Zealand Law Commission Research Articles

Nikki Chamberlain's Submissions on Class Action and Litigation Funding Reform to the New Zealand Law Commission - Supplementary Issues Paper 48

The New Zealand Law Commission is reviewing Class Actions and Litigation Funding in New Zealand. The NZLC produced Supplementary Issues Paper 48 for consultation with stakeholders. This submission contains Nikki's response to Issues Paper 48. Nikki is an invited member of the expert advisory panel advising the NZLC on the review of Class Actions and Litigation Funding.

A critical review of the New Zealand Law Commission Report 144: The Use of DNA in Criminal Investigations

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Nikki Chamberlain's Submissions on Class Action Reform to the New Zealand Law Commission 2021 (Responding to Issue Paper 45)

The New Zealand Law Commission is reviewing Class Actions and Litigation Funding in New Zealand from 2020 - 2022. The NZLC produced Issues Paper 45 for consultation with stakeholders.

Personal Obligations Made Binding on Future Landowners in New Zealand – The Unstable Edifice That Is <i>Jackson Mews v Menere</i>

The purpose of this article is to explain why the result achieved by the Court of Appeal and Supreme Court in Jackson Mews Management Ltd v Menere (Menere) is unsatisfactory and conflicts with our understanding of the nature and character of real property obligations. Flowing from those decisions, encumbrance instruments securing performance of personal obligations may be imposed in New Zealand against future landowners (perhaps) in perpetuity. The result brings into question whether there is justification in continuing to impose obligations by easements, leases or land covenants, given the same or more onerous performance may be imposed by using encumbrance instruments. The New Zealand Law Commission recognised the problems arising from Menere and proposed a legislative solution. However, this was not enacted as part of the Land Transfer Act 2017. Consequentially, the two Menere judgments need to be subjected to close scrutiny to better comprehend their impact and also to assist in future judicial consideration of this issue.

Points of Tension: Fraud and Challenges under Guarantee of Titles Regimes

The blunt nature of statutory based indefeasibility regimes are not by nature, sensitive the vulnerabilities of the particular parties before the court. Given this, courts sometimes stretch the various exceptions stated in the statute to accommodate difficult cases. Where this occurs, uncertainty arises as to both the nature and the breadth of the indefeasibility protection offered by the statute. In this regard, the Land Registration Act 2002 and the various Australasian Torrens regimes include “fraud” as a stated exception to the indefeasibility protection given by the relevant legislation. The paper questions what the nature of this fraud exception is, and asks how it should operate in conjunction with “in personam” exceptions to the indefeasibility. If some form of judicial discretion is necessary to soften the blunt nature of indefeasibility protection, it is argued this should instead come about through legislative change. In this regard, the New Zealand Law Commission has recently recommended the enactment of a concept of “manifest injustice” as an exception to indefeasibility.

Institutional law reform in New Zealand: the importance of independence

ABSTRACTIn this article, Geoff McLay, a former New Zealand Law Commissioner, asks what distinguishes Law Commissions from government agencies through which Governments might seek to reform the law. He does this by examining the work of the New Zealand Law Commission within the context of reform generally within New Zealand in order to establish what the Law Commission adds to the general policy and law-making machinery. Professor McLay argues that the work of the Commission, and its success (and failures), can be usefully viewed through two lenses of identity and process. The identity lens points to the aspects of the Commission’s work that come from it being a ‘Law Commission’ and explains much of its work in the area of ‘lawyers’ law reform'. The process lens which focuses on the Commission’s independence from Government policy control explains the Commission’s ability to take on non traditional projects. He argues that it is this independence, albeit imperfect, that makes the Law Commission a valuable part of the law-making scene that should not be necessarily restricted to ‘lawyers’ law reform'.

