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

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Open Access
The Place For Injunctions Contra Mundum In New Zealand: Insights From The United Kingdom
(Te Herenga Waka—Victoria University of Wellington, 2024-11-08) Nisbett, Charlotte
There has been a growth of the use of a particular remedy known as injunctions contra mundum, particularly in the United Kingdom. The granting of this kind of remedy goes against the fundamental principles that a defendant must be named and only parties to the proceedings may be bound by an order of the court. As the award of an injunction is an equitable remedy, it is up to the courts to use their discretion. This paper will look at the ways in which human rights have impacted the ability to award such an injunction. The development of the injunction has found traction overseas, in particular New Zealand. The paper will explore the relevant case law and provide a commentary on how the situation in the UK may affect the development in New Zealand
Open Access
The Admissibility of Secondary Evidence – Is the US-American Fruit of the Poisonous Tree Doctrine Being Replaced by the Balancing Exercise?
(Te Herenga Waka—Victoria University of Wellington, 2024-06-07) Reidt, Annalisa
Defendants must only be convicted in criminal proceedings if the court is convinced of their guilt. In functioning states with proper legal systems, this will only be the case when evidence sufficiently confirms the defendants commission or participation in an act or omission which is classified as a crime under the state’s law. Consequently, if there is no such evidence or a court is in doubt, defendants must be acquitted on trial. Usually, the evidence which courts base their criminal judgements on will have been uncovered through prior investigations by the police or prosecutors. During these investigations, finding a piece of evidence through the first investigative measure (“primary evidence”) often will lead to the discovery of further evidence elsewhere through another investigative measure (“secondary evidence”). Both primary and secondary evidence are then presented to the court and, of course, both can be used to support the court’s decision about the defendant’s guilt or innocence.
Open Access
State to State Aid and Intervention: Permission to Help Yourself?
(Te Herenga Waka—Victoria University of Wellington, 2024-09-03) Young, Hugo
This paper examines how some donor states use aid to influence and intervene in the affairs of receiving states. It starts from the assumption that aid is generally good and altruistic. The analysis of state behaviour in this paper leads to a conclusion that this is not always the case because aid can be used by donors as a tool for intervention. The paper begins by examining international agreements and instruments which demonstrate that obligations to aid can be vague, providing little practical guidance on how assistance should be rendered and what may be taken in return. It follows by providing examples of “aid for policy” agreements, under which states give aid but receive significant benefits themselves. These examples illustrate how such agreements can erode a receiving state’s ability to self- determine and how donors use aid to further their own interests. The paper then considers whether this behaviour is lawful under the principle of non-intervention. It ultimately concludes that it is lawful to provide aid to influence policy, unless the consent to that aid is found to be invalid. It may, however, be arguable in particularly serious circumstances that it is unlawful to withdraw aid for the purposes of intervening with another state’s affairs. The paper finishes by outlining some potential solutions which could address the problem it has highlighted but acknowledges that it is a complex issue which will be hard, if not impossible, to solve entirely.
Open Access
Arbitrating Fossil Fuel Phase-Outs: An Analysis of International Arbitral Tribunals’ Treatment of Environmental and Climate Policy in Investor-State Disputes
(Te Herenga Waka—Victoria University of Wellington, 2024-10-28) Thorton, Olivia
Complete decarbonisation of the global economy is required to avoid irreversible climate change. This will no doubt cause fossil fuel assets to be stranded, many of which are protected by international investment agreements that give investors access to Investor-State Dispute-Settlement to claim compensation for alleged harm to their investments. Accordingly, there is tension between international investment law and global climate change goals. This paper analyses recent decisions of investment arbitral tribunals to consider their treatment of environmental and climate policies in Investor-State disputes. In particular, it examines the recent arbitral decisions of Canada v Lone Pine, Eco Oro v Colombia and Rockhopper v Italy all of which involved the enactment of a policy to prohibit fossil fuel operations in environmentally sensitive areas. The central argument of this paper is that while environmental considerations have been mainstreamed in the reasoning of investment arbitral tribunals, tribunals have been reluctant to fully integrate or prioritise environmental or climate policies when assessing a State’s conduct, particularly in relation to fair and equitable treatment clauses and the State’s right to regulate under the police powers doctrine. Ultimately, these decisions suggest that a State cannot reasonably rely on its right to regulate in the public interest based on environmental or climate policy. The paper suggests that climate change, as a unique and complex issue, creates challenges for States in defending claims from foreign investors in ISDS disputes.
