New Zealand

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Legal Resources for New Zealand

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E-Learning Resources



Introduction

Brief History of New Zealand

New Zealand is an island-nation that consists of two main islands and several smaller islands located in the South Pacific Ocean, with Australia being the country’s closest neighbor. As of March 2021, the population rests at about 5 million with an unemployment rate of 4.7%. In a global context, New Zealand ranks as one of the top ten countries in regard to adherence to the rule of law, trustworthiness and good functioning of public institutions, and general peacefulness.

Economic State Though relatively small in the global marketplace, New Zealand enjoys a considerably developed economy with projected growth around 4.5% within the next year. Their success has been credited to their open economy that works on free market principles. A highly efficient agricultural sector is complemented by manufacturing and service sectors, and tourism in particular is crucial to the country’s economic stability. New Zealand’s economic growth in recent decades has been attributed to market diversification, expansion of manufacturing, and support of free-trade agreements.

Despite the nation’s economic success, an inequitable distribution of wealth has left one in seven households in poverty. Poverty disproportionately affects children, beneficiaries, Pacific People and other indigenous groups. Specifically, 40% of Pacific Peoples have an income below the poverty line. In the case of the indigneous Maori, nearly one-third of their population is experiencing poverty.

Brief Recent History In 1945, New Zealand was a founding member of the United Nations. Although New Zealand had enjoyed self-governance in domestic matters since the New Zealand Constitution Act 1852, New Zealand only adopted the Statute of Westminster in 1947. In 1949, New Zealand citizenship came into existence under the British Nationality and New Zealand Citizenship Act 1948. The 1986 Constitution Act removed the last provision for the British Parliament to make laws for New Zealand, though it remains a member of the British Commonwealth. Since that time, New Zealand has solidified its status as an independent, forward-thinking country. A proportional representation election system, or Mixed Member Proportional (MMP) was introduced in 1993 and the Supreme Court of New Zealand was established in 2004 to replace the Privy Council as New Zealand’s final court of appeal .

Governance New Zealand is considered a constitutional monarchy with a parliamentary system of government. Queen Elizabeth in right of New Zealand is the Head of State and sovereign. She and the New Zealand House of Representatives comprise the Parliament. The Queen appoints the Governor-General, who resides in New Zealand, oversees the legislative branch, and advises the Queen. They have limited but integral authority, typically serving for a period of five years. The Governor-General’s role is representative of the strong ties between New Zealand and the United Kingdom. This relationship includes frequent high-level visits between leadership, a close intelligence and security partnership, and shared domestic policies.

New Zealand’s government includes three branches: the Legislature, Executive, and Judiciary. The Legislature is formed by the Governor-General and Members of Parliament. They are charged with the tasks of making laws and checking the executive branch when necessary. The Executive branch is made up of Government Departments and Ministers. This branch decides policy, and proposes and administers laws. Finally, the Judiciary is made up of judges who interpret and apply the law according to its two sources—statutes and common law. Each branch is technically independent and serves as a watchdog for the other two.

Political System and Ruling Party New Zealand has opted for a Mixed Member Proportional (MMP) voting system where the number of parliamentary seats a party receives is reflected by the proportion of votes they acquire. Each voter is allotted two votes—one for the political party of their choice and another for the MP they wish to represent their local electorate. There are 120 seats in the current Parliament, comprising 71 electorate seats (of which7 are reserved for Maori) and 49 from party lists. One effect of the MMP system is that governments are more commonly coalitions between a major party and one or more smaller parties. Though this has resulted in a boost for small parties, the New Zealand National Party and the New Zealand Labour Party still dominate the political landscape of the country.

The Constitution

New Zealand does not have a written constitution in the sense of a single constitutional document. Rather, the country’s constitutional arrangements are derived from various sources, both written and unwritten. These sources include the Treaty of Waitangi / Te Tiriti o Waitangi, conventions and customs of government, certain statutes and the decisions of the New Zealand courts.

The Treaty of Waitangi / Te Tiriti o Waitangi is a key part of New Zealand’s constitutional arrangements. It was initially signed in February 1840 between representatives of the British Crown and various Māori iwi (tribes) and hapū (sub-tribes) . In broad terms, the Treaty / Te Tiriti established a political compact between the parties involved. Together they convened to found a nation state and build a government in New Zealand.

Type of System

The term used to refer to New Zealand’s legislative body is Parliament. Members of Parliament are elected for three-year terms during which they make laws by examining and debating bills. These members are accountable to the public by virtue of being elected by them. In addition to their other legislative duties, each MP is assigned to serve on one or more select committees. Select committees are small groups of members of parliament who specialize in certain subject areas. In addition to the examining and debating bills, they are expected to gauge public opinion and heed the voices of their constituents when considering potential legislation. If a select committee ultimately determines that a draft bill should not be advanced, it relays that judgement to the relevant minister and the necessary changes are made.

