Old Government Buildings
Home to Vic's Law School, the historic Government Building is the second largest wooden building in the Southern Hemisphere.
Old Government Buildings
Home to Vic's Law School, the historic Government Building is the second largest wooden building in the Southern Hemisphere.
Old Government Buildings
Home to Vic's Law School, the historic Government Building is the second largest wooden building in the Southern Hemisphere.
Old Government Buildings
Home to Vic's Law School, the historic Government Building is the second largest wooden building in the Southern Hemisphere.
Old Government Buildings
Home to Vic's Law School, the historic Government Building is the second largest wooden building in the Southern Hemisphere.
It seems that the media’s conduct at Pike River crossed an ethical line. In my view, they have also crossed a legal one. There is a good argument, first, that some members of the media have committed the tort of breach of privacy. The tort’s first requirement is that the relatives had a reasonable expectation of privacy in respect of the events depicted in the images. This is almost certainly established. Courts have made it clear that individuals have a right to be left alone if they are experiencing something traumatic, distressing or humiliating, even if they are in a public place at the time. Leaving a meeting at which one has been told that there is no hope of finding one’s loved ones alive is a paradigmatic example of that situation. The tort’s second requirement is that the publicity given to the images be ‘highly offensive’ to an objective, reasonable person in the shoes of the individual being photographed. A number of factors make this coverage offensive. The photographs were published in the immediate aftermath of the tragedy; they were close up, detailed, and showed the subjects in a raw emotional state. In many cases, the photographs were published in spite of the subject’s objection to their being taken. Some showed children whom courts are particularly astute to protect. It is highly unlikely that relatives were told that publication was imminent. Most people, it is suggested, would find being treated find being treated in that way highly offensive.
Media defendants are therefore likely to be liable unless they can establish that the relatives’ right to be left alone at this moment of grief was outweighed by an overriding ‘legitimate public concern’ in seeing the material. It is not enough to show that there is a general public concern in the Pike River tragedy itself nor that that the public is interested in seeing these kinds of images. Media defendants would have to show that there was a good reason for publishing these images and that the public interest in them outweighed the relatives’ competing right to privacy. The media’s usual argument that publication of the images was justified because they brought home the enormity of the situation is particularly unconvincing here. Few people lack the imagination to understand the despair relatives would feel on receiving news of the deaths after six anxious days of waiting. And there is no suggestion that the country was not taking the situation seriously. Government had already signalled its intention to launch a commission of inquiry. The defence would be unlikely to succeed.
Damages are available under the tort of privacy – the most substantial award so far has been $25,000. But there are costs and risks associated with bringing an action which can deter all but the wealthiest of claimants. (One would like to hope that this was not a consideration when the media decided to publish the images.) Other, more accessible, outlets for redress are also available. If privacy was breached in a television broadcast, any member of the public can make a complaint to the Broadcasting Standards Authority (the BSA). Principle 3(iii) of the BSA’s Privacy Principles provides specific protection against an intrusion which takes place in public if ‘the individual whose privacy has allegedly been infringed was particularly vulnerable’ and the disclosure was highly offensive to an objective reasonable person. Both requirements would seem to be satisfied here. Privacy Principle 7 also requires that ‘children’s vulnerability… be a prime concern to broadcasters’ and that broadcasters satisfy themselves that ‘the broadcast is in the child’s best interests’. Filming a child leaving that meeting is very unlikely to meet that test. The Press Council also give some redress for print media intrusions although their powers are less extensive than the BSA’s and they are in general less inclined to use them.
Families of the lost men will currently have more immediate concerns than the law of privacy and, even with the passage of time, might not wish to bring an action. However, it is important to register that intrusive media conduct is not a necessary incidence of modern life. On the contrary, it is an infringement of a legally protected right to be left alone at times of significant distress and trauma.
Nicole Moreham
Senior Lecturer, Faculty of Law
John Prebble (Victoria University of Wellington, Faculty of Law) has written An American GAAR for TaxProf Blog. Here is the abstract:
"The President signed § 7701(o) of the Internal Revenue Code, the first U.S. statutory general anti-avoidance rule, or “GAAR”, into effect on 30 March 2010. The birth of the American GAAR was buried in § 1409 (a) of the Health Care and Education Reconciliation Act of 2010 (H.R. 4872). With § 7701(o) the muster of common law jurisdictions without GAARs is dwindling. India and the UK remain prominent hold-outs.