The Far Side of the World – The 'Three Key Proof Requirements' and Automation of the Land Registers in New Zealand and Australia

In the 21st century the drive to automation of registries (land registries in particular) is irresistible. There are obvious advantages to be achieved in terms of speed, cost savings, and immediacy of registration. Automation provides access to an overwhelming amount of “on line” information unthinkable in terms of the operation of a manual system. The scale of information enables audits and monitoring of registration practices not tenable in the manual environment. However, a more sophisticated dialogue is necessary where the operating system is more than a mere “recordation of deeds.” This is especially so in Torrens jurisdictions, where successful registration creates a State guarantee of title. In such an environment, a post registration audit may discover registration irregularities, but this will be of limited value. This is because as consequence of registration being achieved, the State guarantee of title applies in the absence of fraud by the registrant. This occurs even if the dealing is void or voidable. In New Zealand, a fully automated Torrens register, Landonline, has been in operation since 2003. In Australia, an Electronic Conveyancing National Law (ECNL) is presently being designed for introduction over the eight separate State jurisdictions that make up Australia. Three key proof requirements have been developed in order to assess the comparative worth of each of the manual system, Landonline and ECNL. These requirements focus on issues that have central importance in an automated environment. This paper first explains the three key proof requirements, and why they have validity as a measuring tool. The three key proof requirements are then utilised to analyse the comparative worth of each system. Under this analysis the position is taken that any new system should at least be as sound as the system it replaces. This paper concludes that the protections inherent in the manual Torrens system have not been translated into comparable protections under New Zealand’s Landonline system. It is difficult to form a clear assessment at this stage in regards to the credibility of ECNL as the design of this system is not yet settled and its operation is intended to allow for regional variations in registration practice between the Australian States. The paper closes by questioning whether an automated Torrens system should include a mechanism for overturning void or voidable registration in the absence of fraud being found. The New Zealand Law Commission has recently proposed such a test. However, the threshold it has proposed for overturning registration is suggested to be set at too low a level, incompatible with the Torrens concept of certainty of registration.

Law, Liquor, and Love

This article discusses attempts at alcohol law reform in New Zealand between 2008 and 2017. First, it describes a major review of alcohol by the New Zealand Law Commission, headed by Sir Geoffrey Palmer, who had overseen liberalisation of alcohol regulation 25 years earlier. The main recommendations of the commission’s final report featured progressive reform of the alcohol laws regulating marketing, price, accessibility and age of purchase. Second, it outlines the response to the commission’s report by the Nationalled government, including an Alcohol Reform Bill that ignored the key recommendations of the commission. This ‘non-reform’ bill was the outcome of a political process of obfuscation, delay and inaction led by then prime minister, John Key. Third, the article describes the factors that have contributed to the lack of effective alcohol law reform, despite the review and high public support for change over the past decade. We conclude that ‘the love of money’ is at the heart of the barriers to change. Finally, we propose three main policies that would make a significant difference to reducing alcohol-related harm in New Zealand and suggest how these could be advanced.

Creation of Estates for Services – New Zealand Style

The doctrine of tenure and estates is, of course, the theoretical starting point (Indigenous issues aside) for our understanding of land law built from the English common law system. Occasionally, the skeletons of this past do come back to bite, as evident in New Zealand with the recent proliferation of encumbrance instruments, as a device to ensure the performance of collateral and personal obligations by landowners. The end result, accompanied by the ignored advice of the New Zealand Law Commission, has resulted in a mess, creating conceptual confusion for the next generation of legal practitioners as well as law students.

Law Reform in New Zealand

Why should the international law reform community be interested in how New Zealanders do law reform, or how New Zealanders debate how law reform? This article argues that there are three principal reasons that New Zealand ought to be of interest. 1 A small place that does lots of reform, or at least thinks a lot about reform First, the very smallness of New Zealand (a population of 4.8 million) creates both opportunities and problems for law reform that do not necessarily exist in the same way in larger countries. Literature often focuses on the difficulties of reform in large legal systems, such as those is in Europe or North America, but smaller countries present issues that are worthy of study. New Zealand is a case study of how law reform can, and should, be done in smaller jurisdictions, as well as what cannot be done, or done only with difficulty. 2 A successful legal system Second, observers often see New Zealand as successful both in its respect for the rule of law and in the state of its law more generally. While there is some contrast between the helicopter view of a successful legal system and the angst of local commentators who claim that New Zealand is falling behind, that success ought to prick overseas attention as to how New Zealand accomplishes what it does. 3 A different kind of traditional Law Commission? Thirdly, while New Zealand has an independent Law Commission, as other Commonwealth countries do, there has been a distinct change of emphasis from an identity model to a process model of law reform. The identity model presents law reform as accomplished by a certain kind of body, while the process model focuses on the significance of the Commission's independence in the policy and law reform process. This process model of law reform claims not to remove politics from law reform, but rather to enable law reform even where politics might otherwise have prevented it. Moreover, focusing on the process rather than the identity of the body raises the prospect that the “law reform” process can be applied to subjects beyond technical lawyer's law. This is a view that is most associated in New Zealand with Sir Geoffrey Palmer, who was the founder of the New Zealand Law Commission during his time as Attorney-General and Minister of Justice, and who served as president of the Law Commission from 2005 to 2010.

