Law of New Zealand

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The law of New Zealand uses the

English common law system, inherited from being a part of the British Empire
.

There are several sources of law, the primary ones being

the rule of law; and the separation of powers
.

History

Pre-European law

Before colonisation by the British, Māori customary law (tikanga) would have served as rule of law for most tribes.

The first mention of New Zealand in British statutes is in the Murders Abroad Act of 1817,[1] which clarified that New Zealand was not a British colony (despite being claimed by Captain Cook) and "not within His Majesty's dominions".[2]

Treaty of Waitangi

Main articles: Treaty of Waitangi and Principles of the Treaty of Waitangi

The Treaty of Waitangi was signed in 1840. Although the Treaty had never been incorporated into New Zealand municipal law,[3] its provisions were first incorporated into legislation as early as the Land Claims Ordinance 1841 and the Native Rights Act 1865.[4] However, in the 1877 Wi Parata v Bishop of Wellington judgement, Judge Prendergast argued that the Treaty was a "simple nullity" in terms of transferring sovereignty from Māori to the United Kingdom.[5] This remained the legal orthodoxy until at least the 1970s.[6] Māori have since argued that Prendergast's decision, as well as laws later based on it were a politically convenient and deliberate ploy to legitimise the seizure of Māori land and other resources.[7]

In 1975, the Treaty of Waitangi Act became law. It established the Waitangi Tribunal. The tribunal had authority to investigate post-1975 Māori claims of actions that are inconsistent with the Principles of the Treaty of Waitangi; to make findings of fact; and to make non-binding recommendations. The act was amended in 1985 to enable the tribunal to consider claims back to 1840 and to increase the tribunal's membership.[8][9]

The Treaty was incorporated in a limited way into New Zealand law by the

state-owned enterprises, but because the state-owned enterprises were essentially private firms owned by the government, there was an argument that they would prevent assets which had been given by Māori for use by the state from being returned to Māori by the Waitangi Tribunal and through Treaty settlements.[11] The Act was challenged in court in 1987, and the judgement of New Zealand Maori Council v Attorney-General defined the Principles of the Treaty of Waitangi in the context of that case and the proposed sale of government assets was found to be in breach of this proviso. This allowed the courts to consider the Crown's actions in terms of consistence with the Treaty and established the principle that if the Treaty is mentioned in strong terms in a piece of legislation, it takes precedence over other parts of that legislation should they come into conflict.[10] The "Principles of the Treaty" became a common topic in contemporary New Zealand politics,[12] and in 1989, the Fourth Labour Government responded by adopting the "Principles for Crown Action on the Treaty of Waitangi" a similar list of principles to that established in the 1987 court case.[13]

Court system

Further information: Judiciary of New Zealand
Auckland High Court, built in 1865–1868 for the Supreme Court in New Zealand

A Supreme Court was first established in 1841 (it was renamed the

court of last resort following the simultaneous abolition of the right to appeal to the Privy Council.[17]

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".

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".[19] In the 1980s the judiciary played a major role in redefining the constitutional position of the Treaty of Waitangi.

New Zealand Bill of Rights Act

Further information: New Zealand Bill of Rights Act 1990

The New Zealand Bill of Rights Act was enacted in 1990 to affirm fundamental rights and freedoms set out in the

attorney-general must inform Parliament.[21]

Legal tradition

Common law legal systems

The New Zealand legal system is heavily based on the

stare decisis.[22][23] These principles dictate that lower courts must follow the decisions of the more senior courts in the judicial hierarchy. This encourages consistency of decision-making.[22]

Contract law

New Zealand

litigation
, it is generally agreed that this has not happened, and that the laws are working satisfactorily.[24]

Trusts

The Trusts Act 2019 (No 38) came into force on 30 January 2021, so far as it was not already in force.[25] It repealed the Trustee Act 1956 (No 61).[26]

As to charitable trusts, see the Charitable Trusts Act 1957.

