Access to New Zealand Law

 

By Margaret Greville

 

Margaret Greville is a retired (but still inquisitive) Law Librarian with more than 30 years experience in both New Zealand and (briefly) Australia. Most of that time has been spent in Law School libraries, in Auckland and more recently in Christchurch, where she was for over 20 years the Law Librarian.

 

She has an MA (Hons) and LLB from the University of Auckland (NZ). She has worked in  both large and small law firms, and also in a Court law library in Australia.

 

Pioneering and promoting legal research tuition for law students has been a major commitment throughout her career. She was instrumental in promoting the creation of a law librarianship module in a New Zealand Library School, and has participated in teaching it.  She has been the principal author of three editions of Legal Research and Writing in New Zealand.

 

Margaret still spends much her time prowling around sources of legal information and research. She enjoys having the leisure to approach this activity with a critical eye, and the time to observe the dizzyingly rapid changes after decades of a virtually unchanging landscape in the world of legal information, mainly in relation to the move to proprietorial online platforms.

 

Published November/December 2014

See the Archive Version

 

1.      The New Zealand Constitution

 

It is trite doctrine to say that New Zealand does not have a constitution. Certainly, we have no overriding document incorporating all the constitutional rights and responsibilities of the citizen. We do, however, possess a bundle of statutes and conventions that together make up our constitutional organisation. Authoritative information on our constitution may be found via the web pages of the Governor General , and in particular this page , which is regularly updated.

 

Like Great Britain, New Zealand does not have a federal system of government, and without the need to define the complementary responsibilities of a central government vis-à-vis component states, territories or provinces, a written constitution has never seemed a priority. There has, however, been a recent “Constitutional Conversation” that consisted of very wide consultation with the public on the desirability or otherwise of a written constitution. The Report may be found here , together with some related material here .

 

A very quick and dirty summary of our current constitutional state of affairs might go something like this:

 

·             New Zealand is a constitutional Monarchy.

·             Because our head of state is a monarch, New Zealand is also a “Realm”.

·             It is a Westminster-style democracy.

·             The Head of State is Her Majesty Queen Elizabeth II in right of New Zealand.

·             The Representative Head of State is the Governor General (at present, Lt Gen Rt. Hon Sir Jerry Mateparae).

·             The elected Head of Government is the Prime Minister (currently Mr John Key).

·             The Parliament is the legislature.

·             There is an Executive Branch (The Cabinet) made up of senior members of the Government.

·             There is Parliamentary Opposition.

·             New Zealand has a representative and responsible government.

·             It has an independent civil service.

·             It has an MMP (Mixed Member Proportional) electoral system.

·             It operates as a unitary state, and does not have a federal system such as those in the USA, Canada, and Australia.

·             It is unusual in being a unicameral state, having only a House of Representatives in our Parliament, with no Upper House.

·             It does not have a written constitution, in the sense of a single entrenched legislative instrument spelling out the powers and limitations of the various branches of government.

·             It does have a number of constitutional documents and conventions that collectively spell out some of the rights of citizens, while other rights are safeguarded by the operation of the common law.

 

One consequence of our lack of an Upper House in our Parliament, and with none of the checks and balances that might be offered by a written constitution, has been that legislation often passes into law very quickly. As a consequence, it is also frequently amended in order to clarify or remedy enactments that may have been passed in undue haste. Here is just one scholarly opinion on the subject.

 

(This phenomenon was first glaringly documented by a former Prime Minister, now Sir Geoffrey Palmer in G W R Palmer Unbridled Power (OUP, Oxford, 1987))                                                                                                                       

 

A second constitutional feature that tends to amplify the speed with which citizens can be made subject to laws (often without warning) is the simplicity with which secondary legislation can be brought into force: basically, by the signature of a Minister of the Crown.

 

We tend to legislate in haste, and repent at leisure.

 

And of course, hasty regulation more often leads to the need to amend and re-legislate: often in the same year the original Act was passed.

 

2.      Maori Perspectives on the Constitution

 

·             The Treaty of Waitangi has a special, complicated, and evolving place within the structure of New Zealand’s social, legal and political make-up. It is rare now for legislation to lack at least some acknowledgement of and/or respect for Maori customary law.

·             Maori Customary Rights have in the last 20 years or so gained greater traction within our social and legal milieu.   The New Zealand Law Commission has given respectful consideration to Maori issues in relation to the New Zealand legal system on more than one occasion. Examples include one here .

·             The Waitangi Tribunal was established in 1975 to assist claimants, lawyers, and scholars researching the validity or otherwise of claims made under the Treaty of Waitangi Act 1975 . The report of the tribunal know as “ WAI 262 ” is probably the one with the greatest potential to lead to far-reaching results: “ Wai 262 is a claim to rights in respect of mātauranga Māori or Māori knowledge, and indigenous flora and fauna. The claimants say these rights are guaranteed under the Treaty of Waitangi. The claim raises issues in respect of intellectual property rights that have not been addressed before.”

