Institutional Repository at Te Herenga Waka—Victoria Univ. of Wellington
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Constitutional Disobedience? Civil Disobedience, Accountability, and Te Tiriti o Waitangi
No full textThis paper recognises te Tiriti o Waitangi as the founding document of Aotearoa New Zealand, and therefore the centre of the constitutional framework. Traversing existing civil disobedience theory, the author proposes a philosophy of ‘constitutional disobedience’ as a means of upholding te Tiriti. The author argues that te Tiriti is the foundation of governmental legitimacy and social cooperation by drawing parallels with civil disobedience theory and adapting it to the Aotearoa context. The paper presents ‘constitutional disobedience’ as a principled collective act with a communicative function aimed at governmental accountability to te Tiriti. The author contends that such disobedience strengthens the legitimacy of the government, and therefore constitutional democracy. While legal justifications for constitutional disobedience remain speculative, the author asserts that moral justification exists when a civil disobedient addresses Tiriti breaches as a last resort. The paper calls for a shift in public perception, urging respect for those who challenge illegitimate government power – power that is exercised in breach of te Tiriti. Ultimately, the author articulates constitutional disobedience as a crucial aspect of the ongoing struggle for constitutional transformation, emphasising the counterintuitive role that constitutional disobedience plays in guarding the legitimacy of government in Aotearoa
An obligation of disobedience to the law under a corrupt regime. What might it look like and when does it arise? Nazi Germany, a Case Study.
No full textThe law is generally thought of as an instrument of social manageability, which is used for the common good. Historically, this has not been the only purpose of the law. Law has been wielded as an instrument of oppression, to strip people of their rights, and permit the massacre of millions of people. Using Nazi Germany as a case study, this paper explores the limitations of legal authority, and ascertains how we should respond when the law permits extreme injustice. It begins by examining different approaches to determining whether a law is valid. This is followed by a consideration of whether we are under any general obligation to obey the law. Lastly, whether an obligation for disobedience exists, and what form such disobedience may take, is then explored.
This paper concludes that in certain circumstances we should disobey the law, or at a minimum; think twice before obeying. The Nuremberg Trials and the grudge informer case are used to highlight that blind obedience or passive acquiescence to unjust laws will not suffice. Additionally, the disobedient under an unjust regime will not be able to satisfy the requirements for civil disobedience under traditional liberal theories of civil disobedience, such as those of Carl Cohen and John Rawls. Consequently, we must accept a more radical definitions of civil disobedience, such as that put forward by Robin Celikates, to accommodate civil disobedience under an unjust regime. Alternatively, this paper suggests that revolutionary disobedience remains open to the disobedient who wishes to challenge an unjust ruler
Layered Disadvantages: Women and Mothers within Aotearoa New Zealand’s Bail System
No full textThis paper examines how women and mothers are impacted by Aotearoa New Zealand’s bail system. It begins by identifying a shift towards a harsher bail culture, both in New Zealand and across Western jurisdiction. This shift is primarily characterised by an increased focus on public safety and has underscored a more risk adverse approach to bail decision-making. Stricter bail policies have led to a significant increase in the number of women held on custodial remand. This paper argues the public safety rationale of harsher bail policies does not map well onto women. It examines how women and mothers face layered disadvantages, both in their access to bail and while on custodial remand. It identifies how socially marginalised women are disproportionately affected by harsher bail policies and are at risk of being remanded in custody without a strong justification. It examines a further layer of disadvantage faced by mothers with dependent children. It suggests that, during the pre-trial process, the impacts of incarceration on primary carers and their children often fail to be considered and supported. It argues that mothers on custodial remand face additional and disproportionate harm. This paper joins a growing body of research critiquing the rate at which women are remanded in custody and concludes by suggesting initial steps to address the problem
Isolated, Confined, and Unsupported: The Conditions of Neurodivergent Prisoners in Custodial Remand
No full textThis paper details the impact of current custodial remand legislation and conditions on neurodivergent people in New Zealand's correctional system. The increase in both the population of and the length of stay in custodial remand demands urgent attention. Neurodivergent individuals face particular challenges in a prison environment, and difficulties are stricter and more isolating in remand. Neurodivergent prisoners experience heightened distress due to the lack of routine and extended isolation inherent in remand conditions. Mental health policy, services, and screening all fail to capture a focus on neurodiversity that is sorely needed. A lack of custodial staff and neurodiversity training for said staff contributes to this problem. All issues highlighted lead to an environment particularly detrimental to neurodivergent prisoners, which can severely impact their well-being while in remand. This paper addresses the current system’s shortcomings and explores the reforms that can be undertaken to improve the conditions and outcomes in this population. Recommendations are discussed from immediate, actionable improvements to long term, extensive overhauls to our current penal legislation and policy. Limits to these recommendations are also analysed, namely the current shortcomings in staff and resources. These changes are necessary to address the broader issues with neurodiversity within New Zealand's correctional facilities
