Open Journal Systems at the Victoria University of Wellington Library
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Minoritarian Co-governance in Rotorua District Thwarted by Pluralistic Majoritarianism, 2013–23
Full text linkBased on qualitative research, including participant observation, this article examines Rotorua Lakes Council’s 2013–23 pursuit of 50/50 co-governance with Te Arawa iwi. Despite some Treaty-based support, public opinion leaned towards equal suffrage. Te Tatau o Te Arawa nominees were given places on council subcommittees with voting rights. Concerns over authoritarianism, financial mismanagement, secrecy and homelessness then spurred opposition to 50/50 co-governance. A 2021 local bill for full co-governance was denied over potential Bill of Rights conflicts. The Local Government Commission’s determination of proportional representation for Rotorua, using general, Māori and rural wards, highlights New Zealand’s struggle to balance majority rule and minority protections. Pluralistic majoritarianism is suggested as a pathway to more inclusive governance in local and central governance
Can a Search Engine … [Be Held Liable for Defamation]?
Full text linkWhen defamation occurs online, it has become increasingly common for complainants to seek compensation from the internet intermediaries (such as internet service providers, search engine providers and website hosts) which conceivably bear some responsibility for those publications. The liability of search engine providers is particularly contentious. This is because the defamatory words which appear in autocomplete suggestions and snippets are unique publications made by the search engine, but without the direct knowledge or approval of any human actor. The only case in New Zealand to have addressed this issue, A v Google, suggests that search engines might be liable as publishers, but is ultimately inconclusive. This article seeks to clarify the extent to which providers of search engines should be held liable in New Zealand for the defamatory content they disseminate by comparing the liability doctrines which have been applied overseas and assessing the policy implications of each approach. Ultimately, the author concludes that it would be disingenuous to preclude liability on the basis that a search engine is a mere facilitator of the defamatory content it disseminates. Instead, this article argues that liability should arise only once the search engine provider has actual knowledge of the defamatory words and has failed to remove them within a reasonable time, so as to support an inference that the search engine provider has assumed some responsibility for the publication. The assumption of liability doctrine is preferred as it provides an avenue for victims to seek compensation from those at fault, without encroaching on freedom of expression beyond what is demonstrably justified
Does Content Count? Constitutionality and Enforceability of Entrenchment Provisions in Aotearoa New Zealand
Full text linkRecent commentary on the enforceability of entrenchment has signalled a marked shift from Diceyan orthodoxy. This emergent view suggests that Parliament is legally obliged to comply with enhanced procedural requirements, despite their ostensible contravention of parliamentary sovereignty. The precariousness of this understanding was highlighted by the Green Party's proposal in November 2022 to entrench an anti-privatisation provision in the Water Services Entities Bill at a 60 per cent threshold. The provision was passed under urgency and, following critical backlash, swiftly repealed. This article argues that two constitutional conventions have developed in the wake of this commotion. These conventions require that entrenchment clauses uphold democratic fundamentals and set a threshold of a parliamentary supermajority of 75 per cent. Further, this article contends that the enforceability of entrenchment provisions is predicated on their content: they must uphold the functioning of representative democracy. This is due to a change in the rule of recognition driven by more nuanced understandings of parliamentary sovereignty and its place in the constitution
Understanding Corporate Purpose: Lessons from Aotearoa New Zealand's Reform Debate on Directors' Duties
Full text linkThis is the foreword to the special issue based on the conference Symposium on Corporate Purpose, which took place in Wellington in July 2024 and was jointly organised by Te Herenga Waka | Victoria University of Wellington and the University of Richmond School of Law. The discussions from the Symposium are captured within the various pieces within this special issue
Corporate Purpose in the Era of Hashtag Capitalism: An Examination of New Zealand's Soon-to-be-Axed Amendment to the Directors' Duty of Care
Full text linkThis article argues that in the era of 'hashtag capitalism', the Companies (Directors' Duties) Amendment Act 2023 might incentivise more online activism in New Zealand, which has not seen as much hashtag capitalism as in some other countries. The upshot of this is that society will be encouraged to engage with companies along specific guidelines. The article will also reflect on the proposal to repeal the amendment so soon after its introduction and argue that the expressive value of the amendment might remain, especially because the proposal to repeal the amendment did not provide much explanation for the repeal, and because the forces of hashtag capitalism will eventually diffuse into New Zealand.
However, it will be important for New Zealand companies to learn from the experiences of jurisdictions like the United States where hashtag capitalism has been pronounced. Government and regulators must also be wary of the downsides of too much hashtag capitalism. In brief, these downsides include companies pandering to the loudest voices on social media and reacting quickly to these voices instead of careful consideration of issues in the interests of the company as a whole; people calling on companies to address social issues that are perhaps better addressed democratically; and as a corollary, companies rather than democratically elected leaders dictating the terms of important social issues
Addressing Capability Challenges and Restoring Trust in New Zealand’s Public Management
Full text linkNew Zealand’s public sector confronts mounting capability challenges, while public trust in government institutions is declining. In this introduction to the special issue, we propose that, to restore trust deficits in Aotearoa’s public management system, we should focus on structures of capability, accountability and legitimacy, as informed by the articles in this collection. We argue that New Zealand’s traditional public management model, although effective for many service deliveries, demands different approaches to adequately diagnose and tackle wicked problems that call for cross agency collaboration and community engagement
Observations on Effective Accountability in Collaborative Working Arrangements
Full text linkWhile some changes have been made to the public sector’s management, finance and accountability systems to enable collaborative working, public organisations continue to find effective collaboration challenging. Many of the things that are important for developing and sustaining effective collaboration are also elements of effective accountability, including understanding roles and responsibilities, being clear about goals and performance, and developing the right incentives for everyone to act in the best interests of the collaboration. Getting collaborative working right – and being collectively accountable for it – is increasingly important for achieving positive outcomes for all New Zealanders
Navigating the Boundaries of Digital Platform Content Regulation in New Zealand
Full text linkThis article examines the complexities of implementing online content regulation in a small jurisdiction such as New Zealand. Three attempts at hate speech and online content regulation have faltered, in part due to the difficulty of crafting precise legal definitions and different possible conceptions of harm. The ‘safer online services and media platforms’ policy is the most recent. Given New Zealand’s limited market size and the global reach of online platforms, enforcing local content standards is both impractical and potentially ineffective. Most content originates offshore, beyond the scope of domestic legislation, and technological solutions to tailor content to individual user groups are costly and easily circumvented. Existing domestic laws and voluntary industry codes combined with the spillover effects of regulations in larger jurisdictions and international multi-stakeholder efforts likely offer more effective solutions then local legislation. Hence, fostering international cooperation, leveraging global standards and encouraging voluntary compliance should be encouraged
How the District Court has applied the principles of due diligence – and what this means for senior leaders
Full text linkMany senior leaders know all too well the duty of due diligence – be that in a financial or legal context.
When it comes to health and safety, however, the duty of due diligence has until now been largely untested. Since the introduction of the Health and Safety at Work Act 2015 (HSWA) CEOs, senior leaders and Directors have been aware of the new duties placed on them as individuals, but with a lack of case law or precedent that awareness or focus may have drifted
Reconciling the Treaty/te Tiriti Through the Discourse of Civil Government/Kāwanatanga
Full text linkThis essay charts a middle course between the old, basically Pākehā orthodoxy that sovereignty was ceded by Māori in the Treaty of Waitangi, and the newer orthodoxy that Māori never ceded sovereignty to the British Crown. The essay argues instead that government was the main paradigm of the historic treaty: it was government or kāwanatanga that was ceded or agreed to by Māori
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