Article

Awarded the MinterEllisonRuddWatts Writing Prize (joint award)

Parliamentary Business: A Critical Review of Parliament’s Role in New Zealand’s Law-Making Process

By Hamish McQueen

This article focuses on the place of the legislature in New Zealand’s law-making process. Parliament’s role in making the law might appear rather obvious. Parliamentary sovereignty is a fundamental constitutional doctrine of New Zealand’s legal system. One does not have to be a lawyer to understand that the statutes produced by Parliament are the nation’s highest form of law. Yet, in a 2008 speech to the Maxim Institute, Jeremy Waldron deplored the “reckless” and “dysfunctional” state of New Zealand’s legislature. He argued that New Zealand has gradually stripped away the checks and balances from inside its Parliament, to the point where Parliament merely exists to support the executive’s agenda obediently. Waldron raised two concerns. First is his claim that Parliament, New Zealand’s highest law-making body, has lost its dignity and effectiveness as a body for scrutinising proposed legislation. Second is the lack of academic attention given to the process of making legislation in New Zealand. This article aims to examine critically the first concern, while attempting to make a small impression on the second.

Article

Awarded the MinterEllisonRuddWatts Writing Prize (joint award)

New Zealand’s Forgotten Income Tax

By Ogy Kabzamalov

1844 marks the year in which one of the most significant events in New Zealand’s tax history took place. A concoction of social, political and economic factors led to the promulgation of the Property Rate Ordinance (the Ordinance), which abolished indirect taxes and, in their place, imposed a one per cent flat tax on the combined value of taxpayers’ income and property. The Ordinance was heralded as ushering in a new era of just and equitable taxation. It was repealed only six months later.

For reasons unknown the history surrounding this fiscal revolution has been largely forgotten, and most modern commentators believe that New Zealand’s first income tax was imposed by the Land and Income Assessment Act 1891. In fact, the Ordinance preceded that Act by almost half a century. It therefore also gave New Zealand the distinction of being one of the fist British colonies to impose a tax on income. This article examines the events that led to the creation of the Ordinance, the way in which the tax operated, and the factors that led to its downfall.

Article

Law that is Pro Se (Not Poetry): Towards a System of Civil Justice that Works for Litigants Without Lawyers

By William Fotherby

The law applies equally to everyone — even to those without lawyers. But not only is law ubiquitous, it is also complex, and often the arbiter of matters in which the stakes are very high. Thus, in legal matters, the prudent action is to retain a lawyer. Relying on one’s own auspices to navigate safely legal shoals is a foolish decision, indeed.

Yet, both in New Zealand and in other jurisdictions, the number of those facing courts unrepresented is growing. What some have labelled the “Pro Se Phenomenon” has been, since the mid-1990s, the subject of much discussion from academics, judges, law commissions and bar associations. In Australia, the question of how to cope with this influx has been labelled by one judge “the greatest single challenge for the civil justice system at the present time”. In England and Wales, the problem has been the subject of in-depth study since as far back as the influential Woolf Report. Canadian courts have been iterating their responsibilities in these circumstances for nearly two decades, while in the United States, many lower-level courts have made wide-ranging reform to their court services to accommodate better those litigants who represent themselves.

By comparison, New Zealand’s response has been muted. This article therefore seeks to advance this discourse, at least in the context of unrepresented litigants within the civil jurisdiction. Nevertheless, much of the discussion is also relevant to unrepresented criminal defendants.

Article

Fixing the Price at Liberty: The Case for Imprisoning Price-Fixers in New Zealand

By Alix Boberg

On 27 January 2010, the Ministry of Economic Development (MED) released a discussion document on the potential criminalisation of cartels in New Zealand. The document canvasses options to detect and deter cartels and concludes that there is a prima facie case for criminalisation, before delving into issues surrounding the definition and practical implementation of a cartel offence. Publication of the document came as no surprise. In August 2009, Prime Minister John Key remarked that criminalisation of cartel behaviour was a legitimate issue for New Zealand to consider in light of Australia’s enactment of a cartel offence. The policies subsequently finalised in the Single Economic Market Outcomes Framework predictably included a medium-term goal of harmonising Australian and New Zealand penalties for restrictive trade practices — including hard-core cartels.

