The law in New Zealand until 1840 was tikanga Māori and Māori customary law – the customs and methods of governance by which Māori society was ordered. After the British Crown and Māori signed the Treaty of Waitangi in 1840, the British presence increased strongly and brought English law with it. Māori custom is still recognised as part of New Zealand law as long as certain criteria are met. These are:
- the custom is of long standing
- it has continued without interruption since its origin
- it is reasonable
- it is certain in its terms
- it has not been displaced by Parliament through clear statutory wording.
Aboriginal title (applied, for example, in a 2003 Court of Appeal decision about the title of the foreshore and seabed) and the Treaty of Waitangi are important protections for Māori.
The Magna Carta in New Zealand law
The Imperial Laws Application Act 1988 preserves as part of New Zealand law some of the Magna Carta, initially a charter in 1215 and pass passed by the English Parliament in 1225. It says that ‘No freeman shall be taken or imprisoned, or be disseised [dispossessed] of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor condemn him but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right.’
The English way of thinking about law and English legal institutions exerted a profound influence over New Zealand law from 1840. While that influence has waned since about 1960, the two legal systems still have much in common.
Also around 1960 international law and international obligations under treaties began to have a significant impact on New Zealand law. These continue to increase in a highly globalised world.
Common law is law built up through legal decisions rather than by legislation. The common law of England came to New Zealand, but New Zealand developed its own common law. England, Australia and Canada are among the other countries with common law and even in the 2000s New Zealand courts look to those jurisdictions when they cannot find any applicable law in New Zealand.
The key characteristic of common law is that it is made by judges. Common law systems use the building blocks of precedents to decide cases. Doctrine accumulates over time, which means the past greatly influences the future. When judges are faced with a new issue, they look to see what previous cases can tell them about how to resolve it. They decide cases and give reasons, in this way building up the precedents from which the law is made. Common law is flexible, not static.
Common law was once a much more powerful influence in New Zealand’s legal system than it is in the 2000s. Statutes (laws) passed by Parliament have supplanted much of it. English statutes, as they were applicable to the circumstances of the colony, came to New Zealand with the common law. In 2012, 53 of them and some 10 pieces of subordinate legislation were still in force in New Zealand – they were preserved and specified in the Imperial Laws Application Act 1988.
New Zealand law-making
New Zealand has had its own Parliament since May 1854. From 1856 Parliament has been very active in passing laws. From 1841 to 1853 New Zealand was a Crown Colony, ruled by a governor, and a firm foundation was laid for the law in New Zealand. During that period, laws called ordinances were made by the Legislative Council, whose members were appointed rather than elected. None of these remain in the law, but some ordinances from the old Provincial councils, which existed between 1852 and 1876, linger – for example, the University of Otago Ordinance 1869.