Zealand Law Research Articles

Nature as an Ancestor: Two Examples of Legal Personality for Nature in New Zealand

In this chapter I first briefly outline the indigenous Maori concept of nature as an ancestor, with the correlative human responsibilities of guardianship for nature. I then describe the two examples where nature is being given legal personality in New Zealand law: that of the Whanganui River and of what was previously Te Urewera National Park, now simply called Te Urewera. I then offer some concluding observations and comments. This paper is a shorter summary of some longer papers I have written on this topic. It appeared in both book chapter and refereed journal article published in Sept 2015 by VertigO. This SSRN version is the 2014 author's draft of the final, published paper.

So near yet so far: implications of the Organised Crime and Anti-corruption Legislation Bill

When is a bribe not a bribe? A surprisingly large number of times under current New Zealand law. So many, in fact, that its outdated legislation has regularly been cited as a key reason why, despite its deserved reputation for good governance, New Zealand remains one of very few signatories to the United Nations Convention against Corruption (UNCAC) that has yet to ratify it, alongside Syria, Bhutan, Barbados and Japan. The Organised Crime and Anti-corruption Legislation Bill (OCACL Bill) is explicitly designed to change this state of affairs.

European norms in transit: trade mark norms, TTIP uncertainties and the relevance of TPP

Previous research has demonstrated that EU trade mark norms found their way into New Zealand law through the World Trade Organisation agreement on Trade-Related Aspects of Intellectual Property Rights (WTO TRIPS). This paper will give a brief resume of that research and outline the current enquiry—whether these and related norms are likely to be re-transmitted, in identical or modified form. This could occur via the draft intellectual property chapter of the proposed Trans-Pacific Partnership (TPP) agreement. While this was under discussion, the EU and USA were negotiating a Trans-Atlantic Trade and Investment Partnership (TTIP) agreement. Although geographical indications (GIs, protected under trade mark law in the USA) have been a hot topic in TTIP negotiations, there is scant information on any possible chapter on GIs, trade marks and other forms of intellectual property in TTIP. However, US Trade Representative and TTIP negotiator Michael Froman has spoken admiringly of the intellectual property provisions in the draft TPP. If an intellectual property chapter were introduced into TTIP, it seems likely that TPP text would be adopted or adapted, bringing norms full circle back to the EU. In considering this possibility, it is suggested that the biological analogy of viral transfer of genetic code may be even more apt than that of transplants to illuminate the process of re-transmission of adopted or adapted legal norms through the medium of international treaties.

Circumcision and the best interests of the child.

Circumcision and the best interests of the child.

Application of the Wills Act 1837 to New Zealand: Untidy Legal History

The decision of Acting Chief Justice Stephen in McLiver v Macky (1856) was that the Wills Act 1837 (UK) did not apply in New Zealand because New Zealand had been annexed to the British Empire as a dependency of New South Wales. This case and its consequences were discussed in my contribution to the Victoria University of Wellington Law Review special issue in 2010 relating to the New Zealand Law Foundation's "Lost Cases Project". It transpires that Stephen ACJ and counsel in the 1856 case were unaware of the Imperial Act Adoption Act 1839 (NSW) which applied the Wills Act 1837 (UK) to New South Wales from 1 January 1840. This article suggests that, based on the reasoning of the Judge, the 1856 decision would have been the same even if that 1839 Act had been explicitly considered. It would still have been necessary for the New Zealand Parliament to enact the English Laws Act 1858.

New Zealand’s No Asset Procedure: A Fresh Start At No Cost?

A new procedure for insolvent individuals, known as the No Asset Procedure (‘NAP’), was introduced into New Zealand law in 2007. This article outlines that the government’s intention was to provide an alternative to bankruptcy for individuals whose circumstances were identified as not being adequately dealt under existing law. However, a 2011 Evaluation indicated many creditors and budget advisers were critical of NAP as failing to facilitate changes in spending and budgeting habits. Introducing mandatory financial literacy or budgeting courses would reinforce that NAP is an earned fresh start for debtors and may also increase the legitimacy of NAP in the eyes of society.

The New Zealand Bill of Rights Act

This is the text of Sir Robin Cooke’s contribution to the New Zealand Law Conference held in Wellington on 3 March 1993. In it, he explains the symbolic significance of the New Zealand Bill of Rights Act 1990 and offers his view on how judges should approach its interpretation. He describes the New Zealand Bill of Rights Act 1990 as a confirmation of New Zealand’s “commitment to rights and freedoms implicit in modern democracies”. He argues that even if society falls short of these ideals, the law should express the values that it aims to serve. So he says that judges must not decline to decide a case simply because it is difficult to apply generalised rights in individual cases. In his view, a Bill of Rights must be interpreted generously and simply, whether it is entrenched law or not. Abstract by Elizabeth Chan.

Notes for Address of Sir Robin Cooke, KBE, President of the Court of Appeal of New Zealand

These are the notes for the address of Sir Robin Cooke given at the opening of the new headquarters for the publishing house, Commerce Clearing House New Zealand Ltd (CCH) in Auckland on 5 April 1990. In this address, Sir Robin sketches the history of New Zealand law and New Zealand’s various sources of law. He considers that CCH publications accurately reflect the working of the New Zealand legal system and these sources of law, and outlines a selection of the range of legal publications offered by CCH, including specialist publications. Sir Robin comments negatively on the future development of electronic legal databases, he concludes with his well wishes that CCH will “go on from strength to strength”. Abstract by Tim Cochrane.

