Story: Judicial system

Page 1. What is the judicial system?

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The judicial system is the state machinery for resolving conflicts between individuals, and individuals and the state, according to law. It comprises a hierarchy of courts organised under the doctrines of precedent (like cases should be decided alike) and stare decisis (the decisions of higher courts are binding on lower courts in the judicial hierarchy).

The judiciary

The judiciary, alongside the executive and the legislature, is one of the three principal branches of government. It has four primary functions:

  • to adjudicate (judge) disputes between litigants (parties in a law suit) in the courts
  • to deliver authoritative rulings on the meaning and application of legislation
  • to develop principles of common law (law that developed over time from judges’ decisions)
  • to uphold the rule of law, personal liberty and human rights.

Role of the courts

The courts determine disputed questions of law and fact in civil and criminal cases. They determine questions of fact in accordance with formal procedures and rules of evidence, and apply the law as established by legislation (acts of Parliament) and the courts themselves (principles of common law). Legislation and common law are the two primary sources of law. Legislation is the higher source and prevails over principles of common law where the two come into conflict. The doctrine of parliamentary sovereignty means that courts cannot declare acts of Parliament invalid. The courts must interpret and apply Parliament’s legislation according to its text and purpose.

Precedent and stare decisis

Common law adjudication is organised around the doctrines of precedent (like cases should be decided alike) and stare decisis. Consistency of judicial decision-making ensures the orderly development and application of the law. Consistency and stability in the law are values intrinsic to the rule of law, allowing citizens to predict how the law, when applied, will affect them.

The doctrine of stare decisis addresses the hierarchy of courts. Decisions of courts higher in the judicial hierarchy bind the lower courts. A lower court must follow a higher court decision if it cannot distinguish the decision on the facts. By encouraging consistency of decision-making, these doctrines promote confidence in the judicial system and the legitimacy of common law.

The rule of law

The courts are guardians of the rule of law. The concept of the rule of law entails three notions:

  • government according to law
  • equality before the law
  • liberty of the individual.

All people are entitled to the equal protection of the law, as administered by independent and impartial courts. No one, no matter what his or her station, is above the law or beyond reach of the courts. The rule of law guarantees unimpeded access to the courts for the defence of private rights.

Under the precept ‘government according to law’ government ministers and public officials must carry out their public functions in accordance with the law. The High Court has the jurisdiction (area of responsibility and ability) to review the legality of public administration and to ensure that officials and decision-makers comply with the law. Applications for judicial review may be brought under the Judicature Amendment Act 1972 to challenge decisions made under statutory powers, and under Part 30 of the High Court Rules to challenge decisions made under common law powers or the royal prerogative (the discretionary powers of the Crown). In addition, citizens can complain to the Office of the Ombudsman, which has statutory powers to investigate and report on wrongdoing or abuse in the public sector.

The ideal of the rule of law also guarantees personal liberty and freedom under the law. Many liberties and protections can be traced back to the Magna Carta of 1215, and the decisions of the common-law courts.

How to cite this page:

Philip A. Joseph and Thomas Joseph, 'Judicial system - What is the judicial system?', Te Ara - the Encyclopedia of New Zealand, (accessed 27 May 2024)

Story by Philip A. Joseph and Thomas Joseph, published 20 Jun 2012, updated 11 Oct 2016