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This collection houses research from Te Piringa - Faculty of Law at the University of Waikato.
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Publication A study into the ifoga: Samoa's answer to dispute healing(Report, Te Matahauariki Institute, 2002) Tuala-Warren, LeilaniAn investigation into the principles behind the Samoan ifoga, in order to ascertain whether this cultural practice can be implemented into the New Zealand Criminal Justice System.Publication Removing the human from trademark law(Journal Article, Springer Science and Business Media LLC, 2024-04-22) Roy, Alpana; Marsoof, AlthafThis paper envisions a future in which humans begin to entrust interconnected and intelligent devices and machines with the power to make purchasing decisions on their behalf. Artificial Intelligence (AI), together with the Internet of Things (IoT) and blockchain technology, will likely make this possible. What might be the role of trademarks and the law governing their protection in such a future? This paper responds to this question by considering how the use of AI, IoT, and blockchain technology in the retail space will impact the foundational concepts underpinning trademark law. The discussion highlights the difficulty of shifting trademark law away from its human-centric focus, where core doctrines and principles revolve around human interaction and perceptions, towards a system capable of adapting to a future where devices and machines interact with trademarks. Perhaps the time is ripe for legislative innovation in the field of trademarks.Publication Parkins v Parkins(Journal Article, LexisNexis NZ, 2022-06-01) Chevalier-Watts, JulietThis case came about by appeal from the District Court, which dismissed the appellant’s claim. The appellant, Grant Parkins (Grant) declared 25% interest by way of institutional constructive trust over a property in the Marlborough Sounds (the property), which is opposed by his brothers, Steven Parkins (Steven) and Reece Parkins (Reece). Grant states that his interest arises because of his substantial contributions to the property after it was bought by his late father, Morris Parkins (Morris). The property was substantively developed after its purchase. The property had been left in equal shares to the three brothers by Morris in his will. Of note is that the terms of Morris’ will were not challenged in any way by any of the brothers. Whilst this case does not challenge the law of institutional constructive trusts, it provides a useful and instructive summary of the established law and thus adds to the institutional constructive trust narrative. Prior to considering the law, we will first provide an overview of the facts.Publication Submission to Environment Committee on Inquiry on the Natural and Built Environments Bill(Other, University of Waikato, 2021-08-04) Daya-Winterbottom, TrevorMaking submissions on the NBA exposure draft is difficult in the abstract, and the right to make further submissions on the full text of the Bill (and related legislation) when introduced into Parliament is reserved. For the reasons given below, the NBA exposure draft does not (as currently drafted) achieve the objectives set out in the terms of reference for the Parliamentary inquiry. Some suggested amendments to the NBA exposure draft are made in this submission. While the terms of reference for the Parliamentary inquiry do not include the counterfactual of amending the Resource Management Act 1991 (RMA) to achieve the stated objectives, an informed and critical appraisal of this approach was covered by Simon Upton in his RMLA Salmon Lecture 2020.1Publication Indigenous voices(Conference Contribution, University of Waikato, 2022-07-11) Daya-Winterbottom, TrevorIndigenous people and their communities have a vital role in environmental management and development, and states should (in accordance with principle 22 of the Rio Declaration 1992) recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development. This paper will critically analyse the normative influence of tikanga Māori, non-doctrinal methods for discovering tikanga Māori, the special rules for interpretation of tikanga, and the wider application of customary values.Publication COVID and streamlining Resource Management(Conference Contribution, University of Waikato, 2020) Daya-Winterbottom, TrevorSimplifying and streamlining environmental and resource management law have been the buzz words of the past decade. My presentation focuses on the trajectory of these legislative developments in the context of New Zealand and the procedural impact of the COVID-19 pandemic.Publication COVID-19, RMA reform, and abrogating the Rule of Law(Conference Contribution, University of Waikato, 2020) Daya-Winterbottom, TrevorMy presentation will interrogate the forces that threaten the Rule of Law for the Environment by critically examining the phenomena of domestic moves in New Zealand to streamline and simplify environmental adjudication through the principled lens of administrative law and the New Zealand Bill of Rights Act 1990 (NZBORA). My presentation is focused on three issues.Publication Extraterritoriality and the Rule of Law(Conference Contribution, University of Waikato, 2020) Daya-Winterbottom, TrevorThis paper will focus on state responsibility. In particular, it will focus on the obligation of states under Principle 2 of the Rio Declaration 1992 “to ensure that activities within their jurisdiction or control do not cause damage to the environment of … areas beyond the limits of national jurisdiction”. The ideal of legal equality, or the universal application of the law to all persons (natural and juridical) by the ordinary courts is a key ingredient of the Rule of Law. This paper will therefore argue that extraterritorial legislation should be used by states to control the activities of non-state actors (e.g. citizens, permanent residents, and registered aircraft, companies, and ships) as a universal mechanism for preventing damage to the global environment generally - and areas beyond the limits of national jurisdiction (such as the Polar regions) in particular. To address this central question the paper will critically examine and interrogate the legal and theoretical basis for extraterritorial legislation from the perspectives of constitutional law, criminal law, environmental law, and international law.Publication Legal personality and Antarctica(Conference Contribution, 