Features - An Overview of New Zealand LawBy Margaret Greville, Published on March 15, 2000
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Margaret Greville is the Law Librarian at the University of Canterbury, in New Zealand. She has been a law librarian for some 30 years, in law firms (large and small), in two academic law libraries, and in a courts library - all in New Zealand and Australia. Most of that time has been spent in academe. A great deal of her time is spent in teaching legal research skills to law students, and also to legal practitioners. She is co-author of a book on legal research and writing in New Zealand due out this year. She has a MA (Hons) from the University of Auckland (NZ), and a LLB from the same University. She is an active member of the NZ Law Librarians Group, and is presently serving on the NZLLG 2000 Conference committee. She has written and spoken at conferences on legal research skills education, and has recently facilitated a strategic planning workshop for the NZLLG.
- The New Zealand Legal System
- The Court System
- Sources of New Zealand Law
- New Zealand Primary Legal Information
- Case Law
- The Legal Profession
- Law Societies
- Lawyers and Law Firms
- Legal Publishers
- Legal News and Current Awareness
- Online Sources
- Paper Sources
- Legal Research in New Zealand
- Standard New Zealand Texts
- Commercial Law, Companies & Securities, Contract, Criminal Law, Digest, Employment Law, Environment & Natural Resources, Evidence, Family Law, Land Law, Legal Dictionary, Legal Encyclopedia, Legal History, Legal Journals, Legal Research and Writing, Legal System, Maori Land Law, Personal Property, Public Law, Tort
- New Zealand is a constitutional monarchy. The Crown is Queen Elizabeth II, but for most purposes, she is represented in New Zealand by a Governor General. The role is largely ceremonial, but there are occasions when the gubernatorial role carries with it quite wide-ranging powers in certain situations, such as when a government loses a confidence vote in respect of appropriation and supply.
- New Zealand has a responsible and representative government. Until 1996 the government was elected by a 'first past the post' system - ie, whichever party gained the largest number of seats in a general election was invited to form the government for the next three years. 1996 was New Zealand's first election under the new MMP (Mixed Member Proportional Representational) system. The term of government remains at three years.
- It operates as a unitary state, and not as a federal system like Australia or Canada
- It is unicameral, that is, there exists in our Parliament only a House of Representatives, with no Upper House.
- It does not have a written constitution, in the sense of a single entrenched legislative instrument spelling out the powers of the various arms of government
- It does have a number of constitutional documents which together spell out some of the rights of citizens, while other civil rights are safeguarded by the operation of common law. The New Zealand politics source book, 2d ed by Stephen Levine with Paul Harris, 1999 offers in its table of contents a very clear outline of New Zealand's constitutional documents.
In the New Zealand system, appeals still lie to the Privy Council (which sits in London) in some circumstances, so this advisory body is still effectively our highest court. Below that lies the Court of Appeal, in most cases the court of final jurisdiction. This Court sits in Wellington, New Zealand's capital. Next down in the hierarchy is the High Court of New Zealand, with seats in main centres throughout the country. Finally in this general court system is the District Court, usually the court of first instance for most matters, and these courts are to be found in most towns and cities in New Zealand. The respective jurisdictions of the High Court and the Court of Appeal are spelt out in the Judicature Act 1908, last reprinted in 1988 (and very heavily amended since that date). The jurisdiction of the District Court is enacted in the District Courts Act 1947, last reprinted in 1992.
In addition to these courts of general jurisdiction, there are also a number of courts of special jurisdiction, such as the Maori Land Court, the Maori Appellate Court, the Environment Court, the Family Court, and the Youth Court. The two latter are Divisions of the District Court (see diagram). The Judicature Act also provides for the creation of a Commercial List in High Court Centres, and the first of these was established in Auckland.
In addition to the various courts, there is quite a large number of Administrative Tribunals that exercise judicial power, while there is also a bewildering array of Authorities, Commissions, Ombudsmen, and Boards that exercise statutory decision-making powers. A truly excellent resource for those who wish to unravel this knotty tangle is the directory provided by the University of Waikato's Law Library on its Web pages. This Web site also contains details of where decisions of the various decision-making bodies may be obtained.
The whole body of existing English law, both legislation and common law, as well as the English constitutional conventions, was received into New Zealand on 14 January 1840. For some time, the Parliament at Westminster legislated for New Zealand, but from 1865, New Zealand received limited legislative powers of its own. In 1931, the United Kingdom Parliament passed the Statute of Westminster to facilitate a move towards independence for the Dominions (former colonies) by removing the limitations on their legislative powers. In 1947, New Zealand passed the Statute of Westminster Adoption Act and accepted full responsibility for its own destiny.
