Special Feature

Auckland University Law Review 50th Anniversary Alumni Dinner Speech

By Justice Mark Cooper

In his speech, his Honour reflects on his own experience at the Faculty of Law and offers insightful comments on the future of law reviews (and the law generally).

Special Feature

Life as the Attorney-General: Being in the Right Place at the Right Time

By Paul East

In his 2016 Symposium speech, the Rt Hon Paul East QC draws on his own experience to reflect on life as the Attorney-General.

Special Feature

A Brief History of the Review

By Kayleigh Ansell and Jayden Houghton

In 2017, the Auckland University Law Review celebrated its 50th anniversary. To commemorate this milestone, the Faculty of Law asked us to write a brief history of the Review. By delving into 50 years’ worth of Editors’ Notes, old computer files and boxes of documents (which had literally collected dust), we sought to uncover aspects of the Review’s history which might otherwise be forgotten. With a half-century’s worth of material to canvass, what follows is a necessarily brief examination of the Review’s history, development and ongoing legacy. Nevertheless, this history contains a great deal of information for anyone interested in the Review’s back-story and traditions — particularly incoming Editors and Managers who wish to take inspiration from their predecessors and understand why we do what we do. For our valued alumni and other readers, we hope this history is as interesting for you to read as it was for us to produce.

Article

Awarded the MinterEllisonRuddWatts Writing Prize

Should Midwives be Held to a Different Standard of Care, Given New Zealand’s Unique Autonomous Midwife-led Framework?

By Cherry Ngan

Under New Zealand’s maternity framework, a Lead Maternity Carer (LMC) is responsible for a woman’s maternity care. The LMC is typically a midwife. This autonomous midwife-led model is shared only with the Netherlands - in other countries, maternity care tend to be medical-led. But recent events have cast doubts upon the quality and safety of midwife-led care. This article examines whether the standard of care expected of New Zealand midwives is appropriate, given our unique framework. New Zealand’s maternity framework intended to enable women to choose between a midwife and a general practitioner with an obstetric certification (GPO) as their LMC. However, the fwnding structure has caused nearly all GPOs to leave maternity services. Thus, women are effectively forced to choose a midwife and are deprived of a GPO’s higher standard of care. This contradicts the philosophy behind imposing different standards of care on different healthcare professionals, which assumes that women have a choice in provider. It is also unfair to women, who would expect the same standards of care from health practitioners that do the same job. This article examines various solutions to this choice contradiction. It concludes that either choice should be reintroduced into the maternity framework, or the standard of midwives should be raised.

Article

The Penalty Doctrine: Protective or Punitive?

By Anna Chernyavskaya

When contracting parties agree to a specified sum payable upon breach, typically termed a liquidated damages clause, they avoid the cost of damages litigation and facilitate a seamless trading environment. The equitable doctrine of penalties has interrupted this right, enabling a court to strike down such a clause if it is enforced in terrorem over the head of the breaching party. For over a century, courts have grappled with what exactly deems a clause to be terrorising and in what circumstances the penalty doctrine ought to be invoked. This article explores the classic debate between the need for certainty and the need for substantive justice in light of recent developments in Australia and the United Kingdom. These developments have challenged the jurisdictional scope and practical operation of the doctrine’s rules. The author argues that the application of the doctrine ought to be restrained to situations of true injustice in order to minimise its encroachment on the freedom of parties to contract on the terms of their choice. Lastly, this article considers the theoretical and practical significance of the doctrine’s operation on drafting practices in the sphere of commerce.

Article

Once More unto the Breach [of a Trust]: An Analysis of the Academic Battle over Available Remedies for a Misapplication of Trust Funds

