New Zealand 1852 (rev. 2014) Subsequently amended

Legislature Act 1908

Preamble

An Act to consolidate certain enactments of the General Assembly relating to the Legislature of New Zealand

1. Short Title, etc

1. The Short Title of this Act is the Legislature Act 1908.

2. This Act is a consolidation of the enactments mentioned in Schedule 1, and with respect to those enactments the following provisions shall apply:

  1. a. all districts, appointments, offices, Representation Commissioners, Proclamations, Orders in Council, orders, warrants, regulations, rules, rolls, lists, electors’ rights, voting permits, claims, applications, declarations, notices, instruments, records, and generally all acts of authority which originated under any of the said enactments or any enactment thereby repealed, and are subsisting or in force on the coming into operation of this Act, shall enure for the purposes of this Act as fully and effectually as if they had originated under the corresponding provisions of this Act, and accordingly shall, where necessary, be deemed to have so originated.
  2. b. all matters and proceedings commenced under any such enactment, and pending or in progress on the coming into operation of this Act, may be continued, completed, and enforced under this Act.

3. This Act is divided into Divisions and Parts, as follows:

  • Division I—The Legislative Council. (Sections 2 to 11.)
  • Division II—The House of Representatives. (Sections 12 to 241.)
  • Part 1—Constitution of House. (Sections 13 to 34.)
  • Part 2—Preliminary to the Election. (Sections 35 to 96.)
  • Part 3—Regulation of Elections. (Sections 97 to 179.)
  • Part 4—Maori Representation. (Sections 180 to 187.)
  • Part 5—Election Petitions and Corrupt and Illegal Practices. (Sections 188 to 232.)
  • Part 6—Miscellaneous. (Sections 233 to 241.)
  • Division III—Privileges of Parliament. (Sections 242 to 271.)
  • Division IV—Private, Local, and Private Estates Bills. (Sections 272 to 284.)

4. In this Act, if not inconsistent with the context,—

  • Member of Parliament means member of the House of Representatives
  • Parliament, when used alone, means the General Assembly.

Division I. The Legislative Council

2-11. [Repealed]

Division II

12-241. [Repealed]

Division III. Privileges of Parliament

A. Privileges generally

242. Privileges of House of Representatives. Journals as evidence

1. The House of Representatives and the Committees and members thereof shall hold, enjoy, and exercise such and the like privileges, immunities, and powers as on 1 January 1865 were held, enjoyed, and exercised by the Commons House of Parliament of Great Britain and Ireland, and by the Committees and members thereof, so far as the same are not inconsistent with or repugnant to such of the provisions of the Constitution Act as on 26 September 1865 (being the date of the coming into operation of the Parliamentary Privileges Act 1865) were unrepealed, whether such privileges, immunities, or powers were so held, possessed, or enjoyed by custom, statute, or otherwise.

2. Such privileges, immunities, and powers shall be deemed to be part of the general and public law of New Zealand, and it shall not be necessary to plead the same, and the same shall be judicially taken notice of in all Courts and by and before all Judges.

3. Upon any inquiry touching the privileges, immunities, and powers of the said House of Representatives, or of any Committee or member thereof, a copy of the Journals of the said Commons House of Parliament, printed or purporting to be printed by order of the said Commons House of Parliament by the printer to the said Commons House, shall be admitted as evidence of such Journals by all Courts, Judges, Justices, and others without any proof being given that such copies were so printed.

243-251. [Repealed]

B. Parliamentary witnesses

252. Right to administer oaths

The House of Representatives and any Committee of such House may respectively administer an oath to any witness examined before such House or Committee; and any person examined as aforesaid who wilfully gives false evidence is liable to the penalties of perjury.

253. Indemnity to witness. Immunities and privileges

1. Where any person sworn and examined as a witness by or before any Select Committee of the House of Representatives on any matter which is a subject of inquiry before such Committee, claims, upon such examination, excuse from answering any question put to him by any such Committee on the ground that the answer to such question may criminate or tend to criminate him, and the Committee is of opinion that full answers are required in order to enable it to deal satisfactorily with the matter under inquiry, it shall make a report thereof to the House, and if such House passes a resolution that the witness shall give full evidence, then such witness shall answer accordingly.

2. Every such witness who thereupon answers fully and faithfully any question put to him by the Committee to the satisfaction of such Committee shall be entitled to receive a certificate under the hand of the Chairman of the Committee stating that such witness was, upon his examination, so required to answer and had answered all such questions.

3. On production and proof in any Court of law of such certificate, the Court shall stay the proceedings in any action or prosecution against such witness for any act or thing done by him before that time and revealed by the evidence of such witness, and may at its discretion award to such witness such costs as he may have been put to.

4. No statement made by any person in answer to any question put by or before any Committee as aforesaid shall, except in cases of a charge of perjury, be admissible as evidence in any proceeding, civil or criminal.

5. Every witness sworn and examined under this or the last preceding section shall have, in respect of the testimony given by him when so sworn, the like privileges, immunities, and indemnities in all respects as are possessed by or belong to any witness sworn and examined in the High Court.

C. Hansard

253A. Hansard

1. An official report (to be known as Hansard) shall be made of such portions of the proceedings of the House of Representatives and its committees as may be determined by the House of Representatives or by the Speaker of the House of Representatives.

2. The report shall be made in such form and subject to such rules as may be from time to time approved by the House of Representatives itself or by the Speaker of the House of Representatives.

D. Other privileges

254-256. [Repealed]

257. Interpretation. Exemption of members and officers from attendance as witnesses

1. In this and the succeeding sections of this Division of this Act—

  • Court of record means the Court of Appeal, the High Court, and every District Court
  • process includes every writ, summons, and subpoena
  • Speaker includes the person for the time being acting in that capacity.

2. Where any member of Parliament or any of the officers specified in Schedule 6, not being in attendance on Parliament, is required by the process of any Court of record to attend thereat personally, either during any session of the General Assembly or within 10 days before the commencement thereof, as a party or witness in any civil proceeding, or as a witness in any criminal proceeding, such member or officer may apply to such Court to be exempted from attendance on such Court.

258. Exemption of members and officers bound by recognisance

[Repealed]

259. Court to make inquiry and grant exemption

On any such application for an exemption from attendance being made to any such Court as aforesaid, or to any Judge thereof, unless it appears to the satisfaction of the Court or Judge that the ends of public justice would be defeated or injuriously delayed or irreparable injury would be caused to any party to the proceedings by the non-attendance of such member or officer in obedience to such process or in pursuance of such process, the Court or Judge shall order that such member or officer shall be discharged from attendance in obedience to such process until the expiration of 10 days after the termination of the session of the General Assembly in respect of which such exemption is claimed, and may make order for the attendance of such member or officer at the sitting of such Court at such future date after the expiration of such 10 days as such Court or Judge thinks fit.

260. Exemption of Speaker from attendance on Courts

Where the Speaker of the House of Representatives, being in attendance on Parliament, is required by the process of any Court to attend thereat personally either as a party or a witness in any civil proceeding, or as a witness in any criminal proceeding, he shall submit the matter to the House of Representatives and such order may be made thereon as the House thinks fit; and if it is resolved that the Speaker shall be exempted from attendance, such resolution shall be presented in like manner and shall have the same effect as the certificate mentioned in section 263 in respect of any other member not being a Speaker:

provided that if the House is under adjournment, and it is necessary to act without delay, the Speaker whose attendance is required may sign a certificate to the like effect as is hereinafter provided in the said section in respect of any other member not being a Speaker, but such certificate shall remain in force only until the matter is submitted by the Speaker at the first convenient opportunity to the House, and order is made thereon.

261. Application to Speaker for exemption from attendance in civil Courts

Where any member of Parliament (other than the Speaker thereof) or any such officer as aforesaid, being in attendance on Parliament, is required by the process of any Court to attend thereat personally as a party or witness in any civil proceeding, or as a witness in any criminal proceeding, such member or officer may apply to the Speaker or Acting Speaker of the House to be exempted from such attendance on such Court.

262. Application by members and officers bound by recognisance

[Repealed]

263. Speaker to make inquiry and grant certificate

On any such application to a Speaker or Acting Speaker as aforesaid, unless it appears to his satisfaction, on such inquiry as he thinks fit to make into the circumstances of the case, that the ends of public justice would be defeated or injuriously delayed, or that irreparable injury would be caused to any party to the proceedings by the non-attendance of such member or officer in obedience to such process, such Speaker or Acting Speaker shall grant a certificate under his hand to the effect that the attendance in the General Assembly of the member or officer therein named is required during the session.

264. Effect of certificate

On such certificate being presented to the Court in which the attendance of such member or officer is required he shall be thereby exempted from attending therein until 10 days after the termination of the session then being held; and no proceedings, civil or criminal, shall be taken against such member or officer in respect of his non-attendance in obedience to such process, and the Court shall direct such postponement of trial or other proceedings, and make such order as it deems convenient and just, regard being had to such exemption as aforesaid.

265. Adjournment of civil proceedings against members and officers

Where any civil proceedings are pending in any Court of record against any such member or officer as aforesaid, and such proceedings are set down for trial or hearing, or are likely in the ordinary course to come on for trial or hearing, at a sitting of any such Court to be held within the period extending from 10 days before the holding of any session of the General Assembly, to 30 days after the termination of the said session, such member or officer may obtain an adjournment or appointment of such trial or hearing to some day later than the period of 30 days last mentioned, upon the conditions following:

  1. a. where such member or officer is not in attendance on Parliament, and the proceedings are likely to come on or are set down for trial or hearing at a sitting of any such Court to be held within 10 days before the commencement of the session or during such session, such member or officer shall make application to the Court in which such proceedings are pending for an adjournment or appointment of such trial or hearing to some day beyond the period of 30 days after the end of such session, accompanying such application with an affidavit made by such member or officer that he has been summoned to attend in his place in Parliament, and that it is necessary that opportunity should be afforded him of being personally present at the trial or hearing of such proceedings, and that his attendance on Parliament will prevent his being able so to be present on such trial or hearing:
  2. b. where such member or officer is in attendance on Parliament, and such proceedings are likely to come on or are set down for trial or hearing at a sitting of such Court to be held at any time during a session of Parliament or within 30 days thereafter, then such member or officer shall apply to the Speaker of the House of Representatives for a certificate entitling him to an adjournment of such trial or hearing, whereupon the following provisions shall apply:
    1. i. such application shall be supported by an affidavit made by such member or officer, and delivered to the Speaker, that such proceedings are likely to come on or are set down for trial or hearing at a sitting of such Court to be held during such session or within 30 days thereafter, and that the personal attendance of such member or officer at such trial or hearing is necessary for his interest:
    2. ii. the Speaker shall, after making inquiry in manner provided by section 263, and unless satisfied that irreparable injury would be caused to any party to such proceedings if the trial or hearing thereof was postponed, forward such affidavit, together with a certificate in terms of the said section, to the Court in which such proceedings are pending.

266. Court may make inquiry and adjourn case

The Court in which such civil proceedings are pending shall, in either of the cases referred to in the last preceding section, cause the trial or hearing of such proceedings to be adjourned without cost to such member or officer, from time to time, to some sitting of the Court to be held after the expiration of 30 days after the termination of the session: provided that in the case referred to in paragraph (a) of the said last preceding section, the Court may make the same inquiries as the Speaker of the House of Representatives is required to make under the said section 263, and shall not be bound to adjourn or postpone the trial or hearing if it is satisfied that irreparable injury would be caused to any party to such proceedings by such adjournment or postponement.

267. Service of process of Courts not of record

If any person serves or causes to be served any summons or process issued out of any Court not of record (other than a summons or warrant on a charge of any offence), upon or for any such member or officer as aforesaid by sending, leaving, or delivering the same in any way which would otherwise be good service by law, during any session of the General Assembly, or within 10 days before the commencement or 10 days after the termination of such session, such service shall be invalid and of no effect.

268. Court to take judicial notice of signature of Speaker

It shall be the duty of all Courts, Judges, and Justices, and all other persons, to take judicial notice of the signatures of the Speaker or Acting Speaker of the House of Representatives when affixed to any such certificate as aforesaid.

269. Leave to members and officers to attend Court

Nothing in this Act shall be construed to limit or abridge in any respect the power of the House of Representatives to give leave to any of the members or officers of the House of Representatives to attend any Court in respect of which it appears desirable to the House of Representatives that such leave should be granted:

provided that any member of the House of Representatives having obtained leave of absence without any reference to the process of any Court shall, so far as regards any Court not being a Court of record, but not as regards a Court of record, be considered as in attendance upon his duties in Parliament.

270. [Repealed]

271. [Repealed]

Division IV. Private, local, and private estates bills

272-284. [Repealed]

Schedule 1. Enactments consolidated

Alcoholic Liquors Sale Control Act Amendment Act 1895 (1895 No 45) - Amendment(s) incorporated in the Act(s).

Disqualification Act 1878 (1878 No 30)

Electoral Act 1893 (1893 No 18)

Electoral Act 1905 (1905 No 29)

Legislative Council Act 1891 (1891 No 25)

Legislative Council Act Amendment Act 1902 (1902 No 50)

Legislative Officers’ Salaries Act 1867 (1867 No 85)

Legislative Officers’ Salaries Act Amendment Act 1906 (1906 No 54)

Licensing Acts Amendment Act 1904 (1904 No 42) - Amendment(s) incorporated in the Act(s).

Parliamentary and Executive Titles Act 1907 (1907 No 50) - Amendment(s) incorporated in the Act(s).

Parliamentary Privileges Act 1865 (1865 No 13)

Parliamentary Privileges Act 1865 Amendment Act 1875 (1875 No 20)

Parliamentary Witnesses Indemnity Act 1883 (1883 No 3)

Payment of Members Act 1904 (1904 No 24)

Private and Local Bills Costs Act 1882 (1882 No 24)

Private Estates Bills Act 1867 (1867 No 17)

Privileges Act 1866 (1866 No 73)

Privileges Act 1866 Amendment Act 1872 (1872 No 73)

Privileges Act 1866 Amendment Act 1878 (1878 No 16)

Public Service Classification Act 1907 (1907 No 55) - Amendment(s) incorporated in the Act(s).

Statute Law Amendment Act 1906 (1906 No 58) - Amendment(s) incorporated in the Act(s).

Schedule 2

[Repealed]

Schedule 3

[Repealed]

Schedule 4

[Repealed]

Schedule 5

[Repealed]

Schedule 6

A. HOUSE OF REPRESENTATIVES

The Clerk of the House of Representatives.

The Deputy Clerk of the House of Representatives.

The Sergeant-at-Arms.

The Clerk Assistant of the House of Representatives.

Schedule 7

[Repealed]

Amendment Act 1. Legislature Amendment Act 1992

Public Act: 1992 No 106

Date of assent: 26 November 1992

Commencement: 1 February 1993

1. Short Title and commencement

1. This Act may be cited as the Legislature Amendment Act 1992, and shall be read together with and deemed part of the Legislature Act 1908.

2. This Act shall come into force on 1 February 1993.

2. Interpretation

In this Act, unless the context otherwise requires,—

  • authorised Parliamentary paper means a Parliamentary paper published by order or under the authority of the House of Representatives
  • Parliamentary paper means any report, paper, votes, or proceedings.

3. Act to bind the Crown

This Act binds the Crown.

4. Stay of proceedings where publication made by order of House of Representatives

1. Where any proceedings (whether civil or criminal) are commenced against any person in respect of the publication, by that person or that person’s employee, by order or under the authority of the House of Representatives, of any Parliamentary paper, that person may, subject to subsections (2) and (3), produce to the Court a certificate signed by the Speaker of the House of Representatives stating that the Parliamentary paper in respect of which the proceedings are commenced was published, by that person or that person’s employee, by order or under the authority of the House of Representatives.

2. No certificate may be produced to any Court under subsection (1) unless the person seeking to produce it has given to the plaintiff or prosecutor in the proceedings, or to the plaintiff’s or prosecutor’s solicitor, at least 24 hours’ notice of that person’s intention to do so.

3. Every certificate produced under subsection (1) shall be accompanied by an affidavit verifying the certificate.

4. Where a certificate is produced to any Court in accordance with subsections (1) to (3), the Court shall immediately stay the proceedings, and the proceedings shall be deemed to be finally determined by virtue of this section.

5. Stay of proceedings in respect of copy of Parliamentary paper

1. Where any proceedings (whether civil or criminal) are commenced in respect of the publication of a copy of an authorised Parliamentary paper, the defendant in those proceedings may, at any stage of the proceedings, produce to the Court the authorised Parliamentary paper and the copy, together with an affidavit verifying the authorised Parliamentary paper and the correctness of the copy.

2. Where, in any proceedings, the defendant produces the documents required by subsection (1), the Court shall immediately stay the proceedings, and the proceedings shall be deemed to be finally determined by virtue of this section.

Judicature Act 1908

Preamble

An Act to consolidate certain enactments of the Parliament of New Zealand relating to the High Court and the Court of Appeal, and to certain rules and provisions of law in judicial matters generally

1. Short Title, etc

1. The Short Title of this Act is the Judicature Act 1908.

2. This Act is a consolidation of the enactments mentioned in Schedule 1.

3. Without affecting the specific saving provisions of this Act, it is hereby declared as follows:

  1. a. all Proclamations, Orders in Council, districts, offices, appointments, commissions, patents, scales of fees, rules, regulations, orders, registers, records, instruments, and generally all acts of authority which originated under any of the enactments mentioned in Schedule 1 or any enactment thereby repealed, and are subsisting or in force on the coming into operation of this Act, shall enure for the purposes of this Act as fully and effectually as if they had originated under the corresponding provisions of this Act, and accordingly shall, where necessary, be deemed to have so originated:
  2. b. all actions, matters, and proceedings commenced under any such enactment, and pending or in progress on the coming into operation of this Act, may be continued, completed, and enforced under this Act.

4. This Act is divided into Parts, as follows:

  • Part 1: The High Court. (Sections 3 to 56.)
  • Part 1A: Special provisions applying to certain proceedings in the High Court and the Federal Court of Australia. (Sections 56D to 56S.)
  • Part 2: The Court of Appeal. (Sections 57 to 75.)
  • Part 3: Rules and provisions of law in judicial matters generally. (Sections 76 to 101.)

2. Interpretation

In this Act, unless the context otherwise requires,—

  • Associate Judge means an Associate Judge of the High Court
  • Chief High Court Judge—
    1. a. means the person holding that office under section 4A; and
    2. b. includes a Judge of the High Court acting in place of the Chief High Court Judge under section 4A(5)
  • civil proceedings means any proceedings in the court, other than criminal proceedings
  • court means the High Court of New Zealand
  • Court of Appeal Rules means rules which are made under section 51C and which regulate the practice and procedure of the Court of Appeal (including the practice and procedure on civil appeals from any court or person to the Court of Appeal); and includes the Court of Appeal (Civil) Rules 2005
  • defendant means a person served or intended to be served with any application to the court for the exercise of its civil or criminal jurisdiction
  • existing means existing on the coming into operation of this Act
  • High Court Rules means the rules from time to time set out in Schedule 2
  • inferior court means any court of judicature within New Zealand of inferior jurisdiction to the High Court
  • interlocutory application—
    1. a. means any application to the court in any civil proceedings or criminal proceedings or intended civil proceedings or intended criminal proceedings for an order or a direction relating to a matter of procedure or, in the case of civil proceedings, for some relief ancillary to that claimed in a pleading; and
    2. b. includes an application for a new trial; and
    3. c. includes an application to review an order made, or a direction given, on any application to which paragraph (a) or paragraph (b) applies
  • Judge means a Judge of the High Court
  • judgment includes decree
  • medical practitioner means a health practitioner who is, or is deemed to be, registered with the Medical Council of New Zealand continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of medicine
  • plaintiff means a person who makes an application (other than an interlocutory application) to the court for the exercise of its civil or criminal jurisdiction
  • Supreme Court means the Supreme Court of New Zealand established by section 6 of the Supreme Court Act 2003.

Part 1. The High Court

A. Constitution of the court

3. Supreme Court reconstituted as High Court

1. There shall continue to be in and for New Zealand a court of record, for the administration of justice throughout New Zealand, henceforth to be called the High Court of New Zealand.

2. The High Court is hereby declared to be the same court as that established by this Act, and called, before the commence- ment of section 2 of the Judicature Amendment Act 1979, the Supreme Court.

4. The Judges of the High Court

1. The High Court consists of—

  1. a. a Judge called the Chief Justice of New Zealand; and
  2. b. the other Judges, up to a maximum of 55, who are from time to time appointed.

1A. For the purposes of subsection (1)(b),—

  1. a. a Judge who is acting on a full-time basis counts as 1:
  2. b. a Judge who is acting on a part-time basis counts as an appropriate fraction of 1:
  3. c. the aggregate number (for example, 54.5) must not exceed the maximum number of Judges that is for the time being permitted.

1B. Subsection (1) is subject to subsections (1C) and (1D) and the other provisions of this Act.

1C. An additional Judge or additional Judges may be appointed whenever the Governor-General thinks it necessary because of the absence or anticipated absence of any of the Judges on leave preliminary to retirement.

1D. Every appointment made under subsection (1C) must be a permanent appointment from the time when it is made, and must fill the vacancy next occurring in the office of Judge, not being a vacancy filled by an earlier appointment under subsection (1C).

2. The Judges of the High Court shall be appointed by the Governor-General in the name and on behalf of Her Majesty.

2A. A Judge must not undertake any other paid employment or hold any other office (whether paid or not) unless the Chief High Court Judge is satisfied that the employment or other office is compatible with judicial office.

3. As between the Judges of the High Court who are not Judges of the Supreme Court or Court of Appeal,—

  1. a. the Chief High Court Judge has seniority over the other Judges:
  2. b. the other Judges have seniority among themselves according to the dates of their appointments as Judges of the High Court:
  3. c. 2 or more of the other Judges appointed as Judges of the High Court on the same date,—
    1. i. have seniority according to the precedence assigned to them by the Governor-General on appointment; or
    2. ii. if no precedence is assigned to them, according to the order in which they take the Judicial Oath.

3A. Permanent Judges have seniority over temporary Judges.

3B. Subsection (3A) overrides subsection (3).

4. The jurisdiction of the High Court shall not be affected by any vacancy in the number of the Judges of that court.

4A. Chief High Court Judge

1. The Governor-General must by warrant appoint a Judge of the High Court who is not a Judge of the Supreme Court or the Court of Appeal to be the Chief High Court Judge.

2. The Chief High Court Judge holds that office until the earliest of the following:

  1. a. ceasing to hold office as a Judge of the High Court:
  2. b. being appointed a Judge of the Supreme Court or the Court of Appeal:
  3. c. resigning the office of Chief High Court Judge without resigning office as a Judge of the High Court.

3. The Chief High Court Judge cannot resign the office of Chief High Court Judge without resigning office as a Judge of the High Court, except with the prior approval of the Governor-General.

4. The Judge of the High Court who is next senior after the Chief High Court Judge may act in place of the Chief High Court Judge if,—

  1. a. because of illness or absence from New Zealand, or for any other reason, the Chief High Court Judge is unable to exercise the duties of that office; or
  2. b. the office of Chief High Court Judge is vacant.

5. While acting in place of the Chief High Court Judge, the next senior Judge—

  1. a. may perform the functions and duties of the Chief High Court Judge; and
  2. b. may for that purpose exercise all the powers of the Chief High Court Judge.

6. The fact that the next senior Judge exercises any of the powers of the Chief High Court Judge is conclusive proof of his or her authority to do so.

4B. Functions of Chief High Court Judge

1. The Chief High Court Judge is responsible to the Chief Justice for ensuring the orderly and prompt conduct of the High Court’s business.

2. The Chief High Court Judge may make all the arrangements that are necessary for the sittings of the court and the conduct of its business.

4C. Judges of High Court act on full-time basis but may be authorised to act part-time

1. A person acts as a Judge of the High Court on a full-time basis unless he or she is authorised by the Attorney-General to act on a part-time basis.

2. The Attorney-General may, in accordance with subsection (4), authorise a Judge appointed under section 4 or section 4A to act on a part-time basis for any specified period.

3. To avoid doubt, an authorisation under subsection (2) may take effect as from a Judge’s appointment or at any other time, and may be made more than once in respect of the same Judge.

4. The Attorney-General may authorise a Judge to act on a parttime basis only—

  1. a. on the request of the Judge; and
  2. b. with the concurrence of the Chief High Court Judge.

5. In considering whether to concur under subsection (4), the Chief High Court Judge must have regard to the ability of the court to discharge its obligations in an orderly and expeditious way.

6. A Judge who is authorised to act on a part-time basis must resume acting on a full-time basis at the end of the authorised part-time period.

7. The basis on which a Judge acts must not be altered during the term of the Judge’s appointment without the Judge’s consent, but consent under this subsection is not necessary if the alteration is required by subsection (6).

8. An authorisation may not be granted under subsection (2) for any person appointed as a Judge of the Court of Appeal or Supreme Court.

5. Senior Judge to act as Chief Justice in certain circumstances

[Repealed]

6. Judges to be barristers or solicitors

No person shall be appointed a Judge unless he has held a practising certificate as a barrister or solicitor for at least 7 years.

7. Commissions of Judges to continue during good behaviour

[Repealed]

8. Judges may be removed or suspended on address of both Houses of Assembly to the Queen

[Repealed]

9. Governor may suspend Judge when Parliament not sitting

[Repealed]

9A. Salaries and allowances of Judges

1. There shall be paid to the Chief Justice, to the other Judges of the Supreme Court, to the President of the Court of Appeal, to the other Judges of the Court of Appeal, and to the other Judges, out of public money, without further appropriation than this section,—

  1. a. salaries at such rates as the Remuneration Authority from time to time determines; and
  2. b. such allowances as are from time to time determined by the Remuneration Authority; and
  3. ba. a higher duties allowance payable and calculated in accordance with subsection (1A); and
  4. c. such additional allowances, being travelling allowances or other incidental or minor allowances, as may be determined from time to time by the Governor-General.

