Chapter 1 - The legislative landscape

Objective of this review

Consolidating courts legislation

The ultimate objective of this reference is a consolidation of the legislation relating to the New Zealand trial and appellate courts into one clear, modern and coherent statute. Our aim is to produce a new Courts Bill, which consolidates the provisions of:

  • the District Courts Act 1947;
  • the Supreme Court Act 2003; and
  • the relevant provisions of the Judicature Act 1908.

While this review focusses on reorganisation, modernisation and consolidation, to some extent consolidation and revision go hand in hand. This Issues Paper contains some proposals for legislative change that have arisen during our review or have been brought to our attention. We also discuss some areas relating to all the courts where we consider that the existing legislation does not make adequate provision, such as the process for the appointment of judges. The creation of a consolidated Courts Bill provides an opportunity to deal with such matters.

In terms of proposals for legislative revision, the focus of the discussion in this paper is primarily on the provisions of the Judicature Act 1908. There is some discussion of such provisions in the District Courts Act 1947 and the Supreme Court Act 2003 as have been drawn to our attention by the Chief Justice and the heads of bench. In the next stage of this review, in the course of consolidation, the provisions of the District Courts Act 1947 and the Supreme Court Act 2003 will be further considered by the Commission. We will not publish another Issues Paper in relation to that exercise, but we welcome any views that members of the public or the profession may have about how particular provisions of those statutes should be treated in consolidation.

Commercial provisions

There are a number of miscellaneous provisions of a commercial character which are contained in the Judicature Act 1908. These have been added to the Act by amendments over many years on an ad hoc basis, because no better home could be found for them. In our view those provisions, once reviewed, would either be better located in a new statute of a commercial nature, or retained where they are when the rest of the Act is repealed.

Judicial review

Judicial review is of sufficient importance that we consider it should have its own stand-alone statute, a new Judicial Review (Statutory Powers) Procedure Act. We discuss this further below.

Rules of court

We propose that rule making powers for the District Courts, High Court, Court of Appeal and Supreme Court should be included in a new Courts Bill. However, the High Court Rules should not be a schedule to the new Act. Instead, like the current rules of those other courts, they should be statutory regulations. This raises some difficult issues, which we discuss in chapter 8.