Section 7701(o) applies to “any transaction to which the economic substance doctrine is relevant”. A standard GAAR says that an avoidance transaction is void for tax purposes and authorizes the Commissioner to reconstruct the transaction and to tax that notional reconstruction. The economic substance doctrine operates similarly. It tells the Commissioner to disregard legal transactions and instead to tax the economic substance beneath.
The Obama GAAR has extra bite. It strikes down a transaction where the economic profit is not “substantial” in relation to its net tax benefits.
This relative benefits rule was presumably intended to reverse the result in cases like Compaq Computer Corp v. Commissioner, but the drafting of § 7701(o) betrays all sorts of compromises. Paragraph (5)(C) says: “The determination of whether the economic substance doctrine is relevant to a transaction shall be made in the same manner as if this subsection had never been enacted.” Congress seems to be saying, “We may appear to have armed the Commissioner with a GAAR. But we don’t really mean it. Everyone carry on as before”. But that interpretation is too bizarre to be tenable. On the contrary, § 7701(o) is a true GAAR that will prove a powerful weapon in the hands of the Commissioner. Notwithstanding its novel drafting, it will operate much as GAARs do in other common law jurisdictions. Like GAARs elsewhere it will become a focus of scholarly writing."
Everyone thinks Elena Kagan’s appointment to the United States Supreme Court is a bit of a wild card because there’s little evidence available about her judicial philosophy, if she has one. In truth, however, Kagan is most likely utterly predictable. And that’s not a bad thing.
Last week, President Obama ended weeks of speculation by announcing that he was nominating Kagan, the administration’s solicitor general, to fill the latest vacancy on the Supreme Court. Commentators immediately shifted gears, spinning new speculation about Kagan’s judicial politics and how she might cast her “vote” on the usual legal and constitutional controversies like abortion, campaign finance reform, equal protection, and the president’s executive powers.
But it soon became clear that the problem, at least for critics and pundits, was not that Kagan had a liberal or conservative track record, but that she did not have very much of a track record at all. Her academic writing is limited, she has no popular writing or commentary, and never having served on the bench, she has no judgments to dissect.
Thus, some liberals like Paul Campos at The New Republic or Glenn Greenwald at Salon.com lament that Kagan is a ”blank slate” with meagre liberal credentials , who may be a closet conservative on key legal questions. Other liberals, like Huffington Post’s Linda Monk, however, celebrate the thin record, proclaiming Kagan may turn out to be a strong progressive once on the court. Conservatives, for their part, like National Review’s Ed Whalen or the Washington Post’s Michael Gerson, warn that Kagan is an unknown quantity who may very well be a “committed progressive” who has “carefully hidden her views.”
Despite disagreements, what all of these discussions assume is that Supreme Court nominations are often unpredictable. That is, you can never truly know who you are appointing until they are on the bench, especially if nominees lack a judicial record. Often cited to support this assumption is the case of former chief justice Earl Warren, a liberal icon in the 1960s, who was appointed by a Republican president, Dwight Eisenhower, who would famously regret his choice. Despite being a Republican, it is argued, Warren’s judicial philosophy was unpredictable given his lack of writing and judicial track record.
But is this assumption sound? Not really. In their 2005 work Advice and Consent, political scientists Jeffrey Segal and Lee Epstein conclude that while no predictor is perfect, most appointees generally mirror the ideology of the presidents who appoint them. Thus, presidents Reagan and Nixon elevated conservative justices such as Antonin Scalia, William Rehnquist, and Warren Burger, and presidents Clinton and Kennedy appointed more liberal judges, such as Stephen Breyer, Ruth Bader Ginsburg, and Byron White.
The outliers like Earl Warren can usually be explained by unique circumstances. Eisenhower may have been looking for conservatives; he was just really bad at picking them. Warren’s own track record – such as his stance on segregation laws in California – disclosed a more moderate figure. Eisenhower likewise misread William Brennan, who turned out to be another important liberal on the Warren Court.
