Law: Theses and Dissertations

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Open Access
Treatment of environmental considerations within New Zealand’s biosecurity framework
(2024) Cartwright, Liam
Environmental considerations should be given equitable weight within the decision-making processes of New Zealand’s biosecurity framework. This is especially important in a time when environmental concerns increase day by day on a global scale. This thesis seeks to analyse the current biosecurity framework to determine how environmental considerations are treated throughout its legal foundation and organisational structure. There is very little existing literature that assesses the framework in any way. The thesis analyses the core legislation and agreements of the framework, determining whether they are fit for purpose or whether their function is unreasonably favourable towards economic interests. The function of the decision-makers is also critically assessed to establish whether any economic preference exists at a systemic level. Interviews and a wide range of online sources were used to gain a wider perspective of the issue, and these were supplemented with biosecurity-related books and journal articles. The research found that the way the organisational structure was initially set up, and how it exists today, contributes to significant economic prioritisation at the expense of ecological considerations. This ingrained economic preference was not the only issue, as the research also found that sufficient environmental risk assessment tools did not exist, failing to enable ecological concerns to be recognised at the same level as economic stakes during risk assessment. These two issues together provide conclusive evidence that ecological considerations are not given equitable weight during instances of biosecurity decision-making, and more work is needed to rectify the economic prioritisation that is currently present within the framework.
Open Access
Cooperative housing : a new Kiwi dream?
(2024) Goossens, Sophie
The right to adequate housing is a pre-requisite to the enjoyment of other human rights and contributes to individual wellbeing as well as a thriving society in general. One of the key elements of the right to adequate housing is affordability. The ongoing housing affordability crisis significantly compromises the realisation of this right and other human rights in Aotearoa New Zealand. Successive governments have attempted to address housing affordability through various law reforms and policies that aim at, among others, increasing housing supply. Despite these reforms and policies, housing has remained severely unaffordable. This thesis looks at whether two specific collaborative housing forms – unit title collective housing and rental cooperative housing - could improve housing affordability in Aotearoa New Zealand. It examines the past and current housing situation using a socio-legal approach. This thesis reports on the findings of the qualitative empirical research undertaken to look at the experiences of established as well as unsuccessful unit title collective developments. Drawing on Australian experience, this thesis also explores whether rental cooperative housing could be part of the solution to the housing affordability crisis. This Australian model could be replicated in Aotearoa New Zealand, as both jurisdictions share similar legal and socioeconomic features. This thesis concludes with suggestions for reform in the form of the incorporation of the right to adequate housing into domestic law, amendments to the unit title, cooperative and community housing frameworks, as well as other factors that can also improve housing affordability.
Metadata only
Peacekeepers’ children: the legal status of, and responsibility for, the children fathered and abandoned by United Nations peacekeepers.
(2023) Golda Lamadrid, Irina A.
Sexual exploitation and abuse (SEA) by United Nations (UN) peacekeepers in the context of Peace Support Operations (PSOs) is a serious misconduct often involving uniformed and civilian personnel. Although the exact number of victims is unknown, it is believed to be substantial. One related concern is the abandonment of children fathered by peacekeepers due to SEA during their deployments, which has been documented in numerous host States. The abandonment has far-reaching consequences, leaving the children without paternal recognition and child support. This issue has received limited academic scrutiny. Against this background, this research represents the first comprehensive legal analysis exploring the status of, and legal responsibility for, abandoned peacekeepers’ children. The thesis employs two approaches: first, it systematises and examines the fragmented information on this group of children, and second, it analyses the relevant legal frameworks applying to their situation. By compiling and organising a significant amount of documented and anecdotal information, this research contributes to the scholarship on children born of SEA, providing valuable insights into the specific peacekeeping missions where these children were born, highlighting evidence of abandonment and exploring the children’s lived experiences. Furthermore, it demonstrates that these children are not an episodic phenomenon and that their conception and abandonment have been happening for decades. The data also permits assessing the effectiveness of UN measures vis-à-vis these children. The second approach involves examining the relevant legal frameworks, identifying applicable legal regimes that may offer solutions for these children, and evaluating the compliance of fathers, host and sending States, and the UN with their