New Zealand Law Case Study

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New Zealand courts should use international law to develop the common law, where there is a lack of understanding in specific areas. Through an increasingly global world, New Zealand is able to compare its own laws with other jurisdictions when attempting to create new common law. Furthermore, international law can aid courts in interpreting certain laws when there is a gap in New Zealand law. Rather than beginning with nothing, international law to offers us a framework for approaching novel situations.
When it comes to common law, New Zealand is a young country and as such has not had the experience to flesh out its laws, unlike other jurisdictions. Hence when cases with new issues are presented to judges, by considering the judgements made
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For the most part, courts will prefer to have something to rely upon – even if it is the decision of a foreign court interpreting a different bill of rights – than to reason from scratch.”#
Baigent’s case clearly shows this, where the issue was whether a breach of the NZBORA by the Crown can be remedied. Remedies were eventually rewarded after citing international law with the judge stating that, “compensation is a standard remedy for human rights violations. There is no reason for New Zealand jurisprudence to lag behind.” # In such cases, international law can help act as a guide when judges have to apply statutes for the first time without precedent from their jurisdiction. Courts can also use International treaties to fill in gaps that are present in the common law. Baigent’s case also shows that international treaties can act as a means of interpreting certain New Zealand statutes. By refusing to grant remedies for its breach of the NZBORA, it would have violated the ICCPR ratified by New Zealand. Moreover, international treaties serve to act as a check against judges when there is no set precedent. As international common law is only persuasive, treaties and other agreement set a standard which can hold judges accountable for their
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It prevents an inward-looking view of the law which would create insularity instead of diversity. Additionally, it gives New Zealand common law a sense of uniqueness which takes into account the culture of New Zealand. Hosking v Runting is an example where Gault J argued for a tort of privacy, citing that “it will allow the law to develop with a direct focus on the legitimate protection of privacy.” # By considering how other jurisdictions handle privacy, a better consensus can be made on the issue that was
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