Until very recently, New Zealand continued to look to the mother Parliament at Westminster for sources of its own legislation, and to the superior English courts for precedents in its own courts. House of Lords and (English) Court of Appeal decisions are still highly persuasive, and English decisions are still often cited in New Zealand courts. However, especially in the last 20 years, New Zealand has looked further a field for legislative models - particularly in the more commercially flavoured subject areas. For example, our Commerce Act and Fair Trading Act are modeled directly upon the Australian Trade Practices Act, which in turn looks to U.S. models in the American antitrust laws. Our latest Companies Act is based upon a Canadian model, as is our Consumer Guarantees Act. On the whole, we now look more often to North America than to the United Kingdom for sources of legislation.
New Zealand courts will consider authorities from a variety of other common law jurisdictions, especially Canada, Australia, the United Kingdom, and the USA. As a consequence, New Zealand lawyers are accustomed to researching the law across a number of jurisdictions.
There is an inexorable drive towards the web in most areas of New Zealand legal information, and strong competition between publishers in this matter. Unfortunately, this does not always lead to free sources of primary or secondary legal information. There is no 'magic bullet' - no single web site where you can hope to pick up New Zealand legal information for free. There is some free information available (see below), but on the whole, New Zealand has embraced the 'user pays' philosophy a little too enthusiastically in this respect.
The Knowledge Basket has probably been the nearest approach to a one-stop-shop for New Zealand legal information. Some of the databases hosted there are free to use, while others are only searchable on subscription. As well as hosting a large number of legal databases, it offers a search engine for specialised legal searching, and the opportunity to subscribe to a number of personally tailored current awareness services.
However, the recent move on the part of the New Zealand Department for courts to place all unreported decisions of the New Zealand courts on the Australian database host AUSTLII means that there are now two major sites for locating different sorts of New Zealand legal information.
To add further to the tangle, local legal publishers who are members of multinational companies are placing their digitised legal information directly on to their web sites, or on to the web sites of parent or related companies overseas.
New Zealand is signatory to a large number of treaties with other nations. These are to be found in the New Zealand Treaty Series, published as part of the Appendix to the Journal of the House of Representatives and also as a separate series by Legislation Direct. Treaties and Conventions are binding on New Zealand courts when ratified and legislated into domestic statutes, but may also be persuasive as a matter of statutory interpretation even when not ratified - in construing a piece of legislation in the event of ambiguity, the court will deem that Parliament would not have chosen to legislate contrary to the spirit of an international treaty. There is currently no online source of the New Zealand Treaty Series.
At present, the only official version of the New Zealand statutes is the paper version. This may change in the near future following a review of access to New Zealand legislation by the Parliamentary Counsel Office in 1999. A copy of the discussion paper, which formed the basis for the review, may be found at: http://www.pco.parliament.govt.nz/papers/
Legislation is passed by the House of Representatives after passing through three Readings and then being assented to by the Governor General (though this last requirement is largely a matter of form). Acts are officially published by Legislation Direct initially in pamphlet form, while bound volumes of statutes containing all the Acts passed in that year are published annually. Statutes are only reprinted occasionally, when the number of amending Acts becomes so large that reading a principal Act along with all its amendments becomes unwieldy. The statute books are kept up to date by a homespun system of manual annotation involving the physical crossing out of repealed sections and insertion of slips of paper to indicate amendments. This ritual is carried out twice a year, but only for those sets of statutes maintained in New Zealand. Brooker's, a legal publisher, carries out the process. In other jurisdictions, and also in many New Zealand law libraries, an alternative system is available, provided by a rival publisher, Butterworths. This consists of a series of looseleaf volumes containing both statutory and case annotations kept up to date as new amendments are passed.
There are also three digital versions of New Zealand legislation available. All are available via the web, under 'Databases' on the Knowledge Basket at: http://www.knowledge-basket.co.nz/
There are some important differences to be noted.
GP Legislation database (published by Legislation Direct, who also publish the official printed version) contains the Acts just as they appear on paper. This means that in order to read an Act, the reader has to read the principal Act along with all amending legislation. It is not always apparent from within the confines of this database just when an Act may have been amended. Legislation Direct plans to 'consolidate' its digital legislation in the near future but has not yet announced a date for this. Browsing this database is free of charge, so that if you are sure you know the name of the Act you are seeking, it can easily be located at no cost. A search facility is available which enables users to pick up amendments, but there is a charge for using this service.
Brooker's and Status also offer their rival digital versions of the statutes online via the Knowledge Basket as well as on subscription as CD ROMs. They differ from the GP Legislation in 3 main ways:
- They are not derived from the original source of the official print version, but are re-keyed.
