1 Commentaries on the Laws of England (Clarendon Press Oxford 1765) vol 1, 104–5.Google Scholar

2 [1914] 3 KB 98.Google Scholar

3 In a decision given in December, the Privy Council held that it was not: Panton v Financial Institutions Services Ltd UK PC No 86, 15 Dec 2003.Google Scholar

4 Eg SirKenneth, Roberts-WrayCommonwealth and Colonial Law (Stevens London 1966) ch 11Google Scholarand, for New Zealand, the English Laws Acts of 1858 and 1908 leading to the Imperial Laws Application Act 1998, on which see New Zealand Law Commission Imperial Legislation in Force in New Zealand (NZLC R 1 1987);Google Scholar on the choice of the law of England see Jamieson, NJ ‘English Law but British Justice’ (1980) 4 Otago L Rev 488.Google ScholarIn one interesting New Zealand application of the limit on the application of the law of England Stout CJ ruled that a statute of Edward II concerning the King's revenue and treating whales as a royal fish was not part of the law of New Zealand. Not only had the statute never been claimed to be applicable, but it would be impossible to make the claim without claiming against Maori for they were accustomed to engage in whaling and the Treaty of Waitangi ensured that their fishing was not interfered with. Baldick v Jackson (1910) 30 NZLR 343,344–5. Another interesting aspect of the case is that the Court used the Treaty without any reference to any legislation incorporating the Treaty into national law.Google Scholar

5 Commentaries on the Laws of England (Clarendon Press Oxford 1769) vol 4, 67.Google ScholarThe New Zealand Courts appear to proceed on that direct approach, but the Australian position appears not to be so clear with Dixon J, for instance, in Chow Hung Ching v The King (1948) 77 CLR 449 saying that customary international law was a source rather than part of Australian law, while Starke J suggested that a universally recognized rule of international custom should be applied by Australian courts unless it was in conflict with statute or the common law.Google Scholar

6 Attorney-General v Ngati Apa [2003] 3 NZLR 643.Google Scholar

7 Johnson v Mclntosh 5 US 503, 505, 521–2 (1823).Google Scholar

8 United States v Percheman 10 US 393, 396–7 (1833).Google Scholar

9 Steyn, J ‘Guantanamo Bay: the legal black hole’ (2004) 53 ICLQ 1.CrossRefGoogle Scholar

10 Lord Haldane in Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399,401–2,404.Google Scholar

11 Also influential in the thinking of the judges in the foreshore and seabed case was Sir Kenneth Roberts-Wray's Commonwealth and Colonial Law (Stevens London 1966).Google ScholarThe value of that work, nearly 40 years on, demonstrates Lord Denning's prescience. While in the foreword he regrets the fact that the profession did not have it 30,40, or 50 years earlier, ‘it would be a great mistake... to think that this book has come too late. Sir Kenneth discusses problems which are of vital concern to all countries of the Commonwealth. Not only to the small territories still reaching towards independence, but also the great independent countries...’.Google Scholar

12 Reid, GNew Zealand Dictionary of Biography (Allen & Unwin London 1990) vol 1, 412.Google Scholar

13 British Parliamentary Papers 1841 (311), vol xvii, 37 quoted in New Zealand Law Commission A New Interpretation Act (NZLC R 17, 1990) para 11.Google Scholar

14 There was a gap between 1868 and 1888; see Law Commission (n 13) para 34, 212.Google Scholar

15 Eg Burrows, JF Statute Law in New Zealand (LexisNexis Wellington 2003) ch 8Google Scholarand Rick, Bigwood (ed) The Statute: Making and Meaning (LexisNexis Wellington 2004).Google Scholar

16 Reeves, WP State Experiments in Australia and New Zealand (Allen & Unwin London 1902).Google Scholar

17 Eg Visit to New Zealand in 1898: Beatrice Webb's diary with entries by Sidney Webb (Price Milburn Wellington 1959; Victoria University Press Wellington 1974)Google Scholarand A Siegfried Democracy in New Zealand (Bell London 1914; Victoria University Press Wellington 1982), the later versions being edited by Hamer, DA.Google Scholar

18 Gorst Clay, W ‘The Law of Employers' Liability and Insurance against Accidents’ (1897) 2 JSCL 1, 2.Google Scholar

19 Eg United Nations Development Programme Human Development Report 1997 (OUP Oxford 1997) 83 (currently, comparable shares of GDP for exports, lower capital transfers as a GDP share and much lower migration).Google Scholar

20 See, eg, Denning MR in Corocraft Ltd v Pan American Airways Inc [1969] 1 QB 616, noted in (1970) 19 ICLQ 127.Google Scholar

