Gavin Howe
The New Zealand legal system is based on the common law system inherited from the British Empire. It is heavily based on English law, and New Zealand courts follow the doctrines of precedent and stare decisis. The law is developed from case law and statutes enacted by the New Zealand Parliament. The most peculiar feature of the New Zealand legal system is its accident compensation legislation, which bars most forms of personal injury litigation.
| Characteristics | Values |
|---|---|
| Roots | English law |
| Current status | Has its own statute and case law |
| Basis | The doctrines of precedent and stare decisis |
| Sources of law | Acts enacted by the New Zealand Parliament, case law made by decisions of the courts of New Zealand, and Māori customary law (tikanga) |
| Principles | Parliamentary sovereignty, the rule of law, and the separation of powers |
| Treaty of Waitangi | Established the Waitangi Tribunal to investigate post-1975 Māori claims of actions that are inconsistent with the treaty's principles |
| Foreign judgments | Must be final and conclusive for enforceability |
| Native Land Court | Established in 1865 to define the land rights of Māori people under Māori custom and translate them into land titles recognisable under European law |
| Disputes Tribunal | A small claims forum where laypeople resolve disputes based on broad principles of fairness and justice |
| Accident compensation legislation | Bars most forms of personal injury litigation |
| LexisNexis (NZ) | Producer of a legal encyclopedia for this jurisdiction, Laws of New Zealand |
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What You'll Learn
New Zealand's legal system is based on the English common law system
The New Zealand legal system is based on the English common law system, inherited from its time as part of the British Empire. The country's laws are primarily derived from acts enacted by the New Zealand Parliament and case law made by decisions of the courts of New Zealand. The law of New Zealand is founded on three fundamental principles: parliamentary sovereignty, the rule of law, and the separation of powers.
The New Zealand legal system shares similarities with the English common law system, including the doctrines of precedent and stare decisis, which dictate that lower courts follow the decisions of higher courts in the judicial hierarchy. This promotes consistency in decision-making. New Zealand's contract law, for instance, was initially modelled after the English system. However, since 1969, Acts of Parliament have led to significant changes, making New Zealand's contract law distinct.
The country's legal system also recognises Tikanga, the traditional Māori customary law, as a valid source of law. Tikanga has been applied by New Zealand courts in various contexts, including disputes over land rights and customary titles. The Treaty of Waitangi, signed in 1840, has influenced the legal system, particularly in relation to Māori land claims and the recognition of Māori customary law.
While New Zealand's legal system draws heavily from English common law, it has evolved to develop its own unique characteristics. The country's accident compensation legislation, for example, stands out as a peculiar feature, barring most forms of personal injury litigation. Additionally, New Zealand courts have the power to award exemplary damages to plaintiffs, which is less restrictive than English law.
In conclusion, New Zealand's legal system is firmly rooted in the English common law system, but it has undergone significant adaptations to suit the country's specific needs and circumstances, resulting in a distinct and evolving legal framework.
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The Treaty of Waitangi and Māori customary law
The Treaty of Waitangi is a document of central importance to the history, constitution, and national mythos of New Zealand. Signed in 1840, it was an agreement between the British Crown and numerous Māori chiefs. The Treaty promised to protect Māori culture and enable Māori to continue living in New Zealand as Māori. In return, the Māori people ceded sovereignty to the Crown, which gained the right to govern New Zealand and represent the interests of all New Zealanders.
The Treaty of Waitangi is widely accepted as a constitutional document that establishes and guides the relationship between the Crown and Māori in New Zealand. However, its legal status is not settled, and Treaty rights can only be enforced in a court of law when explicitly referenced in a statute or Act. The Waitangi Tribunal, established by the Treaty of Waitangi Act 1975, provides a forum for hearing cases related to the Treaty and can make recommendations to the government.
The Treaty was written in both English and Māori, with the Māori text translated from the English. However, as some words in the English version did not have a direct translation into the written Māori language of the time, the two versions are not exact translations of each other. These differences have led to disagreements and contributed to the New Zealand Wars of 1845-1872 and the Treaty of Waitangi settlements in the early 1990s.
The principles of the Treaty of Waitangi have become a common reference in New Zealand's legal vocabulary. These principles, developed by academics, lawyers, judges, and other experts, capture the broad sentiments, intentions, and goals of the Treaty, allowing them to be incorporated into law and applied in practice. The principles have been interpreted and applied by the Waitangi Tribunal and various courts, including the Supreme Court, and have been incorporated into statutes through "Treaty clauses". They provide a legal framework for analysing and assessing the evolving Crown-Māori relationship.
