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Student involvement in patient care without consent has attracted recent attention in New Zealand. New Zealand's Code of Health and Disability Services Consumers' Rights (Code) gives patients the right to give or refuse consent to participate in clinical teaching, but its practical application to clinical teaching, particularly postgraduate, is unclear. This article explores the history and precedent of the Code and ethical considerations, to inform where amendment to the Code is desirable in the interests of clarity, pragmatism, and to reflect better the legislature's intent. [ABSTRACT FROM AUTHOR]

Given the absence of a civil damages action for personal injury in New Zealand, its Health and Disability Commissioner's (HDC) complaints process occupies a pivotal role in its medico-legal arrangements. Much hope was invested in it, but as currently configured, the regime is incapable of delivering justice or fulfilling its legislative purpose in a good number of cases. Many hundreds of complaints per annum, in which there is a strongly arguable case of deficient conduct or more than a mild departure from acceptable standards and in which a serious outcome has resulted, are not fully investigated; and there is no mechanism to appeal an adverse HDC decision that a party considers substantively unfair. Recent criticism of these issues by courts, the Chief Ombudsman, and commentators has mounted, and a petition to Parliament seeking legislative reform to create a right to appeal from adverse HDC decisions resulted in referral of the issue to the Commissioner to consider in an upcoming review, but hoped-for reform will not happen quickly. [ABSTRACT FROM AUTHOR]

A gynaecological ultrasound on an adolescent patient can involve a transabdominal (TAUS), transvaginal (TVUS), trans‐perineal (TPUS) or transrectal (TRUS) approach. Following TAUS a TVUS or TRUS may be suitable on an adolescent patient if they are determined to be a 'mature minor'/Gillick competent and provide informed consent. Legal information on adolescent consent to medical treatment is difficult for sonographers to obtain as current professional guidelines are not sufficiently detailed on the laws of consent to medical treatment and workplace policies are often not specific to adolescent patients. This manuscript provides information on informed consent to medical treatment, 'mature minor'/Gillick competence determination, Australian and New Zealand legislation for 'mature minors' to consent to medical treatment, adolescent psychology and avoiding coercion when obtaining consent. [ABSTRACT FROM AUTHOR]

This research aims to compare the policy response to residential methamphetamine contamination by public housing authorities in the United States and New Zealand. We utilize a comparative case study approach to analyze the process of policy development, implementation, and outcomes by the Salish and Kootenai Housing Authority (SKHA, US) and Housing New Zealand (HNZ now Kāinga Ora, NZ). Both housing authorities initially developed their policies based on a 'zero tolerance' precautionary principle to protect their tenants' health and discourage drug related activities. This approach caused unintended consequences for housing agencies and tenants, including significant financial expenditure on methamphetamine testing and remediation, a decline in housing portfolios due to contamination, and termination of tenancies, with imposition of financial penalties, contributing to homelessness. Liability for contamination was determined either by baseline testing (SKHA) or the Tenancy Tribunal (HNZ). In both cases, a review of policies prompted a shift to a harm reduction approach focused on compensating and supporting tenants, avoiding evictions. The initial zero tolerance approach caused considerable harms to vulnerable tenants that likely outweighed the health risks from methamphetamine exposure. This research underlines the importance of developing appropriate policies that balance health risks with possible social impacts of the policy response. [ABSTRACT FROM AUTHOR]

Coroners' inquests in Australia and New Zealand are no longer formally part of the criminal justice process. However, they can take place after the resolution of criminal charges and, although coroners' findings cannot be expressed in terms of persons' criminality, inquests can also result in referrals to prosecuting authorities. In addition, referrals to professionals' disciplinary regulators can be made by coroners. The potential for such adverse outcomes for the individuals affected makes it essential for those representing parties or witnesses at coronial hearings to consider carefully the forensic strategies that they deploy and, in particular, the advice that they provide, including in relation to claims to the privilege against self-incrimination. By reason of the partial abolition of the doctrine of autrefois acquit in a number of Australian jurisdictions, the potential for new and compelling evidence to emerge during an inquest takes on additional significance for persons who have been found not guilty of offences such as a murder at a previous trial. [ABSTRACT FROM AUTHOR]

