Item Open AccessCorruption and money laundering in the Pacific : Intertwined Challenges and Interlinked Responses(Transparency International New Zealand, 2022) Nguyen C; Hopkins J Item Open AccessAmicus Curiae Brief, Case of the Indigenous Maya Q’eqchi’ Agua Caliente Community v Guatemala-- Informe de Amicus Curiae, Caso de la Comunidad Indígena Maya Q'eqchi' Agua Caliente contra Guatemala(2022) Hobbs H; do Vale Alves A; Campbell-Duruflé C; Fallis Cooper J; Francesconi L; Frisso G; Hossain M; Liljeblad J; Lixinski L; Mantilla Y; Natali M; Pegorari B; Wewerinke-Singh M; Esterling, Shea; Young, StephenIn accordance with the conditions set by the Court, this submission is filed in connection with the Case of the Indigenous Maya Q’eqchi’ Agua Caliente Community v Guatemala. The Inter-American system for the protection of human rights is one of the most important normative venues regarding the recognition and implementation of Indigenous peoples’ rights. The reasoning adopted by the Court in this case will impact Indigenous peoples’ across the globe. Because of the potential impact of this decision, we have decided to submit this Amicus Curiae brief. We are a group of international law academics, international lawyers, and human rights advocates with expertise in the rights of Indigenous peoples. We are members of the American Society of International Law’s Rights of Indigenous Peoples Interest Group, though we have prepared this submission in a personal capacity. Our submission does not reflect the views of the American Society of International Law. Item Open AccessResponses to Office of The Prosecutor Draft Policy on Cultural Heritage([on file with the authors and the ICC], 2021) John-Hopkins M; Esterling, Shea Item Open AccessSubmission on Sexual Violence Legislation Bill 2019(Justice Select Committee, 2020) McDonald E Item Open AccessSurrogacy and Human Rights in New Zealand : Rethinking Surrogacy Laws Te Kohuki Ture Kopu Whangai(School of Law, University of Canterbury, 2020) Baird, Natalie; Powell, Rhonda Item Open AccessSubmission on "A Constitution for Aotearoa New Zealand"(2017) Baird NJ; Macpherson E; Barnett S; Brierley OF; Kennedy T; Thompson C; Siataga T Item Open AccessFlexible and Part-time Work Arrangements in the Canterbury Legal Profession : A Report prepared by the University of Canterbury Socio-Legal Research Group for the Canterbury Women’s Legal Association(University of Canterbury, 2017) Cheer U; Taylor L; Masselot A; Baird N; Powell RLIn 2015 a research team in the School of Law at the University of Canterbury developed a project with the Canterbury Women’s Legal Association to gather information about flexible and part-time work practices in the Canterbury Legal Profession. For the purposes of the project, part-time work is defined as a form of employment which carries fewer hours per week than a full-time job. A flexible work arrangement is defined as an arrangement where an employee benefits from working practices that offer different degrees of structure, regularity and flexibility. Such arrangements may include the ability to choose the start and finishing time of the working day or compressed work weeks. In November 2015 the Canterbury and Westland Branch of the Law Society, on behalf of the project team, invited all qualified lawyers practicing in the Canterbury and Westland area to participate in a short online survey examining flexible and part-time working arrangements. An invitation was also sent to all legal executives working in the same area. One hundred and thirty eight responses were received and over 90% of these were from female lawyers and legal executives. Although lower participation rate by males is reported in other studies focusing on the legal profession, the gender split in the responses in this project was far more pronounced, suggesting a lack of interest by local male lawyers in this issue. Survey participants were either practising lawyers or legal executives, with legal executives making up 21% of the survey cohort. Fifteen percent of the cohort identified as employers. Ninety six percent of the employee cohort was working on a permanent contract of employment. Just under 50% of the employee cohort were working under a flexible or part-time arrangement. Item Open AccessSuicide Reporting in the Coronial Jurisdiction(University of Canterbury. School of Law, 2014) Powell, RhondaSuicide is the leading ‘external’ (non-natural) cause of death in Australia. Australian coronial courts play a critical role in reporting suicide deaths. Coronial findings contribute to the data used by the Australian Bureau of Statistics to compile mortality statistics, which underpin suicide prevention strategies and their evaluation. The public interest requires that coroners report suicide when it occurs so as to allow accurate statistics about the incidence of suicide to be collated, to promote efficient suicide prevention strategies and enable suicide prevention objectives to be achieved. It is widely recognised that suicide is underreported. The Coronial Council of Victoria (Council), whose