Volume 26
2020
Special Feature
Toi te Kupu, Toi te Mana
By Justice Joe Williams
Justice Joe Williams, the first Maori judge of the Supreme Court, charts a brief history of the use of the Māori language in the courts of New Zealand. His Honour concludes that the present use of te reo in the courts, while not in itself transformational, is something more than mere tokenism. The speaking of Māori words in our courts, rather, may remind those involved in court processes of the importance of Māori custom and values, open their hearts and minds to the distinctive Māori worldview, and affirm, within our institutions of justice, New Zealand’s unique character. The Review has seen the increasing calls for legal education in Aotearoa to transition to a bicultural, bilingual and bijural model that appropriately recognises tikanga Māori as a freestanding and legitimate source of law. This model would require the mainstreaming of te reo Māori in the teaching of the law, and we think, in legal publications. In asking his Honour to present his remarks in te reo, alongside an English translation of the same, we have tried to contribute to that larger project, if only in a small way.
Special Feature
Was New Zealand Prepared with an Appropriate Legal Framework to Respond to COVID-19?
By Janet McLean QC
New Zealanders have had bad experiences of the executive’s exercise of extraordinary emergency powers. The response of constitutional lawyers and officials over time has been to confer emergency powers in a relatively narrow and specific way and to ensure there is sufficient parliamentary oversight. Paradoxically, the New Zealand Government recently faced the allegation that while its initial response to COVID-19 was proportionate and justified, it technically acted outside of its legal powers.’ In this short comment, I briefly set out the history of emergency powers in New Zealand and ask questions about how a court should approach its statutory interpretation task given that context.
Special Feature
Decolonising the Common Law: Reflections on Meaning and Method
By Eesvan Krishnan
We have long heard calls, though now more frequent and urgent by the day, for the decolonisation of our criminal justice system, our corrections system, our family court, our judiciary, our legal profession, our law schools.’ A hui convened in July last year had as its theme “India Tonu Nei now is the time. We lead, you follow”. Attendees said that the justice system was continuing to harm Māori, more than any other grouping in Aotearoa, and the work of decolonisation had to start immediately. They called, for example, for the abolition of the current prison system, for better access to justice for Māori, and, more generally, for the devolution of money and power so that Māori, not the Crown, would lead the change.
Special Feature
The Role of the Law Review in a Performance-Based Research Environment
By The Hon Margaret Wilson DCNZM
Professor Wilson delivered an address at the Review’s alumni dinner, held on the same evening as the annual symposium. Her speech, concerning the role of the law review in a performance-based research environment, is reproduced here. Professor Wilson takes aim at the corporatisation of the legal academy and education that emerged out of the neoliberal reforms of the 1980s. The research funding model, she argues, contingent as it is on publishing outputs, is based on a political understanding of legal education and the university. It is an extension of a neoliberal ideology underlying public policy. Within that picture, the law review remains a bastion of resistance and critical legal research, upholding the role of the university as society’s “critic and conscience”. With this volume, we have tried our best to live up to the responsibility with which Professor Wilson charges us.
Ko Ngā Take Ture Māori
A Problem Shared is a Problem Halved: Tino Rangatiratanga and Power-Sharing in Aotearoa
By Olivia Rapata-Folu
The signing of Te Tiriti o Waitangi represented a partnership between Maori rangatira and the Crown. This partnership was envisioned to be one of equal power and responsibility between parties. Sadly, this vision was never realised, and racist policies and laws stripped Maori of their land, resources and culture. However, these events did not change the reality that because Maori never ceded their sovereignty, they have the continued claim to self determination. Recent generations have seen limited attempts to include Maori kaupapa into the current Westminster constitutional system. The current principle of unchallengeable parliamentary sovereignty will never allow for meaningful expression of tino rangatiratanga. This article looks briefly into ways that the current system is insufficient for Maori aspirations. It aims to find and analyse models of power sharing that will allow for the actual expression of tino rangatiratanga. This article examines different constitutional power-sharing and conflict-resolution models in the Scottish devolved system, the Belgian federal system and the European Union. It then demonstrates how parts of these systems may be applied in Aotearoa.
