Browsing by Author "Hercher, Philipp"

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Better Safe Than Sorry?: New Zealand's and Australia's Approaches to Counter-Terrorism
(Te Herenga Waka—Victoria University of Wellington, 2011) Hercher, Philipp
This research paper explores New Zealand’s and Australia’s legal approaches to counter-terrorism. Problems with the definition of terrorism are addressed. At the same time, the paper explores the profound dangers for the protection of very important human and civil rights in both legal systems, in particular the dangers for the freedom from self-incrimination and the freedom from arbitrary detention.
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Education Act 1989: Sections 319D to 319FE
(Te Herenga Waka—Victoria University of Wellington, 2011) Hercher, Philipp
This paper explores the origin of ss 319D to 319FE in today’s version of the Education Act 1989. It discusses several factors that have influenced the legislative process. The paper shows that the legislative process in New Zealand is very dynamic and that many different factors influenced the formation process of these provisions.
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How to Reconcile the Majority's Will with Strong Judicial Review
(Te Herenga Waka—Victoria University of Wellington, 2011) Hercher, Philipp
This paper discusses various ways to reconcile the people’s will with countermajoritarian court rulings in systems of strong judicial review. Its main focus lies on the constitutional system of the United States of America. The collision of procedural based democracy and powerful courts is covered in the first part of this paper. In the second part, several practical solutions for this conflict are presented. Some of them could be realistically used to reconcile the majority’s will with strong courts’ rulings. The third part of this paper focuses on the evaluation of these instruments’ usability in the Federal Republic of Germany. Existing tensions between the people’s will, particularities of the German Basic Law, and the laws of the European Union are covered.
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Why It Should Be Considered to Reform the Law to Provide Better Protection for Protesters against the Application of the Trespass Act 1980 in Some Places
(Te Herenga Waka—Victoria University of Wellington, 2010) Hercher, Philipp
Freedom of expression is a major part of the “market place of ideas”1 and the toleration of protests is a “hallmark of free and democratic societies”.2 Enabling individuals to express their opinion in public is essential for expressing criticism, taking part in political decision-making outside of the actual voting process,3 in short: essential for democracy. New Zealand doubtlessly recognises the importance of the right to freedom of expression and is devoted to protect it. Nevertheless, there are laws4 and judicial decisions that impose restrictions on protesters’ rights. In some areas there have not any relevant cases involving trespass been decided, yet. Questions arise especially in the context of trespass in privately owned quasi-public places such as supermarkets, shopping malls or airport terminals. It is not clear how the courts in New Zealand would decide about protests in these places. Therefore, it should be considered to reform the law, in the sense of clarifying the protesters’ and occupier’s rights. If, and why, this is necessary for all venues, or just certain places, will be discussed. Further, this paper will give an overview of the relevant provisions of the New Zealand Bill of Rights Act 1990 (BORA) and the most interesting legal cases in the context of protests. Additionally, it will be briefly discussed how the nature of a protest venue affects the demonstrable justifiability of trespass warnings, and how the rights to, and problems arising from, protests in public are actually governed.