Zealand Legal System Research Articles

More than the Rules – Therapeutic Jurisprudence and Legal Actors in New Zealand's Legal System

Therapeutic Jurisprudence (“TJ”) is the study of the psychological impact of the law. One way that TJ can be applied is by examining the way legal actors such as lawyers, judges, court appointed specialists and court registrars, go about their work. In Aotearoa New Zealand's Family Justice System (“FJS”) there have been long standing concerns about the FJS is not meeting the needs of participants in the system. In particular, concerns about Māori, migrants and survivors of family violence not having their needs yet have persisted for decades. This article addresses concerns for each group, and gives examples of how legal actors can use TJ to improve the system for their clients by the way they go about their work.

Law’s response to New Zealand’s ‘darkest of days’

This article discusses various aspects of the New Zealand legal system’s response to the 15 March Christchurch mosques attack. It also considers New Zealand’s response to the attack from the perspective of the academic literature on the policymaking process and argues that the response to date has been modest and cannot be characterised as a knee-jerk reaction.

What is communication assistance? Describing a new and emerging profession in the New Zealand youth justice system

‘Communication assistance’ is a term that derives from section 80 of the Evidence Act 2006: a legislative provision that has given birth to a whole new profession in the New Zealand legal system. This legislative provision has been used to appoint a new role: that of the communication assistant to support complainants, witnesses and defendants of all ages with identified communication needs. This study focuses specifically on the provision of communication assistance for young people who offend in the New Zealand criminal justice system. It provides a qualitative analysis of professionals’ descriptions (n = 28 participants) of communication assistance for this population in justice processes. The findings illustrate that communication assistance shares its core with a similar role in England and Wales, that of the intermediary, but that communication assistants in New Zealand have broader scope than their counterparts working in the area of youth justice.

Sexual Harassment in the Workplace: Is the Personal Grievance Process Adequate?

Sexual harassment infiltrates many workplaces across New Zealand. In recent years, the issue has received growing media coverage and public discussion. Due to the destructive nature of sexual harassment, the New Zealand legal system needs to have strong protections in place for victims. The personal grievance process offers one avenue for an employee to seek recourse against their employer for sexual harassment they suffered during employment. This essay examines whether the current personal grievance process under the Employment Relations Act is fit for dealing with instances of sexual harassment that occur in the workplace. Significant flaws in the process are identified and reform is proposed. The current dispute resolution options available to victims of workplace sexual harassment are also problematic. Mediation may be inappropriate for resolving many cases of sexual harassment in the workplace. The investigative role of the Employment Relations Authority has the potential to provide a better dispute resolution option for employees who suffer sexual harassment. In sum, the current personal grievance process, including dispute resolution options, are inadequate for dealing with cases of workplace sexual harassment in New Zealand and reform is needed.

Legal Consequences of Animal Hoarding in New Zealand

A 10-year prohibition against a defendant from owning or exercising authority over any animals has been upheld by the New Zealand Court of Appeal in an animal hoarding case which has progressed through the New Zealand legal system over the past 5 years. This comment reviews the Court of Appeal decision ( Kondratyeva v R CA6/2015 2015] NZCA 266 [23 June 2015]) and explores the increasing evidence of a mental health component in animal hoarding behaviour. It also discusses the stress and burden that animal hoarding cases places on the shelters that have the legal responsibility for prosecuting animal cruelty cases in New Zealand.

English language issues for jury service by New Zealanders from migrant and refugee backgrounds

This paper describes an exploratory study carried out to identify the issues for jury service for people with low levels of English language ability. Questions were emailed to English language teachers and providers of support services to New Zealanders from migrant and refugee backgrounds. The experiences reported by respondents related to issues of understanding the New Zealand legal system, responses to jury summons, excusal from jury service, jury selection, and courtroom and jury room language. In addition, the levels of English language ability appropriate for jury service and approaches to assessing this were identified as concerns. Suggestions are made for improvements to the process and framework for jury service.

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.

The Common Law Mind of George Barton

Dr George Barton’s remarkable life in the law exemplified two themes of general lasting importance. The first is the need to ensure that, in its progressive development, the New Zealand legal system takes full advantage of its membership of the wider common law family of legal systems. McLachlan argues that this is not merely a matter of optional comparative reference, pursuing a vague notion of transnational law. Rather, consideration of other common law authority is integral to legal reasoning in New Zealand and essential if the New Zealand legal system is to avoid the risk of insularity. The second general theme is the contribution that New Zealand can make to the practical achievement of international human rights, particularly within the same family of legal systems. McLachlan develops these two linked themes by reference to his personal experience of working with Dr Barton on Commonwealth legal matters over the last 30 years.

