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I. Introduction

New Zealand’s colonial heritage has greatly influenced the development of the country’s legal system and constitutional arrangements.  Further, the common law system that New Zealand inherited from England places a strong emphasis on the doctrine of precedent and the need to cite authorities to ensure the legitimacy of court decisions.[1]  Historically, New Zealand courts have looked to the courts of England for sources of precedents in order to apply established principles and rules.  Over time, as local statutes were developed, international law and different international relationships increased in prominence, and as the issues coming before the courts became more complex, the courts have expanded the range of countries from which foreign cases are examined, particularly looking to Australia, Canada, and the United States, as well as to international tribunals. 

This report discusses the impact of foreign case law as evidenced in the citation practices of New Zealand’s higher courts, including in the context of interpreting and applying the New Zealand Bill of Rights Act 1990.  The possible reasons for New Zealand judges being demonstrably willing to consider and cite foreign cases are examined, along with the views of some judges and academics regarding this approach.[2] 

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II. Constitutional Arrangements

After the establishment of colonial rule in New Zealand, as a result of the signing of the Treaty of Waitangi between the British Crown and Maori tribes in 1840, the laws of England became directly applicable in New Zealand.[3]  Imperial legislation established the New Zealand Parliament and other branches of government.  Although New Zealand achieved legal and constitutional independence in the mid-twentieth century,[4] a number of the current constitutional arrangements and procedures are based on various rules and principles that were developed in England.[5] 

There are three branches of government in New Zealand: Parliament, the executive branch, and the judiciary.  The Queen is the head of state.  The cornerstone of the legal system is that parliament “has supreme lawmaking powers that cannot be challenged.”[6]  Judicial independence is also emphasized, and judges do not have political allegiances and are not influenced by party politics.[7] 

New Zealand retained the Judicial Committee of the Privy Council in England as its final appeal court until 2004, when the Supreme Court of New Zealand was established.[8]  The court hierarchy now consists of the district courts, the High Court, the Court of Appeal, and finally the Supreme Court. 

New Zealand does not have a single written constitution.  The country’s constitutional arrangements are derived from a variety of written and unwritten sources, including particular statutes from Britain and New Zealand, conventions and customs of government, fundamental legal principles, court decisions, and the Treaty of Waitangi.[9]  The New Zealand Bill of Rights Act 1990 confirms the protection of fundamental rights in statutory form.  While it is not entrenched or “supreme law” in the sense of overriding other statutes, the Bill of Rights Act is seen as forming part of the constitutional arrangements.[10]  

A concise and authoritative statement of New Zealand’s constitutional arrangements can be found in the introduction to the Cabinet Manual.[11]  In this document, in addition to the sources identified above, New Zealand’s international obligations and international processes more generally are identified as both an influence on constitutional change and as a limit on the exercise of decision making authority.[12]  Such an outward-looking perspective is clearly evident in the impact of foreign law on the judgments of New Zealand’s courts. 

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III. Empirical Analysis of Foreign Law Citations

 

Three empirical studies of the citation practices of New Zealand’s courts have been undertaken in the past decade.[13]  The results of these studies show that the influence of British law has receded, and that this recession has been accompanied by a significant rise in citations to the previous decisions of domestic courts.  In addition, an increasing number of court decisions now refer to the judgments of courts in other jurisdictions, particularly Canada, Australia, and the United States.  This trend is particularly evident in cases related to the New Zealand Bill of Rights Act 1990. 

