Kara Sears
The New Zealand legal system is based on the English common law system, inherited from its time as part of the British Empire. The English Laws Act 1858 (N.Z.) set the date of reception of common law in the colony as 14 January 1840. The law in New Zealand is divided into two parts: criminal law and civil law. Common law is flexible and is made by judges, who use precedents to decide cases. It is built up through legal decisions rather than by legislation. The doctrines of precedent and stare decisis dictate that lower courts follow the decisions of senior courts, encouraging consistency in decision-making.
| Characteristics | Values |
|---|---|
| Basis of the legal system | The law of New Zealand uses the English common law system, inherited from being a part of the British Empire. |
| Primary sources of law | Acts enacted by the New Zealand Parliament and case law made by decisions of the courts of New Zealand. |
| Fundamental principles | Parliamentary sovereignty, the rule of law, and the separation of powers. |
| Doctrines | Precedent and stare decisis. |
| Nature of common law | Flexible and made by judges. |
| Decision-making | Lower courts follow senior courts' decisions, encouraging consistency. |
| Rights and freedoms | NZBORA affirms fundamental rights and freedoms, with limitations on rights being "reasonable" and "demonstrably justified in a free and democratic society". |
| Property rights | Legislation should respect property rights, including intellectual property, and allow for restrictions on use with compensation not always required. |
| Natural justice | NZBORA provides for the observance of natural justice, ensuring unbiased decision-makers and the opportunity for affected parties to be heard. |
| Equality before the law | Everyone, including the government, is subject to the law and equal before it. Courts are expected to be impartial and fair, accessible to the public, and operate under the principle of 'open justice'. |
| Role of judges | Judges interpret legislation, develop common law, and decide disputes between individuals and between individuals and the government. |
| Legislative process | Parliament must use clear and unambiguous language when departing from established principles. |
| Influence of international law | International law and obligations under treaties have significantly impacted New Zealand law, particularly in a globalised context. |
Explore related products
What You'll Learn
The influence of English common law
The English Laws Act 1858 (N.Z.) confirmed that English common law was received in the colony as of 14 January 1840. This date is significant as it is when the Treaty of Waitangi was signed, although the treaty was never incorporated into New Zealand municipal law. The first mention of New Zealand in British statutes was in the Murders Abroad Act 1817, which clarified that New Zealand was not a British colony.
New Zealand's common law tradition and constitutional framework are derived from the English legal system. The country's contract law was initially based on the English model, although this has since changed with Acts of Parliament, and its Land Transfer Act 1870 improved on the English system of title deeds. The country's criminal law also has roots in English law, adopting a criminal code in 1893, and the Magna Carta of 1215, which restricted the power of the monarch, is still applied in New Zealand.
English common law forms the basis of New Zealand's legal principles, including the doctrines of precedent and stare decisis, which dictate that lower courts follow senior court decisions to encourage consistency. The independence, fairness, and efficiency of the courts are also important cornerstones of New Zealand's democracy, reflecting English law's influence.
Prisoner Release Laws: Who Gets Out?
You may want to see also
Explore related products
The Treaty of Waitangi
The process of drafting and negotiating the Treaty of Waitangi was swift and largely conducted without the input of legal professionals. The entire treaty was prepared in just three days, undergoing numerous revisions. The original English version was translated into Māori overnight on 4–5 February 1840. On 5 February, both versions were presented to a gathering of northern Māori chiefs at the home of James Busby in Waitangi. The Māori chiefs debated the treaty for five hours, and their discussions were recorded and translated by the missionary station printer, William Colenso.
The signing of the treaty at Waitangi required a significant degree of trust from the Māori chiefs, given the potential language barrier and complex concepts involved. The benefits of British protection, including protection from French colonial interests in the region, likely outweighed their fears. The influence of CMS missionaries, who explained the treaty as a sacred covenant between the Māori and Queen Victoria, also played a crucial role in gaining the chiefs' trust and securing their agreement.
Demand Generation Strategies: Law Firms' Guide to Success
You may want to see also
Explore related products
The role of judges
The New Zealand legal system is heavily based on English law, particularly the English common law system inherited from its time as part of the British Empire. The law in New Zealand is divided into two parts: criminal law and civil law. The country's common law has been refined and elaborated on over time, adapting to contemporary controversies and new questions.
Judges play a crucial role in New Zealand's common law system. They are responsible for interpreting legislation and developing the common law. They do this by deciding disputes between individuals and between individuals and the government, and by building a body of precedents that guide future decisions. This is a key characteristic of common law systems, which rely on past decisions to inform future ones. When faced with a new issue, judges look to past cases to determine how to resolve it. This accumulation of doctrine over time means that the past greatly influences the future in common law.
