bluuebunny/crossref_metadata_2025 huggingface dataset:
The Common Good in an Age of Moral Hyperpluralism: A Catholic Bioethical Perspective
Authors: Kleinsman John
Published: June 2019

This article will argue that the notion of the common good is imperilled by a particular contemporary account of the moral good; one which, because of its (somewhat narrow) emphasis on the individual, readily lends itself to a state of 'moral hyperpluralism' in which 'the good' is primarily defined in terms of the promotion and protection of self-interest. At the same time, it will be argued that any quest to recover the notion of the common good cannot be achieved by either returning to, or holding onto, a more traditional account of morality. It will also be proposed that, as part of the quest to recover the common good, close attention needs to be paid to how the term is understood. The tension between individual autonomy and the welfare of society, and the differing ways in which this tension is resolved within different moral paradigms, will emerge as central to any discussion about the ongoing place of the common good in contemporary legal and moral debates. Finally, it is suggested that a solid basis for articulating a robust account of the common good may be found in the foundational and innovative work being done by thinkers of the gift to establish an alternative account of morality.
Vicarious Liability and the Employment Rationale
Authors: Neild David
Published: June 2019

This article argues that the employment relationship should remain the underpinning rationale for vicarious liability.  The article draws a distinction between cases where liability is imposed because the defendant is an employer, and those where liability is based on agency. Other non-employment vicarious liability cases are distinguished using liability for breach of non-delegable duties.  The article also considers English cases where vicarious liability has been extended to relationships with similar characteristics to employment, and argues that this approach should be preferred to the New Zealand Court of Appeal's approach in S v Attorney-General.  At the end of the article there is a discussion of the relationship between exemplary damages and vicarious liability.  It is argued that, although exemplary damages may be inappropriate in vicarious liability cases, they should be available for breach of a non-delegable duty. Such an approach may better explain some of the decided vicarious liability cases.
Port State Jurisdiction in New Zealand: The Problem with Sellers
Authors: Marten Bevan
Published: June 2019

This article discusses the decision of the New Zealand Court of Appeal in Sellers v Maritime Safety Inspector [1999] 2 NZLR 44. It is not critical of the Court's approach to the use of international law in domestic courts, but instead argues that the decision represents an incorrect view of international law regarding a port state's jurisdiction over visiting foreign vessels. It argues that the Court was wrong to characterise New Zealand's maritime safety agency's use of s 21 of the Maritime Transport Act 1994 as an attempt to regulate such vessels on an extraterritorial basis, and that port states do possess the jurisdiction to introduce unilateral measures of the kind promoted by the agency in that case. The article argues that the decision in Sellers is exercising a negative impact over New Zealand's maritime regulatory efforts and that Parliament should address the issue by way of amending legislation.
Introduction: A Scholarly Snapshot
Authors: Austin Graeme W
Published: June 2019

Graeme W Austin, Associate Dean (Research) and Chair of Private Law, Introduces this 60th Anniversary edition of the Victoria University of Wellington Law Review. He provides a snapshot of a day in the life of the Victoria University of Wellington Law Faculty, focusing on the research activities of his colleagues, and reflects on what this might mean for the future of legal scholarship at Victoria.
Same-Sex Marriage and Religious Exemption Under the Marriage Act: Where does Section 29 Leave Religious Objectors?
Authors: Wilson Simon Matthew
Published: June 2019

This article examines the Marriage (Definition of Marriage) Amendment Act 2013, which amends the Marriage Act 1955 to allow same-sex couples to marry. In particular, it examines the legal position of celebrants who wish to refuse to solemnise same-sex marriages on religious grounds, and attempts to reconcile these celebrants' religious freedoms with the rights of same-sex couples not to be discriminated against based on their sex and/or sexual orientation. While s 29(2) of the Marriage Act now contains a specific exemption for some classes of celebrants, the scope of this exemption is narrow, and not all celebrants are included. This article therefore examines the meaning of s 29(1) of the Marriage Act, and addresses the controversial issue of whether s 29(1) provides a broad exemption for all celebrants. This article asserts that s 29(1) does provide such an exemption, and accordingly all celebrants are able to refuse to solemnise same-sex marriages on religious grounds, despite the limitations in the s 29(2) exemption.
In Fact, It's a Matter of Opinion: Determining a Distinction Between Fact and Opinion within the New Zealand Defence of Honest Opinion
Authors: Riseley Wendy J
Published: June 2019

This article discusses the distinction between fact and opinion within the defence of honest opinion. It is argued that the classic legal tests for determining that distinction are largely unhelpful and produce unpredictable results, which trigger a chilling effect on speech. This article advocates for an adaptation of the four-factor totality of circumstances test, established in Ollman v Evans, to be inserted into the Defamation Act 1992. This would provide more clarity, consistency and predictability for the defence of honest opinion in New Zealand, thereby better supporting freedom of expression under s 14 of the New Zealand Bill of Rights Act 1990.
The Public Safety (Public Protection Orders) Bill 2012: Is Post-Sentence Detention of Sex Offenders Consistent with Human Rights?
Authors: Moran Jasmin
Published: June 2019