A.  Smyth Study of the Citation Practices of the Court of Appeal (2000)[14]

The Smyth study provided a snapshot of citation practices by analyzing 300 of the most recent Court of Appeal decisions reported in the New Zealand Law Reports as of December 1999.  The study recorded citations of foreign and domestic judgments, decisions of international courts, and references to secondary material.  Russell Smyth, the author of the study, has conducted similar analyses of Australian courts.[15] 

The Smyth study found that the highest number of references made by the New Zealand Court of Appeal were to its own previous decisions, and this accounted for 33% of case citations.  In fact, if Privy Council decisions were included (the Privy Council was the highest court at the time of the study), over 50% of citations made were to the Court’s own decisions or the decisions of other courts in the same judicial hierarchy.[16] 

Decisions of English courts (other than the Privy Council) made up 23% of citations, or a total of 2,839 citations in the 300 judgments.[17]  A total of 1,878 citations (18% of all case citations) were to courts in countries other than New Zealand and England.[18]  Of those citations, nearly 95% were to courts in Australia (45%), Canada (31%), and the United States (16%).[19] 

The Smyth study also recorded citations to four international courts, with the most cited being the European Court of Human Rights with forty-seven citations (2.5% of all case citations).[20] 

B.  Richardson Study of Citation Trends in the Court of Appeal (2001)[21]

The Richardson study examined all of the decisions of the Court of Appeal made during the years 1960, 1980, 1990, 1997, and 2000.  This study included those cases that had not been reported in the New Zealand Law Reports.[22] 

The Richardson study showed that there has been a significant increase in the number of decisions rendered by the Court of Appeal.  Between 1960 and 2000 there was a 500% increase in the caseload of the court.[23]  The study suggested that a range of factors contributed to this change, including the growth of New Zealand’s population, higher crime rates, and, most plausibly, increased economic activity and greater litigiousness among New Zealanders.[24] 

Another finding was that the proportion of citations to English decisions had reduced considerably.  In 1960, citations of English cases accounted for 69% of cases cited.  By 1990 that figure had fallen to 35%, and in 2000 it was just 17%, which represented a 75% decrease since 1960.[25]  This decline was accompanied by a significant rise in citations to the decisions of New Zealand courts—from 26% of citations in 1960, to 51% in 1990, and 74% in 2000. 

Also noted in the Richardson study was the trend in the citation of Australian decisions.  While there was an increase in the proportion of decisions cited between 1960 and 1990 (from 4% to 12%), there was a drop down to 5% in 2000.[26]  It was suggested that this may have partially been due to the difficulty in dealing with the decisions of the High Court of Australia, which frequently contain multiple judgments.[27] 

The Richardson study also indicated an increase in the number of citations made to Canadian and United States cases over the years, as well as the emergence of citations to the European Court of Justice and the European Court of Human Rights.[28] 

C. Allan Study of the Citation of Foreign Judgments in New Zealand Bill of Rights Act 1990 Cases (2007)[29]

The Allan study examined reported cases relating to the New Zealand Bill of Rights Act 1990 from the date of enactment of the legislation to April 2006.[30]  The study showed that the decisions of Canadian courts were cited far more often than those from any other jurisdiction, having been cited in eighty-four New Zealand cases.[31]  The next highest number of citations was to United States judgments (cited in forty-six cases).[32]  Third, but with much fewer citations, was the United Kingdom.[33]  The authors did note that the United Kingdom Human Rights Act 1998 only came into force in England in 2000.[34] 

Similar to the Smyth study, the Allan study showed that the European Court of Human Rights was the most cited international tribunal (cited in forty-four cases).[35]  About one-third as many citations were to the United Nations Human Rights Committee.[36]  The authors suggested that the European Court’s decisions were far more sophisticated than those of the Human Rights Committee, which “often simply recite facts and submissions.”[37] 

The results of the Allan study indicated that New Zealand judges are “most likely to cite the decisions of overseas courts when considering criminal procedure rights, and by a noticeable margin.”[38]  This may be because criminal procedure rights are the most litigated rights.  Outside of the context of criminal procedure, “freedom of expression gets the international treatment more than any other rights and freedoms,” again by a considerable margin.[39]  There were also cases involving particular rights where foreign law was not cited at all, including electoral rights, freedom of movement, and the rights of minorities.  These were also the least litigated rights.  In addition, some rights not explicitly set out in the New Zealand Bill of Rights Act 1990 arose in litigation and led to foreign law citations by judges, particularly the right to privacy and the right (or remedy) to have evidence excluded.[40] 