membership includes medical and legal professionals as well as community and police representatives, has investigated problems with suicide reporting in the Victorian coronial jurisdiction. The Council aims to promote change within the Victorian coronial jurisdiction with a view to parallel changes being implemented throughout Australia. The key problem identified by the Council is that inconsistencies in coronial practices hinder the accurate collection of suicide data. Too often, when the deceased took an action that caused their death, the circumstances of death are described generally but an explicit finding is not made about whether or not the deceased intended to end their life. The Council has formed the view that there is a need for a legislative requirement that coroners make a clear finding about the intention of people whose actions cause their own death, where the evidence permits. There are a number of circumstances that may apply to such deaths, including accident and suicide. In some cases, the deceased may not have had the capacity to understand the effects of their actions or there may be insufficient evidence for the coroner to come to a conclusion about the deceased’s intent. In these cases, it would be useful for suicide prevention activities for the coroner to identify whether death was a reasonably foreseeable consequence of the deceased’s action. The primary recommendations of the Council are that the Attorney-General: 1. propose amendment to the Coroners Act 2008 (Vic) to require that coroners make a finding of intention, as supported by the evidence, in relation to all investigated deaths found to be caused by an action of the deceased; and 2. raise the issue of standardisation of coronial legislation and/or coronial systems in Australia in the Standing Council on Law, Crime and Community Safety and propose that changes be implemented in parallel in all Australian jurisdictions. The Council’s recommendations are set out in further detail at the end of the report. Item Open AccessResilience framework and guidelines for practice(University of Canterbury. Department of Accounting and Information Systems, 2012) Britt, E.; Carter, J.; Conradson, D.; Scott, A.; Vargo, J.; Moss, H.The Canterbury earthquakes are unique in that the there have been a series of major earthquakes, each with their own subsequent aftershock pattern. These have extended from the first large earthquake in September 2010 to currently, at the time of writing, two years later. The last significant earthquake of over magnitude 5.0 on the Richter scale was in May on 2012, and the total number of aftershocks has exceeded 12,000. The consequences, in addition to the loss of life, significant injury and widespread damage, have been far reaching and long term, with detrimental effects and still uncertain effects for many. This provides unique challenges for individuals, communities, organisations and institutions within Canterbury. This document reviews research-based understandings of the concept of resilience. A conceptual model is developed which identifies a number of the factors that influence individual and household resilience. Guided by the model, a series of recommendations are developed for practices that will support individual and household resilience in Canterbury in the aftermath of the 2010-2011 earthquakes. Item Open Access"Two judges - father and son" : an analysis of the careers of Henry Samuel Chapman and Frederick Revans Chapman(University of Canterbury. School of Law, 1991) Spiller, PeterThe main focus of this thesis is on the legal and judicial careers of Henry Samuel Chapman (1803-1881) and his son Frederick Revans Chapman (1849-1936). Henry Chapman served as judge in Wellington (1844-1852) and Dunedin (1864-1875) and was also a barrister, law lecturer and acting judge in Victoria (1854-1864). Frederick Chapman was a member of the Dunedin bar (1872-1903), President of the New Zealand Court of Arbitration (1903-1907), and judge of the New Zealand Supreme Court and Court of Appeal (1903-1924). Besides examining their legal careers, I outline their personal and educational backgrounds and their wide range of extra-legal activities. I study each man's career in chronological order, with convenient subdivisions relating mainly to their shifting geographical locations. In an appendix I sketch the career of Martin Chapman, whose life was intertwined with those of his father Henry and brother Frederick and therefore forms a useful reference-point for the thesis. The structure of my study is determined by my conviction that, as far as possible, one must allow historical material to suggest its own significance and not try to shape it according to conscious predetermined convictions. This thesis is of human interest in itself. The combination of a rare collection of family papers, official records and published accounts produces a detailed and intimate account of the lives of Henry and Frederick Chapman and of their periods. The thesis also sheds light on the characteristics and values of the educated, aspirant