responsibilities towards them. This research seeks to answer whether the UN is conclusively helping abandoned peacekeepers’ children to fulfil their rights to identity and an adequate standard of living and what measures could be adopted according to international law to assist them in fulfilling those rights. The initial findings indicate that the UN has not assisted these children effectively, nor has it facilitated their paternity claims. As the primary and common responsibility for these children’s upbringing and holistic development falls on their parents, this thesis considers the possibility of suing the alleged fathers for paternity recognition and child support. In light of the relevant foreign elements in these claims, this is examined under a conflict of laws. However, the responsibility for these children and their particular circumstances extends beyond private law. Therefore, the research employs a human rights approach to consider the responsibility of host and sending States, showing that they have not complied with their convention obligations. It further demonstrates the UN’s responsibility for failing to apply human rights standards to its processes and not complying with its regulations. The thesis also discusses accessing international and regional human rights mechanisms to find redress. Lastly, some policy recommendations are provided to improve the overall response of the UN to facilitating paternity recognition and child support. To contextualise and support the doctrinal research, this thesis considers the deployment of PSOs in Haiti as a case study, where there are numerous allegations of UN personnel fathering and abandoning children. The abandonment has prompted some mothers to file paternity and child support claims against the alleged fathers despite facing numerous difficulties. As part of the mixed methods used in this research, a limited number of carefully selected interviews are used as supporting evidence. This thesis uses postmodern feminist legal theory as the theoretical framework to address the descriptive and explanatory questions, which serve as a factual foundation for understanding the normative part of the research. Feminist analysis extends beyond women and encompasses other marginalised groups who exist at the fringes of dominant discourses on gender, such as abandoned peacekeepers’ children. This research also relies on a normative framework rooted in the descriptive findings. In particular, this framework evaluates UN policies concerning prevention and remedial actions for SEA concerning peacekeepers’ children against the standards established by international human rights norms. Additionally, the actions undertaken by host and sending States regarding these children are evaluated based on the human rights standards outlined in the binding and non-binding instruments ratified or adopted by these states and the relevant agreements they have concluded with the UN.
Open Access
Towards more equal participation of women in Aotearoa New Zealand’s judiciary : a case for gender-sensitive policies in the judicial appointment process.
(2023) Zahmatkesh, Raana
Women are underrepresented in the New Zealand judiciary. Although the proportion of women judges has improved over time, in 2021, 60% of judges in New Zealand were still men. It is widely accepted that unequal representation of women threatens the representativeness, quality, and impartiality of the judiciary, which undermines overall judicial legitimacy. Yet, scholars have paid little attention to the complex and interconnected reasons for the unequal representation of women judges in New Zealand, with previous research focusing in an ad hoc manner on certain social factors influencing the decisions of potential candidates, such as the barriers women experience in advancing through the legal profession. Significantly, there is little understanding in the scholarly literature of the complex nature of factors preventing women from becoming judges, or the relative advantages of potential policies or initiatives for improving the representation of women in the New Zealand judiciary. I aim to address this research gap by examining the impact of judicial appointment processes, and specifically the use of gender-sensitive initiatives and policies within those processes, on the representation of women in the judiciary. I take a temporal approach to explore the barriers to women becoming judges, considering the experience of women in judicial appointment processes before, during and after appointment. To do so, I investigate the legal profession, judicial appointment criteria, candidates’ assessment systems, and the requirements of judicial roles. In addition, I compare the use of gender-sensitive initiatives developed and applied in New Zealand, which are ‘soft measures’ intended to enhance the proportion of female candidates for judicial positions, to result-based policies used in the Australian State of Victoria. In this thesis, I argue that because women encounter multiple challenges during the judicial appointment processes in New Zealand, the processes, as they stand, perpetuate the unequal representation of women in the judiciary. Although the result-based policies in Victoria have rapidly increased the proportion of women judges, they failed to change the appointment processes. I recommend modifying the appointment processes by taking a systemic approach to address the interconnected issues discussed in this thesis. Overall, this thesis contributes to the ongoing discussion and debate on judicial diversity and effective initiatives for achieving greater judicial representation by women.
Open Access
Criminalising cartel conduct in New Zealand.
