Faculty of Law · Te Kauhanganui Tātai Ture : Student Research Papers

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Open Access
The 1951 Refugee Convention : part of New Zealand law
(Te Herenga Waka—Victoria University of Wellington, 1992) Davis, Wendy.
Open Access
1971 survey of international law.
(Te Herenga Waka—Victoria University of Wellington, 1978) Ross, Dermot Michael Mabyn.
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
Abuse in Foster Care and Potential Liability for Local Authorities: Can liability be imposed through vicarious liability or a non-delegable duty?
(Te Herenga Waka—Victoria University of Wellington, 2016) Overall, Linda
In NA v Nottinghamshire County Council [2015] EWCA Civ 1139 the claimant attempted to sue the Nottinghamshire local authority through vicarious liability or alternatively non-delegable duties for the abuse she suffered at the hands of foster parents in two separate homes that she was placed in. This paper analyses the NA decision which rejected local authority liability under either claim. The article attempts to delineate an understanding of both doctrines, which remain contested within the judicial and academic communities. Through this understanding, and analysis of case law attempting to set down methodology and form within both doctrines, the article will show that recent decisions in both areas have followed instrumentalist reasoning rather than being based on principle. In an age where claims of abuse within foster care are likely to become more prevalent these questions need to be analysed and considered carefully in order to preserve the integrity of both private law doctrines, as well as to provide reasonable and justifiable precedent for future claims and claimants. The author argues that the better theory is that liability should have been imposed on the local authority under the non-delegable duty claim which works both in principle and in policy.
Open Access
ACC For the Cows? Analysing How Best to Deal with Losses Caused by Biosecurity Breaches
(Te Herenga Waka—Victoria University of Wellington, 2018) Moore, Alexandra
Since 2010, New Zealand has suffered a number of biosecurity breach events causing losses to primary industries. The response decisions from the Ministry for Primary Industries have had huge impacts on different sectors ability to recover their losses. This paper considers the current approach to recovering financial losses caused by biosecurity breaches. It evaluates the options available for reform; Negligence claims, comprehensive state compensation schemes, private insurance and improving the existing scheme. The ability for capped state compensation schemes to share costs according to benefits gained, increase certainty and consistency in the application of compensation and the avoidance of long drawn out negligence cases makes it the most viable solution to these compensation issues.
Open Access
Access to essential facilities in New Zealand, Australia, Europe and Germany
(Te Herenga Waka—Victoria University of Wellington, 2002) Peters, Carsten.
Open Access
The Accident Compensation Act 1972 : some administrative law implications.
(Te Herenga Waka—Victoria University of Wellington, 1977) Kite, Peter Douglas.
Open Access
The Accident Compensation Act and private hospitals.
(Te Herenga Waka—Victoria University of Wellington, 1977) French, Michael Paul.
Open Access
The Accident Compensation Act, widows and widowers provisions - a need for revision.
(Te Herenga Waka—Victoria University of Wellington, 1975) Marks, Susan Clare.
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
The accountability arrangements in Tonga's Public Service Commission
(Te Herenga Waka—Victoria University of Wellington, 2017) Mailangi, Ane
The role of the Public Service Commission of Tonga and their decision-making powers requires the basic elements of good governance which include accountability, transparency and efficiency. This paper will be closely examining the accountability element and how it applies to the Public Service Commission of Tonga. The paper will focus on the legal framework of the Commission and its accountability arrangements. This paper will take an analytical and descriptive approach in examining the legal framework of the Commission. The aim is to see how and what types of accountability arrangements are involved. Further, whether those arrangements satisfy Bovens narrow definition of accountability that will be relied upon. It will also determine whether accountability effectively applies within the Commission. The paper does not intend to provide solutions for the shortfalls under the legal framework of the Commission but will in one or two instances indicate obvious solutions. This paper argues that accountability is indeed an important element in the proper functioning of the Public Service Commission as a central and independent body charged with the function of managing human resources directly for twenty government ministries and agencies. The paper further argues that such an important element must have a clear and robust framework within its legal framework to enable the Commission to effectively be held accountable. The paper does however acknowledge that accountability is not as straightforward. A very helpful lens used to carry out the analysis will be the conceptual framework of accountability as set out by Mark Bovens.
Open Access
Accountability of charities in New Zealand: a review of the options
(Te Herenga Waka—Victoria University of Wellington, 2002) Feist, Iain.
