The role of the judiciary in New Zealand's constitution

Contents:

Unwritten and unique: New Zealand's constitution

New Zealand’s constitution is not found in a single document. It is derived from a variety of sources. These include:

» The Constitution Act 1986, which is the principal formal statement of New Zealand’s constitutional arrangements.
» The Treaty of Waitangi, which is often considered New Zealand’s founding document.
» Other statutes passed by the New Zealand Parliament, such as the New Zealand Bill of Rights Act 1990 and the Electoral Act 1993.
» Common law derived from court decisions.
» Established constitutional practices known as conventions.
» Historical statutes from England, such as the Magna Carta and the Bill of Rights Act 1688.

A stable democracy: Separation of powers

A fundamental principle underpinning our constitution is the separation of powers.

New Zealand has three branches of government, each with well-deﬁned powers. Broadly speaking, the executive [1] branch is responsible for the day-to-day administration of government. The legislative branch [2] is responsible for making laws and granting supply to the executive. The judicial branch (the judiciary) is responsible for administering justice according to law through the courts.

The three branches operate independently from one another. The independence of the judiciary from the other branches of power is critical to it being able to play its constitutional role of administering justice and in so doing upholding the rule of law. The relationship between the three branches is underpinned by the principle of comity – which is the idea that the separate branches of government exercise respect and restraint towards one another, recognising one another’s independence, and do not improperly intrude into or impede the other’s appropriate areas of responsibility.

All branches of government have a shared responsibility to uphold basic principles of democracy.

The judiciary and the courts

Each court consists of its judges: individuals appointed for their experience, expertise and character. On appointment each judge takes the judicial oath, promising to “do right to all manner of people after the laws and usages of New Zealand, without fear or favour, aﬀection or ill will”. The judges are collectively referred to as “the judiciary”. The judiciary is also referred to as the “judicial branch” of government.

Parliamentary sovereignty

In New Zealand, Parliament is sovereign. This means that Parliament has the power to create, amend or repeal any law, and its decisions cannot be overturned by any other body. Unlike in other countries, New Zealand courts have no power to invalidate legislation passed by Parliament.

The courts have the power to declare legislation inconsistent with the New Zealand Bill of Rights Act 1990.[3] However, such a declaration does not aﬀect the ongoing validity of the legislation, nor does it instruct Parliament on what to do as a consequence of the inconsistency – Parliament has its own processes for that.[4]

The work of the courts

Judges hear and determine the proceedings brought before the courts. They do so by:

ensuring that the court process is fair and transparent
making ﬁndings about the facts relevant to that proceeding
ascertaining the law relevant to that proceeding
applying the relevant law to the facts as found by the court, to determine the outcome of the proceeding
giving their reasons for determining that outcome
and making appropriate orders to give eﬀect to that outcome.

The rule of law

The rule of law is the idea that the law applies equally to everyone – both the government and its citizens – and that everyone is equally entitled to its beneﬁt and its protection. It is the idea that everyone should comply with the law, and that each branch of government must follow the law when executing their functions.[5]

The rule of law is foundational to the role of the courts, and the courts are essential for the eﬀective operation of the rule of law in New Zealand. The courts provide an avenue to seek independent and impartial protection of legal rights and to enforce the rule of law. As such, access to independent, fair and eﬃcient courts is an important cornerstone in our democracy.

Where our law comes from

There are various sources of law in New Zealand, but the principal sources are statutes enacted by Parliament and the common law, which is the product of the work of the courts. Common law describes the body of case law decided by the courts and also the processes used by the courts to conduct hearings and issue judgments. This body of case law and procedure has been developed by judges over centuries through the decisions they have made regarding the cases in front of them.

Statutes are written to be general enough to capture a variety of situations. Judges interpret and apply Parliament’s statutes to the many different real-life situations that come to court. Judges must ensure that the laws are applied consistently and fairly, taking into account the specific circumstances of each case. This process often involves interpreting the intent of Parliament and considering precedents set by previous judicial decisions.

The common law therefore constantly evolves to meet society’s needs – expressed in the changing cases that come before the court. Through their decisions, judges develop the common law to meet these changing circumstances.

Parliament may repeal, modify, or develop the common law by statute.

How the branches of government work together

It is essential to the stable and effective operation of the courts that the three branches of government – the legislature, the executive, and the judicial branches – can communicate on matters that affect the independent, just, timely and accessible operation of the courts. This is because the executive supports the operation of the courts (see below) and because statutes sometimes affect how the courts must operate, or how justice is administered. To uphold the important principles of separation of powers and judicial independence, it is necessary that such communications are formal and appropriate. The forums in which this was done this year are outlined here.

The Attorney-General, as the senior law officer of the Crown, acts as the bridge between the judiciary and both the executive and the legislative branches of government.[6] The Chief Justice meets regularly with the Attorney-General to discuss judicial appointments and issues affecting the operation of the courts that involve the executive and legislative branches of government.