The Allan study also examined whether or not the overseas rights cases cited supported the eventual conclusions of New Zealand judges.  The figures showed that twenty-eight of the seventy-five cases that referred to overseas authorities included a citation that did not support the New Zealand court’s final decision.[41]  The authors also observed, however, that in Court of Appeal and Supreme Court decisions, the right at issue is extended “more than four times more often than it is given an interpretation narrower than it had before the court’s decision.”[42] 

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IV. Reasons for the Influence of Foreign Law

Hierarchical citations play a clear and important role in the common law system that New Zealand inherited from England.[43]  Historical factors, including the fact that the Privy Council was the highest court in New Zealand’s judicial hierarchy, meant that throughout the nineteenth and most of the twentieth century New Zealand courts relied heavily on English jurisprudence.[44]  In more recent decades there have been a number of sociocultural, economic, legal, and political changes that have resulted in a shift in the influences on New Zealand’s courts to include a broader range of jurisdictions. 

A. Receding Influence of England

England’s influence, not only on the law but more generally on New Zealand society, receded as England began looking increasingly to Europe on economic and trade issues, and immigration from England to New Zealand decreased.[45]  One commentator notes that any attempt to keep the common law of the Commonwealth uniform “has been abandoned.”[46]  A change of mindset or focus in New Zealand can also be seen, including a stronger sense of nationhood, independence, and increased economic and diplomatic ties with other countries.[47] 

Perhaps more significant, particularly in explaining the substantial rise in citations to New Zealand cases, is the vast increase in the number of domestic statutes.[48]  The interpretation and application of legislation, rather than the common law inherited from England, now dominate the work of the courts, meaning that precedents are now “more likely to be used to show prior interpretation of statutes and subordinate legislation.”[49] 

B. Increased Complexity of Cases

As demonstrated in the Richardson study discussed above, there has been a huge growth in litigation in New Zealand.[50]  The novelty, complexity, and level of controversy of the issues coming before the courts have also increased, including a larger number of public law cases.[51]  This may be an outcome of the significant deregulation and privatization processes undertaken by the government (particularly during the 1980s), a tendency for Parliament to be less prescriptive in statutes, and the creation of broad statutory discretions.[52]  Judges are now frequently asked to “decide issues by drawing broad inferences as to legislative intent, reasoning from first principles, and evaluating policy considerations.”[53] 

With regard to rights litigation, the authors of the Allan study observed that “New Zealand courts are likely to cite overseas authority for a very practical reason: even seventeen years after passage of the New Zealand Bill of Rights Act, there remains a dearth of New Zealand authority in regard to many of the rights and freedoms.”[54]  Given the common law system’s focus on the use of precedents to ensure the legitimacy of decisions, this factor means that judges will often seek to rely on the decisions of foreign courts in interpreting different rights, rather than starting from scratch.[55] 

C.  Shared Affinities with Other Countries

In addition to the growth of citations to New Zealand cases, the declining proportion of citations to English cases has been accompanied by a “remarkable growth in resort to other jurisdictions.”[56]  The greatest number of citations have been to courts in countries with which New Zealand can be seen as having a shared affinity.  This may be due to their common law legal systems, language,[57] similar social and historical experiences (in particular Australia, and to a lesser extent Canada), and geographic proximity and strong economic relations (Australia).[58]  Further, the international reputation of different courts and judges,[59] and the number, scope, and depth of their body of precedents (particularly in the United States),[60] may impact on the willingness of New Zealand judges to cite cases from particular jurisdictions. 

