Article

Digging Through Its “Dirty Laundry”: An Interrogation of the Ministry of Social Development’s Determinations of Benefit Recipients’ Relationship Status

By Rosa Gavey

The amount of social security assistance a person can receive in Aotearoa New Zealand depends on their relationship status. Single persons are entitled to substantially higher rates of financial assistance than those in a relationship. Determinations of benefit recipients’ relationship status therefore have significant implications. In 1996, the Court of Appeal in Ruka v Department of Social Welfare held that a de facto relationship for the purpose of social security entitlement comprised two essential elements: financial interdependence and emotional commitment. On these terms, a relationship marred by extreme levels of physical, psychological and financial violence is not a relationship in the nature of marriage. The majority judgment was initially hailed as “radical” and a positive shift in how the Ministry of Social Development was required to determine benefit recipients’ relationship status. This article argues, however, that the potentially transformative effects of Ruka were never realised and the judgment has had minimal impact on how the Ministry conducts investigations and determines benefit recipients’ relationship status. This article further contends that the current approach leads to unjust and punitive outcomes for benefit recipients, particularly mothers and their children, and results in breaches of fundamental human rights.

Article

Awarded the MinterEllisonRuddWatts Writing Prize

Housing Discord: A Case for the Protection of Natural Justice Provisions in Fast-Track Housing Legislation

By Madison Hughes

This article argues for the protection of natural justice provisions in fast-track housing legislation. New Zealand’s ongoing housing affordability and supply issues precipitated the introduction of the Housing Accords and Special Housing Areas Act 2013 (HASHAA). The Act provided a fast-track alternative to the existing Resource Management Act 1991 consenting process. However, the HASHAA’s absence of effective notification, objection and appeal provisions for proposed land developments has had significant implications for natural justice. Such provisions cannot be justifiably excluded from fast- track housing legislation, notwithstanding housing crisis concerns. Sound consultation with all stakeholders ensures better developments in the long- term and fosters community acceptance of housing projects. The inclusion of natural justice provisions also need not discourage development, but rather allow for tempered pragmatism. Further, the HASHAA’s shortfalls disproportionately prejudice Māori and other affected community groups’ interests. Without such natural justice requirements, profit- oriented developers are unlikely to consult sufficiently with Māori and other relevant community groups. The Ihumātao land dispute is a prime example of the legislation’s real-life consequences. This article asserts that the distinct Māori and Western philosophies on land use can be harmonised by aligning future housing legislation with the “third law” of Aotearoa. Accommodating different views ensures that one cultural account does not dominate the decision- making process. After critically examining the HASHAA’s shortfalls, this article demonstrates how future fast-track housing legislation may be susceptible to the same problems and recommends how these issues can be prevented. It also outlines some interim measures to preserve natural justice until any such legislation materialises.

Article

Good Faith, Speech and the Limits of Toleration in Collective Bargaining

By Louis Norton

This article examines the regulation of speech in collective bargaining. Its starting point is the Employment Court decision Kaikorai Service Centre Ltd v First Union Inc. That case held a union that had insulted an employer with unflattering comparisons to vermin and allusions to slavery had not breached the duty of good faith for the purposes of the Employment Relations Act 2000. Importantly, the Court countenanced certain forms of speech could breach the good faith duty. What that would entail was left up in the air. This article seeks to introduce conceptual clarity to this lacuna in employment law jurisprudence. It looks to guidance from authority and academic scholarship to determine the sensible limits to free speech in collective bargaining. In addressing these questions, this article covers the purposes of collective bargaining, the normative features of the good faith standard, the statutory context of New Zealand employment law and other relevant matters. It sets out a theoretical compass for the management of speech in collective bargaining within New Zealand’s autochthonous employment law framework.

