Browsing by Author "Knight, Dean"

Now showing 1 - 13 of 13

Open Access
Accountability and the fiscal responsibility provisions of the New Zealand Public Finance Act 1989
(Te Herenga Waka—Victoria University of Wellington, 2015) Lipski, Jordan; Knight, Dean
The recent Greek debt crisis highlighted the need for a robust fiscal policy regime. New Zealand's Public Finance Act 1989 establishes principles the government must take into account when setting its fiscal strategy, and imposes reporting requirements. These provisions are discussed, and analysed from the perspective of accountability theory. In particular, I use an accountability framework developed by Mark Bovens to consider the adequacy of six potential accountability forums. These forums are Parliament, the courts, the Treasury, the media, business groups, and the public via elections. It is concluded that each is relatively weak as a forum providing accountability for fiscal policy. Three possible amendments to New Zealand's fiscal responsibility regime are then considered. The first is to establish a new accountability forum: an independent fiscal commission, to provide fiscal reports and commentary. The second and third are amendments to the Act which may enhance existing accountability arrangements: a principle requiring consideration of intergenerational equity, and a fixed numerical target or limit for debt or spending. It is argued that the first two amendments should be adopted, while the last should not. This is primarily because a fixed target or limit would be bad policy. The paper concludes with further discussion of the related concept of transparency. It is argued that the Act is best viewed as an aide to transparency, rather than accountability, for fiscal policy. While Bovens' accountability framework is a useful exercise, the political and policy-focused nature of this area of the law makes rigid accountability inappropriate.
Open Access
Amplifying community voice in the alcohol licensing system: The importance of the Sale and Supply of Alcohol (Community Participation) Amendment Bill
(Te Herenga Waka—Victoria University of Wellington, 2023) Ramsay, Margot; Knight, Dean
In light of political opposition to the Sale and Supply of Alcohol (Community Participation) Amendment Bill, which seeks to remedy issues resulting from the Sale and Supply of Alcohol Act 2012, this paper argues that this law reform is crucial. The Bill passed its third reading on the 24th of August 2023 (days before this paper was to be submitted). This passing is a positive step to ensure that communities have a greater say as to when, where and how alcohol is sold in their local areas. The paper addresses the potential risks of the reforms but argues that on the whole, these law changes are necessary to address the current imbalance between community concerns and the alcohol industry in the Aotearoa New Zealand licensing system. Furthermore, this paper makes the argument that District Licensing Committees should aim to adopt an active enabling approach during licensing hearings. Research proves that this approach can allow community members without legal representation to make more effective submissions.
Open Access
The Democratic Deficit in Judicial Law-Making: Should Judges Consider Public Opinion?
(Te Herenga Waka—Victoria University of Wellington, 2015) Graham, Henry; Knight, Dean
It is important in any democratic society that law-makers consider the general views of the public and act in accordance with these. It is widely accepted that by doing so, laws will be made which benefit the majority of New Zealanders. However, the judicial branch of government is not commonly seen as a law-making body. As such, they usually fail to defer to public opinion, because their decisions do not have the effect of making new law. Judges merely apply the current law. It is often argued that the judiciary should have more power to create law, as they can protect minority rights and provide a more effective check on the supreme power of Parliament. This paper looks at various situations where judges could have more authority to make law. Emphasis is placed on controversial human rights issues. However, if we accept judges could have more law-making power, this raises a fundamental issue: What role should public opinion play in a reformed system? This paper focuses on the main arguments for and against judicial consideration of public opinion when judges are essentially making new law. It is ultimately concluded that judicial law-makers should consider public opinion as one of many relevant factors only in cases where the outcome has a law-making consequence that will affect a substantial portion of society. This restrictive outcome preserves the traditional role of the judiciary as a protector of human rights.
Open Access
Domestic violence: Just a matter for the politicians?