Disciplinary developments in New Zealand

Background New Zealand's disciplinary regimen has particular significance because victims of personal injury are almost entirely barred from suing for common law damages in civil proceedings. Contents This article examines the New Zealand legal system, and considers how it attempts to maintain the accountability of medical professionals, while preventing the rising tide of litigation seen in other jurisdictions. Generally, New Zealanders do not have recourse to traditional malpractice litigation. One aim of tort litigation is to hold the responsible individuals accountable for their actions. In the absence of malpractice litigation, New Zealand's approach to maintain accountability by health professionals includes a code of consumers' rights, competence assurance legislation, and a disciplinary tribunal. This disciplinary body offers a valuable international comparator because it applies across the health professions. Case studies from select health professions (occupational therapy, osteopathy and physiotherapy) reveal the types of misconduct that qualify for discipline and the corresponding penalties. Conclusions New Zealand's disciplinary regimen functions as a form of preventive law on behalf of health providers and their patients. All therapists need to be aware of the relevant rules and regulations in their own jurisdiction, but it is important to consider those of others.

"Treaty Principles": Constitutional Relations Inside a Conservative Jurisprudence

This article looks at the impact and afterlife of the groundbreaking Maori Council judgments handed down in the late 1980s by the Court of Appeal presided by the late Sir Robin Cooke (as he then was). This article refutes any notion of constitutional relations with Māori being founded on race despite unilateral (and long discarded) legal design tending towards that characterisation. The true pattern has been iwi-based and it has arisen from the continuity of whakapapa in the organization of Maori political life and relations with the state notwithstanding meddlesome but ultimately ineffectual legislative attempts to dilute tribalism. Over the past twenty plus years, the Treaty claims processes initiated in 1985 have accentuated and revitalised that tribalism. Far from licensing judicial interventionism "Treaty principles" are part of an embedded and conservative jurisprudence of Māori affairs. Their elimination from legislation would amputate a major segment of that jurisprudence. The courts, whose profile in this broad field (Treaty claims processes most notably) is mostly a resiling one, would respond by generating their own version. The legacy of Sir Robin Cooke’s court is deep-rooted and thoroughly integrated into the New Zealand legal system.

"Salmond's Bench": The New Zealand Supreme Court Judiciary 1920-1924

John Salmond dominated the New Zealand legal environment during the early twentieth century. Salmond performed many roles in the New Zealand legal system. This article focuses on his final legal role, as a Supreme Court judge, and looks at the nature of the Supreme Court Bench from 1920 to 1924. Some of New Zealand's greatest legal names sat with Salmond during this time. Twentieth century New Zealand legal history is a relatively unexplored area and requires more attention from historians. This article provides the basis for possible future work on the Supreme Court Bench during the early 1920s. In discussing the nature of "Salmond's Bench" the backgrounds of the different Supreme Court justices are explored. Following this, selected cases are analysed revealing distinctive factors relating to how this group of judges worked together and the nature of their judgments. Particular attention is paid to the divisions on the Bench regarding the crucial social issue of divorce. Viewing the decisions made by Salmond's Bench in the context of the political and social backgrounds of the judges and the historical background of this period provides a vital third dimension to the judgments. Salmond's distinctive approach to judicial decision-making becomes clearer when directly compared with the approaches of his judicial peers.

Book Review: Richard Scragg New Zealand’s Legal System

This article is a book review of Richard Scragg New Zealand's Legal System (Oxford University Press, Melbourne, 2005) (146 pages) NZ$49.95. The book is a new guide to the principles of the legal system which introduces core legal concepts to law students. Even though the book does not have the depth and details of McDowell and Webb's "The New Zealand Legal System", Wright recommends the book as an accessible study guide for law students in their first year.

Lesbian Access to Justice

SUMMARY Although some aspects of New Zealand family law have been criticised as discriminatory, the New Zealand legal system has yet to be critically examined from a lesbian perspective. This article begins a development of lesbian legal theory for Aotearoa/New Zealand by analysing the contribution that the 1999 Law Commission study, Women's Access to Legal Services,has made to our knowledge about the impact of the law on lesbian relationships and communities.

New Zealand: New Initiatives

New Zealand's legal system is largely the product of its colonial heritage. In 1840 Governor Hobson, on behalf of the queen of England, concluded the Treaty of Waitangi with the indigenous Maori peoples, who exchanged their sovereignty for the guarantees contained in the treaty. New Zealand subsequently developed a Westminister-style par liamentary system, and a legal system rooted firmly in the common law. Although New Zealand has no formal written constitution, several documents (e.g., the Treaty of Waitangi, the Constitution Act 1986, the New Zealand Bill of Rights Act 1990) syner gistically create an unwritten constitution, which respects the notion of Parliamentary sovereignty. Governance of the courts system is the responsibility of the Department for Courts, which was established as a distinct entity in 1995 when it was separated form the former Ministry of Justice. The Department, part of the executive branch of government, con sults regularly with the judiciary on matters central to effective administration of the courts. This close relationship between purportedly diverse governmental bodies raises obvious questions about the separation of powers. It has recently been suggested that judicial independence could be better served by control of case processing in the hands of the Judiciary served by an administrative Department, with a budget provided by the state but managed by the Judiciary with appropriate accountability for its disbursement.1 New Zealand has four courts of general jurisdiction, arranged in simple vertical hierarchy. They are (in ascending order):

The UN Draft Declaration on the Rights of Indigenous People - The International and Constitutional Law Contexts

