Article

Awarded the MinterEllisonRuddWatts Writing Prize

Systemic Negligence and Direct Crown Liability: Conceptualising Issues of Justiciability, Proximity and Breach

By Madeleine Hay

In New Zealand, systemic negligence claims present a particular challenge to the Crown Proceedings Act 1950, and to the law of negligence. The Act does not provide for direct liability of the Crown, leaving plaintiffs who cannot frame their claim in terms of vicarious liability without a remedy. In this article, I argue that addressing this justice gap requires more than merely legislative change because systemic negligence claims raise significant conceptual issues in the areas of justiciability, proximity and breach. However, I conclude that none of these “doctrinal hurdles” presents a complete bar to systemic negligence claims. Justiciability will generally be available for decisions not to fix fundamental flaws in established Crown systems, while claims involving a static, physical hazard are likely to succeed on the current approach to proximity. Moreover, I argue that courts should also take an active role in shaping the law in this area by adopting a “policy approach” to proximity, and by embracing Christian List and Philip Pettit’s theory of group agency. While these approaches may be novel and rather ambitious, they offer a conceptually clean way forward: towards a robust doctrine of direct liability.

Article

A New Zealand Copyright Analysis of Memes

By Hannah Yang

With the recent introduction and subsequent approval by the European Parliament of the Directive on Copyright in the Digital Single Market (specifically what is now art 17, or the “upload filter”), the issue of copyright in relation to memes has become an unexpected point of discussion in the realm of intellectual property law. This article examines the question in the context of New Zealand copyright law and argues that, under the current legislation and in the absence of a fair use defence, a large portion of memes would be in violation of copyright. It concludes that major reassessment of the balance struck in the Copyright Act 1994 must be carried out in the review of the Act currently being undertaken if the legislation is to remain relevant today.

Article

Is Mandatory Vaccination an Unjustified Limit on Human Rights?

By Katherine Eichelbaum

The horrors of many historically commonplace diseases are now in check thanks to vaccination. However, because the horror has dissipated, the public is no longer reminded of the importance of vaccines. Additionally, when people weigh risk against benefit under a voluntary vaccination scheme, they are far more likely to rely on anecdotal information than empirical scientific evidence. These factors, along with misinformation, have led to a strong anti-vaccination movement in many populations, which has in turn contributed to vaccination rates falling below important population thresholds. This article demonstrates the importance of maintaining high vaccination rates. It then explores which human rights are limited by a mandatory vaccination scheme. Drawing from the recent analogous decision in New Health New Zealand Incorporated v South Taranaki District Council on mandatory fluoridation, this article contends that such incursions upon rights are justified by the strong evidential foundation supporting vaccination.

Article

The Blemish on the Clean Slate Act: Is There a Right to Be Forgotten in New Zealand?

By Fraser Gollogly

The Criminal Records (Clean Slate) Act 2004 allows individuals with historical criminal convictions to leave these convictions in the past. The machinery used to achieve this goal is based on the pre-digital world. The advent of the search engine has rendered the ability not to disclose a criminal record almost worthless. This article explores the “right to be forgotten” as applied by courts in the United Kingdom and discusses whether the Harmful Digital Communications Act 2015 could be used for a similar purpose in New Zealand It examines the free speech implications of concealing historical criminal convictions, as well as other conceptual arguments for and against concealment. The conclusions drawn are used to propose and specify reform of the Criminal Records (Clean Slate) Act to ensure it can still achieve its purpose in the digital age.

Article

The Pursuit of Certainty: A New Approach to Best Endeavours Clauses

By Michael Greatrex

Though a useful instrument for commercial parties to contracts, endeavours clauses are plagued with problems. This article argues a single standard should be applied across endeavours obligations and a more stringent level of certainty required to give effect to them. This approach is preferable to the traditional English hierarchy of vague endeavours formulations, differentiation of which is “a pointless hair-splitting exercise”. Endeavours clauses are always determined in their particular context. This fact, for the most part, renders the traditional hierarchy useless. A single standard and stricter level of certainty would improve certainty of contract, give better effect to the actual intentions of contracting parties, and facilitate the drafting of better contracts.

Article

Smartphone Encryption: A Legal Framework for Law Enforcement to Survive the “Going Dark” Phenomenon

By Micah Hill-Smith

Law enforcement agencies have been sounding the alarm for decades about encryption that is causing communications to “go dark”. Digital communications have moved from easily tapped phone lines to secure encrypted systems. Law enforcement’s access to data stored on smartphones has emerged as a critical component of this issue. Legally valid searches of smartphones have been frustrated by both technical and legal barriers. This article considers the different methods for effecting smartphone search warrants -forced entry, compelling users and compelling manufacturers -focusing particularly on the United States. It concludes by recommending a robust legal framework to govern law enforcement’s search of encrypted data on smartphones.