It is particularly noteworthy that the New Zealand Bill of Rights Act 1990 was explicitly modeled on the Canadian Charter of Rights and Freedoms.[61]  This fact goes a long way in explaining the “ransack” of Canadian reports for their Charter jurisprudence.[62]  The historical experiences of the United States and Europe with bills of rights or other human rights laws can also be seen as an explanation for New Zealand courts “drawing deeply” from these countries in interpreting and applying individual rights and freedoms.[63]  

D.  Impact of International Law

The need to look beyond English and New Zealand decisions has been “reinforced by the growing influence of international treaties, covenants, and declarations to which New Zealand adheres.”[64]  It was noted in 2001 that “as many as one-third of the 600 public Acts on the New Zealand statute book give effect in one way or another to international standards or obligations.”[65]  In addition, the Court of Appeal has accepted the proposition that “the Court should strive to interpret legislation consistently with the treaty obligations of New Zealand.”[66] 

In the context of the New Zealand Bill of Rights Act 1990, although there is no statement or requirement regarding the use of foreign law to assist with its interpretation, the statute explicitly refers to the International Covenant on Civil and Political Rights (ICCPR).[67]  This fact has “frequently been referred to in order to justify interpretations of the New Zealand Bill of Rights Act which are consistent with the ICCPR and with jurisprudence of the Human Rights Committee and other relevant international jurisprudence.”[68]  Significantly, the Court of Appeal has observed that “[w]hether a decision of the Human Rights Committee is absolutely binding in interpreting the New Zealand Bill of Rights Act may be debatable, but at least it must be of considerable persuasive authority.”[69] 

The clearest example of the desire of New Zealand judges to “keep pace” with international developments is Baigent’s Case.[70]  In this case the Court of Appeal found in favor of awarding compensation for breaches of the New Zealand Bill of Rights Act 1990, despite this remedy not being provided for in the legislation.  After reviewing a range of overseas cases, the then President of the Court stated: “In other jurisdictions compensation is a standard remedy for human rights violations.  There is no reason for New Zealand jurisprudence to lag behind.”[71] 

The current Chief Justice has also emphasized the impact of international law and the wish to ensure the legitimacy of the rights-related decisions of New Zealand’s courts at an international level.  She has stated that: 

The accession to the Optional Protocols means that our legal system is now scrutinized for compliance with the international covenants and that the decisions of our courts are taken on an international world stage.  These influences cannot be under-estimated.  We are only at the beginning of the process.  It is in the area of human rights that the standards of the international community have the greatest impact.[[72]

E.  Increased Sharing of Information

Access to decisions (from New Zealand and overseas courts) has increased significantly, particularly as a result of more case reporting and publication of cases on the internet.  This is an important development in terms of judges and lawyers being able to reference a range of cases in their reasoning.[73]  In addition, academics and commentators have become increasingly influential in New Zealand, and often discuss judgments in the context of other disciplines and international developments.[74] 

Changes in legal education and the expectations of the judicial role may also be factors in judges becoming “internationalists.”[75]  A number of influential judges, as well as lawyers and academics, have obtained their postgraduate education overseas, particularly in the United States.[76]  They also frequently participate in international conferences, publish articles in international journals, and form relationships with legal professionals from many different countries.[77]  Judges can be seen as seeking to promote and expand the influence of their decisions internationally, as well as looking at developments in other jurisdictions that they are increasingly familiar with.[78]  In general, there is “an increased receptiveness to new ideas on the part of lawyers as well as judges.”[79] 

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V. Criticism and Future Prospects of Foreign Law Citations

The authors of the Allan study were concerned that there are “no rules (hard and fast ones or otherwise) about when overseas precedents should be cited, which overseas precedents should be cited, or what weight they should be accorded.”[80]  The authors considered that the findings of the study showed that “rights-based internationalism” is not overly constraining on judges and is largely ad hoc.[81]  The authors concluded that the data supports their view that “overseas authority is not used in a principled or systematic way by New Zealand courts in interpreting the New Zealand Bill of Rights Act.”[82] 

The authors of the Allan study opined that the ability of judges to pick and choose which foreign judgments to cite may potentially present a problem in that the “process of interpretation inevitably remakes the constitution in the likeness favored by the judges.”[83]  Judges are “tempted to draw on the most expansive interpretations of judges from other jurisdictions, while seldom being tempted to rely on the more restrictive interpretations on offer.”[84]  Further, the authors felt that the reliance on Canadian precedents in rights cases may be a concern to some people given that Canadian judges are seen as “the most judicially activist in the common law world—the most willing to second-guess the decisions of the elected legislatures.”[85]  The study recommended that New Zealand judges be more skeptical of overseas authorities than they currently appear to be.[86] 