 

3.      The New Zealand Legal System

 

3.1.   Origins of New Zealand Law

 

The beginnings of New Zealand law is generally recognised to be in 1840, at the time of the signing of the Treaty of Waitangi by some (but not all) Maori Chiefs, and representatives of the English Crown. There are arguments as to just which document marks the true emergence of a united New Zealand nation, and there may be some who would argue that this has still not happened! Another date is that of the first Constitution Act, in 1846, but that Constitution Act was suspended for 6 years because the appointed Governor objected to the division of the country into Maori and European districts.  It was finally passed in 1852. Further details on New Zealand’s early stumbling lurches into nationhood may be found here and in:

 

1.     D Webb, K Saunders and P Scott The New Zealand Legal System (5 th ed, LexisNexis, Wellington, 2010), 3.

2.     P Joseph Constitutional and Administrative

 

Our most recent Constitution Act was passed in 1986, and has been amended since and reprinted subsequently:

 

New Zealand is generally recognised as a common law jurisdiction, as are many former British colonies:

 

“Countries with civil law systems have comprehensive, continuously updated legal codes that specify all matters capable of being brought before a court, the applicable procedure, and the appropriate punishment for each offense. Such codes distinguish between different categories of law: substantive law establishes which acts are subject to criminal or civil prosecution, procedural law establishes how to determine whether a particular action constitutes a criminal act, and penal law establishes the appropriate penalty. In a civil law system, the judge’s role is to establish the facts of the case and to apply the provisions of the applicable code. Though the judge often brings the formal charges, investigates the matter, and decides on the case, he or she works within a framework established by a comprehensive, codified set of laws. The judge’s decision is consequently less crucial in shaping civil law than the decisions of legislators and legal scholars who draft and interpret the codes.”

 

“Common law  is generally  uncodified . This means that there is no comprehensive compilation of legal rules and statutes. While common law does rely on some scattered statutes, which are legislative decisions, it is largely based on  precedent , meaning the judicial decisions that have already been made in similar cases. These precedents are maintained over time through the records of the courts as well as historically documented in collections of case law known as yearbooks and reports. The precedents to be applied in the decision of each new case are determined by the presiding judge. As a result, judges have an enormous role in shaping American and British law. Common law functions as an adversarial system, a contest between two opposing parties before a judge who moderates. A jury of ordinary people without legal training decides on the facts of the case. The judge then determines the appropriate sentence based on the jury’s verdict.”

 

However, New Zealand has become increasingly bound by multi- and bilateral international agreements that require it to pass into domestic law a large number of codified treaties that are enforceable at both national and international law.

 

The New Zealand Crimes Act 1961 is usually characterised as a code: the judges cannot create a “new” crime, and no new offences have appeared without legislation. However, in passing judgment on activities covered by the Crimes Act, the judges customarily use common law principles to guide them in making a decision. It has also been suggested that the New Zealand Companies Act may also be a code.

 

For further and better particulars on our legal system, see here and here .

 

3.2.   The Parliament

An invaluable source of information on everything to do with the New Zealand Parliament and how it works, as well as a vital free resource for anyone seeking copies of Bills, Order Papers, Supplementary Order papers, Parliamentary Debates, Select Committee Debates and Reports, Journals of the House, Standing Orders, Speakers’ Rulings……and lots more.

 

Essential documentation for understanding the Parliament and its work is all to be found on the Parliamentary website itself:

 

1.           How Parliament Works

2.           Parliamentary Practice in New Zealand (more than you ever hoped to know…)

3.           Standing Orders, Speakers Rulings, and Sessional Rulings . These are all the rules and orders that govern Parliamentary behaviour

4.           Bills . This is a record of all Bills presented to the Parliament since 2002, together with their movement through the House, and if passed into law, their titles upon enactment.

5.           Select Committees. These have been quite powerful in slowing down the powerful impulse on the part of Government to legislate in haste: They are responsible for, and competent at acting as critic and conscience to the Parliament: however, the ruling Party in the House (especially when it has a large majority) can always call for urgency in the debates, and by-pass the Select Committee stage altogether.

6.           It is also possible to view public submissions to the Select Committees. These often present useful insights into just how the public actually views the proposal in question.

7.           Parliamentary Debates (or “Hansard”) these are recorded here back as far as 2002.

8.           The Journals of the House . These are the authoritative record of the House of Representatives.

9.           Alerts : you can arrange for regular feeds on what’s new on the NZ Parliament Website.

 

3.3.   Legislation

 

There are two official (maybe three) sources of New Zealand legislation:

 

(a)        The paper copy that has been printed since the beginnings of New Zealand legislation continues to this day, and at present there is no plan to cease to provide this product. (It should be noted that despite the heading, the paper copy is not free, but may be obtained on subscription from Legislation Direct , or on the basis of “one-off” purchases of individual statutes from the same supplier”.