1A. The higher duties allowance under subsection (1)(ba) is—

  1. a. payable only to a Judge who—
    1. i. is or was not a Judge of the Court of Appeal holding office under section 57(2) (in this subsection called a permanent Judge); but
    2. ii. is or was under sections 58A to 58C or section 58F serving as a member of a criminal or civil division, or as a member of the full court, of the Court of Appeal; and
  2. b. payable only in respect of periods of the Judge’s service as a member of the division or full court; and
  3. c. calculated at a rate expressed per day of service as a member of the division or full court in accordance with the following formula:
  4. (a − b) × c/d
  5. where—
    • a is the applicable yearly rate of salary determined by the Remuneration Authority to be payable to a permanent Judge
    • b is the applicable yearly rate of salary determined by the Remuneration Authority to be payable to a Judge who is not a permanent Judge
    • c is 0.0383561 (the standard payroll factor, which represents the proportion of an annual salary that is paid per fortnight)
    • d is 10 (the number of working days per fortnight).

2. Subject to the Remuneration Authority Act 1977, any determination made under subsection (1), and any provision of any such determination, may be made so as to come into force on a date to be specified in that behalf in the determination, being the date of the making of the determination or any other date, whether before or after the date of the making of the determination or the date of the commencement of this section.

3. Every such determination, and every provision of any such determination, in respect of which no date is specified as afore- said shall come into force on the date of the making of the determination.

4. The salary and allowances payable for a period during which a Judge acts on a part-time basis must be calculated and paid as a pro rata proportion of the salary and allowances for a full-time equivalent position.

5. For the purpose of section 24 of the Constitution Act 1986, neither the cessation of the payment of a higher duties allowance payable and calculated under subsections (1)(ba) and (1A), nor the payment of salary and allowances on a pro rata basis under subsection (4), is a reduction of salary.

10. Salaries of Judges not to be diminished

[Repealed]

11. Temporary Judges

1. Subject to section 11B, at any time during the illness or absence of any Judge, or for any other temporary purpose, the Governor-General may, in the name and on behalf of Her Majesty, appoint any person (including a former Judge) to be a Judge for such term, not exceeding 12 months, as the Governor-General may specify.

2. Any person appointed a Judge under this section may be reappointed, but no Judge shall hold office under this section for more than 2 years in the aggregate.

3. Every person appointed a Judge under this section shall, during the term of his appointment, be paid the salary and allowances payable by law to a Judge other than the Chief Justice, the other Judges of the Supreme Court, the President of the Court of Appeal, the other Judges of the Court of Appeal, or the Chief High Court Judge.

11A. Former Judges

1. Subject to section 11B, the Governor-General may, in the name and on behalf of Her Majesty, appoint any former Judge to be an acting Judge for such term not exceeding 2 years or, if the former Judge has attained the age of 72 years, not exceeding 1 year, as the Governor-General may specify.

2. During the term of his appointment, the former Judge may act as a Judge during such period or periods only and in such place or places only as the Chief High Court Judge may determine.

3. Every former Judge appointed under this section shall, during each period when he acts as a Judge, but not otherwise, be paid a salary at the rate for the time being payable by law to a Judge other than the Chief Justice or the President of the Court of Appeal or a Judge of the Court of Appeal, and must also be paid the higher duties allowance payable and calculated under section 9A(1)(ba) and (1A) and such travelling allowances or other incidental or minor allowances as may be fixed from time to time by the Governor-General.

4. Every former Judge appointed under this section shall, during each period when he acts as a Judge, have all the jurisdiction, powers, protections, privileges, and immunities of a Judge.

11B. Certificate by Chief Justice and Chief High Court Judge

No appointment may be made under section 11 or section 11A except on a certificate signed by the Chief Justice and the Chief High Court Judge to the effect that, in their opinion, it is necessary for the due conduct of the court’s business that 1 or more temporary Judges, or (as the case may require) for 1 or more acting Judges, to be appointed.

12. Superannuation allowance of Judges

[Repealed]

13. Age of retirement

Every Judge, other than a former Judge appointed under section 11 or section 11A or a person who is deemed by section 58(10) to be a Judge, shall retire from office on attaining the age of 70 years.

14. Rights on retirement before attaining retiring age

If the Chief Justice or the President of the Court of Appeal resigns from office before attaining the age of 70 years and is, at the time of his or her resignation and but for the fact of his or her resignation, entitled to a period of leave of absence, he or she shall continue to receive the salary, privileges, and allowances of his or her former office until the expiration of that period or until he or she attains the age of 70 years or until he or she dies, whichever is the sooner, and his or her rights and obligations under the Government Superannuation Fund Act 1956 and all the rights which his or her surviving wife, husband, civil union partner, or de facto partner may have under that Act shall be the same as they would have been if he or she had been in office while his or her salary, privileges, and allowances so continued.

15. How superannuation allowances of the existing Judges to be computed

[Repealed]

B. Jurisdiction of the court

16. General jurisdiction

The court shall continue to have all the jurisdiction which it had on the coming into operation of this Act and all judicial jurisdiction which may be necessary to administer the laws of New Zealand.

16A. Power to award damages as well as, or in substitution for, injunction or specific performance

Where the court has jurisdiction to entertain an application for an injunction or specific performance, it may award damages in addition to, or in substitution for, an injunction or specific performance.

17. Jurisdiction as to mentally disordered persons, etc

The court shall also have within New Zealand all the jurisdiction and control over the persons and estates of mentally disordered persons, and persons of unsound mind, and over the managers of such persons and estates respectively, as the Lord Chancellor of England, or any Judge or Judges of Her Majesty’s High Court of Justice or of Her Majesty’s Court of Appeal, so far as the same may be applicable to the circumstances of New Zealand, has or have in England under the Sign-manual of Her Majesty or otherwise.

17A. Jurisdiction as to liquidation of associations

1. In this section, association includes any partnership, company, or other body corporate, or unincorporated body of persons other than—

  1. a. a company or an overseas company, as defined in section 2 of the Companies Act 1993; or
  2. b. [Repealed]
  3. c. a body corporate that may be put into liquidation in accordance with the provisions of any Act under which it is constituted.

2. The court has jurisdiction to appoint a named person or an Official Assignee for a named district as the liquidator of an association.

3. An application for the appointment of a liquidator may be made by the association or a director or member or creditor or the Registrar of Companies.

4. The court may appoint a liquidator if it is satisfied that—

  1. a. the association is dissolved or has ceased to carry on business or is carrying on business solely for the purpose of terminating its affairs; or
  2. b. the association is unable to pay its debts; or
  3. c. it is just and equitable that the association be put into liquidation.

17B. Application of Companies Act 1993

Part 16 of the Companies Act 1993 (except sections 241(1) to (4) and 268) shall apply, with such modifications as may be necessary, in relation to the liquidation of an association and as if references to—

  1. a. a company registered under that Act included a reference to an association:
  2. b. a director included references to any person occupying the position of director by whatever name called:
  3. c. shareholders or persons entitled to surplus assets under the constitution of a company and the Companies Act 1993 were references to such persons as the court may determine to be justly entitled to any surplus assets after the satisfaction of the claims of all the creditors.

17C. Meaning of inability to pay debts

For the purposes of section 17A, an association is unable to pay its debts—

  1. a. if—
    1. i. a creditor who is owed an amount exceeding $100 by the association has served on the asso- ciation a demand for payment of that amount by leaving it at the principal office of the association in New Zealand, or delivering it to the secretary or a director or manager or principal officer of the association; and
    2. ii. the association has for 3 weeks after the demand was served on it failed to pay the amount due or secure the payment of it or compound for it to the satisfaction of the creditor; or
  2. b. if—
    1. i. an action or proceeding has been commenced against a member of the association for the payment of an amount owing by the association or that member in his or her capacity as a member; and
    2. ii. notice in writing of the action or proceeding has been served on the association by leaving it at its principal place of business in New Zealand or by delivering it to the secretary or a director, or principal officer of the association or serving it on the association in such manner as the court may approve or direct; and
    3. iii. the association has not, within 10 days after the notice was served on it, paid or secured the debt, or compounded for it or had the action or proceeding stayed or indemnified the member for the amount of any judgment that may be entered against him or her and any costs, damages, and expenses that may be incurred by him or her in the action or proceeding; or
  3. c. if execution or other process issued on a judgment, decree, or order obtained in a court in favour of a creditor against the association, or a member of the association in his or her capacity as a member, or a person authorised to be sued on behalf of the association, is returned unsatisfied; or
  4. d. if it is proved to the satisfaction of the High Court that the association is unable to pay its debts, and in determining whether an association is unable to pay its debts, the court shall take into account the contingent and prospective liabilities of the association.

17D. Power of liquidator to enforce liabilities

The liquidator may, by notice in writing, require any person who is liable to pay or contribute to the payment of—

  1. a. any debt or liability of the association; or
  2. b. any sum for the adjustment of the rights of the members among themselves; or
  3. c. the costs and expenses of the liquidation—

to pay or contribute accordingly and every such person is liable to pay or contribute the amount due in respect of that liability.

17E. Actions stayed on liquidation

Where the court appoints a liquidator of an association, no action or proceeding shall be commenced or continued against any person referred to in section 17D in respect of any debt of the association, except with the leave of the court, and subject to such terms as the court may impose.

18. No jurisdiction in cases of felonies or misdemeanours committed prior to 14 January 1840

The court shall not have jurisdiction to try any felony or misdemeanour committed before 14 January 1840.

19. Powers of the court may be exercised by 1 or more Judges

1. Each Judge or any 2 or more Judges may in any part of New Zealand exercise all the powers of the court, except such powers as may by any statute be required to be exercised by the full court or by any specified number of Judges.

2. Subsection (1) shall be read subject to the provisions of any enactment that provides for the appointment of persons other than Judges to sit with the court or as members of the court in respect of any specified proceedings or class of proceedings.

19A. Certain civil proceedings may be tried by jury

1. This section applies to civil proceedings in which the only relief claimed is payment of a debt or pecuniary damages or the recovery of chattels.

2. If the debt or damages or the value of the chattels claimed in any civil proceedings to which this section applies exceeds $3,000, either party may have the civil proceedings tried before a Judge and a jury on giving notice to the court and to the other party, within the time and in the manner prescribed by the High Court Rules, that he requires the civil proceedings to be tried before a jury.

3. Notwithstanding anything in subsection (2), in any case where, after notice has been given pursuant to that subsection but before the trial has commenced, the debt or damages or the value of the chattels claimed is reduced to $3,000 or less, the civil proceedings shall be tried before a Judge without a jury.

4. If, in any civil proceedings to which this section applies, the defendant sets up a counterclaim, then, unless pursuant to this section the civil proceedings and the counterclaim are both to be tried before a Judge without a jury, the following provisions shall apply:

  1. a. on the application of either party made with the consent in writing of the other party, both the civil proceedings and counterclaim shall be tried before a Judge without a jury, or before a Judge with a jury, whichever is specified in the application:
  2. b. if no such application is made, the civil proceedings and the counterclaim shall, subject to any direction of the court or a Judge under section 19B, be tried in accordance with the foregoing provisions of this section: provided that if the court or a Judge orders that the civil proceedings and the counterclaim be tried together, they shall be tried before a Judge with a jury.

5. Notwithstanding anything to the contrary in the foregoing provisions of this section, in any case where notice is given as aforesaid requiring any civil proceedings to be tried before a jury, if it appears to a Judge before the trial—

  1. a. that the trial of the civil proceedings or any issue therein will involve mainly the consideration of difficult questions of law; or
  2. b. that the trial of the civil proceedings or any issue therein will require any prolonged examination of documents or accounts, or any investigation in which difficult questions in relation to scientific, technical, business, or professional matters are likely to arise, being an examination or investigation which cannot conveniently be made with a jury,— the Judge may, on the application of either party, order that the civil proceedings or issue be tried before a Judge without a jury.

6. Nothing in this section shall apply in respect of any civil proceedings to be heard by the court in its admiralty jurisdiction.

19B. All other civil proceedings to be tried before Judge alone, unless court otherwise orders

1. Except as provided in section 19A of this Act, civil proceedings shall be tried before a Judge alone.

2. Notwithstanding subsection (1), if it appears to the court at the trial, or to a Judge before the trial, that the civil proceedings or any issue therein can be tried more conveniently before a Judge with a jury the court or Judge may order that the civil proceedings or issue be so tried.

19C. Questions of foreign law to be decided by Judge

1. Where, for the purpose of disposing of any civil proceedings or any criminal proceedings which are being tried by a Judge of the High Court with a jury, it is necessary to ascertain the law of any other country which is applicable to the facts of the case, any question as to the effect of the evidence given with respect to that law shall, instead of being submitted to the jury, be decided by the Judge alone.

2. This section has effect notwithstanding anything in section 19A or section 19B.

20. Governor in Council may divide New Zealand into districts

[Repealed]

21. Actions and proceedings to be taken in the district prescribed by the Code of Civil Procedure

[Repealed]

22. How applications to be made when Judge absent or unable to act

[Repealed]

23. Governor-General may appoint special sittings

The Governor-General in Council may from time to time appoint special sittings of the court for the despatch of civil and criminal business, to be held at such time and place or places, and before such Judge or Judges, as he thinks fit.

23A. Offices of the High Court

1. The Governor-General may from time to time, by notice in the Gazette, declare an office or offices of the court to be established at such place or places as may be specified in the notice, as from such date, in the case of each office, as may be so specified.

1A. [Repealed]

2. [Repealed]

3. Where any office of the court is abolished, the Minister of the Crown who is responsible for the Ministry of Justice may direct that all documents, books, and records in that office shall be delivered to some other office of the court (in this section referred to as the substituted office). From the time of their delivery to the Registrar of the substituted office, those documents, books, and records shall be deemed to be in the lawful custody of that Registrar.

4. Where any office of the court is abolished, the following provisions shall apply:

  1. a. any act or thing that could have been done under any enactment or rule by the Registrar of that office may be done by the Registrar of the substituted office:
  2. b. any step in any proceedings that would, but for the abolition of that office, have been taken there under any enactment or rule may be taken at the substituted office:
  3. c. any act or thing required or authorised by any enactment or rule to be done by any person at that office, whether in respect of any proceedings or in respect of any transaction recorded or document filed there, may be done at the substituted office:
  4. d. any address for service, being an address conforming to the requirements of the rules of court, that has been given by any party to any proceedings in respect of which the records are delivered to the substituted office shall continue to be the address for service of that party for the purposes of those proceedings, notwithstanding that because of its distance from the substituted office it may cease to conform to those requirements: provided that where, because of its distance from the substituted office, the address does not conform to the requirements of the rules, the party shall give a new address for service conforming to those requirements when he first files in the substituted office any document in the proceedings:
  5. e. if in respect of any proceedings, or of any transaction, document, record, or other matter, any question arises as to the application of any provision of this section or as to the proper procedure to be followed, the court or a Judge may determine the question and make such order thereon as the court or Judge thinks fit.

24. Registrar may act for Judge in certain cases

[Repealed]

C. Commercial list

24A. Establishment of commercial list

1. The Governor-General may from time to time by notice in the Gazette declare a commercial list to be established at any office of the High Court as from a date to be specified in the notice.

2. The first commercial list shall be established at the office of the High Court at Auckland for a period to be specified in the notice (which period shall not be less than 4 years).

3. The Governor-General may, on or before the expiration of the period specified under subsection (2), either—

  1. a. extend that period by notice in the Gazette; or
  2. b. declare by notice in the Gazette that the commercial list at the office of the High Court at Auckland shall continue indefinitely.

4. Where the Governor-General exercises the power given by subsection (3)(a), the Governor-General may, on or before the expiration of the extended period, declare by notice in the Gazette that the commercial list established at the office of the High Court at Auckland shall continue indefinitely.

5. Where the commercial list established at the office of the High Court at Auckland ceases to be established upon the expiration of the period specified under subsection (2) or the extended period specified under subsection (3)(a), the commercial list shall be deemed to continue for the purpose of completing any proceeding entered on the commercial list at the expiration of that period.

24B. Proceedings eligible for commercial list

1. The classes of proceedings eligible for entry on a commercial list are as follows:

  1. a. any proceedings arising out of or otherwise relating to:
    1. i. the ordinary transactions of persons engaged in commerce or trade or of shippers:
    2. ii. the carriage of goods for the purpose of trade or commerce:
    3. iii. the construction of commercial, shipping, or transport documents:
    4. iv. the export or import of merchandise:
    5. v. insurance, banking, finance, guarantee, commercial agency, or commercial usages:
    6. vi. disputes arising out of intellectual property rights between parties engaged in commerce:
  2. b. applications to the court under the Arbitration Act 1996:
  3. c. appeals against determinations of the Commerce Commission:
  4. d. proceedings under any of the provisions of sections 80, 81, 82, and 89 of the Commerce Act 1986:
  5. e. cases stated by the Financial Markets Authority, and civil proceedings under the Securities Act 1978 or the Securities Markets Act 1988:
  6. f. the following proceedings in relation to companies registered under the Companies Act 1955 or the Companies Act 1993, as the case may be:
    1. i. applications for directions by liquidators and receivers:
    2. ii. defended applications under section 209ZG of the Companies Act 1955 or section 174 of the Companies Act 1993:
    3. iii. disputes relating to takeovers:
    4. iv. disputes between shareholders or classes of shareholders of companies (other than companies registered under Part 8 of the Companies Act 1955 and companies registered under the Companies Act 1993 and having not more than 25 shareholders):
  7. g. proceedings of a commercial nature required or permitted to be entered on a commercial list by or under any Act or by or under the High Court Rules or any rules made under section 51C of this Act.

2. Where any appeal belonging to the class of appeals described in subsection (1)(c) is entered on a commercial list,—

  1. a. that appeal shall, notwithstanding section 75(2) of the Commerce Act 1986, be heard and determined by the court; and
  2. b. any lay member appointed pursuant to section 77 of the Commerce Act 1986 shall, for the purpose of the hearing and determination of that appeal by the court, be deemed to be a lay member of the court; and
  3. c. section 77 and sections 91 to 97 of the Commerce Act 1986 shall, subject to section 24E, apply with all necessary modifications to that appeal.

3. Rules made under section 51C shall make provision for—

  1. a. the manner in which proceedings eligible for entry on a commercial list are to be entered on a commercial list:
  2. b. orders for the removal of proceedings entered on a commercial list:
  3. c. the procedure governing the determination of proceedings entered on a commercial list.

24C. Commercial list Judges

1. A commercial list established under section 24A is supervised by a Judge nominated from time to time by the Chief Justice after consulting the Chief High Court Judge.

1A. The Chief High Court Judge can be nominated under subsection (1).

2. After consulting the Chief High Court Judge, the Chief Justice may nominate 1 or more Judges to help the Judge nominated under subsection (1) and to supervise the list when that Judge is absent from duty.

3. Every interlocutory application in any proceeding entered on a commercial list shall be determined by a Judge nominated under subsection (1) or subsection (2).

4. Where—

  1. a. any dispute has arisen concerning the construction, status, or application of a contract or document; and
  2. b. the dispute could be determined in a proceeding eligible for entry on a commercial list; and
  3. c. no proceeding has been commenced in respect of the dispute,—

any party to the dispute may apply to a Judge nominated under subsection (1) or subsection (2) for the determination of the questions involved in the dispute.

24D. Directions for speedy determination of real questions in proceedings on commercial list

The court may from time to time give such directions as the court thinks fit (whether or not inconsistent with the High Court Rules or any rules made under section 51C) for the speedy and inexpensive determination of the real questions between the parties to proceedings entered on a commercial list.

24E. Agreement not to appeal

The parties to any proceedings entered on a commercial list may agree that the decision of the court shall be final.

24F. Proceedings not to be tried by jury

Notwithstanding anything in section 19A, no proceeding entered on a commercial list shall be tried before a jury.

24G. Restriction of right of appeal from interlocutory decisions

1. No appeal shall lie from an interlocutory decision of the High Court in respect of any proceeding entered on a commercial list unless leave to appeal to the Court of Appeal is given by the High Court on application made within 7 days of the decision being given or within such further time as the High Court may allow.

2. If the High Court refuses leave to appeal from any such interlocutory decision, the Court of Appeal may grant that leave on application made to the Court of Appeal within 21 days of the refusal of leave by the High Court.

D. Administrative Division of the court

[Repealed]

25. Administrative Division of the High Court

[Repealed]

26. Jurisdiction of Administrative Division

[Repealed]

26A. Lay members or assessors in certain cases

[Repealed]

26B. Rules relating to Administrative Division

[Repealed]

E. Associate Judges of the High Court

26C. Appointment of Associate Judges

1. The Governor-General may from time to time, by warrant, appoint fit and proper persons to be Associate Judges of the High Court.

2. The maximum number of Associate Judges is 9.

3. For the purposes of subsection (2),—

  1. a. an Associate Judge who is acting on a full-time basis counts as 1:
  2. b. an Associate Judge who is acting on a part-time basis counts as an appropriate fraction of 1:
  3. c. the aggregate number (for example, 5.5) must not exceed the maximum number of Associate Judges that is for the time being permitted.

4. A person must not be appointed as an Associate Judge unless he or she has held a practising certificate as a barrister or solicitor for at least 7 years.

5. An Associate Judge must not undertake any other paid employment or hold any other office (whether paid or not) unless the Chief High Court Judge is satisfied that the employment or other office is compatible with judicial office.

6. An Associate Judge holds office until, in accordance with section 26E, he or she retires or resigns or is removed from office.

7. Subsection (6) applies to—

  1. a. every Associate Judge appointed after the commencement of this section; and
  2. b. every person deemed by section 6(1) of the Judicature Amendment Act 2004 to have been appointed as an Associate Judge at the commencement of this section (despite any provision to the contrary in any enactment or warrant of appointment).

26D. Associate Judges act on full-time basis but may be authorised to act part-time

1. A person acts as an Associate Judge on a full-time basis unless he or she is authorised by the Attorney-General to act on a part-time basis.

2. The Attorney-General may, in accordance with subsection (4), authorise an Associate Judge appointed under section 26C to act on a part-time basis for a specified period.

3. To avoid doubt, an authorisation under subsection (2) may take effect as from an Associate Judge’s appointment or at any other time, and may be made more than once in respect of the same Associate Judge.

4. The Attorney-General may authorise an Associate Judge to act on a part-time basis only—

  1. a. on the request of the Associate Judge; and
  2. b. with the concurrence of the Chief High Court Judge.

5. In considering whether to concur under subsection (4), the Chief High Court Judge must have regard to the ability of the court to discharge its obligations in an orderly and expeditious way.

6. An Associate Judge who is authorised to act on a part-time basis must resume acting on a full-time basis at the end of the authorised part-time period.

7. The basis on which an Associate Judge acts must not be altered during the term of the Associate Judge’s appointment without the Associate Judge’s consent, but consent under this subsection is not necessary if the alteration is required by subsection (6).

26E. Vacation of office

1. The Governor-General may, if the Governor-General thinks fit, remove an Associate Judge for inability or misbehaviour.

2. An Associate Judge may resign the office of Associate Judge by notice in writing addressed to the Attorney-General.

3. Subject to section 26H, every Associate Judge shall retire from office on attaining the age of 70 years.

26F. Salaries and allowances of Associate Judges

1. Subject to subsection (5), there shall be paid to every Associate Judge, out of public money, without further appropriation than this section,—

  1. a. a salary at such rate as the Remuneration Authority from time to time determines; and
  2. b. such allowances as are from time to time determined by the Remuneration Authority; and
  3. c. such additional allowances, being travelling allowances or other incidental or minor allowances, as may be determined from time to time by the Governor-General.

2. Subject to subsection (5), the salary of an Associate Judge shall not be diminished during the continuance of the Associate Judge’s appointment.

3. Subject to the Remuneration Authority Act 1977, any determination made under subsection (1), and any provision of any such determination, may be made so as to come into force on a date to be specified in that behalf in the determination, being the date of the making of the determination or any other date, whether before or after the date of the making of the determination or the date of the commencement of this section.

4. Every such determination, and every provision of any such determination, in respect of which no date is specified as aforesaid shall come into force on the date of the making of the determination.

5. The salary and allowances payable for a period during which an Associate Judge acts on a part-time basis must be calculated and paid as a pro rata proportion of the salary and allowances for a full-time equivalent position.

6. For the purpose of subsection (2), the payment of salary and allowances on a pro rata basis under subsection (5) is not a diminution of salary.

26G. Superannuation or retiring allowances of Associate Judges

For the purpose of providing a superannuation fund or retiring allowance for persons appointed as Associate Judges, sums by way of subsidy or contribution may from time to time be paid under Part 5B of the Government Superannuation Fund Act 1956 or to any registered superannuation scheme in accordance with a determination of the Remuneration Authority.

26H. Temporary Associate Judges

1. The Governor-General may, subject to this section, appoint any person (including a former Associate Judge) to act as an Associate Judge for such period as is specified in the warrant of appointment.

2. The period so specified shall not exceed 12 months; but any person appointed under this section may from time to time be reappointed.

3. No person shall be appointed as an Associate Judge under this section unless that person is eligible for appointment as an Associate Judge pursuant to section 26C, save that, subject to subsection (4) of this section, a person otherwise qualified who has attained the age of 70 years (including an Associate Judge who has retired after attaining that age) may be appointed as an Associate Judge under this section.

4. No person shall be appointed or reappointed as an Associate Judge under this section who has attained the age of 72 years.

5. Subject to section 26F(5), every person appointed as an Associate Judge under this section shall, during the term of that Associate Judge’s appointment, be paid the salary and allowances payable by law to an Associate Judge.

6. No appointment may be made under this section otherwise than on a certificate signed by the Chief Justice to the effect that, in the opinion of the Chief Justice, it is necessary for the due conduct of the business of the court that a temporary Associate Judge be appointed.

7. The Chief Justice must not sign the certificate without first consulting the Chief High Court Judge.

26I. Associate Judge may exercise certain powers of the court

1. An Associate Judge shall have and may exercise all the jurisdiction and powers of the court in relation to the following matters:

  1. a. any application for summary judgment:
  2. b. [Repealed]
  3. c. any proceedings under which relief is claimed solely under any of the provisions of sections 140, 143, 144, 145, 145A, and 148 of the Land Transfer Act 1952 (which provisions relate to caveats):
  4. d. the assessment of damages where liability has been determined, or the trial of proceedings in which only the amount of the debt or damages is disputed:
  5. e. the entry of any judgment by consent, or the making of any other order by consent:
  6. ea. the making of any order (other than an arrest order or an order relating to an arrest order) that may be made under rules of court against a judgment debtor who has been ordered to attend court for examination:
  7. eb. the making, variation, suspension, or discharge of attachment orders under rules of court:
  8. f. any other matter in respect of which jurisdiction is conferred on an Associate Judge by or under any Act.