(2023) Schwoerer, Simone Lydia
Criminalising cartel conduct has become a worldwide trend. Cartels arise when competitors collaborate instead of competing. Cartels that rely on secrecy and deception among their participants with the deliberate aim of avoiding discovery are considered egregious violations of competition law. One possible way to prevent such conduct is through an effective cartel regime. This thesis analyses the effectiveness of the cartel regime in New Zealand before the introduction of a cartel offence in 2021. It develops a framework according to international standards to measure the effectiveness of civil cartel law and examines the cartel cases from 2004 to 2022 and the work of the competition regulator, the Commerce Commission. It discusses the existing cartel detection measures, the cartel awareness, the Commerce Commission’s powers and its enforcement regime. It also focuses on the path to cartel criminalisation in legal terms by investigating the parliamentary debates and submissions from the public to the Commerce (Cartel and Other Matters) Amendment Bill 2011 and the Commerce (Criminalisation of Cartels) Amendment Bill 2018. The research demonstrates the thesis’ first conclusion that introducing criminalisation might not have been justified in the New Zealand context because the civil regime and the existing methods of detection and deterrence of cartels were satisfactory. Despite this first conclusion—and given that criminalisation is now part of New Zealand law—the second part of the thesis endeavours to formulate beneficial strategies and practices to help establish an effective (criminal) cartel regime. The United Kingdom's and Australia's first experiences with their criminal cartel regimes offer several lessons to strengthen the New Zealand regulator’s approach to cartel enforcement. Using these two countries as examples is significant because they have had different experiences with criminalisation so far. In the United Kingdom, the criminal cartel offence was considered a failure and led to an immediate law change and the dissolution of the regulator. The Australian Competition and Consumer Commission, on the other hand, was the main driver for criminalisation and managed to win its first criminal cases, albeit through guilty pleas. Adapting to a dual, civil and criminal, cartel regime certainly poses challenges for regulators. The lessons developed in this research can help overcome technical and strategic challenges. They advise, among other things, to strategically plan investigations and include the prosecutor early in order to come to a satisfactory conclusion. They also acknowledge the leniency regime as crucial but recognise that it should not preclude the collection and evaluation of the evidence by the regulator. Ultimately, public support is vital and should be increased by raising awareness through good use of the regime.
Open Access
It’s my life, so do I get a say? : An analysis of whether Aotearoa New Zealand is listening to children’s views in care-of-children proceedings as is required by the United Nations Convention on the Rights of the Child, and recommendations for improvement
(2023) Wallace, Katy
Thirty years ago, Aotearoa New Zealand ratified the United Nations Convention on the Rights of the Child (the UNCRC). Article 12 of the UNCRC grants all children, “who [are] capable of forming [their] own views the right to express those views freely in all matters affecting [them, their] views … being given due weight in accordance with [their] age and maturity”. The Article specifies that children must be “provided the opportunity to be heard in any judicial and administrative proceedings” that affect them “either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.” In effect, this Article recognises that children are citizens, who have a right to have their views heard when decisions are being made that will affect them. This thesis examines New Zealand’s adherence to Article 12, in care-of-children proceedings. The decisions made in care-of-children proceedings have the power to alter and determine the course of a child’s life in many ways, and so it is imperative that children fully receive their Article 12 right to express their views in regard to these decisions. This thesis demonstrates that, while the Care of Children Act does provide avenues for children to express their views on care and guardianship matters affecting them, these avenues do not apply to all care-of-children proceedings. In addition, the way this legislation is currently practiced does not insure all capable children receive the right to express their views freely, as Article 12 intended. This thesis will set out a number of recommended changes, both to existing legislation and the way this area of law is practised, that will ensure a child’s Article 12 rights to express their views and be heard in these important decisions. Historically, under common law, a father had a “superior right” to his children, which included control over how they were raised. This meant a court need not consider a child’s welfare, much less their views, when determining a matter about a child. Fathers’ rights over their children started to change in the 19th century, with the 20th century witnessing a dramatic change to the way children were viewed and treated, including by the law. Today the benefits of giving children the opportunity to express their views and participate, when decisions about them are being made, are well recognised. Not only is it good for their development, increasing their self-esteem and competence, but when given the opportunity to express their views, children often bring new insights to their situations. The outcomes for children are likely to be better when their views have been heard and they are likely to adjust quicker and cope better with changes to the family structure, if their views have been heard regarding those changes. The UNCRC can be considered the turning point in the recognition of many children’s rights, including the recognition that children should be accorded dignity and respect with regards to their views. Listening to children’s views, when decisions are being made that will affect them, recognises that children are not merely objects belonging to their parents, but are people with their own insights and views that should be heard and taken seriously. The UNCRC gives those countries that have ratified this Convention, including New Zealand, impetus to grant children this right, as well as the other rights it contains. This thesis examines whether New Zealand, three decades after ratifying the UNCRC, does grant all children their Article 12 right to express their views, and be heard, when decisions that are ultimately about their care and guardianship are being determined. It will also consider how well, if at all, the current legislation and practices allow Māori children to express their views in accordance with tikanga. Article 12 set down no blueprint as to how a child’s right to express their views should be applied in practice, and as such different jurisdictions have adopted a variety of modes of participation for children. This thesis will also explore how four other jurisdictions, Australia, Canada, Israel, and Scotland, hear from children when care and guardianship decisions are being made about them, and if any of those modes of participation could potentially be implemented in New Zealand. Recommendations will then be made for how current New Zealand legislation and practices can be improved, to ensure all New Zealand children, who are capable of forming their own views, are indeed provided the opportunity to express those views freely, and be heard, when decisions about their care and guardianship are being determined. While improvements are needed to meet the requirements of the UNCRC, the ultimate reason they are needed is to benefit all children, and their families, who are involved in care-of-children proceedings.
