Article

New Zealand’s 19th Century Dog Taxes

By Petra Bogle

A variety of taxes on dogs were imposed in New Zealand in the latter half of the 19th century. They were aimed at both reducing the number of dogs and raising revenue. In almost every case, they were unsuccessful on both counts, and the dog nuisance persisted. This article examines these taxes, the contexts in which they were imposed, and the responses of those who were called upon to pay. It also makes suggestions about the role of taxation in nation-building, as well as the wisdom of corrective taxation. The responses of settlers and Māori to the regime illustrate both its practical failures and its regressivity, with the Hokianga “Dog Tax War” of 1898 the culmination of chaotic administration. This article seeks to use the dog taxes to illuminate some aspects of life in New Zealand at this time.

Article

How can the Legal Profession Ensure that All Eligible Adult Defendants can Access Communication Assistance?

By Annelise Li-Sa Chan

Communication assistance is a vital part of accommodating communication impaired defendants in the criminal justice system. However, access to and delivery of communication assistance is highly dependent on legal professionals identifying a defendant’s communication impairments, referring them for a communication assistant assessment, and accepting the communication assistant’s recommendations. This article acknowledges that communication assistance is increasingly being utilised for adult defendants but argues it is not consistently provided to all eligible communication impaired adult defendants (ECIADs). The article focuses on the responsibilities of legal professionals to ECIADs. It also highlights the need to ensure that ECIADs with mild as well as severe communication disabilities can access their entitlement to communication assistance. It concludes that significant work is needed within the legal profession and the broader criminal justice system to ensure that communication assistance is effectively utilised for ECIADs. The three key recommendations to improve access to communication assistance are education in the legal profession, utilising a screening tool such as a defendant history, and adopting a holistic and compassionate approach to lawyering.

Article

Beyond Free Use: Stewardship, Orbital Debris and the Due Regard Standard in the Outer Space Treaty

By Nicholas Romici Goldstein

This article examines the legal framework surrounding the problem of orbital debris. The existing legal framework regulating orbital debris is inadequate, particularly considering the increasing proportion of launches conducted by private entities rather than state governments. Other sources of international law are analysed for their contribution towards an effective orbital debris legal framework, but they are similarly ineffective. Considering the inadequacy of treaty and other sources of international law to effectively regulate orbital debris, this article demonstrates how recent elaborations on the content of the due regard standard improved its normativity, opening the way for art IX of the Outer Space Treaty to play a stronger role in the regulation of orbital debris. The article argues that states have obligations to mitigate orbital debris under the due regard standard in art IX. It draws on the guidance of international courts and tribunals and from the International Civil Aviation Organisation to elaborate on the content of the due regard standard. Further, it develops a textual interpretation of the due regard standard in the Outer Space Treaty, which requires states to have due regard for the interests of other states in future access to outer space. Finally, this article examines the broader role of the due regard standard in relation to principles of free use and preservation of common resources. It argues that the standard limits states’ legitimate actions in respect of common resources, and that its emergence as a regulatory norm of international law reflects a broader movement towards stewardship of common resources. The due regard standard’s ability to fully embody the concept of stewardship is limited in art IX because of its anthropocentric framing. Nevertheless, the due regard standard makes an important contribution towards the realisation of stewardship in outer space.

Article

Should Claims for Exemplary Damages Survive Death?

By Madeleine Hay

In New Zealand, exemplary damages cannot be awarded for the benefit of a deceased tort victim’s estate. They are excluded by s 3(2)(a) of the Law Reform Act 1936. This article discusses the merits of the exclusion, concluding that it is undesirable in modern times and requires reform. The historical rationales that likely justified the exclusion in 1936 are not persuasive today, if they ever were. Exemplary damages no longer represent personal vengeance; nor are they confused with aggravated damages. The modern arguments for and against permitting estates to recover exemplary damages also weigh in favour of permitting recovery. Important functions of exemplary damages such as punishment and vindication can be served whether the victim is living or deceased, a conclusion supported by the tikanga Māori principle that mana continues after death. The special significance of exemplary damages in light of New Zealand’s accident compensation scheme (ACC) provides a further argument in favour of reform. The rationales cited by the courts and Parliament for saving exemplary damages from the ACC bar on compensatory damages suggest that estates should be allowed to recover exemplary damages. Finally, exemplary damages have historically served to restrain abuses of public power. Section 3(2)(a) removes this important accountability mechanism in cases where a public official’s outrageous misconduct has killed an individual. This article therefore concludes that s 3(2)(a) should be repealed or reinterpreted to apply to aggravated damages.

