Institutional Repository at Te Herenga Waka—Victoria Univ. of Wellington
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Access Denied: Barriers to Civil Legal Aid and Justice in New Zealand
No full textThis paper addresses the growing access to justice crisis in New Zealand with a particular focus on civil legal aid. Due to rising legal costs, the civil justice system is becoming largely inaccessible for a substantial portion of the population. Low-to- middle-income New Zealanders are disproportionately affected by the inaccessibility of the system and legal aid’s failures. These individuals are effectively excluded from seeking legal remedies. This exclusion impedes their ability to protect their rights and undermines the rule of law by fostering systemic inequalities. Despite being designed to bridge the ‘justice gap’, the civil legal aid system has been widely criticised for its stringent eligibility criteria, financial disincentives, and the shortage of legal aid lawyers. The shortcomings create substantial barriers to justice. As a result of the inaccessibility, many are turning to self-representation.
Part II examines access to justice in New Zealand, beginning with its historical roots and milestones. Part III explores the civil justice system’s significance, highlighting how society's perception of the system contributes to its inaccessibility. Part IV explores the purpose and structure of the civil legal aid system, highlighting the systemic barriers burdening the system. Part V identifies the three primary issues undermining the system: financial burden, eligibility constraints and the shortage of civil legal aid lawyers. This part then discusses the rise in self-representation as a direct consequence of these failures. The paper concludes by holding that the current system is insufficient to provide adequate access to justice
From Courthouse to Publishing House: The Accessibility of Case Law in New Zealand
No full textThis paper examines the accessibility of case law in New Zealand. First, it identifies the inherent attributes of case law that make accessibility harder to achieve, noting that the precedent-driven approach to lawmaking in the common law system means that case law is multitudinous and harder to interpret than legislation, and difficult to sort into distinct areas of law. Secondly, it explains why accessibility is, nevertheless, a valuable aspiration through the fundamental justifications of the rule of law, open justice and the healthy development of the law.
This paper then discusses some of the major contributors to and detractors from the accessibility of case law through the lens of the lifecycle of a judgment: from the way it is written, to the way it is disseminated, the impact of suppression orders on its dissemination, law reporting, and its discoverability in legal databases. It concludes that the accessibility of case law in New Zealand would be greatly enhanced if the judiciary assumed a greater role as a legal publisher rather than simply an author of judgments, including by investing in technological improvements to judgment dissemination
State to State Aid and Intervention: Permission to Help Yourself?
No full textThis 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
Imagining an Immigration System Grounded in Te Tiriti o Waitangi and Strong Legal Pluralism - a Chinese Manuwhiri Perspective
No full textTauiwi/Migrants of Colour face systemic pressures to assimilate into the settler state, which in turn induces their complicity in the settler-colonial displacement of Tāngata Whenua. However, the flourishing of Tauiwi of Colour communities cannot come at the expense of indigenous peoples and indigenous sovereignty. Written from a Chinese tauiwi perspective, this essay looks beyond the immigration system of the New Zealand state, and towards migration pathways rooted in Te Tiriti o Waitangi (Te Tiriti) and relationships with Tāngata Whenua. Firstly, this essay discusses the foundations for its analysis: legal pluralism, Te Tiriti o Waitangi and tino rangatiratanga, concluding that tino rangatiratanga cannot be reduced to a Māori right to consultation in Crown decision- making. Next, this essay conducts both a legal pluralist and sociolegal analysis of the immigration system, finding that it demonstrates very weak legal pluralism and fails to honour Te Tiriti. Thirdly, this essay explores what a Tiriti-based immigration system could look like, drawing on the work of Tahu Kukutai and Arama Rata on a “treaty-based immigration system of manaakitanga” and weaving in insights from legal pluralism and Māori legal scholarship. This essay finds that it is in the interests of both Māori and Chinese communities for the current immigration system to be transformed into one that honours Te Tiriti and reflects strong legal pluralism
Blame the Bot: an Assesment of Liability for Artificial Intelligence Defamation in New Zealand
No full textArtificial intelligence (AI) defamation claims are appearing across common law jurisdictions, namely in the USA, Australia and Ireland. In the wake of these claims, it is worth assessing how a court would respond if a similar case arose in New Zealand. This paper evaluates the liability of an AI chatbot for defamation under New Zealand's law. Key issues are whether AI chatbots are publishers, whether any defences apply and whether harm is “more than minor.” On analysis, it is likely a plaintiff will succeed in proving defamation so long as they surpass the harm threshold. However, it is likely that in many instances, harm will be less than minor due to a lack of widespread publication. Following an assessment of liability, this paper then considers whether New Zealand should take any alternative action to respond to defamation harms caused by chatbots. An assessment of responses in the UK and the EU finds that Europe has not turned their mind to defamation harms. Alternative preventative methods to harm, such as stronger disclaimers or changes to the code provide options to manage harm but fail to balance to rights of AI firms. As New Zealand favours the innovation and use of AI, this paper concludes the best response to defamation harms is to use the courts as a mechanism for redress, as opposed to any regulatory or legislative amendment. The "more than minor" harm threshold bars trivial claims while allowing redress for the most serious cases
Deep-Sea Mining and the ISA: A Way to Move Forward
No full textThis 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
Civil Disobedience and Government Whistleblowing
No full textThe past 20 years have seen a significant increase in individuals disclosing, without authority, state secrets to the public. These individuals have been labelled “government whistleblowers”. Government whistleblowers do not follow proper whistleblowing processes. Therefore, government whistleblowers are frequently subject to harsh legal penalties. A few government whistleblowers have argued that their disclosures are, in fact, acts of civil disobedience. Based on these claims, this essay examines four questions. Firstly, is there such a thing as a government whistleblower? Secondly, can government whistleblowing be morally justified? Thirdly, is government whistleblowing an act of civil disobedience? Fourthly, if government whistleblowing is an act of civil disobedience, what are the implications for the treatment of government whistleblowers? The essay finds that government whistleblowing is morally justifiable in certain circumstances and has independent value compared to other forms of whistleblowing. Then, it finds that government whistleblowing can be construed as Rawlsian civil disobedience if a revisionist approach is taken to Rawls’ definition in this context. Finally, the essay makes three suggestions for public and legal treatment of government whistleblowers. These are improved media representation, an opportunity for an open jury trial, and the motives of the government whistleblower are considered as mitigating factor during sentencing
A coal phase-out treaty: the normative and legal impetus
No full textInternational 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