This article examines the human rights consistency of the Public Safety (Public Protection Orders) Bill 2012. The Bill proposes a new scheme to detain recidivist sex offenders beyond the expiration of their finite sentences, if they are seen as highly likely to reoffend. Despite obvious human rights concerns, the Attorney-General issued a statement contending the Bill was consistent with the New Zealand Bill of Rights Act 1990. The article analyses the correctness of that statement, with a particular focus on whether the Bill establishes a form of civil committal and is, in substance, different to prison detention.
The Nuremberg Trial: Procedural Due Process at the International Military Tribunal
Authors: McKeown Tessa
Published: June 2019

For over 60 years, lawyers and historians have discussed the credibility and repercussions of the Nuremberg Trial (1945–1946). The Nuremberg Trial at the International Military Tribunal was conducted by the four Allied Powers to try the upper echelon Nazi war criminals following the Second World War. The London Charter, drafted by the Allies, outlined the trial procedure to be adopted, and provided certain guarantees in an attempt to secure a fair trial for the 22 defendants. This article examines the history of fundamental due process rights (recognised in both Continental Europe and Common Law jurisdictions) and analyses the extent to which these rights were breached at Nuremberg. It argues that the defendants' procedural due process rights were partially protected at Nuremberg, although there were gross breaches of particular fundamental due process rights. This article further argues that despite the defendants being afforded more rights than they could have expected given the circumstances, such breaches significantly compromised the integrity of the trial.
New Zealand's Accident Compensation Scheme and Chronic Pain Syndrome
Authors: Bull Juliet
Published: June 2019

Chronic pain syndrome does not currently constitute a physical injury under New Zealand's Accident Compensation scheme. This article considers the correctness of this exclusion given the Supreme Court's adoption in Allenby v H of an expanded interpretation of the term "physical injury", in deeming pregnancy to be an injury. It concludes that policy factors, particularly the need to uphold the integrity of the legislation enacted by Parliament, demand that the exclusion of chronic pain syndrome is maintained.
To whom will ye liken Me, And make Me equal? Reformulating the Role of the Comparator in the Identification of Discrimination
Authors: Emanuel Asher Gabriel
Published: June 2019

The use of comparator groups has to date been central to establishing a breach of s 19 of the New Zealand Bill of Rights Act 1990. The New Zealand courts' approach to the formulation of comparator groups admits a lack of a clear methodology. The author argues that, in the absence of a framework guiding the formulation of the comparator, the methodology permits arbitrary and inconsistent decision-making. The flexibility of the approach risks premature exclusion of claims in reliance on intuitive rather than analytical reasoning, limiting the transformative potential of non-discrimination provisions and offending against the proper construction of s 19. Of particular concern is the involvement of matters of justification at the comparator stage. The judgments of the High Court and Court of Appeal in B v Chief Executive of the Ministry of Social Development and G B as Executor of the Estate of B of Whangarei v the Chief Executive of the Ministry of Social Development respectively are emblematic of these concerns. Recent developments at the Court of Appeal in Ministry of Health v Atkinson and Child Poverty Action Group Inc v Attorney-General have provided some guidance, but have not gone far enough. The author recommends that the courts defer to the claimant's choice of comparator, and decouple the identification of differential treatment from questions of causation.
100 Years On, How Many More To Go? Challenges Facing Women in Law in 2013
Authors: Van Alphen Fyfe Monique
Published: June 2019

One hundred years on from Harriette Vine's graduation, women in law are still confronted with discrimination in their careers. This article examines perceptions of women in law and women's pessimism regarding their prospects. It suggests that legislative, institutional and individual efforts could generate equality within the legal community. Solidarity and agitation to encourage the participation of women at all levels of the profession can best honour the legacy of women's rights in New Zealand.
Application of the Wills Act 1837 to New Zealand: Untidy Legal History
Authors: Williams David V
Published: June 2019

The decision of Acting Chief Justice Stephen in McLiver v Macky (1856) was that the Wills Act 1837 (UK) did not apply in New Zealand because New Zealand had been annexed to the British Empire as a dependency of New South Wales. This case and its consequences were discussed in my contribution to the Victoria University of Wellington Law Review special issue in 2010 relating to the New Zealand Law Foundation's "Lost Cases Project". It transpires that Stephen ACJ and counsel in the 1856 case were unaware of the Imperial Act Adoption Act 1839 (NSW) which applied the Wills Act 1837 (UK) to New South Wales from 1 January 1840. This article suggests that, based on the reasoning of the Judge, the 1856 decision would have been the same even if that 1839 Act had been explicitly considered. It would still have been necessary for the New Zealand Parliament to enact the English Laws Act 1858.
Disputes over Interment and Cremation: The Mediation Option
Authors: Oldfield Yvonne
Published: June 2019

