AWA: Academic Writing at Auckland

1. Introduction 

International common law and legal obligations form two of the threads that contribute to the development and application of the common law within New Zealand.  The issue is how far should this contribution extend?  

It will be argued that international common law should remain a persuasive rather than binding influence upon our legal jurisprudence. In contrast, international obligations should be binding rather than persuasive. These seemingly contrasting positions preserve our parliamentary sovereignty while maintaining legal consistency and predictability with similar overseas legal jurisdictions.  

For the purposes of this discussion, international common law refers to those countries with similar Westminster style governments, and assumes that cases between the different jurisdictions are factually analogous.

International obligations include treaties, conventions, pacts, partnerships, protocols, agreements and other international legal instruments.  Examples include Extradition Treaties, Free Trade Agreements, Covenants on Human Rights and International Health regulations.

II. Binding International Obligations on New Zealand law

International obligations do not become binding upon New Zealand until they are ratified by our Parliament.  This approach upholds parliamentary sovereignty, and allows intended legislation to be subject to the legislative process.  The resulting legislation therefore has the opportunity to reflect the nation’s value structure through parliamentary debate and community submission.  The ratified obligation becomes binding upon the Courts, government and private entities.  This process permits New Zealand to legitimately and constantly maintain its international obligations through domestic legislation.

III. International Common Law Should Remain Persuasive Rather Than Binding

Courts need not reinvent the wheel.  When New Zealand courts are assisted in their approach from international common law, there is greater predictability of outcome, international legal consistency and stronger, more resilient jurisprudence.  A persuasive rather than binding approach maintains the parliamentary sovereignty over national legislation and allows national superior court decisions to remain binding upon lower courts.  

The High Court decision of Hosking v Runting[1] discussed the tort of privacy in the United Kingdom, Australia and North America, summarized their respective positions[2] and concluded in contrast to the United States, that there should not be a tort of privacy[3]. This approach was upheld by a full bench of the Court of Appeal[4].

IV. Binding International Laws – The Negatives

For laws to be respected they should be a reflection of the values of the community they seek to control.  To impose another nation’s laws be they common law or international obligation, in a binding fashion upon New Zealand fails to recognise the social, economic and political values of New Zealanders.  For instance, the strong social belief held by many in Saudi Arabia that women’s driving is hazardous or morally ruinous prohibits women from obtaining driving licences.  Such a rule in New Zealand would not be respected and would be an inappropriate amendment to New Zealand’s Land Transport Act.  

The Need to Uphold Parliamentary Sovereignty

The government is accountable to the public at each election.  Each piece of legislation is subject to the scrutiny of parliament during the debated readings of proposed legislation and influenced by the community through subcommittee submission.  Parliament and its processes have evolved through the centuries and are justifiably sovereign in a democratic society.  Binding international laws to New Zealand would compromise the sovereignty of Parliament.

A Judiciary With Too Much Power

Permitting international common law to become binding upon New Zealand courts will inflate the power of the judiciary both within New Zealand and without.  Jurists from other countries would have untamed influence over the interpretation of our laws.  Not all international courts are consistent with each other.  Such an approach would lead to uncertainty of outcome. 

The New Zealand judiciary are appointed not elected.  They hold tenure until the age of 65.  If international common law was binding upon New Zealand courts, the judiciary would be able to revise the law without legislative intervention nor public accountability for the duration of their tenure.

V. Conclusion

The development and application of our common law is enhanced by maintaining the persuasive value of international common law and the binding ratification of international obligations. This approach ensures parliamentary sovereignty and appropriate judicial authority while at the same time providing laws and jurisprudence that reflects New Zealand social, economic and political values.  To take a contrary approach would undermine parliamentary accountability and faith in our judicial system.

[1] Hosking v Runting HC Auckland CP527/02, 26, 27 February; 30 May 2003 [2003] 3 NZLR 385

[2] para [114]

[3] para [118] 

[4] Hosking v Runting New Zealand Court of Appeal 25 March 2004 [2004] NZCA 34