Special Feature

The Constitutional Review and Entrenchment of the Bill of Rights

By Stephen M Hunter

These notes were prepared for a talk given at the Auckland University Law Review Alumni Symposium on 28 September 2012. The purpose of the symposium was to invite alumni of the Review — of which I am one as a former Editor-in-Chief — to revisit their student work on a particular legal issue and to reflect on how the law or their views on it have changed over the intervening years. The theme of the 2012 Symposium was “Constitutional Review”, chosen to align with the review of New Zealand’s constitutional arrangements being undertaken by the Government appointed Constitutional Advisory Panel.

Special Feature

A New Constitution Act

By Dr Wayne Mapp

Over the last 30 years, New Zealand has transformed its constitutional framework. This has been a quiet revolution. The cumulative effect of this transformation has been to create a distinctive set of constitutional arrangements for New Zealand. However, despite all the changes, many New Zealanders are dissatisfied with their constitutional structure. This is why the Government established the Constitutional Advisory Panel in 2010. There is a sense that more needs to be done to bring together the important elements of the constitution. The establishment of the Panel has provided the opportunity to advocate for a more comprehensive Constitution Act to replace the existing legislation, which was enacted in 1986 as an initiative by Deputy Prime Minister Geoffrey Palmer.’ The public consultation being undertaken by the Panel has given me the opportunity to revisit the Member’s Bill that I had drafted as a Member of Parliament in the National Opposition in 2004. The updated draft Bill is appended to this article.

Article

The Criminal Character: A Critique of Contemporary Risk Assessment and Preventative Detention of Criminal Offenders in New Zealand

By Hugh Magee

The use of criminal offending risk assessment technology is a problematic area of criminal justice in New Zealand. The root of most problems associated with risk assessment technology lie in its inherently limited ability to predict future criminal offending and its inability to take into account the rehabilitation of offenders. The treatment of risk assessment technology by courts and parole boards is another consideration, given an apparent tendency by courts to regard risk assessments as tantamount to predictions of future conduct. These problems have concerning implications for the application of risk assessment technology in the context of preventive detention. Preventive detention is a sentence designed to incarcerate offenders indefinitely, based on an assumption that the offender is too “dangerous” to be released. Nevertheless, if the basis for that assumption is a potentially flawed prediction of future conduct, a sentence of preventive detention will contravene the freedom from arbitrary detention.

Article

Deceit in the Transvaal? The Case of Burrows v Rhodes and Jameson

By James Ruddell

In 1899, important legal principle and issues of political and historical significance came together in the English High Court. Cecil Rhodes and Leander Starr Jameson were sued in deceit for allegedly inducing a soldier’s participation in the infamous Jameson Raid into the Transvaal Republic. In the reported demurrer, the Court rejected the defendants plea that the claim arose ex turpi causa, thereby establishing an important exception to the illegality defence. This article seeks to provide an historical analysis of this much cited case. Despite frequent assumptions to the contrary, the action eventually went to trial and received considerable publicity. In addition to demonstrating that the largely unsubstantiated allegations of a former mercenary unfairly tarnished the reputations of Rhodes and Jameson, these contemporary reports also give us insight into public opinion in the months leading up to the Second Boer War.

Article

Taking Advantage of Market Power in New Zealand: Searching for a New Approach

By Paul Culliford

“O, it is excellent to have a giant’s strength, but it is tyrannous to use it like a giant”. Isabella’s musing in Shakespeare’s Measure for Measure encapsulates one of the most difficult issues facing competition law and policy — when can it be said that a firm has taken advantage of market power for an anti-competitive purpose? Section 36 of the Commerce Act 1986 prohibits a firm with a substantial degree of market power from taking advantage of that power for certain exclusionary or restrictive purposes. Unfortunately, the courts have weakened s 36 by applying a narrow and difficult “counterfactual” test. This article traces the development of the counterfactual test and considers whether alternative tests are more appropriate. It then examines whether legislative reform is required to give s 36 more teeth.

Article

The Vulture Swoops and Devours its Prize: the Unsatisfactory Law of State Immunity in Democratic Republic of Congo v FG Hemisphere Associates LLC

By Elizabeth Chan

In June 2011, the Hong Kong Court of Final Appeal issued a landmark decision on state immunity in Democratic Republic of the Congo v FG Hemisphere Associates LLC, in which the majority resiled from restrictive immunity — a doctrine which holds that foreign states do not enjoy immunity from jurisdiction and enforcement in respect of commercial transactions. This article argues that as a matter of constitutional principle and commercial fairness, restrictive immunity is preferable to absolute immunity. The decision of the majority to refer the question of state immunity to the executive branch can be seen as an infringement of judicial independence. Further, in the global economy, restrictive immunity is necessary to assure commercial actors that states will be held accountable for their commercial promises. An inclusive definition of the commercial exception would make it easier for commercial actors to sue foreign states and to enforce judgment against them. This approach to restrictive immunity, advocated in this article, is the clearest path to commercial fairness and respect for the rule of law.