2. An Associate Judge shall have and may exercise all the jurisdiction and powers which are vested in the court or a Judge by the following enactments:

  1. a. article 11 of Schedule 1 of the Arbitration Act 1996:
  2. b. sections 205 to 207 of the Companies Act 1955, as applied to compromises and arrangements by section 35 of the Companies Amendment Act 1993:
  3. c. sections 220 to 222, 226, 231(4), 233 to 237, 239, 240(1)(a), 246 to 249, 250 to 263, 265 to 267, 311A, 311B, 312, and 332 of the Companies Act 1955, as applied in relation to the winding up of a company by section 42(1) of the Companies Amendment Act 1993:
  4. d. sections 139, 168, 209N to 209P, 209R to 209T, 209X to 209ZA, 209ZF, 211, 213, 216 to 218, 220, 231(2), 235(5), 240, 243, 258, 260, 264, 265, 268 to 270, 281, 288, and 467 of the Companies Act 1955, as continued in force by section 3 of the Companies Act Repeal Act 1993:
  5. e. sections 123, 154, 165 to 168, 173, 179, 232 to 234, 236 to 238, Part 15A, Part 16, and section 329 of the Companies Act 1993:
  6. f. rules 39, 41, 71, 87 to 89, 91, 94, 95, 96, 111, 125(3), 136, 137, 141 to 143, 190, and 191 of the Companies (Winding Up) Rules 1956, as continued in force by section 42(7) of the Companies Amendment Act 1993:
  7. g. section 42(2) of the Corporations (Investigation and Management) Act 1989:
  8. h. section 26, Part 10, section 119, and Part 15 of the Insolvency Act 1967:
  9. ha. the Insolvency Act 2006 (except sections 150, 166(3), 180, and 236(2)):
  10. hb. any regulations or rules made under the Insolvency Act 2006:
  11. i. rules 41 and 43 of the Insolvency Rules 1970:
  12. j. any regulations relating to liquidations made under the Companies Act 1955 or under the Companies Act 1993:
  13. k. sections 118, 128, 131, 167, 168, 170, 179, 181, 182, and 186 of the Personal Property Securities Act 1999:
  14. l. the Model Law on Cross-Border Insolvency as set out in Schedule 1 of the Insolvency (Cross-border) Act 2006.

3. An Associate Judge shall have and may exercise all the jurisdiction and powers of the court to deal with costs and other matters incidental to the matters over which an Associate Judge has jurisdiction pursuant to subsection (1) or subsection (2).

4. Rules made under section 51C or rules made under any other Act in the manner provided in that section may contain such provisions as may be necessary—

  1. a. to enable the proper exercise by Associate Judges of the jurisdiction and powers conferred by this section; and
  2. b. to regulate the practice and procedure of the court on appeals against the exercise by Associate Judges of the jurisdiction and powers so conferred.

5. [Repealed]

26IA. Ancillary powers of Associate Judge

1. Subject to subsection (2), an Associate Judge shall have, in all proceedings (including proceedings on an interlocutory application) properly before the Associate Judge, jurisdiction to make any order or to exercise any authority or jurisdiction that might be made or exercised by a Judge of the High Court.

2. Nothing in subsection (1) confers on an Associate Judge any jurisdiction or power of a kind described in subsection (3) or subsection (4) of section 26J.

26IB. Judge or Associate Judge may, by video link, preside at hearing of specified matters

1. A Judge or Associate Judge may, by video link, preside at the hearing of any matter—

  1. a. over which an Associate Judge has jurisdiction under section 26I; and
  2. b. that is specified in rules made under section 51C for the purposes of this section.

2. A hearing conducted under the authority of subsection (1)—

  1. a. has effect as if the Judge or Associate Judge were physically present:
  2. b. does not affect the privileges and immunities of the Judge or Associate Judge or of any witnesses, counsel, or parties appearing at the hearing.

3. Rules made under section 51C may—

  1. a. specify a class or classes of matters in respect of which hearings authorised by subsection (1) may be conducted:
  2. b. regulate the manner in which hearings authorised by subsection (1) are conducted.

26J. Power to make rules conferring specified jurisdiction and powers of Judge in chambers on Associate Judges

1. Notwithstanding anything contained in any other provision of this Act or of any other Act but subject to the provisions of this section, rules made under section 51C or rules made under any other Act in the manner provided in that section may confer on Associate Judges, subject to such limitations and restrictions as may be specified in the rules, such of the jurisdiction and powers of a Judge sitting in chambers, conferred by this Act or any other Act, as may be specified in the rules.

2. Any such rules may contain such other provisions as may be necessary—

  1. a. to enable the proper exercise by Associate Judges of the jurisdiction and powers so conferred; and
  2. b. to regulate the practice and procedure of the court on any application to the court under section 26P(1) to review the exercise by an Associate Judge of the jurisdiction and powers so conferred.

3. Nothing in subsection (1) or subsection (2) authorises the making of any rule which confers on Associate Judges any jurisdiction or power in respect of any of the following matters:

  1. a. any criminal proceeding, other than an uncontested application for bail or an application for the setting aside of a witness summons:
  2. b. any application for a writ of habeas corpus:
  3. c. any proceedings for the issue or renewal of a writ of sequestration:
  4. d. any proceedings under or by virtue of the Care of Children Act 2004:
  5. e. any action in rem under or by virtue of the Admiralty Act 1973:
  6. f. any application to review, or any appeal against, the exercise, or the refusal to exercise, by any Registrar or Deputy Registrar, of any jurisdiction or power conferred on any Registrar or Deputy Registrar by or under this Act or any other Act.

4. Nothing in subsection (1) or subsection (2) authorises the making of any rule which confers on Associate Judges any jurisdiction or power—

  1. a. to grant an Anton Piller order, or an injunction (whether interlocutory or otherwise):
  2. b. to grant any relief on an application for review under section 4(1) of the Judicature Amendment Act 1972:
  3. c. to grant any relief in any proceedings for a writ or order of or in the nature of mandamus, prohibition, or certiorari, or for a declaration or injunction:
  4. d. to grant any application to remove any person from public office:
  5. e. to try the right of any person to hold any public office.

26K. Power of Associate Judge to deal with witnesses and to punish for contempt

Sections 56A, 56B, and 56C shall apply in respect of any proceedings before an Associate Judge, and an Associate Judge shall have and may exercise all the jurisdiction and powers which, pursuant to those sections, are vested in the court or a Judge.

26L. Associate Judge to have no power to make order for committal, attachment, or arrest

Except as provided by section 26K, an Associate Judge shall have no jurisdiction or power to make an order for the committal, attachment, or arrest of any person.

26M. Associate Judge may act as referee

An Associate Judge may act as a referee under the High Court Rules in respect of any proceedings or any question arising in the course of any proceedings.

26N. Transfer of proceedings from Associate Judge to Judge

1. In any proceedings before an Associate Judge, an Associate Judge may, on the application of any party to the proceedings, or of the Associate Judge’s own motion, refer the proceedings or any matter arising therein to a Judge if the Associate Judge is satisfied that because of the complexity of the proceedings or of that matter, or of any question in issue in the proceedings, it is expedient that the proceedings or that matter be referred to a Judge.

2. Where any proceedings are to be dealt with or are being dealt with by an Associate Judge, a Judge may, at any time before the conclusion of those proceedings, on application made on notice by any party to the proceedings, order that the proceedings or any part thereof be transferred to a Judge if that Judge is satisfied that it is desirable that the proceedings or that part thereof be dealt with by a Judge.

3. Upon the reference of any proceedings, or any matter arising therein, to a Judge under subsection (1), or the transfer of any proceedings or any part thereof to a Judge under subsection (2), the Judge may—

  1. a. dispose of the proceedings; or
  2. b. refer the proceedings or the matter back to the Associate Judge with such directions as the Judge thinks fit.

26O. Power of Associate Judge to adjourn proceedings

An Associate Judge shall have power to order the adjournment of any proceedings, notwithstanding that an Associate Judge would not otherwise have jurisdiction in respect of those proceedings.

26P. Review of, or appeals against, decisions of Associate Judges

1. Any party to any proceedings who is affected by any order or decision made by an Associate Judge in chambers may apply to the court to review that order or decision and, where a party so applies in accordance with the High Court Rules, the court—

  1. a. must review the order or decision in accordance with the High Court Rules; and
  2. b. may make such order as may be just.

1AA. The determination of the High Court on a review under subsection (1) is final, unless the High Court gives leave (or the High Court refuses leave, but the Court of Appeal gives special leave) to appeal from it to the Court of Appeal.

1A. Rules under section 51C may—

  1. a. specify the nature and extent of reviews or classes of review under subsection (1):
  2. b. regulate the procedure for hearing applications or classes of application under subsection (1):
  3. c. regulate the procedure for hearing applications or classes of application for leave under subsection (1AA).

2. Any party to any proceedings may appeal to the Court of Appeal against any order or decision of an Associate Judge in those proceedings (other than an order or decision made in chambers).

3. Section 66 shall apply to any appeal under subsection (2).

26Q. Immunity of Associate Judges

Every Associate Judge has the same immunities as a Judge of the High Court.

26R. Jurisdiction of Judge not affected

Nothing in this Act or in any rules made under section 51C or in any rules made under any other Act in the manner provided in that section shall prevent the exercise by any Judge of any jurisdiction or power conferred on an Associate Judge by this Act or by any such rules.

F. Officers

27. Appointment of officers

There may from time to time be appointed under the State Sector Act 1988 such Registrars, Deputy Registrars, and other officers as may be required for the conduct of the business of the court.

Subpart 1. Registrars

28. Powers of Registrars

1. In order that the court may be enabled to exercise the jurisdiction conferred upon it by this Act, every Registrar and Deputy Registrar shall have all the powers and perform all the duties in respect of the court (except such powers and duties as any other officer may be specially appointed to exercise and perform) which Registrars and Deputy Registrars have hitherto performed or which by any rule or statute they may be required to perform.

2. Each Deputy Registrar has the same powers and privileges, performs the same duties, and is subject to the same provisions and penalties under this Act and under any other Act as if he or she were the Registrar for the time being, whether or not those powers, privileges, duties, provisions, or penalties are conferred, imposed, or enacted under this Act or that other Act.

3. Subsection (2) is subject to any provision to the contrary in any other enactment.

Subpart 2. Sheriffs

29. Sheriffs and Deputy Sheriffs

1. Every Registrar of the High Court for the time being shall be a Sheriff for New Zealand.

2. There may be appointed under the State Sector Act 1988 in respect of any office of the court 1 or more Deputy Sheriffs.

3. Every Deputy Sheriff shall, in the absence of the Sheriff or when acting for the Sheriff, have the powers and privileges, duties and responsibilities of the Sheriff under this Act or any other enactment.

30. Sheriff’s oath

[Repealed]

31. Sureties may withdraw

[Repealed]

32. Duties, etc, of Sheriffs

Every Sheriff shall have such powers and privileges, duties and responsibilities, as a Sheriff by law has or is liable to in England as a ministerial officer of one of Her Majesty’s Courts at Westminster.

33. Sheriff to act as Queen’s bailiff

In addition to his powers and privileges, duties and responsibilities, as a ministerial officer, each Sheriff shall also have and exercise the powers and duties of the Queen’s bailiff.

34. Sheriff not to act as barrister or solicitor

No Sheriff shall be in any way concerned in any action in any court in New Zealand either as a barrister, solicitor, or agent.

35. Service of process when Sheriff disqualified

Where any process issues which the Sheriff ought not by law to execute, the High Court shall authorise some fit person to execute the same; and in every such case the cause of such special proceeding shall be entered upon the records of the court.

36. Persons arrested by Sheriffs may be committed to prison at once

Where any Sheriff, Sheriff’s officer, bailiff, or other person employed under the Sheriff, has arrested any person under or by virtue of any writ or process whatsoever, he may forthwith thereafter convey such person, or cause him to be conveyed, to such prison as he ought to be sent to by virtue of the writ or process against him.

Subpart 3. Poundage and fees

37. Calculation of Sheriff’s poundage

[Repealed]

38. Appointment of, and oath taken by, appraiser

[Repealed]

39. Goods defined

[Repealed]

40. Sheriffs’ and poundage fees

[Repealed]

41. Fee in special cases

[Repealed]

42. Fees to be paid into Crown Bank Account

All fees taken by a Sheriff under this Act must be paid immediately into a Crown Bank Account.

Subpart 4. Deputy Sheriffs and Acting Sheriffs

[Repealed]

43. Where Sheriff not present at sitting of court, duties of Sheriff may be performed by any person appointed by the court or Judge

[Repealed]

44. Provision in cases of vacancy in office of Sheriff

[Repealed]

45. Governor may appoint Deputy Sheriffs

[Repealed]

46. When Deputies to act

[Repealed]

Subpart 5. Commissioners to administer oaths

47. Commissioners to take affidavits, etc, out of New Zealand

1. Any Judge of the High Court, by a commission to be issued under the seal of the court, may from time to time appoint any person to be and act as a Commissioner of the High Court in any country or place beyond the jurisdiction of the High Court, for the purpose of administering and taking any oath, affidavit, or affirmation, whether-

  1. a. in any civil or criminal proceedings commenced or pending in the High Court; or
  2. b. in any action, cause, proceeding, matter, or thing commenced or pending in any court of concurrent jurisdiction in New Zealand or in any inferior court; or
  3. c. in any proceedings or in any matter or thing within the cognisance or jurisdiction of the High Court or of any court of concurrent jurisdiction in New Zealand or of any inferior court.

2. Every such appointment shall be gazetted.

48. Affidavits, etc, so taken to be of like effect as if taken in New Zealand

Every oath, affidavit, or affirmation taken or made before any such Commissioner as aforesaid shall within New Zealand be of the like effect in all respects as if the same had been administered, made, or taken by or before any court or persons having authority to administer or take the same in New Zealand.

49. Commission may be revoked

1. Any commission issued as aforesaid may be revoked by any Judge of the court for any cause which such Judge deems sufficient; but no such revocation shall affect or prejudice any act, matter, or thing done by any Commissioner by virtue of his commission prior to a notification of such revocation having been given or sent to him.

2. Every revocation of any such appointment shall be gazetted, and the notice published in the Gazette shall state the date when notice of revocation was given or sent to the Commissioner affected thereby.

Subpart 6. Practice and procedure of the court

50. Seal of the court

1. The court shall have in the custody of each Registrar a seal of the court, for the sealing of all writs and other instruments or documents issued by such Registrar and requiring to be sealed.

2. [Repealed]

51. High Court Rules

1. Subject to subsections (2) to (4) and to sections 51A to 56C, the practice and procedure of the court in all civil proceedings shall be regulated by the High Court Rules.

2. The High Court Rules shall be subject to any other rules which are made pursuant to section 51C and which prescribe the procedure applicable in respect of any class of civil proceedings or in respect of the practice or procedure of the Court of Appeal.

3. Where any provision of the High Court Rules or of any rules made under section 51C restricts or excludes the application of the High Court Rules or any provisions of the High Court Rules, the provision that effects the restriction or exclusion shall have effect according to its tenor.

4. If in any civil proceedings any question arises as to the application of any provision of the High Court Rules or of any rules made under section 51C, the court may, either on the application of any party or of its own motion, determine the question and give such directions as it thinks fit.

51A. Publication of High Court Rules under Legislation Act 2012

1. The High Court Rules, and any reprint of the High Court Rules, may be published under the Legislation Act 2012 as if the rules were a legislative instrument within the meaning of that Act.

2. The Legislation Act 2012 applies accordingly to rules published in that way.

51B. Rules Committee

1. For the purposes of this Act and the District Courts Act 1947 and the Criminal Procedure Act 2011, there is a Rules Committee consisting of—

  1. a. the Chief Justice:
  2. ab. the Chief High Court Judge:
  3. b. 2 other Judges of the High Court appointed by the Chief Justice:
  4. c. the Chief District Court Judge:
  5. d. 1 other District Court Judge appointed by the Chief Justice on the recommendation of the Chief District Court Judge:
  6. e. the Attorney-General:
  7. f. the Solicitor-General:
  8. g. the chief executive of the Ministry of Justice:
  9. h. 2 persons, who are barristers and solicitors of the High Court, nominated by the Council of the New Zealand Law Society and approved by the Chief Justice.

2. The Chief Justice may appoint any other person to be a member for a special purpose. That person holds office during the pleasure of the Chief Justice.

3. The members referred to in paragraphs (b), (d), and (h) of subsection (1)—

  1. a. must be appointed for terms not exceeding 3 years:
  2. b. may be reappointed:
  3. c. may resign office by notice in writing to the Chief Justice.

4. The Rules Committee is a statutory Board within the meaning of the Fees and Travelling Allowances Act 1951.

5. The members referred to in subsections (1)(h) and (2) may be paid, out of money appropriated by Parliament, remuneration by way of fees, salary, or allowances and travelling allowances and expenses in accordance with the Fees and Travelling Allowances Act 1951.

51C. Power to make rules

1. The Governor-General in Council, with the concurrence of the Chief Justice and any 2 or more of the members of the Rules Committee, of whom at least 1 shall be a Judge, may, for the purposes of facilitating the expeditious, inexpensive, and just dispatch of the business of the court, or of otherwise assisting in the due administration of justice, from time to time make rules regulating the practice and procedure of the High Court and of the Court of Appeal and of the Supreme Court (including the practice and procedure on appeals from any court or person to the Supreme Court, the Court of Appeal, or the High Court).

2. Rules made pursuant to subsection (1) may—

  1. a. repeal the High Court Rules set out in Schedule 2, and substitute a new set of High Court Rules:
  2. b. alter or revoke any of the rules contained in the High Court Rules:
  3. c. add to the High Court Rules any further rules touching the practice and procedure of the High Court in all or any of the civil proceedings within its jurisdiction:
  4. cc. add to the High Court Rules any rules made for the purposes of Part 1A:
  5. d. alter or revoke any rules regulating the practice or procedure of the Court of Appeal (including those contained in the Court of Appeal Rules 1955):
  6. e. revoke the Court of Appeal Rules 1955:
  7. f. alter or revoke any other rules of the High Court, the Court of Appeal, or the Supreme Court that are now or may hereafter be in force:
  8. g. fix scales of costs.

51D. Rules of court under other Acts to be made in manner provided by this Act

Where any other Act confers power to make rules of procedure in relation to civil proceedings, that power shall be exercised by the Governor-General in Council in the manner prescribed by section 51C, and not otherwise.

51E. Power to prescribe procedure on applications to High Court, Court of Appeal, or Supreme Court

1. Notwithstanding anything to the contrary in any Act or in any Imperial Act in force in New Zealand, rules may be made under section 51C prescribing the form and manner in which any class or classes of applications to the High Court or a Judge thereof or to the Court of Appeal or to the Supreme Court shall be made.

2. So far as the provisions of any Act prescribing the form or manner in which any such applications are to be made, whether by petition, motion, summons, or otherwise, are inconsistent with or repugnant to the High Court Rules or the Court of Appeal Rules or to any rules made under section 51C, the Act prescribing that form or manner shall be deemed to be subject to the rules.

51F. Power to make rules conferring specified jurisdiction and powers of Judge on Registrars or Deputy Registrars

1. Notwithstanding anything contained in any other provision of this Act or of any other Act, but subject to the provisions of this section, rules made under section 51C or rules made under any other Act in the manner provided in that section may confer on Registrars and Deputy Registrars (whether of the High Court, the Court of Appeal, or the Supreme Court), subject to such limitations and restrictions as may be specified in the rules, such of the jurisdiction and powers of a Judge sitting in chambers, conferred by this Act or any other Act, as may be specified in the rules, and may contain such other provisions as may be necessary to enable the proper exercise by Registrars and Deputy Registrars of the jurisdiction and powers so conferred.

2. Any jurisdiction and any powers conferred under this section may be conferred on specified Registrars or Deputy Registrars or on any specified class or classes of Registrars or Deputy Registrars.

3. Where any matter in respect of which a Registrar or Deputy Registrar has jurisdiction under any rules of court appears to the Registrar or Deputy Registrar to be one of special difficulty, the Registrar or Deputy Registrar may refer the matter to a Judge, who may dispose of the matter or may refer it back to the Registrar or Deputy Registrar with such directions as the Judge thinks fit.

4. Any party to any proceedings or any intended proceedings who is affected by any order or decision made by any Registrar or Deputy Registrar under any rules of court may apply to the court to review that order or decision, and where a party so applies the court may make such order as may be just.

5. Nothing in this section or in the High Court Rules or in any rules made under section 51C or in any rules made under any other Act shall prevent the exercise by any Judge of any jurisdiction or powers conferred on any Registrar or Deputy Registrar by any such rules.

51G. Jurisdiction of court to award costs in all cases

1. Where any Act confers jurisdiction on the High Court or a Judge thereof in regard to any civil proceedings or any criminal proceedings or any appeal, without expressly conferring jurisdiction to award or otherwise deal with the costs of the proceedings or appeal, jurisdiction to award and deal with those costs and to make and enforce orders relating thereto shall be deemed to be also conferred on the court or Judge.

2. Such costs shall be in the discretion of the court or Judge, and may, if the court or Judge thinks fit, be ordered to be charged upon or paid out of any fund or estate before the court.

52. Power of Judge to hold or adjourn sitting

1. A Judge may hold any sitting of the court at any time and place the Judge thinks fit.

2. A Judge may adjourn a sitting of the court to a time and place the Judge thinks fit.

3. If a Judge is not present at the time appointed for a sitting of the court, the Registrar may adjourn the sitting to a time that is convenient.

53. Fees to be paid into Crown Bank Account

All fees received under this Act must be paid into a Crown Bank Account.

54. Service of process on Sundays void

1. Subject to any rule of court, no person shall serve or execute, or cause to be served or executed, on Sunday any statement of claim, application, writ, process, warrant, order, or judgment of the High Court or Court of Appeal (except in cases of crime or of breach of the peace), and such service or execution shall be void to all intents and purposes whatsoever.

2. Nothing in subsection (1) shall apply to—

  1. a. the service of any writ in rem or warrant of arrest in respect of any proceedings heard or to be heard in the High Court in its admiralty jurisdiction; or
  2. b. the service of any subpoena or interlocutory injunction.

3. Nothing in this section shall be construed to annul, repeal, or in any way affect the common law, or the provisions of any statute or rule of practice or procedure, now or hereafter in force, authorising the service of any statement of claim, application, writ, process, or warrant, in cases other than those excepted in subsection (1).

54A. Verdict of three-fourths

[Repealed]

54B. Discharge of juror or jury

Nothing in this Act affects the powers of a court or Judge to discharge a juror or jury for a civil case under section 22 of the Juries Act 1981.

G. Miscellaneous rules of law and of practice

Subpart 1. Habeas corpus

[Repealed]

54C. Procedure in respect of habeas corpus

[Repealed]

Subpart 2. Absconding debtors

55. Power under certain circumstances to arrest defendant about to quit New Zealand

1. A person shall not be arrested upon mesne process in any civil proceedings in the High Court.

2. Where in any civil proceedings in the High Court in which, if brought before 1 October 1874 (being the date of the coming into operation of the Imprisonment for Debt Abolition Act 1874), the defendant would have been liable to arrest, the plaintiff proves at any time before final judgment, by evidence on oath to the satisfaction of a Judge of the court, that the plaintiff has good cause of action against the defendant to the amount of $100 or upwards, and that there is probable cause for believing that the defendant is about to quit New Zealand unless he is apprehended, and that the absence of the defendant from New Zealand will materially prejudice the plaintiff in the prosecution of those proceedings, such Judge may, in the prescribed manner, order such defendant to be arrested and imprisoned for a period not exceeding 6 months, unless and until he has sooner given the prescribed security, not exceeding the amount claimed in those proceedings, that he will not go out of New Zealand without the leave of the High Court.

3. Where the civil proceedings are for a penalty, or sum in the nature of a penalty, other than a penalty in respect of any contract, it shall not be necessary to prove that the absence of the defendant from New Zealand will materially prejudice the plaintiff in the prosecution of those proceedings; and the security given (instead of being that the defendant will not go out of New Zealand) shall be to the effect that any sum recovered against the defendant in those proceedings will be paid or that the defendant shall be rendered to prison.

4. All the powers conferred by this section upon a Judge may be exercised by the Registrar of the court: provided that such powers shall be exercised by the said Registrar only in the absence of the Judge from the place where the office of the court is situate at which the application for such order as aforesaid is made.

Subpart 3. Foreign creditors

56. Memorials of judgments obtained out of New Zealand may be registered

1. Any person in whose favour any judgment, decree, rule, or order, whereby any sum of money is made payable, has been obtained in any court of any of Her Majesty’s dominions may cause a memorial of the same containing the particulars hereinafter mentioned, and authenticated by the seal of the court wherein such judgment, decree, rule, or order was obtained, to be filed in the office of the High Court; and such memorial being so filed shall thenceforth be a record of such judgment, decree, rule, or order, and execution may issue thereon as hereinafter provided.

2. Every seal purporting to be the seal of any such court shall be deemed and taken to be the seal of such court until the contrary is proved, and the proof that any such seal is not the seal of such court shall lie upon the party denying or objecting to the same.

3. Every such memorial shall be signed by the party in whose favour such judgment, decree, rule, or order was obtained, or his attorney or solicitor, and shall contain the following particulars, that is to say: the names and additions of the parties, the form or nature of the action or other proceeding, and, when commenced, the date of the signing or entering-up of the judgment, or of passing the decree, or of making the rule or order, and the amount recovered, or the decree pronounced, or rule or order made, and, if there was a trial, the date of such trial and amount of verdict given.

4. The court or any Judge thereof, on the application of the person in whose favour such judgment, decree, rule, or order was obtained, or his solicitor, may grant a rule or issue a summons calling upon the person against whom such judgment, decree, rule, or order was obtained to show cause, within such time after personal or such other service of the rule or summons as such court or Judge directs, why execution should not issue upon such judgment, decree, rule, or order, and such rule or summons shall give notice that in default of appearance execution may issue accordingly; and if the person served with such rule or summons does not appear, or does not show sufficient cause against such rule or summons, such court or Judge, on due proof of such service as aforesaid, may make the rule absolute, or make an order for issuing execution as upon a judgment, decree, rule, or order of the court, subject to such terms and conditions (if any) as such court or Judge thinks fit.

