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

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Open Access
A Need for Change? New Zealand’s Financial Dispute Resolution Schemes
(Te Herenga Waka—Victoria University of Wellington, 2023) Shadbolt, Jaime; Stace, Victoria
Financial dispute resolution is an integral part of any financial system; it ensures that consumers have access to fair redress, for example if their financial provider has failed to adequately support them or subjected them to irresponsible lending practices. NZ financial dispute resolution service has continued to evolve since its establishment to accommodate changes in the financial market. This has resulted in the existence today of four different external dispute resolution schemes. The operation of four schemes has caused debate on whether or not the framework is operating to the highest standard of efficiency to enable consumers to access fair and equitable redress when lodging a complaint against a financial provider. Financial mentors across New Zealand are strongly appealing for a legislative restructuring to disengage the current four schemes; urging to replace them with a single dispute resolution body. This paper will analyse the current framework New Zealand has in place and analyse the different perspectives on whether legislative change is required. Part II will consider how our current system came to exist before moving on to consider the main issues that are found within the multi-scheme framework in Part III. Part IV analyses the benefits of moving to a single dispute resolution framework in the context of Australia and their recent move to the single-scheme Australian financial complaints authority. Part V will raise opposing arguments on the effectiveness of the current framework. Having analysed the different arguments on the performance of the current framework Part VI will propose an alternative solution that seeks to encompass both perspectives.
Open Access
A Single Set of Rules for Henry VIII Powers Informed by Their Critiques
(Te Herenga Waka—Victoria University of Wellington, 2023) Stevens, Nicholas; McLay, Geoff
The Henry VIII Power has long been challenged as an objectionable delegation of power to the Executive. Given they are so objectionable, it is surprising that in New Zealand there is no bespoke set of rules to ensure their use is scrutinised and controlled. This paper provides these rules. It sets out a process through which instruments promulgated under a Henry VIII Power should pass. The rules aim to be efficient, transparent and mitigate the risk of misuse. The Paper provides a background on Henry VIII Powers in New Zealand and analyses their use case. To inform the rules, the paper taxonomizes, analyses, and challenges the various critiques of Henry VIII Powers. By challenging the critiques, the paper identified how critics under-value pre-legislative scrutiny and the power of the Court. Also revealed was how Burton and Drewery’s policy-administration taxonomy of legislation provided a better way to analyse the appropriate scope of a Henry VIII Power. Parliament’s perceived monopoly on scrutiny and the democratic nature of Henry VIII Powers were also elucidated through further analysis. The critiques not only inform debate, but also provide a basis for the draft rules. The paper suggests that instruments promulgated through Henry VIII Powers should be limited in scope to administrative matters, be approved by Parliament following reasonable scrutiny, and be prevented from altering particular statutes. The paper concludes the draft rules are a promising tool to better regulate and inspire further study of Henry VIII Powers.
Open Access
The role of the Enka case in the English interpretation of the doctrine of separability
(Te Herenga Waka—Victoria University of Wellington, 2023) Choi, Jieun; Butler, Petra
Transnational interaction and rise of cross-border commercial contracts have stimulated a large demand for a dispute resolution method that can cater to its needs: international arbitration. The success of international arbitration is cornered on its successful enforcement regime built on the 1959 New York Convention. The Convention has been signed and ratified by 172 countries which makes it one of the most widely adopted international legal regimes which translates into the acceptance of arbitral awards.
Open Access
A Missing Narrative in Civil Disobedience: How does Civil Disobedience Definitions Work in Less Liberal Societies?
(Te Herenga Waka—Victoria University of Wellington, 2023) Young, Gemma; Colón-Ríos, Joel
The label of Civil Disobedience holds a significant weight in how people perceive different protest actions. However, the definition of Civil Disobedience has been a point of argument for years. It is unlikely there will ever be one definition that can fit all situations, but many do try. Unfortunately, the current definitions generally fail to consider the types of actions and complexities that are unique to less liberal societies. The result is that many actions in these societies ultimately cannot be labelled as Civil Disobedience. This paper looks at how certain elements often described in Civil Disobedience definitions discourse work in less liberal societies. This will be done with the help of the example of the Anti-Extradition Bill Protests in Hong Kong during 2019 and 2020. These protests surrounded the introduction of the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill which became of great controversy in Hong Kong. The introduction of the Bill led to widespread protests throughout the region. However, there are mixed views on whether these protests can be labelled as Civil Disobedience. Ultimately, under the current definitions of Civil Disobedience, the protests would not be considered to fall under the heading. This paper will show how the key elements of Civil Disobedience do not reflect the complex situations that can arise in less liberal societies.