Mediation is generally perceived as comparing well to litigation in terms of cost, privacy and speed. Such practical considerations are of as much value to the parties to burial and cremation disputes as they are to the parties in many different types of dispute. Burial and cremation disputes are however particularly difficult and sensitive in nature, often involving complex cultural issues and family conflicts. These characteristic features pose challenges in the mediation context just as they do in litigation. It is argued here that mediation is well suited to addressing these challenges provided mediation style, process and delivery mechanisms are tailored appropriately. The predominant problem-solving model has limitations in meeting cultural and emotional needs, making it essential that a transformative approach informs mediation practice and procedure in relation to burial and cremation disputes. It is also argued that without their agreement to all aspects of the process, mediation of such disputes may be unsafe for the parties. In addition, where cultural differences or questions of tikanga are at issue, mandatory mediation is of questionable legitimacy. Mediation of burial and cremation disputes, particularly in the New Zealand context, can therefore occur only within a framework that upholds principles of self-determination at every level.
Access to Information and Medicines Regulation in New Zealand
Authors: Hill Amy
Published: June 2019

This article explores a significant issue in the regulatory regime for medicines in New Zealand and around the world: the deficit of information about medicines available to doctors, patients and independent researchers. In New Zealand, while some generic (off-patent) drugs are manufactured domestically, the major suppliers are large multinational companies. Similarly, clinical trials to establish a drug's effectiveness, safety and quality are predominantly undertaken overseas. Much of the information about safety, efficacy and quality of drugs is held and controlled by pharmaceutical companies and regulators. This article proposes ways in which public access to information about medicines can be improved.
Protection Against Slavery in New Zealand
Authors: Heesterman Katja
Published: June 2019

The decision of the European Court of Human Rights in CN v The United Kingdom highlighted that slavery remains a modern problem. It may no longer resemble the traditional picture of slavery dramatically presented by Hollywood but it is no less an issue. Modern slavery is less visible; it is hidden away within homes, normal workplaces or in overseas factories. This article argues that New Zealand's current treatment of slavery is inadequate, exemplified by the absence of prosecutions. Thorough protection of slavery requires clear definitions that courts can easily apply. This article explores how the New Zealand Bill of Rights Act 1990 could be used to remedy this situation. This article argues for the application of the Drittwirkung concept to give a horizontal effect to a right against slavery. Furthermore it is argued that New Zealand is under positive obligations to actively prevent rights violations, not merely avoid them. These positive obligations are a key component of modern human rights jurisprudence and can be read into the New Zealand Bill of Rights Act 1990. This article speculates that one action courts could take is to undertake the development of a tort action against slavery.
A Decay of Rights: The Decision in New Health New Zealand Inc v South Taranaki District Council
Authors: Goss Rose Louise
Published: June 2019

The decision in New Health New Zealand Inc v South Taranaki District Council is the most recent legal development in the New Zealand debate about fluoridation of public water supplies. That decision centred on the interpretation of s 11 of the New Zealand Bill of Rights Act 1990, the right to refuse medical treatment. The Court held that the fluoridation in question was legal, and reached a limited definition of medical treatment that did not encompass fluoridation. This article analyses the reasoning leading to that interpretation, concluding that the decision is problematic and that the definition of s 11 needs to be remedied. The use of the wording of s 11 to limit the definition of medical treatment was inappropriate, as was the policy reasoning used to support that limitation. The structure of the reasoning exacerbated these issues and adhered too closely to the reasoning in United States cases. Furthermore, the application of a de minimis threshold was conducted without adequate scrutiny, and such a threshold should not be applied to s 11.
Hung out to Dry? Questioning the Legality of Minnie Dean's 1895 Trial and Execution
Authors: Davis Sophie
Published: June 2019

In 1895 Minnie Dean became the only New Zealand woman to receive the death penalty. She was found guilty in the Invercargill Supreme Court of the murder of Dorothy Edith Carter, a child she had recently adopted, who was found buried in her garden alongside two other infants. Branded a vindictive baby-farmer, Minnie Dean was widely condemned by the New Zealand press and public during the four months between her arrest and execution. This article will assess whether Minnie Dean was afforded a fair criminal trial and sentencing. From a 21st century perspective, it can appear that Minnie's fate was inevitable from the time of her arrest and that her trial was merely a formality. Despite Minnie's often harsh treatment, this article will argue that against 1895 legal standards, correct criminal procedure was generally followed. However, when comparing Minnie Dean's trial and sentencing with contemporaneous murder trials, it is evident that she received no procedural clemency.
Courting Controversy: The Problems Caused by Extrajudicial Speech and Writing
Authors: Moran Jasmin
Published: June 2019