5. All such proceedings may be had or taken for the revival of such judgment, decree, rule, or order, or the enforcement thereof by and against persons not parties to such judgment, decree, rule, or order as may be had for the like purposes upon any judgment, decree, rule, or order of the court.

Subpart 4. Witnesses

56A. Failure of witness to attend

1. If any witness who is compellable to attend to give evidence at the hearing of any civil proceeding in the High Court and who has been duly summoned fails to attend at the time and place appointed, the court may issue a warrant to arrest him and bring him before the court, and may adjourn the hearing.

2. The court may impose on any such witness who fails without just excuse (the proof of which excuse shall be on him) to attend as aforesaid a fine not exceeding $500.

3. No witness shall be compellable to attend at the hearing of any civil proceeding in the High Court unless at the time of the service of the order of subpoena, or at some other reasonable time before the hearing, a sum in respect of his allowances and travelling expenses in accordance with the scale prescribed for the time being by regulations made under the Criminal Procedure Act 2011 is tendered or paid to him.

56B. Refusal of witness to give evidence

1. If any witness in any civil proceeding in the High Court, without offering any just excuse, refuses to give evidence when required, or refuses to produce any document which he has been required to produce, or refuses to be sworn, or having been sworn refuses to answer such questions concerning that proceeding as are put to him, the court may order that, unless he sooner consents to give evidence or to produce the document or to be sworn or to answer thse questions put to him, as the case may be, he be detained in custody for any period not exceeding 7 days, and may issue a warrant for his arrest and detention in accordance with the order.

2. If the person so detained, on being brought up again at the hearing, again refuses to give evidence or to produce the document or to be sworn or, having been sworn, to answer the questions put to him, the court, if it thinks fit, may again direct that the witness be detained in custody for the like period, and so again from time to time until he consents to give evidence or to produce the document or to be sworn or to answer as aforesaid.

3. Nothing in this section shall limit or affect any power or authority of the court to punish any witness for contempt of court in any case to which this section does not apply.

56BB. Witnesses entitled to expenses

[Repealed]

Subpart 5. Contempt of court

56C. Contempt of court

1. If any person—

  1. a. assaults, threatens, intimidates, or wilfully insults a Judge, or any Registrar, or any officer of the court, or any juror, or any witness, during his sitting or attendance in court, or in going to or returning from the court; or
  2. b. wilfully interrupts or obstructs the proceedings of the court or otherwise misbehaves in court; or
  3. c. wilfully and without lawful excuse disobeys any order or direction of the court in the course of the hearing of any proceedings—

any constable or officer of the court, with or without the assistance of any other person, may, by order of the Judge, take the offender into custody and detain him until the rising of the court.

2. In any such case as aforesaid, the Judge, if he thinks fit, may sentence the offender to imprisonment for any period not exceeding 3 months, or sentence him to pay a fine not exceeding $1,000 for every such offence; and in default of payment of any such fine may direct that the offender be imprisoned for any period not exceeding 3 months, unless the fine is sooner paid.

3. Nothing in this section shall limit or affect any power or authority of the court to punish any person for contempt of court in any case to which this section does not apply.

Subpart 6. Immigration matters

56CA. Judicial review of decisions under Immigration Act 1987

[Repealed]

Part 1A. Special provisions applying to certain proceedings in the High Court and the Federal Court of Australia

56D. Interpretation

In this Part, unless the context otherwise requires,—

  • Australian proceeding means a proceeding in which a matter for determination arises under—
    1. a. any of sections 46A, 155A, or 155B of the Trade Practices Act 1974 of the Parliament of the Commonwealth of Australia; or
    2. b. a provision of Part 6 or Part 12 of the Trade Practices Act 1974 of the Parliament of the Commonwealth of Australia in so far as it relates to any of sections 46A, 155A, or 155B of that Act,—
  • whether or not any other matter arises for determination; and includes an interlocutory proceeding related to such a proceeding and an application for the issue of execution or enforcement of a judgment or order or injunction given or made or granted in such a proceeding
  • Federal Court means the Federal Court of Australia
  • New Zealand proceeding means a proceeding in which a matter for determination arises under—
    1. a. any of sections 36A, 98H, or 99A of the Commerce Act 1986; or
    2. b. a provision of Part 6 or Part 7 of the Commerce Act 1986 in so far as it relates to any of sections 36A, 98H, or 99A of that Act,—
  • whether or not any other matter arises for determination; and includes an interlocutory proceeding related to such a proceeding and an application for the issue of execution or enforcement of a judgment or order or injunction given or made or granted in such a proceeding.

56DB. Trans-Tasman Proceedings Act 2010 does not affect this Part

This Part is not limited or affected by the Trans-Tasman Proceedings Act 2010.

56DC. Courts (Remote Participation) Act 2010 does not apply to remote appearances under this Part

Nothing in the Courts (Remote Participation) Act 2010 applies to any appearance by video link or telephone conference in accordance with this Part.

56E. High Court may order New Zealand proceedings to be heard in Australia

1. The High Court may, if it is satisfied that a New Zealand proceeding could more conveniently or fairly be tried or heard by the High Court in Australia or that the evidence in a New Zealand proceeding could more conveniently be given in Australia, as the case may be, order that the proceeding be tried or heard in Australia, or that the evidence be taken in Australia, and may sit in Australia for that purpose.

2. The order shall specify—

  1. a. the place in Australia where the proceeding will be tried or heard or the evidence taken, as the case may be:
  2. b. the date or dates of the trial or hearing or on which the evidence will be taken, as the case may be:
  3. c. such other matters relating to the trial or the hearing or the taking of the evidence, as the case may be, as the court thinks fit.

3. Without limiting the powers of the High Court in relation to the proceeding, the High Court may give judgment in, or make any determination for the purposes of, a New Zealand proceeding in Australia.

56F. Australian counsel entitled to practise in High Court

A person who is entitled to practise as a barrister, or solicitor, or both, in the Federal Court is entitled to practise as a barrister, or solicitor, or both in relation to—

  1. a. a New Zealand proceeding before the High Court sitting in Australia:
  2. b. the examination, cross-examination, or re-examination of a witness in Australia whose evidence is being taken by video link or telephone conference in a New Zealand proceeding before the High Court in New Zealand:
  3. c. the making of submissions by video link or telephone conference to the High Court in New Zealand in a New Zealand proceeding.

56G. High Court may set aside subpoena issued in New Zealand proceeding

1. The High Court may set aside an order of subpoena issued by the High Court requiring the attendance of a person in Australia to testify or to produce documents to the High Court for the purposes of a New Zealand proceeding.

2. An application under subsection (1) shall be made by the person served with the order of subpoena and may be made ex parte.

3. Without limiting the grounds on which the order of subpoena may be set aside, the High Court may set the order aside on any of the following grounds:

  1. a. that the witness does not have, and could not reasonably be expected to obtain, the necessary travel documents:
  2. b. that the witness is liable to be detained for the purpose of serving a sentence:
  3. c. that the witness is liable to prosecution for an offence:
  4. d. that the witness is liable to the imposition of a penalty in civil proceedings, not being proceedings for a pecuniary penalty under section 80 or section 83 of the Commerce Act 1986:
  5. e. that the evidence of the witness could be obtained without significantly greater expense by other means:
  6. f. that compliance with the order of subpoena would cause hardship or serious inconvenience to the witness:
  7. g. in the case of an order of subpoena that requires a witness to produce documents, whether or not it also requires the witness to testify, that the court is satisfied that the documents should not be taken out of Australia and that evidence of the contents of the documents can be given by other means.

4. Every application to set aside an order of subpoena under subsection (1) shall be made by affidavit.

5. The affidavit shall—

  1. a. be sworn by the applicant; and
  2. b. set out the facts on which the applicant relies; and
  3. c. be filed in the office of the court that issued the order of subpoena.

6. The Registrar of the court shall cause a copy of the affidavit to be served on the solicitor on the record for the party to the proceedings who obtained the order of subpoena, or if there is no solicitor on the record, on that party.

56H. Injunctions and orders in New Zealand proceedings

Notwithstanding any rule of law, the High Court may, in a New Zealand proceeding, make an order or grant an injunction that the court is empowered to make or grant that requires a person to do an act, or refrain from engaging in conduct, in Australia.

56I. Issue of subpoenas in New Zealand proceedings

1. An order of subpoena may, with the leave of a Judge, be obtained in a New Zealand proceeding requiring a person in Australia to testify, or produce documents or things, or both, to the High Court at a sitting of that court in New Zealand or in Australia.

2. An order of subpoena issued for the purposes of a New Zealand proceeding that requires a witness in Australia to produce documents or things, but does not require the witness to testify, must permit the witness to comply with the order of subpoena by producing the documents or things to a specified registry of the Federal Court.

56J. Powers of Federal Court of Australia

1. The Federal Court of Australia may exercise all the powers of that court—

  1. a. at a sitting of that court in New Zealand held for the purposes of an Australian proceeding:
  2. b. at a sitting of that court in Australia held for the purposes of an Australian proceeding at which the evidence of a witness in New Zealand is taken by video link or telephone conference or at which submissions are made in New Zealand by a barrister, or solicitor, or both or a party to the proceedings by video link or telephone conference.

2. Without limiting subsection (1), the Federal Court of Australia Act 1976 and the rules of court made under that Act that are applicable in relation to Australian proceedings generally shall apply to the practice and procedure of the Federal Court at any sitting of that court of the kind referred to in that subsection.

3. Without limiting subsection (1), the Federal Court may, at any such sitting of the court in New Zealand or in Australia, by order—

  1. a. direct that the hearing or any part of the hearing be held in private:
  2. b. require any person to leave the court:
  3. c. prohibit or restrict the publication of evidence or the name of any party or any witness.

4. Nothing in subsection (1) or subsection (2) applies in relation to—

  1. a. the power of the court to punish any person for contempt; or
  2. b. the prosecution of any person for an offence committed as a witness; or
  3. c. the enforcement or execution of any judgment, order, injunction, writ, or declaration given, made, or granted by the court.

5. An order made under subsection (3) may be enforced by a Judge of the High Court who, for that purpose, shall have and may exercise the powers, including the power to punish for contempt, that would be available to enforce the order if it had been made by that Judge.

56K. Issue of subpoenas in Australian proceedings

1. An order of subpoena that is issued by the Federal Court with the leave of a Judge of that court requiring the attendance of a person in New Zealand to testify or to produce documents for the purposes of an Australian proceeding may be served on that person in New Zealand by leaving a sealed copy of the subpoena with that person personally together with a statement setting out the rights and obligations of that person, including information as to the manner in which application may be made to that court to have the subpoena set aside.

2. A person who has been served with an order of subpoena under subsection (1) is not compellable to comply with the order unless, at the time of service of the order or at some other reasonable time before the hearing, allowances and travelling expenses or vouchers sufficient to enable that person to comply with the order are tendered or paid to that person.

56L. Failure of witness to comply with subpoena issued in Australian proceeding

1. The court may, on receiving a certificate under the seal of the Federal Court stating that a person named in the certificate has failed to comply with an order of subpoena requiring that person to attend as a witness for the purposes of an Australian proceeding, issue a warrant requiring any constable to arrest that person and bring that person before the court.

2. The court may, on the appearance of that person before the court, impose a fine not exceeding $1,000 unless the court is satisfied, the onus of proof of which shall lie with that person, that the failure to comply with the order of subpoena should be excused.

3. In determining whether the failure to comply with the order of subpoena should be excused, the High Court may have regard to—

  1. a. any matters that were not brought to the attention of the Federal Court, if the High Court is satisfied that—
    1. i. the Federal Court would have been likely to have set aside the order of subpoena if those matters had been brought to the attention of that court; and
    2. ii. the failure to bring those matters to the attention of the Federal Court was not due to any fault on the part of the person alleged to have failed to comply with the order of subpoena or was due to an omission by that person that should be excused; and
  2. b. any matters to which the High Court would have regard if the order of subpoena had been issued by the High Court.

4. For the purposes of this section, but subject to subsection (3), a certificate under the seal of the Federal Court stating—

  1. a. that the order of subpoena was issued by that court:
  2. b. that the witness failed to comply with the order of subpoena:
  3. c. in relation to any application made to that court to have the order of subpoena set aside, the decision of that court or any orders or findings of fact made by that court—

shall be conclusive evidence of the matters stated in it.

5. Subject to subsection (3), no findings of fact made by the Federal Court on an application to that court to have the order of subpoena set aside may be challenged by any person alleged to have failed to comply with the order unless the court was deliberately misled in making those findings of fact.

56M. Federal Court of Australia may administer oaths in New Zealand

1. The Federal Court may—

  1. a. at any sitting of that court in New Zealand held for the purposes of an Australian proceeding; or
  2. b. for the purposes of obtaining the testimony of a person in New Zealand by video link or telephone conference at a sitting of that court in Australia— administer an oath or affirmation in accordance with the practice and procedure of that court.

2. Evidence given by a person on oath or affirmation administered by the Federal Court under subsection (1), for the purposes of section 108 of the Crimes Act 1961 (which relates to perjury), be deemed to have been given as evidence in a judicial proceeding on oath.

56N. Orders made by Federal Court of Australia not subject to review

No application for review under Part 1 of the Judicature Amendment Act 1972 and no application for an order of mandamus or prohibition or certiorari or for a declaration or injunction may be brought in respect of any judgment or order or determination of the Federal Court made or given at a sitting of that court in New Zealand in an Australian proceeding.

56O. Contempt of Federal Court of Australia

1. Every person commits an offence who, at any sitting of the Federal Court in New Zealand,—

  1. a. assaults, threatens, intimidates, or wilfully insults—
    1. i. a Judge of that court; or
    2. ii. a registrar or officer of that court; or
    3. iii. a person appearing as a barrister, or solicitor, or both, before that court; or
    4. iv. a witness in proceedings before that court; or
  2. b. wilfully interrupts or obstructs the proceedings; or
  3. c. wilfully and without lawful excuse disobeys any order or direction of the court in the course of the proceedings.

2. Every person who commits an offence against this section is liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $1,000.

56P. Arrangements to facilitate sittings

1. The Chief Justice of New Zealand may make arrangements with the Chief Justice of the Federal Court for the purposes of giving effect to this Part.

2. Without limiting subsection (1) arrangements may be made—

  1. a. to enable the High Court to sit in Australia in New Zealand proceedings in the courtrooms of the Federal Court or in other places in Australia:
  2. b. to enable the Federal Court to sit in New Zealand in the courtrooms of the High Court or in other places in New Zealand:
  3. c. to enable evidence to be given and the submissions of counsel to be made in New Zealand proceedings or in Australian proceedings by video link or telephone conference:
  4. d. for the provision of registry facilities and court staff.

56Q. Privileges and immunities of Judges, counsel, and witnesses in Australian proceedings

1. A Judge of the Federal Court sitting as a Judge of that court in New Zealand in an Australian proceeding has all the protections, privileges, and immunities of a Judge of the High Court.

2. Every witness who gives evidence in an Australian proceeding—

  1. a. at a sitting in New Zealand of the Federal Court; or
  2. b. by video link or telephone conference at a sitting in Australia of the Federal Court— has all the privileges and immunities of a witness in the High Court.

3. A person appearing as a barrister, or solicitor, or both, in an Australian proceeding—

  1. a. at a sitting in New Zealand of the Federal Court; or
  2. b. by video link or telephone conference at a sitting in Australia of the Federal Court— has all the privileges and immunities of counsel in the High Court.

4. A person appearing as a party in an Australian proceeding—

  1. a. at a sitting in New Zealand of the Federal Court; or
  2. b. by video link or telephone conference at a sitting in Australia of the Federal Court—

has all the privileges and immunities of a party in a proceeding in the High Court.

56R. High Court may take evidence at request of Federal Court

1. The High Court may, at the request of the Federal Court, take evidence in New Zealand for the Federal Court for the pur- poses of an Australian proceeding and may, by order, make any provision it considers appropriate for the purpose of taking that evidence.

2. An order may require a specified person to take such steps the High Court considers appropriate for taking the evidence.

3. Without limiting subsections (2) and (3), an order may, in particular, make provision—

  1. a. for the examination of witnesses, either orally or in writing; or
  2. b. for the production of documents or things; or
  3. c. for the inspection, photographing, preservation, custody, or detention of any property; or
  4. d. for taking samples of property and carrying out experiments on or with property.

4. The High Court may make an order requiring a person to give evidence either orally or by tendering a written document otherwise than on oath or affirmation if the Federal Court requests it to do so.

5. A person who has been served with an order made under this section is not compellable to comply with the order unless, at the time of service of the order or at some other reasonable time before that person is required to comply with the order, allowances and travelling expenses or vouchers sufficient to enable that person to comply with the order are tendered or paid to that person.

6. A person is not compellable to give evidence pursuant to an order under this section that he or she is not compellable to give in the Australian proceeding to which the request relates.

56S. Power to make rules for purposes of this Part

1. Rules may be made under section 51C, for or in relation to, Australian proceedings and New Zealand proceedings.

2. Without limiting subsection (1), rules may be made that make provision for, or in relation to,—

  1. a. the giving of evidence and the making of submissions in New Zealand proceedings by video link or telephone conference:
  2. b. receiving, for the purposes of the Evidence Amendment Act 1990, facsimiles as evidence of documents or things:
  3. c. the issuing of subpoenas for service in Australia for the purposes of New Zealand proceedings and the service of those subpoenas:
  4. d. the payment of witnesses required to comply with orders of subpoena served in Australia for the purposes of New Zealand proceedings of amounts in respect of expenses and loss of income occasioned by compliance with those orders:
  5. e. the lodging of documents or things with the Federal Court in compliance with orders of subpoena issued in New Zealand proceedings that require only the production of documents or things by witnesses:
  6. f. the transmission of documents or things lodged with the High Court in Australian proceedings in compliance with orders of subpoena issued by the Federal Court or certified copies of such documents to the Federal Court:
  7. g. the hearing of applications for orders under section 56G:
  8. h. sittings of the High Court in Australia:
  9. i. giving effect to arrangements made under section 56P:
  10. j. the form of certification of judgments, orders, and injunctions in New Zealand proceedings:
  11. k. the taking of evidence under section 56R:
  12. l. such other matters as are contemplated by or necessary for giving effect to this Part.

Part 2. The Court of Appeal

A. Constitution of the court

57. Constitution of Court of Appeal

1. There shall continue to be in and for New Zealand a court of record called, as heretofore, the Court of Appeal of New Zealand:

provided and it is hereby declared that the Court of Appeal heretofore and now held and henceforth to be held is and shall be deemed and taken to be the same court.

2. Subject to this Part, the Court of Appeal comprises—

  1. a. a Judge of the High Court appointed by the Governor-General as a Judge of the Court of Appeal and as President of that court:
  2. b. not fewer than 5 nor more than 9 other Judges of the High Court appointed by the Governor-General as Judges of the Court of Appeal.

3. Any Judge may be appointed to be a Judge of the Court of Appeal either at the time of his appointment as a Judge of the High Court or at any time thereafter.

4. Every Judge of the Court of Appeal shall continue to be a Judge of the High Court, and may from time to time sit as or exercise any of the powers of a Judge of the High Court.

5. Every Judge of the Court of Appeal shall hold office as a Judge of that court so long as he holds office as a Judge of the High Court: provided that, with the prior approval of the Governor-General, any Judge of the Court of Appeal may resign his office as a Judge of that court without resigning his office as a Judge of the High Court.

6. The Judges of the Court of Appeal have seniority over all the Judges of the High Court (including any additional Judge of the Court of Appeal) except the Chief Justice and the other Judges of the Supreme Court.

6A. The President of the Court of Appeal has seniority over the other Judges of the Court of Appeal.

6B. Other Judges of the Court of Appeal appointed on different dates have seniority among themselves according to those dates.

6C. Other Judges of the Court of Appeal appointed on the same date have seniority among themselves according to their seniority as Judges of the High Court.

6D. A Judge of the Court of Appeal who resigns office as a Judge of that court without resigning office as a Judge of the High Court then has, as a Judge of the High Court, the seniority that he or she would have had if he or she had not been appointed as a Judge of the Court of Appeal.

7. While any vacancy exists in the office of President of the Court of Appeal, or during any absence from New Zealand of the President, or while by reason of illness or any other cause he is prevented from exercising the duties of his office, the senior Judge of the Court of Appeal shall have authority to act as President of the Court of Appeal and to execute the duties of that office and to exercise all powers that may be lawfully exercised by the President.

8. The jurisdiction of the Court of Appeal shall not be affected by any vacancy in the number of the Judges of that court.

57A. Judges of Court of Appeal act on full-time basis but may be authorised to act part-time

1. A person acts as a Judge of the Court of Appeal on a full-time basis unless he or she is authorised by the Attorney-General to act on a part-time basis.

2. The Attorney-General may, in accordance with subsection (4), authorise a Judge to act on a part-time basis for any specified period.

3. To avoid doubt, an authorisation under subsection (2) may take effect as from a Judge’s appointment or at any other time, and may be made more than once in respect of the same Judge.

4. The Attorney-General may authorise a Judge to act on a parttime basis only—

  1. a. on the request of the Judge; and
  2. b. with the concurrence of the President of the Court of Appeal.

5. In considering whether to concur under subsection (4), the President of the Court of Appeal must have regard to the ability of the court to discharge its obligations in an orderly and expeditious way.

6. A Judge who is authorised to act on a part-time basis must resume acting on a full-time basis at the end of the authorised part-time period.

7. The basis on which a Judge acts must not be altered during the term of the Judge’s appointment without the Judge’s consent, but consent under this subsection is not necessary if the alteration is required by subsection (6).

8. This section applies only to Judges who are appointed as Judges of the Court of Appeal.

58. Court of Appeal to sit in divisions

1. Except as provided in sections 58D and 61A, for the purposes of any proceedings in the Court of Appeal, the court sits in divisions comprising 3 Judges.

2. [Repealed]

3. There are—

  1. a. 1 or more divisions of the Court of Appeal for the purposes of criminal proceedings; and
  2. b. 1 or more divisions of the Court of Appeal for the purposes of civil proceedings.

4. Each division of the Court of Appeal may exercise all the powers of the Court of Appeal.

5. A division of the court may exercise any powers of the court even though 1 or more divisions of the court or a full court is exercising any powers of the court at the same time.

6. If the majority of the members of a division of the court considers it desirable to do so, the division may—

  1. a. refer any proceeding; or
  2. b. state any case; or
  3. c. reserve any question— for the consideration of a full court of the Court of Appeal, and in that case a full court has the power to hear and determine the proceeding, case, or question.

58A. Composition of criminal appeals division or divisions

1. For the purposes of any criminal proceeding that is heard by a division, the Court of Appeal comprises—

  1. a. 3 Judges of the Court of Appeal holding office under section 57(2); or
  2. b. 2 Judges of the Court of Appeal holding office under section 57(2) and 1 Judge of the High Court nominated by the Chief Justice under subsection (2); or
  3. c. 1 Judge of the Court of Appeal holding office under section 57(2) and 2 Judges of the High Court nominated by the Chief Justice under subsection (2).

2. Except where the work of the High Court renders it impracticable for the Chief Justice to do so, the Chief Justice must from time to time, after consulting the President of the Court of Appeal and the Chief High Court Judge, nominate the Judges of the High Court who may comprise members of the Court of Appeal for the purposes of any proceeding or proceedings to which subsection (1) relates.

3. Every nomination under subsection (2) must be made either—

  1. a. in respect of a specified case or specified cases; or
  2. b. in respect of every case to be heard by the Court of Appeal during a specified period not exceeding 3 months.

4. For the purposes of this section, criminal proceeding means an appeal or application to the Court of Appeal under Part 6 of the Criminal Procedure Act 2011.

58B. Composition of civil appeals division or divisions

1. For the purposes of any civil proceeding that is heard by a division of the court, the Court of Appeal comprises—

  1. a. 3 Judges of the Court of Appeal holding office under section 57(2); or
  2. b. 2 Judges of the Court of Appeal holding office under section 57(2) and 1 Judge of the High Court nominated by the Chief Justice under subsection (2); or
  3. c. 1 Judge of the Court of Appeal holding office under section 57(2) and 2 Judges of the High Court nominated by the Chief Justice under subsection (2).

2. Except where the work of the High Court renders it impracticable for the Chief Justice to do so, the Chief Justice must from time to time, after consulting the President of the Court of Appeal and the Chief High Court Judge, nominate the Judges of the High Court who may comprise members of the Court of Appeal for the purposes of any proceeding or proceedings to which subsection (1) relates.

3. Every nomination under subsection (2) must be made either—

  1. a. in respect of a specified case or specified cases; or
  2. b. in respect of every case to be heard by the Court of Appeal during a specified period not exceeding 3 months.

4. For the purposes of this section, the term civil proceeding means—

  1. a. any appeal to the Court of Appeal against any judgment or order given or made in a proceeding other than a criminal proceeding:
  2. b. any application relating to an appeal of the kind mentioned in paragraph (a):
  3. c. any application for leave to bring an appeal of the kind mentioned in paragraph (a):
  4. d. any proceeding transferred to the Court of Appeal under section 64.

58C. Assignment of Judges to divisions

1. Judges are assigned to act as members of a criminal or civil division of the Court of Appeal in accordance with a procedure adopted from time to time by Judges of the Court of Appeal holding office under section 57(2).

2. The President of the Court of Appeal must publish in the Gazette any procedure adopted under subsection (1).

3. A Judge of the High Court who is eligible to act as a Judge of a division of the Court of Appeal because of a nomination made under section 58A(2) or section 58B(2) may not be assigned to a division without the concurrence of the Chief Justice and the Chief High Court Judge.

58D. Court of Appeal to sit as full court in certain cases

1. Subject to subsection (3), a full court consists of 5 Judges.

2. Subject to section 58F, a full court is constituted only by Judges of the Court of Appeal holding office under section 57(2).

3. Where, pending the determination of any proceeding, 1 or more of the members of a full court before whom the proceeding is being heard or was heard—

  1. a. dies; or
  2. b. becomes seriously ill; or
  3. c. is otherwise unavailable for any reason,— it is not necessary for that proceeding to be reheard, and the remaining members may continue to act as a full court for the purposes of this section with power to determine the proceeding or any incidental matter (including the question of costs) that may arise in the course of that proceeding.

