Recent developments

The tertiary sector is operating in an increasingly market-driven environment. Teaching standards are under intense scrutiny as universities strive to meet the expectations of students exercising consumer choices. Continuing professional development programmes have a pivotal role in supporting and shaping best practice in modern law schools. Early career academics in both the New Zealand and British university systems share similar teaching and learning objectives.

However, the respective professional development programmes have different compliance regimes. The United Kingdom has adopted a scheme of formal training and teaching accreditation, supported by the UK Professional Standards Framework. In New Zealand mandatory training requirements are more limited. It is submitted that New Zealand universities should similarly require probationary academics to undertake a formal programme which promotes an understanding of the scholarship of teaching. It is further argued that programmes in both jurisdictions should emphasise subject-specific pedagogical knowledge to expose law teachers to the distinct academic and vocational aspects of their discipline.     

Straight talking,straight teaching: Are New Zealand tertiary institutes potentially liable to their students under consumer protection legislation?

Consumerism has become an officially approved fashion. In recent years we have seen the enactment of progressive consumer rights legislation aimed at redressing the balance between consumers and suppliers. In New Zealand the reform of tertiary education, begun with the Education Act 1989, has led to a shift in the relationship between institutes and students. Market culture is progressively being applied to tertiary education. Institutes are holding themselves out as providing an 'educational product' and are actively competing for students both nationally and internationally. In turn students, as purchasers of that product, at an ever-increasing cost, are demanding greater standards of straight talking and straight teaching. There are indications that this is leading to thoughts of legal accountability for any deficiencies in the education product. This is both in terms of what institutes hold themselves out as providing and the quality of that provision. This article considers the effect of provisions of the Fair Trading Act 1986 and the Consumer Guarantees Act 1993 on the potential liability of tertiary institutes.     

Indigenous Peoples and Family Law: Issues in Aotearoa/New Zealand

This article provides a glimpse into how historical and currentlegislation has attempted to grapple with the practice of customaryfamily law by the indigenous peoples of Aotearoa/New Zealand.It focuses on examining family law in two contexts: marriageand property ownership; and children and legal parenthood. Theanalysis provides an interesting insight into the interplaybetween customary law and statute law. The impact of colonizationupon indigenous peoples and the practice of their law, and howgovernments today choose to recognize and provide for indigenouspeoples is a policy issue prevalent in many of the British colonizedlands. This article concludes that a comprehensive review ofthe nature and extent to which legislation should provide forMaori customary law is required in Aotearoa/New Zealand. Thehaphazard approach of current years is insufficient.     

Liability of health professionals for a breach of the abortion law of New Zealand

The abortion law of New Zealand appears to have been interpreted very liberally over recent years by sectors of the medical profession. Indeed the interpretation of the law appears to have been so liberal that it raises questions as to the lawfulness of many of the abortions carried out in New Zealand. The current practice and application of the abortion law is such that it may expose some medical consultants certifying and performing abortions to criminal proceedings and civil claims.     

Wrongful birth in New Zealand

Wrongful birth cases have been a feature of the common law. In this article the author examines wrongful birth cases against the background of the New Zealand accident compensation scheme. Initially cases were accepted under the scheme, but after major changes to the legislation in 1992, wrongful birth cases were declined cover. The author argues that this should continue to be the case, and that, as a result, New Zealand courts will have to make the same policy decisions in this area as those made by other Commonwealth courts.     

Socio‐legal Studies in Aotearoa/New Zealand

This article reviews the development and impact of the socio‐legal field in New Zealand. It begins by assessing the socio‐legal presence within teaching and research conducted across New Zealand's law faculties before analysing factors likely to inhibit future growth of the sub‐discipline in this remote jurisdiction. Having examined how New Zealand's legal scholars map and influence national legal behaviour, without always recognizing contradictions between these objectives or categorizing their research as ‘socio‐legal’, the article goes on to examine how the next generation of socio‐legal researchers might exert stronger influence over the law curriculum and new areas of legal policy. In conclusion, it argues for a distinctive New Zealand approach toward socio‐legal studies and notes that future prospects appear encouraging, and in certain respects more promising than those in the United Kingdom, particularly when considering research impact.     

