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	Pacific Judicial Development Program
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PJDP Benchbook - 01 Legal Context

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THE LEGAL CONTEXT

This part generally describes the legal context in which you work. It:

• explains the Constitutional and Court structure in Niue;
• describes the different types of law that you apply.

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1 The Constitutional Framework of Niue

1.1 Niue’s Constitution

Niue’s Constitution came into force on October 19, 1974 and is found in the Niue Constitution Act 1974.

The Constitution details the basic elements of Niue’s system of government by defining:

• the roles, responsibilities and powers of the Executive, Parliament and the Judiciary;
• the organization and structure of the legal system;
• the requirements of citizenship and details related to finance, land and leadership.

The Constitution gives effect to the doctrine of the Separation of Powers.

The Doctrine of the Separation of Powers

This doctrine states that there should be three distinct and separate branches of government:

1. the Executive: administrator and policy maker;
2. the Parliament (Legislature): law maker;
3. the Judiciary: interpreter of law.

Each branch of government checks the roles and functions of the other branches. This checking maintains the balance of power between the three branches and does not allow the Executive to assume too much power.

The independence of the Judiciary is an important element of the doctrine of Separation of Powers and is vital for maintaining the balance of power.

Independence of the Judiciary

Although Parliament makes laws and the Executive allocate funds, premises, supporting staff and services for the Judiciary, the Judiciary must be independent and free from all political or other influence in carrying out its duties and in making decisions.

The independence of the Judiciary is protected by:

• the Constitution;
• the process of appointment and removal of judicial officers, and their conditions of appointment; and
• immunity from civil actions.

1.2 The Branches of Government in Niue

Head of State

The executive authority of Niue is vested in Her Majesty the Queen in right of New Zealand, and the Governor-General of New Zealand is accordingly the representative of Her Majesty the Queen in relation to Niue: Art. 1 Constitution.

The Executive

The role of the Executive is to formulate and implement government policy.

In Niue, the Executive effectively runs and controls the affairs of the country.

The Executive and Parliament are distinct even though they have many people and positions in common.

The Executive in Niue comprises:

• the Premier; and
• the Cabinet of Ministers.

Premier

The Premier is a member of the Niue Assembly.

He or she is elected by a majority of the members of the Assembly who are present and voting at the first meeting of the Niue Assembly after a general election.

Cabinet

The Niue Cabinet is headed by the Premier and consists of three other ministers who are:

• from the Niue Assembly;
• nominated by the Premier with their consent; and
• appointed by the Speaker of the Assembly.

There are four members in total.

Cabinet is collectively responsible to the Assembly for the performance of the executive authority of government.

The Premier allocates which Minister will look after each government department. This includes the Minister that looks after the Justice Department and the Judiciary.

The Legislature (The Assembly)

The Niue Assembly is established under Article 16 of the Constitution.

The Assembly:

• has 14 members elected from village constituencies;
• has 6 members elected by persons from a common electoral role;
• is presided over by a Speaker, who is elected by Parliament;
• is dissolved every three years unless it has been dissolved earlier.

The Assembly:

• has the power to “make laws for the peace, order and good government of Niue, subject to the Constitution”;
• introduces and passes Bills in accordance with the Constitution and with the Standing Orders of the Assembly.

Bills become law only if:

• they have been debated in the Assembly and formally approved on three readings of the bill, in which 10 members of the Assembly have been present; and
• the speaker has endorsed, signed and sealed the bill after he or she is satisfied that the bill has been passed in accordance with the Constitution and Standing Orders of the Assembly; and
• the clerk of the Niue Assembly has countersigned the certificate on the copy of the bill in the presence of the Speaker of the Assembly:

; The Assembly must have a report by the Public Service Commission prior to passing a Bill which affects the Public Service Commission: Article 32 Constitution.

; Bills that affect financial measures in place in Niue cannot be passed except with the recommendation and consent of the premier: Article 30 Constitution.

; A Commission of Inquiry must be set up before the Assembly can consider bills which affect Niue Land: Article 33 Constitution.

The laws which are passed by the Niue Assembly are the laws which the Courts apply and interpret when dealing with the charges, complaints and disputes that are brought before them.

Note that the Constitution gives immunity to members of the Assembly when they are acting in their official capacity. No civil or criminal proceedings can be instituted against a member of Niue Assembly for:

• exercising their powers in conducting the business of government; or
• words spoken in the Assembly or included in a report or paper to the Assembly: Article 24(2 & 3) Constitution.

The Judiciary

The Judiciary is the third branch of government in Niue. It:

• is an independent body which is responsible for interpreting and applying the laws made by the Niue Assembly;
• develops and interprets case law; and
• solves disputes of fact and law between individuals, and between individuals and the State.