middle class to which the Chapmans belonged. These included a strong commitment to the work ethic, an emphasis on self-improvement in a wide range of areas, a benevolent tolerance, and a devotion to family life. Finally, the thesis illuminates important aspects of colonial legal development in the late nineteenth and early twentieth centuries, and in particular the continued strength of inherited English legal traditions counterbalanced by the steady growth of a unique New Zealand jurisprudence. Item Open AccessAn analysis of some aspects of the defence of provocation in homicide(University of Canterbury. Law, 1972) Smith, A. T. H.It may well be wondered why it should be thought necessary or desirable to undertake now the review of an area of the law which was the subject of consideration and statutory modification a mere ten years ago. Had any change been necessary, it could have been accomplished then. In fact, the circumstances in which the Crimes Act was passed in 1961 have altered subsequently in three ways which, in combination, call into question once more the purpose and bases of the whole doctrine. Item Open AccessRaising rivals' costs : Antitrust ramifications for section 36 of the Commerce Act 1986(University of Canterbury. Law, 1994) Scott, Paul G.The Raising Rivals' Costs theory is the newest and most important theory of non price predation. This dissertation assesses its ramifications for s. 36 of the Commerce Act 1986. Chapter I introduces the topic. Chapter II deals with non price predation and shows how it is an attractive strategy for dominant firms. Chapter III discusses the RRC model in depth. Chapter IV critiques it. Chapter V deals with the constituent elements of s. 36. Chapters VI to XIV deal with examples of prohibited conduct under s. 36. In each chapter I analyse whether the theory helps explain the cases, adds anything new and is relevant. I discuss U.S., Australian and New Zealand cases. Chapter XV concludes that the theory is relevant and useful under s. 36. Item Open AccessFrom acquiescence to expectation : The Ramsden v Dyson principle today(University of Canterbury. Law, 1984) Mulholland, R. D.What is now referred to as the Ramsden v Dyson principle began life as nothing more than a bundle of instances in which equity would assert jurisdiction. It experienced a period of systematisation in the later years of last century when attempts were made to encumber it with a series of rules. In the middle years of the present century, with Lord Denning taking the lead, the Ramsden v Dyson principle quickly shed these rules and took on the wider function of providing the courts with a weapon whereby non contractual expectations may be fulfilled, or otherwise protected. The basis upon which the courts determine whether the expectation will be fulfilled is whether or not it would be unconscionable to the representee to allow the expectation to remain unfulfilled. This will normally involve some degree of detriment to the representee if the representor is permitted to resile from the expectation which he has raised in the mind of the representee. Thus in order to succeed in invoking the Ramsden v Dyson principle the representee has to show the existence of two basic requirements. Firstly, that the other party, the representor that is, has raised an expectation which would be such to influence a reasonable man. Secondly that it would be unconscionable for the expectation not to be fulfilled. The present state of the law allows virtually a complete discretion to the courts as to when they will assert jurisdiction and as to the remedy which will be decreed. The remedy is not limited to a simple specific performance of the expectation. The basis of the Ramsden v Dyson principle is barely distinguishable from that underlying other heads of estoppel such as the High Trees principle and the Dillwyn v Llewelyn principle. With the departure of Lord Denning M.R. from the judicial scene a degree of momentum has apparently been removed from the development of the principle and there have been signs in some recent cases of attempts to limit the further development of the principle. The method of investigation has been by orthodox case analysis with the division of the work following from the judicial decisions. Item Open AccessAspects of formation of contracts for the sales of land(University of Canterbury. Law, 1986) McCook, H. J.In delivering the judgment of the Court of Appeal in Carruthers v Whitaker, (1975), 1 N.Z.L.R. 667, Richmond J expressed the view that when parties in negotiation for the sale and purchase of land instruct solicitors and contemplate the preparation of a formal agreement, the ordinary inference to be drawn is that they intend to contract only by means of the formal document signed by them both. The first part of this dissertation represents an attempt to define the bounds of Carruthers v Whitaker by reference to the earlier authorities as they are seen to apply to the situation in which parties who have reached an oral agreement as to terms contemplate the preparation of a formal