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This article revisits arguments about the death of labour law, and re-examines claims by Richard Mitchell that such arguments are mistaken. In the first half of the article I argue that the law of the labour market is not labour law as the latter discipline developed in the 20th century. I also argue that there is a clear ethical core to labour law which sets it apart from the law of the labour market, and that this ethical core is the consequence of political struggle. Labour law gives effect to the principle of international law that labour is not a commodity, a principle which the law of the labour market subverts. The purpose of revisiting this debate is to examine whether labour law as so understood can be resurrected. For this purpose, I focus on the recent work of Harry Arthurs who in a series of lectures and elsewhere provides a withering assessment of the current state of play and a bleak outlook for the future. While I agree strongly with his assessment of the current condition of the discipline, I take issue with his pessimistic vision of the future, which in my view underestimates the importance of political struggle in effecting social, economic and legal change., I In this article I would like to revisit a piece I wrote in 1988 in which I suggested that labour law as in terminal decline, and to consider whether [...]

The Social Science Research Network is a depository for academic scholarship. SSRN allows academic papers and abstracts to be accessible worldwide. Most papers may be downloaded from the SSRN database free of charge, but some links are to commercial sites. Posting papers to SSRN and subscribing to its site are not inherently complicated. However, it is possible for academic departments, particularly law schools, to use SSRN more efficiently and more flexibly than SSRN's architects envisaged. For instance, one can establish a faculty working paper series with archived issues that are forever easily accessible, a much cheaper manner of establishing a working paper series than traditional ways, and a more permanent format than envisaged by standard SSRN systems. This article explains how SSRN works and how it can be used more effectively. [ABSTRACT FROM AUTHOR]

The article lists law theses, masters and honors papers 2011-2012 submitted in the Victoria University of Wellington Law Library on topics including accident compensation, administrative law, and aviation law.

A list is presented of the law theses and papers deposited in the law library at the Victoria University of Wellington in New Zealand including "Accident or Tragedy?: Compensation for Suicide and Self-Inflicted Injuries Under the ACC Scheme," by Michael Bell, "Pregnancy Following Failed Sterilization Under the Accident Compensations Scheme," by Yasmin Moinfar, and "Community Justice," by Annina Boehm.

Judicial promotion of mediation has been identified as an important way to encourage and increase the amount of commercial mediation in New Zealand. This latest contribution to the New Zealand Commercial Mediation Study (NZCMS) explores the views of District and High Court judges in relation to the use of mediation in their courts. Comparisons are made with earlier NZCMS studies, including the controversial issue of mandatory mediation. While the judiciary is well placed to increase the amount of commercial mediation in New Zealand, this paper concludes that it is unlikely that this potential will be realised under the current civil procedure settings. District and High Court judges possess a good understanding of mediation and its benefits but also prioritise party autonomy in choosing whether to undertake mediation or not. [ABSTRACT FROM AUTHOR]

In this article, the late Rt Hon Sir Ivor Richardson provides personal insight into the inner workings of the Court of Appeal and reflections on each of the judges appointed since its inception as a permanent appellate court in 1958 until 2002. Drawing on his vast experience as an advocate, as a judge and as a President of the Court of Appeal, Sir Ivor canvasses the Court as led by various judges: Gresson, North, Turner, McCarthy, Richmond, Woodhouse, Cooke and Sir Ivor himself. Sir Ivor retired as President of the Court of Appeal in 2002 after 25 years in judicial office. He wrote the bulk of the paper that forms this article in 2009, but it remained unfinished at the time of his death in 2014. The paper is reproduced here largely as it was written; only minor edits have been made for clarity. [ABSTRACT FROM AUTHOR]

This paper is an edited version of Sir Edmund's Valedictory Lecture delivered at the University of Auckland on 15 February 2018. [ABSTRACT FROM AUTHOR]