More than a decade ago, the first exploratory study into the experiences of Self-Represented Litigants in Aotearoa (New Zealand) recommended the need for more cultural perspectives in this area of research. This article makes a timely contribution to building this knowledge base while identifying some of the gaps, attitudes, intersectional experiences and challenges faced by Pacific communities within their respective cross-cultural contexts in response to Aotearoa's justice system. As a starting point, we explore the existing framework of self-represented litigation in Aotearoa as well as some of the key limitations to highlight how responsive it is to cultural and systemic issues of bias. This article further explicates key principles from a customary approach used in Samoa to demonstrate how it may help facilitate meaningful engagement across diasporic Pan-Pacific communities to further enhance cross-cultural litigation in the civil justice system of Aotearoa—a largely under-theorised area. [ABSTRACT FROM AUTHOR]

The political purpose doctrine, a key part of the charity law landscape for many common law jurisdictions, has been subject to much judicial and academic criticism over the years. Its continued influence on the charity sector in relation to whether or not charities can operate effectively, or indeed, whether they may lose their registered status, gives rise still to such criticisms. It is against this backdrop that this article critically assesses the doctrine in light of newly-emerging decisions from the New Zealand courts that have fundamentally changed the charity law landscape from a national perspective, and considers some of the issues associated with this newly-evolved doctrine. Thus, what can be said is that New Zealand charity law jurisprudence is evolving and this article provides some useful insights in to contemporary charity law issues predominantly through the New Zealand lens as but one legal approach, and also compares some of these issues against two international perspectives. [ABSTRACT FROM AUTHOR]

This article considers the relationship between the law, charity and religion, and specifically, the charitable doctrines of the advancement of religion and public benefit. In doing so, it addresses a number of matters, including controversy and morality, from the perspective of some key religious charity law cases. The discussions consider whether or not the Lord's name may be taken in vain through the works of these charities, and thus require legal reform, or whether charity law is indeed doing the Lord's work within the constructs of charity law such that the law remains fit for purpose. [ABSTRACT FROM AUTHOR]

Intensive, inpatient physical rehabilitation in a dedicated unit can have a hugely positive influence on a person's life after a major injury or illness. This resource, however, is scarce and not every participant will benefit. Appropriate and fair participant selection for inpatient rehabilitation is therefore vital. This article considers challenges in these selection decisions, including the potential for inconsistency, bias and controversy, and the limits of evidence-based selection criteria. To provide best care in this setting, this article suggests that a clear process of decision-making is also important, alongside the use of objective selection criteria. One possible framework for this selection process is New Zealand's Health and Disability Commissioner Code of Patients' Rights, which is informative for clinicians and health authorities in rehabilitation selection in all jurisdictions, and which supports appropriate and fair participant selection. [ABSTRACT FROM AUTHOR]

Copyright of Psycho-Oncologie is the property of PiscoMed Publishing and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Residential methamphetamine contamination in New Zealand has resulted in substantial clean-up costs and evictions. Disputes between tenants and landlords have been adjudicated by the New Zealand Tenancy Tribunal (NZTT). However, the adjudication processes applied are not covered in specific legislation, and scientific advice and related regulatory standards have evolved over time, leading to uncertainty about the consistency of decisions. This study explores the factors that have influenced adjudicators' decisions by thematically analysing 685 NZTT orders from 2014 to 2019. Landlords filed 84% of applications and tenants were deemed liable for 96% of the NZ$2.8 million damages awarded. The Tribunal's decisions were unevenly influenced by baseline testing, presence of children, experience of health issues, police intervention, and neighbours' reports. Several factors contributed to inconsistent decisions, including the contamination threshold applied, sampling methodology, establishing liability for contamination, and assessing "cleanliness". This study suggests more judicial guidance and legislation is required to resolve these cases more equitably. [ABSTRACT FROM AUTHOR]

This article investigates the operation of voluntary administration in New Zealand from inception in 2007 to 2019. Voluntary administration is a formal insolvency procedure that is intended to maximise an insolvent company's chances of rehabilitation. Research undertaken for this article suggests that voluntary administration is not operating as was intended. It appears to have been underused and largely ineffective as a business rehabilitation mechanism. This article suggests that contributing reasons for the findings of the research include cost barriers for small businesses, a lack of confidence on behalf of creditors, and a misuse of voluntary administration by company directors. It proposes that useful reforms would be to reduce cost barriers and place limitations on when and how the procedure can be used. [ABSTRACT FROM AUTHOR]

