Article

Does New Zealand Have a “Pragmatic” Constitution?

By Christopher Pouwels

This article is about New Zealand’s constitution and how people’s attitudes towards it shape the community’s political imagination. For example, it is sometimes claimed that New Zealand’s constitutional life is “pragmatic”; that it is more concerned with “getting on with things” than with abstract principles of justice. In this article, I argue that New Zealand does not and should not have a pragmatic constitution. There is nothing distinctively pragmatic about New Zealand’s constitution, in practice or in theory. Moreover, constitutional pragmatism is incompatible with the rule of law.

Article

A Pluralistic Imperialism? Britain’s Understanding of Sovereignty at the Signing of the Treaty of Waitangi

By Andrew McIndoe

Compared to the Mori text of the Treaty of Waitangi, little attention has been given to what Britain understood by the sovereignty that it obtained in art 1 of the English text. This sovereignty has generally been presumed to denote a paramount, full and undivided authority that gave the Crown ultimate legislative power. Customary Mori authority and law is thus presumed to have been abrogated. However, this article suggests that the Colonial Office understood sovereignty in light of three centuries of British imperial practice in which British sovereignty was largely compatible with persisting indigenous political and legal authority. Although this type of sovereignty had begun to be supplanted by a more rigid and absolute formulation by the mid-19th century, I argue that the Colonial Office adhered to this older, pluralistic model of sovereignty in New Zealand at the time of the signing of the Treaty.

Article

“The Vibe of the Thing”: Implementing Economic, Social and Cultural Rights in New Zealand

By Daniel McDougall

This article discusses the plight of economic, social and cultural rights (ESCR) in New Zealand The oft forgotten sibling of civil and political rights, ESCR offer an avenue for improving social standards, particularly in jurisdictions with a strong rule of law tradition. New Zealand’s obligations under the International Covenant on Economic, Social and Cultural rights are canvassed and compared against the current protection apparatus in New Zealand. The article then examines protection regimes for ESCR from three foreign jurisdictions: South Africa, India and Finland. The key objections to ESCR as justiciable human rights are discussed and rebutted. Finally, a model enabling justiciability of these rights in New Zealand is offered. The article concludes that justiciability of ESCR would be relatively easy to achieve in the current New Zealand legal system and that such justiciability could only help social standards in this country.

Article

Piercing the Corporate Veil: An Analysis of Lord Sumption’s Attempt to Avail a Troubled Doctrine

By Nupur Upadhyay

The principle that a company is a separate legal person is fundamental to modern company law. Over time, case law has emerged supporting the doctrine of “piercing the corporate veil “, enabling courts to look behind a company’s separate legal personality to impose the company’s liabilities on its controllers or vice versa. The doctrine, however, has been applied inconsistently and incoherently. In 2013, the Supreme Court of the United Kingdom in Prest v Petrodel Resources Ltd confirmed the existence of the doctrine and attempted to clarify it. In doing so, the leading judgment of Lord Sumption proposed a novel formulation to determine the circumstances in which a court can pierce the corporate veil. Lord Sumption’s formulation creates its own confusion and uncertainty. This article argues that the Supreme Court should have abandoned the doctrine altogether. Alternative legal remedies available to claimants render the doctrine redundant. Moreover, Prest exacerbates the doctrine’s lack of clarity. This, in turn, compromises the certainty afforded to commercial actors by virtue of incorporating a company.

Article

Consumer Protection and Mandatory Conflict of Laws Provisions

By Joshua Woo

This article proposes a framework for assessing whether any particular consumer protection law meets the policy and legal considerations of good consumer protection. The framework consists of three requirements that are posited as necessary for an effective consumer protection law: the law must promote competition in the market; enable consumers to make unimpaired decisions; and avoid legal paternalism. The proposed framework will then be applied to s 137 of the Credit Contract and Consumer Finance Act 2003, which is a mandatory conflict of laws provision in New Zealand. Section 137 is critiqued as failing to satisfy the consumer protection framework

Article

Critiquing the Defence of Compulsion as it Applies to Women in Abusive Relationships

By Shevan (Jennfer) Nouri

The New Zealand defence of compulsion has been tightly drawn to provide a narrow release from criminal responsibility in the most exigent of circumstances. The challenge posed by the circumstances under which abused women commit offences under a threat of harm involves recognising behaviours of abused offenders not as a response to a single event but as part of a structural sequence of actions in a climate characterised by coercive control. To this end, the author demonstrates that the requirements of the statutory defence of compulsion are too rigidly construed to accommodate the legitimate claims of victims of intimate partner violence who offend under coercion. The author critiques the Law Commission’s recommendations for statutory reform for failing to circumvent these obstacles.