The Children, Young Persons, and Their Families (Youth Courts Jurisdiction and Orders) Amendment Act 2010, which came into effect on 1 October 2010, could be considered the most significant change to the Children, Young Persons, and Their Families Act since its introduction in 1989. The new Act has two main functions: it extends the jurisdiction of the Youth Court and gives the Court a new range of orders. This paper analyses s 14 of the new Act which extends the jurisdiction to 12 and 13 year old serious and recidivist offenders. The paper assesses what problem Parliament was trying to address with this amendment. It argues that the change in jurisdiction could be said to be motivated by populist politics rather than addressing a known change in child offending. The paper then explores how s 14 changes the underlying assumptions about the level of responsibility we attribute to children. It then recommends that serious and recidivist offenders continue to be dealt with by the Family Court. The paper acknowledges, however, that changes could be made to strengthen the Family Court's existing powers to ensure children are dealt with more effectively. [ABSTRACT FROM AUTHOR]

This article examines an extraordinary episode in New Zealand's constitutional history: the 1892 removal of Justice Worley Bassett Edwards as a Supreme Court judge after having been invalidly appointed by the previous government. Edwards' case is important as the only time a New Zealand government has formally sought to remove a sitting judge of the Supreme or (as it is now) High Court. But the article argues that the Edwards controversy is also an example of how New Zealand politicians and lawyers thought about judges within the developing New Zealand state, and even more profoundly about what was constitutional, as opposed to just legal, within that state. [ABSTRACT FROM AUTHOR]

Recently, ideas about "rights" to Internet access or connectivity have received growing recognition from governments, legal institutions, and other political actors in several countries, including New Zealand. Despite this emerging political and legal recognition, there are few, if any, systematic studies exploring such ideas. This paper aims to change this. First, it offers a theoretical exploration of the idea of a "right" to Internet access, including the different versions of such rights talk. Secondly, it examines whether there is any legal basis for such rights claims in New Zealand and ultimately argues that section 14 of the New Zealand Bill of Rights offers a legal basis for a certain kind of right to Internet connectivity, as well as a legal basis to claim wider access - via the Internet or other mediums - to government information. Some concrete implications, both legal and political, of these findings are also explored. [ABSTRACT FROM AUTHOR]

The Criminal Procedure (Reform and Modernisation) Bill is currently before the New Zealand Parliament. The Bill will implement mandatory defence disclosure of the issues in dispute at a pre-trial hearing stage. This paper addresses the enforcement mechanism adopted by the Bill an inference of guilt from nonompliance and examines the suitability of the inference as an enforcement mechanism. It outlines the compatibility of the inference with the existing framework of evidence law in New Zealand and suggests changes to the Bill that are necessary to ensure the inference is exercised in a consistent and justifiable way. [ABSTRACT FROM AUTHOR]

APN New Zealand Limited v Simunovich Fisheries Limited was a significant Supreme Court judgment regarding the biggest defamation claim in New Zealand's legal history. The Court ruled that third party statements were inadmissible as evidence for a defence of truth, unless such statements could be independently proven to be true. This paper argues that objectively reliable third party statements, such as statements made by the judiciary, should be admissible as evidence for a defence of truth in certain cases. Where a defamatory meaning of reasonable grounds to suspect guilt is pleaded, rather than an allegation of actual guilt, reliable statements made by a third party can be highly relevant in proving the existence of reasonable grounds for suspicion. A high burden is already placed on defendants to negotiate technical pleading and evidential requirements in proving the defence of truth. Simunovich erects an unnecessary further obstacle that will prevent the submission of relevant and reliable evidence. This paper recommends that the Simunovich ruling on third party statements be amended to allow such particulars to be admitted in support of a defence of truth to an alleged defamatory meaning of reasonable grounds of suspicion. [ABSTRACT FROM AUTHOR]

The purpose of this paper is to examine the evolution of the foundation (Stiftung) in the Principality of Liechtenstein. The article therefore deals with recent changes in the statutory legislation governing them as well as with current developments in case law. The paper will also address the different approaches taken towards foundations by the civil law and common law traditions within Europe. In fact, the jurisdiction of Liechtenstein embraces elements of both the civil and the common law traditions. [ABSTRACT FROM AUTHOR]