In fact, Eisenhower’s missteps may have served as a warning to future presidents. Stanford political scientists Charles Cameron and Jee-Kwang Park recently found that pre-nomination ideological indicators were even better guides for appointments after 1957. The reason for this, they suggest, is that presidents likely changed their approach to appointments at this time, paying more attention to details to ensure their choices matched their preferences. Interestingly, by 1957, the Warren Court had already passed down several of its most progressive decisions, such as Brown v. Board of Education and Bolling v. Sharpe.
What all this means is that Elena Kagan’s judicial philosophy will probably reflect the moderation and pragmatism that Obama himself espouses and that Kagan’s own past suggests – fair-minded, highly intelligent, but also, as David Brooks has less amicably put it, strategic and ideologically risk-adverse. Yet, this isn’t bad for a judge, either.
So, is Elena Kagan a judicial wild card? The more exciting answer might be that she’s a liberal scion in waiting, a closet strong progressive, or, to conservatives, an ideological wolf in sheep’s clothing. But the reality is likely much more predictable and banal.
Jonathon Penney
Internet NZ Senior Research Fellow in CyberLaw and Lecturer, Victoria University of Wellington; and Fulbright Scholar, Columbia Law School
[reposted from The Mark]
Reminiscent of Brash in Orewa, Anderton, Goff and Hide used the Declaration for their political advantage, and against the interests of all New Zealanders. They played on apocalyptic fears that the recognition of human rights for Maori will strip the majority of New Zealanders of their lands and rights. While the self-interest is not surprising – it is a powerful political motivator - it is ultimately dangerous for the health of the country, exacerbating the type of division of which they complain.
Only the truth can pull some of the harm of the political punch.
First, there has been much confusion about the import of the Declaration – whether it is worthless or with horrific bite. The answer lies somewhere in the middle.
Declarations are not legally binding international legal instruments. However, many, if not all, of the rights in the Declaration apply human rights found in treaties and under customary international law, already binding on New Zealand, to Indigenous peoples. These include the land rights provisions, which mirror international, and in many instances domestic, human rights standards.
New Zealand’s “caveat” that New Zealand’s legal and constitutional frameworks define the bounds of New Zealand’s engagement with the Declaration adds little. New Zealand’s legal and constitutional frameworks determine its approach to all international law, including binding international law.
Overall, the Declaration provides a blueprint for how states and Indigenous peoples, consistently with human rights, ought to work together in partnership and mutual respect.
For these reasons, there is absolutely nothing hypocritical in New Zealand supporting the Declaration while at the same time noting that, in relation to 3 of its 46 articles, New Zealand aspires to achieve them.
Second, international human rights and the Declaration amply balance Indigenous peoples rights with the human rights of all. The Declaration is, formally, hierarchically inferior to human rights treaties, applicable to all. And, the Declaration itself states that the human rights and fundamental freedoms of all shall be respected in the exercise of the rights enunciated in the Declaration,.
To pluck Declaration articles out of context, misinterpret them and then claim that the Declaration means that the whole of New Zealand territory must revert to Maori is at best poor legal analysis.
Of deeper concern for New Zealand is the apparent fear of recognition of Indigenous peoples’ rights. History has taught us that fear of “the other” is almost always dangerous, especially for “the other” when it is in the minority.
In a country with some of the weakest formal legal protections of human rights in the world, where Maori are a minority and lost over 95% of their lands in little over 100 years, it is surprising how often recognition of Maori rights leads to accusations of privilege, at the expense of the non-Maori victim.
In fact, there is more to fear from a failure to respect and protect Maori rights. Maori attachment to New Zealand weakens when their rights to live in accordance with their own cultural mores, on their lands with their resources and waters, are not respected; impulses to divide increase.
New Zealand’s attachment to equality is sometimes expressed as a demand for one law for all. The problem is that this sentiment is translated, in New Zealand political domains, into a claim to identical treatment. It ignores that to treat all the same, in accordance with laws determined by a non-Maori majority, can result in further assimilation of Maori.
The argument that New Zealand should not support a declaration that has the support of states with poor human rights records is dubious. It would rule out New Zealand’s support of virtually all international human rights instruments. It also ignores that New Zealand remained one of only three states, out of more than 190, that continued to oppose the Declaration; a Declaration that also received support from, for example, Europe and Latin America.
