An Introduction to New Zealand Law & Sources of Legal Information

By Margaret Greville

Published August 2005

Margaret Greville is the Law Librarian at the University of Canterbury in New Zealand. She has a MA (Hons) and LLB from the University of Auckland (NZ). She has been a law librarian for over 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. She has championed the teaching of legal research skills to law students, and has also taught legal practitioners and non-law librarians. 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 is the principal author of Legal Research and Writing in New Zealand, 2d ed, by Margaret Greville, Scott Davidson and Richard Scragg, Wellington NZ, LexisNexis (NZ) 2004.

She has been an active member of the NZLLG for the last 30 years. She has written and spoken at conferences & seminars, most recently at the Joint Study Institute (JSI, Sydney, 2004) and at the New Zealand Law Librarians' Symposium, Auckland, 2004.

Update to an article previously published on LLRX.com, on September 2, 2002

<http://www.llrx.com/features/newzealand.htm>

Table of Contents

The New Zealand Government and Legal System

Constitution

The Court System

Origins of New Zealand Law

New Zealand Primary Legal Information

Legal News and Current Awareness

Online Sources

Paper Sources

Legal Reference Tools

Legal Research study in New Zealand

Researching Particular Subjects in New Zealand Law

Accident compensation

Advocacy

Banking Law

Bankruptcy and Insolvency

Business and Commercial Law

Civil Procedure

Company & Securities

Competition Law

Computers and the Law & CALR

Environment, Planning, & Resource Management Law

Equity

Evidence

Family Law

General Legal Information

Government & Politics

Health & Medical Law

Immigration and Refugees

Insurance Law

Intellectual Property

Justice and Corrections

Legal Research and Writing

Legal System

Legislation

Maritime Law

Media & Telecommunications Law

Parliament

Partnership

Personal Injury

Personal Property Law

Transport and Motor Vehicles

Wills & Succession Law

Women and the Law

The New Zealand Government and Legal System

Constitution

New Zealand is a constitutional monarchy. The Crown or monarch 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 (see http://www.elections.org.nz/). 1996 was New Zealand's first election under the new MMP (Mixed Member Proportional Representational) system. The term of government remains at three years.

An exception to the 'pure' form of this type of government is the cluster of seats reserved for voters who are on the Maori electoral roll. The number of seats set aside for those who identify themselves as Maori voters is adjusted from time to time in the same way as for the general roll to reflect the numbers on it. Citizens of Maori descent can choose whether to be on the Maori or General roll.

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.

The Court System

In the New Zealand system, appeals no longer (since 2003) lie to the Privy Council. The new Supreme Court is now New Zealand's highest Court, established by the Supreme Court Act 2003.

Below it sits the Court of Appeal. 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. 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. This web site also contains details of where decisions of the various decision-making bodies may be obtained.

Origins of New Zealand Law

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 afield for legislative models - particularly in the more commercially flavoured subject areas. For example, our Commerce Act and Fair Trading Act are modelled 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.

New Zealand Primary Legal Information

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, but on the whole, New Zealand has embraced the 'user pays' philosophy perhaps a little too enthusiastically in this respect.

Treaties

This is not an easy matter to unravel. There is a helpful introduction on the Ministry of Justice web site for multilateral treaties to which NZ is signatory.

The Ministry of Foreign Affairs and Trade conducts the Government's business with foreign governments and international organisations, but its web site is opaque. If you start from the home page and choose "Foreign and Trade Policy" then choose the link to "Legal Division" under "International Relations", you get to where you will find as much as there presently is presently available online in the public arena on this curiously arcane subject.

New Zealand is signatory to a large number of multinational treaties. 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 they 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. There is also no easy access to the large number of bilateral treaties to which New Zealand is signatory. There is a good paper index to New Zealand treaties published in 1996 that indexes bilateral as well as multinational treaties: New Zealand Consolidate Treaty List (Wellington: NZ. Ministry of Foreign Affairs and Trade, 1996, also issued as A.263 in the series, Appendix to the Journal of the House of Representatives)

Legislation

Paper copy

At present, the only official version of the New Zealand statutes is the paper version, although this is likely to change in the not-too-distant future: see below, under General Legal Information, and under Legislation.

Statutes are 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 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. Brookers, 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, LexisNexis (NZ). This consists of a series of loose-leaf volumes containing both statutory and case annotations kept up to date as new amendments are passed.

Official public online legislation

Progress on this front since the last time this article was published (three years ago) will have left nail-biters with raw stumps for fingers. In the meantime, free access to a compiled version of current Acts, Bills and Regulations has been made available. Curious readers with time on their hands can study the history of New Zealand's attempts to create a free online public access database of official compiled legislation.

Case law

Paper copy

The 'official' series of law reports in New Zealand is the New Zealand Law Reports 1883 -, published by LexisNexis (New Zealand). These are also available by subscription in digital form: on CD ROM (from 1958 -); on LEXIS; or LexisNexis (NZ) Online.

There are also about 20 other series of subject law reports. For an excellent and up to date historical survey of New Zealand law reports, see: Edwards, Alan, 'New Zealand Law Reports: A Bibliographic Survey' (2002) 10 Australian Law Librarian 37.

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 in Wellington. Selections of unreported decisions - mainly from the superior courts - are digested in The Capital Letter and Butterworths Current Law, published weekly and fortnightly respectively. Unreported decisions are also digested and subsequently noted up on the databases LINX and Briefcase (see below).

Electronic case law

Most of the report series that are still current are available electronically as well as in hard copy, and just a few are available only electronically. They are mostly offered on the web sites of the two remaining major legal publishers in New Zealand, Brookers and LexisNexis (NZ). The digital versions have the advantage not only of good search facilities, but also being able to be searched in tandem with other databases on the sam