Open Access
Ancient Civil Disobedience and the Ethos of Fidelity to Truth
(Te Herenga Waka—Victoria University of Wellington, 2023) Shirtcliffe, George Miro; Colón-Ríos, Joel
This paper concerns ancient conscientious disobedience, arguing its popular alignment with orthodox civil disobedience theory is misguided. This is due to a conflict of ethoi, namely, the fidelity to truth of antiquity and the fidelity to law of civil disobedience. It discusses two ancient narratives, Sophocles’ Antigone and chapter 6 of the Book of Daniel, to examine the legitimacy of their status as ancient paradigms of civil disobedience. Although the protagonists of both narratives conform to most requirements of civil disobedience, they lack the requisite protest intent. They intend to follow their religious duties, not change the law. This reveals a more profound disconnect from civil disobedience in the form of conflicting ethoi. Civil disobedience is founded upon the actor’s fidelity to law. An intent to protest is its most important expression, as it shows the actor’s concern lies in improving the justice of the legal system the law protested operates within. Antigone and Daniel’s lack of an intent to protest thus shows an absence of fidelity to law. Instead, both are motivated by fidelity to truth. They are solely concerned with following the dictates of their respective truths, a commitment so strong that it operates independent of whether their acts constitute disobedience to a mortal law. This paper then turns to two more ancient case studies: the story of the Hebrew Midwives and Socrates. While they were undoubtedly not civil disobedients, the fidelity to truth manifest in both reveals it to be the predominant ethos behind ancient conscientious disobedience. Hence, this paper concludes that civil disobedience does not align with most acts of ancient disobedience. But this does not undermine the gravitas of these ancient narratives. Instead, the best approach is to recognise that they remain potent instances and notions of conscientious, but not civil, disobedience.
Open Access
The United States Second Amendment and Civil Disobedience
(Te Herenga Waka—Victoria University of Wellington, 2023) Jacobs, Rebecca; Colón-Ríos, Joel
Civil disobedience is becoming increasingly relevant as movements across the world emerge in support of what protesters see to be a worthy cause. This has resulted in lengthy debates about what exactly civil disobedience is. While these debates are important, this paper instead tries to bring together two highly debated topics by exploring the legal nexus between civil disobedience and the Second Amendment in the United States of America. This is done by addressing the connections of civil disobedience to both the Second Amendment’s historical justifications and to recent movements against it. The paper shows that while there are some issues presented by the non-violence, non-revolution and illegality components of civil disobedience, a legal relationship between the Second Amendment and civil disobedience can be found. That is, the paper shows how the Second Amendment provides not a right to resist, revolution, or rebellion but rather a right to civil disobedience. This is shown by connecting the underlying principles of the Second Amendment and civil disobedience, which include the right of the people to form citizens’ militias and the right to popular resistance. Oppressive government regimes are also something that both civil disobedience and the historical justifications of the Second Amendment aim to prevent, supporting the argument that the Second Amendment provides a right to civil disobedience. The paper also shows that, in recent times, the Second Amendment has attracted significant controversy, maintaining its connection to civil disobedience via protest movements against its very existence. Key
Open Access
Tackling Culture and Disobedience: How the 1981 Springbok Tour Can Shape a Model of Civil Disobedience for Aotearoa New Zealand
(Te Herenga Waka—Victoria University of Wellington, 2023) Burton, Sarah; Colón-Ríos, Joel
How civil disobedience should be defined is a heavily contested subject, with many theorists having offered various definitions. Civil disobedience, however, is often seen as an American concept. While most definitions are presented as being universal, it seems improbable that definitions imbued by American culture will be appropriate to apply to other states. This paper therefore seeks to propose an alternative model of civil disobedience, specifically tailored to Aotearoa New Zealand. Examining Aotearoa's commitment to democracy, the paper argues that the model should be loosely based on radical democratic theory. However, it also argues that the model should incorporate learnings of real-world civil disobedience. The case study of the 1981 Springbok Tour means that an Aotearoa model of civil disobedience should allow for violence in select situations, take a somewhat feminist approach to the publicity and illegality requirements, allow for Māori understandings of resistance and the presence of multiple motivations. While future analyses of civil disobedience in Aotearoa should necessarily continue to develop this definition, the model provides a first taste of Kiwi civil disobedience.
