Browsing by Author "Hoffmann, Joschka"

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The Banning of ‘Manhunt’ and its Implications
(Te Herenga Waka—Victoria University of Wellington, 2012) Hoffmann, Joschka
This essay critically examines the Office of Film and Literature Classification’s decision to classify a violent video game called Manhunt as ‘objectionable’ under the Films, Videos and Publications Classification Act 1993. The essay seeks to determine the legality of this ban and evaluate its practical and jurisprudential implications. It will in particular be examined whether the right to freedom of expression guaranteed in s 14 of the New Zealand Bill of Rights Act 1990 practically affects and fetters the Classification Office’s capabilities to render a publication objectionable. The paper argues that the Classification Office’s decision to ban Manhunt was legally sound. Furthermore, the essay shows that the New Zealand Bill of Rights Act has in practice very little effect on the Classification Office’s decision-making capabilities, since the concepts involved in balancing freedom of expression and any competing interests are too vague and malleable to be legally determinative of a particular outcome. Nevertheless, the paper argues that the purpose-designed criteria contained in the Films, Videos and Publications Classification Act and the high statutory threshold for banning a publication make the classification process unlikely to pose a great danger to New Zealand’s liberal and democratic ideals.
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Comparative Approaches to the Problem of a Duty to Warn in the Psychiatric Context
(Te Herenga Waka—Victoria University of Wellington, 2012) Hoffmann, Joschka
This essay outlines and critically analyses various jurisdictions’ stance on the imposition of a duty to warn in the psychiatric context. Specifically, the essay presents and compares case law from California, Canada, the United Kingdom and New Zealand on this issue with a view of identifying the pros and cons of the imposition of a duty to warn. In drawing on these cases the essay will then argue that the imposition of a general duty to warn on psychiatrists should be resisted in New Zealand. Lastly, the essay tentatively suggests that the imposition of a more restricted duty to warn may be a viable possibility in terms of striking a balance between the public interest in maintaining doctor-patient confidentiality and the public interest in keeping the general public safe from foreseeable and preventable violent acts.
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How Did the Fijian Electoral System Contribute to Ethnic Tensions and to the Political Instability in Fiji?
(Te Herenga Waka—Victoria University of Wellington, 2012) Hoffmann, Joschka
Since it gained independence in 1970, Fiji has experienced four coups and has seen three constitutions being drafted only to be repealed again. Fiji’s latest constitution even has the questionable distinction of being repealed twice; once in 2000 after George Speight’s civilian coup and then again in 2009 after the Fijian Court of Appeal declared Frank Bainimarama’s coup of 2006 to be illegal. This is particularly remarkable as the 1997 Constitution contained reforms to Fiji’s electoral system that were purpose-designed to foster inter-ethnic accommodation and national unity. This essay will analyse in how far the continuation of political instabilities and ethnic tensions can be attributed to this electoral system. The paper argues that contrary to its goal of fostering inter-ethnic moderation, the 1997 Constitution has in fact contributed to the political instabilities in Fiji.
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Re-Examining New Zealand's Anti-Monopolisation Laws: The Counterfactual Test as a Symptom of Jurisprudential Uncertainty
(Te Herenga Waka—Victoria University of Wellington, 2012) Hoffmann, Joschka
Ever since the Privy Council handed down its decision in Telecom Corporation of New Zealand Ltd v Clear Communications Ltd [1995] 1 NZLR 385 (PC), the so-called “counterfactual test” has been the liability test for evaluating cases of alleged monopolisation in New Zealand. Over the years, the test has proven to be very controversial. Amongst its critics are some of New Zealand’s leading scholars on the subject of competition law and some of this country’s most high ranking judges. This essay critically evaluates the counterfactual test in terms of its fit within antitrust jurisprudence. The paper argues that the counterfactual test fits uneasily within any particular theory of antitrust law in part because it attempts to reconcile mutually exclusive conceptions of competition law and in part because the precise scope, purpose and appropriate structure of our antitrust laws have to this day remained fundamentally uncertain.