The law of New Zealand has its foundation in the English common law system, inherited from being a part of the Commonwealth. There are several sources of law, the primary ones being statutes enacted by the New Zealand Parliament and case law made by decisions of the courts of New Zealand. 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.

The law of New Zealand includes, in particular, law of statutory interpretation,[1] evidence,[2] real[3] and personal property,[4] equity,[5] trusts,[6] wills,[7] powers of attorney,[8] contract,[9] tort,[10] restitution,[11] sale of goods,[12] taxation,[13] insolvency,[14] banking,[15] insurance,[16] partnership,[17] consumer law,[18] criminal law,[19] administrative law,[20] judicial review,[21] commercial law,[22] company law,[23] labour law,[24] admiralty and maritime law,[25] fisheries law,[26] mining law,[27] and family law.[28]

History

Before 1840

Before the British arrived, Maori's own legal orders governed Aotearoa. Colonialism consisted of the imposition of English law over Maori tikanga, undermining it.

Treaty of Waitangi

Main articles: Treaty of Waitangi and Principles of 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 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.

Although the Treaty had never been incorporated into New Zealand municipal law,[29] its provisions were first incorporated into legislation as early as the Land Claims Ordinance 1841 and the Native Rights Act 1865.[30] 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.[31] This remained the legal orthodoxy until at least the 1970s.[32] 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.[33]

The Treaty finally received limited recognition in 1975 with the passage of the Treaty of Waitangi Act 1975, which established the Waitangi Tribunal, but this initially had very limited powers to make findings of facts and recommendations only.[34] The Act was amended in 1985 to enable it to investigate Treaty breaches back to 1840,[34] and also to increase the Tribunal membership. The membership was further increased in another amendment in 1988.[35]

The Treaty was incorporated in a limited way into New Zealand law by the State Owned Enterprises Act 1986. Section 9 of the act said "Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi".[36] The government had proposed a transfer of assets from former Government departments to 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.[37] 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" 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 compliance 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.[36] The "Principles of the Treaty" became a common topic in contemporary New Zealand politics,[38] 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.[39]

Court system

Further information: Judiciary of New Zealand

Auckland High Court, built in 1865–1868 for the Supreme Court in 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 High Court in 1980, and is different to the current Supreme Court), and various lower courts subsequently established. Its establishment followed the arrival in New Zealand of the first chief justice, William Martin, and it heard its first case in January 1842.[40] The magistrates' courts came into being in 1846[41] (replaced by district courts in 1980). The Court of Appeal was set up in 1862 and originally consisted of panels of judges from the Supreme Court.[42] The Court of Appeal was the highest court in New Zealand, although appeals could be taken from this to the Judicial Committee of the Privy Council in London. In 1957 the Court of Appeal was reconstituted to become separate from the Supreme Court, having its own judges.[42] 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.[43]

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".[44] 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".[45] 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 International Covenant on Civil and Political Rights.[46] While the Bill of Rights Act is not a superior law to which all other laws are subject, judges are required to interpret other statutes to be consistent with it if at all possible. If there is an inconsistency, the attorney-general must inform Parliament.[47]

Legal tradition

The New Zealand legal system is heavily based on the English law, and remains similar in many respects. As with all common law countries, English law is organised around the doctrines of precedent (like cases should be decided alike) and stare decisis.[48][49] 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.[48]

Contract law

New Zealand contract law was initially derived from the English model. Since 1969, however, a series of Acts of Parliament altered this, and New Zealand contract law is now 'largely... distinct from other jurisdictions'.[50] 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.[51]

Trusts

A trust[52] may be express,[53] implied,[54] constructive,[55] resulting,[56] or non-resulting.[57] Constructive trusts may be institutional or remedial.[58]

The Trusts Act 2019 (No 38) came into force on 30 January 2021, so far as it was not already in force.[59] It repealed the Trustee Act 1956 (No 61).[60]

As to charitable trusts,[61] see the Charitable Trusts Act 1957.

