Story: Constitution

Page 4. Judicial limits on the executive

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The judiciary

The judiciary is independent of the executive and Parliament. Judges are appointed by the executive, from the ranks of experienced lawyers, on a non-political basis. Judges may be removed by a parliamentary procedure initiated by the attorney general, which is difficult to invoke. Their pay is determined independently by the Remuneration Authority.

Judging the judges

The Office of the Judicial Conduct Commissioner, which was established in 2005, deals with complaints about the conduct of judges. It cannot investigate complaints about judges’ decisions. In 2009/10, of the 148 complaints investigated that year (an additional 138 complaints had not been fully investigated by the end of that financial year), 125 were dismissed. The most common ground for dismissal was that the complaint was about the judge’s decision. Only 7 of the 148 complaints were referred for further investigation.

The judiciary, organised in a hierarchy of courts, makes decisions on court cases and has input into the executive government’s management of the court system. High Court judges have both statutory jurisdiction (the authority to make rulings on legal matters governed by legislation) and inherent common law jurisdiction (the power to act as they see fit to deal with issues before the court as long as it is not contrary to law). Court procedures are formulated by the judiciary, and by the Rules Committee (a statutory body made up of judges, lawyers, the solicitor general, the attorney general and the chief executive of the Ministry of Justice) with the consent of cabinet.

The judiciary makes common law through making individual legal decisions, and giving reasons for each decision. The judiciary interprets legislation using techniques they have developed as well as using techniques set out by Parliament.

Protections for citizens

If the government infringes the civil and political rights and freedoms in the New Zealand Bill of Rights Act 1990, it can be sued in court. A court may order the government to pay money in damages for infringements. If government infringement is clearly authorised by legislation, the judiciary may not strike down the validity of that infringement – though they may declare that it exists.

Both the government and the private sector are prohibited from discriminating on specified grounds of human rights in particular areas of activity. Complaints about the operation of government may be made to Parliament and a variety of complaints agencies, such as the ombudsmen, the privacy commissioner, the Human Rights Commission and the Independent Police Conduct Authority.

Limits of national government

Local government is created by laws passed by Parliament. Local government, on a municipal (towns and cities) and regional level, can make its own regulations, especially in relation to environmental matters.

The New Zealand government regards itself as bound by the international obligations it enters into. International obligations can only be enforced in a New Zealand court if a New Zealand act of Parliament has been passed saying that it can be. New Zealand is also bound by, and participates in, the United Nations and the World Trade Organization. New Zealand is subject to decisions by international judicial bodies such as the International Court of Justice and the International Criminal Court.

How to cite this page:

Matthew Palmer, 'Constitution - Judicial limits on the executive', Te Ara - the Encyclopedia of New Zealand, http://www.TeAra.govt.nz/en/constitution/page-4 (accessed 20 October 2019)

Story by Matthew Palmer, published 20 Jun 2012