(Te Herenga Waka—Victoria University of Wellington, 2015) Talbot, Emma; Knight, Dean
Domestic violence is New Zealand’s most significant human rights failing according to the 2014 Universal Periodic Review on Human Rights. Yet, there is no indication in legislation or policy that domestic violence is considered a human rights issue in New Zealand. The Domestic Violence Act 1995 is merely ordinary law. In this paper I consider whether a human rights approach to domestic violence would provide greater redress for vulnerable women and children in New Zealand. Ultimately it is argued that domestic violence should be framed as a human rights approach. This could be by recognising a right to be free from domestic violence within the New Zealand Bill of Rights Act 1990 or by inserting a rights framework provision into the Domestic Violence Act. However, this is no simple solution to domestic violence. This is because it seems that human rights are considered mere political claims in New Zealand and because there is a clear reluctance to require the state to take positive action to prevent human rights abuses. Such culture may undermine the effectiveness of a recognised right to be free from domestic violence. However, I conclude by arguing that such problems do not outweigh the benefits of a human rights approach but merely require careful and sensitive enforcement of the right to be free from domestic violence.
Open Access
In Dissent of Dialogue: Why dialogue is a dangerous metaphor for conceptualising declarations of inconsistency in Aotearoa
(Te Herenga Waka—Victoria University of Wellington, 2023) Nathan, Hannah; Knight, Dean
A declaration of inconsistency allows the higher courts of Aotearoa to formally declare an Act as inconsistent with the New Zealand Bill of Rights Act 1990, a remedy which now requires an executive response and debate on the matter. Given this cross-government involvement and the constitutional centrality of human rights, the precise relationship between the courts and parliament under the Bill of Rights Act has attracted great attention. Internationally, these relationships have been metaphorically compared to a dialogue, framing the judiciary as ‘speaking’ to Parliament to facilitate robust, collaborative engagement with human rights protection. Dialogue infiltrated the development of Aotearoa’s DOI, albeit inconsistently, resulting in a multi-branch remedial framework which is conceptually confused. Despite the legislative approval of dialogue, it was rejected by the Supreme Court, which puts the key actors in DOIs at odds as to the remedy’s purpose and underlying constitutional relationships. DOIs conceived as dialogue masks reality. Aotearoa’s Supreme Court wants no part in the conversation, so the remedy, under a guise of collaboration, only serves to hegemonise legislative rights erosion. Dialogue has been inappropriately imported into our remedy, and as this paper argues, should be reconceptualised to better reflect the reality of practice in Aotearoa, as well as to abate the inherent dangers of the metaphor. By tracing the judicial development and subsequent legislative affirmation of DOIs this paper traces dialogue’s implementation in the conception of the DOI to demonstrate that its current form is unworkable. A case study of Make it 16 reveals these failures unfolding currently and highlights the dangers of dialogue in Aotearoa. Finally, this paper attempts to address these dangers by recasting the metaphor as Discourse, which better reflects Aotearoa’s constitutional landscape and promotes richer parliamentary responses to declarations. The DOI is new to Aotearoa, but the risk of hegemonic parliamentary supremacy is not. The opportunity to reconstitute the remedy must be taken before it fossilises into another mode of parliamentary supremacy over human rights.
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LAWS213: Law: Public Law
(2019) Knight, Dean
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LAWS213: Law: Public Law
(Victoria University of Wellington, 2016) Knight, Dean
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LAWS213: Law: Public Law
(Victoria University of Wellington, 2015) Knight, Dean
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LAWS213: Law: Public Law
(Victoria University of Wellington, 2017) Knight, Dean
Open Access
New Zealand's Attorney-General: The role, the responsibility and the review
(Te Herenga Waka—Victoria University of Wellington, 2015) Sloan, Anna; Knight, Dean
Accountability and transparency are essential to the proper functioning of democracy in New Zealand. The Attorney-General is critical to constitutional arrangements by which he upholds both legal and political functions. This paper serves to describe, analyse and critique each of the Attorney-General’s specific roles and assess their relative frameworks for accountability using Bovens framework. As the Law Officer of government, named representative in Crown proceedings and the link between the Executive and the Judiciary, the Attorney-General permeates all three branches of government. Ultimately, this paper aims to expose the lack of forums available that can question the Attorney-General’s decisions and initiate consequences. It serves to diagnose, but not resolve, the accountability flaws. Some options for greater transparency and review are suggested, which derive from a comparative analysis with the United Kingdom. Finally, this paper looks at options outside formal accountability that assist with keeping the Attorney-General in check. Conventions, a sense of duty and the need for a lawyer to occupy the position contribute to the overall control of the role.