 

(b)        Since 6 January 2014, official New Zealand has been made available online from the Parliamentary Counsel Office at.

 

This is now the preferred Official site for all New Zealand legislation and amendments.

 

(c)         It should also be noted that because our new free online source of official legislation has not incorporated every Act ever passed in New Zealand, the New Zealand Legislation website page spells out the bounds of what is contained in that database. It also indicates that Acts passed before 2008 may be located on the New Zealand Legal Information Institute platform so that, in fact, NZLII, at least in part, offers a third source of  official New Zealand legislation, since it consists of a collection of PDFs of original Acts, together with the New Zealand coat of arms.

 

There are also two unofficial current versions of New Zealand legislation. Both LexisNexis (NZ) and Westlaw (NZ) maintain their own statute databases, which they use as backbones to support all their respective interconnected online legal materials.  CCH (NZ) maintains selected groups of statutes to support the various separate online subject collections they publish, but not a complete set.

 

Although these three online compilations of New Zealand legislation are not official, they are meticulously maintained, and offer the advantage of connectivity with related legal materials.

 

It is worth mentioning the New Zealand Legal Information Institute again at this point: it maintains not only the Acts as Enacted collection 1841 – 2007 recommended by the Parliamentary Counsel Office (see above), but also other useful collections of New Zealand statute law here .

 

·        New Zealand Acts: a chronological collection of NZ Acts as at their most recent reprint.

·        Repealed Acts: a chronological collections of repealed Acts arranged in order of their original enactment.

·        New Zealand Historical Acts – 1980 Consolidation: The Consolidated Statutes Enactment Act 1908 was passed to re-enact the consolidated remnants of all previous NZ legislation still in force.  This is the ancestral root back to which we frequently need to track many of our most fundamental enactments.

 

3.4.   Delegated Legislation

New Zealand has always relied on various forms of delegated legislation to spell out more narrowly or temporarily specific rules than can comfortably be accommodated by Acts passed by the Parliament: see definition from the NZ Parliament website:

 

 “The terms ‘delegated legislation’, ‘subordinate legislation’, ‘disallowable instruments’, and ‘regulations’ are used synonymously to refer to legal instruments, often technical in nature, made under powers delegated by Parliament when passing legislation. An example would be a regulation to set fees for a cost-recoverable service provided by a public organisation. While Parliament is not involved in making these legal instruments, specific procedures have been put in place in Standing Orders to ensure they are subject to the scrutiny of Parliament. If necessary, they can be disallowed as a result. A select committee, the Regulations Review Committee, carries out the detailed scrutiny and considers complaints about regulations on grounds set out in the Standing Orders.”

 

A more detailed description of these slippery creatures can be found here .

 

And for more than you ever wanted to know about the mysteries of New Zealand sub-statutory regulation, a book has recently emerged to explore the matter:

 

Subordinate Legislation in New Zealand , LexisNexis NZ Ltd, August 2013, ISBN 978-1-927149-59-1, 376 pages, paperback and e-book, $126.50 (GST incl, p&h excl), reviewed by former Prime Minister Sir Geoffrey Palmer:

 

On the official NZ Legislation website, this statement appears.

 

In today’s more sophisticated world, life should be simpler. Perhaps it is…

 

Until January 2014, the most common form of delegated legislation was the “Statutory Regulation”. They were always published in their own series, just as the statutes were (and still are).

 

They are now relabelled as “Statutory Instruments”, and are available online in the New Zealand Legislation website.

 

There has always been a more shadowy species of delegated legislation, previously (before 1 January 2014) known as “Deemed Regulations”. These are now known as “Other Instruments”

 

3.5.   “Other Instruments”

Other Instruments (previously known as Deemed Regulations), in the context of this website, are disallowable instruments under   section 38(1)(b)   of the Legislation Act 2012. They are not   Legislative Instruments , and are not in general drafted by the PCO. Examples include most land transport rules, civil aviation rules, and a wide variety of other rules, codes, and other instruments.

 

Other Instruments are not hosted directly on this website; instead, we provide a link to where they are hosted, usually on the website of the agency that administers them, or to the relevant   New Zealand Gazette . Limited information about each Other Instrument is held on the New Zealand Legislation website, which is why only searching and browsing by title and year are available.  

 

For more information on Other Instruments, see   Other Instruments   and   About legislation   on the Parliamentary Counsel Office website .

 

The simplest statement that can be made on this subject is that:

 

Statutory Regulations are now Statutory Instruments, and Deemed Regulations are now Other Instruments.

 

3.6.   Where to Find New Zealand Law

There has been enormous progress in the migration of New Zealand legal information to the online environment, much of it free and also official.  The three “usual suspects” of the world of legal literature (LexisNexis, Westlaw, and CCH) have also created comprehensive online platforms for the provision of their collections of commercially generated New Zealand legal literature, together with some of the tools required to competently move about among primary legal materials and make sense of them. By this is meant citators, which harvest authoritative case law, attach links from cases to others of like subject matter, and also offer graduated appraisals to each subsequent case in order to indicate whether each subsequent case to cite the original case does so with approval, disapproval, or something in between. Some citators also link cases to secondary legal materials, such as articles that consider and comment on cases.

