The Citation of Overseas Authority in Rights Litigation in New Zealand: How Much Bark? How Much Bite?

Abstract

There are no hard and fast rules governing the use of foreign precedents in litigation under the New Zealand Bill of Rights Act. Indeed, there are no rules at all. New Zealand courts are in a similar position to courts in most countries with bills of rights in this regard. They are bound to consider relevant domestic authority, but appear to have unlimited discretion in regard to invoking foreign authority. They may cite Canadian, American, European, even South African authority in some cases only to ignore it in others.

The authors review the use of foreign authority in New Zealand courts by examining citation practice in cases decided from 1990-2006, and use the data to answer a number of questions. For example, which rights tend to receive international treatment, and which do not? Which foreign courts are most likely to be cited in New Zealand courts? Is the citation of foreign decisions linked to expansive application of the New Zealand Bill of Rights Act, or does it have the effect of limiting its scope?

The authors conclude that New Zealand courts should be more sceptical of foreign authority than they appear to be, and that the premises justifying its use should be articulated.

Keywords: New Zealand Bill of Rights Act, Comparative constitutional law, use of foreign law

JEL Classification: K10, K19