Moreover, human rights should not be politically traded: we should measure ourselves against the ideals they embody, not Zimbabwe’s record.
Views expressed by some in Parliament also reflect an arrogant assumption that Indigenous peoples’ rights are well protected here. Compared to formal constitutional and legal protections of Indigenous peoples’ rights in Canada, the United States of America, and much of Latin America, New Zealand’s Constitution and laws rate poorly.
We should be aware of the extent to which New Zealand fell short of international consensus on the human rights of Indigenous peoples by now. We have, over the last 5 years, repeatedly butted heads with international criticism of New Zealand’s approach to Indigenous peoples’ human rights, and the international Indigenous peoples’ rights movement as a whole.
Instead of accepting New Zealand might not be perfect and focusing on means to improve, we denigrated the oversight, including world-renowned experts and other states. Ironically, our defensiveness led us to sound like the same states we criticise.
This does not mean New Zealand should uncritically accept all international human rights without analysis and reflection. But it certainly proves questionable our sense of beneficence and enlightenment in relation to the rights of Indigenous peoples.
There has been a pleasant change in New Zealand’s performance on the international stage in relation to human rights over the last year; evidenced by a governmental willingness to constructively engage on human rights internationally and an acceptance that New Zealand has ongoing human rights issues to address. This was capped off by the decision to support the Declaration; cause for celebration indeed.
Claire Charters, Fellow, NZ Centre for Public Law; former Senior Lecturer, Victoria University of Wellington; and co-editor of a book on the UN Declaration on the Rights of Indigenous Peoples.
"What has caused the clear split in approach and unprecedented change in the tone of dissent which is seen in the decision in HM Advocate v. Martin and Miller ([2010] UKSC 10)? [cont]"
- Case comment: Martin v HM Advocate; Miller v HM Advocate [2010] UKSC 10: Part 2: Aristotle and Plato in the Supreme Court
Dean Knight, Senior Lecturer
But a post on the new Supreme Court blog reminded me that the success of a final appellate court is much more than its physical setting - virtual interaction with the community is also important.
In the blog post reproduced below, the editors of a UK blog on their new Supreme Court focus on provision of information from the Court. A wish list for virtual access to justice.
Generally our Court does okay - we have access to some of the information. But it would be nice to see some of the other information provided as well.
> UKSCblog: "Supreme Court - information wish list"
As the Supreme Court opens its doors for business for the first time, we put forward our "wish list" of information that we would like to see from the Court. We don't expect everything to be available all at once but everything on our list is already available from one or more Supreme Courts round the world. If it was all available it would greatly increase transparency and public understanding of the cases being argued in the Court. It appears that some of this information will be available once the Court starts sitting. In her recent speech - discussed on this blog - Chief Executive Jenny Rowe mentioned that when everything is working fully key information from the case management system will be publicly available via the website. We will keep our readers up to date with what comes out.B+.
The "wishlist" is as follows:First, a "Judicial Sittings" list which includes full information about the appeal - the unique cite of the decision appealed against, a brief description of the subject matter of the appeal, the identity of the solicitors acting for the parties. The Canadian Supreme Court has a list of all cases ready for hearing with their "docket" number. A search against this number gives all the information about the case including the information mentioned in our next point.
Available online (http://www.courtsofnz.govt.nz/about/supreme/case-summaries/supreme-court-case-summaries/case-summaries-2009). Basic information only. But not easily searchable. And no longer are embedded links provided to the judgment under appeal.
Second, the statements of facts and issues and the parties written cases. For example, the Canadian Supreme Court provides, as part of the case information for each case, the written cases ("the factums") filed by each party, see for example, those in the pending case of Queen v Cunningham. Similarly, the US Supreme Court directs users of its site to publicly available "merits briefs". These can also be found on the wonderful ScotUSblog. "Heads of Argument" are available for pending cases in the South African Constitutional Court (by clicking on "forthcoming hearings" on the home page and following the links, see for example, heads of argument in Poverty Alleviation v President of the Republic)E.
We're still reliant on the grace of counsel - or a formal application to the registry to inspect the files - to obtain submissions and the like.
