LegalResearchFoundation

The New Zealand Supreme Court has left open the question of whether Parliament can impose legally effective entrenchment on the country's law-making process. The question, even though recognising the law's current ambivalence, can confidently be answered in favour of a New Zealand Parliament having such a future power to impose legally effective manner and form restrictions. Such a position can be persuasively arrived at after considering: the requirements of democracy; the objectives of entrenchment; the experience of the Westminster and New Zealand legislatures; the views of the United Kingdom and New Zealand courts; and the views of commentators. It is suggested that the entrenchment imposed will vary according to what is required to evidence sufficiently the will of the people in each different law-making context. With appropriate statutory amendment, Parliament is likely in the future to be accepted as capable of being defined differently for different purposes.

As I retire after 42 years of academic life at the University of Auckland Faculty of Law, I have been reflecting on the roles and responsibilities of legal academics as active members of our societies. We have a hugely privileged job, being paid (well) to explore the boundaries of knowledge with a high degree of autonomy. That carries with it responsibilities to research, teach and act as public intellectuals so as to advance the wider public good from within universities that historically fulfil a quasi-constitutional function, equivalent to the fourth estate. That aspiration has often not been fulfilled, as elite universities have perpetuated the power relations of patriarchy, race and wealth. But that failure does not negate the importance and value of the aspiration itself.

Despite Australia's proximity and shared common law background, its case law is relatively seldom cited in New Zealand. The same is true of Australian citation of New Zealand case law. Undertaking a new, extensive study, the authors examine trends in citation of United Kingdom, New Zealand and Australian decisions in the New Zealand Law Reports in the 1950s, 1970s, 1990s and 2010s. Across that period the first two have essentially swapped places, suggesting an increased self-confidence in New Zealand's own common law resource. Australian citation, on the other hand, increased slightly in the 1970s and 1990s, before declining slightly. The authors examine areas of New Zealand law where Australian case law has proved more influential, and offer some qualitative explanations for the curious dearth of trans-Tasman citation, and mutual jurisprudential indifference, demonstrated by their quantitative analysis.

This article argues that New Zealand should accede to the Hague conventions on international civil procedure: the Service Convention, the Evidence Convention, the Choice of Court Convention and the Judgments Convention. The article describes the function of the four conventions, summarises the advantages and disadvantages of accession, and supports analysis of the possibility of ratifying and incorporating them into domestic law. It argues that accession to the conventions will bring concrete advantages to participants in the New Zealand justice system that have cross-border disputes, will promote access to justice, and will be consistent with New Zealand's reputation as a member of the international community. Despite competing demands on the Government's time, accession to the conventions should be a priority.