Article

Company Contracting: Lord Neuberger and the Deprecation of Constructive Knowledge

By Olivia de Pont

In Thanakharn Kasikorn Thai Chamkat v Akai Holdings Ltd, Lord Neuberger considered the test governing reliance on apparent authority. His Lordship rejected a reasonable inquiries test, finding that a party will lose the ability to rely on apparent authority only if that party had actual knowledge of the lack of authority or if its belief in authority was dishonest or irrational. However, it is submitted that Lord Neuberger’s made three key errors in his reasoning. First, the judge wrongly distinguished a line of cases that appeared to support a reasonable inquiries test on the basis that they were limited to the outdated indoor management rule. Secondly, the judge erred in stating that constructive knowledge has been deprecated in the context of commercial transactions. Finally, while the judge rightly stated that constructive knowledge is no defence in cases of estoppel by representation, apparent authority involves only a weak form of estoppels by representation and is therefore distinguishable. This view of the common law aids interpretation of s 18 of the Companies Act 1993, suggesting that constructive knowledge continues to apply to those engaged in arms’ length negotiations.

Article

Lock Them Up and Throw Away the Vote: Civil Death Sentences in New Zealand

By Alex Mackenzie

In late 2010, the New Zealand government removed the rights of all prisoners to vote by making them ineligible to register on the electoral roll. Despite being in breach international law, no justifiable objective was provided for the measure. This article advocates the repeal of this law for four reasons. First, universal suffrage is the standard set at international law. Secondly, the justifications for denying prisoners the right to vote do withhold proper scrutiny. Thirdly, the parliamentary process which gave rise to the law was defective. Finally, the law is both arbitrary and disproportionate in its application and therefore inconsistent with the New Zealand Bill of Rights Act 1990. The article concludes that the denial of voting rights to prisoners indicates a fundamental disregard. to the most fundamental rights of New Zealand citizens.

Article

Rethinking Jurisdiction Clauses in New Zealand: The Hague Convention and Beyond

By Michelle Ong

When a dispute arises out of cross-border transactions, two pressing questions also arise: what is the most favourable choice of law; and what is the most favourable choice of forum? This article focuses on the latter consideration in examining jurisdiction clauses in common law systems, particularly from a New Zealand perspective. As befits their name, jurisdiction clauses have a procedural (and associated substantive) impact on both the existence and exercise of jurisdiction. Yet an analysis of the current treatment of jurisdiction clauses reveals that the actual impact of the jurisdiction clause is troublingly inconsistent and falls short of its theoretical value. This paper seeks to restore the value of such clauses by reframing them according to contractual rights; revising the discretionary tests used in respect of such clauses; and extending the commendable trans-Tasman scheme through the Hague Convention on Choice of Court Agreements to implement these reforms and more. Ultimately, the reforms advanced in this article should restore a valuable cost and risk-allocating clause to the disposal of businesses and individuals in New Zealand and beyond.

Case Notes

Takamore v Clarke: A Missed Opportunity to Recognise Tikanga Māori

By Rebecca Walsh

Takamore v Clarke concerned the sensitive issue of where and how a loved one should be buried. The lack of consensus among immediate family and wider whānau and hapū meant that Takamore engaged several issues regarding the intersection of tikanga Māori, burial customs and the Common Law of New Zealand. The Supreme Court’s decision demonstrates the challenges courts face in attempting to resolve burial disputes when one party is Māori. By exploring the approaches of the Supreme Court, the Court of Appeal and the High Court, this case note focuses on the Courts’ treatment of how tikanga interacts with the common law. It will also consider the implications Takamore may have on future judicial recognition of tikanga. The author queries whether this case represents another missed opportunity to recognise tikanga Māori at common law.

Commissioner of Taxation v Qantas Airways Limited

By Mathew Consedine

The High Court of Australia recently denied Qantas Airways Ltd and Jetstar Airways Pty Ltd (Qantas) a Goods and Services Tax (GST) refund of AUD 34 million. The High Court of Australia held that Qantas must pay the GST on non-refundable (or refundable but unclaimed) domestic airfares received from passengers who reserved and paid for flights but failed to take their flights. This is arguably the most important GST case from a Commonwealth court in recent times. One Australian commentator even ventured to say that Commissioner of Taxation v Qantas Airways Ltd (Qantas) “will impact almost every commercial transaction entered into every day in Australia”. Given the effect that this case may have on GST in Australia, and the similarity between the New Zealand and Australian GST regimes, it is important to consider the potential consequences this decision may have on New Zealand taxpayers and consumers.

Legislation Notes

The Crown Minerals Amendment and Marine Protest

By Anna Devathasan

Criminal Procedure Act 2011

By Luke Sizer

Book Reviews

Account of Profits – Peter Devonshire

By Tim Conder

Searching for the State in British Legal Thought: Competing Conceptions of the Public Sphere – Janet McLean

By Andrew McLeod