This article addresses the misconception that overlapping rights to land are always in tension with one another. In this article, I apply a tikanga-based analysis to the policy on overlapping rights that is used in the settlement of historical Treaty of Waitangi claims. I argue that the supremacy of colonial law within the State legal system continues to suppress indigenous relationality and limit the mechanisms for reciprocity. This article problematises the following claims made about overlapping claims disputes. First, that overlapping rights are too complex for judicial resolution. This article examines the ways in which overlapping rights are capable of co-existing to preserve relationships between different iwi and hapū. Second, that tikanga is a contestable system of law and should not be regarded as a question of law or as a jurisdictional framework for resolving such disputes. This article critically analyses the extent to which these claims are based on the supremacy of colonial law within the State legal system by considering the application of tikanga in the courts and alternative dispute resolution processes. I argue that tikanga Māori is the only applicable framework whereby differences can be mediated in a way that preserves the relationships between the parties and provides redress mechanisms for continuing reciprocity. This article concludes that the State legal system at present continues to delegitimise indigenous relationality in ways that amalgamate rights into a colonial recognition framework, which fails to recognise tikanga Māori as an equal system of law in Aotearoa New Zealand. [ABSTRACT FROM AUTHOR]

This article argues the New Zealand Government's current approach to compulsory psychiatric treatment is unjustifiable in a human rights context. Under s 59 of the Mental Health (Compulsory Assessment and Treatment) Act 1992, clinicians are empowered to administer compulsory psychiatric treatment to individuals without, or contrary to, their consent. This article analyses s 59, and its underlying justifications, in light of the New Zealand Government's commitments under the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). Further, it analyses the approach for compulsory psychiatric treatment advocated by the UNCRPD in light of Aotearoa New Zealand's mental health context to evaluate whether this approach would be more desirable than the current approach under s 59. The article then advocates for a more balanced approach to compulsory psychatric treatment which puts the rights of disabled individuals at the forefront and also ensures there are limits to these rights which are justifiable within a human rights context. [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 equal division of assets at the end of a relationship, residual economic disparity often remains. This is especially common when one partner has left the workforce to care for children. Addressing such divergent economic prospects at the end of long-term relationships has been a perennial policy challenge. In 2019, the Law Commission completed its review of the Property (Relationships) Act 1976 (PRA). The Commission recommended replacing the current economic disparity compensation and maintenance regimes with an income pooling mechanism: Family Income Sharing Arrangements (FISAs). It also recommended that couples be able to contract out of FISAs. This article explores the rationale for changing the current regime and the conceptual underpinnings of the proposed FISA regime, using human capital as a framework. The article proposes a detailed policy regime for FISA contracting out. The proposed rules consider the needs of couples with children, where a partner has left the labour force, or where lived reality has not met the couple's ex ante expectations. The resulting rules meet the policy goal of allowing couples to contract out of FISAs, but only where their contract causes no hardship. Additional disclosure is also recommended for contracting out of the other provisions of the PRA, with greater deference recommended for such private arrangements as a result. [ABSTRACT FROM AUTHOR]

This article focuses on the control order regime introduced by the Terrorism Suppression (Control Orders) Act 2019 and its implications for due process rights. Control orders are formally civil, and so the heightened criminal procedural protections in the New Zealand Bill of Rights Act 1990 (the NZ Bill of Rights) ostensibly do not apply. But the simplicity of the criminal-civil binary belies the hybridity of control orders. In this respect, control orders capture in microcosm the larger policy shift towards a "preventive state" which, rather than relying on ex post facto denunciation, pre-emptively incapacitates threatening individuals before they commit harm. This article assesses how we should deal with control orders' hybridity. It suggests that on the basis of current authority, control orders would not attract the criminal procedural protection in s 25 of the NZ Bill of Rights. Instead, they will be governed by s 27(1), which secures a right to natural justice. It then critically assesses this result. Drawing on the work of Andrew Ashworth and Lucia Zedner, it canvasses four possible approaches to control orders. It argues that, in order to facilitate engagement with their distinctive and problematic features, control orders ought to be distinguished from punishment and dealt with under other provisions of the NZ Bill of Rights. This should stimulate discussion about the kind of procedural protections that are appropriate to safely balance the liberty interests of the subject against legitimate security concerns. [ABSTRACT FROM AUTHOR]