See also

References

  1. OCLC 154283103
    .
  2. ^ McLintock, A. H., ed. (22 April 2009) [First published in 1966]. "The Establishment of Sovereignty". An Encyclopaedia of New Zealand. Ministry for Culture and Heritage / Te Manatū Taonga. Archived from the original on 22 December 2017. Retrieved 24 June 2017.
  3. SSRN 1429905.{{cite book}}: CS1 maint: location missing publisher (link
    )
  4. ^ Jamieson, Nigel J. (2004), Talking Through the Treaty – Truly a Case of Pokarekare Ana or Troubled Waters, New Zealand Association for Comparative Law Yearbook 10
  5. ^ Wi Parata v Bishop of Wellington (1877) 3 NZ Jurist Reports (NS) Supreme Court, p72.
  6. ^ Helen Robinson, 'Simple Nullity or Birth of Law and Order? The Treaty of Waitangi in Legal and Historiographical Discourse from 1877 to 1970', NZ Universities Law Review, 24, 2 (2010), p262.
  7. ISBN 9781869500078. Archived
    from the original on 23 January 2018.
  8. ^ "The Treaty in practice: Page 6 – The Treaty Debated". NZHistory.net.nz. 7 July 2014. Archived from the original on 10 February 2015. Retrieved 16 February 2015.
  9. ^ Palmer, Geoffrey (June 2013). "Māori, the Treaty and the Constitution – Rt. Hon. Sir Geoffrey Palmer QC". Māori Law Review. Archived from the original on 16 February 2015.
  10. ^ a b Laking, Rob (17 February 2017). "State-owned enterprises". Te Ara. Archived from the original on 18 June 2017. Retrieved 25 July 2017.
  11. ^ "State-Owned Enterprises Act 1986". Parliamentary Counsel Office. Archived from the original on 20 December 2012. Retrieved 12 August 2012.
  12. ISBN 0-478-09193-1. Archived
    from the original on 23 January 2015. Retrieved 12 August 2012.
  13. ^ *Principles for Crown Action on the Treaty of Waitangi, 1989. Wellington: Treaty of Waitangi Research Unit, Victoria University of Wellington. 2011.
  14. ^ "High Court – History and role". courtsofnz.govt.nz. Courts of New Zealand. Retrieved 27 April 2020.
  15. ^ McLintock, A. H. (1966). "Magistrates' Courts". An Encyclopaedia of New Zealand. Retrieved 27 April 2020.
  16. ^ a b "Court of Appeal – History and role". courtsofnz.govt.nz. Courts of New Zealand. Retrieved 26 April 2020.
  17. ^ "History and role". courtsofnz.govt.nz. Courts of New Zealand. Retrieved 27 April 2020.
  18. ^ "Maori Land Court: Past and Present". Archived from the original on 19 October 2007. Retrieved 2 February 2008.
  19. ^ McLintock, A. H. (1966). "Type and Character of Courts". An Encyclopaedia of New Zealand. Retrieved 27 April 2020.
  20. ^ "New Zealand Bill of Rights Act 1990 No 109 (as at 01 July 2013), Public Act Contents". legislation.govt.nz. New Zealand Legislation. Retrieved 27 April 2020.
  21. ^ "The New Zealand Bill of Rights Act". justice.govt.nz. Ministry of Justice. Retrieved 27 April 2020.
  22. ^ a b Joseph, Philip A.; Joseph, Thomas (11 October 2016). "Judicial system - What is the judicial system?". Te Ara: The Encyclopedia of New Zealand. Retrieved 28 April 2020.
  23. ^ Scragg, Richard, "The New Zealand Court of Appeal and the doctrine of stare decisis" [2003] CanterLawRw 13; (2003) 9 Canterbury Law Review 294, Canterbury, New Zealand. Retrieved 27 April 2020.
  24. ^ a b Chetwin, Maree; Graw, Stephen; Tiong, Raymond (2006). An Introduction to the Law of Contract in New Zealand (4 ed.). Wellington: Brookers. pp. 2–3.
  25. ^ The Trusts Act 2019, section 2(1); Ryan v Lobb [2020] NZHC 3085 (20 November 2020) at paragraph [86] NZLII.
  26. ^ The Trusts Act 2019, section 162(a).

External links

Wikiversity has learning resources about New Zealand Law
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