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Judiciary of New Zealand

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The judiciary of New Zealand is responsible for the system of courts that interprets and applies the laws of New Zealand. It has four primary functions: to provide a mechanism for dispute resolution; to deliver authoritative rulings on the meaning and application of legislation; to develop case law; and to uphold the rule of law, personal liberty and human rights.[1] The judiciary is supported in its work by an executive department, the Ministry of Justice.[2]

The court system has four levels: the six-member Supreme Court is the highest court; the ten-member Court of Appeal hears appeals from the High Court on points of law; the High Court deals with serious criminal offences and civil matters, and hears appeals from the lower courts; and the District Court, which meets in fifty-eight locations. There is also a separate Māori Land Court and Māori Appellate Court which have jurisdiction over Māori land cases[3] under the Te Ture Whenua Maori Act 1993.[4]

Court hierarchy

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The Supreme Court building in Wellington

The Supreme Court sits at the apex of the New Zealand court hierarchy as the final appellate court.[5] Cases may only go to the Supreme Court if it grants "leave to appeal".[6] It generally hears appeals of considerable public interest, commercial significance, substantial miscarriages of justice or significant issues relating to the Treaty of Waitangi. The chief justice presides over the Supreme Court and is described in the Senior Courts Act 2016 as "senior to all other judges".[7] Before the Supreme Court first met in 2004, the Privy Council in London served as the highest court.[8]

The High Court and Court of Appeal are subordinate appellate courts. The High Court is also the highest court of first instance, primarily hearing complex cases or those cases which exceed the lower courts' jurisdiction. This includes all criminal trials for murder, manslaughter and treason. The High Court also includes a commercial court aspect through the High Court Commercial Panels, which "cover high-value disputes (over $2 million), complex and difficult matters of commercial law as well as proceedings brought by public authorities to enforce regulatory standards of commercial behaviour."[9] The District Court hears more than 95% of all criminal trials.[10] The Family Court and Youth Court are specialist divisions of District Court, dealing with families and young people, respectively.[11][12] Other specialist courts include: the Employment Court; the Environment Court; the Māori Land Court; the Māori Appellate Court; and disputes tribunals, which are small claims courts.[6] The Waitangi Tribunal is a permanent commission of inquiry established under the Treaty of Waitangi Act 1975.[13]

Supreme Court
Court of Appeal
Employment CourtHigh CourtMāori Appellate Court
District Court
(incl. Youth Court and Family Court)		Environment CourtMāori Land Court
Tribunals and authorities

Law

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Main article: Law of New Zealand

New Zealand practices the common law legal system,[14] where the decisions of higher courts constitute binding precedent upon courts of equal or lower status within their jurisdiction, as opposed to the civil law legal system.[15]

The laws of New Zealand are based on English law, some older statutes of the British Parliament (notably the Bill of Rights 1689), statutes of the New Zealand Parliament, and decisions of the New Zealand courts.[14] The laws are based on three related principles: parliamentary sovereignty, the rule of law, and the separation of powers. In interpreting common law, New Zealand judges have followed British decisions—although they are not bound by them[14]—thereby preserving uniformity with common law in other jurisdictions, bolstered by the long-term role of the Privy Council.[16]

Judges

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The chief justice is formally appointed by the governor-general on the recommendation of the prime minister. The judges of the Māori Land Court are appointed by the governor-general on the recommendation of the minister for Māori Development.[17] All other superior court judges are appointed by the governor-general on the advice of the attorney-general, the chief justice, and the solicitor-general collectively.[18]

Judges and judicial officers are appointed non-politically and under strict rules regarding tenure to help maintain judicial independence from the executive government.[17] Judges are appointed according to their qualifications, personal qualities, and relevant experience.[18] New Zealand does not have a judicial appointments commission as in many other democracies. As for removal from the bench, judges have only rarely been removed from the bench in New Zealand.[19] A judge may not be removed from office except by the attorney-general upon an address of the House of Representatives (Parliament) for proved misbehaviour.[17]

Judges of the Supreme Court, Court of Appeal and High Court are titled "Justice", while those of lower courts are titled "Judge". The title "Justice" is abbreviated, however "Judge" is not. For example, a judge of the High Court would be referred to as Venning J, whereas a judge of the District Court would be referred to as Judge Neave. Judges in New Zealand are addressed as "Your Honour" or "Sir/Madam"; in social settings, they may be addressed simply as "Judge".[20]

In Commonwealth tradition, New Zealand judges do not use gavels.[21] Instead, judges raise their voice (or stand up if necessary) to restore order in the courtroom.