See also

References

  1. ^ Spiller, Peter. A New Zealand Legal History. Second Edition. Brookers. 2001. Pages 101 and 102. Google Books. Burrows and Carter Statute Law in New Zealand. Fifth Edition. 2015. Google Books. Ward, "Interpretation of Statutes" (1955) 31 NZLJ 248; Ward, "Trends in the Interpretation of Statutes" (1957) 2 Victoria University of Wellington Law Review 155, 34 NZLJ 326 and 342; Ward, "A Criticism of the Interpretation of Statutes in New Zealand Courts" [1963] NZLJ 293; Burrows, "The Cardinal Rule of Statutory Interpretation in New Zealand" (1969) 3 New Zealand Universities Law Review 253; Burrows, "A New Trend in Statutory Interpretation?" [1976] NZLJ 150 [1]; Burrows, "Statutory Interpretation in New Zealand" (1984) 11 New Zealand Universities Law Review 1 (June); Burrows, "Tensions in Statutory Interpretation" (1989) 4 Cantabury Law Review 1; Burrows, "Interpretation of Legislation: A New Zealand Perspective" (1990) Conference Papers of the Ninth Commonwealth Law Conference 285; Burrows, "The Changing Approach to the Interpretation of Statutes" [2002] 33 Victoria University of Wellington Law Review; Tokeley, "Trends in Statutory Interpretation and the Judicial Process" [2002] 33 Victoria University of Wellington Law Review; Glazebrook, "Do they say what they mean and mean what they say? Some issues in Statutory Interpretation in the 21st Century" (2015) 14 Otago Law Review 61.
  2. ^ Willis, J D. Garrow and Willis's Principles of the Law of Evidence in New Zealand. Fifth Edition. Butterworths. 1966. Google Books.
  3. ^ New Zealand Land Law. Thomson Reuters New Zealand Limited. 2017. Google Books. Principles of Land Law in New Zealand. Third Edition. LexisNexis NZ Limited. 2020. Google Books. Principles of Real Property Law. LexisNexis NZ Limited. 2014. [2]. Martin, Thomas Frederic. A Practical Handbook on the Land Laws of New Zealand. Whitcome and Tombs Limited. 1908. Google Books. Boast, Richard. Maori Land Law. Butterworths. 1999. Google Books.
  4. ^ Garrow and Fenton's Law of Personal Property in New Zealand. Seventh Edition. LexisNexis NZ. 2010. Google Books. Gray, Hamish Ross. Garrow and Gray's Law of Personal Property in New Zealand. Fifth Edition. Butterworths. 1968. Google Books.
  5. ^ Andrew S Butler and Tim Clarke. Equity and Trusts in New Zealand. Second Edition. Thomson Reuters. 2009. Google Books
  6. ^ Blacktop, B J. Nevill's Concise Law of Trusts, Wills and Administration in New Zealand. Seventh Edition. Butterworths. 1980. Google Books.
  7. ^ Thomas Gibbons and Rebecca Irving. Equity: Trusts and Wills. (Butterworths Student Companion). Third Edition. LexisNexis NZ Limited. 2007. Google Books. Irving, Rebecca. Student Companion: Equity - Trusts and Wills. Butterworths. 1999. ISBN 0-408-71557-X.
  8. ^ Berna Collier and Shannon Lindsay. Powers of Attorney in Australia and New Zealand. The Federation Press. 1992. Google Books.
  9. ^ Feehily and Tiong. An Introduction to the Law of Contract in New Zealand. Sixth Edition. Thomson Reuters. 2018. Google Books. Stephen Todd and Jeremy Finn. Contract Law in New Zealand. Fourth Edition. Wolters Kluwer. 2019. Google Books. Chris Nicoll and Colin Perkin. Contract Law in New Zealand. Commerce Clearing House New Zealand. 1991. Google Books. Coote on the New Zealand Contract Statutes. Thomson Reuters. 2017. Google Books.
  10. ^ Todd, Stephen D (ed). The Law of Torts in New Zealand. Law Book Company. 1991. Google Books. Tort Law in New Zealand. Second Edition. Wolters Kluwer. Google Books. Third Edition. 2020. [3]. Atkin, McLay and Hodge. Torts in New Zealand: Cases and Materials. Oxford University Press. 2006. Google Books. Davis, Arthur Geoffrey. The Law of Torts in New Zealand. Butterworth. 1951. Google Books. Report of the New Zealand Torts and General Law Reform Committee. 1967. Google Books.
  11. ^ Ross Grantham and Charlew Rickett. Enrichment and Restitution in New Zealand. Bloomsbury Academic. 2000. Google Books.
  12. ^ Wood, Nicholas. Sale of Goods in New Zealand. Thomson Reuters. 2018. Google Books. Sutton, Kenneth Coleridge Turvey. The Law of Sale of Goods in Australia and New Zealand. Second Edition. Law Book Company. 1971. Google Books.
  13. ^ Cunningham & Thompson's Taxation Laws of New Zealand. Google Books.
