AWA: Academic Writing at Auckland

For the New Zealand judiciary, it is crucial to develop and apply the common law in a socially appropriate manner. Although international law is non-binding on the judiciary, it provides significant wisdom or insight into issues.[1] Alongside this, adherence to international law is increasingly becoming obligatory, as the world becomes more interconnected. However, it is important to realise areas of international law may not resonate within the New Zealand legal system. Certain ideals may not be culturally appropriate for New Zealand, whilst others go against values upheld within New Zealand society. Therefore, the New Zealand Courts should consider international legal developments seriously, yet should not abandon a domestic sense of law and justice.[2]

Instruments of international law such as treaties, judicial decisions and common law are non-binding on New Zealand Courts. Consequently, international law is only persuasive in value to the New Zealand Courts, unless incorporated by Parliament into legislation. This serves to adhere to democracy, whereby parliament is representational of ‘the people’.[3] Any international agreement signed by the executive will not have immediate legal consequences on the domestic system, demonstrating a safeguard to prevent an abuse of power. However, in light of this, international law provides significant wisdom or insight into issues before the Court and supplements knowledge in areas unfulfilled by the domestic common law. In the case Red Bull New Zealand Limited v Drink Red Limited, Collins JJ references the United States Supreme Court’s decision in Qualitex Co v Jacobson Products Co Inc.,[4] to illustrate “colour alone” trademarks are admissible in certain circumstances.[5] Although the USSC’s decision is non-binding on any New Zealand Court, wisdom is justifiably obtained from an esteemed jurisdiction. Therefore, it is critical for the development of the common law, that international decisions are accounted for. However, it is notably crucial, for the Courts to not act against Parliament’s will. Where Parliament deliberately chooses to not incorporate areas of international law into the domestic framework or to legislate contrary to it, the Courts should recognize this. This is illustrated in the case Hosking v Runting, where Randerson J concludes it is the role of the legislature to develop privacy law, rather than the judiciary.[6] Although there are significant privacy tort developments in America, it is more appropriate in the New Zealand context for the legislature to handle.

In an increasingly interconnected world, there is stronger need to abide by international law. The government is expected to act in a manner which does not breach New Zealand’s international obligations, to prevent consequences for the state. For example, Sovereign Immunity is recognised by New Zealand Courts not because it provides a fair outcome, but because to not recognise immunity would breach New Zealand’s international obligations.[7] Herein, it is important for the Courts to take into account international law when developing and applying the common law. However, there are numerous dangers with adopting an internationalist perspective. Firstly, there is importance in maintaining a self-determined sense of law and justice. Undoubtedly, New Zealand will develop its place within the international framework. However, with the interest of preserving the values intrinsic to New Zealand society, the Courts should not look to develop the common law contrary to these values. Secondly, it must be observed that international law may be flawed in certain areas, or not fully developed. In light of this, the Courts should be cautious before adapting international law into the New Zealand legal system.  The third danger, is the process of adhering to international law by the Courts is undemocratic by nature.[8] This poses a great danger to New Zealand society, because the views and values of those living within New Zealand are not necessarily being enacted.

It is crucial for the Courts to take into account international law when developing and applying the common law. Law from international jurisdictions can enable positive growth for New Zealand law by supplementing areas of uncertainty. However, it must be noted, that certain areas of international law are not suitable in the New Zealand context and therefore the Courts should be hesitant in following other countries’ decisions. As the world increasingly interconnects, it is important for the Courts to adhere to their international obligations, without sacrificing New Zealand’s self-determined law and order.

[1] Alice Osman “Demand Attention: The Roles of Unincorporated International Instruments in Judicial Reasoning” (2014) 12 NZJPIL at 353

[2] Treasa Dunworth “Hidden Anxieties: Customary International Law in New Zealand” (2004) 2 NZJPIL at 79

[3] Osman, above n 1, at 347

[4] Red Bull New Zealand Limited v Drink Red Limited [2016] NZCA 373 at [50] per Collins JJ

[5] At [51] per Collins JJ

[6] Hosking v Runting [2003] 3 NZLR 385 (HC) at [118] per Randerson J

[7] Dunworth, above n 2, at 78

[8] Dunworth, above n 2, at 79