bluuebunny/crossref_metadata_2025 huggingface dataset:
Bribery and International Commercial Arbitration – the Role of Mandatory Rules and Public Policy
Authors: PaviÄ‡ Vladimir
Published: June 2019

Although designed to resolve private disputes, usually commercial in nature, arbitration may nevertheless encounter during its course allegations of impropriety and criminal behaviour. In the context of international commercial arbitration, the most common of those are allegations of bribery. However, tribunals may adjudicate only matters of private law and, should they establish existence of bribery, may draw only civil law consequences thereof. An additional problem in this respect is determining the body of rules that will be applicable in defining the very notion of bribery, since some aspects of bribery are almost universally prohibited, while the others are banned only in certain jurisdictions. In determining the law applicable to the matters of bribery, tribunals then face choice-of-law dilemmas. Each of the public policy techniques (overriding mandatory provisions, international and/or transnational) has its strengths and weaknesses.
The Video Camera Surveillance (Temporary Measures) Act 2011: An Unprecedented Licence to Search
Authors: Bush Harriet
Published: June 2019

This article examines the Video Camera Surveillance (Temporary Measures) Act 2011 which was passed as a result of the Supreme Court's decision in the case Hamed v R. This Act provided that a search was not unlawful simply because video surveillance was used. The article explores the previous court decisions on the lawfulness of police use of covert video surveillance in order to ascertain whether the premise upon which the Act was based, that video surveillance was lawful before Hamed v R, was correct. It then looks at the ratio decidendi of Hamed v R and the potential wider implications of this judgment. Finally, it assesses the state of the law under the Video Camera Surveillance (Temporary Measures) Act and whether this Act limited the right to be free from unreasonable search and seizure which is contained in s 21 of the New Zealand Bill of Rights Act 1990.
Knowledge of the Weapon in Party Liability Cases: An Analysis of Edmonds v R
Authors: Hill Amy
Published: June 2019

This article explores the reasoning in Edmonds v R, the leading case in New Zealand on knowledge of the weapon in party liability cases. The Supreme Court concluded that there is no legal requirement to direct that a defendant must have known of a weapon to be guilty as a secondary party. There is a dichotomy between the approach in New Zealand and that adopted in the United Kingdom in similar situations. New Zealand has adopted an approach focused on harmful outcome whereas the United Kingdom decisions suggest a focus on the process involved in the crime. Because of these differing attitudes, it is undesirable for New Zealand to follow the United Kingdom in adopting a “knowledge of the weapon” direction as a matter of course in party liability trials. However, it appears that many lower court judges feel it is appropriately conservative to consider the defendant's foresight of a weapon for practical, evidential reasons. That approach has several merits but must remain confined to evidential aspects of the trial.
Should the New Zealand Parliament Allow the Intellectual Property Office of New Zealand to Continue to Grant Patents for Isolated Human Genes?
Authors: Upperton Ruth
Published: June 2019

It is time for New Zealanders to decide whether we want to allow patents over isolated human genes. In making this decision, we should take heed of the pitfalls other jurisdictions have encountered in this area. In this article, I determine the approach New Zealand intellectual property law should take to the patenting of isolated human genes, with reference to the arguments and issues raised by the Myriad Genetics litigation in the United States of America. I conclude that a nuanced approach should be adopted. Isolated human genes are not patentable subject-matter from a legal perspective; however, patents in the field of gene therapeutics should be allowed on policy grounds.
The Unaccepted Repudiation: A Thing Still Writ in Water
Authors: Brazier Lauren
Published: June 2019

This article analyses the recent decision of the Supreme Court in Ingram v Patcroft Properties Ltd concerning the legal effect of an unaccepted repudiation. The issue before the Court was whether, and when, a lease had been successfully cancelled by either party. This involved difficult questions of whether there is a "third choice" in the face of a repudiation, the extent to which a party must be ready and willing to perform if it wishes to cancel a contract, and whether the rules of the common law regarding these issues survived the enactment of the Contractual Remedies Act 1979. The article suggests that the Supreme Court did not adequately address these issues. A failure to pinpoint the precise issue in the case gave rise to a confusing judgment that did not fully address the relevant legal principles and their application under the Act. The article discusses those principles, the theoretical issues concerning their application under the Act, and addresses aspects of the judgment in Ingram v Patcroft Properties Ltd that will make the resolution of future cases more difficult.
Seeking the Common Good or Just Making Us be Good? Recent Amendment to New Zealand's Social Security Law
Authors: Stephens Māmari
Published: June 2019