 

Comparable tools called annotations perform a similar function in relation to judicial interpretations and observations of sections of legislation.

 

Whereas in the past, citators and systems of annotation tended to exist separately from the primary materials, they are now being bundled together with the primary materials that they explicate on a single proprietary platform. 

 

Despite the enthusiastic uptake of New Zealand legal information online, hard copy still survives. Major texts are still printed, although there is now a strong trend for these to be published simultaneously online as e-books. (See the websites of LexisNexis (NZ) and Westlaw (NZ) for details):

 

4.      The Courts

 

4.1.   Superior Courts

The two sources of free online New Zealand judicial decisions are:

 

[a]           The Courts of New Zealand , and

[b]           The Ministry of Justice .

 

On the Courts pages, you will find ready access to decisions as handed down by the Supreme Court, the Court of Appeal, and also to press releases, and other relevant information about current hearings, including transcripts of trial in the case of Supreme Court actions.

 

This is the website of the Courts of New Zealand . The structure of New Zealand courts is as follows:

 

Description: he structure of the Courts of New Zealand

 

 

The NZ Courts pages are very user-conscious and user-friendly. Information and judgments are delivered promptly to the platform. Users can subscribe to “Judicial Notifications” that will notify them of any new additions to the page(s) of any of the superior courts, and they can communicate queries about likely timelines in the handing down of decisions.

 

While the Courts pages are enormously helpful for keeping track of decisions going through the courts, and offer a huge volume of information about the courts, the final depository for decided cases is housed on the site of the Ministry of Justice .

 

This is the Judicial Decisions Online database, where the collection of decisions of the Supreme Court, Court of Appeal, and High Courts is maintained.

 

4.2.   Courts of Special Jurisdiction

Beside the three superior courts, there are also a number of “ courts of special jurisdiction ” that deal with such areas of judicial specialisation as Coroners, Family, Maori Land and so on.

 

4.3.   Tribunals

This is a “catch-all” expression that includes a variety of decision-making bodies .

 

The Tribunals Unit of the Ministry of Justice supports all these bodies by, but each operates under its own regulatory structure. For a really good overview of the decision-making bodies, see the Directory of Decisions maintained by the Law Librarians at the University of Waikato .

 

Although the Waitangi Tribunal is listed among and accessed from the Tribunals page on the Ministry Of Justice website, it has its own administration .

 

Many of the authorities listed provide access to their decisions, although not all offer complete and comprehensive access, in most cases because of the withholding material that is sensitive for commercial or personal reasons, or because of the large numbers involved. In these cases, there is frequently a collection of indicative decisions made available, while the Tenancy Tribunal, through the Tenancy Services Section of the Ministry of Business, Innovation and Employment, which also offers advice on a large number of minutely detailed specific examples of possible areas of conflict between landlord and tenant.

 

A good place to seek out the available online decisions of all these decision-making bodies is the New Zealand Legal Information Institute (NZLII) .

 

4.4.   The hierarchy of judicial decisions

There are two ways to consider hierarchies in relation to New Zealand case law:

 

1.      The judgments of the Supreme Court trump those of all courts below; decisions of the Court of Appeal trump those of all lower courts, and the High Court trumps decisions of all courts and tribunals below that level.

2.      As for an “official” reported version of any particular case, we have no such thing as an “official” (in the sense of legislatively determined) source of law reports, but The New Zealand Council of Law Reporting Act 1938 s.12 authorised the New Zealand Law Society to take responsibility for the publication of the New Zealand Law Reports. The Act also prohibits the publication of any other law reports without the permission of the Society.

 

The New Zealand Law Reports have since that date been recognised as the authoritative statement of New Zealand judge-made law, and citation convention has required that if a case is reported in the NZLR, then that is the version that should be cited in court.

 

The New Zealand Law Reports have never published every decision handed down: not even of the superior courts. They have never been a complete statement of New Zealand case law.

 

The New Zealand Law Reports are, needless to say, not available free of charge. All Supreme Court decisions are now reported in the NZLR, together with arguments of Counsel. Inclusion of cases decided in the Court of Appeal and High Court is by selection on the basis of perceived significance.

 

New Zealand courts also consider decisions from other common law jurisdictions, especially Great Britain, Australia, Canada, and to some extent the USA. In general, it will be to decisions at the highest level possible in each jurisdiction that a New Zealand court will look for comparison or guidance.

 

5.      Commercially Produced (Unofficial) New Zealand Case Law

Subject-specific law report series produced by the three main legal publishers in New Zealand, now known as:  (LexisNexis (NZ), Westlaw (NZ), and CCH (NZ)) expanded in number from the 1970s onward. Most of these have now made their way online, each as part of the consolidated and interconnected platform of their publisher.

