Open Journal Systems at the Victoria University of Wellington Library
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A rejoinder
Get PDFI would like to thank Graham Scott for his comments and acknowledge his role in starting me on this journey as I sought to apply comparative institutional economics to the challenging problem of collaboration. Geoff Bertram is critical of the provider–funder model, as indeed I am if contracting models are applied when performance cannot be measured and when contractual expectations cannot be specified. That is a recipe for bad outcomes and dissatisfaction. I too prefer bureaucratic delivery where deep knowledge and experience are needed to guide performance, for the same reasons that Ronald Coase expounded in ‘The nature of the firm’
A new Natural Environment Act is Needed - Now
Get PDFThis article advocates a new mindset to protect the natural environment following repeal of the Resource Management Act (RMA). The proposed new legislation will be insufficient to protect the natural environment, which has deteriorated during the life of the RMA and now requires urgent action. A new Natural Environment Act is needed that focuses on the natural environment and embraces principles that governmental decision makers are obliged to follow. Limits must be laid down. The principles must be simple and clear and based on the many international law instruments negotiated since the Stockholm Declaration in 1972. New systems of monitoring and enforcement must be devised, with a new environmental watchdog with substantial powers
A Review of Current Regional-Level Environmental Monitoring: Reporting and Enforcement in Aotearoa New Zealand
No full textEnvironmental monitoring helps us take stock of our natural environment. Clear, coordinated and consistent regional-level monitoring and reporting are required to assess the state of our environment and protect important sociocultural and economic assets. This article reviews and summarises the key issues affecting regional-level environmental monitoring, reporting and enforcement in Aotearoa New Zealand. These include weak legislation, lack of independent monitoring, patchy data coverage, misuse and distortion ofdata, insecure funding and inappropriate political interference. Solutions include legislative reform, consolidation of funding and centralisation of some roles, and establishing a centralised research council
The Peterson Case and its Impact on the Rules in Ben Nevis
Get PDFThis article revisits and builds upon Professor Prebble's 2006 book chapter "The Peterson Case and its Impact on the Rules in BNZ Investments Ltd and Cecil Bros", considering the ways in which the Peterson case has influenced the leading 2009 New Zealand tax avoidance case of Ben Nevis. The article argues that Ben Nevis actually follows Peterson in two ways. First, it adopts the analysis of both the majority and the minority judgments in Peterson to the effect that the general anti-avoidance provision only applies when the purpose of the particular provision has been thwarted. Secondly, it uses the minority's less judicial approach in considering whether the purpose of the specific provision has been complied with or not. The minority allowed a greater sweep of material to be relevant and inform that decision than the majority did. The majority looked only to the contractual rights and obligations created
Is Tax Administration "Ectopic"? Assessment, Interpretation, Adjudication and Application: The Roles of the Commissioner of Inland Revenue
Get PDFJohn Prebble described the dislocation of the premises of tax law from their underlying facts as an example of "ectopia". This article suggests that the same phenomenon may apply to tax administration and the tax system more generally. The Commissioner's dual roles of adjudication and administration are not only difficult to elucidate from the unwieldy and outdated structure of the Tax Administration Act. More importantly, they exhibit a (perhaps irreconcilable) tension between two competing goals. On the one hand, the Commissioner has a duty to arrive at a correct interpretation of tax law and its application of the facts. On the other, the Commissioner is required to exercise a political function, prioritising expenditure and ensuring efficient outcomes. Both goals ultimately lead to functions properly carried out by the courts – statutory interpretation and application; and review of administrative processes of decision-making. However, the way the Commissioner exercises these powers is divorced from the way the courts resolve similar questions – a problem which is exemplified when considering the Commissioner's power to amend a taxpayer's assessment of income to ensure its "correctness". There is therefore a risk that the interpretive community surrounding the tax system is increasingly becoming divorced from the rest of the common law and vulnerable to capture by its own self-referring frames of reference
Some Damages Dilemmas in Private Law
Get PDFIt is universally accepted that, subject to various restrictions including remoteness and mitigation of damage, the purpose of damages for breach of civil obligations is to put the parties whose rights have been breached in the same position, so far as money can do so, as if their rights had been observed. This is commonly referred to as the overriding compensatory principle. Nevertheless, although the principle can be quite simply stated, its application in practice commonly provokes much judicial disagreement and academic controversy. In this article, Professor McLauchlan discusses some of the modern leading cases that arguably could or should have been decided differently. As the title of the article suggests, the cases can fairly be described as giving rise to damages dilemmas
Australia's GAAR Turns 40: In its Prime or Mid-Life Crisis?
