Departure from "Wrong" Precedents by Final Appellate Courts:
Disagreeing with Professor Harris
Jack Hodder
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This article takes issue with an earlier article by Professor Harris of the Faculty of Law, University of Auckland, in which that author suggests that final courts of appeal should, after weighing competing relevant considerations, decline to follow precedents that they consider are simply "wrong". This article suggests that such an approach is contrary to the rule of law, and a threat to the legitimacy of judicial power. It includes a review of the British, Irish, Canadian, and Australian position on precedents and final courts of appeal, and offers old-fashioned touchstones on this topic for any newly fashioned Supreme Court of New Zealand.
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Courts in Transition: An Australian View
Justice Ronald Sackville |
The New Zealand justice system is being exposed to potentially sweeping reforms. This process mirrors a consistent pattern in common law countries, reflecting the orthodox view that the justice system is too expensive, slow, fragmented, and adversarial.
The recent Australian experience of a similar reform process suggests a paradox. Independent inquiries have tended to conclude that, despite the conventional wisdom, the justice system is fundamentally sound. It is the expectations of the system that are often unrealistic.
At the same time, the inquiries report a profound change in the way in which Australian courts and judges discharge their functions. The most important developments over the last quarter of a century judicial self-governance, active case management, and acceptance of the principle of consumer orientation have transformed the role of courts and judges. Not the least significant outcome is that the courts themselves have become initiators of change.
The paradox is, however, more apparent than real. The developments, significant as they may be, are compatible with the discharge of traditional judicial functions and with the maintenance of judicial independence. The emergence of a managerial and more accountable judiciary has, if anything, strengthened the capacity of the courts to maintain the rule of law in increasingly hazardous times.
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Political Discussion in New Zealand: Cause for Concern?
Rosemary Tobin |
This article examines the effect of the Lange decisions on the future development of New Zealand defamation law. The possibility is raised that, like Australia, New Zealand now has at least two forms of qualified privilege: the expanded Lange form, where publication is to a wide audience, and the classical form, where publication is limited. |
2003 Issues 
