Inherent jurisdiction and inherent powers in new zealand rosara Joseph



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INHERENT JURISDICTION AND INHERENT POWERS IN NEW ZEALAND

Rosara Joseph*

I. Introduction


The 'inherent jurisdiction of the court' is a phrase that regularly appears in the judgments of our courts. It is cited as being the foundation of a multitude of powers and jurisdictions. However, the 'inherent jurisdiction of the court' is also the subject of much confusion. There is confusion about the distinction between 'inherent jurisdiction' and 'inherent powers'; confusion about which courts possess inherent jurisdiction; and confusion about the nature and scope of inherent jurisdiction and inherent powers. The Supreme Court's decision in Zaoui v Attorney-General1 epitomises the befuddlement. The Supreme Court clearly distinguished inherent powers from inherent jurisdiction, but it then purported to exercise an 'inherent jurisdiction' to grant bail - a jurisdiction which the Supreme Court (as a statutory court) does not possess.

This article elucidates the distinction between 'inherent powers' (the powers that every court has to regulate its own procedure) and 'inherent jurisdiction' (the piecemeal jurisdictions that the Supreme Court (now the High Court) inherited from the superior courts in England). The authorities are impossible to reconcile. Reclassification is needed to untangle inherent powers and inherent jurisdiction. The High Court's inherent jurisdiction is comprised of a number of separate jurisdictions, which have developed piecemeal and mostly in isolation. There are no strong unifying features or common principles distinguishing the separate jurisdictions, apart from the historical fact that they are inherited from the superior courts in England. Inherent powers are those powers which every court possesses to enable it to give effect to its jurisdiction. Inherent powers may be exercised where necessary in the interests of justice, but they are parasitic on the court first possessing jurisdiction. This article categorises inherent jurisdiction and inherent powers, and describes their respective foundations. It endeavours to shed light on these mysterious and shadowy concepts which are so fundamental to the administration of justice, and to stem the confusion that has plagued the courts in their treatment of inherent jurisdiction and inherent powers.



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