "define the land rights of Māori people under Māori custom and to translate those rights or customary titles into land titles recognisable under European law". It has since been heavily criticised for acting as a device for removing Māori from their land. Some of the problems were with the court itself – holding proceedings in English and in cities far from Māori settlements, judges with inadequate knowledge of Māori custom – while others were more to do with the laws it enforced. For example for many decades land law did not recognise that an entire hapu
owned its land, and land ownership was put in the hands of a few people. In 1954 it was renamed the Māori Land Court
, and has been substantially reformed since the nineteenth century. Until the mid-twentieth century it also dealt with Māori adoptions.
The New Zealand judiciary have generally been seen as independent and non-corrupt, although not always non-biased. Until recent years they have played a very minor role in developing the law, and as late as 1966 it was said that they "usually follow English decisions scrupulously". In the 1980s the judiciary played a major role in redefining the constitutional position of the Treaty of Waitangi.
. Since 1969, however, a series of Acts of Parliament altered this, and New Zealand contract law is now 'largely... distinct from other jurisdictions'. The main distinction of New Zealand contract law is the wide discretionary power given to courts in granting relief. Although these changes were initially opposed due to fears that they would make the remedy of contractual disputes unpredictable and increase levels of litigation, it is generally agreed that this has not happened, and that the laws are working satisfactorily.
Parliamentary sovereignty
Parliamentary sovereignty is a concept in the constitutional law of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions—including any executive or judicial bodies...
; the rule of law; and the separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
. As a former British colony, the New Zealand legal system is heavily based on the English legal system, and remains similar in many respects. There are also important differences, which reflect the unique legal culture that has developed in New Zealand.
Before 1840
Before 1840 there was no formal legal system in New Zealand. Māori chiefs held the power to punish people for misdeeds but this power, though dependent on custom and the broad support of the rest of the iwi, was arbitrary rather than based on a code of laws. TohungaTohunga
In the culture of the Māori of New Zealand, a tohunga is an expert practitioner of any skill or art, religious or otherwise. Tohunga may include expert priests, healers, navigators, carvers, builders, teachers and advisors. The equivalent term in Hawaiian culture is kahuna...
(priests) could also use supernatural means to punish those who violated the code of tapu, a spiritual belief system which controlled much of pre-Christian Māori life. The arrival of Europeans from the late eighteenth century undermined the power of both chief and tohunga. Europeans did not believe in tapu and widely violated it, and this, along with the influence of Christian missionaries, led Māori to doubt the effectiveness of the tohunga. The transient nature of many Europeans also made it difficult for chiefs to impose justice on them. As a result, New Zealand became increasingly lawless.
In the 1830s attempts were made to impose British law on British subjects in New Zealand, but these were unsuccessful. Missionaries and British officials such as James Busby
James Busby
James Busby is widely regarded as the "father" of the Australian wine industry, as he took the first collection of vine stock from Spain and France to Australia. Later he become a British Resident who traveled to New Zealand, involved in the drafting of the Declaration of the Independence of New...
were sometimes called upon to pass judgement on wrongdoers, but the effect of these was entirely dependent on the will of the chiefs. The inability of anyone to adequately control the growing European population was a major factor leading to the Treaty of Waitangi
Treaty of Waitangi
The Treaty of Waitangi is a treaty first signed on 6 February 1840 by representatives of the British Crown and various Māori chiefs from the North Island of New Zealand....
between the British Crown and Māori.
The Treaty of Waitangi
The Treaty of Waitangi, signed in 1840, is widely believed to have established British law in New Zealand. However, there are numerous problems with this theory. Firstly, the MāoriMaori language
Māori or te reo Māori , commonly te reo , is the language of the indigenous population of New Zealand, the Māori. It has the status of an official language in New Zealand...
and English language versions of the Treaty are substantially different. The English version transfers sovereignty to Queen Victoria (in clause one) and grants Māori the rights of British subjects (in clause three). Although no specific mention is made in the Treaty of any legal system, these two clauses seem to imply that British law would be established in New Zealand. The Māori version, however, states that Victoria receives kawanatanga
Kawanatanga
Kāwanatanga is a word from the Māori language of New Zealand. The word kāwanatanga was first used in the Declaration of Independence of New Zealand, 1835. It reappeared in 1840 when the Treaty of Waitangi was being translated from English into Māori. It was used there to translate the concept of...
(governorship) while the chiefs retain tino rangatiratanga
Tino rangatiratanga
Tino rangatiratanga is a Māori term that can be interpreted as chieftainship. It is probably the most contentious phrase from the Māori version of the Treaty of Waitangi...
(absolute chieftainship) in clause two as opposed to the property rights promised in the English version. Although the third clause of the Māori version says that the Queen would treat Māori the same as people in England, many historians argue that Māori believed that the new governor would exercise his powers over the Europeans only, and that the chiefs would continue to rule over Māori. In the eyes of some modern Māori, the New Zealand legal system is invalid as it violates the Treaty's promise of tino rangatiratanga
Tino rangatiratanga
Tino rangatiratanga is a Māori term that can be interpreted as chieftainship. It is probably the most contentious phrase from the Māori version of the Treaty of Waitangi...
(chieftainship).