Editorial Note

The author provides an editorial note to this this special issue of the Victoria University of Wellington Law Review in honour of Harriette Vine, the Faculty's first woman law graduate. The articles highlight the disparities between women and men in the legal profession, critically analyse aspects of New Zealand law from a feminist perspective, and reflect the impact of gender in judicial decisions or legislation.

Researching Australian, New Zealand and Papua New Guinean Law

AbstractIn this paper Carole Hinchcliff, Megan Fitzgibbons and Claudia Davies review free resources that can be used when researching the law in Australia, New Zealand, and Papua New Guinea. Background descriptions of the countries' legal systems are provided, along with brief descriptions of websites which provide access to the legislation and case law of the relevant jurisdictions. The article is based on a presentation developed by Carole, and subsequently delivered by Megan and Claudia, at the International Federation of Library Association (IFLA) meeting in August, 2013.

The Challenges of Prior Use to New Zealand Registered Trade Mark Law

Under the Trade Marks Act 2002, the registrant of a trade mark is provided with the exclusive rights to use its trade mark. Priority to such exclusive rights is awarded to the person who files a trade mark application first. A searchable Register of trade marks enables traders and the public to see which trade marks have already been registered and by whom. This seemingly certain system is complicated by the continuing relevance of unregistered trade marks under New Zealand law. The first user of a trade mark in the marketplace is considered the true “owner” or “proprietor” of a trade mark. A prior user of an unregistered mark is able to prevent registration of a trade mark, or cancel an existing trade mark registration, even when the application was filed in ignorance of any prior use and where there is no prospect of consumer confusion. This article explores the unsatisfactory nature and consequences of this law of “proprietorship” and questions its continuing relevance.

Indirectly Directors: Duties Owed Below the Board

In 2012, the High Court of Australia considered the scope of the term "officer" in a case concerning the breach of a statutory duty by a company secretary and general counsel. The equivalent duties under the New Zealand Companies Act 1993 are owed by an ostensibly narrower class. In considering how New Zealand law would apply to the same situation, this article discusses the extent to which directors' duties are, or should be, owed by those below directorship level. It concludes that an expansive interpretation of the "director" definition is unnecessary and undesirable, and that explicitly extending the definition to encompass certain senior managers would create uncertainties for courts and corporate leaders.

The Challenges of Prior Use to New Zealand Registered Trade Mark Law

Under the Trade Marks Act 2002, the registrant of a trade mark is provided with the exclusive rights to use its trade mark. Priority to such exclusive rights is awarded to the person who files a trade mark application first. A searchable Register of trade marks enables traders and the public to see which trade marks have already been registered and by whom. This seemingly certain system is complicated by the continuing relevance of unregistered trade marks under New Zealand law. The first user of a trade mark in the marketplace is considered the true "owner" or "proprietor" of a trade mark. A prior user of an unregistered mark is able to prevent registration of a trade mark, or cancel an existing trade mark registration, even when the application was filed in ignorance of any prior use and where there is no prospect of consumer confusion. This article explores the unsatisfactory nature and consequences of this law of "proprietorship" and questions its continuing relevance.

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.

Foreword: New Zealand Studentss Law Journal.

This paper is a foreword by Lord Cooke to the second edition of the New Zealand Students’ Law Journal. This Journal has been replaced in spirit by the (on-going) New Zealand Law Students’ Journal. Although Lord Cooke first provides “rather jaundiced comments” on the proliferation of new legal periodicals he quickly moves to commenting favourably on both The Oxford University Commonwealth Law Journal and the New Zealand Students’ Law Journal. Lord Cooke highlights two purposes of the latter publication. First, it gives a picture of the present interest and concerns of lawyers of the future. Secondly, it provides discipline and satisfaction for successful contributors. He considers that the range of subject-matter and the fact that two thirds of contributors are young women are two particularly striking features of this publication. He concludes by noting that “[f]or the male chauvinist lawyer, the writing may be on the wall”.

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 Possibility of Amending New Zealandds General Anti-Avoidance Rule

In 2011 a Committee comprising representatives of the New Zealand Law Society, the New Zealand Institute of Chartered Accountants and an organisation called the Corporate Taxpayers Group published a Report proposing that the General Anti-Avoidance Rule or GAAR contained in ss BG 1 and GA 1 of the Income Tax Act 2007 should be amended. This article assesses the proposed amendments and concludes that, far from clarifying the law as claimed by the Committee, they would have the opposite effect; that they would consequently tend to increase the amount of litigation; and that they would permit forms of tax avoidance currently proscribed. The article concludes also therefore that it would be a mistake for the government to implement the Committee’s recommendations.

Socio‐legal Studies in Aotearoa/New Zealand

This article reviews the development and impact of the socio‐legal field in New Zealand. It begins by assessing the socio‐legal presence within teaching and research conducted across New Zealand's law faculties before analysing factors likely to inhibit future growth of the sub‐discipline in this remote jurisdiction. Having examined how New Zealand's legal scholars map and influence national legal behaviour, without always recognizing contradictions between these objectives or categorizing their research as ‘socio‐legal’, the article goes on to examine how the next generation of socio‐legal researchers might exert stronger influence over the law curriculum and new areas of legal policy. In conclusion, it argues for a distinctive New Zealand approach toward socio‐legal studies and notes that future prospects appear encouraging, and in certain respects more promising than those in the United Kingdom, particularly when considering research impact.

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.