Get PDFThis article explores aspects of the legislative evolution of Australia's general anti-avoidance rule (GAAR) in pt IVA of the Income Tax Assessment Act 1936 (ITAA36) and considers how it shapes up after 40 years. It considers the legislative interaction of the GAAR with other parts of the income tax statute and explores the GAAR in an international context, including the Multinational Anti-Avoidance Law (MAAL) and Diverted Profits Tax (DPT) inserted into pt IVA. It concludes with consideration of the role and legitimacy of the GAAR in respect of both domestic and international economic and legal transactions
Sustaining Tenancies or Swift Evictions: Rent Arrears in the Tenancy Tribunal
Get PDFThere is a contradiction at the centre of tenancy practice and policy. On the one hand is the goal of sustaining tenancies to prevent homelessness and, on the other, a tribunal system for resolving tenancy disputes which is founded on achieving a "swift eviction". We analyse observations of tribunal hearings and mediations along with a sample of written orders. We ask whether the goal of sustaining tenancies can be achieved in a legislative framework originally intended to achieve swift eviction. We find that mediation creates space for determining a plan to pay off arrears but with little assurance the payments are accurate and realistic. Tribunal hearings for rent arrears allow limited discretion for continuing the tenancy, but even this discretion is restricted in practice. We conclude that there is a need to shift from "swift eviction" to recognising rent arrears as a consequence of poverty – one that requires support and intervention. While legislative change would support this shift, there is scope for significant improvement via process changes that borrow from the problem-solving approach of Te Ao Mārama
The Undisclosed Principal Doctrine: Rationalisations, Justifications and Origins
Get PDFThe undisclosed principal doctrine is anomalous in the common law. The doctrine enables a principal to sue and be sued on a contract made by his or her agent with a third party who did not know the principal existed. In so holding, the doctrine appears to fly in the face of fundamental contract law principles. Commentators have provided a range of explanations for the doctrine's existence despite its apparent anomalous nature. This article critically analyses four explanations for the doctrine: the principal impliedly intends to contract with the third party; the principal provides the consideration to support the contract; the doctrine is a primitive form of assignment; and an "intervention thesis" that justifies the doctrine by coupling the consideration justification with the nature of the principal-agent relationship. All four of these theories are found not to withstand analysis. This article then considers a theory that the doctrine evolved out of the foreign principal doctrine in the mid-19th century due to changing customs and practices in international trade. While this theory is found wanting evidentially, this article agrees that the doctrine's origins almost certainly lie in mercantile custom, incorporated into the common law via the law merchant, most likely in the 17th to 18th centuries, from which point it ossified into a standard agency doctrine of general application. The article concludes by suggesting that the doctrine ought simply to be recognised as anomalous and exceptional to the standard rules of contract formation, rather than unconvincingly rationalised or justified on grounds that only act to further reduce its doctrinal coherence
Culture and the Court Interpreter: An examination of current literature on dealing with potential intercultural miscommunication in the criminal court
Get PDFIn New Zealand, interpreters provide ‘vital services for nearly 10,000 hearings a year in more than 150 languages’ (Ministry of Justice chief operating officer, Carl Crafer according to Nichols, 2021). Despite this, the Ministry of Justice Guidelines for Interpreters (Ministry of Justice, 2021) (‘MOJ Guidelines’) provide very limited guidance on how court interpreters are expected to approach issues related to potential intercultural miscommunication. In this paper, I use the phrase ‘potential intercultural miscommunication’ to mean the possibility of otherwise unrecognised interpersonal misunderstandings occurring, due to differing customs, norms, and behaviours. This paper aims to examine the potential for such undetected intercultural miscommunications to occur in the criminal court, the impact they can have and what obligations, if any, should be placed on court interpreters and judges when such issues arise
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