Cross-Pollination or Contamination: Global Influences on New Zealand Law

AuthorSusan Glazebrook
PositionDNZM, Judge of the New Zealand Supreme Court
S G*
is article explores three m ain questions. First, how international is our law?
is requires an examination of New Zealand’s international treaty obligations
and their eect on Parliament, the courts and the common law. Other global
inuences discussed include customary international law, model laws that
deal with cross-jurisdictional issues and decisions of foreign courts. Secondly, is
international inuence something new? is paper suggests not. Finally, should
we be worried about global inuence on our legal system? Consideration is given
to alleged dangers faced by parliamentary sovereignty, executive authority and
judicial independence. e paper concludes that, while we can learn from the
world and there are times when international harmonisation is important, we
must be cognisant of Aotearoa New Zealand’s heritage, culture and our unique
legal character.
I. I 
Do global inuences on the New Zealand legal system improve our
law by cross-pollination or do they contaminate our law? Or is the answer
somewhere in-between? is paper examines three main questions: the rst
is how international (or global) our law actually is; the second is whether any
global inuence on our law is something new; t he third is whether we should
be worried about global inuences.
II. H I I O L
I rst examine the va rious international treaties to which New Zea land
is a party and t he eect of these treaties domestically, then customary
international law. e third topic is the model laws that have been developed
* DNZM, Judge of the New Zeala nd Supreme Court. is paper is b ased on an address given
at the University of Ca nterbury, Christchurch, on 7 Augu st 2014, as part of the C anterbury
School of Law’s Supreme Court le cture series. I am g rateful to my clerk, And rew Row, for his
invaluable as sistance with this paper. e vie ws expressed in the paper are my ow n and do
not necessari ly represent those of the Supreme Cour t.
Cross-pollination or contamination 61
in an international context and how they have been applied in New Zea land.
Finally, I examine how decisions of courts from other jurisdictions are used
by New Zealand judges, before coming to a conclusion.
A. New Zealand’s international treaty obligations
According to the Ministr y of Foreign Aairs and Trade’s Treaty website,
as of 30 January 2015, New Zealand is a party to close to 800 multi lateral
and 800 bilateral/plurilateral treaties (including amendment treaties).1 New
Zealand’s international relations involve cooperation on a wide range of
matters; these relationships bear not only on New Zealand’s relationships
with other states2 but also h ave implications for individuals and corporations.3
Some of the topics that are covered by treaties include war and peace,
disarmament and arm s control, international trade, international nance,
international commercial transactions, international communications, the
law of international spaces (for example, the sea, Antarctica and outer space),
the law relating to the environment, human rights and related matters, and
labour c onditions and relat ions.4 is is not meant to be a comprehensive list
of topics but this brief list shows the wide range of subjects that treaties c over.
1. e treaty-mak ing process
So how does New Zealand become bound by international treaties?
Domestic law making is prima rily the role of Parliament. By contrast, as a
part of the royal prerogative, the power to take treat y action rests with the
executive branch, which is generally responsible for New Zealand ’s foreign
aairs. Parliament is not fully excluded from the treaty-making process and,
over the last two decades, cha nges have been made to ensure it is made aware
of important treaties that the executive is considering ratifying.5
Certain treat y actions (those related to multilateral treaties or major
bilateral treaties of particular signica nce) must, after Cabinet’s approval,
1 See Ministr y of Foreign Aair s and Trade [MFAT] “New Zeala nd Treaties Online” available
at . As noted i n the MFAT’s international treaty ma king guide,
given that “many tre aties are only in force for a l imited period of time, New Z ealand has been
party to a lmost twice that number ”: see MFAT “International Treaty M aking: Guidanc e for
government agencies on pr actice and proc edures for concludin g international tr eaties and
arrangeme nts” (September 2012) available at at 3.
2 As a state, New Z ealand is bound by the t reaties it enters into and the obli gations under them
must be performed by Ne w Zealand in good fa ith.
3 G Palmer “Human Right s and the New Zealand Govern ment’s Treaty Obligations” (1999)
29 VUW LR 57. For example, some treaties, su ch as internationa l investment treaties, give
individual s rights too.
4 For an account of New Zeal and’s various international obli gations, see Law Commission A
New Zealand Gui de to International Law and it s Sources (NZLC R34 , 1996).
5 For a history as to t his change, see David Mc Gee Parliamentary Practice in New Zealand (3rd
ed, Dunmore Publi shing Ltd, Wellington, 2005) at 590 –594.

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