By Jack Davies

This article canvasses recent legal developments regarding remedies available for a trustee’s misapplication of trust funds. Traditionally, when faced with such a breach, a beneficiary would seek the strict remedy of falsification following the taking of a common account. This action would make the trustee in breach restore to the fund all moneys wrongfully dispersed, irrespective of whether they would have been lost had the breach not occurred. The courts would simply enforce the trustee’s primary duty to account for trust property placed under their control. However, the House of Lords in Target Holdings Ltd v Redferns (A Firm) and the Supreme Court of the United Kingdom in AIB Group (UK) plc v Mark Redler & Co Solicitors have suggested, inter alia, that a but-for test of causation now applies to such claims. If the moneys would have been lost in any event, they are irrecoverable. This innovation is the primary topic of this article. After giving an overview of the trust concept, the falsification remedy and the cases, I ask whether the reasoning regarding but-for causation in Target Holdings and AIB is grounded in sound analysis. I conclude it is not, despite my view that the actual outcomes of the cases are correct. As such, I explore how the cases might be rationalised and interpreted so that the strict remedy of falsification retains its place in the law. I offer two alternative theories.

Article

Money Remitters Left Out in the Cold: Blanket De-Risking Policies, Counterterrorism and Government Intervention in New Zealand

By Riki Fujii-Rajani

The Anti-Money Laundering and Countering Financing of Terrorism Act 2009 was enacted to adopt international guidelines for combating money laundering and terrorism financing. An unintended consequence of the Act is the practice of commercial banks indiscriminately refusing to provide banking services to money remitters, citing compliance costs associated with the Act — while offering remittance services at a significantly higher price compared with money remitters. The 2016 High Court decision of E-Trans International Finance Ltd v Kiwibank Ltd found that such blanket de-risking policies were legal, but also that issues surrounding remittances were a matter of policy choices. This article explores the causes and consequences of blanket de-risking policies against money remitters and concludes that the New Zealand government should take legislative action. The suitable form of intervention depends on the desired result. If money remitters are to close and exit the market, the government must address the consequences of blanket de-risking policies: higher prices; the impact on economic and social development in recipient countries; and the proliferation of informal channels. If money remitters are to remain open, the risks posed by money remitters must be addressed. Regardless of the solution adopted, blanket de-risking policies should be addressed by the government because they have a negative impact on migrant communities and recipient countries, and can proliferate informal channels that facilitate financing of terrorism.

Article

Legal Measures to Address the Impacts of Climate Change- induced Sea Level Rise on Pacific Statehood, Sovereignty and Exclusive Economic Zones

By Kya Raina Lal

Historically, states have ceased to exist due to conflict, conquest or politics. However, the 21st century is witnessing an additional force capable of redrawing world maps entirely. Climate change and climate change-induced sea level rise will radically alter coastlines and international boundaries; displace millions of people; and, as we are now witnessing, inundate entire islands to the point of extinction. In the Pacific, a region of 22 self-governing nations and 10.5 million people, many low-lying islands and coastal areas are facing the very real possibility of losing their coasts — threatening their very existence. For the most part, issues of displaced peoples and the environmental, economic and security implications of climate change dominate the climate change discourse. This article instead focuses on the legal impacts and implications that sea level rise will have on the existence of Pacific Island statehood, sovereignty and maritime territories. Under contemporary legal frameworks, Pacific peoples face a double harm where climate change deprives them of their land and international law deprives them of their seas. Therefore, this article will examine what sinking islands mean in law, and what they mean for Pacific peoples, their recognition in law and their claim to land and sea territories. This article draws on international law, including the United Nations Law of the Sea Convention, the doctrine of historic waters and regional customary international law.

Article

Who Owns Your Cells? A Theoretical Examination of Property Rights over Human Genetic Material

By Rayhan Langdana

The increasing use of human genetic material in medical research raises important and urgent questions about ownership. This article argues that the broad lack of informed consent present in medical research using human genetic material undercuts individuals’ free will. Further, the conventional view that such genetic material is incapable of having property rights attached to it inhibits research participants’ personhood. This article advocates for the recognition of information property rights over human genetic material, and concludes that such an approach is consistent with theories of property rights and ownership posited by Georg Hegel and Margaret Jane Radin.