New Zealand's social security system was born out of a vision of society consistent with a definition of the common good informed by Christian ethics. The past 30 years, in particular, have seen fierce ideological battles fought between the left and right over the extent, coverage, and generosity of the system. Yet a remnant of the vision of the common good remains, whereby individuals can have some access, by virtue of social security, to the sufficient conditions of social life to be free enough to find some level of fulfilment in that life. However, the freedom to be good, as is also required by a broad understanding of the common good, is under threat within New Zealand's social security law. Social security law asserts a vision, and not a coherent one, of what it means to be good in New Zealand society.  Newly minted social obligations in the Social Security Act 1964 go beyond the purposes of the legislation; being unconnected to relieving need, maintaining fiscal prudence, or even seeking paid employment as a means of achieving welfare. These modern moral obligations ensure that beneficiaries' freedom to choose to live life in a way consonant with the common good is frustrated, if not substantially abrogated, striking the wrong balance between the law's protection of individual autonomy and its implementation of social imperatives in pursuit of the common good.
Foreword: Recovering the Common Good
Authors: Morris Grant
Published: June 2019

The first "Recovering the Common Good" Conference was held in Wellington in October 2012. In this Foreword, special editor Dr Morris speaks of the meaning and importance of the topic, and of the conference papers that have been included in this Review.
"Frustration" in the Court of Appeal
Authors: McLauchlan David W
Published: June 2019

This article discusses the decision of the New Zealand Court of Appeal in Planet Kids Ltd v Auckland Council [2012] NZCA 562, [2013] 1 NZLR 485. The Court upheld the Council's argument that its contract with the appellants had been frustrated, and therefore it was released from the obligation to render the performance it had promised, notwithstanding that it had achieved in substance everything that it set out to achieve at the time of the contract. The author argues that the case was wrongly decided.
A Statutory Vetting Scheme for the Children's Workforce in New Zealand: Rights, Responsibilities And Parameters
Authors: Lynch Nessa
Published: June 2019

New Zealand is unusual amongst comparable jurisdictions in lacking a statutory scheme to vet and possibly disqualify 'risky' individuals from working or volunteering with children. The current vetting process in New Zealand is ad hoc and not transparent. The Government has signalled its intention to place vetting on a statutory footing through the Vulnerable Children Bill. This article considers the appropriate parameters of a vetting scheme, considering the experiences of jurisdictions with established schemes.
The Protection of Personal and Property Rights Act 1988 – Update and Reflections
Authors: Atkin Bill
Published: June 2019

This article coincides with the 25th anniversary of the passage of the Protection of Personal and Property Rights Act 1988. The Act provides mechanisms for decision-making on behalf of people who lack capacity to make decisions for themselves. It is of increasing importance as the population ages. The article looks at the origins of the legislation and its contemporary focus. Recent case law is explored and some challenges for the future outlined. While the need for the Act remains, it may be timely for a fuller review to be undertaken.
Indirectly Directors: Duties Owed Below the Board
Authors: Barber Fran
Published: June 2019

In 2012, the High Court of Australia considered the scope of the term "officer" in a case concerning the breach of a statutory duty by a company secretary and general counsel. The equivalent duties under the New Zealand Companies Act 1993 are owed by an ostensibly narrower class. In considering how New Zealand law would apply to the same situation, this article discusses the extent to which directors' duties are, or should be, owed by those below directorship level. It concludes that an expansive interpretation of the "director" definition is unnecessary and undesirable, and that explicitly extending the definition to encompass certain senior managers would create uncertainties for courts and corporate leaders.
Inaugural Lecture: Mr Bulwark and the Protection of Human Rights
Authors: Geiringer Claudia
Published: June 2019

This is the text of the author's inaugural lecture as a Professor at the Faculty of Law at Victoria University of Wellington. The author discusses the nature of entrenched bills of rights as a protection mechanism for human rights, particularly focusing on New Zealand and its Bill of Rights Act and the author's personal journey as a scholar. In the first part of the lecture, the author contrasts her intellectual journeys on constitutions and bills of rights with that of the previous generation, which includes the likes of Sir Kenneth Keith and Sir Geoffrey Palmer. The author suggests that the experience of both generations have been both the same and different due to the political and constitutional climates. In the second part of the lecture, the author argues that we are now in a position to start reaching definitive conclusions about how well the New Zealand Bill of Rights Act 1990 has worked by drawing on her own research. The author concludes that it is time for reform, suggesting that judges need more power to enforce constitutional rights.
Harnessing the Full Potential of Coroners' Recommendations
Authors: Mok Elena
Published: June 2019