A bill must pass through several stages before it can become a law, or Act of Parliament. The stages are as follows: introduction, first reading, select committee, second reading, committee of the whole house, third reading, and royal assent. This results in a thorough process of examination and amendments until a final form is agreed upon. Once a bill is voted on and passed by Parliament, it receives royal assent and becomes a law.

Judicial System

The judicial system has a hierarchical structure that consists of—in ascending order—the District Courts, the High Court, the Court of Appeal, and the Supreme Court. They primarily deal with civil and criminal cases. Specialist courts include Maori Appellate Court, Maori Land Court, environment courts, and employment courts. In all cases, Judges are appointed by the government, and only lawyers may be appointed to these positions. A lawyer must hold a practicing certificate for at least seven years to be eligible. Judges are protected from salary cuts or removal from office. This ensures their independence and impartiality.

In addition to professional judges, the District Court may also be constituted by non-legally qualified justices of the peace and community magistrates. Justices of the peace may deal with applications for bail in many criminal cases and may impose sentences for some fine-only offences. In addition to the powers of JPs, community magistrates may also impose non-custodial sentences for charges where the maximum penalty in three months’ imprisonment.

New Zealand’s Supreme Court was established as its final court of appeal in 2004. Before the 21st century, New Zealand’s highest appellate body was the Judicial Committee of the Privy Council, which was located in London, in the United Kingdom. It typically dealt with fewer than ten appeals annually. The Supreme Court Act 2003 officially established the New Zealand Supreme Court. The Act came into force on 1 January 2004 and formally ended New Zealand-based appeals to the Privy Council. In the language of the legislation, the purpose of this change was to recognize New Zealand as an independent nation with its own history and traditions, improve access to justice and enable important legal matters, including those relating to the Treaty of Waitangi / Te Tiriti o Waitangi, to be resolved with an understanding of New Zealand conditions, history, and traditions.

Today the Supreme Court comprises the Chief Justice and no fewer than four but no more than five other judges, all of whom are appointed by the Governor-General. Leave is required to appeal from the Court of Appeal to the Supreme Court. In order to obtain leave, it is necessary to show one or more of the following:

1) the appeal involves a matter of general public importance,

2) a substantial miscarriage of justice may have occurred, or may occur, unless the appeal is heard,

3) the appeal involved a matter of general commercial significance, or

4) the appeal involved a significant issue relating to the Treaty of Waitangi.

The Legal System

New Zealand’s government is divided into three branches: the Legislative branch or Parliament, Executive branch and Judicial branch. Like many other modern governments, the principle of separation of powers operates to ensure that each of these branches acts as a check and balances on the others. The branches perform their roles in monitoring one another and make, pass, and applying the law in accordance with New Zealand’s unwritten constitution.

Parliament or Legislature is the branch that creates laws that have been brought to their attention through written bills or proposed laws by the executive branch. Parliament is made up of publicly elected officials called MPs and are assigned to specific committees in their elected areas. When a bill is brought to their attention, it will be elected upon to determine if it will be passed or not. If the bill is not passed, it will be brought to the attention of the relevant cabinet minister. When a bill passes, it receives Royal Assent and is a statute or an act.

The Executive branch develops policies, drafts bills, publishes law and administers all legislation. This branch is composed of the Governor General, Prime Minister, ministers of the Crown and government departments. The development process consists of determining how a new bill should be brought to the attention of Parliament and how to portray the new potential law in a legible way. Bill drafting takes place after the bill has been turned into Parliament. This process includes potential new law and other legislative proposals. The publishing of laws is announcing the newly written laws to the public. Administering legislation is crucial to the performance of the Executive branch. This means that everything the Executive branch has done after developing a policy, drafting the bill, and publishing the law are enacted. Accommodations may have to be made to fully enact the new legislation and it is the Executive branch's job to see to those changes.

The Judicial branch interprets and applies the laws of New Zealand. It has four primary functions:
1) to provide a mechanism for dispute resolution,
2) to deliver authoritative rulings on the meaning and application of legislation,
3) to develop case law, and
4) to uphold the rule of law, personal liberty and human rights. Judges, are appointed by the Governor General with the recommendation of the Attorney General.


Sources of Defendants' Rights

National Sources of Defendant’s rights

Criminal Procedure

Arrest

There are four types of offenses that can take place when someone is processed through the justice system. These offenses are categorized by the magnitude of the penalty for the offense and are numbered 1-4.
Category 1 offense – determined in the District Court by a judge, community magistrate or justice of the peace may impose a fine.

Category 2 offense – determined in the District or High Court by a judge, for offenses where the maximum penalty is less than 2 years’ imprisonment.

Category 3 offense – determined in the District or High Court where the maximum penalty is a finite term of years (or life imprisonment in the case of drug-dealing offences). These offenses can be tried by a judge or a judge and a jury.