Open Access
A coal phase-out treaty: the normative and legal impetus
(Te Herenga Waka—Victoria University of Wellington, 2024-10-24) Singh, Tanmeet
International environmental law is failing to address contemporary challenges. In particular, within the climate change regime there is a stagnation in addressing fossil fuel phase-out. The state of international environmental law reflects the shortcomings within the normative and legal environment which prevent meaningful environmental action. This paper addresses the prospects for a coal phase-out treaty through challenging the normative and legal environment. First, the paper proposes building a strong normative basis for a coal phase-out treaty rather than focusing on consensus-based decision-making. A stringent phase-out target, by 2031 (for OECD countries, Eastern Europe and the former Soviet Union with staggered phase-outs for the rest of the world’s regions), led by the most vulnerable states allows for a change in the national interest focused environment. Second, the no-harm rule is proposed as the legal basis. Shaping the no-harm rule to apply to GHG emissions gives the treaty a basis in something more concrete than subjective political and moral considerations. At the same time, the no-harm rule itself can develop as the treaty changes state practice. Finally, the paper assesses how a coal phase-out may be implemented, and how a coal phase-out treaty can overcome normative barriers and the foster political will required to take the legal measures necessary for phase-out.
Open Access
Deep-Sea Mining and the ISA: A Way to Move Forward
(Te Herenga Waka—Victoria University of Wellington, 2024-11-03) Kim, Jisue Chloe
This paper examines the escalating demand for deep-sea minerals and the complex regulatory landscape surrounding the International Seabed Authority (ISA) in managing deep-sea mining within the “Area” as defined by the United Nations Convention on the Law of the Sea (UNCLOS). Despite efforts to finalise the Mining Code, political gridlocks and scientific uncertainties hinder effective governance, raising concerns about environmental risks and equitable benefit-sharing. The paper explores the legal and ethical implications of framing the ISA’s role through a “planetary trust” model, advocating for a fiduciary approach that integrates intergenerational equity, stewardship, and transparency. By adopting such a framework, the ISA could navigate its dual mandate—resource development and environmental protection—more effectively. The study argues for reformative mechanisms, including enhanced precautionary measures, adaptive legal obligations, and collaborative governance, to overcome the regulatory stalemate and achieve sustainable deep-sea resource management aligned with global environmental objectives.
Open Access
Overcoming the Challenges of Implementing Intergenerational Climate Equity: Tikanga Māori to the Rescue?
(Te Herenga Waka—Victoria University of Wellington, 2024-10-28) Kerbers, Noah
This paper examines the limitations of intergenerational equity as a principle of international law. While the concept is acknowledged in instruments like the Paris Agreement and discussed within human rights law, these frameworks fail to establish robust and enforceable mechanisms for protecting the rights of future generations. The paper argues that this shortfall stems from an overreliance on Western legal concepts, which often struggle to grasp the profound interconnectedness of past, present and future generations. Drawing on tikanga Māori, concepts such as whakapapa, whanaungatanga, mana and kaitiakitanga offer a more holistic and relational perspective that can inform and enrich international legal approaches to climate change. The paper explores how tikanga Māori has been incorporated into Aotearoa New Zealand's domestic environmental law and highlights how its principles could better define the operative bounds of intergenerational equity. It concludes by asserting that theorists invested in the principle should consider the influences of tikanga Māori and indigenous cultures more broadly, enabling intergenerational equity to evolve from an ambiguous concept into an actionable principle of climate justice.