This article is an edited version of one of the six papers presented to the International Law Association/International Commission of Jurists seminar on the UN Draft Declaration on the Rights of Indigenous Peoples which was held in Wellington on 23 August 1997. The author discusses the New Zealand Government policy towards the Draft Declaration on the Rights of Indigenous Peoples. She first identifies key issues of international law, explores the relationship between the Draft Declaration and the Treaty of Waitangi, and looks at some implications of both for the New Zealand legal system and our national society. In doing so, the author focuses on the political rights of indigenous peoples – particularly the principles underlying those rights, not the way they are expressed in the text. The author concludes that most, if not all, the significant changes in the international community and in the lives of nations have been brought about by acts of good faith. Accordingly, it is the author's belief that the end product is likely to be the strengthening of the national societies to which the indigenous peoples of the world belong.

Legal Environment for Petroleum Exploration: An Overview

This paper is an overview of the New Zealand legal environment as it affects petroleum explorers and their operations in New Zealand. It includes a brief summary of the New Zealand legal system and identifies the business structures commonly used and recognised under New Zealand law. It continues with an outline of the significant legal requirements governing petroleum exploration, including the Crown Minerals Act (rights and obligations of permit holders), environmental and conservation laws, Overseas Investment Act and Regulations, Commerce Act, Fair Trading Act, taxation aspects of operations in New Zealand, the no-fault Accident Compensation scheme and other operational requirements. The paper concludes with comment on government participation, current government policy and the legal and administrative framework in which that policy is implemented.

Confronting Impediments to Enterprise: A Legal Perspective

This paper is an edited version of a paper presented to the New Zealand Oil Exploration Conference at Wairakei, New Zealand, 1–3 July, 1987. The paper is an overview of the New Zealand legal environment as it affects petroleum explorers and their operations in New Zealand. It includes a brief summary of the New Zealand legal system and identifies the business structures commonly used and recognised under New Zealand law. It continues with an outline of the significant legal requirements governing petroleum exploration, including the Petroleum Act and Regulations (rights and obligations of Licensees), environmental and conservation laws. Overseas Investment Act and Regulations, Commerce Act. Fair Trading Act. taxation aspects of operations in New Zealand, the no-fault Accident Compensation scheme and other operational requirements. The paper concludes with comment on government participation, current government policy, the legal and administrative framework in which that policy is implemented and some comment on prospects for the future.

The Royal Commission on the Mount Erebus Air Disaster

On 28 November 1979 an Air New Zealand DC 10 aircraft on sight-seeing flight TE901 crashed into Mount Erebus, Ross Island in the Ross Dependency, Antarctica, killing all 257 people on board. The disaster and its subsequent investigation are of considerable concern not only for the New Zealand legal system, but also for the nascent discipline of Antarctic law (Auburn 1982).

The Law of Defamation in New Zealand

W HATEVER opinions may be voiced about the future of the British Commonwealth (or, to satisfy the questionings of some of its emergent members, the Commonwealth, simpliciter), New Zealand as one of its foundation members remains, to quote a popular phrase, British than Britain. So far as its legal system is concerned this statement is undoubtedly true; although, to avoid wounding the susceptibilities of the Scots, it is preferable to say, this context, that New Zealand is more English than England. True to the principle enunciated by Blackstone,' the early migrants to New Zealand carried with them such of the English laws then force as were applicable to their own situation and the condition of the infant colony. The pattern of the New Zealand legal system was, at that time, English. So it has continued until the present day. No law library worthy of the name lacks Halsbury's Laws of England and probably, Halsbury's Statutes also. The English Reports, their 176 volumes, and the reports published by the Incorporated Council for Law Reporting England are prominent on the library shelves and on the tables at the Bar. The New Zealand Law Reports for 1963 show that of the cases cited the Supreme Court and the Court of Appeal during the period covered by that volume, nearly 700 were cases decided the English courts as against 336 decided the New Zealand courts. It is recorded regretfully that the same volume of reports shows that only seven cases from the Canadian courts were cited. Thus New Zealand, general, follows English law. This statement is well illustrated by the law of defamation. Gatley on Libel and Slander is recognized as the leading text-book on the subject. The English Defamation Act 1952 was largely followed the New Zealand Defamation Act 1954. Such leading authorities as Stuart v. Bell2 are as familiar the New Zealand courts as they are England. Largely, therefore, the law of defamation New Zealand is a counterpart of the law on that subject England. The New Zealand authorities do, however, illustrate the application of that law an antipodean setting. In one important matter however, the law of New Zealand differs from the law of England. In New Zealand, so far as the civil law is concerned, libel and slander have, effect, been assimilated. Section 4 of the Defamation Act 1954 enacts that in any action for defamation (whether libel or slander), it shall not be necessary to allege or prove special damage. When the English Committee on the Law of Defamation3 (the Porter *Dean of the Faculty of Law, The University of Auckland, Auckland, New Zealand. ICommentaries, vol. I, p. 107. 211891] 2 Q.B. 341. a(1948) Cmd. 7536.