Article

Keeping Track of the Risks of Contact Tracing: An International Law Analysis of Contact Tracing in New Zealand

By Katherine Pigou

Contact tracing is a common public health surveillance tool used to combat the current global pandemic, COVID-19. This article explores whether the practice of contact tracing can be reconciled with other legal obligations at international law to ensure the protection of fundamental human rights and freedoms. The implementation of contact tracing by States is consistent with international law obligations under the International Health Regulations 2005, human rights law, the duty to prevent transboundary harm and the precautionary principle. However, contact tracing poses a significant threat to privacy, with data protection and surveillance concerns. Contact tracing in New Zealand serves as a case study to explore whether these tensions can be resolved. This article argues that New Zealand’s contact tracing system is imperfect but nevertheless provides hope that contact tracing can uphold public health while also mitigating privacy concerns. From an international law perspective, cross-border contact tracing should be implemented by States in the global response to COVID-19.

Article

Space Weapons and the Increasing Militarisation of Outer Space: Whether the Legal Framework is Fit-for-purpose

By Roxanne Pope

Space weapons are the logical progression in the increasing militarisation of outer space. As the landscape of space exploration adapts to the new space economy, both outer space and space weapons are more readily available to a broader range of actors. Space wars are an increasing possibility with which international law must grapple. This article explores whether the legal framework is fit‐for‐purpose in addressing the potential weaponisation of outer space by reconciling the relevant space law and disarmament principles, including international humanitarian law. The analysis ultimately highlights that cumulatively applying different laws to the new space economy produces lacunae in the regulatory regime. As a result, current international law is unable to prevent the weaponisation of outer space. The most critical gap concerns the testing of debris-causing space weapons. The article then considers the New Zealand (Aotearoa) context, using Rocket Lab as a case study for the role of domestic space law in the new space economy. Domestic space legislation fills some of the gaps in the legal framework. However, Aotearoa’s flexible approach to risk management leaves the issue of space weapons to Cabinet guidelines, which lack sufficient legal force. Moreover, Aotearoa’s space activities include satellite launches for foreign militaries, which exacerbate the conditions for the eventual weaponisation of outer space. Satellites improve national security by employing offensive or defensive military capabilities, yet states cannot determine their genuine intent, partly due to the enmeshment of military and commercial activities. The uncertainty of intent incentivises space actors to protect their assets by developing and using space weapons. Thus, the law must evolve to address space weaponry proactively in times of peace before conflict spreads to outer space.

Article

The Right to a Remedy: How States Must Address the Barriers to Remedy Faced by Victims of Corporate Human Rights Violations

By Hart Reynolds

The right to a remedy is a fundamental legal principle that should be available to all whose rights have been violated. Multinational corporations frequently operate through subsidiary companies in countries that have weak governance structures and judicial mechanisms. When these subsidiaries breach human rights, victims are often unable to receive a fair trial in the host state, and a number of legal and practical barriers prevent them from accessing remedies in the multinational corporation’s home state. Although recent landmark decisions have begun to address these barriers, civil litigation and the judiciary alone are not enough. States must also act if the right to remedy is to be effectively upheld. I analyse the advantages and disadvantages of three courses of state action that have the potential to address these barriers. First, imposing human rights due diligence obligations; secondly, creating corporate criminal offences for human rights violations; and thirdly, creating a multilateral treaty to uphold the right to a remedy for corporate human rights abuse victims. Overall and in practice, imposing human rights due diligence obligations on large multinational corporations within their jurisdiction is the most effective way for states to address the barriers to remedy and ensure they uphold the right to a remedy.

Article

Should the Right to Abandon be Abandoned? An Exposé of the Illusory Nature of the Common Law Divesting Abandonment of Personal Property

By Mingze Sun

The common law doctrine of abandonment, while deceptively simple, is fraught with academic debate. Abandoned personal property either remains the property of the abandoner until someone acquires it, becomes res nullius (ownerless property) or it cannot be abandoned at all. Nevertheless, the general consensus is that the common law recognises divesting abandonment in both criminal law and law of the wreck. This article disputes this consensus and contends that divesting abandonment in the res nullius sense is illusory. Rather, the legal process underlying abandonment is transfer to unknown persons, where the abandoner wishes to divest ownership of the chattel and is indifferent as to who acquires it next. The history of abandonment reveals that the common law has never accepted divesting abandonment in the res nullius sense. Judicial opinions of abandonment are confined to resolving competing proprietary interests between a finder and the occupier of land where the chattel was found or the former owner; whether the abandoned chattel was rendered res nullius is never in issue. An approach built upon the common law doctrine of tenure in land law elucidates the underlying process of abandonment. The non-severable nature of land ownership establishes abandonment as a bilateral transfer. A putative abandoner is unable to relinquish physical possession of a chattel without the consent of the landowner on whose land the chattel is to be abandoned. The abandoner is therefore incapable of unilaterally severing their ties of ownership to the chattel. As ownership must reside in either the abandoner or the finder, res nullius is rendered impossible.