- They consist of consolidated legislation, that is, all amending Acts are substituted for the repealed sections they replace. This makes these two databases much easier to use, as all amendments are built in to the principal Acts.
- They are not free to use. Subscription rates are spelled out on the respective Web pages.
The 'official' series of law reports in New Zealand is the New Zealand Law Reports 1883 -, published by Butterworths (New Zealand). These are also available by subscription in digital form, on CD ROM (from 1958 -) or via Butterworths Online (Australia).
There are also about 20 other series of law reports - again, a good source of information about printed New Zealand law report series is the University of Waikato's Web pages.
There is also a flourishing trade in unreported decisions. These consist of the transcripts of decisions as they are issued by the various courts and tribunals, and before they are reported (although by far the majority of New Zealand court decisions are not reported at all). These are available from the originating court or tribunal, or from a number of agencies, such as Judgments Unlimited.
A recent decision on the part of the New Zealand Department for Courts will see all the decisions of the New Zealand courts of general jurisdiction (Court of Appeal, High Court, and District Court) deposited on the AUSTLII Web pages.
So far, only Court of Appeal decisions from 1999 on are available on this site, and the collection is updated rather slowly, but it promises to be a good free source of New Zealand cases.
There is also a growing collection of digitised series of reported New Zealand case law, available by subscription on CD ROM or on the publishers' web pages. An indication of what is available can be viewed on the University of Canterbury's Web pages.
The same Web page also captures a number of digital digest series for New Zealand. These databases have been popular sources of information about unreported cases for the last 15 years, before the recent shift to full-text online case law. They are still good, up-to-date sources of this information - again, however, by subscription only.
The standard text on the New Zealand Parliament is Parliamentary practice in New Zealand, 2d ed, by David McGee, Wellington, NZ, GP Publications, 1994. Some of the content relating to the legislative process is now out of date because of the advent of MMP and a change to Standing Orders, but it remains authoritative otherwise. The parliamentary Web site is a good source of information about Parliament, and on its day-to-day activities.
Information about the New Zealand government can be found in three main sources:
The New Zealand official yearbook. This was last published in print in 1998. The 1999 version was only produced electronically, and may be found at this astonishing Web site.
Directory of official information, published biennially by the New Zealand Ministry of Justice. This is so far only available in paper.
The New Zealand Government's web pages. Navigation around these pages is generally straightforward, except that information about government departments is rather obscurely tucked away under a button labeled 'agency contacts'.
The New Zealand Law Society maintains a web site at http://www.nz-lawsoc.org.nz. This is a useful source of information to members, to the public who may wish to make a complaint about a lawyer, and to foreign nationals who may wish to practice in New Zealand.
The Auckland District Law Society, the largest of over 20 district law societies, maintains its own Web site at http://www.adls.org.nz. One of the more useful features of this site is an electronic Whiteboard maintained by the ADLS Library. Postings are made here about current legal events, including recent 'hot' cases. The Rules of professional conduct for barristers and solicitors are also available on this site.
Law firms in New Zealand make good use of their web sites for advertising their specialities, for recruiting, for publishing their newsletters (a very good source of up-to-date commentary on recent changes to the New Zealand legal landscape), and for providing a safe intranet to share with major corporate clients. Little e-law has so far emerged on these pages, but it will probably not be long in emerging.
A good source of information on legal web sites in New Zealand is the University of Canterbury Law Library's pages.
For listings of New Zealand practitioners, the Brooker's Web site is a good free source.
The four main publishers in the New Zealand market are:
Butterworths (New Zealand) - a member of the Reed Elsevier Butterworths group of companies.
Brooker's, a member of the Thomson group of companies.
CCH (New Zealand) - a member of the Kluwer CCH group of companies.
Legislation Direct, a member of the Blue Star group of companies, which publishes our legislation and other official information.
In addition, Oxford University Press - usually the Australian branch in Melbourne, publishes a number of law-related New Zealand books.
Finally, there is Status Publishing, unique in that it is the only remaining indigenous legal publishing company, and also because it only publishes electronically.
A number of web sites which offer online current awareness services either of a general nature or of particular interest to lawyers can be located at http://library.canterbury.ac.nz/law/awarelaw.shtml. Most of them are free, but the Knowledge Basket's and Brooker's services are by subscription, and tailored to the individual user.
In addition, many New Zealand law firms offer newsletters free to members of the public, and also publish them on their web sites. This is a very good source of information about very recent happenings on the New Zealand legal scene. See above, under Legal Profession for sources of these.
A number of useful current awareness services are published in New Zealand.