Article

Driving into Trouble? Civil Liability and Privacy Issues with Autonomous Vehicles in New Zealand

By Miranda Hing

The advent of autonomous vehicle (AI) technology is fast approaching and will revolutionise travel. These changes bring substantial benefits to society. They will make transportation more accessible, convenient and safe by removing human error from the equation. However, novel technology inevitably raises new legal questions, which need to be solved to ensure the smooth and efficient deployment of AVs in New Zealand. AV technology combines a vehicle with a computer system that assumes control of driving to varying degrees. This raises the question of who should be held liable for personal injury or property damage resulting from an accident involving an AV. Further, to make driving decisions, the central computer system requires the generation of an unprecedented amount of data from inside and outside the vehicle. Privacy becomes a real concern as the vehicle is essentially a moving databank - rich with personal data about the AV user. This raises the question of whether the personal data of AV users is sufficiently protected from misuse by unauthorised third parties. If members of society do not feel in control of their privacy rights in relation to AVs, there will be a struggle to adopt this new technology. This article investigates whether the New Zealand government needs to act to ensure AV technology is smoothly integrated into society.

Article

New Zealand’s GST v Exclusions: A Case for the Exclusion of Basic Food and Menstrual Products from Goods and Services Tax in New Zealand

By Anna Percy

The New Zealand Goods and Services Tax (GST) is a straightforward system with very few exclusions. Any exclusions pale in comparison to the multitude of exemptions and differing GST rates across the rest of the world. Since the introduction of New Zealand’s GST regime, successive governments have strived to maintain its simplicity and broad base. However, the debate about whether this is the correct approach is ongoing. Many countries treat some subsets of food and menstrual products preferentially under their Value Added Tax (VAT) or GST regimes, aiming to reduce the disproportionate burden of VAT and GST on low-income households and women. These jurisdictions recognise food and menstrual products as essential items upon which tax should be imposed at a reduced rate, if at all. This article calls for New Zealand to do the same — to exclude basic food and menstrual products (products used for menstruation, vaginal discharge and bodily functions related to the vagina) from GST. It explains how these items should be excluded and why they should be excluded. It also explores arguments opposing the exclusion of these items and examines international examples from which New Zealand can learn. Ultimately, it concludes that New Zealand’s GST legislation should be amended to exclude basic food and menstrual products on equity grounds.

Case Notes

A Taylor-Made Declaration? Attorney-General v Taylor and Declarations of Inconsistency

By Amy Dresser

In 2015, Heath J made history in Taylor v Attorney-General by issuing New Zealand’s first declaration of inconsistency: a formal declaration that Parliament had legislated inconsistently with the New Zealand Bill of Rights Act 1990. The High Court declared that a blanket ban on prisoner voting was an unjustified limitation on the right to vote. In November 2018, the Supreme Court, by a 3-2 majority, upheld the Court of Appeal’s finding and affirmed the power of the higher courts to make declarations of inconsistency. This was a landmark decision — in other jurisdictions, the power of a court to make declarations of inconsistency is explicitly granted by statute.

Lay Litigants’ Costs: Back to the Future? McGuire v Secretary for Justice

By Sebastian Hartley

The Supreme Court in McGuire v Secretary for Justice has reversed the unwelcome surprise employers of in-house counsel received in the Court of Appeal’s decision in Joint Action Funding Ltd v Eichelbaum. In what was effectively an appeal against the Court of Appeal’s holding, all five members of the Supreme Court held that case to have been wrongly decided. Returning the law to the pre-Joint Action Funding position, the Court upheld both the “primary rule”, preventing the award of costs to unrepresented litigants, and the exceptions to that rule. These exceptions allow the award of costs to lawyers appearing in person and employed lawyers. The Court of Appeal’s abrogation of the latter exception in Joint Action Funding had threatened to affect significantly the economics of litigation using in-house counsel.

Brown v New Zealand Basing Ltd: Statute, Party Autonomy and Public Policy in Conflict of Laws

By Jae Jun Kim

Can a New Zealand-based employee seek relief under the Employment Relations Act 2000 (ERA) against his foreign-based employer for unjustified dismissal where the employment contract contains a choice of foreign law? The Supreme Court answered this question in the affirmative in Brown v New Zealand Basing Ltd. It considered that the case was a matter of statutory, rather than contractual, interpretation. Having examined the legislative scheme and history, the Supreme Court overturned the Court of Appeal’s decision and departed from traditional conflict of laws methodology. On its face, the case is notable for clarifying when forum statutes apply despite the parties’ express choice of foreign law. However, the true reach of the case is limited by the particular nature and history of the ERA and, more precisely, its anti-discrimination provisions.

Legislation Notes

Trusts Act 2019

By Emma Littlewood and Katherine Werry

The Amazon Tax: Introducing GST on Low-Value Imported Goods

By Jillin Yan

Book Review

The Promise of Law: Essays marking the retirement of Dame Sian Elias as Chief Justice of New Zealand – Simon Mount QC and Max Harris (eds)

By Janna Tay