  14. ^ Paul J Heath and Mike Whale. Heath and Whale: Insolvency Law in New Zealand. Second Edition. LexisNexis NZ Limited. 2014. Google Books. Lynne Taylor and Grant Slevin. The Law of Insolvency in New Zealand. Thomson Reuters. 2016. Google Books. Paul Heath, "Insolvency  Law in New Zealand" in Roman Tomasic (ed). Insolvency Law in East Asia. Ashgate Publishing Limited. 2006. Chapter 14. Pages 441 to 462.
  15. ^ T N Bright. Banking Law and Practice in New Zealand. Sweet & Maxwell. 1962. Google Books. Tyree's Banking Law in New Zealand. Third Edition. 2014. Google Books. Tyree, "New Zealand Banking Law" (1989) 13 New Zealand Universities Law Review 115.
  16. ^ Merkin, Sophie. Colinvaux's Law of Insurance in New Zealand. Second Edition. Thomson Reuters New Zealand Limited. 2017. Google Books. Tarr and Kennedy. Insurance Law in New Zealand. Second Edition. Law Book Company. 1992. Google Books.
  17. ^ Higgins and Fletcher. The Law of Partnership in Australia and New Zealand. Third Edition. Law Book Company. 1975. Google Books.
  18. ^ Kate Tokeley. Consumer Law in New Zealand. Second Edition. LexisNexis NZ Limited. 2014. Google Books.
  19. ^ Adams, Francis Boyd (ed). Criminal Law and Practice in New Zealand. Second Edition. Sweet & Maxwell (N Z) Ltd. Wellington. 1971. Google Books. Clark, Roger Stenson (ed). Essays on Criminal Law in New Zealand: A Series of Lectures Delivered at the Victoria University of Wellington. Sweet & Maxwell (N Z) Ltd. Wellington. 1971. Google Books.
  20. ^ Joseph, Phillip Austin. Constitutional and Administrative Law in New Zealand. Law Book Company. 1993. Google Books. Paterson, Donald Edgar. An Introduction to Administrative Law in New Zealand. Sweet & Maxwell (N Z) Ltd. 1967. Google Books.
  21. ^ Smith, Matthew. The New Zealand Judicial Review Handbook. Thomson Reuters. 2011. Google Books. Graham D S Taylor and Paul J Radich. Judicial Review: A New Zealand Perspective. Butterworths. 1991. Google Books.
  22. ^ Commercial Law in New Zealand. Third Edition. Butterworths. 1966. Google Books. Introduction to New Zealand Commercial Legislation: 2013. CCH New Zealand Limited. 2013. Google Books. New Zealand Contract and Commercial Legislation: 2013. CCH New Zealand Limited. 2013. Google Books.
  23. ^ Watts, Campbell and Hare. Company Law in New Zealand. Second Edition. LexisNexis NZ Limited. 2016. Google Books. Susan Watson and Lynne Taylor. Corporate Law in New Zealand. Thomson Reuters New Zealand Limited. 2018. Google Books.
  24. ^ Gordon Anderson and John Hughes. Employment Law in New Zealand. LexisNexis NZ Limited. 2014. Google Books. Anderson, Gordon. Labour Law in New Zealand. Third Edition. Wolters Kluwer. 2019. Google Books. Stein, Susan. Labor Law and Practice in New Zealand. Bureau of Labor Statistics, United States Department of Labor. BLS Report No 321. 1967. Google Books.
  25. ^ Marten, Bevan. Maritime Law in New Zealand. Thomson Reuters. 2016. Google Books. Giles, "Shipping Law" [1993] New Zealand Recent Law Review 323. Google Books. "Admiralty". The Abridgement of New Zealand Case Law. Permanent Supplement (No 7) to Volumes 1 to 18. LexisNexis New Zealand Limited. Wellington. 2003. Page 47. Google Books. Hight and Bamford. "Admiralty and other Jurisdiction". The Constitutional History and Law of New Zealand. Whitcombe and Tombs Limited. 1914 . Pages 368 and 369. Google Books. Internet Archive. David, "The Jurisdiction that Never Was" [2001] NZLJ 372 Google Books. Broadmore, "Admiralty Practice" [2000] NZLJ 4 Google Books. Beattie, "The Admiralty Act 1973" [1976] NZLJ 365. Mackay, "The Admiralty Act 1973 – Part II" [1976] NZLJ 387. Google Books. "Admiralty Jurisdiction in Need of Revsion" [1973] NZLJ 120. Google Books.
  26. ^ "Reform of Fisheries Law in New Zealand" (1996) 8 Auckland University Law Review 515
  27. ^ Veatch, Arthur C. Mining Laws of Australia and New Zealand. Department of the Interior, United States Geological Survey. Bulletin 505. Government Printing Office. Washington. 1911. Chapter 7.  Page 141 et seq. Frey, John W. Mining Laws of New Zealand. Department of Commerce, United States Bureau of Mines. Circular 6185. October 1929. Google Books.
  28. ^ Anita Chan, "New Zealand" in Stewart, James. Family Law: Jurisdictional Comparisons. Sweet & Maxwell. 2011. Page 265.
  29. ^ Palmer, Matthew (2008). The Treaty of Waitangi in New Zealand's Law and Constitution. Rochester, NY. SSRN 1429905.
  30. ^ 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
