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, alongside the executive and the legislature, is one of the three principal branches of government. It has four primary functions:
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.
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 courts are guardians of the rule of law. The concept of the rule of law entails three notions:
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.
New Zealand’s judicial system comprises (in descending order of hierarchy):
The first four courts are ‘superior courts’, and the remaining ones ‘inferior courts’. An inferior court is any court of inferior jurisdiction to the High Court. Some tribunals, such as the Disputes Tribunal, are also deemed inferior courts for particular purposes.
Jurisdiction is of two types: original and appellate. Original jurisdiction is the right of a court to hear and determine cases at first instance. Appellate jurisdiction is the right of a court to hear and determine appeals against previous court decisions or decisions delivered lower in the judicial hierarchy.
The Supreme Court and Court of Appeal are appellate courts, exercising exclusively appellate jurisdiction. All other courts exercise original jurisdiction. Some, such as the High Court and the District Court, exercise both original and appellate jurisdiction. All courts except the High Court exercise a defined statutory jurisdiction. In addition to its statutory jurisdiction, the High Court also has ‘inherent’ jurisdiction, which gives it general supervisory power to ensure that public administration is conducted according to law. Moreover, all courts have inherent powers to enable them to act effectively within their jurisdiction. Every court has power to prevent abuse of its process and to develop procedures to facilitate the exercise of its functions.
The guarantee of judicial independence is an indispensible requirement of judicial office. The guarantee entails security of judicial tenure, the institutional independence of courts and the financial security of judges. The independence of the judiciary is aimed at maintaining public confidence in the administration of justice. Judicial independence promotes fair and just decisions (or decisions that are perceived as fair and just) and is a necessary condition of impartiality. Impartiality is the ultimate value associated with the justice system. Judges must not be biased and must be free from government influence, pressure or threat.
Until the Act of Settlement 1701 in England, the king or queen could dismiss judges whenever they wished. During the 17th century the Stuart kings flaunted the dismissal power to secure a complaisant judiciary. The Act of Settlement was enacted as a protection against future royal abuses. It guaranteed the tenure of superior court judges ‘during good behaviour’ and set their salaries, which could not be reduced during a judge’s commission. The act required an address (resolution) of both houses of the British Parliament to secure a judge’s removal. These guarantees were introduced in New Zealand in 1858 and were re-enacted under the Constitution Act 1986. The Crown can remove a superior court judge only following an address of the House of Representatives, moved on the ground of misbehaviour or incapacity. No New Zealand judge has been removed from office under this procedure.
Inferior court judges do not enjoy the same security of tenure as their superior court counterparts. Inferior court judges may be removed by the governor-general acting on the advice of the attorney general. No parliamentary address is required. The attorney general’s advice may be tendered on either of two grounds: misbehaviour or inability. Employment Court judges are the exception. These judges enjoy the same security of tenure as superior court judges and can be removed only following a parliamentary address moved on the ground of misbehaviour or incapacity. No inferior court judge has been removed from office. However, several judges have resigned in circumstances that might have justified their removal.
The law provides for security of judicial tenure but not the institutional independence of courts. The judiciary must have adequate resourcing and administrative support services to function as an autonomous branch of government. Their administrative support services should be separate from the central bureaucracy and control of government ministers. Ideally, the administration of courts (assignment of judges, sittings of courts, court lists and direction of court staff) should be vested in the judiciary itself, and the judiciary’s information-technology systems should be independently operated and maintained. However, two chief justices have lamented the courts’ dependence on the central bureaucracy and have called for reconfigured administrative support systems.
The first courts in New Zealand were established under authority of the sovereign, Queen Victoria. The Letters Patent of 16 November 1840 (the Royal Charter) empowered the governor to constitute courts and appoint judges to administer justice in the colony. In 1841 an ordinance of the Legislative Council established the Supreme Court of New Zealand, which continues in existence as the High Court. The Supreme Court was modelled on the superior courts in the United Kingdom, except that the court had jurisdiction in both common law and equity (legal principles that supplement and soften the rigor of the common law). Two successive consolidating acts reconstituted the court and carried over its jurisdiction. The High Court is constituted under the Judicature Act 1908, which vests in the court ‘all judicial jurisdiction which may be necessary to administer the laws of New Zealand’.
In 1841 the Legislative Council established lower courts with limited jurisdiction that could meet the needs of the fledgling colony. Courts of requests and courts of petty sessions exercised civil and criminal jurisdiction, presided over by commissioners and justices of the peace. In 1846 resident magistrates’ courts were established; in 1893 they were renamed magistrates’ courts. These courts sat until 1980, when they were renamed district courts. District courts continue in existence in the 2000s and exercise an expanded civil and criminal jurisdiction.
