Article

To What Extent Can the Right to Asylum Be Limited by a State’s Sovereign Right to Control Its Borders? A Comparative Assessment of the Lawfulness of European National Asylum Law and Procedure

By Laura Bacon

The shrinking global asylum space is no longer able to accommodate those in need of international protection. Instead of providing refuge via admission and recognition, European Union Member States are increasingly adopting robust measures to divert refugee inflows elsewhere and obstruct access to the asylum procedure. To engage with these challenges at a policy level, it is critical to understand the extent of an individual’s right to asylum, the corresponding obligations on states to observe customary international and human rights law principles, and the limitations imposed by a state’s sovereign right to regulate entry to its territory. Grounded in a human rights framework perspective, this article examines the compliance of comparative European national asylum procedures with regional and international refugee and human rights law standards. It proposes that for the European Union to be able to respond collectively to one of the worst humanitarian crises of our time, greater solidarity, consistency and fair responsibility in this area of European policy-making are needed now more than ever.

Article

Forget About the Right to be Forgotten: How About a Right to be Different?

By Amanda Cheng

Every day, people conduct Google searches. More often than people would admit, these searches are for specific individuals. As users, we wish to uncover as much information as possible about the people we search. But as data subjects, we wish to retain our privacy and keep our past in the past. Concerns about data protection, privacy and reputation curation will only accumulate as we spend more time online. To address these concerns properly, we need to rise above scaremongering about the right to be forgotten. We must think critically about how we want to use the web, and find practical ways to balance the competing interests at play. To this end, this article critically analyses the Court of Justice of the European Union ‘s 2014 judgment Google Spain v Agencia Espanola de Protección de Datos, as well as the General Data Protection Regulation. It suggests that the right to be forgotten should be replaced with a “right to be different” - a solution that heavily emphasises worldwide applicability, permanence and longevity.

Article

The Meaning and Purpose of the Secular Clause in the Education Act 1877

By Daniel Herring

Despite prescribing that education would be wholly secular, New Zealand’s Education Act 1877 allowed public school buildings to be used outside school hours for purposes not connected with secular education. This was exploited by those seeking to reintroduce religious instruction into New Zealand schools by saying prayers or giving religious instruction to children while the school was officially closed. The secular clause was chosen primarily to prevent sectarian strife, but was also partly the result of strong disagreement between those who supported religious teaching in public schools and those who supported denominational schools. This article examines the Act’s legislative history, concluding that its use to reintroduce religious instruction and prayer outside of school hours was - or should have been -foreseen by Parliament at the time of its passing.

Article

When in Rome (II): Jurisdiction, Choice of Law and Foreign Copyright Infringement in New Zealand Courts

By Adam Holden

The New Zealand approach to cases involving foreign copyright infringement requires considerable reform. The traditional model, consisting of an automatic refusal to entertain jurisdiction and an outdated choice of law rule - the double actionability rule - is obsolete and inappropriate in the globalised intellectual property climate. This article proposes adopting flexible jurisdictional principles based on the existing forum conveniens and forum non conveniens discretion of New Zealand courts. It also proposes a new choice of law rule, the law of the place for which protection is claimed (lex loci protectionis), derived from the Rome II Regulation.

Article

Much Obliged: An Assessment of Governmental Accountability for Prisoners’ Rights in New Zealand’s Private Prisons

By Rebecca Kennedy

A series of damning incidents and allegations of mismanagement in privately managed prisons in 2015 have triggered an important discussion about the nature of prison management in New Zealand. This article examines the extent to which the New Zealand Government is obligated to safeguard and uphold prisoners’ rights under the prison privatisation regime enacted in the Corrections (Contract Management of Prisons) Amendment Act 2009. It proposes that while the ambit of the Government’s managerial role is different under this regime, the Government retains complete accountability for prisoners’ rights. It further assesses the strengths and weaknesses of New Zealand’s prison privatisation regime, concluding it is inadequate for safeguarding prisoners’ rights, and recommends ways to address this inadequacy.

Article

The Contested Ethics of Mainstream Reporting of Terrorism in the Social Media Age

By Soyeon Lim

The Islamic State of Iraq and the Levant (ISIL) is a movement that has continued to rattle news media in recent times. Since this article’s first draft was completed in July 2015, ISIL has claimed responsibility for more large scale, high profile terrorist attacks, such as those in Paris, Beirut, Tunis and Brussels. Each time, chilling headlines and even more chilling photographs of ISIL’s brutality appeared on the front pages of newspapers and their online counterparts.

Article

Extending Directors’ Duties to the Natural Environment: Perfect Timing for Greener Companies in Aotearoa New Zealand?

By Julia Maskill

This article examines the credibility of potential law reform in Aotearoa New Zealand that would extend directors’ duties to the natural environment. Present company law gives first priority to companies’ interests. Together with short-term shareholder expectations, this results in preference for shareholder value over corporate environmental sustainability. Some critics of change denounce interventionist changes to corporate governance, arguing that capitalism requires investor protection and freedom from regulation. However, some countries with flexible interpretations of capitalism provide for consideration of both environmental and shareholder interests. In Aotearoa New Zealand, recent reinforcement of directors’ accountability for the health and safety of individuals demonstrates compromise of shareholder value for public policy reasons. This article argues that the global scope of threats to health and safety created by environmental degradation provides an even stronger case for mandatory corporate environmental sustainability.