  31. ^ Wi Parata v Bishop of Wellington (1877) 3 NZ Jurist Reports (NS) Supreme Court, p72.
  32. ^ 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.
  33. ^ Tauroa, Hiwi (1989). Healing the Breach: One Maori's Perspective on the Treaty of Waitangi. Collins New Zealand. pp. 26, 27, 28. ISBN 9781869500078. Archived from the original on 23 January 2018.
  34. ^ a b "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.
  35. ^ 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.
  36. ^ a b Laking, Rob (17 February 2017). "State-owned enterprises". Te Ara. Archived from the original on 18 June 2017. Retrieved 25 July 2017.
  37. ^ "State-Owned Enterprises Act 1986". Parliamentary Counsel Office. Archived from the original on 20 December 2012. Retrieved 12 August 2012.
  38. ^ He Tirohanga ō Kawa ki te Tiriti o Waitangi: a guide to the principles of the Treaty of Waitangi as expressed by the Courts and the Waitangi Tribunal. Te Puni Kokiri. 2001. ISBN 0-478-09193-1. Archived from the original on 23 January 2015. Retrieved 12 August 2012.
  39. ^ *Principles for Crown Action on the Treaty of Waitangi, 1989. Wellington: Treaty of Waitangi Research Unit, Victoria University of Wellington. 2011.
  40. ^ "High Court – History and role". courtsofnz.govt.nz. Courts of New Zealand. Retrieved 27 April 2020.
  41. ^ McLintock, A. H. (1966). "Magistrates' Courts". An Encyclopaedia of New Zealand. Retrieved 27 April 2020.
  42. ^ a b "Court of Appeal – History and role". courtsofnz.govt.nz. Courts of New Zealand. Retrieved 26 April 2020.
  43. ^ "History and role". courtsofnz.govt.nz. Courts of New Zealand. Retrieved 27 April 2020.
  44. ^ "Maori Land Court: Past and Present". Archived from the original on 19 October 2007. Retrieved 2 February 2008.
  45. ^ McLintock, A. H. (1966). "Type and Character of Courts". An Encyclopaedia of New Zealand. Retrieved 27 April 2020.
  46. ^ "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.
  47. ^ "The New Zealand Bill of Rights Act". justice.govt.nz. Ministry of Justice. Retrieved 27 April 2020.
  48. ^ 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.
  49. ^ 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.
  50. ^ Maree Chetwin, Stephen Graw and Raymond Tiong, An Introduction to the Law of Contract in New Zealand, 4th edition, Wellington: Brookers, 2006, p.2.
  51. ^ Chetwin, Graw and Tiong, pp.2–3.
  52. ^ As to the classification of trusts, see C E F Rickett, "The Classification of Trusts" (1998) 18 New Zealand Universities Law Review 305
  53. ^ B J Blacktop. "Express or Declared Trusts". Nevill's Concise Law of Trusts, Wills and Administration in New Zealand. Seventh Edition. Butterworths. 1980. Chapter 2. Page 8 et seq. Google Books. "Express or Declared Trusts". Garrow and Henderson's Law of Trusts and Trustees. (Butterworths Standard N Z Textbooks). Third Edition. Butterworths. 1966. Part 2. Page 14 et seq. Google Books.
  54. ^ Nicky Richardson, "Implied Trusts" (2002) New Zealand Law Journal 176 (June) Google Books
  55. ^ [2001] 2 New Zealand Law Reports 382. Robert Fardell and Kerry Fulton, "Constructive Trusts - A New Era [1991] New Zealand Law Journal 90
  56. ^ Ross Grantham and C E F Rickett. "The Resulting Trust". Enrichment and Restitution in New Zealand. Page 291 et seq. Google Books.
  57. ^ John Aeneas Byron O'Keefe and Walter Leslie Farrands. Introduction to New Zealand Law. Third Edition. Butterworths. 1976. Pages 519, 521 and 522. Google Books.
  58. ^ Stephen Trew, "Remedial Constructive Trusts" [1999] New Zealand Law Journal 175 Google Books; Wright, "The Remedial Constructive Trust in New Zealand" (1998) 4 New Zealand Business Law Quarterly 225; D R Paling "The Constructive Trust - A Trust in the Full Institutional Form or Merely an Equitable Remedy?" [1973] New Zealand Law Journal 247 Google Books. John Dixon "The Remedial Constructive Trust Based on Unconscionability in the New Zealand Commercial Environment" (1992) 7 Auckland University Law Review 147.
  59. ^ The Trusts Act 2019, section 2(1); Ryan v Lobb [2020] NZHC 3085 (20 November 2020) at paragraph [86] NZLII.
  60. ^ The Trusts Act 2019, section 162(a).
  61. ^ Kerry Ayers and Daniel French, "Incorporated Charitable Trusts" [1999] New Zealand Law Journal 71 Google Books; Richard Pidgeon, "Religious Charitable Trusts" [2003] New Zealand Law Journal 73 Google Books.