Speacial Feature

Reflections on the Future of a Changing Profession

By Sacha Judd

The issue was addressed by Sacha Judd in her Alumni Dinner speech. Sacha recounted her own experiences in the legal profession and urged us to keep pushing for change.

Article

Game of Drones: Unmanned Maritime Vehicles and the Law of the Sea

By Matt Bartlett

Unmanned maritime vehicles are revolutionising the navies of the world’s most powerful states, as rapid scientific advances and prospective military advantages drive a global surge in ‘roboticisation’. However, it is not clear how unmanned vehicles (also known as ‘maritime drones’) are governed by the Law of the Sea - or whether they are even regulated at all. This article will conduct a legal analysis of maritime drones and the United Nations Convention on the Law of the Sea (UNCLOS), along with supporting legal instruments. This analysis will suggest that there are serious ambiguities regarding the legal status of maritime drones. Most importantly, maritime drones may not fit the definition of “vessel” included in the text of UNCLOS and other instruments, meaning they are not covered by the vast majority of relevant provisions in the Law of the Sea. Even assuming maritime drones are vessels, there are other important provisions of the Law of the Sea regime that present difficulties for unmanned technology. In particular, many obligations imposed by instruments like UNCLOS, the International Regulations for Preventing Collisions at Sea (COLREGS) and the Safety of Life at Sea Convention (SOLAS) are specifically imposed on humans. Collectively, these ambiguities mean that the Law of the Sea regime does not govern maritime drones in a clear or predictable way. This article considers the risks of this legal uncertainty against a backdrop of ongoing technological advances and existing tensions in international relations. Particularly in the case of the South China Sea, misunderstandings and disagreements as to how maritime drones are governed by the Law of the Sea are inevitable. These misunderstandings risk destabilising maritime relations that are already fraught, especially as legal ambiguities undermine normal UNCLOS processes for dispute resolution. Given the seriousness and urgency of these risks, this article will argue for a new legal framework to provide clear rules for the use of maritime drones. Specifically, a formal convention and a less formal code of conduct are considered, along with the procedural barriers any new framework will have to overcome. While some of these barriers are considerable, it is clear that the existing Law of the Sea is unable to regulate maritime drones authoritatively. This raises timely and important questions about how international law should govern emerging technologies in the context of ongoing scientific advances and geopolitical instability.

Article

An Analysis of New Zealand Intelligence and Security Agency Powers to Intercept Private Communications: Necessary and Proportionate?

By Simone Cooper

The intersection of rapid technological change and global terrorism has created a problem for intelligence and security agencies that protect their home states. In response, Western legislatures have widened interception powers. This has privacy and security consequences for all users of communications technologies. This article analyses recent changes to the law governing communications interception in New Zealand and places these changes in a global and local context. It measures the Telecommunications (Interception Capability and Security) Act 2013 and the Intelligence and Security Act 2017 against the International Principles on the Application of Human Rights to Communications Surveillance. Ultimately, this article argues that the New Zealand legislative framework fails to comply with this international best practice.

Article

Addressing the Root of the Problem: Suggested Amendments to the Plant Variety Rights Framework in New Zealand

By Paige Coulter

With new developments in technology, the release of the Wai 262 decision by the Waitangi Tribunal and the widespread ratification of the International Convention for the Protection of New Varieties of Plants, the Plant Variety Rights Act 1987 is now outdated and in need of amendment. This article evaluates the current intellectual property protection available for plant varieties in New Zealand under the Act. The Plant Variety Rights Act suffers from major issues such as insufficient protection for breeders, a failure to incorporate Mjori concerns as expressed in the Wai 262 claim, a lack of clarity as to the scope of the farm saved seed exception and inconsistency with the Convention. The Act further produces undesirable incentives for the plant breeding industry by reducing biodiversity and discouraging innovation in plant variety development. The current review of the Plant Variety Rights Act must address the interests of all major stakeholders, namely breeders, farmers, Mjori and environmental groups. This article argues that New Zealand should amend the Plant Variety Rights Act to extend breeders’ rights by protecting essentially derived varieties, while also protecting the farm saved seed exception and Māori customary interests over taonga species. While this will preclude ratification of the Convention, its rigid framework is wholly unsuitable for New Zealand’s unique environmental, agricultural and cultural context anyway. Instead, New Zealand should prioritise flexibility to create a plant variety rights scheme that addresses its particular needs over accession to incompatible international instruments.