Open Access
Co-governance or Crown governance?
(Te Herenga Waka—Victoria University of Wellington, 2023) Young, Lucia; Fitzmaurice Brown, Luke
This paper examines Māori rights and interests in water resources, emphasising the Crown’s obligation to legally recognise these rights under the Treaty of Waitangi, doctrine of customary title, and international law. The Waitangi Tribunal has recognised that Māori rights and interests, as protected by the Treaty of Waitangi, equate to ownership, and encompass the exercise of tino rangatiratanga over water resources. This places an onus on the Crown to recognise these rights in law. Utilising three conceptual models of indigenous rights - the rights to culture, property, and political authority (tino rangatiratanga) - this paper assesses the extent of the Crown's recognition. In lieu of ownership, the Crown has implemented co-management and co-governance arrangements within Treaty settlements and the forthcoming Water Service Entities Bill. It is argued that, in these reforms, the Crown has focused on the right to culture model, resulting in significant gaps in recognition of Māori rights to property and political authority. This paper argues that the Crown has failed to recognise Māori ownership rights and tino rangatiratanga over water resources.
Open Access
“Devicive”: Medical Device Regulation and the New Zealand Therapeutic Products Act 2023
(Te Herenga Waka—Victoria University of Wellington, 2023) Young, Hugo; Atkin, Bill
This paper analyses aspects of the Therapeutic Products Act 2023 (“Act”). The Act creates a regulatory regime that oversees medical devices, medicines, natural health products and active pharmaceutical ingredients. This paper focuses on the regulation of medical devices, asking whether the drafting of the Act reflects the guiding principle that regulation should be proportionate to benefits and risks, and whether the Act aligns New Zealand with international standards. The paper begins by considering the concept of risk and outlining the provisions that are key to the analysis of the Act. It is concluded that the Act does not sufficiently facilitate risk proportionate regulation of medical devices. The paper continues, comparing the regime created by the Act to regimes in comparable jurisdictions, which influenced and informed the recommendations made. It is found that the Act does not necessarily reflect international best practice. The paper then considers the issues and unintended consequences that the Act may create, which were highlighted in the submissions to the Select Committee. There is a danger that the importers New Zealand relies on for its medical devices skip the market entirely and a concern that the Regulator will quickly become overwhelmed. Finally, recommendations are made to address these issues, align New Zealand with international best practice and ensure that the regulation of medical devices is risk proportionate. Firstly, it is recommended that a risk-based classification system be implemented in the Act and that devices are evaluated differently based on their classification. Secondly, the role of overseas approvals in the evaluation process should be clarified, allowing sponsors of devices to use them to expedite the evaluation process. Included are draft amendment options for each recommendation. The paper finishes by considering the delegation of power under the Act and recommending that more guidance be provided in primary legislation.