Third, listing of applications for leave, interim orders and all the other activity of the Court. Such a list could be found (with difficulty) for the House of Lords (in the "House of Lords business" section of their website). The High Court of Australia, for example, publishes "Business Lists" dealing with all leave applications and other matters being dealt with by the Court.B.
Some information in the case summaries (http://www.courtsofnz.govt.nz/about/supreme/case-summaries) and daily lists (http://www.courtsofnz.govt.nz/business/calendar/daily-lists) but otherwise hard to locate.
Fourth, a transcript of the hearings. If the High Court of Australia can do it, so can we. See, for example. the transcript of the hearing on 27 and 28 August 2009 in the case of Arnold v Minister Administering the Water Management Act 2006.A-
The real gem of the Court's online repository (http://www.courtsofnz.govt.nz/from/transcripts//from/transcripts/supreme-court-transcripts-2010). These have proved incredibly valuable. But there is a long lag in their production. Presently, only up-to-date up to the middle of October 2009 meaning, for example, the fascinating oral argument in Saxmere (No 2) is still not yet available.
Fifth, a webcast of the hearing. The Canadian Supreme Court does it (see, here) and so does the Court of Human Rights, see, for example, the webcast of the recent hearing in Carson v United KingdomD.
This tops my wish list. There must be the capacity to provide this. Those folk who have attended the Court in the basement will be aware that the hearing is piped through via video into large screens in the foyer. Separate cameras are locked on the full bench, each individual judge, and counsel. A number of times I've sat in the foyer with work or marking while watching a hearing unfold. But this really should be an option for those outside Wellington. Please!
Sixth, as much notice as possible of the handing down of judgments. The House of Lords used to give 6 days notice. In contrast, the Supreme Court of Canada gives 2 to 3 weeks.C.
Daily lists only (http://www.courtsofnz.govt.nz/business/calendar/daily-lists), available only from 5pm the day prior, with no formal advance notice. And the Decisions page (http://www.courtsofnz.govt.nz/from/decisions/judgments) is often slow to update.
Seventh, a "media summary" of the Judgment when it comes out - shortly stating the issues and the decision. This is common practice in Courts such as the High Court of Australia, the South African Constitutional Court (see the Recent Judgments list on their website). These have been promised by the Supreme Court.A.
Routinely available on the Decisions page (http://www.courtsofnz.govt.nz/from/decisions/judgments).
Eighth, regular "Court Bulletins", telling us what the Court has done and will be doing, including lists of all the pending cases. This is done in many countries such as Canada (weekly) and Australia (monthly)D.
Nope.
Something to watch. Hopefully our Court can build on these basic building blocks to ensure its virtual environment is as grand and transparent as its physical one.
Dean Knight, Senior Lecturer [cross post from LAWS179]
Today's post is a peanut's guide to formalism and instrumentalism:
- http://lsolum.typepad.com/legaltheory/2010/01/legal-theory-lexicon-formalism-and-instrumentalism.html
Dean Knight, Senior Lecturer
It is with some pride that I record the launch last night of New Zealand's very own style guide. The Guide was launch by Justice John McGrath. A uniform guide has been a long time coming!
New Zealand's six law schools, three main legal publishers, major law reviews, and a number of courts, including the Supreme Court and Court of Appeal, have adopted the guide from January 2010.
Law schools, law firms, publishers and courts have, up to this point, all been using their own idiosyncratic style when referring to legal material. This has created confusion and much time consuming work, as it required anyone writing about the law to constantly translate references to legal material from one format to another. The comprehensive new guide, its authors hope, will make that a thing of the past.
The new guide is the result of the combined efforts of many across the profession. Justice Chambers of the Court of Appeal spearheaded the project, leading a working group that included representatives from the six law schools as well as New Zealand's three leading legal publishers, Thomson Reuters, Lexis Nexis, and CCH. The guide was only made possible through generous funding from the New Zealand Law Foundation.
Justice Chambers said that those responsible for the guide hope it will quickly be adopted by everyone working in the law in New Zealand, including lawyers involved with the courts.
A web based version of the guide will be available in due course on the New Zealand law Foundation's website. A hardcopy of the guide is available from Thomson Reuters:
Recommended retail price of $16.80 + GST ($18.90 inc GST).