Open Access
The tort liability of corporate participants
(1996) Simpson, Mary-Anne
This thesis considers the alternative approaches taken by the courts in fixing tort liability upon corporate participants. The term 'corporate participant' primarily covers directors and shareholders but also, in this study, incorporates employees. The principal argument is that conventional analyses of liability rest upon familiar but ultimately unhelpful foundations, such as 'agency' and 'piercing the corporate veil'. Instead, this paper proposes applying the 'assumption of responsibility' test, which evolved in the law of torts, to corporate-tort issues, whether involving sole traders or corporate groups. A single unifying test directs and focuses the enquiry in a way that present formulations do not. The paper necessarily considers the historical origins of, and theoretical justifications for, limited liability. From these foundations, it seeks to evaluate the extent to which history should guide, or inhibit, the development of limited liability. Leading 'law and economics' treatments of limited liability are summarised, in order to evaluate the persuasiveness of the doctrine, and its present-day significance. Particular reference is made to the distinction between voluntary (contract) and involuntary (tort) creditors. A third category, that of the 'quasi-involuntary creditor', assumes significance when determining the existence of duties of care. The term may be applied to most cases where liability is sought to be fixed upon directors or shareholders; it covers those creditors whose tort injury arose during the course of a contractual relationship with the company. Such cases are best dealt with by assuming that the parties' bargain included that liability be limited. This presumption may be displaced by evidence which indicates that, on the contrary, the defendant had assumed a personal interest in the conduct of the plaintiff’s affairs. Reference to Canadian dicta and to European legislation affords a fruitful contrast to Commonwealth case-law on employee liability. Reform of employee tort liability is welcomed, as it would introduce further consistency into the treatment of corporate participants. The thesis concludes by specifying the types of conduct that will lead to directorial or shareholder liability.
Open Access
The implications of the Land Transport (Drug Driving) Amendment Bill 2020 (317 – 2) on the labelling of prescription medications : the case for benzodiazepines..
(2022) Booth, Rebecca
There is an increasing number of car accidents in New Zealand associated with drug driving. This led to the creation of the Land Transport (Drug Driving) Amendment Bill 2020, which will, if enacted, implement per se drug driving laws and an RDT (random roadside drug testing) scheme; this will include driving regulations of impairing prescription medication. In this study, impairing therapeutic concentrations of benzodiazepines (a large category of newly regulated medication) were determined using a meta-analysis of controlled studies on the impairment resulting from doses/dosages of benzodiazepines. Along with datasets of impaired drivers’ blood concentrations, which were used to verify impairing blood-drug concentrations found in the meta-analysis. It was found that some therapeutic doses/dosages of benzodiazepines resulted in impairment more than others, such as diazepam and lorazepam, which are used multiple times daily to maintain a therapeutic blood concentration. These results were then used to critique the blood-drug concentration statutory and threshold limits proposed by Poulsen et al. (2021). It was concluded that limits set for diazepam did not reflect impairing concentrations. Labelling of pharmaceuticals and the propensity of physicians and pharmacists to warn patients about impairing medications was investigated by analysing CALs (cautionary advisory labels) and the pharmacists code of ethics. It was concluded that there needs to be more effort into informing patients and the public of the risks of drug driving.