This article explores the problems for judicial impartiality that a judge's extrajudicial speaking or writing on legal matters may create. Examples from New Zealand and abroad demonstrate such extrajudicial commentary may lead to a finding of apparent bias or require that a judge recuse him or herself from hearing a case. The current regulation of extrajudicial speech, as ascertained from judicial conduct codes and case law, provides that judges can speak and write extrajudicially but must exercise caution in the tone and language they use. The article concludes that this is an appropriate approach and that the alternative of judicial silence is undesirable.
Judicial Recusal in New Zealand: Looking to Procedure as the Principled
Authors: Gajanayaka Chamika
Published: June 2019

The well-documented Wool Board Disestablishment Co v Saxmere Co litigation thrust the often dormant issue of conflicts of interest between a judge and a litigant into the limelight. Now that the dust has settled on the controversy that culminated in Wilson J's resignation, it is pertinent to question the status quo and investigate the potential cause of these events. More importantly, it is critical to consider whether measures need to be taken to prevent, or at least to reduce the likelihood of, another such occurrence.This article takes a principled approach to analysing judicial recusal law in New Zealand, with a particular focus on procedure. In doing so, a mismatch between process theory and the reality of haphazard self-regulation highlights the procedural shortcomings of the current judicial recusal paradigm. To remedy this, the author applies aspects of process theory to reform judicial recusal procedure and bring it in line with general civil litigation practice. The proposed reform instils some fundamental practices that are presently absent in recusal procedure. To contextualise the article's findings, the author revisits the Saxmere saga first to posit that a lack of procedural safeguards may have contributed to the saga and secondly, to suggest that, had the procedural safeguards proposed by this article been in place, the controversy could have been mitigated, if not avoided.
The Price we Pay for a Specialised Society: Do Tax Disputes Require Greater Judicial Specialisation?
Authors: Miles Sarah
Published: June 2019

In recent years, a review of the Judicature Act 1908 and the introduction of the Judicature Modernisation Bill have enlivened the debate over the structure and character of the New Zealand court system. A key issue that the recent review and reforms have brought to the fore is whether greater judicial specialisation is advantageous at the High Court level. This article considers whether tax cases, in particular, warrant greater judicial specialisation. The article draws from experiences of specialised tax adjudication in foreign jurisdictions and evaluates the efficacy of existing specialisation in the New Zealand system, as well as considering whether the nature of tax law lends itself to specialisation. The conclusion is that greater judicial specialisation in respect of tax cases is undesirable.
Appointment, Discipline and Removal of Judges: A Comparison of the Swiss and New Zealand Judiciaries
Authors: Suter Benjamin
Published: June 2019

This article gives an overview of the legal system of Switzerland and then compares the judiciaries of Switzerland and New Zealand. As far as Switzerland is concerned, it covers both the system of the Swiss Federation and the systems in the cantons. After analysing the powers enjoyed by the judiciary via the legislature, the article examines the appointment of judges in detail. The author explains how, in Switzerland, openly political and other considerations are weighed in the course of electing judges and how the appointment of lay judges is balanced with an active role of law clerks. In contrast, New Zealand has a proud tradition of apolitical judicial appointments that are made solely based on merit. The author criticises that Swiss judges are elected for a term of office, whereas New Zealand judges enjoy the security of tenure and thus, a greater judicial independence. Lastly, the article covers the removal and discipline of judges, where the author, while he commends the recent reform in New Zealand, he advocates for a system where the ultimate decision is given to an independent judicial body rather than a parliament.
Harvey v Beveridge: Common Intention Constructive Trusts in New Zealand?
Authors: Bennett Mark
Published: June 2019

This article discusses the reasoning of the High Court and Court of Appeal in Harvey v Beveridge in respect of the existence of "common intention constructive trusts" in New Zealand law. It analyses the development of constructive trusts doctrine in New Zealand, and argues that a different approach was taken to the application of this doctrine in relationship property disputes compared with the equivalent English doctrine. This difference was not recognised in Harvey v Beveridge, and it is argued that an adequate understanding of this difference requires us to grapple with the underlying foundations of the New Zealand law, which were left open during the Court of Appeal's development of the doctrine.
The Omahu Affair, the Law of Succession and the Native Land Court
Authors: Boast Richard
Published: June 2019