Judges are expected to be independent, impartial, and fair in their decision-making. They must interpret and apply the law without fear or favour, ensuring that everyone is equal before the law. This includes the government—judges must hold government institutions accountable to the law and ensure they remain within legal limits.
In addition to interpreting the law, judges also play a role in upholding individual rights and freedoms. For example, the right to the observance of natural justice, as outlined in Section 27(1) of NZBORA, is upheld by judges who ensure unbiased decision-making and provide affected individuals with the opportunity to be heard. Judges also enforce property rights, including intellectual property rights, and ensure that any restrictions on property use are reasonable and just.
In some cases, judges' rulings can have a significant impact on the development of the law. For example, in the 1987 judgement of New Zealand Maori Council v Attorney-General, the court defined the principles of the Treaty of Waitangi and established that the Treaty takes precedence in legislation when mentioned in strong terms. This allowed for the consideration of the Crown's actions in relation to the Treaty and influenced the interpretation of future legislation.
Contract Law vs. Constitutional Law: Which Takes Precedence?
You may want to see also
Explore related products
The impact of international law
The New Zealand legal system is heavily based on English law, particularly the English common law system inherited from its time as part of the British Empire. However, New Zealand, like other countries, is also bound by international law.
International law deals with relationships that extend beyond the borders of a single country. It covers situations such as crimes committed across borders, international travel and trade, taxation rights, child custody disputes, and pollution caused by foreign sources. International law also establishes the constitutions of international organisations, such as the United Nations, and regulates the use of armed force by states.
New Zealand has been an active participant in the organisations that create international law, including the United Nations, and has used international law to defend its interests, such as in trade disputes with Australia and against French nuclear testing in the Pacific. New Zealand is party to numerous international conventions and agreements, including more than 60 international labour conventions, human rights treaties, and family law conventions.
For international obligations to have effect in New Zealand, they must be incorporated into domestic law. This may involve amending existing legislation or passing new laws to give effect to treaty obligations. The language in treaties is often ambiguous to allow diverse governments to reach an agreement, and this can create challenges when incorporating these obligations into New Zealand law. Different methods are used to incorporate international obligations, including the wording method, the formula method, and the hybrid method.
Overall, international law has had a significant impact on New Zealand's legal system, shaping its domestic legislation and influencing the interpretation and application of the law in various areas, including labour, human rights, trade, and environmental protection.
Prenups for Common-Law Partners: Legally Binding?
You may want to see also
Explore related products
![K: A Common Law Approach to Contracts [Connected eBook with Study Center] (Aspen Casebook) (Aspen Casebook Series)](https://m.media-amazon.com/images/I/61q5aq2nJOL._AC_UL320_.jpg)
Criminal law and civil law
The law in New Zealand is divided into two broad parts: criminal law and civil law.
Criminal Law
Criminal law involves a contest in the courts between prosecutors and criminal defendants, those accused of offences. For a person's behaviour to amount to a criminal offence, that offence must be contained in a statute passed by Parliament. The offence cannot be manufactured by judges using the methods of the common law. Under the Criminal Procedure Act 2011, since 2013, people charged with serious offences (those punishable by more than two years' imprisonment) have been entitled to a trial by jury.
Civil Law
Civil law covers disputes between individuals, companies, and sometimes local or central government. It usually doesn't involve the police. Civil disputes are often about money, but they cover a wide range of cases, including disputes over business contracts, wills, tax, land, or other property; cases where someone's carelessness has caused someone else a loss; and family matters such as care of children and division of shared property. Many civil cases are settled without a court hearing when all parties agree on a solution, usually after negotiations by the parties' lawyers.
Common Law in New Zealand
The law of New Zealand uses the English common law system, inherited from its time as part of the British Empire. The primary sources of law are acts enacted by the New Zealand Parliament and case law made by decisions of the courts of New Zealand. At a fundamental level, the law of New Zealand is based on three related principles: parliamentary sovereignty, the rule of law, and the separation of powers.
Visitation Rights: Aunts, Uncles, and Michigan Law
You may want to see also
Frequently asked questions
Common law is law built through legal decisions rather than legislation. The key characteristic of common law is that it is made by judges and uses the building blocks of precedents to decide cases.
The primary sources of law in New Zealand are acts enacted by the New Zealand Parliament and case law made by decisions of the courts of New Zealand. New Zealand's common law also has roots in the English legal system, which was applied as far as applicable to the circumstances of New Zealand in 1840.
Common law is flexible and uses the doctrines of precedent and stare decisis. Lower courts must follow the decisions of more senior courts in the judicial hierarchy, encouraging consistency in decision-making. When judges face a new issue, they refer to previous cases to guide their decision-making.
![The Common Law [with Biographical Introduction]](https://m.media-amazon.com/images/I/61rWKl6f6HL._AC_UL320_.jpg)