Constitutional law

Recent decisions of New Zealand courts illustrate that domestic proceedings may not be effective to recognise indigenous property rights, nor to address grievances that stem from breaches of customary indigenous rights. One possibility for Māori to have their rights enforced is to consider using international law. Gains have been made in international law with regard to indigenous rights; one noteworthy decision is Mayagna (sumo) Awas-Tingni Community v The Republic of Nicaragua. In this case, a universal and generic property right was extended consistently with emerging indigenous rights to include an indigenous right to customary land tenure. This paper considers whether the International Covenant on Civil and Political Rights can carry a property right for indigenous peoples in New Zealand.     

Judicial Culture and the Politicolegal Opportunity Structure: Explaining Bill of Rights Legal Impact in New Zealand

This article argues that the cultural self-understandings of the judiciary can exert a profound effect on legal outcomes under a bill of rights. Utilizing the case of New Zealand, it demonstrates that confinement of expansive case law under the New Zealand Bill of Rights (NZBOR) to the criminal law and freedom of expression arenas is most significantly explained by a British-descended judicial culture that prioritizes, first, those civil liberty values already cognizable by the common law and, second, rights connected with the policing of parliamentary and legal processes. Nevertheless, judicial culture does not operate in a vacuum. Rather, the opportunity structure facing potential public interest litigants under NZBOR depends also on their politicolegal resource set including the attitude of the political branches (legislature and executive) to the claim being forwarded.     

The patentability of human beings: the effect of a proposed exclusion in the Patents Act 1953

The author critically examines the debate over whether "human beings" ought to be patentable. The article outlines the choices between excluding just the patenting of whole organisms or parts of organisms. After considering New Zealand, Canadian, and European Union Patent law, the author concludes that at very least New Zealand must statutorily prevent the patenting of whole organisms.     

Prosecutions and human rights – are they mutually exclusive?

Despite intense national opposition to the Foreshore Seabed Bill, legislation was enacted vesting the foreshore and seabed in the Crown. Though international bodies have found this legislation to be discriminatory, in the absence of an amendment to the law, Maori (indigenous people of New Zealand) have no recourse other than to satisfy the provisions of the legislation for recognition of customary rights within the foreshore and seabed area. This article considers in detail the doctrine of aboriginal title. This doctrine is relatively undeveloped in New Zealand and a comparative analysis with comparable jurisdictions is undertaken in order to ascertain whether this doctrine could assist a claim for Maori.     

Analysis of legal cases for prevention of elder abuse: decisions from New Zealand

Elder abuse is a universal concern and is gaining greater public and professional attention. This increased concern to protect elders is internationally evident in policy reform, multidisciplinary research and education. Yet neglect in care settings continues. This research responds by contributing to the international effort to promote humane care for elders who are in a position of dependence, particularly in residential facilities. The legal cases that result from some complaints by aggrieved elders and their advocates may offer insights that are relevant for prevention. While the law is often viewed merely as a system of control, it may also be a resource for learning, particularly in the context of abuse prevention. Although the analysis references New Zealand law, the discussion may have broader application by indicating factors that precede, or trigger, unacceptable conduct. By understanding what went wrong and why, we may decrease the likelihood of future incidents. Also, understanding the legal ramifications may have a deterrent effect. Many advocates and activists have asked how we can ensure that abuses do not recur; some answers may lie within the legal cases themselves. How may recent legal cases be used to prevent mistreatment of elders in residential facilities? This question is applied to select decisions of New Zealand's Health and Disability Commissioner, Human Rights Review Tribunal and Health Practitioners Disciplinary Tribunal. While each body has distinct functions, relevant factors identified within the cases may reveal information that is of interest to elderly people and their advocates, caregivers, health educators and professional registration bodies. The research is timely in light of New Zealand's Review of Elder Abuse and Neglect Prevention Services in New Zealand (Department of Child Youth and Family Services, 2004) and New Zealand's Positive Ageing Strategy (Office of Senior Citizens, 2001). This article incorporates current debates regarding the use and analysis of legal cases and suggests that such analyses offer learning opportunities.     