This article discusses the Omahu affair, a prominent legal drama that took place in the late 19th century involving prominent Māori leaders from the Hawke’s Bay region. The case was the subject of numerous Native Land Court hearings, decisions of the ordinary courts, and ultimately a Privy Council decision in London. This article considers how tensions within the Māori community could drive cases in the Native Land Court, and explores the interconnections between that Court and the ordinary courts. It seeks to promote a more sophisticated view of the Court's role, particularly in the context of inter-Māori disputes, as well as of the complexities of legal and political affairs in 19th century New Zealand. The article also raises some questions relating to the role of elites in the Māori community, and the interconnections between Māori and European elites in 19th century New Zealand.
The Guts of a Torts Class
Authors: Austin Graeme W
Published: June 2019

As a tribute to Professor Bill Atkin's unswerving dedication to the teaching of the law of torts, this article makes a few personal observations about tort law teaching at Victoria University of Wellington. The article's focus is the craft of so-called Socratic teaching, which, broadly described, involves inviting students to participate in classroom dialogue that scrutinises the quality of judicial reasoning.  The article links that endeavour to the Law School’s obligation to act as a conscience and critic of society, and to its commitment to inculcate values associated with the rule of law.
Rethinking Relationships
Authors: Briggs Margaret
Published: June 2019

The Property (Relationships) Act 1976 is generally regarded as progressive and inclusive. The Act applies an equal property sharing regime to married spouses, civil union partners and de facto partners. It does not, however, recognise other sorts of close domestic relationships such as those between a parent and adult child or between siblings. This is in contrast to Australia where a number of jurisdictions have conferred relationship status on domestic relationships. This article considers whether there is a similar case to be made in New Zealand for extending property rights to people in domestic relationships.
Forty Years of Family Law: A Retrospective
Authors: Parkinson Patrick
Published: June 2019

This article presents a thematic retrospective of the past 40 years of family law in terms of the international landscape in developed countries. It examines three questions: First, whatever happened to marriage? While once marriage was central to family formation, it is no longer. Indeed, heterosexual couples have never been less interested in the idea of marriage. Secondly, whatever happened to divorce? The nature of divorce has fundamentally changed in the last forty years, largely as a consequence of the recognition that while intimate domestic partnerships may come to an end, parenthood is, for the most part, indissoluble. The ties that bind parents together remain important long after the adult relationship has ended. Thirdly, whatever happened to parenthood? Legal parenthood has become vastly more complicated than in the mid-1970s. One reason for this is the revolution in artificial reproduction techniques. A second reason is that lesbian and gay couples have, in increasing numbers, sought to raise children and demanded recognition of parental rights which are not based on genetic parenthood. These changes have had a profound impact upon modern family law.
Bill Atkin: A Fierce Defender of Children's Rights and Proponent of Child-Focused Legislation
Authors: Henaghan Mark , Ballantyne Ruth
Published: June 2019

This article illustrates the different ways in which Professor Bill Atkin has shown where family law legislative reforms have fallen short in making the rights and well-being of children the paramount consideration in family law disputes, and properly taking account of children's views on matters that affect them. It examines Atkin's thought-provoking analysis of the introduction of the Care of Children Act 2004 and the changes made in recent years to the Child Support Act 1991, the Property (Relationships) Act 1976 and the Family Court system as a whole. The article also explores Atkin's approval of the amendments to the Crimes Act 1961 preventing parents from using physical discipline against their children for the purposes of correction. Overall, the article highlights Atkin's extensive contribution to family law and demonstrates what needs to be changed to ensure New Zealand family law and society becomes more child-focused in the future.
Celebrating 40 Years of Professor Bill Atkin
Authors: Boshier Peter
Published: June 2019

This article traces Bill Atkin's contribution to family law in New Zealand, with a particular focus on his commitment to law reform.
Climate Change and the Resource Management Act 1991: A Critique of West Coast ENT Inc v Buller Coal Ltd
Authors: Ross Nathan Jon
Published: June 2019

In West Coast ENT v Buller Coal, the majority of the Supreme Court concluded that the effect of the Resource Management (Energy and Climate Change) Amendment Act 2004 was to remove all considerations of the effects of greenhouse gas emissions on climate change. The plain words of the amendment provisions only removed such considerations in relation to air discharge and coastal permits. However, a literal interpretation of those provisions permitted "back door" regulation via ancillary consents of other classes, such as land use consents. The Court concluded, therefore, that to avoid that outcome, the purpose of the Amendment Act must have been to remove all considerations of emissions and the drafters must have only envisaged that those considerations would be relative to air discharge permits. This article re-examines the effect of the 2004 Amendment Act in light of its purpose and legislative history, and in light of the Principal Act's purpose and scheme. It concludes that Parliament was seeking only to remove consideration of emissions that were anticipated to be regulated nationally. It identifies a nuanced method of using the scheme of the Act to allow that purpose to function whilst avoiding the risk of "back door" regulation. This article also critiques the extent to which the majority's interpretation expands and alters the meaning of the plain words of the Amendment Act's provisions.
A Window into the Soul of International Arbitration: Arbitrator Selection, Transparency and Stakeholder Interests
Authors: Rogers Catherine
Published: June 2019

