Article

Awarded the MinterEllisonRuddWatts Writing Prize

Holding States Accountable for the Crime of Crimes: An Analysis of Direct State Responsibility for Genocide in Light of the ICJ’s 2007 Decision in Bosnia v Serbia

By Sam Clearwater

In March 1993, south-eastern Europe was embroiled in the early stages of the Bosnian War. During the same month, Bosnia filed an application with the International Court of Justice (ICJ) instituting proceedings against Serbia, accusing the State of breaching its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). Included in these responsibilities, Bosnia claimed, was a direct obligation not to commit genocide. Bosnia alleged that Serbia had “killed, murdered, wounded, raped, robbed, tortured, kidnapped, illegally detained, and exterminated the citizens of Bosnia ... and [was] continuing to do so”. By 1995, when the final shots in the war had been fired, nearly 100,000 lay dead, while thousands more were injured, unemployed, and homeless. In 2007 — nearly 14 years after Bosnia’s initial application — the ICJ delivered its final decision in Bosnia and Herzegovina v Serbia and Montenegro (Genocide Case): a 175-page judgment accompanied by a further 392 pages. The Genocide Case has since been described as a legal “odyssey”, and the “longest and most procedurally complex case the ICJ has ever entertained”.

Article

Closed-Circuit Television in New Zealand

By Siobhan Cervin

The explosive growth of closed-circuit television (CCTV) surveillance that has been experienced throughout the world in recent years cannot be exaggerated. Individuals are increasingly subjected to surveillance in town centres, city streets, public car parks, shopping precincts, banks, transport services, workplaces, and a variety of other public and private spaces. In New Zealand, local authorities and the police have been quick to proclaim the value of CCTV surveillance technology in reducing the incidence of crime and other anti-social behaviour, and in improving public perceptions of safety. However, warnings by the United Kingdom Information Commissioner that the United Kingdom is “sleepwalking into a surveillance society” have This article assesses whether the current legal framework governing state CCTV surveillance in New Zealand adequately protects citizens and society from the harmful effects of CCTV surveillance. It responds to the New Zealand Law Commission’s recent call for submissions on whether or not CCTV surveillance should be regulated.

Article

De Facto Commercial Relationships: Still Dancing at Arm’s Length?

By Antony Holmes

Describing a party as “commercial” is a common prelude to courts refusing to grant relief in equity. Catch-cries of commercial certainty and the need for an unrestricted bargain — so important to classical economic theory — echo throughout court decisions and academic commentary. The message is that when the parties are commercial bodies dealing at arm’s length, equitable obligations should be avoided. This is described in this article as the “arm’s length principle” — a presumption that commercial parties dealing at arm’s length do not want for, or require, equity’s protection. Although it is frequently utilised, it is infrequently explained. This article examines the underlying rationale for the arm’s length principle and the extent of its influence on three recent Supreme Court decisions: Chirnside v Fay; Paper Reclaim Ltd v Aotearoa International Ltd; and Amaltal Corp Ltd v Maruha Corp.

Article

The Counterfeit Presentment of Two Britons: Isaac Newton and Currency Crime in Modem England

By Sam Hiebendaal

Isaac Newton published the Philosophiae Naturalis Principoia Mathematica in 1687. He gave the world the three laws of motion, the theory of universal gravitation, and a remarkable advancement in the development of modern calculus. Yet Newton’s exploits did not end in 1687, and they were not limited to the scientific and philosophic worlds. As Warden of the Royal Mint, he made considerable contributions to the legal sphere by prosecuting “coiners” and “clippers” during a perilous period for the stability of the Kingdom, and when the King’s currency was vulnerable to threats both internal and external. Over this article’s eight Parts, Newton’s adventures into the law are discussed.

Article

The Tax Treatment of New Zealand Firms’ Offshore Subsidiaries

By Sehj Vather

In 2008, the New Zealand Government introduced the Taxation(International Taxation, Life Insurance, and Remedial Matters) Bill (the Bill), which proposes to change the way in which New Zealand residents are assessed to tax on income derived by offshore companies under their control. The Bill, which had its second reading in August 2009, calls for extensive tax exemptions in respect of income derived by foreign subsidiaries in the course of an active business, such as manufacturing. This article considers the mechanics of the Bill, as well as the numerous tax avoidance risks that will arise as a consequence.

Article

In Defence of Diminished Responsibility: Considering Diminished Responsibility in the New Zealand Context

By Kitaj Woodward

Diminished responsibility as a substantive defence in criminal law is indicative of the quality of life in society because of what it acknowledges: the frailty of the human condition and the fact that mental disorder, short of legal insanity, deserves legal recognition in reducing criminal responsibility. Shrouded in controversy, this is an area in danger of not receiving adequate attention in New Zealand. This article assesses the current treatment of mental disorders as a sentencing consideration and looks at ways to improve this process. Even if the legislature does not consider that diminished responsibility is worthy of substantive recognition, there can be no denying that the interrelationship of mental disorder, reduced responsibility, and appropriate sentencing is too complicated and of too great a consequence to be left unaddressed.

