Lecture 3 - Sources of New Zealand Law

• Sources of New Zealand Law

  • Legislation
  • Case Law
• Legislation


  Any document passed by or with the authority of parliament
• Types of Legislation


  • Acts of Parliament
  • Public Acts
  • Local Acts (only apply to a particular locality)
  • Private Acts (apply to a particular person or organisation)
  • Delegated legislation
• How Parliament makes law

  1. New laws begin as documents called bills

  2. Bills are drafts of proposed new laws

  3. They are set out in clauses and sub-clauses rather than sections or subsections

  4. Prefaced with an explanatory note and a regulatory impact statement
• Types of Bills

  • Government Bills
  • Members Bills
  • Omnibus Bills
  • Private Bills
  • Public expenditure
  • Appropriation bills
• How a bill becomes law

  1. Introduction

  2. First Reading

  3. Select Committee Stage

  4. Second Reading

  5. Committee Stage (consideration by a committee of the whole house)

  6. Third Reading

  7. Royal Assent
• Use of urgency: A Minister may move an urgency motion without advance notice of the bill, no debate by the House or select committee scrutiny, sitting hours of House may be extended
• Concerns have been expressed regarding the use of urgency
• Delegated legislation


  Parliament delegates the power to make law to other authorities in some circumstances
• Delegated legislation example


  • The Fair Trading Act delegates the power to make regulations on product safety standards to the Ministry of Consumer Affairs
• Reasons for delegating legislation

  • Simplification – leave technical material out of the Act itself
  • Devolution – allows local authorities to tailor national laws for local needs
  • Practicality – easier to amend or repeal than passing a new Statute
• The validity of delegated legislation may be challenged in the Courts if it goes beyond the legislative power conferred in the enabling Act
• Case Law


  Body of law which emerges from judicial decisions, established by the courts, guided by precedents
• New Zealand is a common law country
• Common law is the body of law which emerges from judicial decisions, guided by precedents
• Doctrine of stare decisis

  “to stand by things decided”, courts are bound to follow precedent from previous legal cases with similar issues or facts, based on hierarchy
• When are precedents binding and when are they persuasive?

  Decisions of the Supreme Court of New Zealand are binding on all other courts in New Zealand, Court of Appeal decisions are binding on lower courts
• Decisions by higher courts


  Binding decisions by other courts may be persuasive but not binding
• Decisions of the Supreme Court of New Zealand are binding on all other courts in New Zealand
• The Supreme Court of New Zealand is not bound by its earlier decisions
• Decisions of the Court of Appeal are binding on lower courts
• The Court of Appeal can overrule its own previous decisions
• Decisions of the High Court are not binding on other High Court Judges, although they will generally follow them and depart from the decision of another High Court judge only with great reluctance
• Decisions of District Courts are not binding on any other court including the District Court itself, i.e. they are persuasive only
• Decisions from other countries are not binding but are likely to be adopted in cases where: NZ law has been modelled on that of the country whose decisions are being considered, NZ and the other country share a common law heritage, the law being applied is international in character (e.g. carriage by sea)
• Distinction between ratio decidendi and obiter dicta: A court decision consists of the ratio decidendi (i.e. the rationale for reaching the decision) and obiter dicta (i.e. remarks or observations that are not crucial to the decision). The ratio decidendi is binding, while obiter dicta may be persuasive but is not binding
• It was believed for centuries that the role of common law judges was to find and declare existing law rather than to create new law. Common law judges gradually departed from this notion and began to develop new areas of common law such as the tort of negligence. Nonetheless, some people believe that a Judge’s role is to discover the law through a mechanistic process of finding the correct precedent and then applying it. Judges, as unelected officials, must not make new law as to do so would be to usurp the role of the House of Representatives. Judges should not refer to extrinsic materials such as commentaries by academics in making judgments as only the House of Representatives should have the power to make law
• Judges in superior courts may overrule a precedent. Judges may distinguish cases, i.e. say that the situations are materially different, in order to avoid applying a precedent. Judges can exercise choice where there are competing precedents. Judges have woven subjectively determined “policy considerations” into judicial decision making. For example, judges may extend/refuse to extend liability on policy considerations
• Gap theory: “Obscurity of statute or precedent or of customs or morals…may leave the law unsettled…Courts have the right to legislate within gaps” - B Cardozo. Note that most judicial decision making, particularly in the lower courts, turns on the application of law to facts within particular contexts with little scope for judicial law making. For example, the law states that drivers must come to a complete stop at red lights. The judge must determine as a question of fact whether this happened