The ability of coroners to make recommendations to various agencies and organisations is inextricably linked with the coroner's emerging role in death and injury prevention. Despite this, there is no legal obligation in New Zealand for agencies and organisations to respond to, or implement, proposed changes, which has led to claims that recommendations are being overlooked. However, concerns have also been raised about the quality of some recommendations, especially whether coroners have sufficient expertise to be proposing wide-ranging legal and policy reforms. This article analyses the extent to which recommendations are being implemented by the agencies and organisations to whom they are directed, and addresses whether the criticisms levelled at recommendations are valid. It is contended that greater transparency and accountability is needed in coronial processes to fully harness the preventive and therapeutic potential of coroners' recommendations.
The Challenges of Prior Use to New Zealand Registered Trade Mark Law
Authors: Batty Rob
Published: June 2019

Under the Trade Marks Act 2002, the registrant of a trade mark is provided with the exclusive rights to use its trade mark. Priority to such exclusive rights is awarded to the person who files a trade mark application first. A searchable Register of trade marks enables traders and the public to see which trade marks have already been registered and by whom. This seemingly certain system is complicated by the continuing relevance of unregistered trade marks under New Zealand law. The first user of a trade mark in the marketplace is considered the true "owner" or "proprietor" of a trade mark. A prior user of an unregistered mark is able to prevent registration of a trade mark, or cancel an existing trade mark registration, even when the application was filed in ignorance of any prior use and where there is no prospect of consumer confusion. This article explores the unsatisfactory nature and consequences of this law of "proprietorship" and questions its continuing relevance.
Case Comment – Cumberland v Accident Compensation Corporation
Authors: Williams Anthea
Published: June 2019

In Cumberland v Accident Compensation Corporation, the Court of Appeal held that where a mother is denied the information that her foetus is disabled, and thus loses the opportunity to terminate the pregnancy, the "continuing pregnancy" can be a personal injury covered by the Accident Compensation scheme. This article examines the judgment and argues the Court of Appeal has extended New Zealand case law on "wrongful births" without explicitly acknowledging this. The author suggests that, by focussing purely on the physical effects on the mother and her lost opportunity to determine the medical treatment given to her, the Court has avoided the value laden approach that has plagued other wrongful birth cases.
Rape Myths and the Use of Expert Psychological Evidence
Authors: Hill Holly
Published: June 2019

There are many common misconceptions about sexual violence and the way that victims "should" behave during and after the offending. In trials for sexual offending these "rape myths" can impact on jurors' assessments of a complainant's credibility, rendering a guilty verdict less likely.This article discusses how the use of counter-intuitive expert opinion evidence as a method of juror education in trials for sexual offending can address these prejudices to improve the operation of the criminal justice process. The article also identifies the limitations of such evidence in particular cases of acquaintance rape, and foreshadows whether such evidence will continue to be offered in the future.
Women Trailblazers in the Law: The New Zealand Women Judges Oral Histories Project
Authors: Chan Elizabeth
Published: June 2019

The New Zealand Women Judges Oral Histories Project aims to provide the first national, publicly accessible records of the lives and careers of trailblazing women judges. As part of this project, this article shares the stories of nine women judges who have broken gender barriers at every stage of their legal studies and careers, including as the first women law graduates, partners of law firms, Queen's Counsel and judges. In sharing the challenges faced by, and celebrating the successes of, these women judges, their individual stories give context to the statistics showing that women's participation at the highest levels of the legal profession remains the exception rather than the norm. It is hoped that the achievements of the women who have gone before will inspire today's young women to reach positions of leadership in the profession, and, more broadly, to strive for equality in both their personal and professional lives.
Fishing for Answers: The Implications of Environmental Defence Society v King Salmon
Authors: Milne Eleanor
Published: June 2019

The Supreme Court's decision in Environmental Defence Society Inc v King Salmon Co Ltd, of early 2014, is a positive development in New Zealand's resource management law. The decision endorses the environmental bottom line approach and prohibits the use of the purpose section of the Resource Management Act 1991 when making operative decisions. If the decision is applied widely, there is scope for some of the problems with the resource management law framework to be addressed. In particular, the decision has the potential to reduce the uncertainty within the system caused by the lack of central government direction and the inconsistencies between local governments, and the issues when applying the purpose of the Resource Management Act. The article also analyses the effect of the decision on the reforms to the Resource Management Act that were proposed in 2014, and concludes that the arguments for the reforms are now much weaker.
Local Authority Liability for Flooding: Where Should Loss Fall?
Authors: Brennan Sean
Published: June 2019

Flooding is New Zealand's most frequent natural hazard, the cost of which is outdone only by the recent Canterbury earthquakes. Local authorities are the bodies primarily tasked with protecting communities against flooding through a range of measures including physical works such as stopbanks. This article explores the extent to which a local authority can be liable in tort where those physical works fail, causing damage. Direct liability and non-delegable duties are discussed, the latter addressing whether a local authority can nevertheless be liable having outsourced the construction of flood works to independent contractors. Additionally, whether local authorities should be liable for such damage or whether individual property owners ought to protect their own interests through insurance is discussed. This article recommends that property owners should purchase private insurance, but that local authorities should remain liable at least for their own negligence.
"Migration with Dignity": Towards a New Zealand Response to Climate Change Displacement in the Pacific
Authors: Farquhar Harriet
Published: June 2019