4. The Court of Appeal must sit as a full court to hear and determine—

  1. a. cases that are considered, in accordance with the procedure adopted under section 58E, to be of sufficient significance to warrant the consideration of a full court:
  2. b. any proceeding, case, or question referred under section 58(6) for hearing and determination by a full court:
  3. c. any appeal from a decision of the Court Martial Appeal Court under section 10 of the Court Martial Appeals Act 1953.

58E. Cases of sufficient significance for full court

1. The question whether a case is of sufficient significance to warrant the consideration of a full court must be determined in accordance with the procedure which those Judges of the Court of Appeal holding office under section 57(2) from time to time adopt.

2. The President of the Court of Appeal must publish in the Gazette any procedure adopted by the Judges of the Court of Appeal under subsection (1).

58F. High Court Judges sitting on full court

1. Whenever the President of the Court of Appeal certifies in writing that due to—

  1. a. the illness or absence on leave of any of the Judges holding office under section 57(2); or
  2. b. the need for the expertise of a specific Judge of the High Court in a particular case; or
  3. c. any other exceptional circumstances,—

it is necessary for a specified Judge who has been assigned to a division of the court under section 58C to sit as a member of the full court, that Judge may sit as a member of the full court.

2. No more than 1 Judge of the High Court may sit as a member of the full court at any one time.

58G. Authority of High Court Judges

1. The fact that a Judge of the High Court acts as a Judge of the Court of Appeal is conclusive evidence of the Judge’s authority to do so, and no judgment or determination given or made by the Court of Appeal while the Judge so acts may be questioned on the ground that the occasion for the Judge so acting had not arisen or had ceased to exist.

2. A Judge of the High Court who has acted as a Judge of the Court of Appeal may attend sittings of the Court of Appeal for the purpose of giving any judgment or passing sentence in or otherwise completing any proceeding in relation to any case that has been heard by the Judge while he or she so acted.

59. Judgment of Court of Appeal

1. The judgment of the court must be in accordance with the opinion of a majority of the Judges hearing the proceeding concerned.

2. If the Judges present are equally divided in opinion, the judgment or order appealed from or under review is taken to be affirmed.

3. The delivery of the judgment of the Court of Appeal may be effected in any manner provided by rules made under section 51C.

60. Sittings of Court of Appeal

1. The Court of Appeal may from time to time appoint ordinary or special sittings of the court, and may from time to time make rules, not inconsistent with the rules of practice and procedure of the Court of Appeal for the time being in force under this Act or with the laws of New Zealand, in respect of the places and times for holding sittings of the court, the order of disposing of business, and any other necessary matters.

2. If present at a sitting of the Court of Appeal, the President presides.

3. If the President of the Court of Appeal is absent from a sitting of the court, the senior Judge of the court present presides.

4. The court has power from time to time to adjourn any sitting until such time and to such place as it thinks fit.

60A. Court of Appeal may sit in divisions

[Repealed]

61. Adjournment in cases of absence of some of the Judges

Where, by reason of the absence of all or any 1 or more of the Judges of the Court of Appeal at the time appointed for the sitting of the court or any adjournment thereof, it is necessary to adjourn the sitting of the court to a future day, any 1 or more of the Judges at the time appointed for such sitting, or at the time of any adjournment thereof, or the Registrar of the said court in case none of the Judges thereof are present, may adjourn or further adjourn such sitting to such future day and hour as such Judge or Judges or such Registrar think fit.

61A. Incidental orders and directions may be made and given by 1 Judge

1. In any civil appeal or in any civil proceeding before the Court of Appeal, any Judge of that court, sitting in chambers, may make such incidental orders and give such incidental directions as he thinks fit, not being an order or a direction that determines the appeal or disposes of any question or issue that is before the court in the appeal or proceeding.

2. Every order or direction made or given by a Judge of the Court of Appeal under subsection (1) may be discharged or varied by any Judges of that court who together have jurisdiction, in accordance with section 58A or section 58B or section 58D, as the case may be, to hear and determine the proceeding.

3. Any Judge of the Court of Appeal may review a decision of the Registrar made within the civil jurisdiction of the court under a power conferred on the Registrar by any rule of court, and may confirm, modify, or revoke that decision as he thinks fit.

4. The provisions of this section shall apply notwithstanding anything in section 58.

5. This section shall have effect from a date to be appointed by the Governor-General by Order in Council.

62. Power to remit proceedings to the High Court

The Court of Appeal shall have power to remit any proceedings in any cause pending before it to the High Court or a single Judge thereof.

63. Judgments of Court of Appeal may be enforced by the High Court

All judgments, decrees, and orders of the Court of Appeal may be enforced by the High Court as if they had been given or made by that court.

B. Civil jurisdiction

Subpart 1. Removal of proceedings from the High Court

64. Transfer of civil proceedings from High Court to Court of Appeal

1. If the circumstances of a civil proceeding pending before the High Court are exceptional, the High Court may order that the proceeding be transferred to the Court of Appeal.

2. Without limiting the generality of subsection (1), the circumstances of a proceeding may be exceptional if—

  1. a. a party to the proceeding intends to submit that a relevant decision of the Court of Appeal should be overruled by the Court of Appeal:
  2. b. the proceeding raises 1 or more issues of considerable public importance that need to be determined urgently, and those issues are unlikely to be determined urgently if the proceeding is heard and determined by both the High Court and the Court of Appeal:
  3. c. the proceeding does not raise any question of fact or any significant question of fact, but does raise 1 or more questions of law that are the subject of conflicting decisions of the High Court.

3. In deciding whether to transfer a proceeding under subsection (1), a Judge must have regard to the following matters:

  1. a. the primary purpose of the Court of Appeal as an appellate court:
  2. b. the desirability of obtaining a determination at first instance and a review of that determination on appeal:
  3. c. whether a full court of the High Court could effectively determine the question in issue:
  4. d. whether the proceeding raises any question of fact or any significant question of fact:
  5. e. whether the parties have agreed to the transfer of the proceeding to the Court of Appeal:
  6. f. any other matter that the Judge considers that he or she should have regard to in the public interest.

4. The fact that the parties to a proceeding agree to the transfer of the proceeding to the Court of Appeal is not in itself a sufficient ground for an order transferring the proceeding.

5. If the High Court transfers a proceeding under subsection (1), the Court of Appeal has the jurisdiction of the High Court to hear and determine the proceeding.

65. Decision of Court of Appeal final as regards tribunals of New Zealand

[Repealed]

Subpart 2. Appeals from decisions of the High Court

66. Court may hear appeals from judgments and orders of the High Court

The Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment, decree, or order save as hereinafter mentioned, of the High Court, subject to the provisions of this Act and to such rules and orders for regulating the terms and conditions on which such appeals shall be allowed as may be made pursuant to this Act.

Subpart 3. Appeals from inferior courts

67. Appeals against decisions of High Court on appeal

1. The decision of the High Court on appeal from an inferior court is final, unless a party, on application, obtains leave to appeal against that decision—

  1. a. to the Court of Appeal; or
  2. b. directly to the Supreme Court (in exceptional circumstances as provided for in section 14 of the Supreme Court Act 2003).

2. An application under subsection (1) for leave to appeal to the Court of Appeal must be made to the High Court or, if the High Court refuses leave, to the Court of Appeal.

3. An application under subsection (1) for leave to appeal directly to the Supreme Court must be made to the Supreme Court.

4. If leave to appeal referred to in subsection (1)(a) is obtained, the decision of the Court of Appeal on appeal from the High Court is final unless a party, on application, obtains leave to appeal against that decision to the Supreme Court.

5. Subsections (1), (3), and (4) are subject to the Supreme Court Act 2003.

68. Direct appeal from decision of inferior courts

[Repealed]

C. Criminal jurisdiction

Subpart 1. Trial at bar

69. Trial at bar

1. Where a bill of indictment has been found in the High Court, or any inquisition has been found, or any criminal information been granted against any person for any crime, if it appears to the High Court on affidavit on the part of the accused or of the prosecutor that the case is one of extraordinary importance or difficulty, and that it is desirable that it should be tried before the Judges at bar, the High Court may grant a rule nisi, and, if no sufficient cause is shown, may make the same absolute for the removal of such indictment, inquisition, or information, and the proceedings thereon, into the Court of Appeal, and for the trial of the same at bar at the next or other sitting of such Court of Appeal, and may direct that a special or common jury, as the High Court thinks fit, be summoned from such jury district as the court directs to serve upon such trial; and such proceedings, as nearly as may be, shall thereupon be had as upon a trial at bar in England.

2. The Court of Appeal shall have the same jurisdiction, authority, and power in respect thereof as the Queen’s Bench Division of the High Court of Justice has in England in respect of a trial at bar.

Subpart 2. Appeals from convictions

[Repealed]

70. Appeal from judgment of Supreme Court on conviction

[Repealed]

D. Miscellaneous

71. Rules of practice

[Repealed]

72. Appointment of officers

There may from time to time be appointed under the State Sector Act 1988 such Registrars, Deputy Registrars, and other officers as may be required for the conduct of the business of the Court of Appeal.

73. Powers and duties of officers

All such Registrars and other officers shall have in respect of the Court of Appeal such powers and duties as are prescribed by rules made under this Act.

74. Court seal

The Court of Appeal shall have in the custody of the Registrar a seal for the sealing of writs, orders, decrees, office copies, certificates, reports, and other instruments issued by such Registrar and requiring to be sealed.

75. Power to fix fees

[Repealed]

Part 3. Rules and provisions of law in judicial matters generally

Subpart 1. Removal of technical defects

[Repealed]

76. Power to courts to amend mistakes and supply omissions in warrants, orders, etc

[Repealed]

Subpart 2. Limitation of actions

[Repealed]

77. Limitation of actions for merchants’ accounts

[Repealed]

78. Limitation not barred by claims subsequently arising

[Repealed]

79. Absence beyond seas or imprisonment of a creditor not to be a disability

[Repealed]

80. Period of limitation to run as to joint debtors in New Zealand, though some are beyond seas

[Repealed]

81. Judgment recovered against joint debtors in New Zealand to be no bar to proceeding against others beyond seas after their return

[Repealed]

82. Part payment by one contractor, etc, not to prevent bar in favour of another contractor, etc

[Repealed]

Subpart 3. Sureties

83. Consideration for guarantee need not appear by writing

[Repealed]

84. A surety who discharges the liability to be entitled to assignment of all securities held by the creditor

Every person who, being surety for the debt or duty of another, or being liable with another for any debt or duty, pays or satisfies such debt or performs such duty shall be entitled to have assigned to him, or a trustee for him, every judgment, specialty, or other security held by the creditor in respect of such debt or duty, whether such judgment, specialty, or other security is or is not deemed at law to be satisfied by the payment of the debt or performance of the duty.

85. Rights of surety in such case

1. Every such person shall be entitled to stand in the place of the creditor, and to use all the remedies, and if need be, and upon a proper indemnity, to use the name of the creditor in any civil proceedings in order to obtain from the principal debtor or any co-surety, co-contractor, or co-debtor, as the case may be, indemnification for the advances made and loss sustained by the person paying or satisfying such debt or performing such duty.

2. Such payment, satisfaction, or performance made by such surety shall not be pleadable in bar of any such action or other proceeding by him.

86. Rights of co-sureties, etc, as between themselves

A co-surety, co-contractor, or co-debtor shall not be entitled to recover from any other co-surety, co-contractor, or co-debtor by the means aforesaid more than the just proportion to which, as between those parties themselves, such last-mentioned person is justly liable.

Subpart 4. Interest on money

87. Interest on debts and damages

1. In any proceedings in the High Court, the Court of Appeal, or the Supreme Court for the recovery of any debt or damages, the court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate, not exceeding the prescribed rate, as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment:

provided that nothing in this subsection shall—

  1. a. authorise the giving of interest upon interest; or
  2. b. apply in relation to any debt upon which interest is payable as of right, whether by virtue of any agreement, enactment, or rule of law, or otherwise; or
  3. c. affect the damages recoverable for the dishonour of a bill of exchange.

2. In any proceedings in the High Court, the Court of Appeal, or the Supreme Court for the recovery of any debt upon which interest is payable as of right, and in respect of which the rate of interest is not agreed upon, prescribed, or ascertained under any agreement, enactment, or rule of law or otherwise, there shall be included in the sum for which judgment is given interest at such rate, not exceeding the prescribed rate, as the court thinks fit for the period between the date as from which the interest became payable and the date of the judgment.

3. In this section the term the prescribed rate means the rate of 7.5% per annum, or such other rate as may from time to time be prescribed for the purposes of this section by the Governor-General by Order in Council.

Subpart 5. Lost instruments

88. Actions on lost instruments

In case of any action founded on any negotiable instrument, the court may order that the loss of such instrument shall not be taken advantage of, provided an indemnity is given to the satisfaction of the court or a Registrar thereof against the claims of any other person upon such negotiable instrument.

Subpart 6. Continued exercise of powers by judicial officers

88A. Judicial officers to continue in office to complete proceedings

1. A judicial officer whose term of office has expired or who has retired may continue in office for the purpose of determining, or giving judgment in, proceedings that the judicial officer has heard either alone or with others.

2. A judicial officer must not continue in office under subsection (1) for longer than a month without the consent of the Minister of Justice.

3. The fact that a judicial officer continues in office does not affect the power to appoint another person to that office.

4. A judicial officer who continues in office is entitled to be paid the remuneration and allowances to which the officer would have been entitled if the term of office had not expired or the officer had not retired.

5. In this section, judicial officer means a person who has in New Zealand authority under an enactment to hear, receive, and examine evidence.

Subpart 7. Miscellaneous provisions and rules of law

88B. Restriction on institution of vexatious actions

1. If, on an application made by the Attorney-General under this section, the High Court is satisfied that any person has persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the High Court or in any inferior court, and whether against the same person or against different persons, the court may, after hearing that person or giving him an opportunity of being heard, order that no civil proceeding or no civil proceeding against any particular person or persons shall without the leave of the High Court or a Judge thereof be instituted by him in any court and that any civil proceeding instituted by him in any court before the making of the order shall not be continued by him without such leave.

2. Leave may be granted subject to such conditions (if any) as the court or Judge thinks fit and shall not be granted unless the court or Judge is satisfied that the proceeding is not an abuse of the process of the court and that there is prima facie ground for the proceeding.

3. No appeal shall lie from an order granting or refusing such leave.

89. Administration suits

[Repealed]

90. Stipulations not of the essence of contracts

Stipulations in contracts as to time or otherwise which would not, before 13 September 1882 (the date of the coming into force of the Law Amendment Act 1882), have been deemed to be or to have become the essence of such contracts in a court of equity shall receive in all courts the same construction and effect as they would have theretofore received in equity.

91. Damages by collision at sea

[Repealed]

92. Discharge of debt by acceptance of part in satisfaction

An acknowledgement in writing by a creditor, or by any person authorised by him in writing in that behalf, of the receipt of a part of his debt in satisfaction of the whole debt shall operate as a discharge of the debt, any rule of law notwithstanding.

93. Provisions of 9 Geo IV, c 14, ss 1 and 8, extended to acknowledgments by agents

[Repealed]

94. Judgment against one of several persons jointly liable not a bar to action against others

A judgment against 1 or more of several persons jointly liable shall not operate as a bar or defence to civil proceedings against any of such persons against whom judgment has not been recovered, except to the extent to which the judgment has been satisfied, any rule of law notwithstanding.

94A. Recovery of payments made under mistake of law

1. Subject to the provisions of this section, where relief in respect of any payment that has been made under mistake is sought in any court, whether in civil proceedings or by way of defence, set off, counterclaim, or otherwise, and that relief could be granted if the mistake was wholly one of fact, that relief shall not be denied by reason only that the mistake is one of law whether or not it is in any degree also one of fact.

2. Nothing in this section shall enable relief to be given in respect of any payment made at a time when the law requires or allows, or is commonly understood to require or allow, the payment to be made or enforced, by reason only that the law is subsequently changed or shown not to have been as it was commonly understood to be at the time of the payment.

94B. Payments made under mistake of law or fact not always recoverable

Relief, whether under section 94A or in equity or otherwise, in respect of any payment made under mistake, whether of law or of fact, shall be denied wholly or in part if the person from whom relief is sought received the payment in good faith and has so altered his position in reliance on the validity of the payment that in the opinion of the court, having regard to all possible implications in respect of other persons, it is inequitable to grant relief, or to grant relief in full, as the case may be.

95. Limitation of time within which wills may be impeached

[Repealed]

96. Jurisdiction as to costs in administration suits

[Repealed]

97. Court empowered to grant special relief in cases of encroachment

[Repealed]

98. Custody and education of infants

[Repealed]

98A. Proceedings in lieu of writs

1. Where, immediately before the commencement of the Judicature Amendment Act (No 2) 1985,—

  1. a. the court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari, or any other description; or
  2. b. in any proceedings in the court for any relief or remedy any writ might have issued out of the court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the court or of course,—

then, after the commencement of that Act,—

  1. c. the court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but
  2. d. the court shall not issue any such writ; and
  3. e. the court shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the High Court Rules; and
  4. f. proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the High Court Rules.

2. Subject to the High Court Rules, this section does not apply to—

  1. a. the writ of habeas corpus; or
  2. b. any writ of execution for the enforcement of a judgment or order of the court; or
  3. c. any writ in aid of any such writ of execution.

99. In cases of conflict rules of equity to prevail

Generally in all matters in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter the rules of equity shall prevail.

99A. Costs where intervener or counsel assisting court appears

1. Where the Attorney-General or the Solicitor-General or any other person appears in any civil proceedings or in any proceedings on any appeal and argues any question of law or of fact arising in the proceedings, the court may, subject to the provisions of any other Act, make such order as it thinks just—

  1. a. as to the payment by any party to the proceedings of the costs incurred by the Attorney-General or the Solicitor-General in so doing; or
  2. b. as to the payment by any party to the proceedings or out of public funds of the costs incurred by any other person in so doing; or
  3. c. as to the payment by the Attorney-General or the Solicitor-General or that other person of any costs incurred by any of those parties by reason of his so doing.

2. Where the court makes an order pursuant to subsection (1)(b), the Registrar of the court shall forward a copy of the order to the chief executive of the Ministry of Justice who shall make the payment out of money appropriated by Parliament for the purpose.

99B. Technical advisers

1. The Court of Appeal or the Supreme Court may appoint a suitably qualified person (a technical adviser) to assist it by giving advice in an appeal in a proceeding involving a question arising from evidence relating to scientific, technical, or economic matters, or from other expert evidence, if the court is of the opinion that, in considering the evidence, it is desirable to have expert assistance.

2. The technical adviser must give the advice in such manner as the court may direct during the course of the proceeding on any question referred to the technical adviser.

3. Advice given by a technical adviser—

  1. a. is information provided to the court; and
  2. b. may be given such weight as the court thinks fit.

4. [Repealed]

99C. Appointment and other matters

1. A technical adviser may be appointed by the Court of Appeal on its own initiative or on the application of a party to the proceeding.

2. A technical adviser may be removed from office by the Court of Appeal for disability affecting performance of duty, neglect of duty, bankruptcy, or misconduct proved to the satisfaction of the court.

3. A technical adviser may resign office by notice in writing to the Court of Appeal.

4. The remuneration of a technical adviser must—

  1. a. be fixed by the Court of Appeal; and
  2. b. include a daily fee for any day on which the technical adviser is required to assist the court.

5. Civil or criminal proceedings may not be commenced against a technical adviser in relation to advice given to the Court of Appeal in good faith under section 99B.

99D. Procedure and rules relating to technical advisers

1. The Court of Appeal may adopt any procedures and practices in relation to the advice of a technical adviser as it considers just, but those procedures and practices are subject to any rules referred to in subsection (2).

2. Rules may be made under section 51C relating to—

  1. a. the appointment of technical advisers, including (without limitation)—
    1. i. the information to be given to the parties to an appeal, before a technical adviser is appointed for the appeal,—
      1. A. about the persons who are considered suitable for appointment; and
      2. B. about the matters on which the assistance of the proposed technical adviser is to be sought:
    2. ii. the submissions that those parties may make to the Court of Appeal about the proposed appoint- ment of a technical adviser and the assistance to be given by the technical adviser:
  2. b. the conduct of proceedings involving technical advisers.

100. Independent medical examination

1. Where the physical or mental condition of a person who is a party to any civil proceedings is relevant to any matter in question in those proceedings, the High Court may order that that person submit himself to examination at a time and place specified in the order by 1 or more medical practitioners named in the order.

2. A person required by an order under subsection (1) to submit to examination may have a medical practitioner chosen by that person attend that person’s examination.

3. The court may order that the party seeking the order pay to the person to be examined a reasonable sum to meet that person’s travelling and other expenses of and incidental to the examination, including the expenses of having a medical practitioner chosen by that person attend that person’s examination.

4. Where an order is made under subsection (1), the person required by that order to submit to examination shall do all things reasonably requested, and answer all questions reasonably asked of that person, by the medical practitioner for the purposes of the examination.

5. If a person ordered under subsection (1) to submit to examination fails, without reasonable excuse, to comply with the order, or in any way obstructs the examination, the court may, on terms, stay the proceedings or strike out the pleading of that person.

6. This section applies to the Crown and every department of the public service.

7. Nothing in this section affects the provisions of the Workers’ Compensation Act 1956.

100A. Regulations

1. Notwithstanding anything in sections 51 and 51C, the Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:

  1. a. prescribing the matters in respect of which fees are payable under this Act:
  2. b. prescribing scales of fees for the purposes of this Act and for the purposes of any proceedings before the High Court or the Court of Appeal, whether under this Act or any other enactment:
  3. c. prescribing the fees, travelling allowances, and expenses payable to interpreters and to persons giving evidence in proceedings to which this Act applies:
  4. d. in order to promote access to justice, empowering Registrars or Deputy Registrars of the High Court and the Court of Appeal to waive, reduce, or postpone the payment of a fee required in connection with a proceeding or an intended proceeding, or to refund, in whole or in part, such a fee that has already been paid, if satisfied on the basis of criteria specified under paragraph (da) that—
    1. i. the person otherwise responsible for payment of the fee is unable to pay or absorb the fee in whole or in part; or
    2. ii. unless 1 or more of those powers are exercised in respect of a proceeding that concerns a matter of genuine public interest, the proceeding is unlikely to be commenced or continued:
  5. da. prescribing, for the purposes of the exercise of a power under paragraph (d), the criteria—
    1. i. for assessing a person’s ability to pay a fee; and
    2. ii. for identifying proceedings that concern matters of genuine public interest:
  6. db. empowering Registrars or Deputy Registrars of the High Court and the Court of Appeal to postpone the payment of a fee pending the determination of—
    1. i. an application for the exercise of a power specified in paragraph (d); or
    2. ii. an application for review under section 100B:
  7. dc. making provision in relation to the postponement, under the regulations, of the payment of any fee, which provision may (without limitation) include provision—
    1. i. for the recovery of the fee after the expiry of the period of postponement; and
    2. ii. for restrictions to apply (after the expiry of the period of postponement and so long as the fee remains unpaid) on the steps that may be taken in the proceedings in respect of which the fee is payable:
  8. dd. providing for the manner in which an application for the exercise of a power specified in paragraph (d) or paragraph (db) is to be made, including, without limitation, requiring such an application to be in a form approved for the purpose by the chief executive of the Ministry of Justice:
  9. e. altering or revoking any rules relating to fees contained in the High Court Rules or the Court of Appeal Rules or any other rules of court.

2. No fee is payable for an application for the exercise of a power specified in subsection (1)(d) or (db).

100B. Reviews of decisions of Registrars concerning fees

1. Any person who is aggrieved by any decision of a Registrar or Deputy Registrar under regulations made under section 100A(d) may apply for a review,—

  1. a. in the case of a decision by the Registrar or a Deputy Registrar of the Court of Appeal, to a Judge of that court:
  2. b. in the case of a decision by a Registrar or Deputy Registrar of the High Court, to a Judge or an Associate Judge of that court.

2. An application under subsection (1) may be made within 20 working days after the date on which the applicant is notified of the decision of the Registrar or Deputy Registrar, or within any further time that the Judge or Associate Judge allows on application made for that purpose either before or after the expiration of those 20 working days.

3. Applications under this section may be made on an informal basis.

4. Reviews under this section are—

  1. a. conducted by way of rehearing of the matter in respect of which the Registrar or Deputy Registrar made the decision; and
  2. b. dealt with on the papers, unless the Judge or Associate Judge directs otherwise.

5. On dealing with an application for a review of a decision of a Registrar or Deputy Registrar, the Judge or Associate Judge may confirm, modify, or reverse the decision of the Registrar or the Deputy Registrar.

6. No fee is payable for an application under this section.

101. Words imputing unchastity to women actionable without special damage

[Repealed]

Schedule 1. Enactments Consolidated

[Schedule 1 omitted due length - full text is available online at: http://www.legislation.govt.nz/act/public/1908/0089/latest/DLM147652.html?search=ts_act%40bill%40regulation%40deemedreg_judicature+act_resel_25_a&p=1]

Schedule 2. High Court Rules

[Schedule 2 omitted due length - full text is available online at: http://www.legislation.govt.nz/act/public/1908/0089/latest/DLM147653.html?search=ts_act%40bill%40regulation%40deemedreg_judicature+act_resel_25_a&p=1]

Schedule 3. Rules of the Court of Appeal

[Repealed]

Amendment Act 1. Judicature Amendment Act 1910

Public Act: 1920 No 27

Date of assent: 21 November 1910

Commencement: 21 November 1910

1. Short Title

This Act may be cited as the Judicature Amendment Act 1910, and shall form part of and be read together with the Judicature Act 1908.

3. Execution of instruments by order of the High Court

1. Where any person neglects or refuses to comply with a judgment or order of the High Court or Court of Appeal directing him to execute any conveyance, contract, or other document, or to indorse any negotiable instrument, the High Court may, on such terms and conditions (if any) as may be just, order that such conveyance, contract, or other document shall be executed or that such negotiable instrument shall be indorsed by such person as the High Court may nominate for that purpose; and in such case the conveyance, contract, document, or instrument so executed or indorsed shall operate and be for all purposes available as if it had been executed or indorsed by the person originally directed to execute or indorse it.