The Judiciary comprises:

• the High Court;
• the Court of Appeal; and
• the Sovereign in Council (the Privy Council in England).

Local Government

Village Councils

The Village Councils provide governance at a local level.

Village Councils are elected under the Village Councils Ordinance 1967 and s. 50 Niue Act 1966.

According to s. 51 of the Niue Act 1966, Village Councils have the power to make bylaws. The bylaws, under the Village Councils Ordinance 1967, can relate to such things as village planning, housing, and control of animals.

Note that many of the matters that could be dealt with through village bylaws have now been legislated by the national government.

2 The Niue Court System

2.1 General Characteristics of the Niue Court System

Three Courts have jurisdiction in Niue:

• the High Court;
• the Court of Appeal; and
• the Sovereign in Council.

The Court system is hierarchical:

• This hierarchy is essential to the Doctrine of Precedent (see Part II The Law).
• The hierarchy provides an appeal system, which allows decisions to be checked by more senior Courts. This helps prevent inconsistency within the Courts and provides a check and balance system for the fair administration of justice.

2.2 The Structure of the Niue Court System

Figure 1 The Structure of Niue Courts

Sovereign in Council

Court of Appeal

High Court: Criminal Division

• Judges
Rehearing
• Commissioners
• Justices of the Peace

High Court: Land Division

• Judges
Rehearing
• Commissioners

High Court: Civil Division

• Judges
Rehearing
• Commissioners
• Justices of the Peace

2.3 A Brief Description of the Courts

The Sovereign in Council (Privy Council)

Appeals from a decision of the Court of Appeal may be made by an aggrieved party to Her Majesty in Council. Her Majesty in Council may hear such an appeal at Her discretion, as she thinks fit: Article 55(2) Constitution.

The Sovereign in Council is the Queen of the United Kingdom, acting by and with the advice of the Judicial Committee of the Privy Council.

The Court of Appeal

The Court of Appeal of Niue is a superior Court of record and was created in the 1992 amendments to the Constitution Act.

Articles 55A and 55B of the Constitution set out the grounds for, and manner of, appeal to the Court of Appeal.

Jurisdiction

The Court of Appeal may hear appeals from the High Court in both civil and criminal matters, subject to the provisions of the Constitution: Article 55A(1) Constitution Amendment Act (No. 1) 1992.

The Court of Appeal may hear appeals:

• where the High Court has granted leave because the question involved is one of general or public importance, or because of the magnitude of interest affected or for any other reason;
• as of right, if the High Court certifies that the case involves a substantial question of law as to the interpretation or effect of any provision of the Constitution; and
• when they grant special leave to appeal in cases where the judgment of the High Court is declared to be final under any Act.

Civil Jurisdiction

The Court of Appeal has jurisdiction to automatically hear civil appeals, as of right, when a matter in dispute on appeal amounts to not less than such value as prescribed by Act.

Criminal Jurisdiction

A person convicted of a criminal offence before the High Court may, as of right, appeal their sentence to the Court of Appeal from any conviction by the High Court where the appellant has been sentenced to death, imprisonment for life, or to a fine or imprisonment that is not fixed by law.

The High Court

The High Court of Niue is a Court of record and has original jurisdiction to hear all criminal, civil and land matters as is necessary to administer the law in force in Niue.

The High Court is divided in to three divisions:

• Criminal Division;
• Civil Division; and
• Land Division.

Each division of the High Court has the jurisdiction to hear and determine proceedings that, by virtue of any enactment, are to be heard and determined by that division or that, in certain circumstances are determined by the Chief Justice.

In addition to three divisions, there are also three types of Judicial Officers that sit in the High Court. These are:

• Judges;
• Commissioners; and
• Justices of the Peace.

Each of these Judicial Officers have different jurisdiction, as set out in Statute.

See Part 3 Introduction to the High Court, for a description of the jurisdiction.

3 The Law

3.1 Sources of Law in Niue

The laws of Niue are found in:

• the Constitution;
• legislation, including Acts and Regulations;
• case law decided by the Courts (known as common law).

3.2 The Constitution

The Constitution is found in the first and second schedules of the Constitution Act 1974 and came into force on October 19, 1974. The first schedule contains the Niuean version and the second schedule contains the English version.

Section 4(1) Constitution Act 1974 states that the Constitution is the supreme law of Niue. Any Statute or Regulation which is inconsistent with the Constitution is invalid, by virtue of Article 28(4) Constitution. Therefore, all other laws are to be interpreted and applied subject to the Constitution and, as far as practicable, in such a way as to conform with the Constitution.

It is Judges who interpret or decide the meaning of certain provisions in the Constitution, so the Constitution is affected by developments in the common law.