The 13 separate segments of this article are designed to explore the consequences for New Zealand public law of the global decline of democracy in many parts of the world, although not in New Zealand. The trend towards autocracy is evident in many countries and has been increasing. There was a time when democracy was thought to be inevitable, but that time has passed. Since New Zealand is a small and open society, democratic rot and decline could set in, as it has in other democracies. In order to combat these tendencies, it is necessary to think about the implications of these developments for teaching public law and for the need to bolster education in citizenship, so people can better understand the advantages of democracy, participate in it and feel a commitment to it. Many New Zealanders not born here may not understand the culture, may not have English as their first language and may be discouraged from engagement. New Zealand is increasingly diverse. The article explores the recent history of the United States and to a lesser extent, the United Kingdom, to discern the tendencies at work in those democracies. Returning to the fundamental elements of public law, it is suggested that the analysis begins with the nature and character of the state, followed by international law. Then it is argued it is necessary in the New Zealand context to examine the situation of Māori, Te Tiriti o Waitangi, the activities of the settler governments and the remaining consequences of colonisation. There appears at this time to be an opportunity to more significantly recognise indigenous Māori culture. From there, an examination of some important principles of political philosophy is provided. This leads to a summary of the main types of government that are available for any state. Then are set out the main political ideologies that often impel political actors. The changes in democratic practice that have resulted from the digital revolution are then examined with the effects upon political parties and how they have changed New Zealand. The manner in which public opinion can be manipulated and the need to become literate in politics and political practice is emphasised. The article concludes with a discussion of public law as an autonomous discipline and a final conclusion about what all this means for New Zealand. In the mind of the author, after a long career in public law and politics, these separate elements combine into a message about the need for democratic refurbishment and future vigilance in New Zealand. [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]

This article provides guidance to non-Niuean lawyers, and particularly for New Zealand lawyers, who want to ascertain the Niue law on a particular matter. The need arises because a New Zealand statute that was extended to be part of the law of Niue may still be in force in New Zealand and in Niue but, because of the passage of time and legislative action in one or both of the countries, the text and effect of the statute may be different in each country. [ABSTRACT FROM AUTHOR]

The use of information technology during the COVID-19 pandemic raises significant questions around the protection of personal data in a disaster. This paper considers how the clear benefits of using and sharing such data in disaster scenarios can be achieved while recognising an individual's right to privacy through examining the experiences of Taiwan and New Zealand. These states represent two successful COVID-19 response strategies which utilised different approaches to the use of technology. In Taiwan, the response made significant use of personal data and information technology. New Zealand, by contrast, has relied upon stringent lockdowns and extreme limits upon personal freedoms. The paper considers the different approaches to data and privacy that underpinned these responses and considers whether New Zealand can learn from the Taiwanese experience in future disaster planning. In doing so, the paper concludes by examining the wider question of when and if the community's expectation of a safe environment should trump the rights of individuals to retain personal data both in the context of pandemics and in other emergency or disaster scenarios. It also raises deeper questions, exposed by the COVID-19 response, about whether our current approach to privacy is sustainable in the digital age. [ABSTRACT FROM AUTHOR]

This analysis considers the implications of Smith v Fonterra Co-operative Group Ltd [2020] NZHC 419 and the possibility of a new tort to the environment developing within New Zealand jurisprudence. In Smith , the New Zealand High Court refused to strike out a cause of action based on a new inchoate tort against seven corporations for the damage likely to be caused by their greenhouse gas emissions (GHGs), and allowed the matter to proceed to trial. The case raises questions as to whether the time is ripe in New Zealand for the development of a tort to the environment, and whether such a tort could apply to hold private emitters liable for harm caused to the atmosphere by GHGs. In this analysis, we conclude that a duty to protect the environment may be a natural evolution of the New Zealand law of torts and may extend to conduct causing damage to the atmosphere, opening up the possibility of successfully suing corporations for harm to the climate. [ABSTRACT FROM AUTHOR]

This lecture commemorates the life of one of our most distinguished judges and citizens, Sir Owen Woodhouse. His compassion, generosity of spirit and social conscience were reflected in his work as President of the Court of Appeal, President of the Law Commission and Chairman of the Royal Commission on Compensation for Injury that recommended a no-fault accident compensation scheme and laid the foundations for the Accident Compensation Corporation (ACC) scheme. He made an immense contribution to New Zealand's law and society. [ABSTRACT FROM AUTHOR]

Automated decision-making systems, developed using artificial intelligence and machine learning processes, are being used by companies, organisations and governments with increasing frequency. The purpose of this article is to outline the urgent case for regulating automated decision-making and examine the possible options for regulation. This article will argue that New Zealand's current approach to regulating decision-making is inadequate. It will then analyse art 22 of the European Union's General Data Protection Regulation, concluding that this regime also has significant flaws. Finally, this article will propose an alternative regulatory solution to address the novel challenge posed by automated decision-making. This solution aims to strike a balance between the interests of organisations in capitalising on the benefits of automated decision-making technology and the interests of individuals in ensuring that their right to freedom from discrimination is upheld. [ABSTRACT FROM AUTHOR]