Open Access
'Stuff the transactional shit’: Learning through the lived experience of the Rangatahi Court
(2022) Jessep, Melissa Jane
Criminal justice initiatives and policy have been guided almost exclusively by a Pākehā worldview. The exclusion of Māori perspectives within the realm of justice is just another example of the reach the colonial project continues to have on Māori communities. The exclusion of Māori influence in the justice space could be attributed to the negative justice outcomes that we continue to see for Māori. Disproportionate use of imprisonment and wider disparities within justice institutions sees Māori making up 52.7% of prison population while only making up 15% of the general population (Department of Corrections, 2021). Rangatahi Māori have also felt the brunt of the justice system making up 59% of court participants (Ministry of Justice, 2021). These statistics continue to remain unchanged despite awareness of this problem. In 2008 the Rangatahi Courts were established to alter the way in which the Youth Courts interacted with young Māori. The implementation of the Rangatahi Courts can be viewed as a push-back to the Eurocentric processes that dominate the justice space. Since the inception of these courts little research has been generated that offers authentic insight into the realities of these courts. Initial evaluations have suggested that these courts have potential to reduce reoffending rates and alter the way rangatahi and whānau view and experience the system. Much of the academic perspectives have brought vital critique and insight into the Rangatahi Courts procedures. However, there is limited research that explores the experiences and lived reality of those that work within the space of the Rangatahi Courts. For this reason, the intent of this research project was to showcase the experiences of the participants’ who have engaged within that world. Their lived experience of the Rangatahi Court is important for creating an understanding of what the Rangatahi Courts provide Māori. This research privileges practitioner experiences as they hold crucial knowledge that may help to build a greater understanding as to how these courts operate and what the space offers for rangatahi and whānau.
Open Access
Cybercrime : International Implications on New Zealand Strategy
(2022) Wheelans, Angus
The prevalence of cybercrime continues to rapidly increase as the internet becomes more accessible and advanced, causing substantial harm to individuals, businesses and governments. Digital forensics is an essential component of all cybercrime investigations, and as it stands, the current cybercrime and digital forensics practices in New Zealand are not fit-for-purpose. This research project seeks to identify the most significant problems with current practices and draw recommendations that create feasible and workable solutions. Creating evidence-based solutions to these problems is possible through identifying the current systematic flaws. It is essential that current methods for responding to cybercrime and carrying out digital forensics are scrutinised so that there is pressure to update and reform current laws and practices. This research project adopts a qualitative approach and the use of semi-structured interviews to answer the research question. Participants (n=4) are stakeholders within the cybercrime and digital forensic communities in New Zealand, Australia, and the United Kingdom. The cybercrime and digital forensics laws and practices are compared between these countries to draw recommendations for future reforms. It has been found that five key changes could be made to the cybercrime and digital forensics frameworks that would improve outcomes for law enforcement and victims. These changes include the appointment of an independent reviewer of legislation, acceding to The Budapest Convention on Cybercrime, improving cybersecurity and cyber resilience, improving training, resourcing and research, and improving current reporting and response methods. These recommendations indicate that there are fundamental flaws in the current framework and that substantial work is required to improve outcomes for both victims and law enforcement. These recommendations are based on research and stakeholder input. On this basis, stakeholder opinion and international practices should be considered while informing future reform. This research project is an original contribution to the fields of digital forensics and cybercrime, and it is hoped that it will create a foundation for future research to analyse these issues further.
Open Access
The impact of COVID-19 on illicit drug trafficking in New Zealand.
(2022) Quinlivan, Alana
Illicit drug trafficking requires stable supply chains, which depend on social stability generally. In turn, the trafficking, supply, and harms associated with drug consumption can quickly change alongside disruptions to everyday functioning and subsequent illicit drug markets. COVID-19 is a global pandemic that has put a strain on all aspects of life both in New Zealand and internationally, provoking government interventions to close borders and restrict social interactions worldwide. These changes have caused unprecedented disruptions to social, economic, and political functioning throughout society. Therefore, the stability required to operate efficient illicit drug supply chains has collapsed, making an impact on global and local illicit drug trafficking as a result. Using a comprehensive analysis of many different sources this dissertation outlines the impacts of COVID-19 on international drug trafficking, dealing, manufacture and consumption, before providing a comparison to a New Zealand national context. Basing its conclusions on both qualitative and quantitative data, this dissertation argues that illicit drug markets were heavily disrupted shortly after the implementation of COVID-19 related restrictions, however such markets and groups were identified as adaptable, with many already beginning to recover.
Open Access
Prisoner experiences of case management in the Aotearoa New Zealand prison system.
(2022) Johnstone, Laura
The Department of Corrections introduced case management to Aotearoa New Zealand’s prisons in 2011, replacing an approach of Sentence Planning. Corrections has stated that this led to improvements in four areas: the assessment of prisoner needs, prisoner motivation to complete activities, the scheduling of programmes, and the level of reintegration support provided to prisoners. Using in-depth interviews, this study explores the perceptions prisoners have of case management, and tests the statements made by the Department of Corrections. Little research to date exists in these areas. This study, in line with similar international studies, supports the use of the case management model for managing prisoners but finds that there are areas for improvement, which could enhance the case management experience for prisoners in a way that more closely meets their rehabilitative and reintegrative needs.
