Contents

Chapter 1
A consolidated Courts Act

A unitary statute

1.7The reference given to the Commission was specifically premised on the creation of a unified Courts Act for New Zealand. This was advanced to the Commission in light of the consideration given to this issue elsewhere in the Commonwealth to date, by the Commission’s own earlier work on the structure of the courts11  and the presentation of statute law,12  and the Ministry of Justice’s (then provisional) view that a unitary Act would be the best New Zealand solution.
1.8In those circumstances the Commission did not find it necessary to deal with any arguments against that proposition, in effect in anticipation, in Issues Paper 29. 13

1.9However, the submission by the judges of the Senior Courts queries whether it is appropriate for there to be a single Courts Act in New Zealand. They would prefer two Acts: a District Courts Act and a Higher Courts Act.

1.10The New Zealand Law Society’s submission suggested that the judges of the Senior Courts together constitute “the judicial branch of government”. It was concerned to ensure that the constitutional significance and the mana of the High Court not be diminished.

1.11It is therefore appropriate that we should address these concerns and articulate the reasoning which, in the Commission’s view, supports the proposition that there should be a unitary Courts Act for New Zealand.

1.12It is right to record the precise terms of the concerns raised by the judges and the Law Society.

1.13The way the judges put the matter is as follows:14

There is a preliminary issue, not addressed in the Issues Paper, as to whether a consolidated Courts Act, covering all courts, is appropriate. The independence in their functions of the District Courts and other courts able to be judicially reviewed is protected by the same judicial review jurisdiction of the High Court. That is why the protections derived from the Act of Settlement 1701 and now contained in sections 23 and 24 of the Constitution Act 1986 are necessary protections for the judges of the High Court only. Although the terms “superior” and “inferior” courts may be misunderstood and might be re-expressed (in the United Kingdom the courts below the High Court are referred to as “subordinate courts”), they mark off a distinction which is important to the constitutional balances and which must be maintained and better explained. A consolidated Courts Act risks understanding of the division. It is not an exercise that has been attempted in comparable jurisdictions to ours. The preferable course is to maintain distinct statutes for the higher courts and the District and other courts.

1.14The Law Society said that it is:

Important that any reforms to the Judicature Act must … preserve fundamental features of our constitution. … One such feature is that Superior Court judges – that is, Her Majesty’s judges signified by the Judicature Act hold a constitutional office. Together, such judges constitute the judicial branch of government. The organisation of the Superior Courts appellate structures has, of course, been accomplished by legislation, but the foundation from which all proceeds is the inherent jurisdiction of a judge to deal with all justiciable issues. This is the basis of judicial review, for example. Judicial powers can, of course, be augmented and regulated in various ways, and in particular contexts, by Parliamentary enactments. But the origin of those powers lies with the judicial power of the Sovereign, recognised since the early 17th century to be exercisable only through the Sovereigns judges. … The Law Society considers it important that the detail of any reforming legislation be carefully considered so that it preserves the continuity of these constitutional arrangements – just as the Constitution Act itself did for the law making powers of Parliament.

1.15The first point to note is that under the proposal for a unitary statute there would be no formal diminution whatsoever of the jurisdiction of the existing courts, including the Senior Courts. The statutory language which is widely used in a situation of this character is that the jurisdiction of the particular court is “continued”. It has always been interpreted as meaning that the jurisdiction of the court, as it previously existed, remains intact to the full reach of its then lawful parameters.

1.16A second possible concern is a visceral one: how the rearrangement “looks”, and what that conveys to the New Zealand citizenry. It would be easy to be dismissive of such an objection. That would be wrong. There is much in the law that entirely turns on the appearance of something. Indeed, many legal principles rest on a justification that appearance can be as important as substance. Recusal law, to take only one instance, turns on such a premise.

1.17Whilst acknowledging some force in that kind of objection, the first point to be made in reply is that the whole context must be taken into account. For instance, District Courts in New Zealand now have substantial civil and criminal jurisdiction. For a long time now, warranted District Court judges have sat with juries. At one time this trial vehicle was restricted to the High Court.

1.18There is a strong argument that, particularly in its jury trial capability, the District Courts (as they presently stand) in New Zealand are, appearance wise, very important. Moreover, the District Courts of New Zealand themselves exercise extensive downward supervisory jurisdiction over a number of tribunals which could accurately, and not pejoratively, be described as “inferior tribunals”.