document. It will be concluded that the Court of Appeal’s decision cannot be regarded as an authority on oral contracts generally: that its ambit is confined to those situations in which there has been no agreement as to the terms contained in the formal document or where execution of the formal document is intended by the parties to operate as a condition precedent to the formation of a concluded contract. Subsequent New Zealand decisions, it is submitted, are seen to support this view. Carruthers v Whitaker, nevertheless, highlights the need for the plaintiff who seeks to rely on an oral contract to show clear evidence that the parties thereto intended to be bound. Moreover, in the light of recent English decisions it will be increasingly difficult to establish that certain non-contractual writings can amount to a sufficient memorandum to satisfy the statutory requirements. The latter part of this dissertation is devoted to the authenticated signature fiction, once again within the context of the situation where a formal agreement is contemplated. It will be argue that Sturt v McInnes, (1974) 1 NZLR 729, which is regarded as having established the criteria for the fiction's application in New Zealand, should again be treated as an authority on “written” contracts alone and that to extend its application to post-contract memoranda would be contrary to the earlier authorities within which the doctrine is seen to have emerged. Item Open AccessThe inter-colonial element in colonial statute law : An enquiry into aspects of the legislation of the British settlement colonies, 1790-1900(University of Canterbury. Law, 1995) Finn, Jeremy NigelThe thesis considers various of the factors which shaped the development of the statute law of the British settlement colonies in the nineteenth century. The principal argument is that the conventional analysis which largely ascribes legal development in each colony to either British precedents or indigenous innovations and regards the influence of other colonies as of only occasional importance is inadequate and must be modified. The thesis proposes instead an analysis which recognises borrowing from other colonies as a standard means of legal development and reform. Archival, parliamentary and other sources are used to assess the factors influencing legal developments found in several colonies. The thesis examines some of the elements which influenced the choices made by colonial legislators or legislatures in the selection of colonial or English statutes as the basis for further colonial legislation. The discussion is illustrated by examination of particular areas of law and by a reference to the degree to which statute law was the product of the influence of certain individuals and institutions. In particular there is discussion of the role of the members of the judiciary and of other colonial officials, particularly the Parliamentary Draftsmen employed in some colonies in the latter part of the period, as well as consideration of the nature and impact of legislation put forward by private members of the legislative bodies. The role and effect of the Colonial Office in monitoring and developing colonial law is also discussed. The thesis also seeks to explore the formal and informal channels by which legal ideas and innovations passed from colony to colony, particularly the developments which were generated by the migration of individuals between colonies or which relied, in whole or in part, on unofficial links between government officials, lawyers, politicians or other individuals in the different colonies. Item Open AccessJudicial approaches to meaning in the interpretation of statutes(University of Canterbury. Law, 1982) Farrar, A. A.Statutes are a written communication between Parliament and the legislative audience. Statutory interpretation is the process whereby the legislative audience seeks to understand and thereby govern its actions by the dictates of Parliament. Judicial interpretation occurs only when there has been some breakdown in this process - either Parliament failed to express its ideas clearly or those ideas are incapable of precise expression. A broad aim of this thesis is to examine the functioning of language and the communication process with a view to understanding more clearly the nature of meaning and its ascertainment. An analysis will be made of those features of language giving rise to uncertainty and so to the problem case of interpretation. An analysis will also be made of the nature of linguistic certainty; it is hoped that a better understanding of the ingredients of successful communication will eventually lead to the reduction of statutory doubt. Next the theory of judicial interpretation will be considered and its correspondence to accepted linguistic theory assessed. Particular emphasis will be placed on a discussion of the adequacy of the traditional canons. Finally judicial practice will be considered by means of a survey conducted from two years of the New Zealand Law Reports. The results from this survey will then be compared with