Article

A Finding of Fact? The Risks of Courts Settling Uncertain Histories

By Kayla Grant

This article asks whether law and history are at cross-purposes as disciplines. At first glance, it seems that the two seek to achieve different — and incompatible — things. Historians are loath to provide definitive answers about what happened in the past, while legal processes seek certainty and finality. This theoretical tension reveals itself in three case studies: Canadian indigenous rights litigation, the South African Truth and Reconciliation Commission and the Waitangi Tribunal. New Zealand, in particular, faces a unique issue regarding the interaction between law and history: how the Waitangi Tribunal should treat Māori modes of knowledge and incorporate Māori histories into its own reports. Ultimately, despite the apparent incompatibility, law and history do not necessarily have to be at cross-purposes. Historians need to acknowledge that courtrooms are producing just one type of history that does not preclude other stories about the past being told. Similarly, judges should be aware of the limitations inherent in their procedures and institutions.

Article

Sexual Experience and Reputation Evidence in Civil Proceedings: A Case for Reform

By Christina Laing

A well-known defence tactic in cases where allegations of sexual misconduct are made is reliance on evidence about the complainant’s sexual experience or reputation in sexual matters (SER evidence). This evidence can traumatise the complainant and perpetuate rape myths and biases in the decision-maker. To control this, Parliament has legislated to control the admissibility of SER evidence in all criminal sexual cases in s 44 of the Evidence Act 2006, and all civil sexual harassment proceedings in s 62(4) of the Human Rights Act 1993 and s 116 of the Employment Relations Act 2000. However, Parliament has failed to ensure that SER evidence is controlled in all other civil cases. This article begins by discussing New Zealand’s current approach to controlling the admissibility of SER evidence. It then considers two major difficulties with this approach. First, there are many civil cases where a defendant can rely on SER evidence without any specific legislative control. Secondly, there are inconsistencies in the current approach. For example, the rules (or lack thereof) in civil and criminal cases are different, and those practical differences are inconsistent with the underlying policy for controlling SER evidence. This article proposes extending s 44 of the Evidence Act to apply in all civil cases. It then considers the primary arguments against reform before concluding that to legitimise the underlying policy, the proposed extension is necessary.

Article

Asylum for the “Undeserving”: A Human Rights Perspective on the Refugee Convention’s Exclusion Clause

By Jade Magrath

Article IF of the Convention relating to the Status of Refugees allows a state to exclude an individual who would otherwise qualify for asylum from obtaining refugee status if they are suspected — but not convicted — of a serious domestic or international offence. The majority of academic discussion on exclusion focusses on how to ensure due process for claimants, or how best to put the exclusion clauses into practice in accordance with international public, human rights and criminal law. However, there is little literature questioning whether the exclusion clauses themselves are justifiable or desirable. This article does exactly that. It asks whether today, nearly 70 years after the Convention was drafted, the rationales for exclusion still hold water. It appraises the justifications typically provided for exclusion, and finds that they fall short of the human rights standards to which the international community has committed itself. The reader is invited to question whether the international asylum system can truly have integrity if it allows an individual to be returned to a state where they will likely face human rights abuses, or even death, simply because they have been labelled “undeserving” of protection.

Article

The Enforcement of Corporate Social Responsibility through Contractual Terms in Business to Business Contracts through the Supply Chain

By Seira Shin-Clayton

Human and labour rights abuses are endemic in the manufacturing industry and have become a global issue through the out-sourcing of the production of goods to countries with cheap and abundant labour. The movement to highlight and address human and labour rights issues in global supply chains was born in the 1990s with the media exposure of sweatshop factories linked to the supply chains of major Western companies, such as Nike. These issues persist to this day and are arguably becoming more acute. Currently, there is a lacuna in the law on the enforcement of human and labour rights standards in global supply chains as national and international state actors have not developed a comprehensive regulatory system. The responsibility is now being shifted to the corporate sector and is known as supply chain Corporate Social Responsibility (CSR). This article examines the feasibility and effectiveness of fulfilling a company’s supply chain CSR through incorporating a CSR Code of Conduct into supply contracts between purchasing companies and their suppliers. The article demonstrates that the proposed solution is feasible under New Zealand contract law and explores four different ways in which a CSR Code of Conduct could be incorporated into a supply contract. This article then presents a proposed contractual solution and identifies its potential positive and negative aspects. The overall conclusion of this comparison is that the solution is an effective means for a company to fulfil its supply chain CSR obligations.