The impacts of climate change threaten to cause the displacement of millions of people worldwide by the middle of this century. Despite this looming crisis, international law provides insufficient protection to those who will be forced to migrate. In most cases, those who are displaced will fall outside of current protection frameworks. This article examines why this protection deficit should be of particular concern to New Zealand, and argues that there are significant incentives for New Zealand to develop a response to the issue of climate change displacement in the Pacific. The article concludes that in order to ensure Pacific peoples are able to migrate with dignity, migration schemes which are pre-emptive and voluntary should be put in place to facilitate migration flows. These should build upon New Zealand's current immigration framework, and include the extension of current permanent and temporary migration schemes, as well as the introduction of labour-training migration schemes.
The Implications of a Supreme Law Bill Of Rights for New Zealand Judicial Appointments
Authors: Bull Juliet
Published: June 2019

The enactment of a supreme law Bill of Rights in New Zealand would have significant implications for the process of appointing judges. This article considers whether the present judicial appointments system should be retained were New Zealand to amend the New Zealand Bill of Rights Act 1990 to have supreme law status. It contends that the present appointments process is insufficiently transparent and offers too few checks and balances to safeguard the apolitical nature of appointments. Canada's experience after enacting the Canadian Charter of Rights and Freedoms is drawn upon to demonstrate the need for reform. After various options are considered, it is ultimately contended that the adoption of a supreme law Bill of Rights in New Zealand should be accompanied by the creation of a judicial appointments commission.
The Judiciary as an Institution
Authors: Palmer Geoffrey
Published: June 2019

his issue of the Victoria University of Wellington Law Review contains a symposium of student work on the judiciary. This introductory article sets out the circumstances surrounding the preparation of the articles and the course of instruction that preceded them. It also sets out the constitutional background relating to the New Zealand judiciary and introduces the articles themselves.  It refers to some changes contained in the Judicature Modernisation Bill that was nearing the end of its parliamentary passage when editing of the symposium was completed.
Predication: The Test For Tax Avoidance in New Zealand From Newton to Ben Nevis
Authors: Prebble John , McIntosh Hamish
Published: June 2019

General anti-avoidance rules in income tax legislation are a blunt instrument. They can operate most effectively when decision makers move directly from the rule, such as "Arrangements with the purpose of tax avoidance are void against the Commissioner" to the facts, for example, "Objectively, do these facts demonstrate a purpose of avoidance?", or to paraphrase Lord Denning's test, "Viewing these facts objectively, can one predicate an avoidance purpose?"New Zealand courts adopted Lord Denning's "predication test" in 1966, but later cases confused things by trying to incorporate sub-rules into the exercise of looking for an avoidance purpose.Parliament codified and strengthened the predication test in 1974. Inland Revenue Department archives show that strengthening and codification of the test was what was intended and the language of the amendment confirms this intention. Nevertheless, later judgments misunderstood what the predication test entailed, and mistakenly thought that Parliament intended the 1974 amendment to abolish the test and to replace it with something else.In 2009 the Supreme Court delivered its judgment in Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue, the first case on tax avoidance to come before the Court. The Court said that the 1974 amendment abolished the predication test, but its reasoning in deciding the Ben Nevis case was in effect an exercise in predication.It would be useful to employ a name for the Supreme Court's approach to tax avoidance because a name would enable people to refer to the Supreme Court's test without circumlocution. "Predication" is the appropriate name because of its accuracy as to the meaning required and because of its historical antecedents.
Two Grand Old Ladies Face to Face: The United Kingdom and the United States of America Constitutions Compared
Authors: Patrono Mario , Frosini Justin O
Published: June 2019

This article discusses the Constitution of the United Kingdom and then draws some comparisons between it and the Constitution of the United States of America. It touches on issues such as how the United Kingdom's commitment to parliamentary sovereignty has been affected by the country's relationship with the European Union.
"To Work out their own Salvation": Māori Constitutionalism and the Quest for Welfare
Authors: Stephens Māmari
Published: June 2019

New Zealand recently celebrated 75 years of the implementation of the welfare state in 1938. While debate continues about the nature and effectiveness of state welfare provision, welfare is arguably a matter of constitutional concern in New Zealand. Further examination of New Zealand legal history also shows that the welfare of Māori is indeed a matter of deep constitutional concern to Māori, who have consistently sought legislative and extra-legislative ways to have public power used for broad Māori welfare concerns. It is possible to identify a kind of Māori welfare constitutionalism at work, that is arguably in tension with the thinking and practice that produced the welfare state.
The Crown's Relationship with Tribal Peoples and the Legal Dynamics for the Resolution of Historical and Contemporary Claims
Authors: McHugh PG
Published: June 2019