Open Access
Wrongful Life or Wrongful Law? Legal Narrative in Accident Compensation Corporation V AZ and its Implications for the Disability Community
(Te Herenga Waka—Victoria University of Wellington, 2024-10-13)
In Accident Compensation Corporation v AZ, the Court of Appeal held that a woman with spina bifida has ACC cover, finding that the failure to diagnose the condition in utero constitutes a “treatment injury”, when the mother would have elected to terminate the pregnancy. This paper examines what the judgment reveals about the legal narrative in which ACC is interpreted by the courts. The author points out different potential characterisations of ACC, arguing that the decision is underpinned by a “tort replacement” characterisation, which prioritises cover for those who could pursue a claim in tort. The dominance of this theory of the scheme, the author contends, neglects critical lenses which would inform a more balanced interpretation of the treatment injury provisions. The paper highlights the social and legal issues which arise from the current narrative and suggests that ACC’s focus on compensating those who fit common law definitions of injury undermines the deeper themes behind the Woodhouse Report. It concludes with a call for reform, advocating a shift away from the relational framework of tort law towards a more compassionate and inclusive model of compensation, preferably in the form of an expanded ACC which covers all forms of incapacity.
Open Access
Credit Where Credit is Due: Buy Now, Pay Later and Evolving Paradigms of Credit Regulation
(Te Herenga Waka—Victoria University of Wellington, 2024-10-14) Mandhan, Sameer
This paper analyses New Zealand’s legal response to the proliferation of Buy Now, Pay Later (BNPL) products, focusing on the legal theoretical framework underpinning the Credit Contracts and Consumer Finance Act 2003 (the CCCFA). It argues that the introduction of the lender responsibility principles into the CCCFA marked a shift, first, toward treating credit more as a consumer good rather than merely a contract, and second, toward a consumer safety paradigm of credit regulation by requiring credit providers to ensure that credit is fit for purpose and safe for consumers. New Zealand’s approach to regulating BNPL, which exempts providers from the obligations to assess suitability and affordability, challenges this paradigm. This paper critiques New Zealand’s regulatory approach, arguing that it fails to adequately protect consumers from the financial harm resulting from the improper extension of BNPL credit. The deviation from the norms of consumer credit regulation lacks justification, both theoretically and practically. Australia’s recently proposed framework is preferable, as it ensures robust consumer protection while remaining responsive to the risk that overregulation could diminish the consumer benefits arising from innovative products like BNPL. Another significant shortcoming of New Zealand’s regulatory framework is its exclusive focus on regulating BNPL as a conventional form of credit. This inclination fails to recognize the true innovation of BNPL, as well as the unique risks it poses – namely, that its design promotes overspending through “frictionless” digital interfaces and gamified elements that exploit consumers' behavioural biases and emotions. This paper contends that merely classifying BNPL within existing models of credit regulation is insufficient. Instead, it recommends innovative regulatory frameworks, potentially incorporating concepts like the United Kingdom’s Consumer Duty, to better address the novel challenges posed by BNPL. Additionally, a regulatory approach targeting both BNPL providers and merchants would ensure more comprehensive consumer protection and hold to account both the parties responsible for driving over-indebtedness. Such solutions highlight the need for New Zealand’s consumer credit law to evolve.
Open Access
Cleaning Up Greenwashing: an Argument for Pre-Market Verification of Environmental Claims to Empower Aotearoa New Zealand Consumers
(Te Herenga Waka—Victoria University of Wellington, 2024-10-15) Ramsay, Margot
This paper argues that Aotearoa New Zealand should implement a voluntary accreditation regime for environmental claims as well as require mandatory certification for biodegradable and compostable claims. An official ‘Eco Tick’ can signal to consumers which claims are verified, ensuring consumers are provided with adequate and accurate information to shop sustainably. These measures are needed as current consumer law, comprising of general prohibitions of misleading and unsubstantiated representations, will continue to be insufficient at combating greenwashing. Traditionally consumer legislation has been rationalised from an individual welfare paradigm; the need to provide statutory rights to relatively weak consumers, as well as maximise consumer choice. However, to reflect the evolving marketplace, consumer law should aim to empower consumers by enabling them to purchase products which genuinely reflect their preferences of more sustainable consumption. Pre-market verification best ensures this outcome.
