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Common Law: Not your saving grace

Updated: Jan 11


In my previous blog post, I wrote about the legal misinformation that had been disseminating on social media. Unfortunately, I was met with questions, asking me if I understood "common law" (sometimes referred to "common lore", which I particularly enjoyed).


I've had people ask me: "What law applies to New Zealand"?"


When I responded that the Law of New Zealand is the law that applies to New Zealand, I was told that I needed to do my research on common law. I was told that the Government is a business (corporation) and has been operating under maritime/admiralty law. I couldn't make this stuff up if I tried.


I originally didn't think that this topic needed it's own blog post, however, there are people taking this advice as gospel, and seriously putting themselves at risk. I can't blame them: they are desperate for an answer, and the person providing this advice holds themselves out to be a lawyer.


However, I believe it's important to be transparent in reporting this legal advice: not only because it puts that person at risk of significant fines and fees, but it actively undermines the COVID-19 public health response. Many will know that I do not agree with all aspects of the COVID-19 public health response: but that doesn't mean those laws don't exist or that they don't apply.


People have a right to make an informed decision about their rights and responsibilities. Ironically, when I provide a differing view, to assist in this informed decision-making, I'm accused of being a subversive entity that is attempting to create disfunction and dissention to bring down pro-choice groups in the Freedom Movement. (See my response here)

There are other comments calling me a "useful tool for the govt", a "Govt Shill", and a "Government plant."


The reality is: the law is the law. There is no loophole: if you think there's a loophole, it's an exception that was provided by law. I'm an advocate for the people: and I'm always going to call out advice that does not assist the people.


If the people want to continue their claims of common law: at least they have another source of information to consider before making their own (informed) decision.


For your interest, here are some of the template letters I've seen circulating on social media, in groups of between 9,000 to 30,000 people. I'm not sure why people are taking legal advice from a group called "Starve the Beast", but there you have it.


Private societies

Tax paying is voluntary in New Zealand

Taxation on superannuation/benefit income


There is also a letter to assist people in stopping paying their mortgage. I haven't managed to get a copy: they won't let me into their groups anymore. This latest group provides that "if you want to criticize you will need proof to back up your debate", while also citing the Bible as legal authority. I must have missed this lecture at law school.


... IMHO This is what undermines the pro-rights, pro-choice and other freedom movements: baseless and unsubstantiated legal advice ...


What is Common Law?


Common law is the law that is developed by the judiciary over centuries: in its most simplistic terms, it is judicial precedent. English common law was principally developed in the central royal courts: the Court of King's Bench, the Court of Common Pleas, and the Exchequer.


New Zealand's laws originated from the common law of England (including the principles and rules of equity), but have since been developed by New Zealand judges over centuries within our own jurisdiction. While the common law of England are part of the laws of New Zealand, there few common laws which have not been developed in New Zealand. (Read more: our court system and history and role ... honestly, the entire "Courts of New Zealand" website provides great reading here)


Common law is a separate source of law, which is appropriate to reflect the separation of powers. While it is Parliament's role to create laws, it is the judiciary's function to interpret them. Judges are independent from the other branches of Government, and are free to determine each case according to law, based on the evidence presented in court. This means that these interpretations become a source of law in and of themselves. (Read more: New Zealand's constitutional system).


Honestly, it would be near impossible for Parliament to legislate for every single factual circumstance. Personal grievance law would be a nightmare: the Employment Relations Act 2000 simply states that the legal test is:


...whether the employer's actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.


What is fair and reasonable is constantly being developed through legal judicial precedent: and it is likely that many questions relating to the procedural and substantive legality of vaccination policies in the workplace will similarly be developed through common law.


The Equitable Jurisdiction


Then you have equity, which was developed in the English Court of Chancery. Equity does not mean "general fairness" or "natural justice", but refers to a particular body of rules that originated in this special system of courts.


In New Zealand, equity remains a distinct body of law. Where a Court has equitable jurisdiction, if there is any conflict of variance between the rules of equity and the rules of common law, the rules of equity prevail: unless otherwise expressly legislated.


It may be of interest that the employment jurisdiction is unique in that it is an expressly equitable jurisdiction. Section 189, as it applies to the Employment Court, provides:


In all matters before it, the court has, for the purpose of supporting successful employment relationships and promoting good faith behaviour, jurisdiction to determine them in such manner and to make such decisions or orders, not inconsistent with this or any other Act or with any applicable collective agreement or the particular individual employment agreement, as in equity and good conscience it thinks fit.


I hate to cite Wikipedia, but it has some good content on equity (law) and the maxims of equity if you're interested and don't want to buy a legal textbook. If you're wanting to rely on some equitable principle, you may want to familiarise yourself with the maxim of equity: "He who comes into equity must come with clean hands."


Jurisdiction of Admiralty


There is a separate jurisdiction of admiralty, which was developed in the special Admiralty Courts: however, the extent to which this applies in New Zealand is narrow. I don't intend on covering this, however, the legislation is rather clear on the extent of the admiralty jurisdiction. (Read more: Admiralty Act 1983).


Parliamentary Sovereignty


Parliament is recognised as sovereign (the highest authority) in the law-making process because it is accountable to the people. The principles of parliamentary sovereignty therefore dictate that Parliament may repeal, modify, or develop the common law by statute. (Read more: What is Parliament?)


The New Zealand Government has been repealing, modifying and developing the common law by statute for some years. Conduct a search on the New Zealand Legislation website, and search "common law" in the "quick search" on the top right corner (be sure to select "content"). Here are some examples (there are 135 results):

  • The Contract and Commercial Law Act 2017 has a number of provisions which are to take effect in place of the rules of the common law and of equity: sections 22, 40 and 115.

  • The Crimes Act 1961 provides that no one shall be convicted of any offence at common law: section 9.

  • The Trusts Act 2019 is intended to be complemented by the rules of the common law and equity relating to trusts (except where otherwise indicated or where those rules are inconsistent with the provisions of the Act): section 5.

  • The Copyright Act 1994 provides that nothing in that Act affects the operation of any rule of equity relating to breaches of trust or confidence: section 225.

  • Subpart 7 of Part 2 of the Property Law Act 2007 establishes the abolition and modification of common law rules relating to property.

This isn't new: it's the very operation of the separation of powers. The judiciary provides checks and balances on Parliamentary powers, but ultimately, the judiciary do not create law. Therefore, if judicial precedent is set, which does not reflect Parliament's intentions, Parliament can amend, repeal or otherwise modify legislation to state its intentions (which will therefore override the judicial precedent).


This happens all the time.


Conclusion


The simple conclusion is that common law is judicial precedent: developed over centuries starting in various courts of England, including the Court of King's Bench, the Court of Common Pleas, the Exchequer, the English Court of Chancery, and the Admiralty Courts. There might be other courts I'm missing: however, the point remains the same.


What was once justiciable common law, may no longer be justiciable common law: either through the development of common law, or through statute.


If you're unsure, you're best to speak to a lawyer who holds a practicing certificate (search here), and who specialises in the area of law you're interested in pursuing.


(FYI: I am not a lawyer. I am an admitted barrister and solicitor of the High Court, who was a previously practicing lawyer, but who no longer holds a practicing certificate as it is not required in the employment jurisdiction).

Legal AF Limited t/a Ashleigh the Advocate


Help me, help others: your contributions allow me to continue creating substantial blog posts like these.

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