earlier findings from the thesis. Conclusions of a general nature will be drawn; in particular it will be submitted that a shift in the dominant paradigm applicable to the construction of statutes is presently under way in New Zealand. The traditional canons are being replaced by a more unified and consistent paradigm whose features include liberalisation of the literal rule to encompass consideration of context, including the statutory purpose, and explicit provision for assessment of consequences. This new paradigm is more adequate than the traditional canons and Section 5(j) both as a source of reasons for meaning and reasons for decision. Item Open AccessTerror versus tyranny : An examination of the interface between New Zealand's international counter-terrorism and human rights obligations(University of Canterbury. Law, 2005) Conte, AlexIn the wake of the September 11 attacks, it must be confessed that I was quite overwhelmed by the horrific events, by the loss of life, and by the sheer visual impact and magnitude of the attacks against the World Trade Centre and Pentagon. Overwhelmed but at the same time eager, not in any morbid sense, to learn more about terrorism. September 11 also created significant media and public interest. Having entered academia a year earlier, after some years in private practice, and as the only international lawyer at the University of Canterbury, I responded by writing on the subject. Soon enough, that research and writing led to this thesis. As a full-time lecturer at the University of Canterbury, a part-time Barrister of the High Court of New Zealand, and a part-time PhD candidate, the progress and methodology in the writing of this thesis has been somewhat haphazard at times. The first two years of research were perhaps not typical of postgraduate research. That period of time was characterised by three types of activity: the collation of materials, from treaties to articles and cases; the writing of papers and articles on particular issues involved within the thesis topic; and the presentation of papers or other oral discussions and debate, including the giving of evidence to the Foreign Affairs, Defence and Trade Committee on the Counter-Terrorism Bill 2002. In July 2004 I was fortunate enough to take up a research fellowship at the Centre for International and Public Law at the Australian National University, working with those involved in the Australian Research Council funded project on Terrorism and the Non-State Actor. With that work, this period was an opportunity to almost entirely dedicate time to the writing of the thesis proper. That period saw the further development of a number of ideas and the writing of four significant chapters and the near completion of a fifth chapter. Since returning to New Zealand from the fellowship in early December 2004, the preponderance of my time was again devoted to the writing and completion of the thesis. Thus it might be said that a little over two years of research was sporadic and characterised by the research and consideration of isolated issues, while the balance of time consisted of a much more concentrated period of writing and review. When first embarking upon this research, I was warned by colleagues that this would be akin to running a marathon, and it certainly has felt so at times. However, although the run has been a solo one, there are many I am grateful to for their roadside support. To my mother, for her unfailing faith, encouragement and pride. To my supervisors, Professor Chris Joyner at the Department of Government, Georgetown University, Washington DC, and Professors John Burrows and Scott Davidson at the School of Law, University of Canterbury, New Zealand. Professor Burrows' quiet, thoughtful, honest and generous oversight has meant a great deal to me, as did the generous input of Professor Davidson. I must likewise thank my colleagues, particularly those of the International Law Group at the University of Canterbury and the Centre for International and Public Law at the Australian National University, especially Dr Neil Boister, Professor Andrew Byrnes, John Caldwell, Associated Professor Pene Matthew, and Barbara von Tigerstrom. Item Open AccessAspects of specific performance(University of Canterbury. Law, 1985) Cadenhead, A. J.Specific performance while being but one of numerous equitable remedies is a broad and many sided equitable doctrine. The nature of this paper does not allow an exhaustive examination of specific performance. Instead one is seeking to peruse selected aspects of specific performance. Hence damages and a cross section of equitable discretionary defences to performance have been selected. Such discretionary defences form various loose classes and several defences have been selected from each class. For example under the class of "Traditional defences" the paper considers (a) Mutuality and (b) Impossibility; whereas other traditional defences such as Laches and Acquiescence are left unconsidered. Moreover, "fairness", "hardship" and "clean hands" are investigated from the category of