Languages used in court

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English is the main working language of the judiciary and courts. Parties have the right to use any official language of New Zealand (English, Te Reo Māori and New Zealand Sign Language) in any pleading or process in or issuing from a court, and are entitled to a Maori or NZSL interpreter at no cost. Any party wishing to use Māori or NZSL must notify the court 10 working days in advance to ensure an interpreter is available, otherwise the court will be adjourned until an interpreter can be made available and the party may be liable for costs of the adjournment and delay.[22][23]

History

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A Supreme Court was first established in 1841[24] followed by various lower courts including District Courts and Magistrates' Courts, with the latter coming into being in 1846. The Court of Appeal was set up in 1862 as the highest court in New Zealand, but consisted of panels of judges from the Supreme Court.[5] Appeals could be taken from the Court of Appeal to the Privy Council. The District Courts were abolished in 1925 but later re-established. In 1957 the Court of Appeal was fully separated from the Supreme Court, by having its own judges.[5]

The Native Land Court was established in 1865 under the Native Lands Act,[25][26] to "define the land rights of Māori people under Māori custom and to translate those rights or customary titles into land titles recognisable under European law".[27] The court was criticised for enabling the removal of Māori from their land, partly due to holding proceedings in English and in cities far from Māori settlements, judges with inadequate knowledge of Māori custom, and partly due to the laws it enforced.[25] Land law did not recognise that land was owned communally by hapū (clans), and land ownership was put in the hands of a few people. In 1954 it was renamed the Māori Land Court.[25] In the 1980s the judiciary played a major role in redefining and elevating the constitutional position of the Treaty of Waitangi.[28][29][30]

In 1980, the Supreme Court was renamed the High Court (as it called today), reflecting its intermediate role.[31] In October 2003, Parliament passed the Supreme Court Act 2003, establishing a new Supreme Court of New Zealand in Wellington in July 2004,[8] and simultaneously ending the right of appeal to the Privy Council.[32] The Privy Council dealt with only a small number of appeals annually and was shared with some other Commonwealth nations; the new Supreme Court allows for a quicker appeals process as more cases are heard.[8] In October 2016, the Senior Courts Act consolidated in a single statute the Judicature Act of 1908 and the Supreme Court Act, which were repealed.[33]

Indigenous courts

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See also: Māori Land Court, Māori Appellate Court, and Waitangi Tribunal

In Australia, Canada, New Zealand, and the United States, Indigenous peoples are over-represented in the prison population. There have been calls to increase measures to reduce the level of incarceration in New Zealand, based on principles of therapeutic jurisprudence and restorative justice, and similar to specialist courts and processes for Indigenous peoples in Canada and Australia.[34][35]

Te Kooti Rangatahi is an Indigenous court for young Māori people, based on the marae, and has shown some success. Māori culture (tikanga Māori) and community members are integrated with the existing judicial process, to help young offenders connect with their culture.[35]

Te Kooti Matariki, the Matariki Court, is an Indigenous court for adults within a mainstream court system,[35] under the District Court of New Zealand and operating under the Sentencing Act 2002. Based in Kaikohe, Northland Region,[36] this court incorporates Māori customs and culture. Some of these differences from mainstream courts include including the offender's family in court proceedings; seating the offender at the same level as the judge and prosecutor; and a Kaumātua (elder) helps to determine the court proceedings, which begin with welcome speeches. By incorporating tikanga, more information is forthcoming from family members, with the collective knowledge of an offender's whānau (extended family) providing far more information than in formal court proceedings.[37] The offender’s iwi (nation), hapū (clan) and whānau may all help to create an appropriate rehabilitation program for the offender, which, upon successful completion, will be taken into account in the final sentence.[36] A 2011 article by Joanna Hess suggested that New Zealand should adopt some of the practices of Australian Indigenous courts, in particular the Koori Court in the state of Victoria, which has Indigenous sentencing courts as a separate division of the local court system.[38]