This article reflects upon themes and foundations of the contemporary legalism attending the resolution of aboriginal claims. It opens with a broad description of the historical foundation of that legalism in the imperial prerogative of the Crown and its continuance in the national constitutional systems of Canada and New Zealand. It then considers how that legalism, with its origination in the imperial prerogative and the ongoing comparative dimension associated with that origin, inhabits a recent local example, namely New Zealand’s Marine and Coastal Area (Takutai Moana) Act 2011. The article shows how this provision reflects the general features of indigenous rights' jurisprudence as it has emerged over the past 30 years: it carries residual elements of the imperial prerogative and it has a comparative element, yet it is also a peculiarly New Zealand instance that marks a new step in the jurisprudence.
Changing Family Forms: Challenges for German Law
Authors: Dethloff Nina
Published: June 2019

The diversity of family life is increasing. The rise in unwed parents, divorce rates, re-partnering, same-sex partnerships and artificial reproduction have led to a great variety of family forms that are far apart from the concept of the marriage-based family underlying the German Civil Code of 1900. Despite substantial amendments, the Civil Code in many respects does not correspond to the existing diversity of present-day family forms. A brief outline of the societal changes is followed by an overview of the legal impact of different family forms on children and the key points that are presently under discussion in this field. Subsequently, the changes resulting from the appearance of new partners as potential new parents will be addressed. The current legal situation concerning parental responsibility, as well as its deficits and options for reform, will be reflected upon, mainly with regard to German law. Developments in other countries, particularly in New Zealand, are taken into account.
Diversity and Regionalism in International Commercial Arbitration
Authors: Braghetta Adriana
Published: June 2019

New Zealand Law Foundation International Dispute Resolution Lecture 2015, delivered at Stone Lecture Theatre, Auckland Law School, 19 October 2015. The lecture focuses on diversity and regionalism in international commercial practice, looking specifically at the representation of new players.
Judge Ian Borrin: Remembering a Friend of the Law Review
Authors: McLay Geoff
Published: June 2019

This article is a tribute to Judge Ian Borrin, who passed away in March 2016. Judge Borrin was a major contributor to the Victoria University of Wellington Law Review ('VUWLR') and the Victoria University of Wellington Faculty of Law. He has given financial and personal support to VUWLR, the New Zealand Journal of Public and International Law, various symposia run under their aegis, and later his more general support through the establishment of the Ian Borrin Fellowship.
Proceed with Caution: Law Reform, Judicial Review and the Judicature Modernisation Bill
Authors: Watkins Morgan
Published: June 2019

The Judicature Modernisation Bill 2013 re-enacts the operative provisions of the Judicature Amendment Act 1972. This article analyses the re-enacted provisions, concluding that the reform will be largely successful relative to a goal of "non-substantive reform". However, this article argues that there were significant defects in the legislative process leading to reform, especially in terms of parliamentary scrutiny of judicial review. In a context of a fused executive–legislative branch of government, it is inappropriate to legislate for judicial review without adequate consideration of the effects on judicial review powers and processes. This article argues that judicial review procedure should not be contained in statute in order to prevent executive control of the statutory review procedure.
The Limits of Interpretation in the Law of Contract
Authors: Robertson Andrew
Published: June 2019

In the law of contract questions of risk allocation properly turn, where possible, on interpretation of the agreement. This article will explore the limits of that approach. It will do so by considering two doctrines that lie at the boundaries of contract interpretation: the implication of terms in fact and the remoteness principle. Both doctrines have been commonly understood as gap-filling rules, but in two influential judgments Lord Hoffmann sought to recast them as interpretative principles. It will be argued in this article that the implication of terms in fact can properly be regarded as an interpretative exercise, but the same cannot be said of the application of the remoteness doctrine. The implication of terms in fact can helpfully be understood as interpretative, provided care is taken to explain the paths of reasoning leading to the conclusion that a contractual instrument must be understood to include a particular unexpressed term. Because no common paths of interpretative reasoning can be identified for the determination of remoteness questions, it is unsettling and counterproductive to attempt to take an interpretative approach to these questions.
A Conceptual Framework for the New Zealand Tort of Intrusion
Authors: Moreham Nicole A
Published: June 2019