Open Access
Employment security and employment protection in the light of the New Zealand Minimum code : including a comparison with German law
(1997) Stadler, Andrea Caroline
Generally, the employee is interested in the continuous existence of his or her employment, the provision of fair employment contract conditions and their observance, and respectful treatment concerning his or her activity in the workplace itself. Conversely, the employer is interested in being flexible; it wants to be and to remain in the position to adjust its staff to the economic situation, and to remain in that situation, or react to negative situations which may arise in the employee's sphere respectively, at any time. Consequently, the task of employment security and employment protection is to provide a reasonable balance of both interests. This thesis shall deal with employment security and employment protection in the light of what is termed, informally, the New Zealand 'Minimum Code'. In addition, a comparison is presented with the legal grounds in German law regarding the subjects concerned. The thesis is divided into two main parts: The subject of the first main part is the personal grievance procedure under the New Zealand Employment Contracts Act 1991 and the corresponding German law. Section 27 (1) of the EC Act 1991 defines the term 'personal grievance'. In short survey, the stated grounds for an employee's complaint are: unjustifiable dismissal; unjustifiable action; discrimination; sexual harassment; and duress. Because of the broad scope of these grounds of complaint, only two of those grounds shall be presented. First, an older one, namely, unjustifiable dismissal, which was already contained in the Industrial Relations Act 1973; and second, a newer one, namely, sexual harassment, which was introduced in the previous Labour Relations Act 1987. Within the following exposition of the selected personal grievances, Division 1 deals with unjustifiable dismissal, and Division 2 with sexual harassment. Great attention shall be paid to the preconditions of the two grounds of complaint. In order to complete the presentation, a short survey shall be given on the right to use the personal grievance procedure. Each division contains three subdivisions. First the exposition of the legal grounds in New Zealand law, and second, as a comparison, the description of the legal grounds in German law. Finally, under subdivision three, a resume shall be given. Concerning unjustifiable dismissal, the personal grievance procedure under the Employment Contracts Act 1991 grants better employment security for the employee than the common law alternative. Alternative or additional protection is of interest in regard to sexual harassment and will be presented in a short survey. The main emphasis shall lie on the preconditions for the grievance / complaint, rather than on the right to use it. In German law, there is no similar personal grievance procedure. Protection against dismissal is only available under the complaint of unfair dismissal in the courts. As for sexual harassment, the employee must also file a suit to get legal protection. The second part deals with the illustration of some other significant contents of the Minimum Code: parental leave, holidays, and wages. These areas also require legal minimum rights. The code is contained in different Acts of Parliament. That main part is divided in Division 1: parental leave; Division 2: holidays; and Division 3: wages. Each division also contains three subdivisions. New Zealand law is analysed under subdivision 1. The German comparison is presented in subdivision 2. Finally, under subdivision 3, a resume will be given. In comparison with German law, it is especially notable that parental leave provisions in New Zealand might be improved. As to holidays, in both countries the pertinent Acts are governed reasonably and satisfactorily. Contrary to German law, in New Zealand wages are governed in more detail, but not perfectly. Beyond the presentation of a wide variety of different Acts, the writer's analysis includes constructive criticism, proposals and ideas for reform, and conclusive results.
Open Access
Mediation in civil and commercial disputes in New Zealand : an empirical and theoretical approach to how to raise its acceptance
(2001) Loddenkemper, Tina
Mediation has many advantages over the traditional ways of dispute resolution such as litigation and negotiation1 . Yet in many countries it is struggling to become a "mainstream" movement like it has been in the USA. How can the acceptance of mediation be raised? This question, central to the field of mediation research since its inception, will be examined for New Zealand. It is the raison d'etre of the thesis. The thesis examines in particular the acceptance of mediation in commercial and civil disputes. The focus is set on commercial and civil disputes because family mediation has already been extensively researched.
Open Access
Economic securitisation and the normalisation of exceptionalism : how economic risk rhetoric is used to justify and normalise exceptionalism.