New Zealand Students and ‘Cultures of Intoxication’

The drinking practices of New Zealanders have been the subject of much concern, culminating in a report by the New Zealand Law Commission in 2010 which presented evidence-based recommendations for implementing effective alcohol policies in New Zealand. Within debates about alcohol consumption and drinking practices, New Zealand University students have been identified as a group of young people who drink more heavily than their peers, as well as suffering from more alcohol related harms. The following discussion focuses on a group of eight university students, aged 18–19, some who were non- or light-drinkers, and their reflections on the cultures of intoxication that they negotiate, as well as their experiences of peer pressure. The aim of this article is to discuss the drinking and abstinence prac- tices of this group of New Zealand university students to explore how they interact with or resist contemporary cultures of intoxication in the particular context of university life. Eight qualitative, semi-structured interviews were thematically analysed and the themes: cultures of intoxication, peer pressure and inexperienced ‘drinking disasters’ are discussed. This paper critically ex- plores these key themes and discusses the New Zealand context in relation to the international literature about student drinking cultures (Hernandez, Leotini and Harley 2013; Romo 2012; Supski, Lindsay and Tanner 2016), including young people who are light or non-drinkers (Conroy and de Visser 2014; Nairn, Higgins, Thompson, Anderson and Fu 2007; Fry 2010; Herring, Bayley and Hurcombe 2014). The interviews identified an overarching New Zealand culture of intoxication, as well as more local cultures of intoxication, which students bring with them to a university setting.

The New Zealand 'Adverse' Occupation Regime, Torrens Principles and the Issue of Due Process

The New Zealand adverse occupation regime, which was the subject of the 1963 Land Transfer Amendments Act, is argued to insufficiently protect the interests of the Torrens registered proprietor, and to be in need of legislative reform. Indeed, the description of the squatter’s occupation as being “adverse” to the registered proprietor’s title is itself misleading, given this does not properly reflect the nature of possession required for a claim to succeed at law. The issue has currency given the New Zealand Law Commission recommended the regime in the 1963 Act be incorporated, without significant change, into a new Land Transfer Act, which has been now legislated as the Land Transfer Act 2010. The article concludes with recommendations for legislative reform

The robust attitude of Australian courts in family law proceedings involving trusts; New Zealand Law Commission tinkers with trusts, and satirizes Prince Charles; whether the time has come for a Commonwealth counterpart of the American Law Institute; trustee investment, and portfolio theory--New Zealand and US perspectives; Letters of Wishes expertly analysed; how the Supreme Court might have decided Marley v

The robust attitude of Australian courts in family law proceedings involving trusts; New Zealand Law Commission tinkers with trusts, and satirizes Prince Charles; whether the time has come for a Commonwealth counterpart of the American Law Institute; trustee investment, and portfolio theory--New Zealand and US perspectives; Letters of Wishes expertly analysed; how the Supreme Court might have decided Marley v

Trusts: The Proposed Reforms

The Final Report of the New Zealand Law Commission on the law of trusts included a proposed Trusts Act. This paper considers the key proposals and examines their potential impact on the use of family trusts in New Zealand.

Trusts' law reform: do we need a statutory straitjacket?