Open Access
A Path to Reciprocity: Rebalancing the Tort of Private Nuisance after Fearn v Tate Gallery
(Te Herenga Waka—Victoria University of Wellington, 2023) Winwood, Ryona; McLay, Geoff
The tort of private nuisance finds itself in an erratic state following the Supreme Court ruling in Fearn v Tate Gallery. This judgment has exposed a growing imbalance within private nuisance, jeopardising the principle of reciprocity that underpins the tort. Recent developments have witnessed the expansion of the scope of private nuisance, deeming more scenarios actionable nuisances with seemingly no constraint. When the doctrine becomes more favourable to plaintiffs without a corresponding adjustment to protect the interests of defendants, it raises concerns about the fairness of the tort and its loyalty to the principle of reciprocity. This paper will investigate the various defendant adverse factors that the Fearn majority discuss. These include an overreliance on the "common and ordinary" use standard and a failure to consider the public interest, reasonable self-help measures, and planning permissions. Given the already extensive list of factors that weigh against defendants, the continued expansion of private nuisance without a re-evaluation of the side of the doctrine pertaining to defendants runs the risk of undermining the principle of reciprocity. Thus, in order to restore equilibrium to the tort, factors such as "coming to the nuisance" must be a relevant consideration when assessing liability. This is crucial to maintain an equitable balance between the interests of both claimants and defendants to a private nuisance claim. Only through such a reassessment can the tort of private nuisance remain grounded in the principle of reciprocity.
Open Access
Getting a Fair Deal? The Commerce Commission’s Enforcement of Lender Responsibility Principles
(Te Herenga Waka—Victoria University of Wellington, 2023) Windhager, Grace; Stace, Victoria
The lender responsibility principles were introduced into the Credit Contracts and Consumer Finance Act in 2015 and were intended to protect consumers from the conduct of unscrupulous lenders when entering into credit contracts. Under the CCCFA, the principles are enforced by the Commerce Commission. However, financial mentors have raised three main concerns regarding the Commission’s enforcement process. They are a lack of clarity around the law, the timeliness of investigations and enforcement actions and a lack of transparency in the process. This paper analyses the validity of these concerns and argues that the main issue in this process is the length of the investigations. On average, these investigations take 654 days and, during this time, lenders can continue to breach the principles as there are no interim protections for consumers. Reducing the time required for investigations is an important way to reduce harm within this sector. However, there are practical limitations on the ability of the Commerce Commission to investigate quickly. Therefore, this paper argues that complementary interim protections should be considered so that unscrupulous lenders have less ability to take advantage of consumers whilst under investigation. A potential option suggested is the creation of a warning system that notifies the public of any lenders under investigation and requires lenders to disclose this. By making potential consumers aware of the risks, this could reduce harm in this sector and further the purposes of the lender responsibility principles.
Open Access
Leveraging Australia’s Lessons: Finding the balance between functionality and commercial viability of the Customer and Product Data Bill
(Te Herenga Waka—Victoria University of Wellington, 2023) Ward, Ciaran; Betkier, Marcin
The implementation of a Consumer Data Right (CDR) in Australia pioneered an economy wide data portability framework, setting a precedent for others to follow. New Zealand is poised to adopt a similar model, and in June 2023, unveiled the New Zealand Customer and Product Data Exposure Draft Bill for public scrutiny. This paper offers an overview of the CDR and evaluates whether New Zealand’s legal framework and implementation strategies can circumvent the hurdles that impeded the CDR’s adoption in Australia. Ultimately, the author argues that without sufficient industry and consumer participation, the CDR’s efficacy and long-term viability are at risk - concessions must be made to ensure the CDR attracts both customers and industry players. This paper considers action initiation, the decision to utilise existing Privacy Act IPPs, the exclusion of reciprocal data sharing and the considerations of Māori Data and Māori Data governance.
Open Access
Justified discrimination on the basis of sexual orientation? A critique of the decision in Hoban v Attorney-General
(Te Herenga Waka—Victoria University of Wellington, 2023) Thorton, Olivia; Butler, Petra
Hoban v Attorney-General displays the shortfall of the New Zealand legal system as it fails to protect people from hate speech based on their sexual orientation. However, it also highlights how the fluid application of the Bill of Rights Act by courts can lead to insufficient investigations into rights limitations. Following the publication of objectionable, homophobic comments made by a pastor, Mr Hoban was unable to take legal action in response as these comments were entirely legal under New Zealand law. Mr Hoban argued that he is discriminated against based on his sexual orientation as he cannot access legal protection from hate speech under s 61, due to the provision being limited to hate speech based on race or ethnicity. This paper argues that Cooke J’s s 5 analysis in Hoban was insufficient as he failed to adequately probe into Parliament’s justification for the limitation on the right to be free from discrimination. Cooke J erred in his conclusion that Hoban was a case like the kind discussed in Make it 16 and subsequently a limited justification provided by international obligations was sufficient to justify the breach of the right. Additionally, Cooke J was implicitly deferential to Parliament as he felt consideration of the controversial topic was not within the Court’s institutional competence. Further, Cooke J wrongly stated that the acceptance of Mr Hoban’s argument would place an obligation on Parliament to enact measures to protect all minority groups from hate speech. Consequently, the High Court may have erred in concluding that the limit on freedom from discrimination was justified under s 5 of the Bill of Rights.