Article

#AD: Influencer Marketing and the Fair Trading Act 1986 – An Outline of How New Zealand’s Consumer Protection Law Should Respond to the Harm Resulting from Non- Disclosure of Paid Advertising on Instagram

By Chantal Maree Hoeft

This article analyses the consequences of permitting Influencers to disguise paid advertising as genuine product recommendations on Instagram. Consumers are vulnerable to Influencer marketing and New Zealand’s consumer protection law must respond. Adopting rational consumer theory, this article outlines the underlying harm of deceptive Influencer marketing, and the impact this has on consumer choice and market order. In New Zealand, the Advertising Standards Authority is the only agency regulating this industry. However, it is limited in enforcement power and resources. Despite ongoing efforts, it lacks the ability to mandate compliance with disclosure requirements, which is evident in the repeat complaints regarding Simone Anderson. Looking at comparable jurisdictions in the Influencer marketing space, New Zealand’s consumer protection law falls short. The United States is the most proactive jurisdiction and has secured settlements six times with brands utilising deceptive marketing techniques. The most recent of these resulted in a $15.2 million settlement sum. For the New Zealand Fair Trading Act 1986 (FTA) to remain fit-forpurpose, it must adapt and respond to new marketing techniques as they arise. Influencer marketing must be captured by the FTA and brought within the jurisdiction of the Commerce Commission. If widened, s 13(e) and 13(f) of the FTA would be effective tools to regulate non-disclosure of paid relationships between Influencers and the brands they promote. The Commerce Commission must intervene in this space and bring proceedings in order to clarify the law and enforce compliance.

Article

Companies and the Property (Relationships) Act 1976: The Parties are Separate But is the Company?

By Joshua George Oliver

Relationships are joint ventures — with parties each contributing in their own ways to grow as one. The Property (Relationships) Act 1976 (PRA) seeks to recognise this by ensuring each party shares in all property borne out of the relationship. However, despite the availability of contracting out agreements, many parties instead choose to avoid their PRA obligations by using companies and trusts. Unlike the case of trusts, there is relatively little commentary on how companies have been used for these purposes. This article sets out to change this. The findings of which are a shocking disregard for the PRA’s status as social legislation. By shielding what would normally be divided under the PRA, companies often project deep-rooted issues in the law. Perhaps most concerning, is that they can do this through their status as separate legal entities, a status which this article demonstrates many modern companies do not deserve. As social legislation, courts must not shy away from both recognising and acting on this when applying the PRA. Alongside Parliament, they must also recognise that, contrary to popular belief, company shares do not offer a sufficient nor practical remedy for parties. However, courts are constrained by the tools available to them. Therefore, a case for legislative reform is presented. Namely, s 44F of the PRA must now be strengthened to empower courts to make orders over company property in limited circumstances.

Article

Entire Agreement Clauses, Non-Reliance Clauses and Sheltering behind Lies: The History, Purpose and Operation of Section 50 of the Contract and Commercial Law Act 2017

By William Turner

Entire agreement and non-reliance clauses are commonly found in a variety of written contracts, both standard form and bespoke. The goal of these clauses is to promote certainty between contracting parties by excluding liability arising from pre-contractual statements that were not incorporated into the written contract. However, these clauses may not represent the position in fact, such as where the contracting parties’ objective intention was to give contractual effect to a pre-contractual statement not incorporated into the written contract, or where a party did in fact rely on a precontractual statement in entering into the contract. In those situations, if an entire agreement or non-reliance clause is conclusive, it will provide a complete defence to a party that might otherwise be liable for breach of contract or misrepresentation. This defence will be founded upon an untrue statement: it will be allowing that party to shelter behind a lie. Since 1980, legislation has restricted the effectiveness of entire agreement and non-reliance clauses in New Zealand, initially through s 4(1) of the Contractual Remedies Act 1979 and now through its successor, s 50 of the Contract and Commercial Law Act 2017. The provision operates as a balancing test; it provides that such a clause will not be conclusive unless it is fair and reasonable that it should be, having regard to all the circumstances of the case. In 2014, an analogous provision was inserted into the Fair Trading Act 1986, which governs the effectiveness of these clauses in proceedings brought under that statute. Consequently, being able to accurately predict when entire agreement and non-reliance clauses will be enforced is more valuable than ever, particularly for businesspeople, consumers and commercial lawyers. This article discusses the history, purpose, scope and operation of s 50 to ascertain which factors will have the most weight in determining whether a contested clause is to be conclusive under that provision. It concludes that, despite the statutory restrictions, deploying these clauses remains an effective way of excluding liability arising from pre-contractual statements in a range of circumstances.