Another problem with the idea that the Treaty established the rule of British law is that in 1840 Māori still controlled New Zealand. Although the British had sent a governor, they had not backed him up with troops and for the first few years of supposed British sovereignty, Europeans were significantly outnumbered and outgunned by Māori. Māori generally obeyed British law in European settlements and when they or their chiefs chose to, but there was nothing to make them obey the law in areas they controlled, which until about the 1860s was most of the country. British law, and later New Zealand law as passed by the New Zealand parliament was slowly established over the country, but it remained ineffective in Māori-controlled areas until the late nineteenth century at least. In practical terms, British-based law was established in New Zealand not through the Treaty of Waitangi but through conquest and settlement.
The Treaty was never ratified and has little standing in New Zealand law. In 1877 a judge ruled that it was a 'legal nullity'. In 1975 the Treaty of Waitangi Act
Treaty of Waitangi Act
The Treaty of Waitangi Act 1975 established the Waitangi Tribunal and gave the Treaty of Waitangi recognition in New Zealand law for the first time. The Tribunal was empowered to investigate possible breaches of the Treaty by the New Zealand government or any state-controlled body, occurring after...
was passed establishing the Waitangi Tribunal
Waitangi Tribunal
The Waitangi Tribunal is a New Zealand permanent commission of inquiry established under the Treaty of Waitangi Act 1975...
and enabling it to investigate and report on contemporary breaches of the Treaty, and recommend compensation. This had little impact until 1985, when the Act was amended to allow investigations into historic breaches. The Tribunal's rulings are not binding although in certain circumstances it can prevent or place conditions on the sale of state owned land. Since the 1980s references to the Treaty have appeared in various pieces of legislation, and legal rulings have established that it can be relevant even to legislation which does not mention it. However the government is not generally bound by the Treaty, nor are the people of New Zealand.
The court system
A Supreme Court was first established in 1841 (it was renamed the High CourtHigh Court of New Zealand
The High Court of New Zealand is a superior court of New Zealand. It was established in 1841 and known as the Supreme Court of New Zealand until 1980....
in 1980 and is different to the current Supreme Court
Supreme Court of New Zealand
The Supreme Court of New Zealand is the highest court and the court of last resort in New Zealand, having formally come into existence on 1 January 2004. The court sat for the first time on 1 July 2004. It replaced the right of appeal to the Judicial Committee of the Privy Council, based in London...
), and various lower courts subsequently established. After a series of experiments, a three-tier court system came into being: Supreme Court, District Court and Magistrates' Court, with the Magistrates' Courts coming into being in 1846. The Court of Appeal was set up in 1862, but consisted of panels of judges from the Supreme Court. The Court of Appeal was the highest court in New Zealand, although appeals could be taken from this to the Privy Council
Privy council
A privy council is a body that advises the head of state of a nation, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the monarch's closest advisors to give confidential advice on...
in London. The District Courts were abolished in 1925 but later re-established. In 1957 the Court of Appeal was reconstituted to become separate from the Supreme Court, having its own judges. In 2004 a new Supreme Court was established, becoming New Zealand's court of last resort following the simultaneous abolition of the right to appeal to the Privy Council.
In 1865 a Native Land Court was established to "define the land rights of Māori people under Māori custom and to translate those rights or customary titles into land titles recognisable under European law". It has since been heavily criticised for acting as a device for removing Māori from their land. Some of the problems were with the court itself – holding proceedings in English and in cities far from Māori settlements, judges with inadequate knowledge of Māori custom – while others were more to do with the laws it enforced. For example for many decades land law did not recognise that an entire hapu
Hapu
A hapū is sometimes described as "the basic political unit within Maori society".A named division of a Māori iwi , membership is determined by genealogical descent; a hapū is made up of a number of whānau groups. Generally hapū range in size from 150-200 although there is no upper limit...
owned its land, and land ownership was put in the hands of a few people. In 1954 it was renamed the Māori Land Court
Maori Land Court
The Māori Land Court is the specialist court in New Zealand that hears matters relating to Māori land.The Māori Land Court was established in 1865 as the Native Land Court. In 1954, the name was changed to the Māori Land Court...
, and has been substantially reformed since the nineteenth century. Until the mid-twentieth century it also dealt with Māori adoptions.
The New Zealand judiciary have generally been seen as independent and non-corrupt, although not always non-biased. Until recent years they have played a very minor role in developing the law, and as late as 1966 it was said that they "usually follow English decisions scrupulously". In the 1980s the judiciary played a major role in redefining the constitutional position of the Treaty of Waitangi.
Contract law
New Zealand contract law was initially derived from the English modelEnglish contract law
English contract law is a body of law regulating contracts in England and Wales. With its roots in the lex mercatoria and the activism of the judiciary during the industrial revolution, it shares a heritage with countries across the Commonwealth , and the United States...
. Since 1969, however, a series of Acts of Parliament altered this, and New Zealand contract law is now 'largely... distinct from other jurisdictions'. The main distinction of New Zealand contract law is the wide discretionary power given to courts in granting relief. Although these changes were initially opposed due to fears that they would make the remedy of contractual disputes unpredictable and increase levels of litigation, it is generally agreed that this has not happened, and that the laws are working satisfactorily.
External links
- The New Zealand Legal System, Auckland District Law Society
- New Zealand legislation
- New Zealand Legal Information Institute – includes databases of court decisions