Case law - Two publications offer regular summaries of recent unreported cases. These are:
The capital letter: a weekly review of administration, legislation, and law edited by Jack Hodder. Wellington, Fourth Estate Periodicals, 1987 - (published weekly).
Butterworths current law. Wellington, Butterworths, 1979 - (published fortnightly).
Legislation - The parliamentary bulletin. Wellington, Office of the Clerk of the House of Representatives, 1986 - This issues weekly when Parliament is in session. It is a good tool for keeping up to date with the passage of legislation through the House.
Newsletters - New Zealand law firms produce newsletters which are often an excellent first source of brief commentary on New Zealand legal happenings. See immediately above under Online sources, and under the Legal profession for URLs.
Law students and young lawyers in New Zealand are usually encouraged to begin by looking at commentary, especially a standard current textbook on the subject, or the relevant section in a legal encyclopaedia. The following is a selection from the major topics of law, and is by no means exhaustive.
Butterworths commercial law in New Zealand, 3rd ed by Andrew Borrowdale et al, Wellington, Butterworths, 1996. ISBN0 408 713992
Guidebook to New Zealand companies and securities law, 6th ed by Andrew Beck and Andrew Borrowdale, Auckland, CCH, 1998. ISBN 0 86475 391 8
(The common law of contract still runs in New Zealand, but has been greatly modified by a number of contract statutes.)
Law of contract in New Zealand, by J F Burrows, Jeremy Finn, and Stephen M D Todd. Wellington, Butterworths, 1997. ISBN 0 408 14506
(New Zealand criminal law is codified, and is related to that operating in Canada, and in the Australian states Queensland and Western Australia)
Principles of criminal law by A P Simester and Warren Brookbanks, Wellington, Brooker's, 1998. ISBN 0 86476 281 8
The abridgement of New Zealand case law. This does not really fulfil the requirements of a general legal digest. It digests only cases reported in the official series, the New Zealand Law reports - which the indexes to that series do just as well.
Butterworths employment law guide, 4th ed. Wellington, Butterworths1998.
Environmental and resource management law in New Zealand, 2d ed by David A R Williams, Wellington, Butterworths, 1997. ISBN 0 409 79014 1
Evidence, by Sir Rupert Cross. 6th New Zealand edition by D L Mathieson. Wellington, Butterworths, 1997.
Butterworths family law in New Zealand, 8th ed. Wellington, Butterworths, 1997
(New Zealand title to land is governed by the Torrens System, which also operates in Australia and Canada.)
Butterworths land law in New Zealand, By G W Hinde and D W McMorland, Wellington, Butterworths, 1997. ISBN 0 408 714514
Butterworths New Zealand law dictionary 4th ed by Peter Spiller. Wellington, Butterworths, 1995.
The Laws of New Zealand a multi-volume loose-leaf encyclopaedia that began publication in 1993. All chapters have not yet been published. Available in paper, on CD- ROM, and online via Butterworths Online (Australia)
A New Zealand legal history, by Peter Spiller, Jeremy Finn and Richard Boast, Wellington, Brooker's, 1995. ISBN 0 86472 202 8
- The five New Zealand law schools all publish law reviews. These (along with the Maori law review) are all listed at http://library.canterbury.ac.nz/law/reviews.shtml.
- The New Zealand law journal 1928 - is the standard professional journal.
- LawTalk is the newsletter of the New Zealand Law Society, and extracts from it are also published on the Society's web page (see above).
- Northern News, Canterbury Tales, and Counsel Brief are the respective newsletters of the Auckland, Canterbury, and Wellington Law Societies.
- There are also a number of journals on particular legal topics, all published by one or other of the major legal publishers with a presence in New Zealand.
Legal research and writing in New Zealand, by Margaret Greville, Scott Davidson, and Richard Scragg. Wellington, Butterworths, 2000. ISBN 0408 715561 (This is not yet published, but will appear around April, 2000.)
The New Zealand legal system: structures, process and legal theory, 2d ed, by Morag McDowell and Duncan Webb, Wellington, Butterworths (NZ), 1998. ISBN 0 408 714700
Maori land law, by Richard Boast et al, Wellington, Butterworths, 1999. ISBN 0 408 71476X
Garrow and Fenton's law of personal property in New Zealand, 6th ed, by Roger Tennant Fenton, Wellington, Butterworths, 1998. ISBN 0 409 788422
Constitutional and administrative law in New Zealand, by Philip A. Joseph, Sydney, Law Book Co 1993. ISBN 0 455 21092 6 (new edition due)
The law of torts in New Zealand, 2d ed by Stephen Todd et al, Wellington, Brooker's, 1997. ISBN 0 864 72 239 7