A Court of Appeal was established in 1862, although not as a permanently constituted court. Supreme Court judges were convened when required to sit as a Court of Appeal, which combined both original and appellate functions. The court exercised appellate jurisdiction over decisions of the Supreme Court (as the High Court was then known), including decisions from lower courts heard on appeal in the Supreme Court. The court sat as panels of Supreme Court judges, until the Judicature Amendment Act 1957 constituted it a permanent court with a fixed membership. Its work is wholly appellate, although in exceptional cases judges of the Court of Appeal may sit as a full court of the High Court to exercise that court’s original jurisdiction. Such occurrences are rare.
The abolition of appeals to the Privy Council in London was a long-awaited development. The right of appeal originated as a colonial jurisdiction to oversee the administration of justice in the colony. Abolition of the appeal to the Privy Council was mooted as early as 1903, but it took a further 100 years to achieve it. Former President of the Court of Appeal Robin Cooke promoted the case for abolition. He emphasised the distinctiveness of New Zealand law, the remoteness of our final appellate court, and the need to promote our national legal identity. Not to end the right to appeal to the Privy Council, he argued, would be to renounce part of New Zealand’s nationhood.
The Supreme Court was established when the Privy Council appeal was abolished in 2003, and it exercises the final right of appeal. The objective was to improve access to justice through:
The Supreme Court sits in Wellington in a purpose-built court on Lambton Quay, which was officially opened in January 2010.
The establishment of the Supreme Court instituted a uniform system for exercising the final right of appeal. Supreme Court decisions are binding on all New Zealand courts. Proceedings originating in any court may be appealed, by leave of the court, to the Supreme Court. Previously, certain appeals terminated in the Court of Appeal, with no further right of appeal to the Privy Council. Furthermore, the final right of appeal depended on whether the proceedings were civil or criminal. The appeal was ‘as of right in civil cases where the amount in dispute exceeded $5,000, but was available in criminal cases only with the special leave of the Privy Council. All appeals to the Supreme Court are by leave of the court. The court must be satisfied that the appeal involves a matter of general public importance or commercial significance, or that a substantial miscarriage of justice may have occurred.
The Supreme Court comprises the chief justice, who presides, and between four and five permanent judges. The court’s membership is supplemented by acting judges where permanent members have a conflict of interest and must recuse themselves (abstain from hearing the case). Five judges constitute the court, although only two need sit in applications for leave to appeal. If the court is divided, the opinion of the majority is the judgment of the court. Supreme Court judges retain concurrent appointment as judges of the High Court. As for all judges in New Zealand, the compulsory retirement age of Supreme Court judges is 70 years.
The Court of Appeal is New Zealand’s intermediate appellate court. In criminal cases, people may appeal as of right against conviction or sentence (or both) for indictable (serious) offences that may be punishable by imprisonment. The Crown has no general right of appeal against an acquittal for an indictable offence and must obtain the court’s leave to appeal against sentence. In civil cases appeals from the High Court are as of right, unless the case originated as an appeal from a lower court. In that event, either the High Court or Court of Appeal must grant leave. If the court is divided, the opinion of the majority is the judgment of the court. Court of Appeal decisions, while subject to correction by the Supreme Court, are binding on all lower courts. The Court of Appeal is bound by decisions of the Supreme Court and those of the Privy Council entered before the right of appeal was abolished.
The Court of Appeal comprises a president, and between five and nine permanent judges. As from 1 July 2010 the court has had a full contingent of nine judges. A sitting of three judges constitutes the court, although it must sit as a full court of five judges in cases of special public importance. Where a division of the court does not include the president, the next most senior judge presides. Judges of the Court of Appeal hold concurrent appointment as judges of the High Court.
The High Court was, until 1980, constituted as the Supreme Court, which was established in 1841 as New Zealand’s first superior court. The High Court exercises original and appellate jurisdiction. Its original jurisdiction includes civil claims exceeding the monetary limit of district courts ($200,000) and criminal proceedings involving the most serious indictable offences. Under its appellate jurisdiction, the High Court can hear and decide appeals in civil and criminal cases heard in the district courts, including cases heard in its specialist divisions (the Family Court and Youth Courts). Appeal is as of right and is by way of rehearing. The court also exercises jurisdiction derived from the common law and equity courts in England. The court may:
The chief justice and a maximum of 55 judges comprise the High Court. The court is constituted by a judge sitting alone, although it may sit as a full court of two or more judges. Judges of the High Court may be assigned, from time to time, to sit in criminal or civil divisions of the Court of Appeal.
District courts discharge the bulk of the judicial workload. Their predecessors were magistrates’ courts, which were reconstituted as district courts in 1980. As of 2011 there were 63 district courts located throughout New Zealand, with provision for the appointment of up to 156 judges of the court. The number of district court judges is increased periodically to accommodate judicial workload pressures. A judge sitting alone constitutes the court.
District courts exercise an extensive criminal jurisdiction. They hear over 95% of all criminal trials, including jury trials on all but the most serious matters. In addition, district courts have jurisdiction over civil claims up to a monetary limit of $200,000. They also exercise limited appellate jurisdiction over disputes tribunals and other administrative bodies such as the Tenancy Tribunal.