 

Recent years have seen a major outpouring of free public access to judicial decisions online. There is now almost unlimited and speedy free online access to cases from all the superior courts, and the same is also true for many of the courts of special jurisdiction and for most tribunals. At the same time, the publication of a New Zealand Style Guide has clarified matters of citation.

 

It is now safe to say that if there is more than one reported version of a New Zealand Case, and one of them is included in the NZLR, then that should be cited. However, The New Zealand Style Guide , 2d ed 2011, 3.1 spells out the order for citing cases:

 

“Rule 3.1

(a) If available, always use the neutral citation (parties, year of judgment, court and judgment number), eg Erwood v Ministry of Social Development [2010] 619 at [35].

 

If the case has a neutral citation and has also been reported, cite the neutral citation followed by the citation to the report in accordance with rule 3.2. If the case is reported in multiple series, give the citation only to the “best” report.

 

The order of preference of report series is:

Official law reports (in New Zealand the official law reports are the New Zealand Law Reports); and

Unofficial law reports.

 

The Law Library at the University of Auckland has produced a valuable list of New Zealand subject-specific law reports.

 

In addition to these full-text report series (most of which have now found their way online as part of one or other publisher’s stable of subject-specific case law services) there are also two databases of case law summaries. These two services came into being at a time when there was considerable frustration among lawyers because of delayed law reporting, and the difficulty in obtaining unreported decisions from the courts. There was substantial pressure on the Courts to offer prompt public access to a greater number of decisions.

 

One weekly, and one fortnightly, publication filled the gap for a number of years by providing unofficial summaries of cases likely to be of general interest. These were Butterworths Current Law (fortnightly; still in print; free online summary of most significant cases) and The Capital Letter (weekly, no longer in print).

 

Then two online commercial tools evolved to help solve this problem: one was Briefcase, which combined the contents of two previously print-only publications summarising recent unreported decisions, and the other, LINX, put together by the Law Society librarians, which summarised most of the cases decided by the superior courts AND also included brief notes on articles contained in legal journals received by Law Society Libraries.

 

These have both also found their way online:

 

1.      LinxPlus [i] has been incorporated into the LexisNexis online platform and augmented by many full text cases.

 

2.      Briefcase has been adopted by Westlaw (NZ) and greatly expanded backwards and forwards in time, and converted into a very comprehensive case citator, incorporating Briefcase , FindCase, and CiteCase. It has also extended its catchment back to basic notes on selected cases from 1847, summaries of cases from 1986, and comprehensive cover from 2000.

 

Elderly New Zealand cases:

 

The Law School at Victoria University of Wellington has carried out a prodigious search for cases decided early in New Zealand’s legal history. These cases may be found here .

 

The same collection is also available on NZLII .

 

6.     Problems in researching New Zealand case law

 

1.           New Zealand has never had a satisfactory Digest or Abridgement of case law. There is a publication: The Abridgement of New Zealand Case Law , but this has only ever covered the cases reported in the New Zealand Law Reports, and the Law Reports have themselves always contained very thorough indexes, including brief case summaries and some of the elements of a citator.

 

Our nearest approaches to a digest have been LINX and Briefcase, in their original incarnations as periodical publications of case summaries.

 

2.           Similarly, we have never had a national Citator. As in the case of the digest facility, the indexes to the NZLR have provided the nearest equivalent: but this means undertaking the laborious task of working through all the cumulative indexes and sometimes the individual volumes.

 

This probably didn’t matter too much until around the 1970s – 1980s, when a flock of subject-specific law report series began publication, chiming with the increasing specialisation among lawyers and law firms at that time.

 

Trying to corral all possible cases relevant to the matter under study meant ploughing through the indexes of quite a range of both general and specialised law reports. (In one firm where I worked, we even resorted to having someone photocopy all the index pages of law reports published in New Zealand immediately on arrival, so that we always had a handy list of cases on likely subjects to hand!)

 

We were able to use citators and digest/abridgements from other common law jurisdictions such as Australia, Canada, and Great Britain, but it was not until the Australian CaseBase started included cases from other common law nations (including New Zealand) that things started to brighten up.

 

The advent of online legal publishing has made it easier to create reference links from one publication and another: at least among the products on each particular proprietary platform. There has begun a very slight thawing of the hypertext boundaries of late:   one publisher has an arrangement to create links between some of its decisions and those of another publisher. Some platforms have created links to the very recent surge of free-access materials coming out of the Courts.

 

7.      Online

The LexisNexis (NZ) online platform has embedded CaseBase into its suite of databases. CaseBase provides access to the contents of law reports published by LexisNexis in Great Britain, Australia, and New Zealand, and its creators have also created links between cases cited across all three jurisdictions. This works well within the limits of the Butterworths (now LexisNexis) publications. Concessions have been made to include cases published outside the LexisNexis stable: the official series in Australia is the Commonwealth Law Reports, so these could not be included. However, the Australian Law Reports offers alternative access to most of those cases, and the inclusion of unreported judgments from all the Australian states just about plugs the gap.