1.19Secondly, the objection raised by the judges has caused no difficulty in the United Kingdom. As the courts legislation in that jurisdiction has now come to rest, by section 1 of the Senior Courts Act 1981:15

The senior courts of England and Wales shall consist of the Court of Appeal, the High Court of Justice, and the Crown Court, each having such jurisdiction as is conferred on it by or under this or any other Act.
(emphasis added)

1.20Only the United Kingdom Supreme Court stands apart, under Part 3 of what now remains operative of the Constitutional Reform Act 2005. That Act came into force on 1 October 2009. Under it the jurisdiction of the Supreme Court corresponds to that of the House of Lords in its judicial capacity under the Appellate Jurisdiction Acts of 1876 and 1888, together with the devolution matters under the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006, which were transferred to the Supreme Court from the Judicial Committee of the Privy Council.

1.21The third point concerns the elegance of the architecture. This has functional importance in relation to clarity and simplicity of legislation.

1.22A fourth point goes to the pragmatic characterisation and actual operation of legislation. If there is to be more than one statute, then there would have to be repetition of a number of important matters in each statute. Two readily appreciated examples will suffice. In our law of contempt, courts have certain inherent powers to deal with contempt of court. In our present courts legislation, there are several statutory in-court contempt provisions, not all in precisely the same statutory language. As will be seen later in this report we propose that, at least in relation to in-court contempt, there should be one standardised, statutory contempt provision. It makes no practical sense to have similar provisions in several statutes when they are dealing with precisely the same kind of behaviour. This leaves counsel and the public wondering where the provisions are and what the subtle differences between them mean. A second example is that if the Register of Judges Pecuniary Interests Bill currently before Parliament is enacted, either it would have to lead to (yet another) standalone Act, or, as we think to be the preferable course, it could simply form a Part of a Courts Act.16

1.23Fifthly, and perhaps most importantly of all, there are high principles of access to justice involved here. The citizen should be at the centre of the legislation relating to the courts. The argument here is that the law should be accessible and understandable. A citizen, or increasingly a litigant in person, in considering his or her position has to get a coherent picture of the whole. Under the present courts legislation a citizen has to consult several Acts. A person who is contemplating litigation has to worry about whether he or she has started in the right court; what appeal rights there are to a more senior court (usually under another Act); how and why the various judges are appointed, and the limits of their authority. In short, particularly in the case of civil matters over which that litigant will routinely have a choice of dispute resolution fora, how far, if at all, a litigant would want to entrust his or her affairs to the courts is vastly complicated by the complexities and awkwardness of the legislative scheme that has evolved.

1.24The Commission is not persuaded that the premise of a unitary Courts Act for New Zealand should be abandoned. Under it there would be no diminution of the jurisdiction and constitutional standing of the various courts in New Zealand, whether formally, or by the visceral impact of one statute. A critically important value of access to justice would be enhanced and the utility of the courts legislation improved.

11See Law Commission The Structure of the Courts (NZLC R7, 1989) at 209: “The Judicature Act 1908 is essentially still the 1882 Act with more than 100 years of deletion, addition and amendment. It has long been in need of consolidation. The District Courts Act 1947 has been the subject of a name change, major excision, major grafting and much amendment since it was enacted. … [I]t is appropriate for the 2 statutes to be brought together … we call the single proposed statute the Courts Act.” The President at that time was the Rt Hon Sir Owen Woodhouse. Sian Elias QC was a Commissioner.
12See Law Commission Presentation of Statute Law in New Zealand (NZLC R104, 2008).
13Law Commission Review of the Judicature Act 1908: Towards a consolidated Courts Act (NZLC IP29, 2012).
14Professor Philip Joseph of the Faculty of Law, University of Canterbury raised like concerns in a letter submission to us.
15The jurisdiction of the Crown Court, under s 8 of the Senior Courts Act 1981 (UK), may be exercisable by any judge of the High Court but it is likewise (within the relevant terms) exercisable by any Circuit Judge, Recorder, or District Court Judge (Magistrates Courts).
16We discuss the proposed Register of Pecuniary Interests of Judges Bill in more detail at chapter 6 below.