The theme developed in the paper is that what makes a leading case is not immediately apparent or able to be captured in a short definition. The crucial questions are how and why a case is seen to be or to have been particularly influential in settling an area of the law. Exploring these questions necessarily involves viewing the case in its historical context. Economic and behavioural implications and impacts should also be kept in mind. The paper draws on empirical research involving retired judges, experienced lawyers and judges' clerks and on specialist essays by senior academic lawyers produced for the 50th anniversary conference of the Court of Appeal in 2008. The research results show how much room there is for differing assessments of significance. The second half of the paper discusses a range of appeal cases explaining how and why the Court focussed on particular matters of significance in deciding the cases [ABSTRACT FROM AUTHOR]

Recent research conducted by Victoria University of Wellington provides evidence of debt collection practices in New Zealand. This article discusses the findings of the research and makes recommendations to assist in addressing issues around harassment, use of attachment orders and accumulation of interest on old debts. [ABSTRACT FROM AUTHOR]

Trusts often have the effect of undermining the social aims of the Property (Relationships) Act 1976. In the absence of legislative action, the courts have been sympathetic to a range of arguments aimed at accessing trust assets that would have been subject to division between the parties but for the trust. None of these judicial responses adequately addresses the current deficiencies of the Property (Relationships) Act or the potential detriment to trusts and their beneficiaries. This paper considers a range of potential reforms and argues that any reform should seek to strike a balance between the social aims of a relationship property regime and the right of owners to structure their property interests as they wish. [ABSTRACT FROM AUTHOR]

This article proposes reform to New Zealand's natural disaster insurance scheme in anticipation of The New Zealand Treasury's (Treasury) 2021 review of the Earthquake Commission Act 1993. The Canterbury Earthquake Sequence of 2010-2011 revealed many shortcomings in New Zealand's dualinsurance model, outlined in the March 2020 Public Inquiry into the Earthquake Commission. Recent changes in the private insurance market have aggravated these problems, notably, increasing premiums and a move to sum-insured policies. This article explores the lesser known background to the unique EQC system and examines the fundamental reasons for this public system. It aims to establish the most effective natural disaster insurance scheme for New Zealand, holding that retaining the dual-model approach is preferable. However, fresh reforms are necessary. Five reforms are proposed: ensuring the scheme's universality; increasing the EQC cap; implementing differentiated pricing; incorporating incentives for mitigation; including a purpose statement within the Act. Implementing these reforms will best ensure the scheme meets the objective of allowing homeowners to build their secure fence at the top of the cliff, while still ensuring there is a well-functioning ambulance at the bottom. [ABSTRACT FROM AUTHOR]

Despite medical devices being integral to modern healthcare, New Zealand's regulation of them is decidedly limited, with repeated attempts at reform having been unsuccessful. With the Government now indicating that new therapeutic products legislation may be introduced before the end of the year, the article considers the case for change, including to promote patient safety, before analysing the draft Therapeutic Products Bill previously proposed by the Ministry of Health, and on which any new legislation is expected to be based. It concludes that, while the proposed Bill is a step in the right direction, introducing regulatory oversight where there is currently next to none, there is still significant work to be done. In particular, it identifies a need to clarify whether the regime is indeed to be principles-based and identifies further principles which might be considered for inclusion. It further proposes regulation of cosmetic products which operate similarly to medical devices to promote safety objectives, while finding a need for further analysis around the extent to which New Zealand approval processes should rely on overseas regulators. Finally, it argues that, in an area with such major repercussions for people's health, difficult decisions around how to develop a framework which balances safety with speed to market should not be left almost entirely to an as yet unknown regulator but, rather, more guidance from Parliament is needed. [ABSTRACT FROM AUTHOR]