Category 4 offense – determined in the High Court by a judge and jury, these offenses include murder, manslaughter, and other specified serious offenses.

Pre-trial Detention

After the police have determined the proceed with criminal charges, the person charged will be processed, usually at a police station. The accused will be required to give his or her name, birth date and address. They may be fingerprinted, photographed and in the case of imprisonable charges, may have a DNA sample taken. The accused may be held in police custody until their initial hearing date, generally the same or next day, or released to appear in court on a subsequent date.

Right to Defense

Legal aid is available to those who cannot afford a lawyer in criminal cases where the maximum penalty is imprisonment for six months or more. Legal aid is also available for less serious charges if the interests of justice require representation. The right to a defense is confirmed in section 24 of the New Zealand Bill of Rights. Everyone who is charged with an offence—

  • Shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance;

Trial

New Zealand has two types of criminal trials under its legal system. A jury trial and a trial by judge alone.

  • A jury trial is overseen by a judge and a jury of 12 people for category 3 and 4 offenses. A defendant may require a jury trial for category 3 offences. The jury is tasked with determining the facts of a case and whether the defendant is guilty or not guilty.
  • A judge alone trial is held for category 1, 2 or 3 offenses. In a judge alone trial the judge determines all questions of fact and law, including whether the defendant is guilty or not guilty.

Appeal

Appeals are usually heard in the High Court or the Court of Appeal, depending on the nature of the case. The High Court hears appeals from the District Court in judge alone civil and criminal trials. The Court of Appeal hears civil and criminal appeals from judge alone trials in the High Court and from criminal jury trials in the High Court and District Court. the Court of Appeal also hears appeals from the Employment Court and Maori Appellate Court. The Court of Appeals judgments are publicly accessible through the Judicial Decisions Online database.

Rights of the Accused

In New Zealand, the accused is innocent until proven guilty. The accused also has the right against self-incrimination. This means that during the investigation of an offence they cannot be required to make a statement. Anyone who is arrested also has the right to talk to a lawyer in private as soon as possible.

The New Zealand Bill of Rights Act provides the following rights, some of which are specific to those of have been arrested and charged with a criminal offence:

Right not to be deprived of life

  • No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice.

Right not to be subjected to torture or cruel treatment

  • Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.

Right not to be subjected to medical or scientific experimentation

  • Every person has the right not to be subjected to medical or scientific experimentation without that person's consent.

Right to refuse to undergo medical treatment

  • Everyone has the right to refuse to undergo any medical treatment.

Unreasonable search and seizure

  • Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.

Liberty of the person

  • Everyone has the right not to be arbitrarily arrested or detained.

Rights of persons arrested or detained
(1)Everyone who is arrested or who is detained under any enactment—

  • (a)shall be informed at the time of the arrest or detention of the reason for it; and
  • (b)shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and
  • (c)shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.

(2)Everyone who is arrested for an offence has the right to be charged promptly or to be released.

(3)Everyone who is arrested for an offence and is not released shall be brought as soon as possible before a court or competent tribunal.

(4)Everyone who is—

  • (a)arrested; or
  • (b)detained under any enactment for any offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right.

(5)Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.

Rights of persons charged

Everyone who is charged with an offence—

  • (a)shall be informed promptly and in detail of the nature and cause of the charge; and
  • (b)shall be released on reasonable terms and conditions unless there is just cause for continued detention; and
  • (c)shall have the right to consult and instruct a lawyer; and
  • (d)shall have the right to adequate time and facilities to prepare a defence; and
  • (e)shall have the right, except in the case of an offence under military law tried before a military tribunal, to the benefit of a trial by jury when the penalty for the offence is or includes imprisonment for 2 years or more; and
  • (f)shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance; and
  • (g)shall have the right to have the free assistance of an interpreter if the person cannot understand or speak the language used in court. Section 24


  • (e): amended, on 1 July 2013, by section 4 of the New Zealand Bill of Rights Amendment Act 2011 (2011 No 92).

Minimum standards of criminal procedure

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

  • (a)the right to a fair and public hearing by an independent and impartial court:
  • (b)the right to be tried without undue delay:
  • (c)the right to be presumed innocent until proved guilty according to law:
  • (d)the right not to be compelled to be a witness or to confess guilt:
  • (e)the right to be present at the trial and to present a defence:
  • (f)the right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution:
  • (g)the right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty:
  • (h)the right, if convicted of the offence, to appeal according to law to a higher court against the conviction or against the sentence or against both:
  • (i)the right, in the case of a child, to be dealt with in a manner that takes account of the child's age.


Retroactive penalties and double jeopardy

  • (1)No one shall be liable to conviction of any offence on account of any act or omission which did not constitute an offence by such person under the law of New Zealand at the time it occurred.
  • (2)No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.


Right to justice

  • (1)Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law.
  • (2)Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.
  • (3)Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.



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