2. This section shall not affect any action or other proceeding already commenced in any court, or invalidate anything heretofore lawfully done, or validate anything already declared to be invalid in any proceedings heretofore taken in any court.

4. Court or Judge to have discretion in cases coming within paragraphs (c) and (d) of section 3 of the Imprisonment for Debt Limitation Act 1908

In any case coming within the exceptions specified in paragraphs (c) and (d) of section 3 of the Imprisonment for Debt Limitation Act 1908, or within either of those exceptions, any court or Judge making the order for payment, or having jurisdiction in the action or proceeding in which the order for payment is made, may inquire into the case, and (subject to the provisoes contained in the said section 3) may grant or refuse, either absolutely or upon terms, any application for a writ of attachment, or other process or order of arrest or imprisonment, and any application to stay the operation of any such writ, process, or order, or for discharge from arrest or imprisonment thereunder.

Amendment Act 2. Judicature Amendment Act 1952

Public Act: 1952 No 24

Date of assent: 16 October 1952

Commencement 16: October 1952

1. Short Title

This Act may be cited as the Judicature Amendment Act 1952, and shall be read together with and deemed part of the Judicature Act 1908 (hereinafter referred to as “the principal Act”).

2. Offices of the High Court

1. Amendment(s) incorporated in the Act(s).

2. Every office of the court heretofore established shall be deemed to have been lawfully established.

Amendment Act 3. Judicature Amendment Act 1972

Public Act: 1972 No 130

Date of assent: 20 October 1972

Commencement 20: October 1972

1. Short Title

This Act may be cited as the Judicature Amendment Act 1972, and shall be read together with and deemed part of the Judicature Act 1908 (hereinafter referred to as “the principal Act”).

Part 1. Single procedure for the judicial review of the exercise of or failure to exercise a statutory power

2. Relation to Part 1 of principal Act and commencement of this Part

1. This Part shall be deemed part of Part 1 of the principal Act.

2. This Part shall come into force on 1 January 1973.

3. Interpretation

In this Part, unless the context otherwise requires,—

  • application for review means an application under subsection (1) of section 4
  • decision includes a determination or order
  • licence includes any permit, warrant, authorisation, registration, certificate, approval, or similar form of authority required by law
  • person includes a corporation sole, and also a body of persons whether incorporated or not; and, in relation to the exercise, refusal to exercise, or proposed or purported exercise by any person of a statutory power of decision, includes a District Court, the Compensation Court, the Maori Land Court, and the Maori Appellate Court
  • statutory power means a power or right conferred by or under any Act or by or under the constitution or other instrument of incorporation, rules, or bylaws of any body corporate—
    1. a. to make any regulation, rule, bylaw, or order, or to give any notice or direction having force as subordinate legislation; or
    2. b. to exercise a statutory power of decision; or
    3. c. to require any person to do or refrain from doing any act or thing that, but for such requirement, he would not be required by law to do or refrain from doing; or
    4. d. to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person; or
    5. e. to make any investigation or inquiry into the rights, powers, privileges, immunities, duties, or liabilities of any person
  • statutory power of decision means a power or right conferred by or under any Act, or by or under the constitution or other instrument of incorporation, rules, or bylaws of any body corporate, to make a decision deciding or prescribing or affecting—
    1. a. the rights, powers, privileges, immunities, duties, or liabilities of any person; or
    2. b. the eligibility of any person to receive, or to continue to receive, a benefit or licence, whether he is legally entitled to it or not.

3A. Jurisdiction of Employment Court

This Part is subject to the provisions of the Employment Relations Act 2000 relating to the jurisdiction of the Employment Court and High Court in respect of applications for review or proceedings for a writ or order of, or in the nature of, mandamus, prohibition, certiorari, or for a declaration or injunction against any body constituted by, or any person acting pursuant to, the Employment Relations Act 2000.

4. Application for review

1. On an application which may be called an application for review, the High Court may, notwithstanding any right of appeal possessed by the applicant in relation to the subject matter of the application, by order grant, in relation to the exercise, refusal to exercise, or proposed or purported exercise by any person of a statutory power, any relief that the applicant would be entitled to, in any 1 or more of the proceedings for a writ or order of or in the nature of mandamus, prohibition, or certiorari or for a declaration or injunction, against that person in any such proceedings.

2. Where on an application for review the applicant is entitled to an order declaring that a decision made in the exercise of a statutory power of decision is unauthorised or otherwise invalid, the court may, instead of making such a declaration, set aside the decision.

2A. Notwithstanding any rule of law to the contrary, it shall not be a bar to the grant of relief in proceedings for a writ or an order of or in the nature of certiorari or prohibition, or to the grant of relief on an application for review, that the person who has exercised, or is proposing to exercise, a statutory power was not under a duty to act judicially; but this subsection shall not be construed to enlarge or modify the grounds on which the court may treat an applicant as being entitled to an order of or in the nature of certiorari or prohibition under the foregoing provisions of this section.

3. Where in any of the proceedings referred to in subsection (1) the court had, before the commencement of this Part, a discretion to refuse to grant relief on any grounds, it shall have the like discretion, on like grounds, to refuse to grant any relief on an application for review.

4. Subsection (3) shall not apply to the discretion of the court, before the commencement of this Part, to refuse to grant relief in any of the said proceedings on the ground that the relief should have been sought in any other of the said proceedings.

5. Without limiting the generality of the foregoing provisions of this section, on an application for review in relation to the exercise, refusal to exercise, or purported exercise of a statutory power of decision the court if it is satisfied that the applicant is entitled to relief under subsection (1), may, in addition to or instead of granting any other relief under the foregoing provisions of this section, direct any person whose act or omission is the subject matter of the application to reconsider and determine, either generally or in respect of any specified matters, the whole or any part of any matter to which the application relates. In giving any such direction the court shall—

  1. a. advise the person of its reasons for so doing; and
  2. b. give to him such directions as it thinks just as to the reconsideration or otherwise of the whole or any part of the matter that is referred back for reconsideration.

5A. If the court gives a direction under subsection (5) it may make any order that it could make by way of interim order under section 8, and that section shall apply accordingly, so far as it is applicable and with all necessary modifications.

5B. Where any matter is referred back to any person under subsection (5), that person shall have jurisdiction to reconsider and determine the matter in accordance with the court’s direction notwithstanding anything in any other enactment.

5C. Where any matter is referred back to any person under subsection (5), the act or omission that is to be reconsidered shall, subject to any interim order made by the court under subsection (5A), continue to have effect according to its tenor unless and until it is revoked or amended by that person.

6. In reconsidering any matter referred back to him under subsection (5) the person to whom it is so referred shall have regard to the court’s reasons for giving the direction and to the court’s directions.

5. Defects in form, or technical irregularities

On an application for review in relation to a statutory power of decision, where the sole ground of relief established is a defect in form or a technical irregularity, if the court finds that no substantial wrong or miscarriage of justice has occurred, it may refuse relief and, where the decision has already been made, may make an order validating the decision, notwithstanding the defect or irregularity, to have effect from such time and on such terms as the court thinks fit.

6. Disposal of proceedings for mandamus, prohibition, or certiorari

Where proceedings are commenced for a writ or order of or in the nature of mandamus, prohibition, or certiorari, in relation to the exercise, refusal to exercise, or proposed or purported exercise of a statutory power, the proceedings shall be treated and disposed of as if they were an application for review.

7. Disposal of proceedings for declaration or injunction

Where proceedings are commenced for a declaration or injunction, or both, whether with or without a claim for other relief, and the exercise, refusal to exercise, or proposed or purported exercise of a statutory power is an issue in the proceedings, the court on the application of any party to the proceedings may, if it considers it appropriate, direct that the proceedings be treated and disposed of, so far as they relate to that issue, as if they were an application for review.

8. Interim orders

1. Subject to subsection (2), at any time before the final determination of an application for review, and on the application of any party, the court may, if in its opinion it is necessary to do so for the purpose of preserving the position of the applicant, make an interim order for all or any of the following purposes:

  1. a. prohibiting any respondent to the application for review from taking any further action that is or would be consequential on the exercise of the statutory power:
  2. b. prohibiting or staying any proceedings, civil or criminal, in connection with any matter to which the application for review relates:
  3. c. declaring any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by effluxion of time before the final determination of the application for review, to continue and, where necessary, to be deemed to have continued in force.

2. Where the Crown is the respondent (or one of the respondents) to the application for review the court shall not have power to make any order against the Crown under paragraph (a) or paragraph (b); but, instead, in any such case the court may, by interim order,—

  1. a. declare that the Crown ought not to take any further action that is or would be consequential on the exercise of the statutory power:
  2. b. declare that the Crown ought not to institute or continue with any proceedings, civil or criminal, in connection with any matter to which the application for review relates.

3. Any order under subsection (1) or subsection (2) may be made subject to such terms and conditions as the court thinks fit, and may be expressed to continue in force until the application for review is finally determined or until such other date, or the happening of such other event, as the court may specify.

9. Procedure

1. An application for review shall be made by motion accompanied by a statement of claim.

2. The statement of claim shall—

  1. a. state the facts on which the applicant bases his claim to relief:
  2. b. state the grounds on which the applicant seeks relief:
  3. c. state the relief sought.

3. It shall not be necessary for the statement of claim to specify the proceedings referred to in section 4(1) in which the claim would have been made before the commencement of this Part.

4. The person whose act or omission is the subject matter of the application for review, and, subject to any direction given by a Judge under section 10, every party to the proceedings (if any) in which any decision to which the application relates was made, shall be cited as a respondent.

4A. For the purposes of subsection (4), where the act or omission is that of a Judge, Registrar, or presiding officer of any court or tribunal,—

  1. a. that court or tribunal, and not that Judge, Registrar, or presiding officer, shall be cited as a respondent; but
  2. b. that Judge, Registrar, or presiding officer may file, on behalf of that court or tribunal, a statement of defence to the statement of claim.

5. For the purposes of subsection (4), where the act or omission is that of any 2 or more persons acting together under a collective title, they shall be cited by their collective title.

6. Subject to any direction given by a Judge under section 10, every respondent to the application for review shall file a statement of his defence to the statement of claim.

7. Subject to this Part, the procedure in respect of any application for review shall be in accordance with rules of court.

10. Powers of Judge to call conference and give directions

1. For the purpose of ensuring that any application or intended application for review may be determined in a convenient and expeditious manner, and that all matters in dispute may be effectively and completely determined, a Judge may at any time, either on the application of any party or intended party or without any such application, and on such terms as he thinks fit, direct the holding of a conference of parties or intended parties or their counsel presided over by a Judge.

2. At any such conference the Judge presiding may—

  1. a. settle the issues to be determined:
  2. b. direct what persons shall be cited, or need not be cited, as respondents to the application for review, or direct that the name of any party be added or struck out:
  3. c. direct what parties shall be served:
  4. d. direct by whom and within what time any statement of defence shall be filed:
  5. e. require any party to make admissions in respect of questions of fact; and, if that party refuses to make an admission in respect of any such question, that party shall be liable to bear the costs of proving that question, unless the Judge by whom the application for review is finally determined is satisfied that the party’s refusal was reasonable in all the circumstances, and accordingly orders otherwise in respect of those costs:
  6. f. fix a time by which any affidavits or other documents shall be filed:
  7. g. fix a time and place for the hearing of the application for review:
  8. h. require further or better particulars of any facts, or of the grounds for relief, or of the relief sought, or of the grounds of defence, or of any other circumstances connected with the application for review:
  9. i. require any party to make discovery of documents, or permit any party to administer interrogatories:
  10. j. in the case of an application for review of a decision made in the exercise of a statutory power of decision, determine whether the whole or any part of the record of the proceedings in which the decision was made should be filed in court, and give such directions as he thinks fit as to its filing:
  11. k. exercise any powers of direction or appointment vested in the court or a Judge by its rules of court in respect of originating applications:
  12. l. give such consequential directions as may be necessary.

3. Notwithstanding any of the foregoing provisions of this section, a Judge may, at any time before the hearing of an application for review has been commenced, exercise any of the powers specified in subsection (2) without holding a conference under subsection (1).

11. Appeals

Any party to an application for review who is dissatisfied with any final or interlocutory order in respect of the application may appeal to the Court of Appeal; and section 66 of the principal Act shall apply to any such appeal.

13. This Part to bind the Crown

Subject to section 14, this Part shall bind the Crown.

14. Application of Crown Proceedings Act 1950

1. Amendment(s) incorporated in the Act(s).

2. In its application to the Crown, this Part shall be read subject to the Crown Proceedings Act 1950, as amended by subsection (1).

16. References in enactments

Subject to sections 14 and 15, every reference to any enactment (other than this Act), or in any regulation, to any of the proceedings referred to in subsection (1) of section 4 shall hereafter, unless the context otherwise requires, be read as including a reference to an application for review.

Part 2. Miscellaneous amendments

20. Sheriffs and Deputy Sheriffs

1. Amendment(s) incorporated in the Act(s).

2. Every person who at the commencement of this section holds office as Deputy Sheriff shall continue to hold that office as if he had been appointed pursuant to section 29 of the principal Act (as substituted by this section).

3. This section shall come into force on a date to be appointed for the commencement thereof by the Governor-General by Order in Council.

Amendment Act 4. Judicature Amendment Act 1997

Public Act: 1997 No 10

Date of assent: 22 May 1997

Commencement: see section 1(2)

1. Short Title

1. This Act may be cited as the Judicature Amendment Act 1997, and is part of the Judicature Act 1908 (“the principal Act”).

2. This Act comes into force on the date on which it receives the Royal assent.

4. Validations

1. All persons who have, in the period beginning on 1 April 1988 and ending with the commencement of this Act, been appointed under the State Sector Act 1988 as Registrars, Deputy Registrars, ushers, Clerks, criers, or other officers of the High Court or the Court of Appeal are deemed to be, and to have always been, validly appointed to their respective offices.

2. Where any person is deemed, by subsection (1), to have been validly appointed as an officer of the High Court, any action taken by that person, in his or her capacity as an officer of the High Court, in the period beginning on 1 April 1988 and ending with the commencement of this Act, is deemed to be, and to have always been, as valid as it would have been if that person had been validly appointed to the office in accordance with section 27 of the principal Act (in the form in which that section stood at the time of that person’s appointment).

3. Where any person is deemed, by subsection (1), to have been validly appointed as an officer of the Court of Appeal, any action taken by that person in his or her capacity as an officer of the Court of Appeal, in the period beginning on 1 April 1988 and ending with the commencement of this Act, is deemed to be, and to have always been, as valid as it would have been if that person had been validly appointed to the office in accordance with section 72 of the principal Act (in the form in which that section stood at the time of that person’s appointment).

Treaty of Waitangi Act 1975

An Act to provide for the observance, and confirmation, of the principles of the Treaty of Waitangi by establishing a Tribunal to make recommendations on claims relating to the practical application of the Treaty and to determine whether certain matters are inconsistent with the principles of the Treaty

Preamble

Whereas on 6 February 1840 a Treaty was entered into at Waitangi between Her late Majesty Queen Victoria and the Maori people of New Zealand:

And whereas the text of the Treaty in the English language differs from the text of the Treaty in the Maori language:

And whereas it is desirable that a Tribunal be established to make recommendations on claims relating to the practical application of the principles of the Treaty and, for that purpose, to determine its meaning and effect and whether certain matters are inconsistent with those principles.

1. Short Title

This Act may be cited as the Treaty of Waitangi Act 1975.

2. Interpretation

In this Act, unless the context otherwise requires,—

  • historical Treaty claim means a claim made under section 6(1) that arises from or relates to an enactment referred to in section 6(1)(a) or (b) enacted, or to a policy or practice adopted or an act done or omitted by or on behalf of the Crown, before 21 September 1992
  • Maori means a person of the Maori race of New Zealand; and includes any descendant of such a person
  • private land means any land, or interest in land, held by a person other than—
    1. a. the Crown; or
    2. b. a Crown entity within the meaning of the Public Finance Act 1989
  • submit, in relation to a historical Treaty claim, means submitted in accordance with a practice note made by the Tribunal under clause 5(10) of Schedule 2
  • Treaty means the Treaty of Waitangi as set out in English and in Maori in Schedule 1
  • Tribunal means the Waitangi Tribunal established under this Act.

3. Act to bind Crown

This Act shall bind the Crown.

4. Waitangi Tribunal

1. There is hereby established a tribunal to be known as the Waitangi Tribunal.

2. The Tribunal shall consist of—

  1. a. a Judge or retired Judge of the High Court or the Chief Judge of the Maori Land Court; and the Judge is both a member of the Tribunal and its Chairperson, and is appointed by the Governor-General on the recommendation of the Minister of Maori Affairs made after consultation with the Minister of Justice:
  2. b. not less than 2 other members and not more than 20 other members to be appointed by the Governor-General on the recommendation of the Minister of Maori Affairs made after consultation with the Minister of Justice.

2A. In considering the suitability of persons for appointment to the Tribunal, the Minister of Maori Affairs—

  1. a. shall have regard to the partnership between the 2 parties to the Treaty; and
  2. b. shall have regard not only to a person’s personal attributes but also to a person’s knowledge of and experience in the different aspects of matters likely to come before the Tribunal.

2B. The Chairperson of the Tribunal appointed under subsection (2)(a) holds office for such term not exceeding 5 years as the Governor-General specifies in the instrument appointing that Chairperson, and the Chairperson may from time to time be reappointed.

2C. Where the Chairperson of the Tribunal is the Chief Judge of the Maori Land Court and he or she ceases to hold office as Chief Judge during the term of his or her appointment as Chairperson, that person’s appointment as Chairperson also ceases at that time.

3. Every member of the Tribunal appointed under subsection (2)(b) shall hold office for such term as the Governor-General shall specify in his or her appointment, being a term not exceeding 3 years, but may from time to time be reappointed.

4. No person shall be deemed to be employed in the service of Her Majesty for the purposes of the State Sector Act 1988 or the Government Superannuation Fund Act 1956 by reason of his being a member of the Tribunal.

5. The Ministry of Justice shall furnish such secretarial, recording, and other services as may be necessary to enable the Tribunal to exercise its functions and powers.

6. The provisions of Schedule 2 shall have effect in relation to the Tribunal and its proceedings.

4A. Deputy Chairperson

1. The Chairperson of the Tribunal may from time to time appoint a Judge (including the Chief Judge) of the Maori Land Court as the deputy of the Chairperson of the Tribunal.

2. In any case in which the Chairperson of the Tribunal becomes incapable of acting by reason of illness, absence, or other sufficient cause or during any vacancy in the office of Chairperson, the deputy of the Chairperson of the Tribunal shall have and may exercise all the powers, functions, and duties of the Chairperson.

3. No acts done by a person holding office as the deputy of the Chairperson of the Tribunal in that person’s capacity as such deputy, and no act done by the Tribunal while a deputy of the Chairperson of the Tribunal is acting as such deputy, shall in any proceedings be questioned on the ground that the occasion for the deputy’s so acting had not arisen or had ceased.

4B. Appointment of Judge not to affect tenure, etc

The appointment of a Judge as Chairperson, the deputy of the Chairperson, or as a member of the Tribunal, or service by that Judge as Chairperson, the deputy of the Chairperson, or a member of the Tribunal, does not affect the Judge’s tenure of the judicial office or the Judge’s rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as a Judge (including those in relation to superannuation) and, for all purposes, the Judge’s service as a member is service as a Judge.

5. Functions of Tribunal

1. The functions of the Tribunal shall be—

  1. a. to inquire into and make recommendations upon, in accordance with this Act, any claim submitted to the Tribunal under section 6:
  2. aa. to make recommendations, in accordance with section 8D, that land or interests in land be no longer subject to resumption under section 27B of the State-Owned Enterprises Act 1986 or section 212 of the Education Act 1989:
  3. ab. to make any recommendation or determination that the Tribunal is required or empowered to make under Schedule 1 of the Crown Forest Assets Act 1989:
  4. ac. to make recommendations in accordance with section 8HE that land, or any part of any land, that is subject to a Crown forestry licence under the Crown Forest Assets Act 1989, be no longer liable to be returned to Maori ownership under section 36 of that Act:
  5. ad. to make recommendations in accordance with section 8D (as applied by section 8HJ) that land or any interest in land that, immediately before being vested in a Crown transferee company pursuant to section 6 of the New Zealand Railways Corporation Restructuring Act 1990, was land owned by the Crown or an interest owned by the Crown in land, be no longer subject to resumption under section 39 of that Act:
  6. b. to examine and report on, in accordance with section 8, any proposed legislation referred to the Tribunal under that section.

2. In exercising any of its functions under this section the Tribunal shall have regard to the 2 texts of the Treaty set out in Schedule 1 and, for the purposes of this Act, shall have exclusive authority to determine the meaning and effect of the Treaty as embodied in the 2 texts and to decide issues raised by the differences between them.

6. Jurisdiction of Tribunal to consider claims

1. Where any Maori claims that he or she, or any group of Maoris of which he or she is a member, is or is likely to be prejudicially affected—

  1. a. by any ordinance of the General Legislative Council of New Zealand, or any ordinance of the Provincial Legislative Council of New Munster, or any provincial ordinance, or any Act (whether or not still in force), passed at any time on or after 6 February 1840; or
  2. b. by any regulations, order, proclamation, notice, or other statutory instrument made, issued, or given at any time on or after 6 February 1840 under any ordinance or Act referred to in paragraph (a); or
  3. c. by any policy or practice (whether or not still in force) adopted by or on behalf of the Crown, or by any policy or practice proposed to be adopted by or on behalf of the Crown; or
  4. d. by any act done or omitted at any time on or after 6 February 1840, or proposed to be done or omitted, by or on behalf of the Crown,—

and that the ordinance or Act, or the regulations, order, proclamation, notice, or other statutory instrument, or the policy or practice, or the act or omission, was or is inconsistent with the principles of the Treaty, he or she may submit that claim to the Tribunal under this section.

2. The Tribunal must inquire into every claim submitted to it under subsection (1), unless—

  1. a. the claim is submitted contrary to section 6AA(1); or
  2. b. section 7 applies.

3. If the Tribunal finds that any claim submitted to it under this section is well-founded it may, if it thinks fit having regard to all the circumstances of the case, recommend to the Crown that action be taken to compensate for or remove the prejudice or to prevent other persons from being similarly affected in the future.

4. A recommendation under subsection (3) may be in general terms or may indicate in specific terms the action which, in the opinion of the Tribunal, the Crown should take.

4A. Subject to sections 8A to 8I, the Tribunal shall not recommend under subsection (3),—

  1. a. the return to Maori ownership of any private land; or
  2. b. the acquisition by the Crown of any private land.

5. The Tribunal shall cause a sealed copy of its findings and recommendation (if any) with regard to any claim to be served on—

  1. a. the claimant:
  2. b. the Minister of Maori Affairs and such other Ministers of the Crown as in the opinion of the Tribunal have an interest in the claim:
  3. c. such other persons as the Tribunal thinks fit.

6. Nothing in this section shall confer any jurisdiction on the Tribunal in respect of any Bill that has been introduced into the House of Representatives unless the Bill has been referred to the Tribunal pursuant to section 8.

7. Notwithstanding anything in this Act or any other Act or rule of law, on and from the commencement of this subsection the Tribunal shall not have jurisdiction to inquire or further inquire into, or to make any finding or recommendation in respect of,—

  1. a. commercial fishing or commercial fisheries (within the meaning of the Fisheries Act 1983); or
  2. b. the Deed of Settlement between the Crown and Maori dated 23 September 1992; or
  3. c. any enactment, to the extent that it relates to such commercial fishing or commercial fisheries.

8. Despite anything in this Act or in any other Act or rule of law,—

  1. a. the jurisdiction of the Tribunal is subject to the enactments listed in Schedule 3; and
  2. b. without limiting paragraph (a), the Tribunal does not have jurisdiction, in relation to licensed land (within the meaning of the Crown Forest Assets Act 1989) in the takiwā of Ngāi Tahu Whānui, to make a recommendation for compensation or for the return of the land to Māori ownership.

9. [Repealed]

10. [Repealed]

11. [Repealed]

12. [Repealed]

13. [Repealed]

14. [Repealed]

15. [Repealed]

16. [Repealed]

17. [Repealed]

18. [Repealed]

19. [Repealed]

20. [Repealed]

21. [Repealed]

22. [Repealed]

23. [Repealed]

24. [Repealed]

25. [Repealed]

26. [Repealed]

27. [Repealed]

28. [Repealed]

29. [Repealed]

30. [Repealed]

31. [Repealed]

32. [Repealed]

6AA. Limitation of Tribunal’s jurisdiction in relation to historical Treaty claims

1. Despite section 6(1), after 1 September 2008 no Maori may—

  1. a. submit a claim to the Tribunal that is, or includes, a historical Treaty claim; or
  2. b. amend a claim already submitted to the Tribunal that is not, or does not include, a historical Treaty claim by including a historical Treaty claim.

2. However, subsection (1) does not prevent a historical Treaty claim submitted to the Tribunal on or before 1 September 2008 from being amended in any way after 1 September 2008.

3. The Tribunal does not have jurisdiction (including, but not limited to, the jurisdiction to inquire or further inquire into, or to make any finding or recommendation) in respect of a historical Treaty claim that is—

  1. a. submitted contrary to subsection (1)(a); or
  2. b. included in a claim contrary to subsection (1)(b).

4. To avoid doubt, if a claim is submitted to the Tribunal contrary to subsection (1), it must be treated for all purposes (including, for example, for the purposes of sections 8A(2), 8C(1), 8HB(1), 8HD(1), and 8HJ) as not having been submitted.

6A. Power of Tribunal to state case for Maori Appellate Court or Maori Land Court

1. Where a question of fact,—

  1. a. concerning Maori custom or usage; and
  2. b. relating to the rights of ownership by Maori of any particular land or fisheries according to customary law principles of “take” and occupation or use; and
  3. c. calling for the determination, to the extent practicable, of Maori tribal boundaries, whether of land or fisheries,—

arises in proceedings before the Tribunal, the Tribunal may refer that question to the Maori Appellate Court for decision.

2. Where a question relating to the Maori or group of Maori to whom any land or any part of any land or any interest in land is to be returned pursuant to a recommendation under section 8A(2)(a) arises in proceedings before the Tribunal, the Tribunal may refer that question to the Maori Land Court for decision.

