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Awarded the MinterEllisonRuddWatts Writing Prize

Administrative Decision-Making And The Duty To Give Reasons: Can And Must Dissenters Explain Themselves?

By Paul Paterson

The ability of a judge to openly disagree with his or her colleagues by publishing a dissenting opinion is a tradition that is taken for granted in most common law jurisdictions. There is a common assumption that judges have the “right” to dissent, and this is seldom challenged.

As will be noted in the course of this article, there has been a distinct judicial reluctance to require such decision-makers to give any sort of reasons, let alone dissenting ones from minority members. However, the traditional reluctance appears to be wavering, and recent decisions have suggested that administrative decision-makers may have a general duty to give reasons for their decisions. Whether or not this developing duty requires dissenters to explain their reasons, or at least enables them to do so, is a matter that has been given little thought and is the subject of no commentary. This article therefore proposes to consider these issues at some length.

Article

The Introduction of Income Tax In New Zealand

By Luke Facer

This article aims to explain the introduction of income tax in New Zealand. It examines the key people and relevant legislation at the time income tax was introduced, with a view to assessing the political and economic climate that caused this shift in taxation policy.

Article

Truth, Civility, And Religious Battlegrounds: The Contest Between Religious Vilification Laws And Freedom Of Expression

By Joel Harrison

As part of the response to the Court of Appeal’s decision in Living Word Distributors Ltd v Human Rights Action Group Inc Wellington, the New Zealand government announced a general inquiry into hate speech in August 2004. Public awareness of the inquiry was heightened as vocal debate and outrage was raised over the desecration of Jewish cemeteries, the sending of offensive letters to Muslim communities, and the barring of Holocaust denier David Irving’s entry into the country. While the Human Rights Commission advocated extension of the ground of criminal vilification beyond racial groups, the overwhelming majority of submissions were opposed to implementing a new, general hate speech law. In other jurisdictions, however, prohibition of religions vilification now has the force of law. This article looks at two instances: the Racial and Religious Tolerance Act 2001 (Victoria, Australia) and the Canadian Criminal Code. These Acts prohibit inciting one’s audience to hatred on the basis of a person’s religion.

Article

The International Criminal Court and National Amnesty

By Daniel Sang Wook Han

Following the establishment of the International Criminal Court (ICC), one of the most controversial and practically relevant issues is whether the ICC, in investigating a State emerging from internal wars or conflicts, should respect an amnesty declared by a national government for the perpetrators of international crimes. An amnesty is different from other measures such as a pardon. While a pardon is a post-conviction measure, granted to individuals on the basis of individualised considerations, amnesty is a pre-conviction measure, granted to groups of people on the basis of public policy concerns. A pardon does not vitiate guilt for the underlying offence, whereas an amnesty erases the underlying offence itself.

Article

Powers of The Employment Relations Authority: Anton Piller Orders

By Amy Lee

The Employment Relations Authority (Authority) is a specialist employment institution created by the Employment Relations Act 2000 (ERA). The Authority replaces the Employment Tribunal under the previous regime, but exists with markedly different functions to those of the Tribunal. Its unique inquisitorial approach and the broad powers granted to it by the ERA raise some important issues that need to be addressed. This article will begin by examining the objects of the Authority and the nature of its jurisdiction. The main focus will be on aspects of the Authority’s jurisdiction that overlap with the High Court, and the practical implications of these overlaps. In particular, I will discuss and attempt to resolve the controversial issue of whether the Authority has jurisdiction to make Anton Piller orders.

Article

Under Investigation: A Review Of Police Prosecutions In New Zealand’s Summary Jurisdiction

By Stephanie Beck

In earlier times, victims and their communities sought retribution, typically achieved by means such as blood feud or trial by battle or ordeal. In more recent times the State has intervened in the administration of justice through the imposition of organised legal and criminal justice systems. Offenders who break the State’s established laws are now brought to justice in courts, before judge and jury. The State has also taken on responsibility for prosecuting criminal offences, on the premise that an offence is a harm committed against the State and society as a whole. Prosecution by the State is considered a necessary step both to protect individual citizens from crime and to preserve the State itself, for it is difficult to govern in times of anarchy. However, shouldering the responsibility for prosecution also places a duty on the Crown to ensure prosecutions are handled fairly and efficiently. It is in the area of police prosecutions that the effective fulfilment of this duty becomes uncertain.

Case Notes

What’s a Supreme Court to Do?

CIR v Peterson (2005) 22 NZTC 19,098

By Blair Keown

There is perhaps no thornier issue in the law than the question of what constitutes tax avoidance. The general anti-avoidance provision has been in effect in one form or another for over 50 years in New Zealand. Yet there is still no definitive guide to its interpretation. In the latest and last instalment of tax avoidance jurisprudence from the Privy Council in CIR v Peterson, the split decision of the Board has illustrated the difficulties in developing a coherent, principled approach to the tax avoidance — tax planning dichotomy. The tight 3:2 split combined with the relatively recent retirement of Ivor Richardson as New Zealand’s superior taxation jurist has left New Zealand’s own Supreme Court with a fresh canvas on which to formulate its own approach to the issue.

Judicial Review and Editorial Freedom

Dunne v Canwest [2005] NZAR 577

By Jesse Wilson

The decision of the High Court in Dunne v Canwest held that the editorial judgment of a private television broadcaster was amenable to judicial review. At its core, the decision creates the possibility of private companies being subject to public law review on the basis that their decisions have a “public impact”. Such an expansive conception of judicial review undermines the foundations of judicial review of administrative decision-making and the liberty of the press.

International Crimes and Domestic Criminal Law in R v Jones [2006] 2 WLR 772

By Vicki McCall

Customary international law (CIL) forms part, or is a source, of the common law. However, the question of the limits on the domestic enforceability of CIL standards in the developing areas of international criminal law and human rights remains uncertain. In R v Jones the House of Lords was faced with a question relating to the interaction between domestic and international criminal law.

Legislation Note

The Criminal Proceeds and Instruments Bill 2005

By Andrew Morris

Book Reviews

Parliamentary Practice in New Zealand (3rd ed) – David McGee

By Lisa Fong

The Rights of Refugees Under International Law – James C Hathaway

By David Dickinson