 

On the Westlaw (NZ) platform, the publishers have taken the original Briefcase summaries, and expanded their coverage backwards in time, and also continued the comprehensive publication of case summaries from all the superior courts forward in time. In addition they have added an extremely wide-ranging harvesting exercise to collect effectively all New Zealand cases decided published online since c. 2003. Briefcase has been developed to include the addition od PDF copies of the full judgment to the summary (ViewCase), and to add the capacity to all citations to and from the case in question (Cite Case).  This has created a very thorough New Zealand citator. It does, however, lack the outreach to the UK and Australia offered by the rival LexisNexis.

 

8.     Connecting Statutes, Cases, and Commentary

 

8.1.   Keeping up to date with paper statutes (Statutory Annotations)

New Zealand has from early days had two methods for lawyers and other researchers to keep abreast of changes in legislation, and in one case, of the connections between legislation and supporting secondary legal literature.

 

One form of legal literature that has been an essential tool for New Zealand lawyers is the statute annotator.

 

In order to keep track of what some might call the excessive number of amendments made to almost every piece of legislation passed (and because of what some might call the extraordinary haste with which we legislate), we have had to rely upon commercial annotators to help us to maintain some level of certainty about the state of an Act at any given moment.

 

Annotations to New Zealand Statutes (commonly known as “Butterworths Annotations”). “Annotations to the New Zealand Statutes dates back to 1984. It is a reference tool and provides no original text. It comprises a list of amendments made to statutes, as well as summaries of important cases heard under each Act.

 

“For subscribers, it is the first port of call for all newly incorporated amendments to Acts, produced to allow practitioners to read the law as it stands rather than having to refer to case law.” [ii]

 

Despite this note on the Lexisnexis.co.nz website, the statement is not strictly true. Before 1984, Butterworths Annotations had been published as a series of six hard-copy bound volumes. These listed all statutes passed from 1841 on, and all cases reported from 1861 on. They are not merely lists of statutes and related cases; rather, they indicate:

 

·                 Which statutes have been amended, and by what subsequent Act(s) and also

·                 What cases were decided under which section of what statute.

 

In its earliest incarnation (i.e., prior to 1984), Butterworths Annotations performed an invaluable role in helping lawyers to bridge the gap between the miasma of Imperial statutes still in force in New Zealand, the various Provincial Ordinances, and Acts of the old Legislative Council of New Zealand.

 

Since 1984, the annotations have been published in a growing number of loose-leaf volumes. These volumes cover both statutory amendments between each reprint of an Act, and also all cases decided on each section of an Act between one reprint and the next. Under this system, each time an Act is reprinted, all pages (that is statutory amendments and case law) relating to the previous Reprint are discarded. This has meant that there is no complete record of either Amendments or Cases under this regime.

 

For non-New Zealand readers, this has historically been the only way to keep up to date with New Zealand legislation.

 

The alternative system of statutory annotation is offered by the rival, formerly Brookers, but now Thomson Reuters / Westlaw.NZ.

 

This system of tracking legislation through all its amendments and reprints is unique. It requires a peripatetic “annotator” to visit an allocated number of law libraries twice each year. On each visit he or she will attack each volume with a red pencil, to cross out any sections of legislation that have been repealed since the last visit, and also to paste in paper slips containing any recent amendments

 

This system has never included case annotations, but focussed entirely on print volumes of statutes.  Obviously, this method – being entirely manual, and particularly labour intensive, has never been available outside New Zealand!

 

8.2.   Connecting up the tools within a single online environment

During the rapid movement of New Zealand legal information to the online environment, each publisher has acquired, developed, or created additional secondary legal content to support access and usability of the online primary materials. Typically, this may include:

 

1.           A citator, allowing the researcher to examine a case, and then link to other cases on similar points of law. These tools will also sometimes indicate whether the subsequent decision treats the earlier case in a positive, neutral, or negative fashion.

In the case of LexisNexis (NZ), the Australian citator CaseBase is incorporated into the platform. It has advantages, in that it references Australian, and British cases as well as those decided in New Zealand.

In the case of Westlaw (NZ), citation links are confined to New Zealand cases, but citation to and from the Briefcase hub is extremely thorough.

 

2.           Some form of statutory annotation, allowing the reader to rely on regularly updated legislation and to be able to be aware when and how a statute has been amended, and even to be able to compare an earlier with a later version of the text.

 

3.          The combined functions of annotator and citator are often to be found together on a single platform, allowing the reader to connect from a section of legislation to critical or explanatory case law and/or commentary.

 

4.          While LexisNexis (NZ) is the only one to publish a legal encyclopaedia (paper and online), Westlaw(NZ) is rapidly developing a section of its online platform that delivers an “ A to Z ” of New Zealand law, which fulfils at least some of the functions of an encyclopaedia: that of offering a quick outline of the topic, plus links to further detailed commentary.