(2021) Mueller, Sascha Daniel
The research question of this thesis is to what extent exaggerated or false economic securitisation threatens constitutional and democratic processes and structures. People’s growing aversion to risks, and in particular economic risks, means that it becomes increasingly easy to exaggerate or falsely claim economic risks to gain access to exceptional measures. If this is done for ordinary political reasons rather than to address genuine existential threats, exceptional measures will increasingly become part of the normal political and constitutional process. The second research question therefore is how the effects of false or exaggerated securitisation can be prevented or at least mitigated.
Open Access
Judicial reasoning and a common law duty of contractual good faith
(2002) Davies, James Christopher
Mr Livingstone owned a valuable motor car which Mr Roskilly, a motor car repairer, agreed to repair. The car was stored in Mr Roskilly's premises in an inadequately locked garage and was stolen. A sign on Mr Roskilly's garage wall read: "All vehicles stored and driven at owners [sic] risk. All care taken: No responsibility". Justice Thomas found for Mr Livingstone on traditional principles of contract interpretation but noted, in an obiter statement: "...[an] overriding principle [that is] found in most legal systems outside the common law world to the effect that in making and carrying out contracts, parties should act in good faith... I would not exclude from our common law the concept that, in general, the parties to a contract must act in good faith in making and carrying out the contract." This thesis considers whether or not such a duty ought to form part of our common law of contract. Briefly put, should contracting parties owe each other an implied common law duty of good faith? The equally brief answer to this difficult and engaging question provided in this thesis is that they should not.
Open Access
The legal impact of artificial intelligence on the New Zealand health system.
(2021) Boniface, Christopher Ryan
This thesis provides an analysis of the legal impact that artificial intelligence (AI) technologies may have on New Zealand’s healthcare system. The focus is on whether the established rights and protections afforded to patient’s can be readily applied or interpreted in situations involving an artificial intelligence system. Using the Code of Patient’s Rights1 as a framework for the rights afforded and the underlying ideals contained, this thesis engages with both the codified rights as well as their common law applications. Doing so provides a robust and comprehensive analysis of what features of an AI and which current formulations within the law are incompatible or at least require new interpretations to interact. The thesis begins with an overview of the background to both the healthcare landscape and the technology of AI in general. And then follows this with an overview of the rights afforded to patient’s within New Zealand, and the ideals which can be inferred from this which will be used as the foundation for the thesis’ substantive analysis. The thesis then engages with four of the rights outlined – discrimination, privacy, informed consent, and negligence – chosen to provide the most widely applicable discussion, as well as those which are considered the most integral to a patient’s care. Included in the substantive analysis of negligence is a discussion of the Accident Compensation Act 2001 and the role it may play in mitigating some of the commonly lamented issues with AI technology. The thesis then ends with a discussion of prospective reforms that may assist with the interaction with AI and any associated issues with them, and then a set of recommendations into how New Zealand should proceed in the coming years.
Open Access
Cultural Property at the Crossroads: An Examination of the issue of the Restitution of Cultural Property to Indigenous Peoples in Article 11 of the United Nations Declaration on the Rights of Indigenous Peoples
(Aberystwyth University, 2015) Esterling, Shea
Over the past thirty years, Indigenous Peoples have turned to international human rights law (IHRL) to help secure the return of their cultural property. In 2007 the United Nations [U.N.] passed the Declaration on the Rights of Indigenous Peoples [UNDRIP] which offers at Article 11(2) that: “States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural … property ….” Using a discourse analysis that relies heavily on U.N. documentation, after exploring the inadequacies of the traditional framework for the protection of cultural property, this thesis traces Article 11 from its origins at Draft Article 12 to its present form revealing that its contextualization in IHRL caused it to suffer a serious retrogression; a retrogression that allows it to step back and fit comfortably within existing IHRL thereby offering no real change regarding the restitution of cultural property. In turn, the remainder of this thesis focuses on what underpins this retrogression. It posits that at the micro-level the retrogression of Article 11 stemmed from links between cultural property and traditional property concepts and self-determination; while at the macro-level Article 11 suffered from the specter of sovereignty. In particular it concludes that as a consequence of this retrogression, the contextualization of the issue of the restitution of cultural property to Indigenous Peoples in Article 11 in IHRL represents an irony in the use of international law while it more broadly concludes that this is the result of the structural incapacity of IHRL to support such a claim at present. However, ultimately not all is gloom and doom; a dialogical space exists at the international level which holds promise for the future of indigenous advocacy to secure such a sui generis right to the restitution of cultural property for Indigenous Peoples.
Open Access
Consideration of the best interests of children with convicted parents : a new sentencing principle.