Article
Awarded the MinterEllisonRuddWatts Writing Prize
Reason-Giving in the Age of Algorithms
By Jessica Palairet
Public sector agencies are increasingly using sophisticated machine learning algorithms to assist and make decisions previously made solely by humans. This use of advanced algorithms presents opportunities, but also great risks to administrative law. Many complex algorithms are “black boxes”, meaning no person can explain how they work. Further, “dirty data” and machine code can produce discriminatory or biased decisions that are difficult to identify and regulate. The idea that keeping a “human in the loop” will address these problems is unrealistic and shortsighted. Therefore, this article argues that the use of Al in administrative decision-making necessitates the development of a general duty on decision-makers to provide reasons for their decisions. Administrative law cannot stand still amidst the rise of artificial intelligence. A duty to give reasons is not a silver bullet solution, but it is an essential response to decision-making in the age of algorithms.
Article
The Male “Mother” at English Law
By Matthew Jackson
A core principle of England’s birth registration scheme is that the status of “mother” on a birth certificate is always attributed to the person who gave birth. In consequence of the Gender Recognition Act 2004 (UK) facilitating legal gender change, it is now possible for someone to be of the male gender and a “mother”. The President of the High Court’s Family Division recently held that the interference with the privacy and identity rights of a trans-man and his child, resulting from the man’s registration as “mother”, was justified by the Government’s aim for an administratively coherent and certain birth registration scheme. While it is regrettable that the President declined to make a declaration of incompatibility under the Human Rights Act, his extensive analysis of the current legal framework serves to illuminate the shortfalls in the outdated scheme and the pressing need for parliamentary attention. This article proposes that expanding the parental information collected upon a child’s birth, and replacing the terms “mother” and ‘father” with “parent” on birth certificates, will equip the scheme to reflect all manner of families while also increasing the accuracy of its records.
Article
The Revolving Door: Are We Sentencing People with FASD to a Life Trapped in the Criminal Justice System?
By Josie Butcher
Fetal Alcohol Spectrum Disorder (FASD) is a blanket term referring to a range of prenatal alcohol-induced mental impairments. Individuals with FASD are significantly overrepresented in the criminal justice system (CJS). This article proposes that this overrepresentation is caused by the CJS’ current treatment of offenders with FASD, which traps these offenders in a “revolving door”. This circularity not only causes long-term harm for offenders with FASD but also increases their reoffending, thereby inflicting further damage to the community. This article identifies numerous issues that arise for offenders with FASD at various different stages of the CJS. It discusses police questioning, fitness to stand trial, sentencing and repeat offending. This discussion illustrates how the CJS disproportionately punishes offenders with FASD, instead of deterring their offending or aiding in their rehabilitation. Finally, this article analyses and critique options for reform, both within the CJS and broader society.
Article
Vindicating Reproductive Autonomy in Wrongful Conception Cases
By Anna Christie
This article argues that a novel award of vindicatory damages should be available in New Zealand to reaffirm the reproductive autonomy interest negligently undermined in certain wrongful conception cases. Vindicatory damages would mark the wrong rather than compensate the losses flowing from it. The proposed vindicatory damages would be exempt from ACC’s statutory bar. The award would be discretionary, depending on whether vindicatory damages were required to remedy the undermined interest. Secondary consideration would be given to public-facing concerns like ensuring compliance with medical standards, a communal vindication of the importance of women’s equality and the appropriateness of the liability burden. Vindicatory damages would provide accountability in wrongful conception cases falling on or beyond the outer boundary of treatment injury and recognise undermined autonomy interests within or separate from the complaints process.
Article
An Accountability Deficit: The Case for an International Anti-Corruption Court
By Devika Dhir
Modern democracies face a crisis. The influence of private wealth on the political process has been such that public policy serves only those able to purchase the government’s responsiveness. This article describes the widespread and deeply ingrained corruption at the highest levels of government across the globe, which has led to the destruction of popular sovereignty. More concerning yet is the claim this article makes that there is currently no effective mechanism for holding the corrupt and powerful to account. This article proposes the establishment of an International Anti-Corruption Court to remedy the accountability deficit. The stated aims of the Court would include holding the corrupt criminally responsible, disgorging them of their illicit profits and critically challenging the way legal frameworks facilitate the corrupting influence of private wealth on the political process. Change is desperately needed to restore the true meaning of democracy: government accountable to the people. An International Anti-Corruption Court presents one possible solution.