Article

The Right to Life and Public Authority Liability: The Bill of Rights, Personal Injury and the Accident Compensation Scheme

By Zoe Brentnall

It is not difficult to find examples of where a dangerous person has harmed another as a result of a course of action chosen by a public authority. Prominent incidents include the death of teenager Liam Ashley at the hands of another inmate while being transported by the Department of Corrections; the murder of Mary Hobson by parolee William Bell when the Probation Service permitted Bell to work at an RSA; and the shooting of Karl Kuchenbecker by notoriously violent offender Graeme Burton while Burton was on parole. Some of these instances may simply be tragic examples of the unpredictability of human conduct and testament to the unenviable task with which bodies like the Parole Board are charged. However, an equal number may be the product of carelessness or incompetence by the public authority designated with the responsibility of managing these individuals. Deciding whether a particular case falls into the former or the latter category raises two questions: did the public authority owe the victim a duty to protect him or her from the perpetrator? And, if so, was this duty fulfilled?

Article

The Law Governing Letters of Credit

By Anthea Markstein

Letters of credit are frequently used to effect payment in commercial transactions where parties are resident in different jurisdictions. While it seems prudent for parties to give careful consideration to the governing law of these contracts, in reality, letters of credit generally make no provision for a governing law. Furthermore, the Uniform Customs and Practice for Documentary Credits (UCP) released by the International Chamber of Commerce makes no mention of a governing law for the letter of credit contract.

This article argues that finding a governing law that provides legal certainty and has a close connection to the contract is vital in determining a governing law in the absence of choice in the letter of credit context.

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

One Small Step for Private Law Remedies, One Giant Leap for an Infant Court: Couch Episode II

By Benedict Tompkins

The decision of the Supreme Court in Couch v Attorney-General (Couch)is of double significance: it is an assertive (re)clarification of the role and boundaries of exemplary damages for negligence, and it is the first time that the Court, only six years out of the parliamentary womb, has directly overruled a decision of the Privy Council on a New Zealand appeal. In relation to both of these major issues, the five separate judgments delivered are marked by varying degrees of divergence of judicial opinion. Although the pleadings in the case at hand meant that it had no bearing on the result, the split regarding exemplary damages is indicative of an area of law where polar views are supported by equally defensible and cogent arguments. On the one hand, exemplary damages are seen as an aberration; on the other, they are viewed as being consistent with underlying principles of (at least) tort law. Following Couch, for now at least, the former of those views, and the results that it entails for the flavour of negligence liability in this country, underlies the law in New Zealand.

Judicial Bias: Saxmere Co Ltd v Wool Board Disetablishment Co Ltd

By Patrick Lily

A routine judicial appointment to the New Zealand Court of Appeal effective from February 2007 could, at that time, scarcely have been seen as the beginning of a series of legal and constitutional firsts. Yet, some three years later — having been elevated to the Supreme Court in the interim — Justice Bill Wilson has been mired in allegations of bias relating to his financial involvement with counsel appearing before him in the Court of Appeal. In Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (Saxmere (No 1)) and Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) (Saxmere (No 2)), the Supreme Court confirmed the test for apparent bias, formed different conclusions on the facts as they emerged and took the highly unusual step of recalling one of its own judgments in the interests of justice. One commentator has already labelled Saxmere (No 1) a “landmark” decision. The Saxmere saga has seen the New Zealand Supreme Court pass judgment on one of its own members’ conduct and has initiated the appointment of a Judicial Conduct Panel for the first time. Intense media interest and editorialising have compounded an already extraordinary event. Although allegations of judicial bias are not unknown to the New Zealand legal system, the wider implications and subsequent developments arising from this case, traversed below, have elevated the Saxmere saga into a class of its own.

Commerce Commission v Telecom Corp of New Zealand Ltd

By Rachel McMaster

In Commerce Commission v Telecom Corp of New Zealand Ltd (Telecom (SC)), the Supreme Court clarified New Zealand’s position on abuse of market power. The case was closely followed by the profession, due to indications that the Court would use the opportunity to reform this area of competition law. In the event, however, Blanchard and Tipping JJ delivered a commercially sensitive judgment upholding existing New Zealand authorities. The counterfactual test is now confirmed as the correct approach to assessing allegations of market power under s 36 of the Commerce Act 1986.

Legislation Notes

The New Zealand Tax Reforms of 2010

By Amy Tiong

Prisons for Profit: The Corrections (Contract Management of Prisons) Amendment Act 2009

By Elizabeth Chan

Book Reviews

Directors’ Powers and Duties – Peter Watts

By Michael O’Brien

Privacy Law in New Zealand – Stephen Penk and Rosemary Tobin (eds)

By Lewis Mills

Contract as Assumption: Essays on a Theme – Brian Coote and Rick Bigwood (eds)

By Mark Tushingham