Article

Awarded the MinterEllisonRuddWatts Writing Prize

Rectification for Unilateral Mistake: Time for a Conceptual Revision

By Bridget McLay

The law regarding rectification for unilateral mistake is in an uncertain state. What exactly is required to justify the courts’ rectification and enforcement of an agreement where only one party has made a mistake? The orthodox position is that the non-mistaken party must know of the mistake at the time of signing. Yet confusion remains as to whether constructive knowledge will suffice, and the extent to which unconscionability is a separate element. In an attempt to achieve greater clarity, Professor David McLauchlan argues that questions of knowledge and unconscionability should be subordinate to the essential question of whether the promisee was led reasonably to believe that their terms were being assented to; therefore, actual knowledge of the mistake is neither required nor sufficient. This article submits that, present uncertainties in this area of law notwithstanding, McLauchlan’s proposal should not be adopted for reasons of principle and practicality. Attention will also be given to Henry J’s decision in Tri-Star Customs and Forwarding Ltd v Denning that equitable rectification for unilateral mistake does not survive the passing of the Contractual Mistakes Act 1977. This article submits that unilateral mistake has survived the Act and is based on the promisor’s knowledge of the mistake, such that their conscience is tainted by their attempts to rely on the written agreement.

Article

Political Litigation and the Politics of Litigation

By Shayne Misselbrook

In traditional accounts of Westminster separation of powers, courts occupy a neutral sphere outside of political discourse. The judiciary is the independent, neutral, non-political applier and interpreter of the sovereign will of Parliament. In this context litigation undertaken as part of a “political campaign” uncomfortably straddles the law-politics dichotomy and courts hearing such cases encroach on Parliament’s rightful role. This article argues that, in litigation, courts negotiate and define social norms, contrary to the traditional understanding of the role of the courts. Litigation is a political act when a litigant advances both a normative and descriptive account of social interaction that is resolved through the use of state power. This article draws on constructivist theory to examine how, in occupying these social roles, courts and parties transcend any law-politics dichotomy and demonstrate that the litigation process is firmly embedded in political discourse.

Case Notes

Hotchin v New Zealand Guardian Trust Co Ltd: Clarifying the Law on Contribution

By Jack Alexander

Hotchin v New Zealand Guardian Trust Co Ltd is the latest decision to arise out of the collapse of Hanover Finance Ltd. The Supreme Court clarified the law on contribution and the requirement that the liability of the two tortfeasors be in respect of the “same damage”. In a 3-2 split, the Court held that what is required is not a comparison of the nature and extent of the liability of each party, but rather a broad analysis of the consequences of their respective actions. The Supreme Court accordingly held that the High Court and Court of Appeal were wrong to strike out Mr Hotchin’s claim for contribution. On the one hand, the decision — though limited by the nature of the pleadings — represents a welcome clarification to the law on contribution in New Zealand. On the other, it promises to increase the number of claims for contribution. This may give rise to problems in practice. The courts will need to develop safeguards to ensure that frivolous contribution claims do not undermine the integrity of New Zealand’s justice system.

Are the Floodgates Open? A Brief Analysis of the Supreme Court’s Decision in Clayton v Clayton [Vaughan Road Property Trust]

By Jack Alexander

This case note considers the Supreme Court’s decision in Clayton v Clayton [Vaughan Road Property Trust]. In holding that powers bestowed under a trust deed can be considered property in terms of the Property (Relationships) Act 1976, the decision has wrought a clear change to New Zealand law. The decision is likely to see further claims made by spouses over assets previously thought out of reach, with potential ramifications in other areas of law such as insolvency. While the decision is to be commended in several respects, I caution it should not be extended too far. Further, the Supreme Court regrettably missed an opportunity to clarify the law regarding the validity of trusts that bestow wide powers on a trustee or settlor.

Commissioner of Inland Revenue v Diamond

By Ana Lenard

In New Zealand, s YD 1 of the Income Tax Act 2007 (the Act) governs the tax residency of natural persons. If a person is a tax resident under the Act, his or her worldwide income is taxable in New Zealand. Tax residency is usually obvious under the bright-line rules in s YD 1: a person is a New Zealand tax resident if he or she is present in the country for more than 183 days in a 12-month period; tax residency ceases when a person has been absent from New Zealand for over 325 days. Yet irrespective of the bright-line rules, a person who has a “permanent place of abode” in New Zealand is also a tax resident. This can make tax residency difficult to determine, as “permanent place of abode” is not defined in the Act. Commissioner of Inland Revenue v Diamond is the first decision in which the Court of Appeal has considered what it means to have a permanent place of abode in New Zealand. This is significant because, although double tax agreements or foreign tax credits often provide relief from double taxation, such relief may not always be available, may only be partial and is in any case inconvenient to claim. Moreover, those who incorrectly assume they are not tax residents will face tax liability, interest and penalties.

Legislation Note

Vulnerable Children Act 2014

By Andrew Grant