This article examines the desirable scope of the New Zealand tort of intrusion into seclusion. It begins by developing a six-part taxonomy of common law privacy interests and then, using that taxonomy as its starting point, asks which privacy interests the New Zealand intrusion tort should cover. It argues that although the intrusion tort is a very welcome addition to New Zealand common law, it is important that its parameters are clearly delineated. The best way to achieve that, it is suggested, is by recognising that unwarranted listening, watching or recording of private activities is the gravamen of the new tort.
The Contractual Interpretation of Tipping J
Authors: Barber Matthew
Published: June 2019

In the Supreme Court decision of Vector Gas Ltd v Bay of Plenty Energy Ltd, Tipping J put forward an approach to contact interpretation that, while indebted to that of Lord Hoffmann, was expressed differently and promoted the use of evidence of prior negotiations. Despite not gaining the support of any of the other sitting judges, this approach was swiftly taken up in the lower courts and, until recently at least, seems to have been accepted as representing New Zealand law. This article attempts a comprehensive examination of Tipping J’s approach. It concludes that, while coherent in principle, the detail of the approach is flawed in a number of ways, especially the way in which evidence of subsequent conduct is assumed to work. The future of Tipping J’s approach is considered.
Charity Law, The Advancement of Religion and Public Benefit – Will the United Kingdom Be The Answer to New Zealand's Prayers?
Authors: Chevalier-Watts Juliet
Published: June 2019

The law of charity and religion has an ancient relationship and religion, for charity law purposes, recognises a plethora of belief systems. However, for a religion to be recognised at law in New Zealand and in the United Kingdom it must have public benefit, whether that is a presumed requirement or to be shown expressly. This requirement of public benefit has generated much debate over the decades, in parliaments, in courts and in academia. This article considers the very real issues associate with public benefit and the advancement of religion in charity law and asks whether the contemporary approach of the United Kingdom with regard to the removal of the presumption of public benefit would provide a more certain legal path for New Zealand courts and charitable bodies.
A Personal Perspective on Legislation: Northern Milk Revisited – Soured or Still Fresh?
Authors: White Douglas
Published: June 2019

The thesis of this article is that the overarching objective of statutory interpretation is to "make the Act work" as the Court of Appeal held in Northern Milk. This requires a common sense and practical approach. The article demonstrates the thesis by reference to subsequent Court of Appeal decisions and the complementary legislation establishing the Law Commission and the Parliamentary Counsel Office. The issues raised by the Law Commission’s recently reactivated reference on the law of contempt of court are considered by way of example. The conclusion is that the Northern Milk approach remains apposite.
Challenges to "a Most Dangerous Doctrine" or a "Fantastic Theory" of Volitional Insanity
Authors: Bastani Amir , Gavaghan Colin
Published: June 2019

In theory, an insanity defence can take two forms: the cognitive form (C-insanity) and the volitional form (V-insanity). The defence of C-insanity recognises that a disordered state of mind can make the ability to understand the nature of an action impossible. On the other hand, V-insanity is recognised in some common law jurisdictions, such as all jurisdictions in Australia except for Victoria and New South Wales, and is a full defence. It recognises that a disordered state of mind can make the exercise of self-control impossible. However, that disordered state of mind does not necessarily affect the understanding of the nature of the act impossible.
The Hague Convention on the Civil Aspects of International Child Abduction 1980: The New Zealand Courts' Approach to the "Grave Risk" Exception for Victims of Domestic Violence
Authors: Maxwell Allie
Published: June 2019

The Hague Convention 1980 was welcomed by the international community to resolve the emerging issue of international child abduction. The Convention is premised on the assumption that all child abduction is inherently harmful. Thus, it is generally in the best interests of children to be returned to the country of habitual residence as expediently as possible, restoring the status quo.Domestic violence victims do not fall within the typical abduction paradigm which the Convention was drafted to remedy. New Zealand courts have adopted a narrow approach to the "grave risk" defence, requiring the abducting party to prove that the country of habitual residence cannot adequately protect the child. This is rarely established due to the influence of the principle of comity. This approach therefore effectively blocks the discretionary inquiry, which only occurs once the defence is established, in which the Convention principles can be weighed against the welfare and best interests of the individual child, a consideration paramount in both domestic and international law. Domestic violence makes it unlikely that return will ever be in the child's welfare and best interests. A change in approach is suggested, under which consideration of the adequacy of the habitual residence's protection laws becomes a relevant consideration in the exercise of discretion. This ensures all considerations are given due regard and the safety of young domestic violence victims is better assured.
Starbucks (HK) Case Note: The Ambiguous Limb of Goodwill and the Tort of
Authors: Lewis Olivia
Published: June 2019