The level of discretion that New Zealand judges have in citing foreign and international precedents has also been identified by a former New Zealand Supreme Court and Court of Appeal judge, Rt. Hon. Sir Kenneth Keith, who stated that “New Zealand Courts have not elaborated tight criteria and statements of purpose for the use of … international material.”[87]  However, current and former judges tend to view the approach in a more positive light, with the “eclecticism” of New Zealand’s legal method seen as having saved it “from the relative insularity of major jurisdictions like the United States and the United Kingdom.”[88]  Keith also observes that, although the New Zealand “character” of the law has been enhanced by the large number of local statutes, “that does not have to lead to a cloying inwardness.”[89] 

In any case, the tradition of New Zealand courts borrowing heavily from other jurisdictions, which has resulted from a range of both historical and modern influences, is unlikely to be scaled back.[90]  Various comments from judges, both in decisions and extra-judicially, indicate that the willingness to cite foreign law is becoming ingrained in New Zealand’s legal system and, together with international law, will have a continuing impact.  For example, the current Chief Justice has stated: 

I am not sure that the international trend and the domestic adoption of statements of human rights can now be reversed.  Increasingly, the response of domestic legal institutions and laws is shaped by international covenants and institutions.  This is an aspect of the shrinking of the world which has already had profound implications for all aspects of New Zealand life.[[91]]

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Prepared by Kelly Buchanan
Foreign Law Specialist
March 2010 
 

[1] Russell Smyth, Judicial Citations; An Empirical Study of Citation Practice in the New Zealand Court of Appeal, 31(4) VUW L. Rev. 847, 848 (2000), available at http://www.nzlii.org/nz/journals/VUWLawRw/2000/ 41.html

[2] The application of foreign statute law is beyond the scope of this paper. 

[3] Morag McDowell & Duncan Webb, The New Zealand Legal System 100 (2d ed. 1998).  The English Laws Acts 1854, 1858, and 1908 provided that all laws in existence in England on January 14, 1840, were to be applied to New Zealand. 

[4] Id. at 106-09. 

[5] Id. at 110-11. 

[6] Id. at 4, 112. 

[7] Id. at 4, 114. 

[8] The Supreme Court was established by the Supreme Court Act 2003, available at http://www.legislation. govt.nz/act/public/2003/0053/latest/DLM214028.html.  The legislation entered into force on January 1, 2004. 

[9] McDowell & Webb, supra note 3, at 110, 127-45.  See also Rt. Hon. Sir Kenneth Keith, On the Constitution of New Zealand: An Introduction to the Foundations of the Current Form of Government, in The Cabinet Manual (Cabinet Office, 2008), available at http://www.cabinetmanual.cabinetoffice.govt.nz/introduction

[10] Keith, supra note 9.  See also Rt. Hon. Sir Kenneth Keith, Concerning Change: the Adoption and Implementation of the New Zealand Bill of Rights Act 1990, 31(4) VUW L. Rev. 721 (2000), available at http://www.nzlii.org/nz/journals/VUWLawRw/2000/37.html.  Keith notes that there was no public support for the legislation to be entrenched, primarily because this would give power to a “non-elected, non-accountable, and non-representative judiciary.” 

[11] Keith, supra note 9. 

[12] Id. 

[13] Smyth, supra note 1; Rt. Hon. Justice Sir Ivor Richardson, Trends in Judgment Writing in the New Zealand Court of Appeal, in Legal Methods In New Zealand 261(Rick Bigwood, ed. (2001)); James Allan et al., The Citation of Overseas Authority in Rights Litigation in New Zealand: How Much Bark? How Much Bite?, 11(3) Otago L. Rev. 433 (2007).  

[14] Smyth, supra note 1. 

[15] Smyth, supra note 1; Ingrid Neilson & Russell Smyth, One Hundred Years of Citation of Authority on the Supreme Court of New South Wales, 7 UNSW L.J. 189 (2008), available at http://www.austlii.edu.au /au/journals/UNSWLawJl/2008/7.pdf

[16] Smyth, supra note 13, at 861, 875-76. 