Orders can be lodged with the Thomson Reuters Customer Care team
0800 10 60 60 or service@thomsonreuters.co.nz
Product code is 0774.
ISBN is 978-0-86472-690-2.
I have recently returned from an international conference on children and the law. While there, I attended a number of presentations on child maltreatment and child sexual abuse. I also got my fix of the English newspapers while killing time at Heathrow Airport. This post is an attempt to reconcile the two sources of information.
All will be aware of the relentless drive by officialdom to eliminate "risk" to children by requiring those working with children to be checked or vetted. Seemingly ridiculous requirements such as the banning of all spectators from school sports days, or a ban on parents taking pictures of the children at kindergarten graduation regularly appear in the newspapers. While the practice in New Zealand appears to be only to require a Police records check (still commonly known as a Wanganui computer check, revealing convictions and pending charges) for those who volunteer or work with children, other jurisdictions have considerably more onerous requirements. The United Kingdom's Safeguarding Vulnerable Groups Act 2006, is as Catherine Bennett beautifully puts it, is "a law that now requires every adult who engages, even fleetingly, with children to prove they are not a pervert, and to pay for this privilege where possible" (Observer, 20/9/09).
From a legal perspective, there are real concerns about the operation and underlying principles of such schemes. While undoubtedly it is vital that those who have convictions for violent and sexual offending are excluded from working with children, the remit appears to have shifted from barring those with convictions to a much wider net. For instance, the newly established UK Independent Safeguarding Authority has as their motto "Our aim is to help prevent unsuitable people from working with children and vulnerable adults" (my emphasis).
I spent yesterday afternoon reading the Northern Ireland guidance document on vetting procedures worryingly entitled "Sharing to Safeguard: Information sharing about individuals who may pose a risk to children (my emphasis)".This guide helpfully points out that "maintaining a focus on only those who have been charged or convicted, for example, of an offence listed at Schedule 1 of the Children and Young Person Act (1968) can be unhelpful, as it often defines the individual by their offending history, rather than determining what are the ongoing risks the individual may pose to a child/children" (Circular HSS CC 3/96(Revised), p1). Further, at page 5 the guide defines "potentially dangerous person (PDP)" as "someone who has been interviewed by the police for an alleged or suspected sexual or violent offence against a child, or a serious sexual assault on an adult, or violent offence against a vulnerable adult and a case has been referred to the Public Prosecution Service for a prosecution decision (my emphasis)"
Innocent until proven guilty seems to have lost all meaning. It appears as if one could ruin another's career simply by making a false allegation of sexual abuse.
But that is simply legalistic argument.
What is altogether more concerning is that from an empirical perspective, there is no clear evidence that these vetting programmes actually reduce harm to children. The cliché that it is more dangerous in statistical terms to be in the family home rather than in a room with complete strangers has merit. An examination of the case studies or sentencing reports on child maltreatment and sexual abuse demonstrate that the perpetrators are almost certain to be related to, or co-habiting with, the child victim, and thus will not be affected by the vetting net.
Further, experts such as Professor Gary Melton are increasingly coming to the view that rather than treating all adults as potential abusers, the more adults that are involved in a child's life, the chances of the child being maltreated or abused are reduced. This makes sense. Think back to the cases of egregious child abuse in New Zealand. A common thread is isolation: not knowing the neighbours, moving address frequently, not being enrolled in childcare or school and so on. At the conference, Professor Melton shared a wonderful anecdote about a town in the United States which focused on using firemen to engage isolated children and families in a deprived community. Firemen, he reminded us, are universally respected in the community and have lots of downtime. The town received Homeland Security funding to build a new fire station. They asked the architect to build a long glass porch so that the firemen could sit out the front, and furnished it with child size rocking chairs, thus encouraging children to congregate. This, and other similar initiatives, had a measured effect in strengthening community ties and a consequent reduction in child maltreatment and neglect in the district. I wonder what the Independent Safeguarding authority would have thought of un-vetted adults interacting with children!
Above all, there are real fears that viewing all adults as potential abusers may result in what Henry Porter has termed "a toxic culture of suspicion" (Observer 19/07/09), thus depriving children of valuable experiences and learning opportunities.
24 September