AWA: Academic Writing at Auckland

Introduction

The New Zealand legal system is theoretically dualist[1]. This means that international law and domestic law operate separately. However, foreign common law and international instruments are becoming increasingly influential in developing common law[2]. This text will propose two arguments. The first is that currently the extent to which the courts account for foreign common law is sufficient. The second is that international instruments should be considered admissible where it strengthens public policy and human rights arguments.

Common Law of Foreign Jurisdictions

Foreign common law should be considered persuasive where there are gaps in domestic case law. Its importance is exemplified in Hosking v Runting[3]. On appeal, the court considered adopting either the United Kingdom or United States common law approach to privacy protection[4]. Rather than extending the breach of confidence tort to privacy, the Court followed the United States approach[5]. Tipping J reasoned that extending an action for breach of confidence to privacy perverted the scope of the United Kingdom tort[6]. This case illustrates the advantage of using foreign common law as guidance. It enables courts to examine success of a principle and its implications in another jurisdiction. This assists in establishing an effective approach to privacy protection in New Zealand’s legal and socio-political context.

In application, foreign common law strengthens the courts ability to cover untested areas of law. The legislature cannot realistically anticipate every new scenario that may arise with technological advancement and the development of society. C v Holland[7] demonstrates this. In this case, a plaintiff brought a civil claim against the defendant for being covertly video recorded in the shower[8]. Because there was no case law or legislation directly concerning the matter, Whata J transposed the United States tort for intrusion upon seclusion. This shows foreign common law supplementing legislation. This does not contravene parliamentary sovereignty since the legislature can overrule the contradicting principle. Therefore, it is necessary for the courts to apply overseas common law principles.

The current approach that deems foreign common law as persuasive as a guidance tool, is desirable. This is exemplified in Hosking and C v Holland.

Unincorporated International Instruments

While the legal status of foreign common law is clear, this is not the case for international instruments. International instruments, even where unincorporated, are becoming increasingly influential in developing and applying common law. This contradicts New Zealand’s dualist status established in New Zealand Air Line Pilots[9], in which Keith J stated “the stipulations of a treaty ratified by the executive do not by virtue alone have the force of law”[10].

Despite this, instruments concerning human rights should be accounted for where they affirm human rights and public policy.  This upholds New Zealand’s status as a “good international citizen”[11]. It also supports developing values, such as the protection of privacy against intrusion shown in C v Holland[12]. By doing so, the courts were arguably fulfilling arguably the common law’s most essential feature. That is to adapt to “vindicate rights in light of the changing social context”[13].

Alternatively, it could be argued that the influence of international instruments contradicts with parliamentary sovereignty. This is because unincorporated instruments are the prerogative of the executive. Thus, this approach would argue that instruments should not be incorporated without parliament’s consent. But accounting for such instruments need not be ‘unconstitutional’. In Hosking, UNCROC supported the establishment of the privacy tort[14]. This was not unconstitutional, as the argument was not dependent on it. Rather, it strengthened the argument supporting privacy’s growing public value in New Zealand and New Zealand’s international obligations. Thus, provided the courts do not unduly rely on unincorporated international instruments, they should be applied to affirm human rights and public policy.

Conclusion

International law is a valuable tool in the development of New Zealand common law. Foreign common law is useful as a tool of guidance in developing the common law. International instruments can strengthen human rights and social policy arguments in domestic case law without unconstitutional reliance. As such, they should be used to this extent.

[1] Alice Osman “Demanding Attention: The Roles of Unincorporated Instruments in Judicial Reasoning” (2014)

[2] Cabinet Office Cabinet Manual 2008 at 1-6

[3] Hosking v Runting [2005] 1 NZLR 1 (CA)

[4] Ibid.

[5] At [45]

[6] At [245]

[7] C v Holland [2012] NZHC 2155

[8] At [2]

[9] New Zealand Air Line Pilots’ Association Inc v Attorney General [1997] 3 NZLR (CA) at 281.

[10] At [280-281]

[11] Treasa Dunworth “Hidden Anxieties: Customary International Law in New Zealand” (2004) NZJPIL 67

[12] C v Holland, above n 6.

[13] At [75]

[14] Hosking v Runting, above n 3, at [148].