A landowner's utility pipe bursts and floods the plaintiff's land. It was reasonably foreseeable that the water would cause flood damage to the plaintiff's land in case of an escape. But it was not reasonably foreseeable that the pipe would burst and, hence, that there would be an escape of water. Can the landowner be liable in nuisance? This paper explores the conceptual implications of the proposition that reasonable foreseeability of harm is an element of liability in nuisance. It argues that, if reasonable foreseeability of harm is an element of nuisance, then nuisance can no longer be thought of as a strict liability tort. [ABSTRACT FROM AUTHOR]

In September 2018, the Ministry of Business, Innovation and Employment (MBIE) recommended that New Zealand introduce a "disclosure of origin" requirement for patent applicants. Disclosure of origin was also recommended by the Waitangi Tribunal in 2011. If applicants were required to disclose the origin of genetic resources or traditional knowledge used, interested iwi and hapū groups would more easily be able to monitor the use of their resources and oppose patents being granted, and decide whether to challenge or oppose the grant. It would also allow more patent applications to be identified as relating to Māori interests and subsequently be referred to the Patents Māori Advisory Committee (PMAC) in the examination process. This article examines the potential for a disclosure of origin requirement in New Zealand, assessing appropriate design elements and objectives. [ABSTRACT FROM AUTHOR]

This article considers the role of the illusory trust doctrine in New Zealand. It argues that the illusory trust doctrine should be incorporated into the Trusts Act 2019. Incorporating the illusory trust will enhance clarity in New Zealand's law of trusts by providing the courts with a conceptually coherent method to assess the permissible boundaries of the trust. This article explores the differing views of illusory trusts in the context of the Trusts Act and in light of policy concerns. The "no meaningful accountability" view of illusory trusts is identified as the best formulation of the doctrine for incorporation into the Trusts Act. Importantly, the no meaningful accountability view does not jeopardise discretionary family trusts, which have social and economic significance. The author goes further by drafting a tentative provision for incorporation in the Trusts Act. The provision is then applied to the nefarious Clayton v Clayton trust and a typical, discretionary family trust. This application demonstrates that the provision will only catch the most nefarious Clayton-type trusts, thus preserving discretionary family trusts. [ABSTRACT FROM AUTHOR]

This article explores the challenges for the United Nations Convention on the Law of the Sea (UNCLOS) in protecting the marine environment and biodiversity. The traditional approach to developing the law when facing new challenges is through evolution -- the iterative amendment of existing instruments and guidelines. I discuss the recent Agreement for the Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction (BBNJ Agreement) as an example of the evolution approach. I challenge whether evolution in the law of the sea is sufficient to meet the significant challenges facing regulation of uses of the ocean, and ask whether revolution is needed, through new concepts and processes. [ABSTRACT FROM AUTHOR]

The radical principles behind the 1967 Woodhouse Report were eclipsed by shifting political styles--and gradually abandoned as heretical. We can now turn to Sir Owen's own notion, that "the apparent heresies of one generation become the orthodoxies of the next", to explore how core Woodhouse heresies might themselves perform this transition: providing fresh support for a generation grappling with headline challenges of climate change and pandemic control. [ABSTRACT FROM AUTHOR]

In the 2022 Sir Owen Woodhouse Memorial Lecture, I considered what it means to make law in New Zealand. Using examples from Sir Owen Woodhouse's illustrious career as a judge and law reformer, I argued that there are important differences in judges' and law reformers' conceptions of "making law". The common law is best seen not as a collection of rules but as a custom as to how to go about recognising what the law is. As a result, it is better to think of what New Zealand judges do as making common law in New Zealand, rather than remaking a New Zealand common law outside pre-existing traditions. The lecture illustrates this point by analysing the Supreme Court's decision in Ellis v R (Continuance), which was decided between the lecture being given in Wellington and its being given in Auckland in October 2022. [ABSTRACT FROM AUTHOR]