The Royal Prerogative in the Realms

From 1840, the laws of New Zealand have comprised the common law and statute law, both of which – but especially the former – were originally based upon the laws of England and continued to draw upon English jurisprudence. Since New Zealand was regarded as a settled colony, the settlers brought with them such of the laws of England as were applicable to the circumstances of the colony. This included the royal prerogative.

Although elements of the royal prerogative are obsolete or have been subsumed in parliamentary enactments, there are a number of aspects that continue to be used by the Crown today. One is the honours prerogative. The changed nature of the Crown (and in particular its division among the realms) has, however, led to some uncertainties. In particular, there have been questions regarding the use of the royal prerogative in respect of armorial bearings, and the proper exercise and application of the Law of Arms. This has never caused serious difficulties in New Zealand – if indeed it can be said to be an issue at all – but the Canadian case of Black v Chrétien has shown that disputes over honours and dignities can arise, and can have serious political or constitutional implications.

This paper considers the introduction of the royal prerogative to the realms, and some of the implications and possible difficulties which this process may have led to.     

Law’s not hard; it’s just hard to get into: a study of alternative entry students to law school

Widening access to higher education is a challenge currently under discussion in Australia and the United Kingdom. The increasing number of alternative entry programs offered by universities has made tertiary study, including law study, more accessible. One concern with widening access to legal education is the ability of students entering law school through means other than very high academic scores to undertake a law degree successfully. Students who enter law school are generally referred to as “high achievers”, having qualified through an admission policy based on competitive rankings. The implementation of equitable access programs in some Australian universities has resulted in a number of places being made available to final year high school students who meet the eligibility criteria. Lowering the entry requirements to some courses provides opportunities for students whose circumstances have affected their ability to attain competitive ranking scores. The Principals’ Recommendation Scheme (PRS) is one of these programs. The University of Technology Sydney in New South Wales, Australia commenced the PRS in 2012. UTS:Law was one of the first Faculties to develop a strategy to support these students. The Faculty is committed to resourcing all students in their study and, as a result, is engaged in the ongoing evaluation of the academic and co-curricular programs provided to students. This paper explains the implementation of the PRS and the relevant support infrastructure available to students. It also considers the research into student retention and academic success and makes a preliminary assessment that, to date, the PRS students are succeeding in the transition from secondary education to law school, and that the existing infrastructure is accommodating the needs of these students. The PRS is an alternative entry scheme that provides a model for consideration by other law schools, committed to widening access to legal education.     

Laws to detain individuals with substance dependency: breaching human rights or restoring health?

At the turn of the 20th century in the United Kingdom and Australia, legislation was introduced to detain and treat "inebriates". Since that time, variations of such laws have continued to exist. This column examines current laws in Australia and New Zealand with a particular focus on recent law reform efforts in New South Wales and Victoria. The column raises some of the issues with these laws in relation to breaching human rights for the purpose of treatment.     

Detention and treatment down under: human rights and mental health laws in Australia and New Zealand

Mental health law reform in recent decades has drawn on the international human rights movement. The entering into force of the Convention on the Rights of Persons with Disabilities (CRPD) on May 3 2008 has been hailed by some as signalling a new era in relation to how domestic mental health laws should be reformed. Both Australia and New Zealand have ratified the CRPD and Australia has acceded to its Optional Protocol. New Zealand and the Australian Capital Territory and Victoria have statutory bills of rights which have an interpretive effect, but are unable to render other statutes invalid. Drawing on the results of interviews conducted with fifty-two representatives of consumer and carer organisations, lawyers, and mental health professionals across Australia and New Zealand, this paper examines the current thinking on human rights and mental health laws in these countries and outlines what changes, if any, may be brought to domestic legislation in light of the Convention.     

The impact of international human rights norms—a “law undergoing evolution”

Abstract

In this paper, the author outlines the history of, and reasons for, the growing impact of international human rights jurisprudence upon the work of judges in New Zealand, Australia, England and elsewhere in the Commonwealth of Nations. Formerly, international and domestic law were virtually entirely separate. But now, there is increasing legal authority to support the use of international human rights jurisprudence in domestic judicial decision‐making. It can be done in the application of constitutional or statutory provisions reflecting universal principles stated in international treaties. But, according to the Bangalore Principles, it can also be done where there is a gap in the common law or where a local statute is ambiguous. The judge may then fill the gap or resolve the ambiguity by reference to international human rights jurisprudence which will ensure that domestic law conforms, as far as possible, to such principles.