In James Hardie Industries plc v White, the New Zealand Court of Appeal considered circumstances where a parent company could be directly liable for defective products produced by its subsidiary while upholding the principles behind separate corporate personality. The Court passed off the case as an unexceptional development in the law, based on an application of ordinary tort law principles and supported by decisions from overseas jurisdictions. However, the Court neglected to consider the underlying policies of the cases it cited, ignored important distinctions between them and the present case and did not inquire into whether they were in fact relevantly applicable. In fact, the Court extended parent company liability for the acts and omissions of its subsidiary far beyond what courts in overseas jurisdictions have held. In doing so, the Court implicitly lifted the corporate veil and failed to acknowledge the impact such a finding of liability would have on the corporate form. [ABSTRACT FROM AUTHOR]

True proportionality between the degree of a tortfeasor's fault and the extent of a plaintiff's loss is unachievable in negligence law in New Zealand. As Mallon J's judgment in Strathboss Kiwifruit Ltd v Attorney-General highlighted, the concept of proportionality can only be used to negate an alleged tortfeasor's duty of care, thereby eliminating the potential for liability. This approach does not accommodate differing levels of disproportionality. Moreover, relying on negligence law's liability limiting mechanisms to achieve proportionality, as Mallon J did in Strathboss, will not always be fruitful; there may still be a large gap between what a defendant has done and what the defendant is held accountable for. The extent of a tortfeasor's liability may depend on luck rather than principle. However, internationally, the wrongful conception and birth cases reveal a more nuanced use of proportionality: reducing the scope of a tortfeasor's duty of care. While this may be seen as inconsistent with negligence law's compensatory objective, I argue that a tortfeasor's interest in being free from undue burdens should constrain this objective, where necessary. This article develops on the reasoning in the wrongful conception and birth cases and borrows from the language of the Contributory Negligence Act 1947 to create a general mechanism for limiting a tortfeasor's liability in the interests of proportionality. The proposed mechanism aims to ensure that the law of negligence delivers more just results. [ABSTRACT FROM AUTHOR]

This article concerns the issue of purchase money security interest (PMSI) refinancing. Under current law, PMSI super-priority is lost on refinance regardless of whether the refinancier is the original PMSI holder or a third party financier. This article contends that such a position is uncommercial and frustrates the undergirding objective of the law of debt security to facilitate the provision of credit to business. This position is supported by theory, international treatment of the issue and policy. [ABSTRACT FROM AUTHOR]

In Low Volume Vehicle Technical Association Inc v Brett, the New Zealand Court of Appeal grappled with the rare issue of whether a person can waive their right to freedom of expression under the New Zealand Bill of Rights Act 1990 (NZBORA). The Court, responding in the affirmative, concluded that Mr Brett had waived this right. This article critiques that decision. While the Court was right to find that Mr Brett could waive his right to freedom of expression, it failed to scrutinise the waiver to ensure that this relinquishment of a protected right in fact reflected Mr Brett's free choice. Had the Court considered a different approach to analysing Mr Brett's waiver - at the prima facie breach stage, instead of under s 5 of the NZBORA - proper scrutiny would have been achieved. That approach would have ensured that Mr Brett was not so easily deprived of his right. [ABSTRACT FROM AUTHOR]

The right to freedom from discrimination in New Zealand is underpinned by equality, one of the most influential, yet amorphous principles in political theory. This article argues that the failure of New Zealand courts to articulate the norms behind the anti-discrimination guarantee enables arbitrary and inconsistent reasoning. The decisions of the High Court in Taylor v Attorney-General and the Court of Appeal in Ngaronoa v Attorney-General thus reflect a wrong turn in New Zealand discrimination law, taken in the case of Ministry of Health v Atkinson. Because discrimination law necessitates moral judgment, this article argues that the courts have been wrong to treat discrimination law as a largely amoral enterprise. Seen in this context, it should be unsurprising that the decisions of Taylor v Attorney-General and Ngaronoa v Attorney-General appear to mask moral judgments behind a façade of empiricism and common sense, and reveal different conceptions of equality. [ABSTRACT FROM AUTHOR]