3. Any question referred to the Maori Appellate Court under subsection (1) or to the Maori Land Court under subsection (2) shall be in the form of a special case to be drawn up by the parties (if any) to the proceedings and, if the parties do not agree, or if there are no parties, to be settled by the Tribunal.

4. The Maori Appellate Court shall have jurisdiction—

  1. a. to decide any question referred to it under subsection (1); and
  2. b. to hear and determine any appeal against any decision of the Maori Land Court on any question referred to that court under subsection (2).

5. The Maori Land Court shall have jurisdiction to decide any question referred to it under subsection (2).

6. The decision of the Maori Appellate Court on any question referred to it under subsection (1) and on any appeal determined by it pursuant to subsection (4)(b) shall be binding on the Tribunal.

7. Subject to subsection (8), the decision of the Maori Land Court on any question referred to it under subsection (2) shall be binding on the Tribunal.

8. An appeal may be brought under section 58 of Te Ture Whenua Maori Act 1993 against any decision of the Maori Land Court on a question referred to it under subsection (2); and section 58 of Te Ture Whenua Maori Act 1993 shall apply in relation to any such appeal as if that decision were a final order of the Maori Land Court.

9. The Maori Appellate Court shall inform the Waitangi Tribunal of the decision of the Maori Appellate Court on—

  1. a. any question referred to it under subsection (1); and
  2. b. any appeal brought against any decision made by the Maori Land Court on any question referred to it under subsection (2).

10. The Maori Land Court shall inform the Waitangi Tribunal of—

  1. a. the decision of the Maori Land Court on any question referred to it under subsection (2); and
  2. b. the bringing of any appeal under subsection (8).

7. Tribunal may refuse to inquire into claim

1. The Tribunal may in its discretion decide not to inquire into, or, as the case may require, not to inquire further into, any claim made under section 6 if in the opinion of the Tribunal—

  1. a. the subject matter of the claim is trivial; or
  2. b. the claim is frivolous or vexatious or is not made in good faith; or
  3. c. there is in all the circumstances an adequate remedy or right of appeal, other than the right to petition the House of Representatives or to make a complaint to the Ombudsman, which it would be reasonable for the person alleged to be aggrieved to exercise.

1A. The Tribunal may, from time to time, for sufficient reason, defer, for such period or periods as it thinks fit, its inquiry into any claim made under section 6.

2. In any case where the Tribunal decides not to inquire into or further inquire into a claim or to defer its inquiry into any claim, it shall cause the claimant to be informed of that decision, and shall state its reasons therefor.

8. Jurisdiction of Tribunal to consider proposed legislation

1. The Tribunal shall examine any proposed legislation referred to it under subsection (2) and shall report whether, in its opinion, the provisions of the proposed legislation or any of them are contrary to the principles of the Treaty.

2. Proposed legislation may be referred to the Tribunal—

  1. a. in the case of a Bill before the House of Representatives, by resolution of the House:
  2. b. in the case of any proposed regulations or Order in Council, by any Minister of the Crown.

3. The Tribunal’s report shall be given—

  1. a. in the case of a Bill, to the Speaker of the House:
  2. b. in every other case, to the person or body who referred the proposed regulations or Order in Council to the Tribunal.

4. A copy of every report made by the Tribunal under this section shall be given by the Tribunal to the Minister of Maori Affairs and shall be laid before the House of Representatives as soon as practicable.

8A. Recommendations in respect of land transferred to or vested in State enterprise

1. This section applies in relation to—

  1. a. any land or interest in land transferred to a State enterprise under section 23 of the State-Owned Enterprises Act 1986 or vested in a State enterprise by a notice in the Gazette under section 24 of that Act or by an Order in Council made under section 28 of that Act, whether or not the land or interest in land is still vested in a State enterprise:
  2. b. any land or interest in land transferred to an institution within the meaning of section 159 of the Education Act 1989 under section 207 of that Act or vested in such an institution by an Order in Council made under section 215 of that Act, whether or not the land or interest in land is still vested in that institution.

2. Subject to section 8B, where a claim submitted to the Tribunal under section 6 relates in whole or in part to land or an interest in land to which this section applies, the Tribunal may—

  1. a. if it finds—
    1. i. that the claim is well-founded; and
    2. ii. that the action to be taken under section 6(3) to compensate for or remove the prejudice caused by the ordinance or Act, or the regulations, order, proclamation, notice, or other statutory instrument, or the policy or practice, or the act or omission that was inconsistent with the principles of the Treaty, should include the return to Maori ownership of the whole or part of that land or of that interest in land,—
  2. include in its recommendation under section 6(3), a recommendation that that land or that part of that land or that interest in land be returned to Maori ownership (which recommendation shall be on such terms and conditions as the Tribunal considers appropriate and shall identify the Maori or group of Maori to whom that land or that part of that land or that interest in land is to be returned); or
  3. b. if it finds—
    1. i. that the claim is well-founded; but
    2. ii. that a recommendation for return to Maori ownership is not required, in respect of that land or any part of that land or that interest in land, by paragraph (a)(ii),—
  4. recommend to the Minister within the meaning of section 4 of the Cadastral Survey Act 2002 that that land or that part of that land or that interest in land be no longer subject to resumption under section 27B of the State-Owned Enterprises Act 1986 or section 212 of the Education Act 1989; or
  5. c. if it finds that the claim is not well-founded, recommend to the Minister within the meaning of section 4 of the Cadastral Survey Act 2002 that that land or that part of that land or that interest in land be no longer subject to resumption under section 27B of the State-Owned Enterprises Act 1986 or section 212 of the Education Act 1989.

3. In deciding whether to recommend the return to Maori ownership of any land or interest in land to which this section applies, the Tribunal shall not have regard to any changes that, since immediately before the date of the transfer of the land or interest in land from the Crown to a State enterprise, or an institution within the meaning of section 159 of the Education Act 1989, have taken place in—

  1. a. the condition of the land or of the land in which the interest exists and any improvements to it; or
  2. b. its ownership or possession or any other interests in it.

4. Nothing in subsection (2) prevents the Tribunal making in respect of any claim that relates in whole or in part to any land or interest in land to which this section applies any other recommendation under subsection (3) or subsection (4) of section 6.

5. Notwithstanding section 24(4) of the State-Owned Enterprises Act 1986, on the making of a recommendation for the return of any land or interest in land to Maori ownership under subsection (2), sections 40 and 41 of the Public Works Act 1981 shall cease to apply in relation to that land or that interest in land.

6. Where any interest in land exists in respect of any land to which this section applies being—

  1. a. an interest in land which was in existence immediately before the land was transferred to the State enterprise under section 23 of the State-Owned Enterprises Act 1986 or vested in the State enterprise by a notice in the Gazette under section 24 of that Act or by an Order in Council made under section 28 of that Act but which was not so transferred to or vested in the State enterprise; or
  2. b. an interest in land which was in existence immediately before the land was transferred to an institution within the meaning of section 159 of the Education Act 1989 under section 207 of that Act or vested in such an institution by an Order in Council made under section 215 of that Act but which was not so transferred to or vested in the institution,—

as the case may be, no recommendation under this section shall relate to that interest in land.

8B. Interim recommendations in respect of land transferred to or vested in State enterprise

1. Where the recommendations made by the Tribunal include a recommendation made under section 8A(2)(a) or section 8A(2)(b), all of those recommendations shall be in the first instance interim recommendations.

2. The Tribunal shall cause copies of its interim findings and interim recommendations to be served on the parties to the inquiry.

3. Subject to subsection (5), the Tribunal shall not, without the written consent of the parties, confirm any interim recommendations that include a recommendation made under section 8A(2)(a) or section 8A(2)(b), until at least 90 days after the date of the making of the interim recommendations.

4. Where any party to the inquiry is served with a copy of any interim recommendations that include a recommendation made under section 8A(2)(a) or section 8A(2)(b), that party—

  1. a. may, within 90 days after the date of the making of the interim recommendations, offer to enter into negotiations with the other party for the settlement of the claim; and
  2. b. shall, within 90 days after the date of the making of the interim recommendations, inform the Tribunal—
    1. i. whether the party accepts or has implemented the interim recommendations; and
    2. ii. if the party has made an offer under paragraph (a), the result of that offer.

5. If, before the confirmation of any interim recommendations that include a recommendation made under section 8A(2)(a) or section 8A(2)(b), the claimant and the Minister of Maori Affairs settle the claim, the Tribunal shall, as the case may require, cancel or modify the interim recommendations and may make, if necessary, a final recommendation under section 8A(2)(a) or section 8A(2)(b).

6. If subsection (5) does not apply in relation to any interim recommendations that include a recommendation made under section 8A(2)(a) or section 8A(2)(b), upon the expiration of the 90th day after the date of the making of the interim recommendations, the interim recommendations shall take effect as final recommendations.

7. Notwithstanding anything in subsections (1) to (6), if any interim recommendations contain a clerical mistake or an error arising from any accidental slip or omission, whether the mistake, error, slip, or omission was made by an officer of the Tribunal or not, or if any interim recommendations are so drawn up as not to express what was actually decided and intended, the interim recommendations may be corrected by the Tribunal, either of its own motion or on the application of any party.

8. Where the interim recommendations are corrected under subsection (7),—

  1. a. the Tribunal shall cause copies of the corrected interim recommendations to be served on the parties to the inquiry as soon as practicable; and
  2. b. the period that applies for the purposes of subsections (3), (4), and (6) shall expire on the 90th day after the date of the making of the corrected interim recommendations.

8C. Right to be heard on question in relation to land transferred to or vested in State enterprise

1. Where, in the course of any inquiry into a claim submitted to the Tribunal under section 6, any question arises in relation to any land or interest in land to which section 8A applies, the only persons entitled to appear and be heard on that question shall be—

  1. a. the claimant:
  2. b. the Minister of Maori Affairs:
  3. c. any other Minister of the Crown who notifies the Tribunal in writing that he or she wishes to appear and be heard:
  4. d. any Maori who satisfies the Tribunal that he or she, or any group of Maori of which he or she is a member, has an interest in the inquiry apart from any interest in common with the public.

2. Notwithstanding anything in clause 7 of Schedule 2 or in section 4A of the Commissions of Inquiry Act 1908 (as applied by clause 8 of Schedule 2), no person other than a person designated in paragraph (a) or paragraph (b) or paragraph (c) or paragraph (d) of subsection (1) shall be entitled to appear and be heard on a question to which subsection (1) applies.

3. Nothing in subsection (2) affects the right of any person designated in paragraph (a) or paragraph (b) or paragraph (c) or paragraph (d) of subsection (1) to appear, with the leave of the Tribunal, by—

  1. a. a barrister or solicitor of the High Court; or
  2. b. any other agent or representative authorised in writing.

8D. Special power of Tribunal to recommend that land be no longer liable to resumption

1. The Tribunal may, in its discretion, on the application of a State enterprise or other owner of any land or interest in land to which section 8A applies, recommend to the Minister within the meaning of section 4 of the Cadastral Survey Act 2002 that the whole or part of that land or that that interest in land be no longer subject to resumption under section 27B of the State-Owned Enterprises Act 1986 or section 212 of the Education Act 1989 if—

  1. a. public notice has been given, in accordance with section 8G, of the making of an application under this section in respect of that land or interest in land; and
  2. b. either—
    1. i. no claim in relation to that land or interest in land has been submitted to the Tribunal under section 6 before the date specified in the notice; or
    2. ii. all the parties to any claim submitted to the Tribunal under section 6 in relation to that land or interest in land have informed the Tribunal in writing that they consent to the making of the recommendation.

2. The Tribunal may make a recommendation pursuant to subsection (1)(b)(ii) without being obliged to determine first whether or not the claim is well-founded.

3. The Tribunal may, where it considers it appropriate, consult with a Judge of the Maori Land Court about—

  1. a. the directions to be given under section 8F; or
  2. b. the public notice to be given under section 8G,—

in relation to any application under this section.

8E. Issue of certificate on recommendation of Tribunal

1. The Minister within the meaning of section 4 of the Cadastral Survey Act 2002 shall, on receiving in respect of any land or interest in land a recommendation under—

  1. a. section 8A(2)(a) or section 8A(2)(b) or section 8A(2)(c); or
  2. b. section 8D(1),—

issue a certificate to the effect that the land or interest in land is no longer subject to resumption under section 27B of the State-Owned Enterprises Act 1986 or section 212 of the Education Act 1989.

2. Where the land or the land in which the interest in land exists is subject to the Land Transfer Act 1952, the Minister within the meaning of section 4 of the Cadastral Survey Act 2002 shall cause a copy of the certificate to be lodged with the District Land Registrar of the land registration district within which the land is situated.

3. The District Land Registrar shall, without fee,—

  1. a. register the certificate against the certificate of title to the land or interest in land; and
  2. b. take all steps necessary to discharge or cancel any memorials or entries showing that the land or interest in land is subject to resumption under section 27B of the State-Owned Enterprises Act 1986 or section 212 of the Education Act 1989.

4. Where—

  1. a. the land or the land in which the interest in land exists is not subject to the Land Transfer Act 1952; and
  2. b. instruments relating to the land or the interest in land are not registerable under the Deeds Registration Act 1908,—

the Minister within the meaning of section 4 of the Cadastral Survey Act 2002 shall cause a copy of the certificate to be lodged in the office of the Surveyor-General, and the Surveyor-General shall note the certificate upon the proper plans and records of the district affected.

8F. Directions as to service

1. Where an application is made under section 8D, the applicant shall apply to the Tribunal ex parte for directions as to service.

2. The applicant shall furnish with the application under this section a description of the land or interest in land to which the application under section 8D relates, which description—

  1. a. shall include a full legal description of the land or interest in land; and
  2. b. shall be sufficient to enable the Tribunal to decide which persons may be adversely affected by the making, under section 8D, of the recommendation sought.

3. The application under this section—

  1. a. shall specify the directions considered appropriate; and
  2. b. shall be accompanied by a memorandum—
    1. i. by the applicant’s solicitor or counsel; or
    2. ii. by any other agent or representative authorised in writing by the applicant,—

giving the reasons for the directions considered appropriate.

4. On an application under this section the Tribunal shall give such directions for service as it deems proper.

8G. Public notice

1. Where an application is made under section 8D, the applicant shall, in addition to complying with the directions given under section 8F(4), give, in accordance with the directions of the Tribunal, public notice of the application.

2. The public notice shall be published both—

  1. a. in the Gazette; and
  2. b. in such newspapers circulating in the district in which the land or interest in land is situated as the Tribunal directs.

3. The public notice shall—

  1. a. describe the land or interest in land and its location; and
  2. b. state that an application has been made under section 8D in respect of the land or interest in land; and
  3. c. indicate that—
    1. i. the land or interest in land has been or was transferred to a State enterprise under section 23 of the State-Owned Enterprises Act 1986 or vested in a State enterprise by a notice in the Gazette under section 24 of that Act or by an Order in Council made under section 28 of that Act; or
    2. ii. the land or interest in land has been or was transferred to an institution within the meaning of section 159 of the Education Act 1989 under section 207 of that Act or vested in such an institution by an Order in Council made under section 215 of that Act— as the case may be.
  4. d. invite any Maori who considers that he or she, or any group of Maori of which he or she is a member, has grounds for a claim under section 6 in relation to the land or interest in land, to submit that claim to the Tribunal before a date specified in the notice (which date shall be not less than 90 days after the first or only publication of the notice in the Gazette ); and
  5. e. describe briefly any claims already submitted under section 6 in respect of the land or interest in land; and
  6. f. where no claim has been submitted under section 6 in respect of the land or interest in land, state that if no claim in relation to the land or interest in land is submitted to the Tribunal under section 6 before the date specified in the notice, the Tribunal may recommend that the land or interest in land be no longer liable to resumption under section 27B of the State-Owned Enterprises Act 1986 or section 212 of the Education Act 1989; and
  7. g. contain such other information as the Tribunal directs.

8H. Service of decision

The Tribunal shall cause a sealed copy of its decision and recommendation (if any) with regard to any application under section 8D to be served on—

  1. a. the applicant; and
  2. b. the Minister within the meaning of section 4 of the Cadastral Survey Act 2002; and
  3. c. the Minister of Maori Affairs; and
  4. d. such other persons as the Tribunal thinks fit.

Subpart 1. Recommendations in relation to Crown forest land

8HA. Interpretation of certain terms

For the purposes of sections 8HB to 8HI, the expressions Crown forestry assets, Crown forest land, Crown forestry licence, and licensed land shall have the same meanings as they have in section 2 of the Crown Forest Assets Act 1989.

8HB. Recommendations of Tribunal in respect of Crown forest land

1. Subject to section 8HC, where a claim submitted to the Tribunal under section 6 relates to licensed land the Tribunal may,—

  1. a. if it finds—
    1. i. that the claim is well-founded; and
    2. ii. that the action to be taken under section 6(3) to compensate for or remove the prejudice caused by the ordinance or Act, or the regulations, order, proclamation, notice, or other statutory instrument, or the policy or practice, or the act or omission that was inconsistent with the principles of the Treaty of Waitangi, should include the return to Maori ownership of the whole or part of that land,—
  2. include in its recommendation under section 6(3) a recommendation that the land or that part of that land be returned to Maori ownership (which recommendation shall be on such terms and conditions as the Tribunal considers appropriate and shall identify the Maori or group of Maori to whom that land or that part of that land is to be returned); or
  3. b. if it finds—
    1. i. that the claim is well-founded; but
    2. ii. that a recommendation for return to Maori ownership is not required, in respect of that land or any part of that land by paragraph (a)(ii),—
  4. recommend to the Minister within the meaning of section 4 of the Cadastral Survey Act 2002 that that land or that part of that land not be liable to return to Maori ownership; or
  5. c. if it finds that the claim is not well-founded, recommend to the Minister within the meaning of section 4 of the Cadastral Survey Act 2002 that that land or that part of that land not be liable to return to Maori ownership.

2. In deciding whether to recommend the return to Maori ownership of any licensed land, the Tribunal shall not have regard to any changes that have taken place in—

  1. a. the condition of the land and any improvements to it; or
  2. b. its ownership or possession or any other interests in it— that have occurred after or by virtue of the granting of any Crown forestry licence in respect of that land.

3. Nothing in subsection (1) prevents the Tribunal making in respect of any claim that relates in whole or in part to licensed land any other recommendation under subsection (3) or subsection (4) of section 6; except that in making any other recommendation the Tribunal may take into account payments made, or to be made, by the Crown by way of compensation in relation to the land pursuant to section 36 and Schedule 1 of the Crown Forest Assets Act 1989.

4. On the making of a recommendation for the return of any land to Maori ownership under subsection (1), sections 40 to 42 of the Public Works Act 1981 shall cease to apply in relation to that land.

8HC. Interim recommendations in respect of Crown forest land

1. Where the recommendations made by the Tribunal include a recommendation made under section 8HB(1)(a) or section 8HB(1)(b), all of those recommendations shall be in the first instance interim recommendations.

2. The Tribunal shall cause copies of its interim findings and interim recommendations to be served on the parties to the inquiry.

3. Subject to subsection (5), the Tribunal shall not, without the written consent of the parties, confirm any interim recommendations that include a recommendation made under section 8HB(1)(a) or section 8HB(1)(b), until at least 90 days after the date of the making of the interim recommendations.

4. Where any party to the inquiry is served with a copy of any interim recommendations that include a recommendation made under section 8HB(1)(a) or section 8HB(1)(b), that party—

  1. a. may, within 90 days after the date of the making of the interim recommendations, offer to enter into negotiations with the other party for the settlement of the claim; and
  2. b. shall, within 90 days after the date of the making of the interim recommendations, inform the Tribunal—
    1. i. whether the party accepts or has implemented the interim recommendations; and
    2. ii. if the party has made an offer under paragraph (a), the result of that offer.

5. If, before the confirmation of any interim recommendations that include a recommendation made under section 8HB(1)(a) or section 8HB(1)(b), the claimant and the Minister of Maori Affairs settle the claim, the Tribunal shall, as the case may require, cancel or modify the interim recommendations and may make, if necessary, a final recommendation under section 8HB(1)(a) or section 8HB(1)(b).

6. If subsection (5) does not apply in relation to any interim recommendations that include a recommendation made under section 8HB(1)(a) or section 8HB(1)(b), upon the expiration of the 90th day after the date of the making of the interim recommendations, the interim recommendations shall become final recommendations.

7. Notwithstanding anything in subsections (1) to (6), if any interim recommendations contain a clerical mistake or an error arising from any accidental slip or omission, whether the mistake, error, slip, or omission was made by an officer of the Tribunal or not, or if any interim recommendations are so drawn up as not to express what was actually decided and intended, the interim recommendations may be corrected by the Tribunal, either of its own motion or on the application of any party.

8. Where the interim recommendations are corrected under subsection (7),—

  1. a. the Tribunal shall cause copies of the corrected interim recommendations to be served on the parties to the inquiry as soon as practicable; and
  2. b. the period that applies for the purposes of subsections (3), (4), and (6) shall expire on the 90th day after the date of the making of the corrected interim recommendations.

8HD. Right to be heard on question in relation to Crown forest land

1. Where, in the course of any inquiry into a claim submitted to the Tribunal under section 6 any question arises in relation to licensed land, the only persons entitled to appear and be heard on that question shall be—

  1. a. the claimant:
  2. b. the Minister of Maori Affairs:
  3. c. any other Minister of the Crown who notifies the Tribunal in writing that he or she wishes to appear and be heard:
  4. d. any Maori who satisfies the Tribunal that he or she, or any group of Maori of which he or she is a member, has an interest in the inquiry apart from any interest in common with the public.

2. Notwithstanding anything in clause 7 of Schedule 2 or in section 4A of the Commissions of Inquiry Act 1908 (as applied by clause 8 of Schedule 2), no person other than a person designated in any of paragraphs (a) to (d) of subsection (1) shall be entitled to appear and be heard on a question to which subsection (1) applies.

3. Nothing in subsection (2) affects the right of any person designated in any of paragraphs (a) to (d) of subsection (1) to appear, with the leave of the Tribunal, by—

  1. a. a barrister or solicitor of the High Court; or
  2. b. any other agent or representative authorised in writing.

8HE. Special power of Tribunal to recommend that land not be liable to be returned to Maori ownership

1. The Tribunal may, in its discretion, on the application of any Minister of the Crown or any licensee of Crown forest land, recommend to the Minister within the meaning of section 4 of the Cadastral Survey Act 2002 that the whole or part of any licensed land not be liable to be returned to Maori ownership if—

  1. a. public notice has been given, in accordance with section 8HH, of the making of an application under this section in respect of that land; and
  2. b. either—
    1. i. no claim in relation to that land has been submitted to the Tribunal under section 6 before the date specified in the notice; or
    2. ii. all the parties to any claim submitted to the Tribunal under section 6 in relation to that land have informed the Tribunal in writing that they consent to the making of the recommendation.

2. The Tribunal may make a recommendation pursuant to subsection (1)(b)(ii) without being obliged to determine first whether or not the claim is well-founded.

3. The Tribunal may, where it considers it appropriate, consult with a Judge of the Maori Land Court about—

  1. a. the directions to be given under section 8HG; or
  2. b. the public notice to be given under section 8HH,—

in relation to any application under this section.

8HF. Issue of certificate on recommendation of Tribunal

1. The Minister within the meaning of section 4 of the Cadastral Survey Act 2002 shall, on receiving in respect of any licensed land a recommendation under section 8HB or section 8HE, issue a certificate to the effect that the land is not liable to be returned to Maori ownership.

2. Where the licensed land is subject to the Land Transfer Act 1952 or where the Crown forestry licence is registered pursuant to section 30 of the Crown Forest Assets Act 1989, the Minister within the meaning of section 4 of the Cadastral Survey Act 2002 shall cause a copy of the certificate to be lodged with the District Land Registrar of the land registration district within which the land is situated.

3. The District Land Registrar shall, without fee, register the certificate against the certificate of title to the land or endorse a memorial on the copy of the Crown forestry licence, as the case may be.

4. Where—

  1. a. the land is not subject to the Land Transfer Act 1952; and
  2. b. a copy of the Crown forestry licence has not been registered pursuant to section 30 of the Crown Forest Assets Act 1989; and
  3. c. instruments relating to the land are not registrable under the Deeds Registration Act 1908,—

the Minister within the meaning of section 4 of the Cadastral Survey Act 2002 shall cause a copy of the certificate to be lodged in the office of the Surveyor-General for the district in which the land is situated, and the Surveyor-General shall note the certificate on the plans and records relating to the land.

8HG. Directions as to service

1. Where an application is made under section 8HE, the applicant shall apply to the Tribunal ex parte for directions as to service.

2. The applicant shall furnish with the application under this section a description of the land to which the application under section 8HE relates, which description—

  1. a. shall include a full legal description of the land; and
  2. b. shall be sufficient to enable the Tribunal to decide which persons may be adversely affected by the making, under section 8HE, of the recommendation sought.

3. The application under this section—

  1. a. shall specify the directions considered appropriate; and
  2. b. shall be accompanied by a memorandum by or on behalf of the applicant giving the reasons for the directions considered appropriate.

4. On an application being made under this section the Tribunal shall give such directions for service as it deems proper.

8HH. Public notice

1. Where an application is made under section 8HE, the applicant shall, in addition to complying with the directions given under section 8HG, give, in accordance with the directions of the Tribunal, public notice of the application.

2. The public notice shall be published both—

  1. a. in the Gazette; and
  2. b. in such newspapers circulating in the district in which the land is situated as the Tribunal directs.

3. The public notice shall—

  1. a. describe the land and its location; and
  2. b. state that an application has been made under section 8HE in respect of the land; and
  3. c. indicate the land is Crown forest land that is subject to a Crown forestry licence; and
  4. d. invite any Maori who considers that he or she, or any group of Maori of which he or she is a member, has grounds for a claim under section 6 in relation to the land, to submit that claim to the Tribunal before a date specified in the notice (which date shall be not less than 90 days after the first or only publication of the notice in the Gazette); and
  5. e. describe briefly any claims already submitted under section 6 in respect of the land; and
  6. f. where no claim has been submitted under section 6 in respect of the land, state that if no claim in relation to the land is submitted to the Tribunal under that section before the date specified in the notice, the Tribunal may recommend that the land not be liable to be returned to Maori ownership and the effect of any such recommendation; and
  7. g. contain such other information as the Tribunal directs.

