New Zealand's Political Landscape: The Courts and Functions of the Courts

The Judicial Branch of Government

• The Judiciary constitutes one of the three arms of government in New Zealand's political landscape.

• The primary roles of the Judiciary include:

  • The interpretation of developed statute (legislation passed by Parliament).

  • The development of common law (law made by judges through court decisions).

  • The administration of justice across the country.

• These notes are based on a lecture provided by Anna Hales from the Waipapa Taumata Rau, University of Auckland, dated $1$ March $2026$.

Structure and Hierarchy of the New Zealand Court System

• The New Zealand court system is organized into a hierarchical structure, where higher courts can hear appeals from lower courts. The hierarchy is as follows:

  • Supreme Court: The highest court of the land and the final court of appeal.

  • Court of Appeal: Sits below the Supreme Court and hears appeals from the High Court and sometimes the District Court.

  • High Court: A superior court that handles the most serious civil and criminal cases and hears appeals from the District Court and specialist courts.

  • District Court: The court where most criminal and civil cases are heard. It includes sub-divisions such as the Youth Court and the Family Court.

• Specialist Courts:

  • Employment Court: Focuses on employment law; appeals from the Employment Relations Authority move here.

  • Environment Court: Specializes in environmental and resource management issues.

  • Māori Land Court and Māori Appellate Court: Deal with matters relating to Māori land.

  • Court Martial and Courts Martial Appeal Court: Handle legal matters concerning the military.

  • Coroners Court: Investigates the causes of specific deaths.

• Tribunals and Authorities:

  • Waitangi Tribunal: A permanent commission of inquiry that makes recommendations on claims brought by Māori relating to the Crown's breach of the Treaty of Waitangi.

  • Employment Relations Authority: An investigative body that resolves employment relationship problems.

• Appeal Pathways:

  • Cases from the Criminal and Civil Courts generally start at the District Court level.

  • Decisions from the District Court, Māori Land Court, and Court Martial can be appealed to the High Court.

  • Decisions from the Māori Appellate Court and the Courts Martial Appeal Court appeal directly to the Court of Appeal.

  • Decisions from the Employment Court and Environment Court also appeal to the Court of Appeal.

Comparative Analysis: Criminal vs. Civil Law

• Cases in the New Zealand legal system are categorized as either Civil or Criminal. The following distinctions apply:

  • Initiating Party:

    • Civil: Initiated by an individual or private entity.

    • Criminal: Initiated by the State.

  • Primary Aim:

    • Civil: To provide compensation for loss.

    • Criminal: To exact punishment for an offense.

  • Legal Terminology:

    • Civil: Parties 'sue' one another.

    • Criminal: The state 'prosecutes' the individual.

  • Standard of Proof:

    • Civil: Balance of probabilities.

    • Criminal: Beyond reasonable doubt.

  • Case Naming Conventions:

    • Civil: Smith v Brown (Individual vs. Individual).

    • Criminal: R v Brown ('R' stands for Regina/Rex, representing the Crown or State).

  • Remedies and Outcomes:

    • Civil: Damages (monetary compensation), injunctions (orders to stop an action), account of profits, or declarations.

    • Criminal: Imprisonment, fines, or community service.

Constitutional Principles: Separation of Powers and Judicial Independence

• The Judiciary is constitutionally independent of the Executive and the Legislature to ensure a fair and impartial legal system.

• Mechanisms of Independence:

  • Security of Tenure: Judges cannot be easily removed from their positions based on their decisions.

  • Financial Security: Judges' salaries are protected to prevent economic pressure from influencing rulings.

• Points of Overlap:

  • Despite the separation, the Executive is involved in the appointment process. Judges are appointed by the Governor-General (GG) acting on the advice of the Attorney-General (AG).

• Subordination to Parliament:

  • The Judiciary is independent but remains subordinate to Parliament.

  • Courts are mandated to apply primary legislation and possess no power to override it.

  • Statutory Interpretation: Courts must interpret legislation according to s$10$ of the Legislation Act $2019$.

  • Courts have the power to strike down delegated legislation (secondary laws made under powers granted by Parliament) but cannot interfere with actual legislative decisions, as established in Morgan v Queen ($2022$).

  • Famous Quote on Sovereignty: "Parliament speaks to the Courts only through enacted legislation." — Elias CJ in Ngāti Whātua Ōrākei Trust v Attorney-General [$2018$] NZSC $84$.

• Checks and Balances:

  • The Judiciary scrutinizes government actions to ensure that the Executive branch does not exceed its legally granted powers.

Case Study: Borrowdale v Director-General of Health [$2020$] NZHC $2090$

• This case examined the legal validity of the first COVID-$19$ lockdown in New Zealand.

• Statutory Context: The lockdown measures were justified under Section $70(1)$ of the Health Act $1956$:

  • s$70(1)(f)$: Allows the Director-General (DG) of Health to require persons, places, buildings, ships, vehicles, aircraft, animals, or things to be isolated, quarantined, or disinfected as he thinks fit.

  • s$70(1)(m)$: Allows the DG to require all premises of any stated kind or description to be closed.

  • s$70(1)(o)$: Allows the DG to forbid people to congregate in outdoor places of any kind or description.

• Timeline of Orders:

  • $26^{th}$ March $2020$: Order $1$ — Required the closure of non-essential businesses and prohibited congregations under s$70(1)(m)$ and (o).

  • $3^{rd}$ April $2020$: Order $2$ — Formally imposed the stay-at-home lockdown under s$70(1)(f)$.

  • $27^{th}$ April $2020$: Order $3$ — A subsequent order that 'tidied up' previous legal requirements.

• The Human Rights Conflict: The lockdown potentially breached rights protected under the New Zealand Bill of Rights Act (NZBORA) $1990$:

  • s$16$: Freedom of peaceful assembly.

  • s$17$: Freedom of association.

  • s$18$: Freedom of movement.

• Justified Limitation: Under s$5$ of NZBORA, rights are not absolute and may be subject to limits "prescribed by law as can be demonstrably justified in a free and democratic society."

• The Legal Ruling:

  • The court found that for the period between the Prime Minister's public announcement of the lockdown and the formal issuance of Order $2$ on $3^{rd}$ April $2020$ , the lockdown was technicaly illegal.

  • While the government had the power to issue the order, the delay in signing the formal document meant there was no legal basis for the restrictions during those specific days.

Constitutional Significance of the Borrowdale Case

• Separation of Powers: The case illustrates the distinct roles: Parliament provided the primary law (Health Act $1956$), the Executive implemented it, and the Judiciary interpreted the law and acted as a check/balance on Executive power.

• The Rule of Law: The ruling reinforced the principle that the government is not above the law. The Executive was held accountable for exceeding its powers and acting without proper legal authorization for a brief period.

• The Role of Delegated Legislation: The case highlights how significant restrictions on public liberty were imposed via Orders (delegated legislation) rather than the standard parliamentary process for primary legislation. This underscores the importance of judicial scrutiny over such powers.