Open Access
Physical Privacy in Prison: Why dignity is an inalienable right and how the intrusion tort can protect it
(Te Herenga Waka—Victoria University of Wellington, 2023) Smart, Anna; Moreham, Nicole
People incarcerated in psychiatric segregation units in New Zealand prisons are subject to constant CCTV surveillance. Privacy screening in these psychiatric segregation units is prohibited by the Corrections Regulations 2005; therefore, people incarcerated there are always subject to surveillance – even while using the toilet, shower, and undressing. Research shows that this kind of surveillance is detrimental to mental health and well-being, and in many cases leads to long-lasting harm and poor mental health outcomes. The tort of intrusion upon seclusion is designed to remedy this kind of harm arising from unauthorised intrusions upon physical privacy where there is a reasonable expectation of privacy. While some privacy normally afforded in society is justifiably curtailed in prison, the privacy of one’s ablutions is inherently connected to human dignity and thus should be protected. The Department of Corrections is under a statutory mandate to carry out safe custodial management; however, rehabilitation is a complementary statutory objective which necessitates the preservation of human dignity. Accordingly, competing interests in safety and privacy must be re-balanced. This paper argues that the tort of intrusion upon seclusion should be extended to capture conduct that is prima facie authorised, but ultra vires in light of the Bill of Rights Act 1990. On this basis, incarcerated people subjected to intrusions into their most private moments should be able to sue the Department of Corrections using the tort of intrusion.
Open Access
Circumventing Chapman: Bad law makes hard cases
(Te Herenga Waka—Victoria University of Wellington, 2023) Singh, Tanmeet; McLay, Geoff
The Supreme Court decision in Attorney – General v Chapman precluded the availability of public law damages in respect of breaches of the NZBORA which occur within the judicial process. Two recent High Court decisions in Putua v Attorney – General and Fitzgerald v Attorney – General circumvent the Supreme Court by attributing responsibility to actors other than the judge. Both decisions are outside the bounds of precedent. The first section of this paper analyses the policy behind Chapman to establish that the basis of the Supreme Court decision is unsatisfactory. Chapman is bad law. This provides the backdrop for the High Court decisions. The second part of the paper analyses the High Court judgments. The cases demonstrate that Chapman has a wide framework due to an obiter statement by the majority. This is why attempts to circumvent the precedent by attributing responsibility for rights breaches to other actors ultimately fall outside precedent. Bad law makes hard cases. As Fitzgerald v Attorney – General is being appealed there is an opportunity for the courts to fix the legal position. This essay concludes that if the appeal reaches the Supreme Court, the Court has two options. The Court could overturn Chapman as the policy reasons behind the decision are an inadequate basis for precluding public law damages. Secondly, the Court could uphold the decision but provide more robust principles or policies for doing so.
Open Access
The Right to Stay: the scope of the right to enter ones own country as a legal protection for long-term permanent residents deported under Australia’s 501 policy
(Te Herenga Waka—Victoria University of Wellington, 2023) Shadbolt, Jamie; Lloyd, Marnie
Article 12(4) of the ICCPR states “No one shall be arbitrarily deprived of the right to enter his own country”. Australia's continued practice of using the controversial 501 policy to deport individuals, who for all purposes but citizenship can be considered Australians, is a violation of this right. This paper analyses the relationship between international law and domestic law on the availability of Article 12(4) as a method of protection for individuals who face deportation under Australia’s 501 policy. It discusses the meaning of one's “own country” and how its interpretation has developed in international law from the Travaux Preparatoires of the Article to decisions of the Human Rights Committee. It then assesses how Australia’s domestic legal framework has responded to the standards established in international law in relation to cases concerning 501 deportees. It demonstrates how Australia has been reluctant to exclude individuals from the scope of s 501 on the basis of their absorption into the Australian community, such that it renders Australia their “own country”. Overall, it demonstrates how Australia is failing to recognise the right enshrined in Article 12(4) by continuing to employ the 501 policy to deport individuals with sufficient connections to Australia such that it can be considered their “own country”.