Article

A Normative Evaluation of Algorithmic Law

By Timothy Robinson

Advances in technology have enabled the ability for law to be prescribed to specific circumstances according to personal attributes orfact-specific information. Law can be promulgated by a predictive algorithm which is perfectly calibrated to produce some balance of outcomes. This algorithmic law has two characteristics. It is, first, law that is highly tailored to individuals and circumstances according to a predictive model. It is, secondly, law that is dynamic and evolves over time to respond to new information. By tying law to risk or a prediction of behaviour, algorithmic law can be extremely efficient at achieving desired outcomes, which might range from reducing traffic fatalities to maximising wealth. This article presents a normative evaluation of algorithmic law through analysing two legal values that algorithmic law might undermine; the rule of law and freedom. For rule of law, it is shown that algorithmic law can undermine equality before the law and affect legal certainty. From a freedom perspective, algorithmic law can subjugate the freedom of individuals for the majority interest in new ways, and can act harshly to restrict an individual’s freedom based on their past, possibly unrelated, choices. This article identifies algorithmic law as a distinct and novel category of law that has both immense potential for beneficial outcomes, and unique ability to subvert legal values in new ways.

Article

What are Human Rights? Grounding Human Rights in Dignity, Worth or Sacredness

By James Rouse

The jurisprudence of human rights is deeply troubled This article explores how consensus on even some basic jurisprudential points remains elusive, and how this, in turn, undermines the entire enterprise — stultifying progress, reducing effectiveness, and generating trenchant scepticism. It will suggest that human rights ought not to be jettisoned, but rather refined with their conceptual maladies remedied It then seeks to lay some basic foundations for doing so. In particular, it suggests that human rights cannot be grounded in collective consensus, nor in any capacity that humans are said to universally possess. More broadly, it argues that strictly secular accounts appear to inevitably lack the conceptual resources necessary to ground human rights, that such an endeavour may yet be possible within a theistic framework and that Richard Rorty’s call to abandon conceptually grounding human rights — and instead pursue an explicitly ethnocentric, European agenda — should be thoroughly rejected.

Case Notes

A “Legal Backstop” for Historical Māori Grievances: Proprietors of Wakatū v Attorney-General

By Miriam Bookman

On 28 February 2017, the Supreme Court delivered its long-awaited decision Proprietors of Wakatū v Attorney-General. By a 4-1 majority, in a judgment no less than 954 paragraphs, the Supreme Court found that the Crown can owe equitable duties to Māori over specific interests in land and that the Crown had breached those duties to customary landowners in the Nelson region. This case note assesses how the Supreme Court came to its decision. It begins in Part II by discussing the development of Crown-Native fiduciary duties in Canada. Part III then canvasses previous relevant New Zealand jurisprudence. Part IV outlines the historical context of the Wakatū claim and the lower court decisions. Parts V and VI address the obstacles facing the Supreme Court in light of this background and how the Court overcame them. Parts VII and VIII discuss the significance of the Wakatū decision, exploring how an enforceable Crown-Māori duty challenges political constitutionalism and may apply in the future.

The Capital/Revenue Distinction, Feasibility Expenditure and Trustpower Ltd v Commissioner of Inland Revenue

By Timothy Plunkett

In Trustpower Ltd v Commissioner of Inland Revenue the New Zealand Supreme Court was asked to determine the nature of feasibility expenditure incurred by Trustpower Ltd investigating the construction of two hydro dams and two wind farms and whether it was deductible. The Supreme Court had to determine the distinction between capital and revenue in an area (feasibility studies) with few case authorities. The case presented the Court with its first opportunity to confirm the approach to distinguishing between capital and revenue both generally and in relation to feasibility expenditure. Although the Court did not discuss the capital/revenue distinction in general, the decision nevertheless remains important. First, the Court confirmed, by its silence on the matter, that the existing authorities on the capital/revenue distinction in general remain good law. Secondly, the Court held that feasibility expenditure is not deductible unless it falls into one of four defined categories. The definitions for these categories are not entirely clear. Therefore, the decision creates uncertainty about the deductibility of feasibility expenditure. It is also likely to increase the incidence of black hole expenditure. In light of these two policy implications, legislative reform is needed to clarify when feasibility expenditure is deductible.

Legislation Notes

The Judicature Modernisation Legislation

By Dino Muratbegovic

Multilateral Tax Convention to Prevent Base Erosion and Profit Shifting

By Samuel Johnston

Book Review

Freedom of Religious Organizations – Jane Calderwood Norton

By Sam Bookman