21 ‘Appeals to the Privy Council—Australia’ (1970) 2 Otago L Rev 138, 145.Google ScholarSee also the valuable account by Blacksbield, T, Coper, M, and Goldring, J in Blackshield, T et al. (eds) The Oxford Companion to the High Court of Australia (OUP Oxford 2001) 560.Google Scholar

22 For some of the detail see '‘Public Law in New Zealand’ (2003) 1 NZJPIL 3, 15–16.Google ScholarFor a broader discussion see Stevens Law and Politics: the House of Lords as a Judicial Body, 1800–1976 (Weidenfeld & Nicolson London 1979) 73–6.Google Scholar

23 [1907] AC 81. The judgment of the Earl of Halsbury is notable among other things for his difficulty in coming to grips with the notion of the legislative power of the state being limited by a federal structure; see 88–91.Google Scholar

24 Commissioners of Taxation (NSW) v Baxter (1907) 4 CLR 1087.Google Scholar

25 NZPCC 730.Google Scholar

26 Quoted in DB Swinfen Imperial Appeal: The Debate on the Appeal to the Privy Council, 1833–1986 (MUP Manchester 1987) 166.Google ScholarSirFrederick, Pollock, editor of the Law Quarterly Review, tried to make a calming comment, recording ‘an authoritative declaration that their Lordships had no intention of being personally offensive to the New Zealand Court’ (1903) 19 LQR 249.Google ScholarTwenty-seven years later, Callan, JB (later to be a Judge) suggested that ‘the very enormity of the offence the Judicial Committee committed…, as a direct consequence of [its] failure, is our best assurance that it will not so fail again’: ‘The Appeal to the Privy Council’ (1930) 6 NZLJ 94,95.Google Scholar

27 (1905) 21 LQR 9.Google Scholar

28 Police v Duffield [1974] 1 NZLR 416 (note)—a refusal of special leave to appeal in a summary criminal matter.Google Scholar

29 Judicial Committee (Dissenting Opinions) Order 1966, para 3; for divergent practice in Scottish devolution appeals see Munday ‘Judicial configurations: Permutations of the Court and Properties of Judgment’ (2002) 61 Camb L J 612,619–26.Google ScholarSee also Swinfen's, D discussion of the ‘single judgment’ (n 26) 221–46.Google Scholar

30 See, eg, Campbell, E ‘The Decline of the Jurisdiction of the Judicial Committee of the Privy Council’ (1959) 33 ALJ196, 200–2Google Scholar and the extensive Canadian literature she cites, nn 27–37. For a later instance of British misunderstanding of the Australian constitutional arrangements, this time by a Minister, see The Oxford Companion to the High Court of Australia (OUP Oxford 2001) 43.Google Scholar

31 But see LordWright's tribute to SirLyman, Duff, former Chief Justice of Canada, in (1955) 33 Can BR 1123 for an indication that he had dissented in the 1937 cases.Google Scholar

32 Eg Stevens, RThe English Judge (Hart Publishing Oxford 2002) 26.Google Scholar

33 DB Swinfen (n 26) provides a valuable overall account, although his treatment of the New Zealand position stops a little short, in the 1930s. Spiller, P in his The New Zealand Court of Appeal, 1958–1996 (Thompson Brookers Wellington 2002) has a chapter (16) on the ‘Relationship with the Privy Council’.Google Scholar

34 (1930) 6 NZLJ 83, 84. See also the paper by JB Callan given to the same conference and the discussion which followed it, led by Sir Francis Dillon Bell, the Attorney-General and an opponent (as he makes clear in his remarks) of the steps which led in the following year to the Statute of Westminster.Google ScholarSee similarly the view expressed by the New Zealand representative at the Unofficial Conference on British Commonwealth Relations in 1933: E Campbell ‘The Decline of the Jurisdiction of the Judicial Committee of the Privy Council’ (1959) 33 ALJ 196, 206.Google Scholar

35 6 NZLJ 104.Google Scholar

36 A minimalism which continued as Cameron, BJ demonstrates in his splendid article ‘Legal Change over Fifty Years’ (1987) 3 Canterbury LR 198.Google Scholar