The judicial system includes a range of inferior courts exercising specialist jurisdictions. These courts include: the Coroners Court, the Court Martial of New Zealand, the Employment Court, the Environment Court, the Family Court, the Māori Land Court, the Māori Appellate Court, and the Youth Court. The Youth Court and the Family Court are not strictly separate courts but are divisions of the District Court. The specialist courts exercise defined statutory jurisdiction and may be reviewed in the High Court if they exceed their powers or breach the principles of natural justice. These principles import the duty of fairness, which conveys the right to an impartial decision and the right to be heard.
Judicial appointments are made by the governor-general, acting on ministerial advice. Under procedures introduced in 1999, the attorney general exercises primary responsibility for giving advice on these appointments. The attorney general is the formal link between the judiciary and the government. The attorney general is the first law officer of the Crown and acts independently of partisan political interests. Before 1999 the minister of justice had recommended the appointment of District Court judges, which represented the majority of judicial appointments. In the 2000s these appointments are made on the recommendation of the attorney general. There are only two exceptions – the prime minister recommends the appointment of the chief justice and the minister of Māori affairs recommends the appointment of judges of the Māori Land Court.
The procedures introduced in 1999 standardised the appointments process. Appointments criteria are publicised, judicial vacancies advertised and expressions of interest called for. A Judicial Appointments Unit in the Ministry of Justice initiates the appointments process. It holds all names that meet the appointments criteria on a confidential database. The solicitor general supervises appointments to superior courts and the secretary for justice supervises appointments to inferior courts. Both consult widely within the legal profession, including senior judges and the presidents of the New Zealand Law Society and New Zealand Bar Association. They produce a ‘long list’ of potential candidates, from which a ‘short list’ is drawn-up when vacancies arise. The short list is presented to the attorney general, who makes the final decision.
New Zealand has resisted calls for a Judicial Appointments Commission. Several common law jurisdictions have established independent commissions to oversee judicial appointments. Supporters believe that a commission would promote wider consultation, remove mystique surrounding the appointments process and avoid risk of political influence. However, opponents question the need for an independent commission and point to the risk of political appointments to the commission compromising its independence. No questions have been raise about the independence and professionalism of judges appointed under the present system.
Until 2004 New Zealand had no formal procedures by which to discipline judges or remove them from office. Complaints of judicial misconduct were referred to heads of bench (the senior judge who heads each court), with any discipline meted out away from the public eye. That system came under mounting scrutiny, with calls for greater transparency and accountability. In 1999 the judiciary adopted its own complaints process, as a precursor to more extensive institutional reforms.
The Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 introduced prescriptive procedures for investigating complaints of judicial misconduct. It covers two classes of complaint against judges: those alleging inappropriate conduct and those alleging serious misconduct that might lead to a judge’s removal. The judicial conduct commissioner conducts a preliminary investigation to ascertain whether a complaint has substance. The commissioner must do one of four things: dismiss a complaint, take no further action, refer the complaint to the head of bench, or recommend that a judicial conduct panel investigate whether the judge should be removed. By 2011 only one judicial conduct panel had been established to investigate complaints against a Supreme Court judge, Justice Bill Wilson. However, the judge resigned from office before the panel assembled.
Where a complaint has substance, the usual recourse is referral to the head of bench, who may admonish, encourage or counsel the judge. A judge who acts inappropriately would be expected to apologise to the complainant and undertake not to repeat the conduct.
Removal of a judge from office is the ultimate sanction. A judicial conduct panel must examine a complaint of serious misconduct and recommend whether consideration of removal of the judge is justified. The attorney general then has discretion over whether or not to take steps to initiate an address to the House of Representatives for the judge’s removal. The procedures of the Judicial Conduct Commissioner and Judicial Conduct Panel Act may be bypassed in one situation. If a judge is convicted of an offence punishable by imprisonment for two or more years, the attorney general may initiate the removal procedures without involving the judicial conduct commissioner or a panel.
Bigwood, Rick, ed. The permanent New Zealand Court of Appeal: essays on the first 50 years. Oxford: Hart, 2008.
Gray, B. D., and R. B. McClintock, eds. Courts and policy: checking the balance: papers presented at a conference held by the Legal Research Foundation at the Aotea Centre, Auckland, on 5 and 6 August 1993. Wellington: Brookers, 1995.
Joseph, Philip A. Constitutional and administrative law in New Zealand. 3rd ed. Wellington: Thomson Brookers, 2007.
Spiller, Peter. New Zealand Court of Appeal, 1958–1996: a history. Wellington: Thomson Brookers, 2002.
Spiller, Peter, Jeremy Finn, and Richard Boast. A New Zealand legal history. 2nd ed. Wellington: Brookers, 2001.