 

5.          Reference &/ or access to legal journal articles that add useful comment and criticism to the study of specific primary legal materials. 

 

Both LexisNexis (NZ) and Westlaw (NZ) go to great lengths to perform all the functions adequately. Both offer excellent “all in together” tools, although neither is 100% comprehensive.

 

9.     Government Agencies & NZ Information

There is more than one way into this maze!

 

1.      New Zealand Government A-Z

2.      New Zealand Government Agencies with Environmental Responsibilities

3.      New Zealand Official Yearbook

 

10. International Connections

Beginning with the creation of the League of Nations, but especially following the formation of the United Nations following World War II, New Zealand has become more and more subject to international treaties and conventions of every sort. This has had some effect on the operation our common law f; a binding treaty allows the judges less wiggle room to allow the law to develop within the jurisdiction at its own pace.

 

A brief statement of International Law from a New Zealand perspective was written by Dr Alex Conte in 2006; this is An Introduction to International Law .

 

A major source of information on everything to do with New Zealand’s international relations and obligations is the Ministry of International Affairs and Trade (MFAT) .

 

This is an enormously helpful site. It contains all our Treaty Series (bilateral, plurilateral, multilateral etc.), offers a great view of areas of special interest to New Zealand, such as Antarctica, law of the sea, international fisheries, the Continental Shelf and maritime boundaries, New Zealand representation overseas etc. To get an idea of the wide range of activities involved and documented, see here .

 

11.   Commentary

Under this heading are included: Treatises, texts, loose-leaf services

 

1.      Monographs:

a.      Major texts, usually covering a major subject in full (eg, Contract, Torts)

b.      Shorter study guides, or introductions to new regulatory regimes etc.

 

2.      Loose-leaf Services:

Typically these consist of “annotated legislation”, or an interlinked subject- specialist text with case and statutory annotations:

 

Annotated Legislation consists of a piece of legislation produced as a book, and which has been heavily annotated with references back to sections of the Act with cases and commentary that have considered those sections. An example is Adam’s Land Transfer:   “ The core of the work contains section-by-section analysis of the Land Transfer Act 1952 (the Act central to conveyance practice), updated to reflect the latest legislative amendments and case law.”

 

Works like these quickly transferred to the loose-leaf environment, where they could be more speedily and cheaply (for the publisher) updated, and then just as quickly transferred to the online environment – all of which has made life much simpler for publishers, librarians, and readers: except of course for serious scholars who may wish to refer back to information that has been discarded in the course of updating….

 

LexisNexis (NZ) has recently produced what might be considered the crème-de-la-crème of the online/loose-leaf format. This is called “ Red ”, and is designed for the iPad. 

 

It is a collection of highly regarded legal treatises arranged to provide a practitioner with a package of all her most essential commentary (always up-to-date) for easy travel and easy use.

 

The available Contents:

 

·        SIM'S Court Practice

·        Family Law Service

·        Cross on Evidence New Zealand Edition

·        Heath and Whale on Insolvency

·        Adam's Land Transfer

·        Fisher on Matrimonial and Relationship Property

·        Local Government

·        Mazengarb's Employment Law

·        Hinde McMorland and Sim Land Law in New Zealand

·        Wills and Succession

·        Law of Trusts

·        Personal Grievances

·        New Zealand Forms and Precedents

·        Bankruptcy Law and Practice

·        Anti Money Laundering And Financial Crime Service Online

 

More titles are to come.

 

Most monographs are still published in hard copy by one or other of the three main New Zealand legal publishers (LexisNexis (NZ), Westlaw (NZ), and CCH (NZ). Many are also published as e-books. Nearly all loose leaf services have been converted into online packages with textual commentary, related legislation, and cited case law included and interconnected by hypertext links; frequently in full text, but sometimes links are to citation only.

 

See:

 

·        Westlaw (NZ) (ata: Thomson Reuters (NZ))

·        LexisNexis (NZ)

·        CCH (NZ)

 

New Zealand lawyers still rely heavily on English, and to some extent Australian, Canadian, and American legal monographs as well as locally published works.

 

The publishers now produce many – if not most – of their texts as eBooks as well as in print.

 

12.   Legal Encyclopaedias

LexisNexis (NZ) is the only producer of a legal encyclopaedia for this jurisdiction. Because it is part of the international LexisNexis network it offers the advantage of cross-references and sometimes links to and from similar legal encyclopaedic works in Australia and Great Britain. In a common law setting, this is a valuable asset. It is arranged in alphabetical order of subject. It provides an excellent “first look” place to begin a research exercise, because it offers immediate access to related subject matter that may be relevant. It also has the advantage of direct links to primary and secondary legal information also published by LexisNexis (NZ), including legislation and the New Zealand Law Reports. Much of the work is made up of fragments and extracts from the wider LexisNexis stable, and also from works produced by other legal publishers.