purely equitable defences. Further a hybrid class of defence is explored, which while being relevant from an equitable point of view, also may vitiate the entire contract at common law. Such class incorporates inter alia Mistake, Misrepresentation and Illegality. Finally performance with regard to testamentary dispositions and the place of third parties in relation to performance are viewed as a special class. In researching the aspects of specific performance including the history of the remedy, the fact that this area of equity was undergoing a restructuring became evident. Was performance specific performance altering to keep apace with changing commercial and social attitudes - equity being based squarely on morals and conscience both parameters being measured in terms of the accepted standards of society as a whole? Do the recent spate of statutes which prima facia attempt to codify the common-law of contract enlarge the discretion to refuse specific performance? This paper looks towards a re-emergence of the concept of conscience, the basis of all matters equitable, a concept that has been swathed in case law for at least a century. Hence Fry's major work on specific performance, is considered sparingly given its publication date of 1926. Further Spry's Third Edition of "Equitable Remedies" (1984) came to hand at a time which allowed only for brief reference to the same in footnotes. It should be kept in mind when considering the New Zealand case law on specific performance as opposed to, say the English, that the New Zealand High Court is asked to be both the strict common lawyer and yet still be able to have regard to the length of the chancellors foot - the latter measurement holding sway in instances of conflict. It is ventured that this dual task causes principles, particularly in the damages field, to become confused. The writer has attempted accurately to state the law as to the selected aspects of Specific Performance as at January 1985. Item Open AccessCheques proffered in full and final satisfaction: a matter of principle(University of Canterbury. Law, 1992) Black, J. H.Despite popular perception, the law in relation to "cheques in full and final satisfaction" is not a separate branch of the law of contract. The law pertaining to cheques in full and final satisfaction is simply an application of the common law principles of accord and satisfaction. It is perhaps for this very reason that prior to the landmark High Court decision in Homeguard Products (NZ) Limited v Kiwi Packaging Limited there were very few New Zealand decisions concerning the same. The factual situation which gives rise to such a scenario is relatively straightforward. A simple illustration would be that of a building contract, where the builder had been instructed to, and had built a house for another party to occupy. A dispute may then have arisen as to the quality of the workmanship, the owner asserting that a defective job had been done. The owner may then tender a cheque to the builder for a lesser sum than was due under the contract, asserting that the same is proffered in full and final settlement of the dispute. This letter and cheque may arrive in the mail and be opened by a clerk employed by the builder, who has authority to bank cheques but no authority to settle claims. This clerk may then without noting the terms of the letter, detach and bank the cheque. Several days later this letter may then come to the attention of the builder, who then writes back to the owner expressly stating that he does not accept that he has received the cheque in full and final satisfaction, has banked it on account, and will be pursuing the owner for the balance. On this scenario, if the proposition of Mahon J. in the case of Homeguard is correct, then upon the clerk employed by the builder banking the cheque tendered in full and final satisfaction an accord and satisfaction would have resulted, and despite the builder's protests to the contrary, he would be unable to sue for the balance he felt due to him under the previous contract. As the existing case law stands there is an onus on the creditor if he banks the cheque to inform the debtor that his payment in full condition is rejected. Some cases state this must be done at the time, others suggest that days is too late, and generally uncertainty reigns as to when a creditor will be taken to be bound by the debtor's payment in full offer. Item Open AccessMarks of Consequence – An Irrational Basis of Trademark Protection, or: Re-Inculcating some Schechter into the Doctrine of Trademark ‘Dilution’(University of Canterbury. Law, 2011) Kunert, Steffen[Taken from the introduction] This Piece is concerned with the soundness of the qualification criterion of quantitative public recognition in relation to protecting trademarks from detriment to distinctive character. It will be demonstrated that all jurisdictions under consideration in this Comment have chosen to tie the granting of extended protection for trademarks to the discrimination criterion of a quantitative consumer knowledge threshold.