Article

“Tainted” Assets, “Dirty” Money and the Civil-Criminal Dichotomy: A Novel Approach to the Classification of Civil Forfeiture Proceedings under the Criminal Proceeds (Recovery) Act 2009

By Ian Ko

The Criminal Proceeds (Recovery) Act 2009 is a dangerous piece of legislation. Individuals can be stripped of their wealth and assets simply by the state proving, on the balance of probabilities, that some unlawful benefit was obtained from significant criminal activity. However, despite the legislative text indicating that the Act is civil in nature, the actual substance of forfeiture proceedings seem to favour a criminal interpretation. If this is correct, then criminal due process safeguards must be implemented. This paper considers both arguments through the application of international tests to the New Zealand forfeiture context. It concludes that, while cogent arguments exist in favour of a criminal reading, the Act is, on balance, actually concerned with civil proceedings. This paper then argues that adequate non-criminal safeguards exist to mitigate the Act’s potentially draconian application.

Article

Awarded the MinterEllisonRuddWatts Writing Prize

Legislating for E-Manners: Deficiencies and Unintended Consequences of the Harmful Digital Communications Act

By Stephanie Frances Panzic

This year, Parliament passed new legislation as an attempt to improve legal protection against online “speech harms”. Unfortunately, although the motives behind the Harmful Digital Communications Act 2015 are to be commended, the end result is not. A number of deficiencies mean that the Act is unlikely to provide quick and efficient redress to victims. Its complaints process is poorly drafted and may cause legitimate complaints to fall through the gaps, while frivolous or vexatious complaints reach the District Court. Ultimately, the Act is too far-reaching and may result in a number of unintended consequences.

Case Notes

Zurich Australian Insurance Ltd v Cognition Education Ltd

By Samuel Jensen

Since the enactment of the Arbitration Act 1996, the extent to which parties with arbitration agreements have access to the courts has been uncertain. The Arbitration act prohibits a court from intervening in an arbitration unless that intervention is allowed by the Act. One such provision for judicial intervention is where “there is not in fact any dispute between the parties”. Zurich Australian Insurance Ltd v Cognition Education Ltd, a recent case of the Supreme Court, has clarified the meaning of this phrase by attributing the words with a narrow meaning, thereby limiting the scope of judicial interference in arbitration and solidifying New Zealand as a pro-arbitration jurisdiction.

Re Greenpeace of New Zealand Inc

By Zena Razoki

The Supreme Court’s decision in Re Greenpeace of New Zealand Inc concerns how “charitable purpose” is to be assessed under s 5 of the Charities Act 2005. More specifically, it addresses the extent to which an organisation’s “political purpose” can be a “charitable purpose” and whether an organisation that engages in illegal activities can also maintain a charitable purpose. The appeal followed a lengthy legal battle between Greenpeace New Zealand and the Charities Services and Registration Board, who declined to register Greenpeace as a charity on the ground that two of its objectives were political, not charitable, in nature. The Supreme Court, by a three-two majority, delivered its judgement in favour of Greenpeace, holding that the political purpose exclusion should no longer be applied in New Zealand, changing the operation of s 5 of the Charities Act. The decision has left commentators divided. Some see it as a victory for organisations with political purposes, while others note that the decision has much wider legal, and fiscal, ramifications. Given the significant consequences for charities law in New Zealand, it is important to consider the implications of the decision

The Judicial Tightrope: Walking the Fine Line Between Commercial Certainty and Pari Passu

By Aidan Lomas

This case note considers Allied Concrete Ltd v Meltzer, and Timberworld Ltd v Levin. Both decisions deal with a narrow but important point of insolvency law. Allied Concrete concerns the defence in s 296(3) of the Companies Act 1993, while Timberworld concerns the availability of the Australian “peak indebtedness” rule under s 292(4B). These decisions encourage certainty in insolvency law by providing clear guidance as to how those sections operate. However, some commentators will question the balance struck between the interests of creditors as a whole and individual creditors specifically. This case note begins by analysing Allied Concrete before turning to Timberworld. A discussion of the consequences for liquidators and creditors as a whole, and individual creditors follows.

Legislation Note

Marriage (Definition of Marriage) Amendment Act 2013

By Miriam Bookman

Book Review

Human Rights Acts: The Mechanisms Compared – Kris Gledhill

By Allanah Colley