Open Access
A Defence of the Bar Against Posthumous Defamation Claims in New Zealand: Protecting the Pursuit of Historical Truth
(Te Herenga Waka—Victoria University of Wellington, 2024-10-15) Donovan-Grammer, Liv
This paper mounts a defence of the current bar against posthumous defamation claims in New Zealand on the ground that this position best protects the work of historians. Cases and legislation in Europe and elsewhere have recognised the harm that defaming a deceased person can have on their living family members or have explicitly allowed posthumous defamation claims. New Zealand law currently bars the continuation or commencement of defamation proceedings after the death of a party. A cause of action in defamation dies unless judgment or verdict has been entered. Although the origins of the common law rule that a personal right of action dies with the person may be doubted, the rule serves unique purposes in the context of defamation, its significance for historians being the focus of this paper. This paper responds to criticisms of the current bar against posthumous defamation claims. It then provides an overview of various developments in defamation and privacy law affecting historians and argues that these indicate that defamation claims surviving death would impede the creation of historical works. Finally, the paper predicts the likely consequences for historians of permitting claims to be continued or commenced. Allowing the commencement of defamation claims would seriously hinder the work of historians, namely the finding of historical truth, particularly in the absense of a historians’ defence. Overall, maintaining the current common law position would best protect historical works.
Open Access
Verticality Challenged: The Judiciary’s Duty Under Section 3(a) of the New Zealand Bill of Rights Act
(Te Herenga Waka—Victoria University of Wellington, 2024-10-12) Oakley, Florence
The orthodox “vertical” view of domestic human rights instruments decries their application to “horizontal” relations between private parties, preferring the maintenance of bright-line boundaries between private and public law. However, recent scholarship rejects this approach. This paper likewise reasons that the inclusion of the acts of the judiciary in s 3(a) of the New Zealand Bill of Rights Act 1990 (BORA) has altered the courts’ role, imposing a duty upon the courts to uphold rights in both vertical and horizontal contexts. Nevertheless, few private law cases have employed BORA. This paper calls for a more widespread awareness of s 3(a)’s potential application to private law. It contends that, in respect of the interpretation of private law statutes, ss 4 and 6 overshadow s 3. Moreover, it argues that s 3(a) entitles the courts to evaluate the rights compliance of the common law and, in rare cases, to create new causes of action based on BORA. Rather than comprising an unwanted interference with private law, BORA’s commonplace application to private law will promote coherence of purpose throughout New Zealand law. This will enhance the rule of law and better realise BORA’s purpose of affirming, protecting and promoting fundamental rights and freedoms.
Open Access
The Harmful Digital Communications Act in 2024: A Review of the Civil Regime and a Call for Modernisation
(Te Herenga Waka—Victoria University of Wellington, 2024-10-21) Henderson, Evie
This paper critically reviews the civil regime of the Harmful Digital Communications Act 2015 (HDCA), assessing its effectiveness in addressing modern digital harm in New Zealand. Whether the Act fulfils its purposes of mitigating harm from digital communications and providing effective relief has not been assessed. Available evidence suggests increasing experiences of harm yet underutilisation of the HDCA’s court mechanism. Justification for technology-specific laws is clear with a 2024 understanding of the unique harms available online. As digital communications have evolved, the Act's reliance on a traditional court pathway has proven inadequate. Individuals are harmed by a wide scope of digital communications that extend beyond the narrow understanding at the time of the HDCA’s enactment. This includes technology-facilitated abuse, deepfakes and mob-style attacks. This paper argues that the HDCA must be modernised to accommodate a wider range of affected individuals and ensure meaningful relief. A comprehensive review is required, including consideration of a specialist tribunal to enhance New Zealand's response to digital harm.
Open Access
Remedying the Defamatory Bot: The Case for Artificial Intelligence Legislation
(Te Herenga Waka—Victoria University of Wellington, 2024-10-14) Green, Claudia
Artificial intelligence (AI) as a means of content generation has become increasingly common and is being integrated unprecedently into our day-to-day lives. However, with its benefits it also gives rise to the potential for AI-related harm. One example of this is the instance of AI tools producing defamatory material. Complaints of AI making false claims about people have started to emerge and will likely make their way to the courts soon. Though a consideration of previous defamation cases dealing with emerging technologies suggests that the courts may struggle to determine the most appropriate outcome. Especially as the non-human nature of AI speech brings its own unique challenges that may be difficult to harmonise with traditional justifications for defamation liability. On this basis, as well as a consideration of the broader context of the current development of AI, this paper argues that legislation is a more appropriate remedy to defamation caused by AI. Legislation would look to article what developers of AI can reasonably expected to control in relation to their tool and assign responsibility in accordance with this. This approach would better balance the interests at play in disputes concerning AI-related harm; the benefits of developing and having access to AI versus ensuring that its integration does not cause more harm than good. This ensures clarity regarding the relationship between AI and society more generally, something which cannot be achieved effectively through defamation law alone.