Article

Genetic Privacy and Abandoned DNA: The Missing Link and Proposals for Reform

By Tommy Zhang 张卓煜

Indirect DNA sampling is an investigative technique employed by law enforcement to retrieve DNA samples from suspects surreptitiously. Currently, such practices are undocumented and unregulated in New Zealand. However, in their report of the use of DNA in investigating crime, the Law Commission confirmed that the New Zealand Police had utilised indirect DNA sampling when they deemed necessary. As DNA analysis techniques continue to advance, it is likely that the New Zealand Police will regularly deploy indirect DNA sampling operations in the future to investigate crime. With that in mind, it is necessary to examine whether indirect DNA sampling should be allowed and, if permitted, what sort of limitations the law should impose on such practices.

Case Notes

COVID-19 and the Future of Vaccine Mandates: Yardley v Minister for Workplace Relations and Safety

By Lewis Hebden

Vaccine mandates are undoubtedly coercive. There is no question that the state imposing a requirement for large swathes of people to receive multiple doses of a recently developed vaccine in order to retain their employment restricts those individuals’ rights affirmed in the New Zealand Bill of Rights Act 1990. But desperate times call for desperate measures, and the legality of those measures has now been considered a number of times. The first three challenges to vaccine mandates were dismissed. On the fourth occasion, in Yardley v Minister for Workplace Relations and Safety, the challenge was successful. This note will outline the events which led to the successful challenge in Yardley, the reasoning behind that decision and its implications for vaccine mandates in future.

Corrective Justice and Economic Efficiency in Contract Interpretation: Bathurst Resources Ltd v L&M Coal Holdings Ltd

By Louis Norton

Bathurst is a landmark case in contract interpretation. It has settled a longstanding area of uncertainty in New Zealand law. This note argues that the Court struck an elegant and pragmatic approach to the admissibility of evidence in contract interpretation. The approach is consistent with the Evidence Act and aligns with contract law’s corrective justice rationale. However, this note also questions whether the newly settled approach to contract interpretation has problematic implications for the economic efficiency of New Zealand’s contract law.

Legislation Note

The Natural and Built Environments Bill

By Mark Howard

The Natural and Built Environments Bill (NBEB) is in early development, having just passed first reading at the time of writing. However this wunderkind bill has already attracted significant attention. As the main focus of the Labour Government’s reforms of the Resource Management Act 1991 (RMA), the NBEB flirts with concepts already popular in international environmental law but never before seen in Aotearoa New Zealand. The growing severity of climate change and increasing discussions on the legal role of Te Tiriti o Waitangi only increase the need to analyse this upcoming Bill and ask ourselves: do its proposals reflect powerful progress for ecological protections in Aotearoa? Or are they incremental ornaments with much room for improvement? This note provides a broad overview of some key features of the NBEB. It concludes with a synthesis of some of its most prominent critiques: notably, that the NBEB should be more express in its commitments to Te Tiriti o Waitangi and its application of ecological concepts that could otherwise help combat the climate crisis.

Book Reviews

Global Regulatory Standards in Environmental and Health Disputes: Regulatory Coherence, Due Regard and Due Diligence – Caroline E Foster

By Emily Duckett

In the wake of the COVID-19 pandemic, and in light of the worsening climate crisis, Caroline E Foster’s book, Global Regulatory Standards in Environmental and Health Disputes: Regulatory Coherence, Due Regard, and Due Diligence, is both timely and necessary. True to its name, the book comprehensively examines three regulatory standards: regulatory coherence between states’ domestic measures and their legitimate objectives, due regard for other states’ interests when making regulatory decisions and due diligence in preventing harm to others.

Criminal Law in Aotearoa New Zealand – Julia Tolmie, Kris Gledhill, Fleur Te Aho and Khylee Quince

By Owen Posthuma

Four lecturers from the University of Auckland Law School and Auckland University of Technology Law School have banded together to write Criminal Law in Aotearoa New Zealand, a new criminal law textbook. In this review, I will briefly summarise the chapters and then give general commentary on the book as a complete unit. Most of the chapters contain relatively straightforward analyses of substantive criminal law, so those summaries are brief. However, Chapter One is more innovative, so I will emphasise the new approach in that chapter.