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Common law and foreign judgements
The New Zealand legal system is heavily based on English law, which it inherited from its time as part of the British Empire. The country's legal system is organised around the doctrines of precedent and stare decisis, which dictate that lower courts must follow the decisions of senior courts in the judicial hierarchy.
New Zealand courts also consider decisions from other common law jurisdictions, especially Great Britain, Australia, and Canada. The higher New Zealand courts may look for comparison or guidance from the highest-level decisions in other jurisdictions.
Foreign judgments may be enforced at common law by an action or counterclaim. The simplest action is an application for summary judgment. For a judgment to be enforceable, it must be final and conclusive, and the foreign court's jurisdiction must be recognised under New Zealand law. It must also be for a debt or sum of money. A foreign judgment is regarded as final and conclusive even if it is subject to an appeal, and even if an appeal against it is pending in the foreign country where it was given. However, a judgment will not be regarded as final and conclusive if the foreign court retains the power to review or vary its own order in the future.
There are four methods of enforcing foreign judgments in New Zealand: reciprocal enforcement under statute, enforcement of commonwealth judgments under statute, enforcement under the common law, and enforcement of Australian judgments under statute. The appropriate method depends on the country in which the foreign judgment was given.
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Common law and contract law
The law of New Zealand uses the English common law system, inherited from its time as part of the British Empire. There are several sources of law, but the primary ones 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.
New Zealand contract law was initially derived from the English model. However, since 1969, a series of Acts of Parliament have altered this, and New Zealand contract law is now distinct from other jurisdictions. The main distinction is the wide discretionary power given to courts in granting relief.
In a common law setting, a legal encyclopaedia can be a valuable asset. LexisNexis (NZ) is the only producer of a legal encyclopaedia for this jurisdiction, the Laws of New Zealand, which is available in print and online. 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.
There are several online sources of free New Zealand judicial decisions. The Courts of New Zealand website provides 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 cases. The New Zealand Legal Information Institute (NZLII) is also a good place to seek out the available online decisions of various New Zealand tribunals.
Some common exceptions to contract law in New Zealand include:
- If you borrowed money on a credit contract, you can cancel the contract at any time during the first 3 days.
- If the contract was a hire purchase agreement, and you've already taken possession of the item, you can get out of the credit agreement but you've got to keep the item and pay cash for it.
- If you haven't taken possession, you can cancel outright and pay nothing.
- If you're buying something on layby, you can cancel the arrangement at any time and usually get most of your money back.
- Under the Contract and Commercial Law Act, minors can sometimes avoid their responsibilities under a contract.
- A contract that is not "fair and reasonable" cannot be enforced against someone younger than 18.
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Common law and tort law
The New Zealand legal system is heavily based on English law, which is a common law system. Common law in New Zealand is inherited from its history as part of the British Empire. The law of New Zealand is based on three fundamental principles: parliamentary sovereignty, the rule of law, and the separation of powers.
Tort law, or the law of torts, is a type of common law action. Torts are civil wrongs for which the remedy is an action for unliquidated damages. The principal function of tort law is to compensate individuals for harm done by others. Tort law protects each person's bodily integrity, mental health, reputation, privacy, and property, among other things. The most important tort is negligence, or the breach of a duty to take care. Other common torts include conversion of goods, nuisance, and defamation.
The law of torts has been developed almost wholly by the courts, and New Zealand courts are zealous in keeping in line with English decisions. In common law legal systems, tort doctrine has developed through decisions made by judges addressing private disputes. In New Zealand, most negligence actions in the Supreme Court are tried by a jury, and compensation for loss is sometimes awarded without a strict examination of whether a duty of care has been broken.
New Zealand courts also consider decisions from other common law jurisdictions, especially Great Britain, Australia, and Canada. Foreign judgments that are final and conclusive on the merits generally cannot be impeached for any error of fact or law. However, there are exceptions, such as fraud, lack of jurisdiction, or breach of natural justice in the proceedings.
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Frequently asked questions
Common law in New Zealand is based on the British model and has its roots in English law. The law is developed from case law and statutes enacted by the New Zealand Parliament.
Tikanga, or Māori customary law, is now a recognised source of law in New Zealand. It has been applied by the courts since the early days of the common law's operation in the country.
The New Zealand court system follows a pyramid structure, with the Supreme Court as the ultimate authority. Most cases are heard in the District Court, while the High Court hears more important cases. Some cases may be escalated to the Court of Appeal or the Supreme Court.
As with all common law countries, New Zealand's legal system is organised around the doctrine of precedent, which dictates that similar cases should be decided alike. Lower courts must follow the decisions of higher courts to encourage consistency in decision-making.
Foreign judgments that are final and conclusive on the merits generally cannot be impeached for errors of fact or law. They must be enforceable and recognised under New Zealand law, and they must be for a sum of money.