The Supreme Court gave judgment in Shark Experience Ltd v PauaMAC5 Inc [2019] NZSC 111 late in 2019. In doing so, it engaged for the first time in a deep, granular analysis of the Wildlife Act 1953, New Zealand's primary legislative regime for protecting endangered wildlife, and this paper is a detailed examination of the case. At issue was whether shark cage diving is caught by the provisions in the Wildlife Act, and the answer to that question demanded close attention to its arcane and often confusing provisions. Ultimately, while the Supreme Court's analysis into the Act's provisions is useful, given it declined to provide a definitive answer as to whether shark cage diving was 'molesting' or 'disturbing' wildlife - an offence under the Act - this paper concludes that this was a missed opportunity. Disappointing as it was, however, the decision highlights the deficiencies of this outdated legislation and provides further impetus for reform. [ABSTRACT FROM AUTHOR]

New Zealand's accident compensation provides, among other things, compensation for lost earnings to people injured in accidents and incapacitated from work. A person with cover under the scheme cannot bring a claim for compensatory damages. However, where the accident also constitutes a criminal offence for which an offender is prosecuted, the offender can be ordered to pay reparation for lost earnings over and above the compensation payable under the accident compensation scheme. This article provides a recommended approach to a number of issues that have arisen recently with respect to how the quantum of such reparation should be determined, an issue which is underexplored in case law and academic writing. The most significant question, which was first addressed at appellate level last year in the decision of Oceana Gold v WorkSafe New Zealand [2019] NZHC 365, is whether reparation should follow the same approach to determining earnings as the accident compensation scheme does. The High Court found that it should, so as to prevent reparation from becoming a true exception to the accident compensation scheme. We argue that Parliament intended reparation to involve an assessment of the victim's actual losses, which necessitates stepping outside the accident compensation scheme's blunt approach to earnings and, in practice, will often involve actuarial assessments. We also consider questions of whether reparation should be reduced for reasons including: to reflect that reparation is an up-front-payment? (yes); because the victim avoided litigation? (no); because of other accident compensation payments (no); or because the victim contributed to their injury? (perhaps, but only for turpitudinous conduct). [ABSTRACT FROM AUTHOR]

No set-off (NSO) clauses, widely used in a variety of contracts and transactions, typically state that payment must be made without deduction, set-off or counterclaim. This article examines the relationship of NSO clauses with stay of execution and the summary judgment procedure under the court rules. Although comparison is made with English law, the focus is on New Zealand. The main arguments are as follows: it is the law and good law that NSO clauses do not have the effect of barring the court from exercising the discretion to stay execution of judgment. However, such clauses should have an impact on the discretion, and certain principles governing the exercise of the discretion can be restated in such a way as to reflect the impact. To enter summary judgment on the ground of an NSO clause and to do so purely on the 'no arguable defence' ground in the court rules are two different things. In particular, while the court has the discretion to decline summary judgment even though the defendant has no arguable defence under the court rules, it should not have that discretion when an NSO clause is resorted to. [ABSTRACT FROM AUTHOR]

The 'any evidence' rule provides judicial discretion to admit evidence in the Family Court that would otherwise be inadmissible. Although the rule has frequently been criticised, its operation and ongoing value have not been closely examined. In its recently-reformed iteration, the 'any evidence' rule embodies and demands a rigorous approach to evidentiary issues in the Family Court, premised on fundamental Evidence Act principles of relevance, probative value and prejudicial effect. In this first comprehensive review of the New Zealand family law 'any evidence' rule, based on an analysis of post-reform case law, we argue that the rule should be repealed. It is unnecessary, other than in relation to the special issue of children's hearsay, and in practice contributes to a lax approach to the admission of evidence in the Family Court. We conclude by setting out recommendations for reformed law and practice, and directing users towards a more principled approach to family law evidence in the meantime. [ABSTRACT FROM AUTHOR]

The article discusses issues on the Section 10 provision of the Criminal Procedure (Mentally Impaired Persons) Act of 2003 (CP (MIP)) in New Zealand, particularly the need for evidential sufficiency hearing after a determination of unfitness of a defendant to stand trial. Also cited are the rulings of the Court of Appeal in the cases R v Te Moni and R v. McKay, and the question of whether an unfit-for-trial person should be detained if he/she committed an offence.