Open Access
Face Value - Addressing Identity Harm Through the Appropriation Tort in the Age of Deepfakes
(Te Herenga Waka—Victoria University of Wellington, 2024-10-14) Ward, Ciaran
This paper explores the growing issue of non-consensual deepfakes. The paper argues that non-consensual deepfakes inherently harm an individual’s identity by violating the subjects dignity, personhood, and autonomy. By implicating dignity interests, this identity harm caused by non-consensual deepfakes should be addressed through privacy law. New Zealand’s current legal framework is inadequate to handle such cases — I advocate for adopting a dignity-focused Appropriation Tort. This proposed tort would directly address the harm caused by the unauthorised use of an individual’s likeness, providing victims with legal remedies for dignitary harm, even without financial or reputational damage. While not a comprehensive solution, this recommendation represents a crucial first step in equipping New Zealand’s legal system to tackle the unique challenges posed by non-consensual deepfakes.
Open Access
Sharenting as a Reflection on the Limits of Law
(Te Herenga Waka—Victoria University of Wellington, 2024-10-14) Greinacher, Balthasar
In today’s rising digital age, we see rapidly advancing technology and especially social media becoming more and more integrated in everyday life. Although developments like these create new opportunities and benefits for many, they will, at the same time, if not handled with due care, easily turn into threats to our society and particularly its most vulnerable members. A very vivid example of such a development is the newly arisen phenomenon called “sharenting”. Sharenting describes the act of parents disseminating content that includes their children on social media platforms. This essay aims to shed light on the phenomenon of sharenting and the broad range of practical risks it bears for the lives of children that are subjected to it. It then goes on to outline the legal aspects of the problem according to the current legal situation both in the common law system of New Zealand and in the civil law system of Germany while comparing the different systems to each other. The essay explores to what extent these legal frameworks provide a sufficient protection for the interests of children and points out legal deficiencies in the handling of sharenting. In its final part, the essay offers ideas for potential legal reforms in New Zealand and Germany capable of better addressing the issue.
Open Access
Forgotten Children: The State’s Role In Forced Adoption and the Oversight in Whanaketia
(Te Herenga Waka—Victoria University of Wellington, 2024-10-08) Winwood, Ryona
The release of the Royal Commission of Inquiry into Abuse in Care’s report, Whanaketia, represents an incomplete picture by excluding children who were survivors of forced adoption. Though they were excluded on the basis they were not abused in state care, the state’s direct involvement through legislation, policies and institutions during the Baby Scoop Era set the foundation for forced adoption, causing harm similar to that experienced by other survivors in the Inquiry. Their exclusion highlights a significant oversight by the Royal Commission, especially given that the Inquiry’s Terms of Reference allowed for their inclusion. Not only does this directly harm children of forced adoption, but it has wider societal consequences by leaving the Adoption Act 1955 unchallenged and entrenched in the Baby Scoop Era. This paper evaluates the state tools during the Baby Scoop Era that facilitated forced adoption practices, arguing this necessitated the inclusion of these children in the Inquiry. It explores the recent release of Whanaketia and the harms suffered by both children of forced adoption and included survivors, highlighting their similarity. A subsequent investigation of the Inquiry’s Terms of Reference indicates that children of forced adoption could have been included, and their exclusion violates the Inquiry’s scope and purpose. The Adoption Act remains unchallenged as a result, with lasting consequences for both survivors and society.