The Attorney-General also facilitates an annual meeting between the Prime Minister and the Chief Justice in their capacity as heads of branches of government.

The Chief Justice meets regularly with the Minister of Justice to discuss high-level policy matters to do with improving the courts such as the availability of legal aid, Family Court reforms and Te Ao Mārama.

New Members of Parliament event at the Supreme Court
In May, new Members of Parliament were welcomed to the Supreme Court for an information session on the judicial branch of government. This was an opportunity to discuss the role that the courts play in helping to safeguard and support New Zealand’s liberal democracy. The Chief Justice, Chief High Court Judge, Chief District Court Judge and Supreme Court judge Justice Joe Williams, hosted the attending MPs. The event was intended to build understanding of the role the judiciary plays in our constitutional framework and the conventions in place to regulate relations between the branches of government.

The judiciary and the Ministry of Justice: Sharing responsibility for court administration
Although the judiciary is an independent branch of government, it is dependent on the Ministry of Justice for the courthouses, staff, technology and all other operating systems necessary to support the operation of the courts.

This model must operate in a way that both supports the independence of the judiciary and ensures the best use of public funds to ensure the courts’ safe and effective operation. For this reason, the judiciary has a memorandum of understanding with the Ministry that makes clear how the relationship operates in order to respect judicial independence, called the Statement of Principles: see Appendix 1.

An example of its operation is that although registry staff are employed by the Ministry of Justice, the judiciary is responsible for the direction and supervision of those staff in relation to the business of the courts.

On an operational level, the Courts Strategic Partnership Group (CSPG) is the formal interface between the Ministry of Justice and the judiciary, providing a forum where senior judges and senior Ministry leaders work together to agree how the operation of the courts is to be supported.

CSPG continues to advance its five priority areas to improve access to justice and the efficiency of the courts. The five focus areas and the projects that support them are:

Te Ao Mārama – Te Ao Mārama is the new operating model for the District Court. It is a priority area for CSPG. See Part 2.
Te Au Reka – The new digital system for case and court management is the most significant investment in the courts’ case management system in decades and is therefore a top priority for the judiciary and Ministry. See Part 3.
The Digital Strategy for Courts and Tribunals of Aotearoa New Zealand – Adoption of technology in the courts – such as Te Au Reka, remote participation, and AI – is guided by the principles established in the Digital Strategy.
Innovative courthouses – The Ministry of Justice’s building programme aims to ensure that new facilities better serve the needs of New Zealand today and in the future, providing safe spaces for those who come into the courthouse and those who work there. Construction began on a new Whanganui courthouse in late 2024 and the design for a new court building in Tauranga Moana is in development. These projects have also had input from the Chief Victims Advisor.
Access to justice and reform of the civil jurisdiction. See Part 3 “Access to justice”.

Judicial engagement with policy formation

There is a convention that the judiciary does not intrude upon or impede executive policy-making or parliamentary law-making. Nevertheless, it can and does comment on proposed legislation that could affect the operation of the courts, judicial independence, the rule of law, or the administration of justice.

In such situations, the Chief Justice may make a submission to a select committee on a Bill. In 2024 the Chief Justice made three submissions:

Fast-track Approvals Bill. The submission to the Environment Committee covered the application of certain clauses to the courts and a submission that it was desirable that the resource implications for the High Court be modelled. Fast-track Approvals Bill submission
Disputes Tribunal Amendment Bill
Victims of Sexual Violence (Strengthening Legal Protections) Legislation Bill – Amendment Paper 216.

Submissions are generally published on Parliament’s website.

Previous section: The year in review

Next section: An independent and impartial judiciary

Footnotes

[1] The executive is made up of Ministers inside and outside Cabinet, and government departments.

[2] The legislative branch is made up of Members of Parliament and the Sovereign in right of New Zealand, represented in New Zealand by the Governor-General.

[3] See courtsofnz.govt.nz for more on declarations of inconsistency.

[4] This year, the Supreme Court delivered the judgment Attorney-General and Anor v Mark David Chisnall [2024] NZSC 178, which indicated the court would issue a declaration of inconsistency regarding aspects of the extended supervision order regime and the entirety of the public protection order regime.

[5] New Zealand ranked six out of 142 countries in the 2024 World Justice Project Rule of Law Index, and first in East Asia and the Pacific. In determining rankings, the index considers the extent to which those who govern are bound by law, absence of corruption, openness of government, to what extent the system of law protects fundamental rights, order and security, regulatory enforcement, access to civil justice, and effective criminal justice. New Zealand scored highly for absence of corruption in the judiciary. See www.worldjusticeproject.org

[6] For an explanation on the three branches of government – Parliament, the executive and the judiciary, see https://www.courtsofnz.govt.nz/about-the-judiciary/role-of-courts/government