Browsing by Author "Leggat, Antonia"

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Open Access
Absolute discretion and the rule of law: Uneasy bedfellows
(Te Herenga Waka—Victoria University of Wellington, 2016) Leggat, Antonia
"Absolute discretion" in decision-making under the Immigration Act 2009 is intended to generate administrative efficiency and balance individual and national interests. While New Zealand courts have reached a consensus that the use of absolute discretion does not create ouster clauses and Immigration New Zealand's internal instructions have also eroded the absolute nature, each of them have differed their definitions of the scope of absolute discretion over time, within the same sections and over the whole Act. This paper proposes that the uncertainty surrounding absolute discretion's precise meaning—both within and between the varying definitions provided by the Legislature, Judiciary and Executive—threatens the vital rule of law concept of legal certainty. Considering the potential encroachment of unrestrained absolute discretion on international obligations, human rights and access to information, clarity is essential. Two steps could be taken to enhance clarity, with minimal impingement on the Act's policy: removal of the descriptive "absolute"; and clarification, in regulations, of the mandatory considerations, recording standards and extra-legislative factors to which must be given effect within each decision made in absolute discretion.
Open Access
What is successful reform? Regulating the news media for sustainability
(Te Herenga Waka—Victoria University of Wellington, 2017) Leggat, Antonia
The last decade has seen a rapid increase in the creation and use of technology. Laws around the globe have struggled to keep up with media that has changed in response to technological convergence. The 2013 Law Commission Report—The News Media Meets 'New Media'—proposed the creation of a single regulatory body, covering all news media who voluntarily join, but its recommendations were rejected by the Government. This paper tracks the industry's self-regulation following the Law Commission report. It asks the question which has divided stakeholders and differentiates New Zealand, Australian and British drives at reform: what is successful reform of the news media? It concludes that "success" means a responsive, consistent, clear, cohesive and independent self-regulatory system. The New Zealand attempt at reform has led to some short-term benefits, but the current regulatory system's lack of sustainability represents long-term failure of reform. This failure was due to an absence of public or political motivation for reform, the Law Commission's over-emphasis on an industry-preferred scheme, and because New Zealand media has not reached the legal and ethical lows of overseas media. The extent of this failed regulation will become apparent as convergence continues, increasing functional gaps and making harms more evident. Looking forward, a bolder model, including fining and greater incentives, presents the best chance of successful reform.