Browsing by Author "Fetz, Johannes"

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Consumer Protection under the Credit Contracts and Consumer Finance Amendment Bill 2012: Improvements and Failures
(Te Herenga Waka—Victoria University of Wellington, 2012) Fetz, Johannes
In April 2012 the New Zealand Government released the Credit Contracts and Consumer Finance (CCCF) Amendment Bill Exposure Draft. The Bill aims at introducing the new principle of “responsible lending” into the consumer credit regime. It furthermore provides for a number of amendments and improvements of existing protective measures. The Government, however, refrained from incorporating a price regulation mechanism in the form of interest rate caps into the Bill. In the light of these developments, this article illustrates Government’s suggested amendments and evaluates the idea of a responsible lending obligation. Yet, in order to comprehend these legislative changes, this article at first provides an overview of the existing consumer credit regime as prescribed in the CCCF Act and related pieces of legislation. Alternative consumer protection instruments that have not been incorporated into the CCCF Amendment Bill will also be presented in this paper. In this context it will especially be examined whether or not it was a failure not to incorporate caps on interest rates and/or credit fees. The author argues that the introduction of responsible lending principles, although being subject to a number of risk factors, is the right answer to the ineffectiveness of the existing disclosure requirements. The author furthermore alleges that Government’s arguments for its decision not to incorporate interest rate ceilings are not sufficiently supported by evidence. After assessing the risks and chances of price regulation, the author suggests that interest rate caps form part of an effective consumer credit regime, but that they must be supplemented by further measures in order to prevent low-income consumers from being excluded from any form of credit.
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Public Protection under New Zealand’s Civil Detention Regime: Preventive Detention, Extended Supervision Orders and Indeterminate Prolongation of Prison Sentences? Time for an Evaluation
(Te Herenga Waka—Victoria University of Wellington, 2012) Fetz, Johannes
On 18 September 2012 the New Zealand Government introduced the Public Safety (Public Protection Orders) Bill to Parliament. The Bill establishes a new civil detention regime with new court orders to be called “public protection orders” and “prison detention orders”, directed at high-risk sexual or violent offenders that cannot be kept in prison any longer. In the light of these developments, this article evaluates the human rights compatibility of New Zealand’s public protection instruments. The sentence of preventive detention and the extended supervision order regime will be analysed under consideration of the domestic and international case law. Subsequently, the forthcoming public protection order regime will be presented, assessed under human rights aspects and compared with the existing protection instruments. The author argues that the sentence of preventive detention is inherently incompatible with the offenders’ rights, whereas the human right compatibility of an extended supervision order depends on the specific supervision conditions imposed. This article furthermore demonstrates that the new court orders established by the Public Safety (Public Protection Orders) Bill constitute justified limitations of the offenders’ rights. Finally, the author suggests that safeguards similar to those contained in the forthcoming public protection order regime should be applied in the context of preventive detention and would be capable of preventing unjustified infringements of the offenders’ rights.
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Publicising the Private Lives of Public People: A Comparison Between the German and European Jurisprudence in the “Caroline-Cases”, the British Case Law and the Legal Situation in New Zealand
(Te Herenga Waka—Victoria University of Wellington, 2012) Fetz, Johannes
One of the most controversially discussed topics in the legal literature during the time of my studies in Germany was the question in how far the right to privacy of public persons restricts the press’ freedom of expression. The academic debate originated in the efforts of Princess Caroline von Hannover to prevent the publication of pictures, which showed her in private life situations, partly accompanied by her children. In a period of almost 20 years, Caroline exhausted all possible legal remedies twice, including constitutional complaints to the German Federal Constitutional Court and applications to the European Court of Human Rights. New Zealand’s jurisprudence on the protection of privacy is characterised by a case that has been brought to the Court of Appeal by TV and radio journalist Michael Hosking. By extensively referring to both United States and English case law, the Court of Appeal’s majority established criteria for the existence of a tort for invasion of privacy. As the Court of Appeal’s conclusion differs significantly from the British approach, the following article would not be a comprehensive description of the relevant law without briefly assessing the level of privacy protection under English law. However, the American approach will not be scrutinised in this paper. Similar to the Court of Appeal’s majority in the Hosking case, the Unites States courts acknowledged the existence of a tort for invasion of privacy. The following article examines the jurisprudence of the German Federal Constitutional Court and the European Court of Human Rights in the “Caroline-cases”, before describing the relevant English case law. Subsequently, New Zealand’s approach on the protection of privacy will be scrutinised. The different approaches will be assessed and compared with each other. I will come to the conclusion, that by applying the principles established by the European Court of Human Rights both German and English courts strengthened the level of privacy protection. I will further illustrate that the majority of New Zealand’s Court of Appeal acknowledged the new tort for breach of privacy, rather than following English case law by extending the existing tort for breach of confidence. Finally, this article will show that under New Zealand case law the freedom of the press generally outweighs privacy, if the invasion of privacy took place at a public space; or in other words, that a reasonable expectation of privacy at public places is only acknowledged under exceptional circumstances.