Restorative justice is regarded in modern criminal justice systems as one approach to address inadequacies in the conventional justice model. New Zealand has become a leader in implementing legislatively mandated restorative procedures. This reputation is due in part to a handful of supportive statutes: the Sentencing Act 2002, the Victims' Rights Act 2002, the Parole Act 2002, the Corrections Act 2004 and subsequent amendments to those acts. In this article, I evaluate the practices bolstered by these acts and how effectively they operate, accounting for how legislative design may contribute to achievements and shortcomings in New Zealand's restorative justice programmes. I supplement the results by comparing New Zealand's efforts to those in Vermont, a U.S. state similarly well-regarded for its restorative policies. The evaluation of each jurisdiction's restorative justice programme is based on metrics for restorative success from Bazemore and Schiff (2005. Juvenile justice reform and restorative justice: building theory and policy from practice. Cullompton: Willan Publishing). I employ qualitative and quantitative data, surveying existing evaluations of restorative justice in New Zealand and Vermont, collecting longitudinal statistics, and conducting interviews with restorative justice practitioners. Overall, this analysis reveals that the design of restorative justice programmes requires negotiation; it is difficult to balance the dimensions of effective restorative justice with the needs of modern justice systems. [ABSTRACT FROM AUTHOR]

The article discusses the doctrine of precedent in New Zealand. Topics covered include the arguments in favour of obedience to the doctrine of precedent, the arguments in favour of a greater degree of originality in the courts' approach to the doctrine of precedent, and some problems that arise in relation to the application of the doctrine in specific contexts. It notes that obedience to the doctrine of precedent remains a fundamental element of the country's judicial system.

Retroactive tax legislation is one of several tools available to the government in its ongoing mission to combat taxpayers' exploitation of loopholes in tax legislation. However, the use of such tools undermines the rule of law. As this article demonstrates, it does so by infringing on subjects' legitimate reliance that the statutes governing the legal (taxation) consequences of their actions will do so only in a prospective manner. Non-prospective tax laws also amount to the expropriation of subjects' vested property interests in a way that prospective statutes do not. The sovereignty of parliament does not provide a satisfactory justification for the adoption of such laws. New Zealand's commitment to parliamentary sovereignty reflects an underlying commitment to liberal democracy. Indeed, the commitment to parliamentary sovereignty is in fact a commitment to upholding liberal democracy. It is possible, though admittedly not yet the case, that judges would, and arguably should, refuse to enforce statutes that do not promote the continuation of liberal democracy. Upholding the rule of law is important, under circumstances of pluralism, to ensuring that society is governed by democratic processes and democratically made laws, as opposed to the will of the majority cloaked in legality. New Zealand's commitment to liberal democracy therefore suggests that laws inimical to the rule of law, including retroactive tax legislation, is not only unprincipled but also in fact potentially unconstitutional. However, as this article also demonstrates, two important factors mean the Crown retains considerable freedom to adopt non-prospective tax legislation while acting in a principled manner. The first is the unobjectionably retrospective -- as opposed to retroactive -- nature of all legislation. That defeats many principled objections. The second is the mechanical underpinnings of New Zealand's income tax legislation, which means that taxpayers gain a legitimate expectation as to their final tax liability, or lack thereof, at the end of each tax year. This allows significant scope for principled legislation combatting avoidance and minimisation. [ABSTRACT FROM AUTHOR]

While traditionally the settlor of a trust falls away after it has been created, increasingly they are seeking to retain some degree of influence over it. The impetus for this can be found in a number of factors, such as the need for supervision over increasingly wide discretions, a sense of attachment to assets that have been settled, fundamental principles of settlor autonomy and the competition between trust jurisdictions seeking to attract clients. The first form of influence examined is that of communicating wishes to trustees, both around the creation of the trust and during its operation. Here it is shown that both forms of communication are considered acceptable for trustees to consider, so long as certain thresholds (such as for a breach of trust or a sham) are not passed in the decision-making process. The second form is that of powers, held either by the settlor or another person chosen by them. The focus here shifts to the question of the fiduciary or personal nature of those powers, given its relevance to the next matter, before finding that there is a significant permitted scope for them, as long as they also do not either conceal a sham or go so far as to deprive the trust of any substance. [ABSTRACT FROM AUTHOR]

The article discusses a proposal by New Zealand's Privacy Commissioner to include the right to be forgotten (RTBF) in the Privacy Bill 2018. Topics covered include the existing rights under the Privacy Act 1993, the challenges in articulating the RTBF, and the ways that the right can operate as a buffer against the pervasive accumulation of vast amounts of information.