Article
New Zealand Company Contracting: The Reform of Reasonable Reliance on Apparent Authority
By Luke Sweeney
In Bishop Warden Property Holdings Ltd v Autumn Tree Ltd, the Court of Appeal acknowledged the proviso to s 18(1) of the Companies Act 1993. The Court endorsed the position that its constructive knowledge feature was only relevant to company insiders or those with an ongoing relationship to the company. The Court also suggested that constructive knowledge may still be relevant to an initial assessment of whether an arm’s length third party could establish apparent authority to bind a company. This article argues that the Court of Appeal was correct on this first point. However, the second assertion is irreconcilable with s 18(1) and the purposes of its introduction. The better view is that the proviso has statutorily supplanted reasonable reliance as a feature of common law apparent authority. This original requirement was predominantly a social or normative question marking the balance of fairness between parties to a contract. Parliament shifted that balance in 1985, amid a period of heightened deregulation and reform, in favour of contracting third parties.
Article
Time for a Change? The Law Commission’s Review of the Property (Relationships) Act and its Recommendations on Trusts
By Rachael Yong
The Law Commission recently conducted a review of the Property (Relationships) Act 1976 (PRA), concluding that the Act “is no longer fit for purpose for 21st century New Zealand”. It has been more than 40 years since the PRA was enacted. Since then, there have been significant demographic, social and economic changes in New Zealand. The PRA was intended to achieve a just division of property following separation, but trusts have undermined this aim by removing assets from the relationship property pool. This article analyses the Law Commission’s recommendations concerning trusts and concludes that the recommendations strike an appropriate balance between preserving trusts and achieving achieving a just division of property at the end of a relationship.
Case Notes
Trusts in the Blockchain: Ruscoe v Cryptopia Ltd (in liq)
By Jack Garden
On 14 January 2019, popular Christchurch-based cryptocurrency (crypto) exchange Cryptopia Ltd announced on Twitter that it was undergoing “unscheduled maintenance”. The firm was a striking success story in the New Zealand crypto scene, growing from a hobby project to a successful business with over 900,000 active user accounts. Its holdings comprised over 500 cryptocurrencies, including a New Zealand dollar-backed cryptocurrency developed in-house, with a total book value of approximately $200 million. The following day, Cryptopia revealed that its “maintenance” was in fact the result of a serious hack in which millions of dollars of crypto had been siphoned from its reserves. The police were called in and, soon after, liquidators. Directions sought by the latter for the distribution of the company’s remaining crypto led to a significant statement of the legal principles applicable to cryptocurrencies by Gendall J in the High Court, in a decision that has garnered international attention. This note reviews the conceptual basis for the Court’s decision and explores the challenges presented by applying traditional legal concepts to technologies designed to depart from the orthodox approach to money and stored value.
The Kiwi Party Inc v Attorney-General: A Reappraisal of Parliamentary Supremacy Following a Hopeless Case for the Right to Bear Arms in Aotearoa
By Kasey Nihill
In the wake of the mosque attacks, the Rt Hon Jacinda Ardern announced that New Zealand’s gun laws would change. Soon thereafter, the Government took swift action to address the accessibility, possession and use of semi-automatic weapons with the hope that such a tragedy would never again occur in Aotearoa. These changes generated vigorous public debate, with vociferous opposition to the effective prohibition on semi-automatic weapons. One of the parties that vehemently opposed the prohibition was the Kiwi Party Inc. In the Court of Appeal, it was upheld that there is no constitutional right to bear arms in Aotearoa.
Pragmatism and Cartel Prosecutions: Developments in the Law of Price Fixing in Lodge Real Estate Ltd v Commerce Commission
By Caitlin Anyon-Peters
A change in Trade Me’s advertising fee structure triggered a group of Hamilton real estate agencies to collectively change the way they funded real estate advertising on the website. The Commerce Commission successfully argued that the agencies entered into a price fixing arrangement in breach of the former s 30 of the Commerce Act 1986. The Supreme Court decision Lodge Real Estate Ltd v Commerce Commission represents the first substantive price fixing case decided in New Zealand’s highest court. The Court clarified three crucial definitions of “arrangement, “control” and “price” in prohibitions on restrictive trade practices. This note critiques the Court’s approach to their interpretation, and how the Court has re-framed existing authority. It also examines what the decision means for price fixing cases to be decided under the new cartel provisions of the Commerce (Cartels and Other Matters) Amendment Act 2017. This note concludes that, despite some ambiguity around proof of parties’ commitment to a price fixing arrangement, the decision represents a pragmatic approach to cartel behaviour and will likely aid prosecution for anti-competitive conduct.
Legislation Note
Privacy Act 2020
By Yao Dong
Book Review
Humanitarian Disarmament: An Historical Enquiry – Treasa Dunworth
By Max Ashmore