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

• Author: Susan Glazebrook
• Position: DNZM, Judge of the New Zealand Supreme Court
• Pages: 60-81

60

CROSSPOLLINATION OR CONTAMINATION:

GLOBAL INFLUENCE S ON NEW ZEAL AND LAW

S G*

A

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.