The Constitution and the Constitution Act 1974 can only be amended by the Niue Assembly in accordance with the following requirements:

• on the 2 final readings of a bill to amend the Constitution, the bill receives affirmative votes of not less than two-thirds of the Assembly; and
• the vote of the final reading takes place at least 13 weeks after the reading that preceded it; and
• it has been submitted to a poll by persons who are entitled to vote for an Assembly in a general election and passes by:

; two-thirds of the votes validly cast, if the bill amends or extends ss. 2 to 9 Constitution Act 1974 or Articles 1 to 60 Constitution; or

; a majority of votes validly cast for other cases; and

• the speaker is satisfied that the Bill has been passed in accordance with the Constitution and the Standing Orders of the Assembly and has endorsed, signed and sealed a copy of the bill; and
• the Clerk of the Niue Assembly has, in the presence of the speaker, countersigned the certified copy of the bill.
3.3 Legislation

Legislation is law that is passed or authorised by the Legislature (the Assembly). Legislation in Niue consists of:

• Statutes;
• Subordinate legislation, such as Regulations and Rules.

If legislation is inconsistent with the Constitution, it can be declared void.

Legislation is interpreted by Judges and may be affected by developments in the common law.

Statutes

The Statutes that apply in Niue are:

• Acts of the New Zealand Parliament, extended to Niue before 1974, that have not been repealed by the Assembly since 1974; and
• Acts of New Zealand Parliament, since 1974, that have been expressly requested and consented to by the Niue Assembly; and
• Act of the Niue Assembly since 1974.

The Niue Act 1966 is the principal statute which applies in Niue. It sets out provisions regarding:

• the legislative and executive functions of government;
• the operation of the High Court;
• criminal offences;
• criminal procedure;
• law of evidence; and
• criminal responsibility.

The Niue Act 1966 has been amended several times to reflect the changing needs of the law.

There are approximately 30 New Zealand Statutes that are in force in Niue by virtue of the express extension set out in the Niue Act 1966. Article 36 of the Constitution requires that any application of a New Zealand Act to Niue after 1974 needs to be requested and consented to by resolution of the Niue Assembly.

Statutes made by the Niue Assembly, since 1974, become law in Niue when a majority of the members of the Assembly vote in favour of the bill. The bill must be endorsed and signed by the Speaker and the Clerk of the Niue Assembly.

Legislation can be found in the Consolidated Laws of Niue 1990 and in the Statutes themselves.

Subordinate Legislation

The power to make subordinate legislation is granted to Cabinet, who makes Rules and Regulations. Rules and Regulations of Cabinet shall have effect when they have been signed by the Premier or the Clerk of Cabinet: Article 13 Constitution.

Understanding and Interpreting Legislation

It is your job, as a Commissioner or Justice of the Peace, to apply and interpret legislation.

Generally, Statutes contain a section at the start which defines the meaning of certain words and phrases. In the Niue Act, definitions for words are found at the beginning of each Part within the Act. If the word or phrase is not defined, then it may be given its natural and ordinary meaning.

When interpreting a word or phrase, consider:

• definitions in the Act (if any);
• a legal dictionary;
• how it has been used in the particular Act and section (i.e. the context it has been used in);
• what purpose Parliament had in passing the law.

When an Act says the Court “may” do something, that means the power may be exercised or not, at your discretion.

When an Act says you “shall” do something, this means you must. You have no choice.

You must always be aware of various amendments that have been made to the legislation. When an amendment comes into force, it will change particular sections in particular Acts. However, it may also affect the operation of other legislation.

This is especially important in Niue, where a number of amendments have been made to one piece of legislation without changes made to other legislation which is affected by the changes.

3.4 Common Law

Common law is the law that is made and developed by Courts. It is also called case law.

Sections 672 and 673 Niue Act 1966 specifically provides that English common law and equity shall apply in Niue as it existed in 1840, if it is not inconsistent with the Act or the circumstances of Niue.

High Court Judges and the Court of Appeal and Privy Council can make and develop case law:

• where no legislation exists to deal with matters in that case; or
• by interpreting existing legislation.

The development of the common law does not mean that Judges can make arbitrary decisions. They must follow the Doctrine of Precedent and give reasons for their decision.

Doctrine of Precedent

Commissioners and Justices must follow decisions of High Court Judges and the Court of Appeal and Privy Council, unless the material facts in the case are different. This means cases of similar type should be decided in the same way, giving certainty to the law.

It is through this process of making decisions based on previous decisions that the body of common law has been built up.

When there is no relevant Niuean decision, then New Zealand or English cases may be considered.

3.5 Customary Law

Custom is not a direct source of law in Niue with regards to civil and criminal matters, although the Constitution and Niue Act 1966 does place some emphasis on customary values and practices. It should be noted that if custom is inconsistent with the written law it will not apply.