A consolidated Courts Act
Models for structuring the courts legislation
1.4Broadly speaking, there are four possible approaches to the large task of reform invited by the prospect of a Courts Act.
- There could be an individual Act for each of the courts in a given jurisdiction. At a very broad – though incomplete – level, that has been the historic approach taken in New Zealand. It is also an approach which at an earlier time was suggested by the Australian Law Commission as a possible solution to the fragmented nature of the jurisdictional provisions regarding courts there.
- Secondly, there could be a consolidated Act with the jurisdiction and related matters of each court being in individual parts of the Act. Each of the parts could first provide for particular matters relating to a particular court, with each division of the part being exclusively concerned with that court. Variations on this theme are possible: for instance, general provisions relating to judges and appointments and other common matters could be included in a separate part of the Act.
- Thirdly, a consolidated Act could take a “thematic” approach, whereby each part of the Act is concerned with a particular aspect of jurisdiction and the relevant provisions relating to each court contained in the individual division of each part.
- Fourthly, there could be some overlap and combinations of these models. Essentially, New Zealand has presently ended up with a hybrid model in that some courts have their own individual statute – such as the District Courts and the Supreme Court. Others – the High Court and the Court of Appeal – are in one statute that dates back to the English Judicature Act model. But there is some overlap between the Senior Courts in New Zealand, in that all judges from the High Court up, regardless of the particular court, are judges of the High Court.
1.5However a consolidation exercise is to be advanced, it must necessarily provide for the following matters:
- the administration of justice;
- the security of the courts as an independent arm of government;
- the constitution and jurisdiction of the various courts;
- the allocation of jurisdiction between the various courts;
- the management of the courts;
- judges and officers of the courts; and
- appeal rights.
1.6If the exercise is to be done adequately, it must address the following core principles:
- certainty; and