37 See for instance the 1956 resolution of the New Zealand Law Society set out in Cameron, BJ ‘Appeals to the Privy Council—New Zealand’ (1970) 2 Otago L Rev 172.Google Scholar An early significant indication by a major figure in the law that ‘it is only a matter of time when the link with the Privy Council will go’ came as late as 19 May 1976 from Sir Thaddeus McCarthy in a speech on his retirement as President of the Court of Appeal: [1976] NZLJ 376, 380. By contrast one of his successors, Lord Cooke, adopted that position only in 1987 reversing the view he had publicly expressed only two years earlier, ‘The New Zealand Legal Identity’ (1987) 3 Canterbury LR 171, 180–3.Google Scholar For a helpful update to the valuable Cameron essay see Richardson, ‘The Privy Council and New Zealand’ (1997) 46 ICLQ 908.CrossRefGoogle Scholar

38 Asearly as 1901 the Privy Council had cast doubt on the use of American materials: Nireaha Tamaki v Baker (1901) NZPCC 371, 384–5.Google Scholar

39 See, eg, SirWilliam, Perry MLC quoted in Cameron (n 37).Google Scholar

40 [1983] NZLJ 229.Google Scholar

41 Justice and Electoral Committee, Report on the Supreme Court Bill (2003) 5–13.Google Scholar

42 Cooke, RB and Davis, AG ‘1956’ NZLJ 233, 296.Google ScholarA broader context to what may appear to be a rather narrow argument is provided by a letter by Harold, Evans in the 4 December issue of the Journal. In the aftermath of the Suez deMcle and the Hungarian invasion he proposed that New Zealand proclaim its willingness to play a full and active role in a permanent United Nations force (352).Google Scholar

43 Corbett v Social Security Commission [1962] NZLR 878; see the comment in (1963) 1 NZULR 124, 130–7.Google Scholar

44 Australian Consolidated Press v Uren [1969] 1 AC 590.Google Scholar

45 [1964] AC 1129.Google Scholar

46 [1969] 1 AC 590, 641.Google Scholar

47 [1969] 1 AC 590, 644.Google Scholar

48 Reid v Reid [1982] 1 NZLR 147.Google Scholar

49 The English Judge (Hart Publishing Oxford 2002) 38, referring to (1951) 25 ALJ 296.Google Scholar

50 Above n 22.Google Scholar

51 Invercargill City Council v Hamlin [1996] 1 NZLR 513.Google Scholar

52 [1996] 1 NZLR 513, 519–520.Google Scholar

53 Treaty Tribes Coalition v Urban Maori Authorities 61997] 1 NZLR 513.Google Scholar

54 Te Waka Hi Ika O Te Arawa v Treaty ofWaitangi Fisheries Commission [2000] 1 NZLR 285.Google Scholar

55 Te Waka Hi Ika O Te Arawa v Treaty ofWaitangi Fisheries Commission 2 NZLR 10.Google Scholar

56 Lange v Atkinson [1997] 2 NZLR 22 (HC); [1998] 3 NZLR 424 (CA); [2000] 1 NZLR 257 (PC); and [2000] 3 NZLR 385 (CA).Google Scholar

57 Reynolds v Times Newspapers Ltd [2001] 2 AC 127.Google Scholar

58 It also added a passage on a matter which it saw as distinct, the misuse of qualified privilege.Google Scholar

59 SirIvor, Richardson, then President of the New Zealand Court of Appeal, documented the growing range of sources in his ‘Trends in Judgment Writing in the New Zealand Court of Appeal’ in Bigwood, (ed) Legal Method in New Zealand: Essays and Commentaries (Butterworths Wellington 2001) 261.Google Scholar

60 Consider, to take just one example, the role of the series of Commonwealth Secretariat/Interrights colloquia on human rights which began in Bangalore in 1988 and concluded there a decade later, discussed by their organizer, Lester, A ‘The Challenge of Bangalore: Making Human Rights a Practical Reality’ [1999] EHRLR 273.Google Scholar

61 See, eg, Stone Sweet, A and Brunell, T ‘The European Court and Integration’ in Shapiro, M and Stone Sweet, A (eds) On Law, Politics and Judicalization (OUP Oxford 2002) 258.CrossRefGoogle Scholar

62 See the convenient note by Aceves in (2003) 97 AJIL 923. The Court in its judgment in the Mexican case, given on 31 Mar 2004, found the United States in breach of several of its obligations in relation to Mexican prisoners.CrossRefGoogle Scholar

63 The Volga Case (Russian Federation v Australia) case No 22, judgment of 23 Dec 2002, 42 ILM 159.Google Scholar

64 Loewen Group Inc v United States of America, judgment of 26 June 2003, 42 ILM 811.Google Scholar

65 See the speech by SirRobert, Jennings ‘The Judiciary, International and National, and the Development of International Law’ given on the publication of the 100th volume of the ILR, 102 ILRix.Google Scholar