8HI. Service of decision

The Tribunal shall cause a sealed copy of its decision and recommendations (if any) with regard to any application under section 8HE to be served on—

  1. a. the applicant; and
  2. b. the Minister within the meaning of section 4 of the Cadastral Survey Act 2002; and
  3. c. the Minister of Maori Affairs; and
  4. d. the Minister for State Owned Enterprises and the Minister of Finance; and
  5. e. such other persons as the Tribunal thinks fit.

Subpart 2. Recommendations in relation to land vested under New Zealand Railways Corporation Restructuring Act 1990

8HJ. Claims relating to land vested under New Zealand Railways Corporation Restructuring Act 1990

In respect of every claim submitted to the Tribunal under section 6 that relates in whole or in part to land or an interest in land that, immediately before being vested in a Crown transferee company pursuant to section 6 of the New Zealand Railways Corporation Restructuring Act 1990, was land owned by the Crown or an interest owned by the Crown in land, whether or not the land or interest in land is still vested in that company, the provisions of sections 8A to 8H shall apply with such modifications as may be necessary and, in particular, as if—

  1. a. the reference in section 8A(1) to land or an interest in land to which that section applies was a reference to land or an interest in land that, immediately before being vested in a Crown transferee company pursuant to section 6 of the New Zealand Railways Corporation Restructuring Act 1990, was land owned by the Crown or an interest owned by the Crown in land, whether or not that land or interest in land is still vested in that company:
  2. b. the reference in section 8A(6) to an interest in land was a reference to an interest in land that was vested in a Crown transferee company under section 6 of the New Zealand Railways Corporation Restructuring Act 1990 but where the land itself was not vested in that company:
  3. c. the references in sections 8A(2)(b) and (c), 8D(1), 8E(1) and (3)(b), and 8G(3)(f) to section 27B of the State-Owned Enterprises Act 1986 were references to section 39 of the New Zealand Railways Corporation Restructuring Act 1990:
  4. d. the reference in section 8G(3)(c) to land or an interest in land transferred to or vested in a State enterprise was a reference to land or an interest in land vested in a Crown transferee company pursuant to the New Zealand Railways Corporation Restructuring Act 1990.

8I. Annual report on implementation of recommendations

The Minister of Maori Affairs shall in each year prepare and lay before the House of Representatives a report on the progress being made in the implementation of recommendations made to the Crown by the Tribunal.

9. Right to petition House of Representatives unaffected

Nothing in this Act shall affect in any way the right of any person to petition the House of Representatives for the redress of any grievance, or the jurisdiction of any committee or other body set up by the House of Representatives to deal with a petition to the House of Representatives.

Schedule 1. Treaty of Waitangi

The Text in English

HER MAJESTY VICTORIA Queen of the United Kingdom of Great Britain and Ireland regarding with Her Royal Favour the Native Chiefs and Tribes of New Zealand and anxious to protect their just Rights and Property and to secure to them the enjoyment of Peace and Good Order has deemed it necessary in consequence of the great number of Her Majesty’s Subjects who have already settled in New Zealand and the rapid extension of Emigration both from Europe and Australia which is still in progress to constitute and appoint a functionary properly authorized to treat with the Aborigines of New Zealand for the recognition of Her Majesty’s Sovereign authority over the whole or any part of those islands — Her Majesty therefore being desirous to establish a settled form of Civil Government with a view to avert the evil consequences which must result from the absence of the necessary Laws and Institutions alike to the native population and to Her subjects has been graciously pleased to empower and to authorize me William Hobson a Captain in Her Majesty’s Royal Navy Consul and Lieutenant Governor of such parts of New Zealand as may be or hereafter shall be ceded to her Majesty to invite the confederated and independent Chiefs of New Zealand to concur in the following Articles and Conditions.

Article the First

The Chiefs of the Confederation of the United Tribes of New Zealand and the separate and independent Chiefs who have not become members of the Confederation cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty which the said Confederation or Individual Chiefs respectively exercise or possess, or may be supposed to exercise or to possess over their respective Territories as the sole Sovereigns thereof.

Article the Second

Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession; but the Chiefs of the United Tribes and the individual Chiefs yield to Her Majesty the exclusive right of Preemption over such lands as the proprietors thereof may be disposed to alienate at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her Majesty to treat with them in that behalf.

Article the Third

In consideration thereof Her Majesty the Queen of England extends to the Natives of New Zealand Her royal protection and imparts to them all the Rights and Privileges of British Subjects.

Signed

W HOBSON, Lieutenant Governor.

Now therefore We the Chiefs of the Confederation of the United Tribes of New Zealand being assembled in Congress at Victoria in Waitangi and We the Separate and Independent Chiefs of New Zealand claiming authority over the Tribes and Territories which are specified after our respective names, having been made fully to understand the Provisions of the foregoing Treaty, accept and enter into the same in the full spirit and meaning thereof: in witness of which we have attached our signatures or marks at the places and the dates respectively specified.

Done at Waitangi this Sixth day of February in the year of Our Lord One thousand eight hundred and forty.

[Here follow signatures, dates, etc.]

The Text in Maori

[Text in Maori omitted due to length - full text can be found online at http://www.legislation.govt.nz/act/public/1975/0114/latest/DLM435843.html]

Schedules 2-3

[Schedules omitted due to length - full text can be found online at http://www.legislation.govt.nz/act/public/1975/0114/latest/whole.html#DLM1347539]

Letters Patent Constituting the Office of Governor-General of New Zealand

Preamble

Elizabeth the Second, by the Grace of God Queen of New Zealand and Her Other Realms and Territories, Head of the Commonwealth, Defender of the Faith:

To all to whom these presents shall come, Greeting:

  1. 1. Recites Letters Patent of 11 May 1917
    Whereas by certain Letters Patent under the Great Seal of the United Kingdom bearing date at Westminster the 11th day of May 1917, His late Majesty King George the Fifth constituted, ordered, and declared that there should be a Governor-General and Commander-in-Chief in and over the Dominion of New Zealand:
  2. 2. Recites Letters Patent of 18 December 1918
    And whereas by certain Letters Patent under the Great Seal of the United Kingdom bearing date at Westminster the 18th day of December 1918, His late Majesty King George the Fifth made other provision for the publication and the coming into operation of the said Letters Patent bearing date the 11th day of May 1917, in lieu of the provision made in the Fifteenth Clause thereof:
  3. 3. Recites Royal Instructions of 11 May 1917
    And whereas at the Court at St. James’s on the 11th day of May 1917, His late Majesty King George the Fifth caused certain Instructions under the Royal Sign Manual and Signet to be given to the Governor-General and Commander-in-Chief:
  4. 4. Recites Dormant Commission of 23 July 1917
    And whereas at the Court at St. James’s on the 23rd day of July 1917, His late Majesty King George the Fifth caused a Dormant Commission to be passed under the Royal Sign Manual and Signet, appointing the Chief Justice or the Senior Judge for the time being of the Supreme Court of New Zealand to administer the Government of New Zealand, in the event of the death, incapacity, or absence of the Governor-General and Commander-in-Chief and of the Lieutenant-Governor (if any):
  5. 5. Recites approval by Executive Council of draft of new Letters Patent
    And whereas, by Order in Council bearing date at Wellington the 26th day of September 1983, Our Governor-General and Commander-in-Chief of New Zealand, acting by and with the advice and consent of the Executive Council of New Zealand, has requested the issue of new Letters Patent revoking and determining the said Letters Patent bearing date the 11th day of May 1917, the said Letters Patent bearing date the 18th day of December 1918, the said Instructions, and the said Dormant Commission, and substituting in place of the revoked documents other provision in the form of the draft of new Letters Patent set out in Schedule 1 to that Order in Council:
  6. 6. Recites application of Letters Patent, Royal Instructions, and Dormant Commission to Cook Islands and Niue
    And whereas the said Letters Patent bearing date the 11th day of May 1917, the said Letters Patent bearing date the 18th day of December 1918, the said Instructions, and the said Dormant Commission extend to the self-governing state of the Cook Islands and to the self-governing state of Niue as part of the law of the Cook Islands and of Niue, respectively:
  7. 7. Recites approval by Government of Cook Islands and Government of Niue of draft of new Letters Patent
    And whereas approval of the said draft of new Letters Patent has been signified on behalf of the Government of the Cook Islands and the Government of Niue:
  8. 8. Effects revocations
    Now, therefore, We do by these presents revoke and determine the said Letters Patent bearing date the 11th day of May 1917, the said Letters Patent bearing date the 18th day of December 1918, the said Instructions, and the said Dormant Commission, but without prejudice to anything lawfully done thereunder; and We do hereby declare that the persons who are members of the body known as the Executive Council of New Zealand immediately before the coming into force of these Our Letters Patent shall be members of Our Executive Council hereby constituted as though they had been appointed thereto under these Our Letters Patent.

And We do declare Our will and pleasure as follows:

1. Office of Governor-General and Commander-in-Chief constituted

We do hereby constitute, order, and declare that there shall be, in and over Our Realm of New Zealand, which comprises—

  1. a. New Zealand; and
  2. b. the self-governing state of the Cook Islands; and
  3. c. the self-governing state of Niue; and
  4. d. Tokelau; and
  5. e. the Ross Dependency,—

a Governor-General and Commander-in-Chief who shall be Our representative in Our Realm of New Zealand, and shall have and may exercise the powers and authorities conferred on him by these Our Letters Patent, but without prejudice to the office, powers, or authorities of any other person who has been or may be appointed to represent Us in any part of Our Realm of New Zealand and to exercise powers and authorities on Our behalf.

2. Appointment of Governor-General and Commander-in-Chief

And We do hereby order and declare that Our Governor-General and Commander-in-Chief (hereinafter called Our Governor-General) shall be appointed by Us, by Commission under the Seal of New Zealand, and shall hold office during Our pleasure.

3. Governor-General’s powers and authorities

And We do hereby authorise and empower Our Governor-General, except as may be otherwise provided by law,—

  1. a. to exercise on Our behalf the executive authority of Our Realm of New Zealand, either directly or through officers subordinate to Our Governor-General; and
  2. b. for greater certainty, but not so as to restrict the generality of the foregoing provisions of this clause, to do and execute in like manner all things that belong to the Office of Governor-General including the powers and authorities hereinafter conferred by these Our Letters Patent.

4. Manner in which Governor-General’s powers and authorities are to be executed

Our Governor-General shall do and execute all the powers and authorities of the Governor-General according to—

  1. a. the tenor of these Our Letters Patent and of such Commission as may be issued to Our Governor-General under the Seal of New Zealand; and
  2. b. such laws as are now or shall hereafter be in force in Our Realm of New Zealand or in any part thereof.

5. Publication of Governor-General’s Commission

Every person appointed to fill the Office of Governor-General shall, before entering on any of the duties of the office, cause the Commission appointing him to be Governor-General to be publicly read, in the presence of the Chief Justice, or some other Judge of the High Court of New Zealand, and of members of the Executive Council thereof.

6. Oaths to be taken by Governor-General

Our Governor-General shall, immediately after the public reading of the Commission appointing him, take—

  1. a. the Oath of Allegiance in the form for the time being prescribed by the law of New Zealand; and
  2. b. the Oath for the due execution of the Office of Governor- General in the form following:
  3. I, [name], swear that, as Governor-General and Commander- in-Chief of the Realm of New Zealand, comprising New Zealand; the self-governing states of the Cook Islands and Niue; Tokelau; and the Ross Dependency, I will faithfully and impartially serve Her [or His] Majesty [specify the name of the reigning Sovereign, as thus: Queen Elizabeth the Second], Queen of New Zealand [or King of New Zealand], Her [or His] heirs and successors, and the people of the Realm of New Zealand, in accordance with their respective laws and customs. So help me God.

which Oaths the Chief Justice or other Judge in whose presence the Commission is read is hereby required to administer.

7. Constitution of Executive Council

And We do by these presents constitute an Executive Council to advise Us and Our Governor-General in the Government of Our Realm of New Zealand.

8. Membership of Executive Council

The Executive Council shall consist of those persons who, having been appointed to the Executive Council from among persons eligible for appointment under the Constitution Act 1986, are for the time being Our responsible advisers.

9. Quorum of Executive Council

The Executive Council shall not proceed to the despatch of business unless two members at the least (exclusive of any member presiding in the absence of Our Governor-General) be present throughout the whole of the meeting at which any such business is despatched, except that in a situation of urgency or emergency, members may be present by any method of communication that allows each member to participate effectively during the whole of the meeting.

10. Appointment of members of Executive Council, etc

And We do hereby authorise and empower Our Governor- General, from time to time in Our name and on Our behalf, to constitute and appoint under the Seal of New Zealand, to hold office during pleasure, all such members of the Executive Council, Ministers of the Crown, commissioners, diplomatic or consular representatives of New Zealand, principal representatives of New Zealand in any other country or accredited to any international organisation, and other necessary officers as may be lawfully constituted or appointed by Us.

11. Exercise of prerogative of mercy

And We do further authorise and empower Our Governor-General, in Our name and on Our behalf, to exercise the prerogative of mercy in Our Realm of New Zealand, except in any part thereof where, under any law now or hereafter in force, the prerogative of mercy may be exercised in Our name and on Our behalf by any other person or persons, to the exclusion of Our Governor-General; and for greater certainty but not so as to restrict the authority hereby conferred, Our Governor-General may:

  1. a. grant, to any person concerned in the commission of any offence for which he may be tried in any court in New Zealand or in any other part of Our said Realm to which this clause applies or to any person convicted of any offence in any such court, a pardon, either free or subject to lawful conditions; or
  2. b. grant, to any person, a respite, either indefinite or for a specified period, of the execution of any sentence passed on that person in any court in New Zealand or in any other part of Our said Realm to which this clause applies; or
  3. c. remit, subject to such lawful conditions as he may think fit to impose, the whole or any part of any such sentence or of any penalty or forfeiture otherwise due to Us on account of any offence in respect of which a person has been convicted by any court in New Zealand or in any other part of Our said Realm to which this clause applies.

12. Administrator of the Government

Whenever the Office of Governor-General is vacant, or the holder of the Office is for any reason unable to perform all or any of the functions of the Office, We do hereby authorise, empower, and command the Chief Justice of New Zealand to perform the functions of the Office of Governor-General. If, however, there is for the time being no Chief Justice able to act as Governor-General, then the next most senior Judge of the New Zealand judiciary who is able so to act is so authorised, empowered, and commanded. The Chief Justice or the next most senior Judge, while performing all or any of the functions of the Office of Governor-General, is to be known as the Administrator of the Government; and in these Our Letters Patent every reference to Our Governor-General includes, unless inconsistent with the context, a reference to Our Administrator of the Government.

13. Oaths to be taken by Administrator of the Government

The said Chief Justice or next most senior Judge of the New Zealand judiciary shall, on the first occasion on which he is required to act as Administrator of the Government and before entering on any of the duties of the Office of Governor-General, take the Oaths hereinbefore directed to be taken by Our Governor-General, which Oaths, with such modifications as are necessary, shall be administered by some other Judge of the High Court of New Zealand, in the presence of not less than two members of the Executive Council.

14. Powers and authorities of Governor-General not abridged

While Our Administrator of the Government is performing all or any of the functions of the Office of Governor-General, the powers and authorities of Our Governor-General shall not be abridged, altered, or in any way affected, otherwise than as We may at any time hereafter think proper to direct.

15. Governor-General’s absence

[Revoked]

16. Ministers to keep Governor-General informed

Our Ministers of the Crown in New Zealand shall keep Our Governor-General fully informed concerning the general conduct of the Government of Our said Realm, so far as they are responsible therefor, and shall furnish Our Governor-General with such information as he may request with respect to any particular matter relating to the Government of Our said Realm.

17. Ministers and others to obey, aid, and assist Governor-General

Our Ministers of the Crown and other officers, civil and military, and all other inhabitants of Our Realm of New Zealand, shall obey, aid, and assist Our Governor-General in the performance of the functions of the Office of Governor-General.

18. Power reserved to Her Majesty to revoke, alter, or amend the present Letters Patent

And We do hereby reserve to Ourselves, Our heirs and successors, full power and authority from time to time to revoke, alter, or amend these Our Letters Patent as to Us or them shall seem meet.

19. Present Letters Patent to have effect as law

And We do further declare that these Our Letters Patent shall take effect as part of the law of Our Realm of New Zealand, comprising New Zealand, the self- governing state of the Cook Islands, the self-governing state of Niue, Tokelau, and the Ross Dependency on the 1st day of November 1983.

In witness whereof We have caused these Our Letters to be made Patent, and for the greater testimony and validity thereof We have caused the Seal of New Zealand to be affixed to these presents, which We have signed with Our Regal Hand.

Given the 28th day of October in the Year of Our Lord One Thousand Nine Hundred and Eighty-three and in the 32nd Year of Our Reign.

Constitution Act 1986

Preamble

An Act to reform the constitutional law of New Zealand, to bring together into one enactment certain provisions of constitutional significance, and to provide that the New Zealand Constitution Act 1852 of the Parliament of the United Kingdom shall cease to have effect as part of the law of New Zealand

1. Short Title and commencement

1. This Act may be cited as the Constitution Act 1986.

2. This Act shall come into force on 1 January 1987.

Part 1. The Sovereign

2. Head of State

1. The Sovereign in right of New Zealand is the head of State of New Zealand, and shall be known by the royal style and titles proclaimed from time to time.

2. The Governor-General appointed by the Sovereign is the Sovereign’s representative in New Zealand.

3. Exercise of royal powers by the Sovereign or the Governor-General

1. Every power conferred on the Governor-General by or under any Act is a royal power which is exercisable by the Governor-General on behalf of the Sovereign, and may accordingly be exercised either by the Sovereign in person or by the Governor-General.

2. Every reference in any Act to the Governor-General in Council or any other like expression includes a reference to the Sovereign acting by and with the advice and consent of the Executive Council.

3A. Advice and consent of Executive Council

1. The Sovereign or the Governor-General may perform a function or duty, or exercise a power, on the advice and with the consent of the Executive Council if that advice and consent are given at a meeting of the Executive Council at which neither the Sovereign nor the Governor-General is present if the Sovereign or the Governor-General is prevented from attending the meeting by some necessary or reasonable cause.

2. The performance of the function or duty, or the exercise of the power takes effect from the date of the meeting unless another time is specified for the performance of the function or duty, or for the exercise of the power, to take effect.

3. Neither the validity of the performance of the function or duty, nor the validity of the exercise of the power, can be challenged in any legal proceedings on the ground that the Sovereign or the Governor-General was not prevented from attending the meeting of the Executive Council by some necessary or reasonable cause.

3B. Exercise of powers and duties by Administrator

1. The Administrator of the Government may perform a function or duty imposed on the Governor-General, or exercise a power conferred on the Governor-General, if-

  1. a. the office of Governor-General is vacant; or
  2. b. the Governor-General is unable to perform the function or duty or exercise the power.

2. The performance or exercise by the Administrator of the Government of a function or duty imposed, or a power conferred, on the Governor-General is conclusive evidence of the authority of the Administrator to perform the function or duty or exercise the power.

4. Regency

1. Where, under the law of the United Kingdom, the royal functions are being performed in the name and on behalf of the Sovereign by a Regent, the royal functions of the Sovereign in right of New Zealand shall be performed in the name and on behalf of the Sovereign by that Regent.

2. Nothing in subsection (1) limits, in relation to any power of the Sovereign in right of New Zealand, the authority of the Governor-General to exercise that power.

5. Demise of the Crown

1. The death of the Sovereign shall have the effect of transferring all the functions, duties, powers, authorities, rights, privileges, and dignities belonging to the Crown to the Sovereign’s successor, as determined in accordance with the enactment of the Parliament of England intituled The Act of Settlement (12 & 13 Will 3, c 2) and any other law relating to the succession to the Throne, but shall otherwise have no effect in law for any purpose.

2. Every reference to the Sovereign in any document or instrument in force on or after the commencement of this Act shall, unless the context otherwise requires, be deemed to include a reference to the Sovereign’s heirs and successors.

Part 2. The Executive

6. Ministers of Crown to be members of Parliament

1. A person may be appointed and may hold office as a member of the Executive Council or as a Minister of the Crown only if that person is a member of Parliament.

2. Notwithstanding subsection (1),—

  1. a. a person who is not a member of Parliament may be appointed and may hold office as a member of the Executive Council or as a Minister of the Crown if that person was a candidate for election at the general election of members of the House of Representatives held immediately preceding that person’s appointment as a member of the Executive Council or as a Minister of the Crown but shall vacate office at the expiration of the period of 40 days beginning with the date of the appointment unless, within that period, that person becomes a member of Parliament; and
  2. b. where a person who holds office both as a member of Parliament and as a member of the Executive Council or as a Minister of the Crown ceases to be a member of Parliament, that person may continue to hold office as a member of the Executive Council or as a Minister of the Crown until the expiration of the 28th day after the day on which that person ceases to be a member of Parliament.

7. Power of member of Executive Council to exercise Minister’s powers

Any function, duty, or power exercisable by or conferred on any Minister of the Crown (by whatever designation that Minister is known) may, unless the context otherwise requires, be exercised or performed by any member of the Executive Council.

8. Appointment of Parliamentary Under-Secretaries

1. The Governor-General may from time to time, by warrant under the Governor-General’s hand, appoint any member of Parliament to be a Parliamentary Under-Secretary in relation to such Ministerial office or offices as are specified in that behalf in the warrant of appointment.

2. A Parliamentary Under-Secretary shall hold office as such during the pleasure of the Governor-General, but shall in every case vacate that office within 28 days of ceasing to be a member of Parliament.

9. Functions of Parliamentary Under-Secretaries

1. A Parliamentary Under-Secretary holding office as such in respect of any Ministerial office shall have and may exercise or perform under the direction of the Minister concerned such of the functions, duties, and powers of the Minister of the Crown for the time being holding that office as may from time to time be assigned to the Parliamentary Under-Secretary by that Minister.

2. Nothing in subsection (1) limits the authority of any Minister of the Crown to exercise or perform personally any function, duty, or power.

3. The fact that any person holding office as a Parliamentary Under-Secretary in respect of any Ministerial office purports to exercise or perform any function, duty, or power of the Minister concerned shall be conclusive evidence of that person’s authority to do so.

9A. Solicitor-General may perform functions of Attorney-General

The Solicitor-General may perform a function or duty imposed, or exercise a power conferred, on the Attorney-General.

9B. Appointment of person to act in place of Solicitor-General

1. The Governor-General may appoint a barrister or solicitor of at least 7 years’ practice to act—

  1. a. in place of, or for, the Solicitor-General during the absence from office of the Solicitor-General or if the Solicitor-General is incapacitated in a way that affects the performance of his or her duties; or
  2. b. during a vacancy in the office of Solicitor-General.

2. The performance of a function or duty or the exercise of a power by a person appointed under subsection (1) is, in the absence of proof to the contrary, sufficient evidence of the authority of that person to do so.

9C. Delegation of powers of Attorney-General and Solicitor-General

1. The Solicitor-General may, with the written consent of the Attorney-General, in writing delegate to a Deputy Solicitor-General, any of the functions or duties imposed, or powers conferred, on the Attorney-General.

2. The Solicitor-General may in writing delegate to a Deputy Solicitor-General any of the functions or duties imposed, or powers conferred, on the Solicitor-General, except for the power to delegate conferred by this subsection.

3. A delegation is revocable and does not prevent the Attorney-General or the Solicitor-General from performing the function or duty or exercising the power.

4. A delegation may be made on conditions specified in the instrument of delegation.

5. The fact that a Deputy Solicitor-General performs a function or duty or exercises a power is, in the absence of proof to the contrary, sufficient evidence of his or her authority to do so.

Part 3. The Legislature

A. The House of Representatives

10. House of Representatives

1. There shall continue to be a House of Representatives for New Zealand.

2. The House of Representatives is the same body as the House of Representatives referred to in section 32 of the New Zealand Constitution Act 1852 of the Parliament of the United Kingdom.

3. The House of Representatives shall be regarded as always in existence, notwithstanding that Parliament has been dissolved or has expired.

4. The House of Representatives shall have as its members those persons who are elected from time to time in accordance with the provisions of the Electoral Act 1993, and who shall be known as members of Parliament.

11. Oath of allegiance to be taken by members of Parliament

1. A member of Parliament shall not be permitted to sit or vote in the House of Representatives until that member has taken the Oath of Allegiance in the form prescribed in section 17 of the Oaths and Declarations Act 1957.

2. The oath to be taken under this section shall be administered by the Governor-General or a person authorised by the Governor-General to administer that oath.

12. Election of Speaker

The House of Representatives shall, at its first meeting after any general election of its members, and immediately on its first meeting after any vacancy occurs in the office of Speaker, choose one of its members as its Speaker, and every such choice shall be effective on being confirmed by the Governor-General.

13. Speaker to continue in office notwithstanding dissolution or expiration of Parliament

A person who is in office as Speaker immediately before the dissolution or expiration of Parliament shall, notwithstanding that dissolution or expiration, continue in office until the close of polling day at the next general election unless that person sooner vacates office as Speaker.

B. Parliament

14. Parliament

1. There shall be a Parliament of New Zealand, which shall consist of the Sovereign in right of New Zealand and the House of Representatives.

2. The Parliament of New Zealand is the same body as that which before the commencement of this Act was called the General Assembly (as established by section 32 of the New Zealand Constitution Act 1852 of the Parliament of the United Kingdom) and which consisted of the Governor-General and the House of Representatives.

15. Power of Parliament to make laws

1. The Parliament of New Zealand continues to have full power to make laws.

2. No Act of the Parliament of the United Kingdom passed after the commencement of this Act shall extend to New Zealand as part of its law.

16. Royal assent to Bills

A Bill passed by the House of Representatives shall become law when the Sovereign or the Governor-General assents to it and signs it in token of such assent.

17. Term of Parliament

1. The term of Parliament shall, unless Parliament is sooner dissolved, be 3 years from the day fixed for the return of the writs issued for the last preceding general election of members of the House of Representatives, and no longer.

2. Section 268 of the Electoral Act 1993 shall apply in respect of subsection (1).

18. Summoning, proroguing, and dissolution of Parliament