Open Access
Two's Company, Three's a Crowd: A critical analysis of the interpretation of the Property (Relationships) Act 1976 regarding a polyamorous relationship in Mead v Paul
(Te Herenga Waka—Victoria University of Wellington, 2023) Sartie, Cornelia; Clark, Eddie
Designed as a form of social legislation to recognise a spectrum of relationships and promote a just division of assets after relationship dissolution, the Property (Relationship) Act 1976 encounters a challenge highlighted by Paul v Mead. This challenge underscores that both the Act itself and its subsequent judicial interpretations still favour a perspective centred around the colonial nuclear family framework when delineating the essence of partnerships and family. This sentiment is evident in each Court which engaged with this case following the two subsequent appeals after the initial Family Court appearance. This essay will argue that the effect of this ill-fitted Act is that polyamory exists as a legal afterthought, thus restricting access to equal rights and justice to those in multi-partner relationships.
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
Judges not Politicians: Why Declarations of Inconsistency are not a Discretionary Remedy
(Te Herenga Waka—Victoria University of Wellington, 2023) Pope-Kerr, Thomas; Butler, Petra
Declarations of Inconsistency (DoIs) are formal declarations that certain legislation is inconsistent with the New Zealand Bill of Rights Act 1990 (the Bill of Rights). In Make It 16 Inc v Attorney-General [2021] NZCA 681, [2022] 2 NZLR 440 the Court of Appeal said at [60] that it was “well-established” that DoIs are a discretionary remedy. On appeal, the Supreme Court (Make It 16 Inc v Attorney-General [2022] NZSC 134 at [62]) left open the question of the approach to discretion in DoIs. This paper argues the Court of Appeal’s suggestion of a “well-established” discretion was mistaken, and that the Supreme Court should not have let that suggestion hang in the air. DoIs are not a discretionary remedy: where a legislative inconsistency with the Bill of Rights has been found, a declaration must always follow. Discretion does not fit with the purpose of DoIs, which is to provide accountability in the language of the law as part of a human rights dialogue. Discretion is too uncertain and results in courts considering broader political issues, which is inappropriate and contrary to the purpose of DoIs. The remaining reasons for exercising discretion against a DoI are either redundant or mistaken. Because there are no good reasons to refuse a DoI using the discretion, the discretion is in practice illusory. The Courts should clarify that DoIs are not discretionary.
Open Access
Fighting Tooth and Nail: Raising the Standard for Justifying Limits on Rights
(Te Herenga Waka—Victoria University of Wellington, 2023) Overfield, Olivia; Butler, Petra
This paper assesses the complexities arising from the balance of the courts’ duty to protect human rights and safeguard the realm of public disclosure and action, crucial for New Zealand’s representative democracy. Specifically, the role of s 5 inquiries where a right has been limited. It discusses the relationship between the purpose of s 5 and its application, with the judicial history highlighting concerns with the current approach failing to uphold those purposes. Such concerns are furthered by comparison to jurisdictions with comparable limitation clauses, demonstrating a lower level of justification and judicial scrutiny in New Zealand. It is therefore argued the current approach to the s 5 analysis under the Bill of Rights Act is not adequate to allow for the principles of the NZBORA and the purposes of s 5 to be upheld. It is advocated that the imposition of a higher standard, namely beyond reasonable doubt, should be adopted by the courts to acknowledge the tension in the court’s roles whilst requiring the State to produce great evidence in proving a limit is justified. Such an increase would respond to much of the critiques of the Canadian approach, analogous to New Zealand’s current approach, furthering the culture of justification sought to be established by s 5.