Article

Murder, Mazengarb and a Moral Panic: The Intersection of ‘Juvenile Delinquency’ and the Media in 1950s New Zealand

By Alice Krzanich

In 1954, New Zealand experienced a moral panic. Misbehaviour among the nation’s youth brought the issue of ‘juvenile delinquency’ to the forefront and concerned adults, searching for an answer, fixated upon comic books as a cause of this depravity. As a result, New Zealand’s censorship law underwent significant changes, demonstrating the inextricable link between law and society as the legislature responded to this national concern. This article looks first at the events that triggered the 1954 moral panic and the role of media in orchestrating it. The next section examines the Special Committee on Moral Delinquency in Children and Adolescents (the Mazengarb Committee), which made recommendations about the development of New Zealand’s media law. The remainder analyses the Indecent Publications Amendment Act 1954 (IPAA), the censorship legislation that was designed to prohibit ‘indecent’ literature. This legislation caused major issues in terms of its hasty enactment and curtailment of adult reading matter, which ultimately led to its repeal. This article therefore provides a historical case study on how society, including the press, helped to procure legislative change, and how the societal impact of that legislation led to its own demise. The ramifications of legal change can only truly be understood in their social context, and the moral panic of 1954 and its legal aftermath are a superb example of the interaction between law and society.

Article

The Mistaken Removal of Article 14 from the OECD Model Tax Convention

By Keefe Han

The Organisation for Economic Co-operation and Development’s Model Tax Convention on Income and on Capital (the OECD Model) is the most influential and widely followed model tax convention on which Double Tax Agreements between states are based. It underpins nearly all of the 3,000-odd bilateral tax treaties that are currently in force throughout the world. And yet despite general acceptance of the OECD Model as the template of choice, it is still not wholly followed by states. Based on current treaty practice, states tend to disagree with the OECD’s current position on the taxation of independent personal services.

The first part of this article outlines how and why the current OECD position on the taxation of independent personal services arose. It discusses the provisions of the deleted art 14. The article then looks at how states have responded to the OECD’s decision to remove art 14. Finally, this article considers the 2008 OECD amendment to the Commentary on art 5 of its Model.

Article

Who Did You See? An Evaluation of the Criminal Justice System’s Response to the Danger of Eyewitness Misidentification

By Kristy Li

Eyewitness identifications are essential during the investigatory stage in identifying a suspect, and at the trial stage in building a case against the suspect. However, as the story of Ronald Cotton illustrates, even the most honest and confident eyewitnesses can be mistaken. To date, post-conviction DNA evidence has exonerated more than 220 people in the United States. Of these, witness misidentification played a role in 75 percent of the cases. However, these exonerations from DNA are likely to account for only a small percentage of the total number of wrongful convictions due to eyewitness misidentification. Conclusive biological traces that can be used for DNA testing are usually only available in sexual assault cases, and rarely for other crimes that often rely on eyewitness identification such as murders or robberies. While no New Zealand statistics are available on this exact point, eyewitness misidentifications are accepted to be the “greatest single cause of wrongful convictions”. Even though much of our understanding is derived from overseas empirical information, the same issues are applicable and should be considered in New Zealand.

Case Notes

Tortious Liability of Directors: Body Corporate 202254 v Taylor

By William Fotherby

In what is now a familiar scenario, purchasers of units in a residential development discovered that construction had been defective and the units leaked. With most of the possible corporate defendants either struck off the register of companies or insolvent, a number of these purchasers brought a claim against the director of the development company, alleging both negligence and breach of the Fair Trading Act 1986. The question for the Court on appeal was whether it should strike out either or both of these claims.

Tax Avoidance: Two Cases of the Supreme Court of New Zealand

By Katrina Kelly

Glenharrow Holdings Ltd v Commissioner of Inland Revenue and Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue are two long-awaited decisions of the Supreme Court of New Zealand, being the first cases decided by this Court on the issue of tax avoidance. The two cases involved taxpayers that followed the black letter of the law in arranging their business affairs. Nevertheless, the Justices of the Supreme Court deemed that the arrangements were tax avoidance after considering the tax advantages obtained by the taxpayers. These two cases send a strong message to taxpayers: business contracts that do not meet the criteria of being genuine commercial arrangements will be considered arrangements that have the effect of tax avoidance, and therefore subject to the Commissioner's extensive power of reconstruction.

Functions of a Public Nature and Judicial Review: YL v Birmingham City Council

By Brendon Orr

YL v Birmingham City Council is a decision of the House of Lords on the obligation of a private person or company to observe human rights where they perform a “public function”. The decision has attracted considerable commentary and debate; eventually proving so controversial that the outcome was subsequently overturned by specific legislation.

Legislation Note

Three Strikes for New Zealand? Repeat Offenders and the Sentencing and Parole Reform Bill 2009

By Sophie Klinger

Book Reviews

Animal Law in Australasia: A New Dialogue – Peter Sankoff and Steven White (eds)

By Vernon Tava

Learned in the Law: The Auckland Law School 1883–2008 – Brian Coote and others

By Yvanca Clarisse