Open Access
Accountability, Power And Control In New Zealand's Local Government System
(Te Herenga Waka—Victoria University of Wellington, 2022) Player, Pippa
Criticisms of local government range from its not doing its job (a central government-centric perspective), to local democracy is being undermined by paternalistic and excessive intervention (a local government-centric perspective). Taking a closer look at the effects of accountability arrangements using Mark Bovens’ public accountability framework can help us think differently about the concentrations of power and the checks and balances that are used to control such powers. This paper tests Bovens’ framework for its value in legislative design by exploring public accountability through the roles of Minister, mayor, governing body and chief executive in the Local Government Act 2002 (LGA). It concludes that it is lazy governance if we are only relying on prescription in statute and legal accountability as the main control mechanism; and by doing so we are placing less importance on mapping progress towards community outcomes collaboratively through the activities of the two spheres of government in New Zealand (central and local).
Open Access
Accounting and accountability : concepts and perspectives
(Te Herenga Waka—Victoria University of Wellington, 2008) Mckay, Michael John, 1986-
Open Access
Achieving Accountability: Prosecuting the Denial of Humanitarian Assistance in Non-International Armed Conflict
(Te Herenga Waka—Victoria University of Wellington, 2016) Farquhar, Harriet; Costi, Alberto
Over the past decade, the number of people in need of humanitarian assistance as a result of armed conflict has grown to unprecedented levels. The rapid and effective provision of such assistance constitutes one of the greatest challenges faced by the international community in protecting civilians and other protected persons in times of conflict. While international humanitarian law imposes extensive obligations on the parties to a conflict to grant access to humanitarian actors and facilitate the provision of relief assistance, these rules are routinely violated. This results in significant and prolonged suffering of civilian populations. If the law governing humanitarian assistance is to be better respected, those who act unlawfully must be held accountable. One of the most effective mechanisms for ensuring such accountability is prosecution of international crimes at the International Criminal Court. In its present form, however, there is no provision in the Rome Statute of the International Criminal Court which provides specifically for the prosecution of the unlawful denial of humanitarian assistance in non-international armed conflict. This paper argues that this leaves a significant gap in the accountability framework, and examines possibilities for reform.
Open Access
Achieving charitable status for taxation purposes : a review and critique of CIR v Medical Council of New Zealand
(Te Herenga Waka—Victoria University of Wellington, 1997) Cash, Rebecca J.
Open Access
Achieving Justice How The Sentencing Of Disadvantaged Offenders Illustrates The Need For A New System
(Te Herenga Waka—Victoria University of Wellington, 2020) Gordon, Alex
Open Access
Achieving long-term commitments to complex policy issues: Should we be legislating policy targets?
(Te Herenga Waka—Victoria University of Wellington, 2018) Ricketts, Emma
Many challenges facing society cannot be overcome within a single government's term in office, so effective solutions need to be long-term. Legislation may be a way to achieve this. Policy targets that are enshrined in law will continue to be binding until a future government repeals or amends them. In this paper I seek to determine whether the practice of incorporating policy targets in legislation is the best way to address complex and long-term challenges and, if it is, to what extent they should be incorporated. I refer to the Child Poverty Reduction Bill 2018 to assess the best way to implement durable child poverty reduction targets. It is ultimately argued that some form of law is integral to achieving durable solutions, notwithstanding concerns that arise when policy targets are legislated. The best approach is to enact a requirement to set targets but refrain from legislating the substantive targets themselves. Procedural restrictions should be legislated to protect the targets against amendment or revision by future governments without adequate consultation. Inspiration for these may be taken from the national policy statement framework under the Resource Management Act 1991, with the addition of reporting requirements to ensure compliance is monitored. I recognise that the Child Poverty Reduction Bill complies with this recommended approach, although the current proposal does not include sufficient safeguards to ensure the targets are durable.
Open Access
The action per quod servitium amisit.
(Te Herenga Waka—Victoria University of Wellington, 1974) Cameron, Alan (Alan M.)
Open Access
Adaptation issues in New Zealand's climate change policy
(Te Herenga Waka—Victoria University of Wellington, 2018) Haddleton, Billie
New Zealand is already experiencing the effects of a warming climate and needs to adapt its built, social and ecological systems to reduce vulnerability to climate impacts. Currently, there is no coordinated approach to climate change adaptation in New Zealand. There is no overarching policy or legislation provided by central government to guide adaptation action by other sectors. Amongst other issues, it is unclear how climate change adaptation will be funded. This paper evaluates some of the challenges present in New Zealand’s current adaptation framework. It argues that adaptation requires policy response from central government. Mitigation of carbon emissions can no longer be the sole focus of climate change policy. This paper proposes that climate change adaptation be addressed in legislation by requiring central government to engage with the issue through a series of policy documents. These would include a national climate change risk assessment, a national adaptation plan, and an independent adaptation progress report. These documents will be updated every five years and will thus provide for a coordinated response to adaptation that allows progress to be monitored and evaluated.