[17] Id. 

[18] Id.  The study’s author noted that this was much higher than comparable figures for Australia, and also discusses comparisons with the citation practices of Canadian and United States courts.  Id. at 863-68. 

[19] Id. at 866, 878. 

[20] Id.  Other courts in this category were the Human Rights Commission (twenty-seven citations or 1.44%), Commission of the European Community (three citations or 0.16%), and the International Court of Justice (three citations or 0.16%). 

[21] Richardson, supra note 13. 

[22] Id. at 261.  In explaining this approach and comparing it to the Smyth study, Justice Richardson noted that the proportion of cases actually reported in the New Zealand Law Reports has fluctuated over the years. 

[23] Id. at 262. 

[24] Id. 

[25] Id. at 264. 

[26] Id. at 265. 

[27] Id. 

[28] Id. 

[29] James Allan et al., supra note 13. 

[30] The outcomes of this study were referred to in a New York Times article.  Adam Liptak, U.S. Court is Now Guiding Fewer Nations, N.Y. Times, Sept. 17, 2008, available at http://www.nytimes.com/2008 /09/18/us/18legal.html?_r=4&hp=&adxnnl=1&oref=slogin&pagewanted=all&adxnnlx=1221833346-HD0Iphcv9NPt5FE8Ahl/Jw

[31] Allan et al., supra note 13, at 437, 455. 

[32] Id. 

[33] Id.  Judgments relating to the Human Rights Act 1998 were only cited in two New Zealand cases, but there were citations to European Convention cases in the United Kingdom in eleven New Zealand cases. 

[34] Id. at 438, 455.  There were also a small number of citations to German, Indian, and Irish cases. 

[35] Id

[36] Id. 

[37] Id. at 438-39. 

[38] Id. at 436. 

[39] Id.  This was followed by freedom from discrimination. 

[40] Id. 

[41] Id. at 440, 457. 

[42] Id. at 441, 458-67. 

[43] Smyth, supra note 1, at 861-62. 

[44] See Hon. Justice Robert Fisher, New Zealand Legal Method: Influences and Consequences, in Legal Method in New Zealand 25, 27, 40 (Rick Bigwood ed., 2001). 

[45] Id. at 41. 

[46] Id. 

[47] Richardson, supra note 13, at 264. 

[48] Fisher, supra note 44, at 43; See also Richardson, supra note 13, at 266. 

[49] Id. 

[50] See also id. at 38-39. 

[51] Id. at 39-40. 

[52] Id.  Fisher suggests that reasons for these changes include the difficulty for politicians to “sell detailed solutions to a population fragmented by divergent cultures and income,” as well as the introduction of a Mixed Member Proportional electoral system in 1996, which has seen governments needing to accommodate the diverse demands of their coalition partners. 

[53] Id. at 40. 

[54] Allan et al., supra note 13, at 445.

[55] Id. 

[56] Fisher, supra note 44, at 44. 

[57] See Allan et al., supra note 13, at 438, stating that “Although many countries have bills of rights, New Zealand judges are likely to be far more receptive to overseas authority from jurisdictions with which they are comfortable, among other things because of shared affinities.  For example, decisions from English speaking courts are likely to be cited more than decisions from non-English speaking courts, and decisions from common law legal systems are more likely to be cited than those from civilian systems, and so on.” 

[58] See Smyth, supra note 1, at 866.  See also Richardson, supra note 13, at 265.  See also, Fisher, supra note 44, at 41. 

[59] Smyth, supra note 1, at 868.  See also Allan et al., supra note 13, at 445, stating that the “use of overseas precedents can be especially helpful if the relevant overseas jurisdiction is thought to have a good reputation for human rights.” 

[60] Allan et al., supra note 13, at 437, states that the number of citations to United States judgments in New Zealand Bill of Rights cases “is hardly surprising given the extensive United States history with judicial review.” 