New Zealand Law Foundation International Dispute Resolution Lecture 2013, delivered at Stone Lecture Theatre, University of Auckland Faculty of Law, 26 November 2013. This essay derives from that lecture, which considers the important issue of arbitrator selection, appointment and challenge standards and procedures, and introduces the Arbitrator Intelligence project – a proposed solution for informational asymmetries that can affect the fairness of arbitrator selection and appointment.
New Zealand Family Law and International Law – A Comment with Some Questions
Authors: Keith Kenneth J
Published: June 2019

In this article, an addition to the issue in honour of Bill Atkin, Sir Kenneth Keith considers the growing impact of international law on family law in New Zealand. The article begins by broadly outlining shifts in society and legal approach that impact on the field of family law. This leads to a discussion of the Hague Conference on Private International law, the conventions that came out of the conference, and the extent of New Zealand's adoption of those conventions. The different ways in which these conventions have been implemented in national law, both historically and in the present day, are then addressed. The article concludes by noting New Zealand's failure to accede to various conventions touching on family law, and suggests that international law will yet have considerable impact in family law development.
The Northern Ireland Question: All-Ireland Self-Determination Post-Belfast Agreement
Authors: Donohue Conor
Published: June 2019

By the Belfast Agreement of 1998, the major parties involved in the Northern Ireland conflict agreed that the territorial status of Northern Ireland would be determined by the Northern Irish people and the people of the island of Ireland collectively. Although this Agreement is significant in shaping the right to self-determination in the all-Irish context, it contains within it many ambiguities. Many questions as to the nature, extent and effects of the right to self-determination in the all-Irish context still remain. These questions and issues which arise within the Agreement are resolvable with recourse to the customary international law of self-determination, particularly the law and practice relating to referenda. The Belfast Agreement is not simply of relevance in the Irish context. Rather, it offers an understanding of the limitations which may be imposed on the right to self-determination, and serves as a model for the resolution of self-determination disputes.
Insurance Law and the Principle of Indemnity in Light of Ridgecrest NZ Ltd v IAG New Zealand Ltd
Authors: Ginders Kasia
Published: June 2019

When the Supreme Court discussed the principle of indemnity in Ridgecrest NZ Ltd v IAG New Zealand Ltd, it was referred to as "awkward" in the context of a replacement policy. The application of the indemnity principle in the case raises further questions about the nature of the principle in insurance contracts. It is submitted that the indemnity principle is currently enforceable not as a legal test nor as a policy-based presumption; rather, it is applicable mostly because it is presumed the parties intended it to apply. This conclusion draws on both consideration of the rationales and rules of, exceptions to, and law reform concerning the principle. It also draws on analysis of the principle in light of Ridgecrest and two other recent cases following the Christchurch earthquakes that deal with the principle of indemnity.
Countering Foreign Terrorist Fighters: Warrantless Surveillance Powers of the New Zealand Security Intelligence Service
Authors: Guilford Katharine Briar
Published: June 2019

On 9 December 2014, the New Zealand Security Intelligence Service Amendment Act 2014 amended the New Zealand Security Intelligence Service Act 1969 by removing the requirement for an intelligence or visual surveillance warrant in some situations of emergency or urgency. The warrant process is the primary mechanism for the purpose of ensuring surveillance powers are not exercised arbitrarily or unreasonably. Any departure from this process must be justified, limited and proportionate. After a brief look at the history of the Bill, this article will then consider the circumstances in which a warrantless authorisation shall be granted and information retained, with reference to the trigger concepts of "terrorist act", "foreign terrorist fighter" and "security". Amendments proposed include limiting the grounds for warrantless surveillance and information retention to countering "foreign terrorist fighters". It will then discuss the consistency of the Bill with the New Zealand Bill of Rights Act 1990, focusing on the authorisation structure and length. It will put forward a proposed amendment that restructures the power such that authorisation for surveillance in urgency will be provided by the Minister and Commissioner within 12 hours.
The Formation of Variation Contracts in New Zealand: Consideration and Estoppel
Authors: Roberts Marcus
Published: June 2019

This article will review the current New Zealand approach to the formation of variation contracts. In particular, it will critique the current position taken by the Court of Appeal that either: a practi-cal benefit can be good consideration;, or consideration is not needed for variation agreements. The article will then explore some of the implications of using estoppel as an alternative basis to enforce variation agreements when consideration has not been provided by the promisee.
Property Rights in Kaiapoi
Authors: Tau Te Maire
Published: June 2019