Article

A Decile Snapshot: Socio-Economic Impact on Legal Education – University of Auckland Case Study

By Ellen Stagwood

Little information is available regarding trends in the proportion of individuals of low socio-economic backgrounds entering and succeeding in legal education in New Zealand This article combines the Ministry of Education’s secondary school decile rankings with student enrolment information obtained from the University of Auckland Evidence presented here suggests that the number of students originating from decile 9 and 10 secondary schools is significantly higher than students originating from any other decile at all stages of the LLB and LLB(Hons) programmes at the University of Auckland Meanwhile, students from the lowest two deciles in this snapshot appear to access and obtain legal education much less often than students of other decile backgrounds. Although significant limitations arise from this study’s methodology, these findings suggest that there is a prominent correlation between the decile of the last secondary school that Auckland Law School students attend and their success in accessing and receiving legal education.

Case Notes

Ward Equipment Ltd v Preston: The Approach to Implication of Contractual Terms

By Daniel Brinkman

The New Zealand Court of Appeal in Ward Equipment Ltd v Preston has recently considered the controversial issue of whether implication of terms in a contract should be regarded as contractual interpretation. Notably, the Court addressed the approach of Lord Hoffmann in Attorney General of Belize v Belize Telecom Ltd, who stated that in cases which give rise to issues of contractual implication, “the question ... is whether such a provision would spell out in express words what the instrument, read against the relevant background, would reasonably be understood to mean”. This approach has been the subject of significant debate, and has given rise to concerns over whether orthodox principles of implication have been displaced.’ French and Winkelmann JJ in Ward Equipment Ltd v Preston mentioned the uncertainties in this area of law in New Zealand, but did not decide the correct approach that should be taken. However, Kós P, in a separate judgment, expressed the opinion that implication and interpretation are different processes which are accompanied by different rules. Significantly, the President stated that orthodox implication principles should be applied in New Zealand.

Negligence, Negligent Misstatements and Leaky Buildings: Southland Indoor Leisure Centre Charitable Trust v Invercargill City Council

By Tiaan Nelson

Another case about leaky buildings: Southland Indoor Leisure Centre Charitable Trust v Invercargill City Council concerned a local council’s liability in negligence for erroneously issuing a code compliance certificate. Notably, the Supreme Court held local councils owe a duty in pure negligence to take reasonable care when issuing code compliance certificates. This duty exists even when there was no physical inspection or other ‘operational blunder’ by the local council. Therefore, even if the council’s role in the construction process was limited to issuing a code compliance certificate, plaintiffs do not have to rely on a negligent misstatement claim. They will not have to establish actual reliance. However, because of this conclusion, the Supreme Court did not address the law of negligent misstatement. That area is left somewhat uncertain following two Court of Appeal decisions with prima facie divergent approaches.

A Capacity for Change? A Restatement of the Law of Testamentary Capacity in Loosley v Powell

By James Toebes

Allison Slater executed a new will just six days before she died (the Final Will). It represented a significant departure from a will she had executed some three years earlier (the 2011 Will), disentitling three of her five nieces and nephews from inheriting her residuary estate. Her family and friends were divided on whether she had sufficient capacity to execute a will. The litigation that ensued allowed the courts to clarify and consolidate the law of testamentary disposition and its application. This article reviews the Court of Appeal’s decision in Loosley v Powell. It argues that Loosley v Powell does not represent a departure from established principles set out in the well-known English decision of Banks v Goodfellow. Rather, Loosley v Powell provides an orthodox and coherent illustration of how courts and practitioners can apply the principles to navigate through often complex bodies of evidence. The decision is also notable for the indication that a review of the rule in Parker v Felgate may be forthcoming.

Legislation Note

Land Transfer Act 2017

By Jayden Houghton

Book Review

This Realm of New Zealand: The Sovereign, The Governor-General, The Crown – Alison Quentin-Baxtor and Janet McClean

By Honor Kerry