[61] Fisher, supra note 44, at 42.  See generally Keith, supra note 9, for a discussion of the background to and development of the New Zealand Bill of Rights Act 1990. 

[62] Smyth, supra note 1, at 867 (quoting Lord Cooke of Thorndon, The Dream of an International Common Law, in Courts of Jurisdiction: The Mason Court in Australia 138, 142-43 (Cheryl Saunders ed., 1996).  See also Allan et al., supra note 13, at 444-45. 

[63] Id.  Lord Cooke stated: “In the five years since the enactment of the New Zealand Bill of Rights Act 1990 we have tended to ransack the Canadian reports for their Charter jurisprudence, while drawing deeply also from the European and United States as well.” 

[64] Fisher, supra note 44, at 42. 

[65] Rt. Hon. Sir Kenneth Keith, Sources of Law, Especially in Statutory Interpretation, with Suggestions about Distinctiveness, in Legal Method in New Zealand, supra note 44.

[66] Puli’uvea v. Removal Review Authority, (1996) 2 H.R.N.Z. 510, 516-17. 

[67] The long title of the New Zealand Bill of Rights Act 1990 states that it is an Act “To affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights.” 

[68] Andrew S. Butler & Petra Butler, The Judicial Use of International Human Rights Law in New Zealand, 29(1) VUW L. Rev. 173, 177 (1999), available at http://www.nzlii.org/nz/journals/VUWLawRw/1999/15.html. See also Melissa A. Waters, Creeping Monism: The Judicial Trend Toward Interpretive Incorporation of Human Rights Treaties, 107 Colum. L. Rev. 628 (2007), for a discussion of New Zealand’s approach to using the ICCPR in interpreting both statutes and in developing the common law.  See also Keith, supra note 65, at 89-93. 

[69] R. v. Goodwin (No. 2), [1990-1992] 3 N.Z.B.O.R.R. 314, 321 (C.A.). 

[70] Simpson v. Attorney General (Baigent’s Case), [1994] 3 N.Z.L.R. 667 (C.A.). 

[71] Id. at 676. 

[72] Rt. Hon. Dame Sian Elias, Chief Justice of New Zealand, 4th Annual Ethel Benjamin Commemorative Address at Dunedin, Diversity and the Law (May 18, 2000), transcript available at http://www.lawfoundation. org.nz/publications

[73] See Allan et al., supra note 13, at 443.  See also Fisher, supra note 44, at 43. 

[74] See Fisher, supra note 44, at 42-43. 

[75] Allan et al., supra note 13, at 443. 

[76] Richardson, supra note 13, at 265, noting that four of the seven Court of Appeal judges on the bench in 2001, as well as the Chief Justice, had studied at United States law schools. 

[77] Allan et al., supra note 13, at 443-44.  The contact between judges from different jurisdictions has been emphasized by Hon. Justice Susan Glazebrook of the Court of Appeal, who stated that “I think it vital to take the time to look outwards periodically to the world beyond these shores as it broadens the perspective and lessens the tendency towards insularity.”  Hon. Justice Susan Glazebrook, Court of Appeal, 8th Annual Ethel Benjamin Commemorative Address at Dunedin, Looking Outward, (Apr. 5, 2004), transcript available at http://www.courts ofnz.govt.nz/speechpapers

[78] Allan et al., supra note 13, at 443-44. 

[79] Richardson, supra note 13, at 265. 

[80] Allan et al., supra note 13, at 441. 

[81] Id.

[82] Id. at 445. 

[83] Id. at 434 (quoting Hogg and Bushell, The Charter Dialogue Between Courts and Legislatures, 35 Osgoode Hall L. J. 75, 77 (1997)). 

[84] Id. at 442. 

[85] Id. at 437. 

[86] Id. at 446. 

[87] Keith, supra note 65, at 98-99. 

[88] Fisher, supra note 44, at 44, 72. 

[89] Keith, supra note 65, at 98. 

[90] See id. at 98-99.  See also Fisher, supra note 44, at 44. 

[91] Elias, supra note 72. 

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Last Updated: 09/16/2014