Māori property rights have been a much discussed topic over the years, but often under false assumptions and pretences. Traditionally accepted views highlight the communal nature of Māori property rights prior to European contact. It is now assumed that individual rights or property rights were a Western construct imposed on Māori, who it is believed held land in common. This article argues that there was no contradiction in the idea of a tribe holding its territory as a collective while also having individual ownership of land and resources. At the same time we need to be careful of over-extending western notions of property to Māori or any other non-western peoples, an outcome of the colonial narrative. This article attempts to remove the idea that property rights among Māori were communal and that individual title rights did not exist. It will do this by looking at the "Kaiapoi Experiment" of 1859.
Some Impressions of the Permanent Appellate Judges: 1958–2002
Authors: Richardson Ivor LM
Published: June 2019

In this article, the late Rt Hon Sir Ivor Richardson provides personal insight into the inner workings of the Court of Appeal and reflections on each of the judges appointed since its inception as a permanent appellate court in 1958 until 2002. Drawing on his vast experience as an advocate, as a judge and as a President of the Court of Appeal, Sir Ivor canvasses the Court as led by various judges: Gresson, North, Turner, McCarthy, Richmond, Woodhouse, Cooke and Sir Ivor himself. Sir Ivor retired as President of the Court of Appeal in 2002 after 25 years in judicial office. He wrote the bulk of the paper that forms this article in 2009, but it remained unfinished at the time of his death in 2014. The paper is reproduced here largely as it was written; only minor edits have been made for clarity.
Does the Health and Safety at Work Act 2015 Apply to Roads?
Authors: King Murray
Published: June 2019

This article examines how far the Health and Safety at Work Act 2015 applies to roads. Road authorities have substantial control over the safe use of their roads and, as roads are a product of work, it might be expected that the Act applies to any deficiencies in that work that create harm, as it does to most areas of the economy. But the Act can be read in a way that limits its applicability to actions that cause harm much later and indeed to public safety in general. The article analyses some key sections of the Act to see how far their duties might extend to road authorities. It concludes that while there is some room for doubt, the Act is capable of supporting a prosecution of a road authority, especially in relation to a work-use vehicle. In addition, the so-called "upstream duties" on designers and others could well create a liability for the authorities. The article nevertheless proposes reforms to clarify the liability.
Is the Trans-Pacific Partnership's Investment Chapter the new "Gold Standard"?
Authors: Alvarez José E
Published: June 2019

The Trans-Pacific Partnership's Investment Chapter, and particularly its inclusion of investor-state dispute settlement (ISDS), has been the focus of considerable criticism both in the United States and New Zealand. Despite huge differences between these two potential TPP partners, the anticipated economic and political benefits offered by the pact – but also the threats to democracy posed – have been expressed in similar ways by distinct stakeholders in both countries. This essay describes how this chapter is the culmination of reforms to United States investment protection treaties that began with the investment chapter of the North American Free Trade Agreement in 1994 and that are now evident in the latest United States Model Bilateral Investment Treaty (of 2012). The TPP's Investment Chapter borrows heavily from prior United States efforts to narrow investor rights (as with respect to fair and equitable treatment), expand sovereign policy space, and incorporate certain rule of law reforms. For its critics, the pact falls far short of achieving a new "gold standard" precisely because it merely reforms – but does not abandon – ISDS for its enforcement.Editor's note: The text of this article was originally accepted for publication in March 2016. Recent statements by President-elect Donald Trump indicate that the United States will likely withdraw from further participation in the Trans Pacific Partnership and refrain from ratifying the agreed text. Without the United States' ratification, the agreement will not come into force. Despite this apparent ending to the Trans Pacific Partnership, the editors consider that Professor Alvarez's article remains an extremely useful analysis of investment provisions that may well serve as a model for the negotiation of such provisions in other mega-regional trade agreements in the future.
Legal Interventions to Meaningfully Increase Housing Supply in New Zealand
Authors: Tustin Michelle
Published: June 2019

This article considers legal interventions to facilitate an affordable housing market in New Zealand. In particular, it focuses on meaningfully increasing supply and facilitating intensification and options in growing cities. It analyses the measures currently proposed by central government, including deregulation and reforms to the Resource Management Act 1991 and assesses whether these measures can achieve density and increased options and housing choices. It proposes measures such as making full use of the RMA's effects-based model, releasing National Policy Statements and carefully drafting cohesive and strategic City Plans which focus on outcomes and quality. These measures should be supported by a range of incentives, disincentives, regulations and supplementary measures to ensure the implementation of transformative town plans.A plethora of interconnected issues have contributed to the current housing problem; economic issues like demand and social issues like immigration and NIMBY-ism (Not in my backyard). While this article focuses on meaningfully increasing supply, it acknowledges that legal interventions and supply increases are not a silver bullet solution. A smorgasbord of legal reforms as well as economic and social changes must occur to truly address affordability challenges.
Wilkinson v Downton After Rhodes and its Future Viability in New Zealand
Authors: Roycroft Pita
Published: June 2019

