Canterbury Law Review

Publisher:: University of Canterbury School of Law
Publication date:: 2023-01-27

ISBN:: 0112-0581

Issue Number

No. 31-2024, January 2024

Latest documents

Civil-Military Relations and an Inspector-General of Defence for Aotearoa New Zealand
This article looks at civil-military relations in New Zealand in the light of the findings of a Government Inquiry into a special forces operation in Afghanistan (the Burnham Inquiry). The Inquiry found a military that was not fully informing its civilian leadership of important information regarding, inter alia, civilian casualties. This led to the Inquiry recommending that an Inspector-General of Defence (IGD) be established to investigate allegations made against the defence forces and to assess policy and practice, in order to report back to the Minister of Defence. This article looks at what the IGD adds to the regulatory framework for the military and argues that it is a welcome step in improving accountability for the military and increasing the levels of civil-military interconnection. New Zealand’s military has been granted a significant degree of trust in how it has operated for many decades. This accords closely with Huntington’s theory of “objective control”. The IGD’s role should serve to bring it under closer control by civilian leadership. This is an important development for the constitutional protections of civilian control of the military and ministerial accountability to Parliament
Inadequacies of Article 42 CISG: Does the Answer Lie in Article 79?
The United Nations Convention on Contracts for the International Sale of Goods (CISG) provides uniform laws that govern transnational sales contracts between businesses operating in Contracting States, or when the law of a Contracting State is applicable according to conflict of laws rules.1 Currently 97 Contracting States worldwide have adopted the CISG, including New Zealand.2 Article 42 CISG requires a seller to deliver to the buyer goods that are free from any third-party intellectual property rights (IPRs). The territoriality of IPRs means that a seller may not be the party best suited to know the existence of any third-party IPRs in certain jurisdictions compared to the buyer. Article 42 creates uncertainties for parties involved in international commerce with regards to intellectual property (IP) disputes and can lead to unsatisfactory results. In this paper, I explore whether an aggrieved party to a contractual dispute about a thirdparty IPR claim can pursue a cause of action under art 79. I apply a two-stage enquiry to selected cases, under art 42 (stage one) and then art 79 (stage two) of the CISG, and demonstrate that a losing party in a third-party IPR dispute is also unlikely to succeed under art 79, even in rare circumstances
Reasonable Expectation and Public Interest: Would the New Zealand Tort of Invasion of Privacy 'Benefit from Re-Examination'?
The New Zealand tort of invasion of privacy as formulated by Gault P and Blanchard J in Hosking v Runting, has been subject to criticism from the outset and has proven to be incredibly difficult to apply. In recent years, it has become apparent that the tort may no longer be fit for purpose and the judiciary have recently expressed a willingness to reconsider the requirements of the tort. This paper critically analyses the cause of action and considers how it could be more appropriately framed to deal with the harm caused by invasions of privacy in New Zealand’s modern social and legal landscape. Overall, in light of the developments that have occurred since Hosking and the increased legislative focus on protecting individual privacy rights, this paper supports the adoption of an approach that would bring the tort closer in line with English law
Review of Kevin Hille, Carwyn Jones & Damen Ward, Treaty Law: Principles of the Treaty of Waitangi in Law and Practice (Thomson Reuters, 2023)
Land of the Long White Lab Coat: Aotearoa New Zealand and the Laws of Trusted Research
As an island nation, New Zealand punches well above its weight internationally in terms of both technological innovation and higher education. Yet at the intersection of both domains, New Zealand has lagged in the protection of sensitive and critical university research – it takes little part in the academic discourse surrounding this concept (which the New Zealand government refers to as "trusted research") and has enacted no new laws in the space since the late 2000s. In doing so, New Zealand risks falling behind its Indo-Pacific neighbours and allies including Australia, the United States and Japan. This paper therefore responds to both shortfalls in research on the subject of trusted research in New Zealand, by providing a legal analysis of the frameworks which protect university research and promoting several law reforms which could uplift the nation's trusted research position. Noting the increasing importance of New Zealand's role in resisting the actions of foreign interference and espionage in the region, this paper argues for a most robust security posture across New Zealand's university landscape
Of Hobbits, Collective Bargaining, and False Economic Emergencies: Accelerated Legislation and Political Constitutionalism
Many constitutional systems allow for an acceleration of the legislative process. Under New Zealand's mechanism, the so-called urgency motion, the government can introduce and pass a bill within a single parliamentary sitting. New Zealand's constitution is also strongly political, that is, parliamentary actions are mainly controlled by political means (such as general elections) rather than legal means (such as judicial review). This combination is highly concerning when viewed through the lens of securitisation theory. This theory posits that if the public perceives a political issue as an existential threat to a fundamental social value, the use of extraordinary measures is justified, such as accelerating the legislative process. Thus, if the government can influence the public narrative and make a political issue appear to be an existential threat, the use of urgency to pass it will be justified, irrespective of whether the issue really poses an existential threat. In such a case, the political constitutional safeguard of public censure of parliament fails, because the public has already been convinced that extraordinary measures are necessary and justified. The circumstances around passage of the "Hobbit Law" (the Employment Relations (the Film Industry Work) Amendment Act 2010) shows that political constitutions are vulnerable to the constitutional effects of securitisation of non-existentially threatening political issues
A Feminist Exploration of the Employee/Contractor Boundary: A Call to Action
Everyone who works in Aotearoa New Zealand is entitled to respect, dignity, fair conditions, safety and reasonable reward. While some workers are protected by employment legislation, the reality for workers who fall outside the legal status of "employee" is very different. Generally known as "contractors", these workers face very mixed work experiences. The Courts have considered a steady stream of applications over the past two decades resulting in some contractors being reclassified as "employees", able to pursue remedies for harms suffered. Various governments have known about the growing issue and failed to act. Advocacy groups have had mixed results pursuing improved conditions for those they represent. This research reviews the law on the employee/contractor boundary, along with caselaw, MBIE's Consultation on Better Protection for Contractors and the recommendations of the Tripartite Working Group on Better Protection for Contractors, through a feminist lens. The research will show that there are many voices missing from the discussions that have been had to date and a general lack of understanding of the harms being experienced by some contractors. Active listening and a willingness to consider new ways forward to achieve a mana enhancing good working life for everyone is urgently needed
Critique of Hart's Concept of Law in Samoa
Hart's "Concept of Law" has gained widespread recognition in legal philosophy by proposing that a legal system is best understood as a combination of primary rules that impose obligations and secondary rules that grant the authority to create, modify, and interpret those primary rules. One aspect in Hart's concept concerns the prelegal or primitive system, consisting of a society governed solely by primary rules of conduct without secondary rules. Thus, it proceeds to assert that such a system exists in a small, stable community bound by shared beliefs and kinship. This article illustrates that upon closer scrutiny within legally intricate and bijural contexts – such as the case of Samoa, where both primary and secondary rules co-exist – the argument proves to be fundamentally flawed. Moreover, this critique highlights the limitations in the standard application of Hart's Concept of Law in other post-colonial contexts, including Aotearoa New Zealand and South Africa. The article further argues that more critical and nuanced perspectives are needed to examine the legal reality of Hart's theory in modern postcolonial contexts
Editoral - Canterbury Law Review 2023
Keep Running Up That Hill: The Challenge of Educating a Legal Profession Fit For The Next 150 Years