The Fairness of Justice. Christian v R and Affirmative Consent
No full textThe outcome of the leading New Zealand appellate case Christian v R frustrated the purpose of justice as being a fair formulation of law for women. The pervasive legacy of the patriarchy has caused New Zealand’s sexual violence laws to be predicated on male perceptions of threats, harms, and vulnerabilities. The Christian decision reflects this understanding. The Supreme Court’s interpretation of s 128A(1) of the Crimes Act 1961 overruled the Court of Appeal, created troubling precedents for groomed consent to sexual activity, allowed “relationship expectations” to inform consent or reasonable belief in consent, and increased the possibility of wrongly construing consent. However, the Court of Appeals judgment of Christian was cognisant of a new model of communicative consent. Affirmative consent is a collection of substantive and procedural rules preventing sexual activity from being presumptively consensual. This model integrates distinctively female values, fears, and vulnerabilities into its doctrine therefore offering a safer model of consent for women. This essay argues that affirmative consent should be incorporated into New Zealand legislation. This would be capitalising on the current cultural trend towards positively expressed consent and creating more convictions where non-consensual sex occurs. Affirmative Consent results in a fairer formulation of consent law for women
Māori Wards and Matike Mai: A Tiriti o Waitangi Analysis
No full textThere is ongoing controversy around Māori wards and constituencies in local government. This paper sets out the history and context of the Māori wards debate, and the impact of this controversy on representation of Māori. In light of this, this paper considers the constitutional significance of Māori wards in relation to te Tiriti o Waitangi. Constitutional positioning of Māori wards is important given the dynamicity of legislation, which impacts the ability of Māori wards to support representation. The paper uses the Matike Mai findings of the rangatiratanga, relational and kāwanatanga spheres as a framework for analysis. It argues that Māori wards are not a mechanism that support the tino rangatiratanga sphere, contrary to recent Waitangi Tribunal findings. Similarly, it finds that Māori wards do not support the relational sphere. However, this paper finds that Māori wards are best situated within the kāwanatanga sphere, arguing that increased representation through Māori wards supports Crown obligations of ōritetanga and substantive equality. It considers some limitations to the effectiveness of Māori representation through Māori wards, but overall maintains that Māori wards are an appropriate starting point to support kāwanatanga. Lastly the paper uses these findings alongside the Matike Mai framework to analyse potential alternatives to Māori wards that better uphold te Tiriti o Waitangi
The Political Obligation to Obey: Are Sovereign Citizens Entitled to Declare Non-Consent to State Laws?
No full textThe contemporary sovereign citizen movement in Aotearoa New Zealand comprises a complex system of pseudolegal beliefs and conspiracy theories derived from a wide range of sources, making its internal logic convoluted and difficult to follow. A core tenet of sovereign citizen argument is the application of a radical version of social contract theory, whereby adherents of the movement imagine they possess a natural and inherent right to self-governance that empowers them to disavow the authority of the government and declare non-consent to state laws. This paper serves as an attempt to make sense of the sovereign citizen movement by searching for consistency between sovereign citizen beliefs and existing theories of political obligation—including foundational and contemporary social contract theories, consent theory and philosophical anarchism, as well as the arguments made by indigenous critics of social contract theory—before undertaking to develop a novel, sovereign citizen theory of political obligation.
This paper concludes that sovereign citizen ideology is broadly inconsistent with established theories of political obligation, though its philosophical roots are identifiably contractarian. While the conventional application of these theories confirms that sovereign citizens are neither entitled nor justified in their derogation from state law, the development of a sovereign citizen theory of political obligation elucidates the societal defects that lead people to develop sovereign citizen beliefs
Forgotten Children: The State’s Role In Forced Adoption and the Oversight in Whanaketia
No full textThe 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
Analysing the Effectiveness of the International Court of Justice at Dealing with Disputes Under the Genocide Convention
No full textThis paper discusses the recent increase in the number of cases brought by states under the Genocide Convention to the International Court of Justice, and analyses if the International Court of Justice is effective at arbitrating these disputes in light of the reasons that states bring disputes to the Court in the first place. I argue that states are utilising the language of international law in new ways to advance their agendas and draw attention to serious human rights issues around the world. Understanding state motivations shows that the International Court of Justice is an effective arbiter of genocide decisions because the Court is effective at assisting states in realising their goals