This article analyses the tort in Wilkinson v Downton, commonly referred to as intentional infliction of emotional distress, in light of the United Kingdom Supreme Court's decision in Rhodes v OPO. After considering the three base elements of the Rhodes Court's newly reformulated tort, and giving a brief introduction to the New Zealand equivalent, the article suggests the law in this area is in need of further clarification and reform. The Rhodes formulation, while useful, does not go far enough in securing a viable future for the tort in light of the developments in negligence and privacy. The article justifies the tort's independence and suggests reforms to its elements in this respect. In particular, it concludes that the conduct element ought to be based on a "reasonable target" test, and the consequence element ought to be modified to allow recovery for damage amounting to severe emotional distress outside the range of ordinary human experience.
Mapping the Legal Landscape: Chinese State-Owned Companies in Australia
Authors: Tomasic Roman , Xiong Ping
Published: June 2019

Australia has always relied heavily upon foreign sources of investment and financing and has in the past tended to draw mainly upon British, American and Japanese investment. In recent decades, Chinese state-owned enterprises (SOEs) have played an increasingly important role in the Australian economy with a rising level of investment taking place. Chinese SOEs have been more heavily involved in investments into larger Australian investment projects, such as in mining and infrastructure. Australia has seen an increase in the number of Chinese state-owned companies acquiring substantial domestic assets; this may continue following the ratification of the China-Australia Free Trade Agreement in 2015. Although Chinese SOEs operating in foreign countries such as Australia are required to comply with local corporate governance laws and principles, they also retain their unique Chinese corporate governance values and culture which they have inherited through their parent companies and from China itself. In Australia, there has been an ongoing debate over Chinese investment, with the business community being particularly supportive of such investment. Driven largely by the business community, this debate has been relatively narrow and has not explored the likely impact of Chinese SOEs and their subsidiaries upon the shape of corporate governance in countries in which they invest. This article seeks to examine the legal contours of Chinese-controlled investment in Australia with a view to acquiring a more informed understanding of the impact of Chinese SOEs upon the Australian legal landscape.
Exploring the Deep: Looking for Deep Legal Pluralism in the South Pacific
Authors: Corrin Jennifer
Published: June 2019

Over the past 40 years, the concept of legal pluralism has gradually gained broader recognition. However, the depth of this pluralism, in the sense of the degree of recognition given to non-state systems of law, varies dramatically from place to place. This article looks at legal pluralism in South Pacific. Commencing with a brief explanation of the different ways in which legal pluralism can be conceptualised, it gives a general overview of the way in which it is manifested in South Pacific legal systems. Selected South Pacific statutes that acknowledge customary laws or institutions are then examined to assess whether this equates with deep legal pluralism, or whether, in reality, it amounts only to state legal pluralism.
Planning – A Risky Business?
Authors: McInerney Amy
Published: June 2019

Since the introduction of performance-based planning, Queensland's planning law framework has been repeatedly amended in response to complaints of complexity. This article traces Queensland's law reform journey and focuses on the issue of complexity in the context of planning schemes. The causes of complexity are diverse and to some extent remain unresolved. An issue that warrants more attention is the concept of "risk" in the context of planning (and particularly planning schemes). Risk-based approaches to regulation have been increasingly regarded as an effective way to manage risk and uncertainty. This article asks questions about risk concepts in planning and argues in favour of further research around a risk-based approach to planning scheme preparation.
Law School as Social Innovation
Authors: Sossin Lorne
Published: June 2019

Legal education is in the midst of a range of challenges and disruptions. This address outlines these dynamics, and explores the potential of social innovation as a model for law schools which both responds to current challenges and enhances resilience in the face of disruption. By reframing legal education as facing outward, and advancing its public interest mandate through partnerships, collaboration and academic initiatives designed to solve social problems, law schools can enhance the student learning experience, generate new forms of legal knowledge and thrive at a time of rapid change. Address delivered at the Australian Law Teachers Association (ALTA) 2016 Conference in Wellington on 8 July 2016.
Beyond Skills and Doctrine: The Need for Policy Skills and Interdisciplinarity
Authors: Ross Nathan Jon
Published: June 2019

There is debate about the ratio of doctrine to skills in undergraduate law programmes arising from a purported lack of practice-ready capability. This article looks at this discussion relative to an assumed objective of universities, which is to develop graduates with a rounded understanding of the world, and with skills for objective fact-finding and analysis. Rather than the two dimensions of doctrine and skill, this article employs a framework of four dimensions: basic and deep skills, and basic and deep knowledge. It is used to assess a four-year law programme taught largely through case method against that assumed objective of universities. It concludes that two substantive elements were not addressed sufficiently: policy skills (as an element of deep skills) and deep knowledge. The importance of those elements is described and recommendations are offered for how to incorporate them with minimal impact on the teaching of legal skills and doctrine.