See also

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References

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  1. ^ Joseph, Philip A.; Joseph, Thomas (11 October 2016). "Judicial system – What is the judicial system?". Te Ara: The Encyclopedia of New Zealand. Retrieved 29 April 2020.
  2. ^ "The Statement of Principles". Courts of New Zealand. Retrieved 29 October 2021.
  3. ^ "About the Māori Land Court". Ministry of Justice. Retrieved 21 December 2013.
  4. ^ "Te Ture Whenua Maori Act 1993 (Maori Land Act 1993)". New Zealand Legislation. Parliamentary Counsel Office. 5 December 2013. Retrieved 21 December 2013.
  5. ^ a b c "History of court system". Courts of New Zealand. Retrieved 31 January 2017.
  6. ^ a b "Overview". Courts of New Zealand. Retrieved 31 January 2017.
  7. ^ "Senior Courts Act 2016 No 48 s18(1)". Parliamentary Counsel Office. Retrieved 29 October 2021.
  8. ^ a b c "The Supreme Court – Spanning The Years". Ministry of Justice. Archived from the original on 4 March 2016. Retrieved 31 January 2017.
  9. ^ "How cases are heard, High Court Commercial Panel Cases". Courts of New Zealand. Retrieved 5 May 2024.
  10. ^ Joseph, Philip A.; Joseph, Thomas (20 June 2012). "Judicial system – High, district and specialist courts". Te Ara: The Encyclopedia of New Zealand. Retrieved 31 January 2017.
  11. ^ "About Family Court". Ministry of Justice. Retrieved 31 January 2017.
  12. ^ "About Youth Court". Youth Court of New Zealand. Retrieved 31 January 2017.
  13. ^ "Waitangi Tribunal". Ministry of Justice. Retrieved 5 February 2017.
  14. ^ a b c McLintock, A. H., ed. (18 September 2007) [1966]. "Law, History of". An Encyclopedia of New Zealand. Retrieved 21 December 2013.
  15. ^ "Types of Law: Common Law v. Civil Law". University of Portsmouth. 2012. Retrieved 31 January 2017.
  16. ^ Eves, William; Hudson, John; Ivarsen, Ingrid; White, Sarah B. (15 April 2021). Common Law, Civil Law, and Colonial Law: Essays in Comparative Legal History from the Twelfth to the Twentieth Centuries. Cambridge University Press. pp. 250, 299–300. ISBN 978-1-108-84527-4.
  17. ^ a b c Joseph, Philip A.; Joseph, Thomas (20 June 2012). "Judicial system – Judges". Te Ara: The Encyclopedia of New Zealand. Retrieved 31 January 2017.
  18. ^ a b "Appointments". Courts of New Zealand. Retrieved 31 January 2017.
  19. ^ Joseph, Philip A. (2011). "Appointment, discipline and removal of judges in New Zealand". Judiciaries in Comparative Perspective. Cambridge University Press. pp. 66–95. ISBN 978-0-521-19060-2.
  20. ^ "Appearing in courts and tribunals : Information for new lawyers". New Zealand Law Society. Archived from the original on 1 March 2017. Retrieved 1 April 2019.
  21. ^ Adlam, Geoff (22 October 2015). "Four little online irritants". New Zealand Law Society. Archived from the original on 11 February 2018. Retrieved 11 February 2018.
  22. ^ "Interpreters, language & disability access". www.justice.govt.nz. New Zealand Ministry of Justice. 16 November 2021. Retrieved 8 June 2022.
  23. ^ "Te Ture mō Te Reo Māori 2016 No 17 (as at 01 March 2017), Public Act 7 Right to speak Māori in legal proceedings – New Zealand Legislation". legislation.govt.nz. Retrieved 8 July 2019.
  24. ^ "Supreme Court Act 1841 (5 Victoriae 1841 No 1)". New Zealand Legal Information Institute. Retrieved 31 January 2017.
  25. ^ a b c Ray, Arthur J. (June 2016). Aboriginal Rights Claims and the Making and Remaking of History. McGill-Queen's Press – MQUP. p. 33. ISBN 9780773599116.
  26. ^ "The Native Lands Act 1865". Early New Zealand Statutes. University of Auckland. Retrieved 21 December 2013.
  27. ^ "Our History – Māori Land Court". Ministry of Justice. Retrieved 21 December 2013.
  28. ^ New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (HC & CA) [SOE case]
  29. ^ He Tirohanga ō Kawa ki te Tiriti o Waitangi: a guide to the principles of the Treaty of Waitangi as expressed by the Courts and the Waitangi Tribunal (PDF). Te Puni Kokiri. 2001. p. 15. ISBN 0-478-09193-1. Archived from the original (PDF) on 18 February 2013. Retrieved 21 December 2012.
  30. ^ Janine Hayward (13 July 2012). "Principles of the Treaty of Waitangi – ngā mātāpono o te tiriti – Treaty principles developed by courts". Te Ara: The Encyclopedia of New Zealand. Retrieved 21 December 2013.
  31. ^ "Judicature Amendment Act 1972". New Zealand Legislation. Parliamentary Counsel Office. Retrieved 31 January 2017.
  32. ^ "Supreme Court Act 2003". New Zealand Legislation. Parliamentary Counsel Office. 1 July 2013. Retrieved 21 December 2013.
  33. ^ "Parliament makes major changes to NZ court system". New Zealand Law Society. 12 October 2016. Retrieved 18 September 2019.
  34. ^ Toki, Valmaine (31 July 2020). "Indigenous Courts, Self-Determination and Criminal Justice". Routledge & CRC Press. Retrieved 26 July 2022.
  35. ^ a b c Toki, Valmaine (30 July 2020). "Indigenous Courts". Criminology and Criminal Justice. Oxford University Press. doi:10.1093/acrefore/9780190264079.013.655. ISBN 978-0-19-026407-9.
  36. ^ a b "Matariki Court". The District Court of New Zealand. Retrieved 26 July 2022.
  37. ^ "Indigenous, Customary and Alternative Justice". IAWJ 2021. Retrieved 26 July 2022.
  38. ^ Hess, Joanna (2011). "Addressing the overrepresentation of the Maori in New Zealand's criminal justice system at the sentencing stage: How Australia can provide a model for change". Washington International Law Journal. 20 (1). Retrieved 26 July 2022 – via UW Law Digital Commons.

Further reading

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