Open Access
The Value of Climate Litigation Beyond the Courtrom
(Te Herenga Waka—Victoria University of Wellington, 2024-10-08) Shadbolt, James
The impacts of climate change are becoming increasingly evident, yet domestic law and its enforcement by public actors often falls short of what is required to adequate responded to the threats posed by climate change. In response, climate litigation has surged, with advocates turning to the courts to hold public actors accountable for their obligations and responsibilities under the current framework and to push for more ambitious action by way of the government’s response. Traditionally, the value of climate litigation has been seen in the courts’ ability to directly influence climate policy through legal rulings. To this extent, due to significant constitutional and procedural constraints on the scope of their power, courts have often been viewed as an inefficient forum for achieving such direct changes to climate policy. This paper challenges that view by exploring the broader value of climate litigation beyond legal victories in the court room. Through an analysis of both implementation and ambition cases, the paper illustrates that the true value of the courts in regards to climate litigation lies in the indirect, systemic effects they can have on the government’s response on climate change through the enhancement political and democratic accountability. Rather than focusing solely on legal victories, this paper encourages a more expansive perspective, recognizing the courts’ ability to drive lasting change in government responses to climate change on a broader scale.
Open Access
Politicians Not Judges: The Rule Against Predetermination and How it Applies to Councillors
(Te Herenga Waka—Victoria University of Wellington, 2024-10-07) Pope-Kerr, Thomas
Local councillors in Aotearoa New Zealand face a constant push and pull between their role as elected politicians and the limits of operating within a creature of statute. In the middle of that push and pull is the rule against predetermination; a doctrine which, in theory, ensures the other rules of administrative law are followed by preventing councillors from approaching decisions with an actual closed mind. But in practice, the uncertainty in the way the doctrine works in court results in conservative legal advice that unduly restricts the ability of councillors to say what they think and act like the politicians they are. Courts are split on whether to distinguish between bias and predetermination and they apply a contextual approach to predetermination that can be difficult to predict with complete certainty. Council legal advice is frequently conservative as a result, often assuming the lowest possible standard will be applied and restricting councillors’ speech. That creates a democratic problem, as it treats councillors more like members of an elected corporate board than community delegates with a mandate to implement their policies and convince others to support their community’s view. This paper aims to contribute to fixing this problem by providing clarity to the law in two ways. First, by examining the underlying nature of predetermination, which I argue is distinct from bias. Predetermination is about making a decision before complying with other rules of administrative law; bias is about having a personal interest in a decision. Second, by proposing a statutory intervention to clarify and emphasise the high standard required to prove predetermination by councillors and protect their ability to campaign for election freely. Clarity is necessary to bolster local democracy.
Open Access
The Constitutional Locus of the Waitangi Tribunal
(Te Herenga Waka—Victoria University of Wellington, 2024-10-08) Nathan, Hannah
The Waitangi Tribunal has a central place in Aotearoa’s constitution. It inquires and reports into Crown breaches of the principles of te Tiriti o Waitangi; Aotearoa’s foundational constitutional document. Because of its role in upholding government adherence to te Tiriti, and especially given its current shifting focus from historical to fully contemporary inquiries, it has come under threat from Crown ministers who seek to reduce its scope or abolish it entirely. The Tribunal is created by statute and is thus vulnerable to repeal if a government wishes to minimise its impact or remove itself from under the Tribunal’s eye. It is crucial that there is more clarity about the constitutional place of the Waitangi Tribunal in order to better protect it from these Crown threats. Thus, in this paper I consider where, and what kind of actor, the Waitangi Tribunal is in our constitution to begin the kōrero to protect the Tribunal’s constitutional legitimacy. I explain why the Tribunal is not part of the judiciary, the executive or the legislature, and propose that the accountability functions of the Tribunal are key to understanding its constitutional place. I compare it to the emerging integrity branch, but suggest that the Waitangi Tribunal would be inappropriately placed within a solely Pākehā limb of the constitution. Thus, I draw on the core Māori accountability role that the Tribunal plays. Viewing the accountability function it maintains against the standards of te Tiriti and the role it plays in the ongoing Crown and Māori relationship, I suggest a sui generis framework for understanding the Tribunal based on a relational sphere model to recognise the role it plays in both the kāwanatanga and Māori worlds. Viewing the Tribunal in this way sources its constitutional legitimacy from the relationship created in te Tiriti o Waitangi itself, which is a stronger source for its place in the constitution than merely its originating Act. Placing it in this unique space supports it with the mana of te Tiriti and makes Crown meddling with its structure constitutionally inappropriate.