This article looks at the United Kingdom Supreme Court's decision in the case of Starbucks (HK) Ltd v British Sky Broadcasting Group PLC (Starbucks). In this case Lord Neuberger reaffirmed that the traditional "hard-line approach" is the applicable test for the goodwill limb under the tort of passing off in the United Kingdom. This approach maintains that in order to succeed in a claim for passing off, the claimant must show that they have goodwill in the form of business and customers in the jurisdiction. A significant reputation among a sufficient section of the prospective purchasing public within the jurisdiction (the "soft-line approach") was held to be insufficient. This article critically analyses Lord Neuberger's reasoning in favour of the traditional hard-line approach. It is found that his approach was out of touch with modern commercial reality. In conclusion, it is argued that Lord Neuberger did not strike the appropriate balance between the competing public interests in protection and competition, and it is contended that he should have adopted the more factually inquisitive soft-line approach. This would have brought the United Kingdom into line with what is arguably the more dominant and justifiable trend in other common law jurisdictions, thereby avoiding the enduring uncertainty which is likely to follow this decision.
Digital Domestic Violence: Are Victims of Intimate Partner Cyber Harassment
Authors: King Ruby
Published: June 2019

The role of technology in intimate partner violence is becoming increasingly common. Intimate partner cyber harassment is a subset of "digital domestic violence", whereby partners and ex-partners use technology to stalk and harass their victims. This article examines intimate partner cyber harassment, discussing the nature of the behaviour, its prevalence in New Zealand and the damaging impact it has on its victims. The focus, however, is on New Zealand's legislative response. The conclusion reached is that despite the recent introduction of the Harmful Digital Communications Act 2015 and the review of both the Harassment Act 1997 and the Domestic Violence Act 1995, protections for victims of cyber harassment in the context of intimate partner violence remain ineffective. The current legislation fails to fully appreciate the complex issue and protections for victims lie behind procedural barriers. This article recommends that amending existing legislation is the most desirable solution as it enables pre-existing protections to be utilised to more effectively apply to and thus protect victims of intimate partner cyber harassment.
Delving into the Fog of Ambiguity: An Analysis of the Trans-Pacific Partnership's Data Exclusivity Provisions and their Implications for Access to Medicines in New Zealand
Authors: Smith Diaz Carlos Christopher
Published: June 2019

The Trans-Pacific Partnership (TPP) is a multilateral free-trade agreement which New Zealand became a party to in 2016. This article focuses on the inconsistencies that arise between the language of the TPP and New Zealand law, with respect to data exclusivity regimes. Compliance with the TPP seems to entail an extension to the terms of data exclusivity for both biologics and small-molecule pharmaceuticals. This may have the effect of impeding access to medicines by delaying the entry of competition into the market. In particular the underlying rationale behind the biologic data exclusivity provisions appears to be the protection of American corporate profits rather than the stimulation of innovation or the long-term improvement of access to healthcare. As a result, these provisions are not in New Zealand's interest and if implemented into law they may be economically detrimental.
Time to Look Again? Copyright and Freedom of Panorama
Authors: Barrett Jonathan
Published: June 2019

Copyright grants exclusive rights to authors of qualifying works. However, the Copyright Act 1994 permits reproduction, communication and commercial exploitation of certain artistic works which are on permanent public display. This exclusion from copyright, which is widely referred to as "freedom of panorama", is distinguishable from other permitted uses which tend to be narrow in scope and commonly manifest an element of fair dealing. Like other corresponding provisions of British heritage copyright legislation, New Zealand's freedom of panorama exclusion is significantly wider than comparable permitted uses in other jurisdictions. This article examines freedom of panorama in New Zealand. Note is taken of the Waitangi Tribunal report Wai 262, which considered among other issues the protection of Māori cultural treasures within the intellectual property law system. As points of comparison, selected overseas approaches to freedom of panorama are outlined. This article questions whether the current exclusion strikes an appropriate balance between competing rights and interests.
Academics and the Supreme Court
Authors: Glazebrook Susan
Published: June 2019

Richard Posner laments what he sees as an unfortunate gulf between academia and the courts. To assess whether there is such a gulf in New Zealand, this address analyses the role of academics and judges. It concludes that academics provide valuable insights and assistance to the courts but that their role is much wider, being at its broadest the advancement of knowledge. By contrast, the primary role of judges at all levels is to decide the case in front of them according to law. This means that academics and the judiciary are engaged in different pursuits and, while the roles may converge at times, ultimately the differences must be respected. But there can and should be constructive dialogue. In this regard, the address discusses three areas where the New Zealand Supreme Court has received criticism from academics.
Teaching Law Today
Authors: Elias Sian
Published: June 2019

This address was given at the Australasian Law Teachers Association (ALTA) 2016 Conference in Wellington on 7 July 2016.
Can Judges Make a Difference? The Scope for Judicial Decisions on Climate Change in New Zealand Domestic Law
Authors: Palmer Geoffrey
Published: June 2019