Article

… And Justice for All? Reassessing the Role of the Market in New Zealand’s Civil Courts

By Nathan David Whittle

A major cause of inaccessibility of justice is the perception that the civil courts are a market-based, user-pays system. This policy approach has been instrumental in increasing the costs of litigation and is responsible for major cuts to legal aid eligibility. Third-party litigation funding (TPLF) is touted as a potential reform to enhance access to justice. However, TPLF is more appropriately viewed as an extension of this market-driven approach to justice. This article offers several possibilities for reform, including: recasting ethical and procedural obligations in civil procedure to enhance access to justice, encouraging the profession to reappraise its public role in the justice system, and reassessing the approach to justice policy, particularly regarding both court filing fees and legal aid. These alternative reforms aim to achieve a cultural shift amongst policymakers, the judiciary, and the legal profession.

Case Notes

Commissioner of Inland Revenue v Frucor Suntory New Zealand Ltd

By James Adams

Frucor is a complex and long-running fixture of New Zealand tax law. This note summarises the judgments of the High Court and Court of Appeal, and the issues they raise so that readers may better understand this intricate but important area of law.

Exclusivity, substantial interruption and the burden of proof in Re Edwards (Te Whakatōhea No 2)

By Hannah Z Yang

In May 2021, the High Court in Re Edwards found that Whakatōhea hapū and other applicant groups were entitled to statutory recognition, under the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA Act), of customary title over the marine and coastal area in various parts of the eastern Bay of Plenty. The marine and coastal area (or takutai moana) is the area between the mean high-water mark and the outer boundary of the territorial sea. The judgment in Re Edwards is a landmark decision and there are many things about it to be lauded. The purpose of this note, however, is not to repeat what has already been said. I will summarise the case and its background, and then comment on the Court's treatment of the burden of proof and, more briefly, the requirement for exclusivity in establishing customary marine title over the takutai moana.

Fitzgerald v R — The Futility of New Zealand’s Three Strikes Law

By Tommy Zhang

On 31 May 2010, the Governor-General gave Royal Assent to the Sentencing and Parole Reform Act 2010. The new legislation amended the Sentencing Act 2002 and inserted sections 86A to 861, which formed the basis for the current three-strikes regime, popularly known as the “Three Strikes Law” in New Zealand. Eight years later, Daniel Clinton Fitzgerald found himself facing his third strike on one count of indecent assault for kissing a female victim on the cheek. The indecent assault, when viewed in isolation, usually would not attract a jail term. However, because it was Fitzgerald’s third strike, the sentencing judge was compelled to sentence him to seven years imprisonment without parole. Fitzgerald subsequently appealed to the Court of Appeal and argued that the trial judge’s approach to sentencing was inconsistent with his right to be free from disproportionately severe punishment. The three judges of the Court of Appeal accepted that Fitzgerald’s punishment was disproportionate to the offending. Surprisingly, the judges differed on their respective interpretations of the law and came to different conclusions. This note critiques the majority and the dissent’s judgments before discussing the reasons why New Zealand courts are generally reluctant to grant a declaration of inconsistency (DOI). It then comments on the implications of the Supreme Court granting the application for leave to appeal in part, as well as on the Three Strikes Law in light of the decision generally.

Legislation Note

The Reserve Bank of New Zealand Bill 2020

By Rebecca D’Silva

Book Review

Taxing the Digital Economy: Theory, Policy and Practice – Craig Elliffe

By Jane Wang