(University of Canterbury, 2022) Koosova, Kristyna
In May 2020, New Zealand imprisonment rate was 198 per 100,000 of population, which was the 5th highest in the OECD. This has raised some serious questions about the collateral effects of imprisonment on offender’s children. Several studies have indicated that these children face multiple difficulties and are exposed to a higher risk of harm than other children. They may suffer emotionally, develop health issues or challenging behaviour and be imprisoned themselves during their lifetimes. The purpose of this thesis is to establish the extent to which rights of these children are recognised and protected in sentencing in New Zealand. Firstly, the thesis determines New Zealand’s obligations towards offenders’ children, which are established by the international human rights law. It highlights the importance of an evolving international legal standard establishing a requirement for criminal courts to systematically assess and consider the best interests of a child when sentencing a parent or a primary caregiver, and to take the impact of sentencing on children’s wellbeing into account, as a specific and independent legal consideration. It is also established that failure to do so is inconsistent with relevant international human rights instruments. Secondly, the domestic legislation and case law is analysed in order to evaluate whether New Zealand meets its obligations towards offenders’ children under the international human rights law. The conclusion to the analysis is the finding that the way that New Zealand has chosen to implement the right to respect for family life and the right of the child to have his or her best interest taken into account as a primary consideration, has left gaps in how these rights are protected. The findings of the case law review also suggest that the best interests of children have not been appropriately integrated and consistently interpreted and applied when sentencing offenders with dependent children, as far too often these children and their needs are taken into account as “personal circumstances of the offender” rather than being treated as individual rights-holders and having their rights considered separately.
Open Access
Prevention of forest fires in Indonesia: evaluation of international and regional legal frameworks.
(University of Canterbury, 2021) Sitompul, Muhammad Ibnu Khaldun
This thesis explores the effectiveness of Association of Southeast Asian Nations (ASEAN) initiatives, relevant international environmental agreements, and principles of international environmental law on the prevention of forest fires and transboundary haze pollution in Indonesia and Southeast Asia. For many years, forest fires in Indonesia have resulted in transboundary haze pollution that has harmed neighbouring Southeast Asian countries. Despite numerous prevention efforts, forest fires continue to occur in Indonesia, particularly during the dry season. The majority of these forest fires are caused by human activity, including the slash and burn method in land clearing, which has been used in Indonesia for centuries, but it is now being used on a larger scale by big plantation companies. Additionally, logging and land expansion of palm oil plantation contribute to the occurrence of forest fires. Regional initiatives such as the 2002 ASEAN Agreement on Transboundary Haze Pollution (AATHP) have been ineffective in reducing Indonesian forest fires and their transboundary impact in the region. The obligatory nature of the AATHP is frequently weakened by the strong influence of the ASEAN Way norm, adopted by ASEAN member states, which puts forward the principle of non-interference in addressing the relationships between them. Furthermore, this research asserts that obligations under relevant international environmental agreements have had minimum impact on states, particularly Indonesia, in terms of indirectly assisting them in preventing forest fires and transboundary haze pollution. The obligations imposed by these agreements are often too general, leaving states like Indonesia with an excessive amount of discretion in terms of national implementation. In addition, this thesis concludes that principles of international environmental law have been ineffective at influencing states’ behaviour in addressing forest-related issues. The existence of the ASEAN Way, which is based on a strong belief in state sovereignty, has hampered implementation of these principle in the region. In addition, owing to the fact that the ASEAN Way promotes a peaceful means of settling dispute, which is informal and non-judicial, it is more difficult for states impacted by transboundary haze pollution caused by forest fires in Indonesia to challenge Indonesia before an international court or tribunal. The methods to be used in conducting this research are primarily positivist doctrinal legal approach combined with desktop studies. The purpose of a doctrinal legal approach is to assist in the formulation of legal doctrines by analysing legal rules. It is based on current regional and international positive laws that are applicable to environmental protection, including regulations and conventions relating (directly and indirectly) to forest fires as sources. This thesis argues that the effectiveness of regional initiatives, including the AATHP, must be improved in order to foster cooperation in resolving the ongoing issue of forest fires and transboundary haze pollution in the Southeast Asian region. In addition, international environmental agreements must engage more in forest fire prevention in a way that could be clearly implemented at the national level, particularly in Indonesia, the region’s primary source of forest fires and transboundary haze pollution issues. Ultimately, impacted states must have a way to hold a source state accountable for their actions that harm the environment without having to violate the region’s fundamental values.