In its decision in Tavita, the New Zealand Court of Appeal declared this to be “a law … undergoing evolution”. The author outlines some of the impediments and problems for the evolution. But he also collects the reasons why it is a natural and inevitable phase of the common law in the current age. He suggests that judges should be aware of the developments. In appropriate cases, they should inform their decisions with relevant international human rights jurisprudence. That will at least ensure that they develop domestic human rights law in a principled way, consistently with international law, and not in an idiosyncratic fashion “discovering” new fundamental rights which may otherwise be criticised as mere judicial invention.     

NEW ZEALAND FAMILY LAW REPORT

The New Zealand family law system underwent an extensive review of the whole process in 1992. This report contains the recommendations resulting from that review. Among the recommendations is the establishment of a Family Conciliation Service attached to the court but separate in function to mediate the family law dispute. Judges need to take a much stronger hand in managing the cases when they come before the court.     

澳大利亚、新西兰、香港、加拿大传闻法律改革及酝酿中的改革——以“先前不一致陈述”为重要视角

本文概览了澳大利亚、加拿大、新西兰、香港等四个主要的环太平洋普通法系国家和地区的传闻法律改革,尤其关注与先前不一致陈述相关的改革。指出先前不一致陈述事关"被告人获得公平对待"以及"证人的人权"等基本原则,因此,如何对待先前不一致陈述将成为一项有效的指标,通过该指标。我们得以评价传闻法律改革中的关键原则以及个人权利在大多数严重犯罪的起诉、审判过程中的境况。认为无论借助成文法还是借助先例,公正的传闻法改革应当适用某些相互一致的基本原则,包括放宽采纳传闻的条件决不能以错案数量增长或不公正审判为代价,将传闻改革与保护被告人、证人的基本权利紧密联系起来,保护证人不受任何形式的强迫或不当侦查行为的干扰,辩护律师必须能够无拘束地对陈述可采性加以质疑,通过充分、及时地开示证据来分析有争议的证据的可采性等。     

Moderating strict liability crimes in common law tradition countries

Strict Liability crimes require no proof of a mental element. Proving the forbidden act suffices for conviction. This is discomforting under the common law tradition, since defendants who intended no wrong or were even unaware of their misdeed may be guilty. New Zealand, Australia, and Canada have responded by dividing non‐mens‐rea crimes into those where liability is absolute and those where, although conviction requires proof of no mental element, a defense negating mental guilt can be proven by accuseds. Canada has furthermore abolished the former category and severely restricted the latter. Australia and New Zealand maintain a tri‐part classification of mens rea, absolute liability, and strict liability. Some Indian jurisdictions have reached a similar result by different means. Meanwhile, even the few American courts exploring similar solutions remain unaware of the ninety years of jurisprudence developing these concepts elsewhere.     

The retention of personal information online: A call for international regulation of privacy law

New technologies permit online businesses to reduce expenses and increase efficiency by, for example, storing information in “the cloud”, engaging in online tracking and targeted advertising, location and tracking technologies, and biometrics. However, the potential for technology to facilitate long term retention of customers' personal information raises concerns about the competing right of individuals to the privacy of their personal information. Although the European Commission has recently released a proposal for regulation to “provide a data subject with the right to be forgotten and to erasure”, neither the OECD Privacy Guidelines nor the APEC Privacy Framework includes any requirement to delete personal information. While New Zealand includes a “limited retention principle” in the Privacy Act 1993, apart from one limited exception the privacy principles cannot be enforced in court. Taking New Zealand privacy law as an example, this paper examines the issue of retention of customer data, explains why this is a serious problem and argues that although it could be addressed by appropriate amendments to domestic laws, domestic privacy legislation may not be sufficient in an online environment. In the same way as other areas of law, such as the intellectual property regime, have turned to global regulatory standards which reflect the international nature of their subject matter, international privacy regulation should be the next stage for the information privacy regime.