Under s 26(b) of the Trade Marks Act 2002 (the 2002 Act), where "other special circumstances" exist and it is considered "proper", a trade mark application may be registered despite its conflicting with an existing trade mark. What amounts to "other special circumstances" is not defined in the 2002 Act, and the exception has not been subject to detailed judicial consideration. This lacuna creates challenges for applicants, their advisers, the Intellectual Property Office and the courts. In this article, by considering the text, context and historical purpose of such an exception, I argue that the provision should be understood as a mechanism to grant registration where this would avoid injustice because of the existence of out-of-the-ordinary circumstances faced by the trade mark applicant or which relate to the position between the trade mark applicant and the owner of a conflicting registration. A wide range of circumstances may be deemed "special" under s 26(b). However, I suggest that evidence of prior use per se and without more does not and should not automatically fall within the exception. Further, adjudicators should continue to approach the exception cautiously and narrowly to ensure it does not undermine other core tenets of New Zealand's trade mark system. [ABSTRACT FROM AUTHOR]

The report (Fofola na ibe) of the "Improving Pasifika Legal Education Project" concluded that the law schools in New Zealand have not served Pasifika peoples well. The reasons for this are diverse, and the range of possible solutions are complex. For many Pasifika peoples, the law school is inherently foreign to their views and values. Armed with the findings and recommendations of the report, this article uses the Pasifika weaving conception to reflect on the ways that law schools in New Zealand can ensure, through discussion, dialogue and action, that they are a just, equitable and welcoming place for Pasifika law students. [ABSTRACT FROM AUTHOR]

The Catholic Church is a global power capable of influencing the development of domestic law in multiple jurisdictions. This influence can be obvious, such as where politicians vote according to a religiously formed conscience. The influence of the Church can also be more subtle. At the heart of several social conventions is a collection of traditional societal norms that originated within the boundaries of the Catholic canon law. In many states these conventions have developed naturally due to advancements in modern philosophical and scientific thought. However, in states with strong Catholic or Christian traditions, societal development is prone to stagnation due to conflicts between the official canons, the more liberal canons and societal development. One example where this conflict is most obvious is the canon law surrounding homosexuality. The official position of the canon law is conservative. Homosexuality is treated as a disease-like condition requiring strict abstinence to achieve spiritual enlightenment. The foundation for this position derives from natural law theory. Natural law theorists repel suggestions for reform based upon the idea that the rules stemming from natural law theory are either divine in origin or are articulations of naturally existing goods. I make the appraisal that the natural law foundation to the conservative position collapses when the true historical origins and motivations for the traditional position are revealed. When the origins of the canon law are no longer regarded as "divine in nature", the law can be more receptive to societal development. [ABSTRACT FROM AUTHOR]

This article argues that the cultural assimilation of Māori family forms, originating in colonial private family laws, continues under the Care of Children Act 2004 (COCA). It finds that the opportunity to draft a law that was respectful of tikanga Māori and te Tiriti o Waitangi was lost when legislators ignored all the critiques of the operating principles and processes of the Pākehā legal system, provided by Māori during the 1980s and 1990s. The article argues that cultural assimilation continues through court decisions, since COCA principles require priority to be given to parents, with a corresponding marginalisation of whānau, hapū and iwi. The article concludes that incremental reform would be unlikely to achieve legislation that is fit for a bicultural Aotearoa New Zealand. It advocates for a transformational Māori-led family law reform process, guided by te Tiriti o Waitangi/the Treaty of Waitangi and by tikanga Māori. [ABSTRACT FROM AUTHOR]

This note discusses key themes arising from Lord Cooke's published extrajudicial writing. These themes cover Lord Cooke's conception of the common law, the interpretation of the Treaty of Waitangi, the development of bill of rights jurisprudence in New Zealand and overseas, and the role of judges. This note arises out of the authors' involvement in the Lord Cooke project, a Victoria University of Wellington initiative that will make a complete collection of Lord Cooke's extrajudicial writings available online. [ABSTRACT FROM AUTHOR]

After introductory comments on how the Judicial Committee functioned as the final court for the British Empire for over a century, this article discusses a range of highly unusual cases from India, Canada and New Zealand. The aim is to give something of the flavour of the Judicial Committee's work and its impact on local courts. The final section of the paper suggests conclusions that can be drawn from that survey. [ABSTRACT FROM AUTHOR]