Open Access
Police accountability for the investigation and prosecution of sexual offending: What the Roastbusters investigation revealed
(Te Herenga Waka—Victoria University of Wellington, 2015) Neale, Laura Claire; Knight, Dean
The recent Roast Busters investigation exposed serious flaws in the processes of New Zealand Police, specifically in relation to the investigation and prosecution of sexual offending. Sexual violence complaints in New Zealand are rarely made and when they are, it is of upmost importance that police respond to and investigate the allegations sensitively and comprehensively. This reinforces the need for strong police accountability. Police accountability is limited by the important principle of police independence, which is designed to ensure that the police are not improperly influenced by political motivations. This paper uses Bovens’ framework of accountability to assess the key mechanisms that hold the police to account for their investigative and prosecutorial decisions making. This paper examines internal investigation procedures, ministerial accountability, the courts, the Independent Police Conduct Authority and the media. The paper recommends improvements be made to increase accountability of the police. The key recommendations of the paper are that the courts be more willing to consider judicial review of prosecutorial decisions and the Independent Police Conduct Authority be given the power to investigate of its own motion.
Open Access
The Rights We Won At Runnymede: An Argument for the Repeal of Magna Carta
(Te Herenga Waka—Victoria University of Wellington, 2015) Heesterman, Katja; Knight, Dean
Much has been written about Magna Carta, particularly given its recent 800th birthday. Yet few are prepared to speak against this ancient document for fear that the rule of law, liberty, and even democracy might crumble if Magna Carta no longer stands. This paper argues that Magna Carta should be repealed. First, by studying both Magna Carta’s history and the relevant New Zealand case law, this paper establishes that Magna Carta no longer has any discernible practical use. Though it once represented rights against the monarch, it is now out of date, predominantly misused and is therefore obsolete. Building upon this conclusion the paper argues that little of what Magna Carta supposedly stands for can in fact be justified by legitimate statutory interpretation approaches. Even a generous, purposive approach is not enough to transform Magna Carta from a feudal document signed to end a civil war into a sure guarantee of rights and principles in modern New Zealand. Furthermore, Magna Carta does not live up to the rule of law it supposedly epitomises. It is an unnecessary, overly detailed and inaccessible piece of legislation. Finally, it is argued that New Zealand’s constitutional framework would be better off without Magna Carta. New Zealand’s ability to provide effective rights protection and adhere to the rule of law does not depend on the charter signed at Runnymede. Excessive reverence for the past robs New Zealanders of a constitutional framework that suits our unique nation. On this basis, the paper concludes that Magna Carta should be repealed.
Open Access
Voluntary Euthanasia and the New Zealand Bill of Rights Act: A Critical Analysis of the Seales v Attorney-General Decision
(Te Herenga Waka—Victoria University of Wellington, 2015) Laing, Cameron; Knight, Dean
The recent decision of Seales v Attorney-General clarified the law surrounding voluntary euthanasia in New Zealand. In addition to seeking declaratory judgment from the High Court as to the proper interpretation of certain provisions of the Crimes Act 1961, Lecretia Seales sought two declarations regarding sections 8 and 9 of the New Zealand Bill of Rights Act 1990. Specifically, that insofar as certain provisions of the Crimes Act restrict a person with a terminal and incurable illness from seeking life-ending medical assistance, the Crimes Act is inconsistent with a person’s rights not to be deprived of life and not to be subjected to torture or cruel treatment. This paper critiques Justice Collins’ conclusions that sections 8 and 9 of the Bill of Rights Act were not breached in Ms Seales’ tragic circumstances. Further, it argues that sections 8 and 9 of the Bill of Rights Act should extend to circumstances where people are suffering from terminal and incurable illnesses and recognise a right to seek life-ending medical assistance. Finally, the paper critiques the methodology used by the courts in New Zealand when assessing whether rights-infringing legislation is justified pursuant to section 5 of the Bill of Rights Act, and ultimately concludes that the courts should always query whether rights-infringing legislation serves a purpose sufficiently important to justify infringement of human rights. Further, the paper argues that the courts should exercise extreme caution in ascertaining the purpose of rights-infringing legislation, particularly statutes enacted prior to the Bill of Rights Act.