Political decision-making is at the heart of decisions on both mitigation and adaptation for climate change. While the norms are established internationally, they must be translated into domestic law in order to have bite. The making and enforcement of domestic law in many areas of environmental protection are frequently less than optimal. Legislation takes time to design and to enact. The details matter a great deal. Laggard governments around the world have been subjected to judicial review on their climate change policies. Furthermore, all statutes are subject to interpretation by courts. Administrators can and do make mistakes that are corrected by authoritative judicial interpretation. With particular emphasis on New Zealand law, this article will examine the degree to which judicial decisions can correct and encourage government policies on climate change and give them a "nudge" towards making them effective. The potential role of the Waitangi Tribunal will also be mentioned and the Parliamentary Commissioner for the Environment. The issue of whether constitutional protection for the environment, with application to climate change, could be useful will be canvassed.
Protecting Consumer Protection
Authors: Lai Jessica C , Becher Samuel I
Published: June 2019

Recent consumer law cases are shaping consumer law in an unwarranted way. The courts have acknowledged the importance of advancing consumer law and protecting consumers, however, upon closer examination it is questionable whether courts are employing the right framework, tools and considerations. By analysing recent country of origin cases this article identifies some potentially worrying ways in which the courts have eroded consumer law rather than strengthening it. In particular, such cases allow the proprietary interest of goodwill to creep into the Fair Trading Act 1986 (FTA). Doing so, even if only at the stage of determining the penalty to be imposed, may shift the dial further towards the Fair Trading Act (FTA) being a means for protecting traders' interests. This, in turn, may lead to negative unintended consequences.
Foreword: The Dynamic Evolution of International Law – Rise or Decline?
Authors: McLachlan Campbell
Published: June 2019

This is the foreword to the special issue of the Victoria University of Wellington Law Review presenting an edited collection of articles from leading voices in the field of public international law – scholars, judges and practitioners – that reflect on the different dimensions of the problem of change in international law.
The Decline of International Law as a Normative Ideal
Authors: Scott Shirley V
Published: June 2019

International law was integral to the rise in power of the United States and has been central to the operation of world politics during the period in which the United States has been the dominant state. This article draws on the theory of International Law as Ideology to explain the manner in which the ideal of international law as politically neutral has served as a rhetorical fulcrum. The theory also offers a framework within which to perceive and assess the significance of an apparent sidelining of the ideal in global politics, including, notably, by the United States. While reduced use of the ideology of international law and introduction of the term "rules-based international order" or "rules-based order" might be the best strategic option at a time of declining power, the theory of International Law as Ideology illuminates the manner in which these developments may at the same time be unwittingly contributing to that decline.
The Life and Times of the Genuine Link
Authors: Thwaites Rayner
Published: June 2019

The genuine link principle has become a standard-bearer for the view that citizenship is, or should be, substantive, in the sense that it is conditioned on the existence of certain "social facts". As such, it has become a source of inspiration in citizenship theory. It is seen to provide a benevolent framework for thinking about citizenship status. Against the tendency to treat "genuine link" as a guiding principle, I argue that it carries within it fundamental problems. These problems have been known for a long time. In particular, they were prefigured in dissents in the decision that introduced the principle, namely the International Court of Justice's (ICJ) decision in Nottebohm, delivered in 1955, in the initial academic legal commentary on that decision, and in the doctrine's subsequent legal reception. Drawing on these sources I argue that genuine link, as employed in Nottebohm, has in doctrinal terms been confined to a historical footnote. In a second strand of the argument, I develop the problems that attend using the genuine link as a beacon, both in theory and practice.
Preparation of Future Teachers at Vocational Secondary Schools and Financial Literacy
Authors: Petríkova Daniela , Varadyová Tatiana
Published: June 2019

The aim of this paper is to find out how to motivate future teachers of vocational subjects to implement financial literacy as a natural part of the teaching process. If a teacher does not have a positive attitude towards economics, it is challenging for him to include the proper activities in the field of financial literacy into the process of teaching vocational subjects. The education of future teachers in this field has a wide scope for improvement and implementation of new trends. The purpose of the paper is to examine the initial experiences of introducing the topic Financial Literacy into the training of future teachers in vocational subjects at secondary vocational schools which are taught at the Technical University in Košice (the course of additional pedagogical study). Financial Literacy was the part of a compulsory subject called Didactics in Vocational Subjects, which aimed to determine the awareness of students about the document The National Standard of Financial Literacy in a sample of 67 students. The participants used the document and its attachments in practice. Our results point out that most students did not know about the existence of the document and that none of the students had ever worked with the document before. An incompatibility between the document and its attachments makes difficult to implement financial literacy into the teaching process at secondary vocational schools. In the paper, we present an overview of some methods that shift the problem of financial literacy to a practical level.