Gene editing use in pest control, primary industries and human health care pose significant new challenges for regulation. Under current New Zealand legislation (the Hazardous Substances and New Organisms Act 1996) and a judicial ruling on interpretation of the legislation and regulations, the status of gene edited organisms in New Zealand are considered genetically modified and are regulated as new organisms employing a precautionary approach. This article has identified some of the complexities of the legislation inherent in regulating a rapidly developing technology, where such advances may be well ahead of current frameworks and public acceptance. Legal and policy issues have been considered. A future-proof framework to keep abreast rapidly advancing biotechnologies is required whereby new legislation for biotechnologies is developed and a single-entry point for biotechnology applications is implemented. Most importantly this article recommends valuing Treaty of Waitangi principles and have those principles lead us in all that we do. [ABSTRACT FROM AUTHOR]

This article sets out the laws relating to criminal trials conducted in the Court Martial of New Zealand and relating to appeals from that Court to the Court Martial Appeal Court and compares those laws to the equivalent laws relating to criminal trials and appeals in the civilian system. The purpose of this article is to identify the legal and ideological similarities and differences between the two systems, and where there are differences, to suggest possible explanations. It is argued in this article that, whilst there remain significant differences between the laws governing the military and civilian systems, a clear pattern of "convergence" or "alignment" can be identified whereby the military system is adopting (and adapting) more and more features of the civilian laws in terms of substantive rights, procedure and values. Recent statutory reforms in 2018 to the military justice system are also included. This process of alignment is likely to continue in the future. Having said this, the fundamental differences between the two systems are also likely to remain for some time as each system serves different needs. [ABSTRACT FROM AUTHOR]

The article examines the case of Rowland Herbert Edwards, who was meted a death sentence by New Zealand Governor, Lieutenant-General William Jervois, in 1884 for the murder of his wife. Also cited are Edwards' killing of their four children, the country's common law crime of murder, as well as the evidence of insanity in the case.

In New Zealand, posthumous reproduction is regulated by the Human Assisted Reproductive Technology Act 2004 (HART Act), which established two bodies, the Advisory Committee on Assisted Reproductive Technology (ACART) and the Ethics Committee on Assisted Reproductive Technology (ECART). In 2000, the predecessor of ECART, the National Ethics Committee on Assisted Human Reproduction (NECAHR), issued "Guidelines for the Storage, Use, and Disposal of Sperm from a Deceased Man" designed to provide a legal framework for this technology. However, a recent application to the High Court by the partner of a man who unexpectedly died, requesting permission to have sperm retrieved from the deceased and the subsequent judgment handed down by the High Court in 2017,1 have highlighted the shortcomings of the current posthumous reproduction regulations. This has led to a recent consultation process by ACART to review and revise the guidelines. Relying on Re Lee, the landmark judgment of the High Court that found in favour of granting the permission sought and which sheds light on the legal aspects of posthumous reproduction in New Zealand, the current article discusses the approach endorsed by the HART Act regarding consent for posthumous retrieval and use of gametes. [ABSTRACT FROM AUTHOR]

This article asks how the conflict of laws should approach couples' property as a matter of first principles, by reference to the law of New Zealand. It argues that lawmakers should make full use of the pluralist potential of general conflict of laws methodology, engaging in an explicit evaluation of the many – often hidden – values that shape its rules. Based on such an evaluation, the article argues that the conflict of laws should strive to facilitate the effective dissolution of personal property relationships and recognise their personal and social ties to legal systems. An internationalist approach, displaying an openness to the exercise of jurisdiction and the application of foreign law, would serve to achieve these aims. [ABSTRACT FROM AUTHOR]

Virtual reality has the potential to provide a new medium of communication that will allow community, business and recreation to extend into the virtual realm. As with any emerging technology, the law must decide how to respond. When technology throws into question what the law considers to be real, we are starting from a relatively clean slate. The purpose of this article is to consider the extent to which the criminal law must engage with virtual reality. This issue is approached through the case study of virtual indecent assault. After considering the offence of indecent assault in s 135 of the Crimes Act 1961 and the effects of virtual actions, this article argues that the potential for harm justifies the intervention of the criminal law into virtual worlds. In light of this conclusion, this article also aims to outline a set of principles that can shape the criminal law's response. A principled approach can establish a stable foundation from which to tackle the diverse and often unknown challenges posed by an ever changing technology. These principles are applied in the evaluation of the different methods of criminalisation that would be available in the context of virtual indecent assault. [ABSTRACT FROM AUTHOR]