 

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. As well as capitalising on its own collection of subject-specific texts, it is able to incorporate masses of case law harvested from free-access Courts sources, and to annotate these cases with citation information from subsequent cases to build up an excellent resource for research into New Zealand case law. These tools are also to be found actively employed within the entire Westlaw (NZ) online platform.

 

13.   Legal journal articles

These are less closely dependent on publication within New Zealand than other forms of legal literature.  Many New Zealand legal scholars – perhaps most – write for international journals as well as indigenous publications.  This means that a wide number of sources need to be tapped for a thorough search for New Zealand legal journal literature. Legal journals are published in New Zealand by each of the Law Schools, and are made freely available on NZLII .

 

The following list of New Zealand - published legal journals has been copied from the New Zealand Law Society website:

Others with a New Zealand flavour are published jointly with Australian authors, and New Zealand legal writers also contribute to international journals.

 

Access to legal journal literature:

 

1.      NZLII (see above): this is a good free source of legal journals published in New Zealand.

2.      AGIS : This is a good source of both Australian and New Zealand Journal titles, both as an index, and in a great many cases, offering full-text access by subscription.

3.      LINX-PlusLINX: indexes all articles contained in all journals received by the New Zealand Law Society Libraries (see above for list), and some are also available in full-text from this source.

4.                HeinOnLine: This captures many New Zealand legal journals, and as is customary, is a good source of historical as well as current materials. It is also an invaluable source of legal journals from all the other common law jurisdictions that are heavily relied on in New Zealand.

5.      The New Zealand Law Journal: The NZLJ is available online full-text on LexisNexis (NZ) back as far as 2002, and back to 1925 via a separate digital archive collection.

6.      The New Zealand Law Review , published by the NZ Research Foundation is probably our premier law journal is available on subscription or by purchase of individual articles.

7.      Another contender for top-dog in the New Zealand legal journal stakes is the New Zealand Universities Law Review . This will give a taste of articles published in both current and archival issues.

8.      The Maori Law Review This offers a valuable insights into matters of particular concern to Maori, and also reflects Maori interests in maintaining fellowship with indigenous legal writers elsewhere. Full access is by subscription, but a great deal of material, including insights into current issues affecting Maori can be gleaned from browsing the website.

9.      Finally: New Zealand lawyers also rely heavily on legal literature published overseas, perhaps foremost in Great Britain, secondly in Australia and Canada, but also numerous inter- and trans-national publications on legal matters that transcend national borders.  It is also the case that New Zealand legal scholars also contribute to a wide range of foreign and international journals. New Zealand law libraries rely on international indexes to legal journal literature to locate not only articles directly on or about New Zealand law, but also articles that reflect consideration of matters common to all common law jurisdictions, and also those that consider inter- and trans-national legal issues. 

 

14.   Good Free Stuff Online

 

14.1.       The Parliament

Absolutely everything!

 

14.2.       The Courts

Everything you could hope to discover about the Courts of New Zealand, their history, their operations, packaged information for legal professionals, students and others, full-text cases and transcripts, media releases, the judges – and much more.

 

14.3.       NZLII

The New Zealand Legal Information Institute, like its whanau in the rest of the WorldLII group of nations, offers free access to a great deal of New Zealand legal information, both current and archival. This collection is growing all the time, with the addition of further information sought out by and offered to the New Zealand Legal Information Institute.

 

14.4.       Citation

New Zealand lawyers use the ubiquitous Cardiff Index to Legal Citation .

 

We also have a New Zealand specific guide, Legal Citations of Aotearoa New Zealand (LCANZ) .

 

14.5.       Style

The official style for all New Zealand legal writing is: G Mclay and J Orpin New Zealand Law Style Guide (2d ed, Thomson Reuters, Wellington, 2011)

 

14.6.       NZ Law Society Libraries

This collaboration among the Law Society Libraries of Auckland, Wellington, and Christchurch is responsible for the production of the LINX database, and for maintaining the physical and online collections.

 

14.7.       The New Zealand Law Society

The Law Society offers not only items of interest to its members, but also news items (like: “who just got struck off?!!”), and also information to assist the public. These include guides to different aspects of the law, how to find a lawyer, and more.

 

14.8.       University Law Libraries

Each of these provides a lot of useful online help to members ( some of their online resources are free to the public). Most have really helpful  guides to New Zealand legal research.

 

·        Otago

 

·        Canterbury

 

·        Victoria University of Wellington and Lost Cases

 

·        Waikato University and also see here .

 

·        University of Auckland Davis Law Library

 

14.9.       Early New Zealand Statutes (Assent versions of New Zealand ordinances 1841-1854, and statutes)

 

·        Auckland University of Technology

·        Citizens Advice Bureau : - and especially: here .



[i] The original LINZ database consisted of case summaries and a legal journals index. LINXPlus has been created by creating links to some full-text cases from the original summaries.