The New Zealand Law Commission has presented recommendations for the review of trusts’ law. It proposes far-reaching reforms including defining a trust in statute. There is a clear risk that some proposals would have an adverse effect on New Zealand trusts. In particular, they may damage the marriage between flexibility and certainty that exists in trusts’ jurisprudence and that enables the law, to a considerable degree, to future proof itself against unknown and unknowable change, especially in a financing context. A statutory straitjacket is not the answer. Further analysis of the ramifications of the proposed reforms needs to be undertaken.

The contested terrain of alcohol sponsorship of sport in New Zealand

This study examines the politics and policy implications of alcohol sponsorship of sport in New Zealand. Specifically, it draws on the recommendations of the 2010 New Zealand Law Commission report titled Alcohol in our lives: Curbing the harm, which called for the gradual elimination of all alcohol sponsorship from New Zealand sport. Using a multi-method approach, the paper examines the contested terrain of the alcohol–sport relationship, that is, the nature of the relationship and its potential impact on the nation’s binge drinking culture, how it is regulated by both states and sport organisations within the international community and, finally, the perspectives of key stakeholders in the debate. The views of key stakeholders offer insights into the nature of competing interests at play within the alcohol–sport sponsorship relationship. Overall, the findings highlight the challenges of social change and the need for more research and a community-based, multidimensional approach that is reinforced through regulation.

NZ Law Commission--proposal for trust reform

The New Zealand Law Commission, after a long deliberation, has released its proposals for the reform of New Zealand's Trust law. This is not the last word, as submissions were invited to those proposals, and the Commission's final recommendations are expected in the next few weeks. The summary below represents the proposals of the Commission, not its final report or recommendations. 1. ‘Trust’ will become a defined term in the new legislation. The core concepts employed in the definition are the ‘enforcer principle’ of Morice v Bishop of Durham and the ‘three certainties’ outlined in Knight v Knight. 2. Trustee duties will be divided into three categories: The mandatory conduct duties will be: 3. There needs to be some clarity as to the Commission’s proposals concerning the permissible scope of limitation or exemption of trustee liability clauses in trusts. This...

NZ watchdogs must keep up with media’s changing face

A discussion paper released by the New Zealand Law Commission just before the end of 2011 looked into how well the regulatory framework governing the NZ media was working, and concluded that change was needed. Currently complaints must be made first to the publication or broadcaster concerned. Only if the complainant is dissatisfied with the outcome is there a right of appeal to the self-regulatory Press Council, for print media, or, for radio and television, to the statutory Broadcasting Standards Authority (BSA). The commission’s recommendation is for a new single regulator created by statute to which all complaints about ‘news media’ would be directed. Unlike the Press Council or the BSA, the new regulator could intervene without any complaint being laid and—possibly—even before a story is published where there are concerns about the methods the journalist used to gather information. And, importantly, online media would be included. But debate about the issues in New Zealand have been rather muted compared to the Australian and British debates.

Simplicity in Legislative Drafting and Rewriting Tax Legislation

The search for simplicity in legislative drafting affects all legislatures. It is also central to the work of the New Zealand Law Commission and of governments in other comparable jurisdictions. Rather than exploring a range of statutes in various jurisdictions, this article focuses on income tax. It does so for two reasons. The first is that income tax has been crucial to the funding of government in common law jurisdictions and to achieving a legislative balance between simplicity and other criteria of an acceptable tax system. The second is that we can draw on three recent projects to rewrite income tax legislation – in Australia, the United Kingdom and New Zealand.

Use of Alternative Ways of Giving Evidence by Vulnerable Witnesses: Current Proposals, Issues and Challenges

Fifteen years after the New Zealand Law Commission rejected pre-trial recording of cross-examination, that proposal is back on the reform agenda. Drawing from research examining comparative pre-trial and trial practices in cases of sexual offending, this article discusses the backdrop to the debate surrounding pre-recording, including the provisions of the Evidence Act 2006 and the approach of the courts to alternative ways of giving evidence. The benefits and drawbacks of pre-trial recording of evidence for adult witnesses are canvassed – including practical, evidential and psychological issues – leading to the conclusion that rather than a presumption in favour of any particular alternative way of giving evidence, close consideration of the individual circumstances of each case is required.