2021) Daya-Winterbottom, TrevorPresented at the7th Frontiers in Environmental Law Colloquium, University of South Australia, Adelaide, 25-26 February 2021.Publication Reactive Strength as a Metric for Informing Return-to-Sport Decisions: A Case-Control Study(Journal Article, Human Kinetics Publishing Inc., 2022-01-01) Teichmann, Jorg; Hébert-Losier, Kim; Tan, Rachel Sue Yin; Lem, Han Wei; Khanum, Shabana; Subramaniam, Ananthi; Yeo, Wee-Kian; Schmidtbleicher, Dietmar; Beaven, Christopher MartynObjective: Current return-to-sport decisions are primarily based on elapsed time since surgery or injury and strength measures. Given data that show rates of successful return to competitive sport at around 55%, there is strong rationale for adopting tools that will better inform return-to-sport decisions. The authors’ objective was to assess reactive strength as a metric for informing return-to-sport decisions. Design: Case-control design. Methods: Fifteen elite athletes from national sports teams (23 [6.0] y) in the final phase of their return-to-sport protocol following a unilateral knee injury and 16 age-matched control athletes (22 [4.6] y) performed a unilateral isometric strength test and 24-cm drop jump test. Pairwise comparisons were used to determine differences between legs within groups and differences in interleg asymmetry between groups. Results: Strength measures did not distinguish the control from the rehabilitation group; however, clear differences in the degree of asymmetry were apparent between the control and rehabilitation groups for contact time (Cohen d = 0.56; −0.14 to 1.27; 8.2%; P = .113), flight time (d = 1.10; 0.44 to 1.76; 16.0%; P = .002), and reactive strength index (d = 1.27; 0.50 to 2.04; 22.4%; P = .002). Conclusion: Reactive strength data provide insight into functional deficits that persist into the final phase of a return-to-sport protocol. The authors’ findings support the use of dynamic assessment tools to inform return-to-sport decisions to limit potential for injury.Publication Legislative Strategies to Tackle Misinformation and Disinformation: Lessons from Global Jurisdictions(Journal Article, Australasian Study of Parliament Group, 2023-11-20) Tan, Rachel Sue YinThe spread of misinformation and disinformation on social media has become a major concern in recent years. This is due in part to the ease with which false information can be shared and amplified online, as well as the fact that social media platforms often lack the resources or expertise to effectively moderate harmful content. Addressing the problem of misinformation and disinformation in parliaments is a complex challenge. This paper will explore the different types of misinformation and disinformation that are being spread in New Zealand; the ways in which misinformation and disinformation are being used to target Parliament; the impact of misinformation and disinformation on public trust in government; the challenges that parliaments face in addressing the problem of misinformation and disinformation; and the potential solutions that are being proposed to address the problem of misinformation and disinformation. It will also identify some legislative strategies that have been proposed as potential solutions to the growing problem of widespread misinformation and disinformation, including those adopted by the European Commission and the United Kingdom.Publication A year in climate change emergency(Journal Article, IUCN Academy of Environmental Law, 2021-04) Daya-Winterbottom, TrevorThis country report provides an overview of recent case law and legislative amendments regarding climate change mitigation, and the declaration of a climate emergency by the New Zealand Parliament.Publication The international law gaze: the domestic roots of Russia’s unlawful invasion(Journal Article, LexisNexis NZ, 2022-06-12) Alvarez-Jimenez, AlbertoFew books help us understand Russia’s invasion of Ukraine and what may come next as Second-Hand Time, authored by the Ukrainian-born Belarusian writer Svetlana Alexievich (London, Fitzcarraldo Editions 2016). Based on hundreds of interviews, it collects the voices of many individuals on the impact of the Soviet Union’s collapse on multiple segments of Russian society, from the powerful to the anonymous, in Moscow and in the periphery of the Union, for the old and the young, from generals to civilians. The book was published in 2013; months before Russia occupied Crimea. Readers will find Second-Hand Time transformative in understanding Russia’s dynamic behind its past and ongoing violations of international law, the prospects and challenges of any peace negotiations, and what may happen in the aftermath.Publication The international law gaze: COVID-19 and the excuse of necessity in international law(Journal Article, LexisNexis NZ, 2021-12-01) Alvarez-Jimenez, AlbertoThe experience of the COVID-19 pandemic can be useful to explore several dimensions of the excuse of necessity in customary international law. This article focuses on one requirement: lack of substantial State contribution. Specifically, the piece assesses four phenomena relevant to the purpose of this requisite: scientific uncertainty, major disagreement among different levels of governments, lack of economic resources, private behavior under the control of States, and positive actions allowing other States to mitigate the impact of the pandemic.Publication The international law gaze: the Supreme Court and the UN International Law Commission’s dialogue on subsequent conduct in the interpretation of contracts and treaties(Journal Article, LexisNexis NZ, 2022-03-15) Alvarez-Jimenez, AlbertoThe New Zealand Supreme Court in Bathurst Resources Limited v L & M Coal Holdings Limited (Bathurst Resources Limited v L&M Coal Holdings Limited [2021] NZSC 85) recently explored the issue of evidence of subsequent conduct in the interpretation of contracts. Generally, the role of subsequent conduct is limited. In 2018, the United Nations International Law Commission (ILC) examined in detail the use of subsequent agreements and practice in the interpretation of international treaties under art 31(3)(a) & (b) and art 32 of the Vienna Convention on the Law of Treaties (VCLT) (70th Session – Subsequent agreements and subsequent practice in relation to the interpretation of treaties [2018] (ILC Subsequent Practice)). Despite the contrast between contracts and treaties, the ILC’s work can be valuable to the Supreme Court. This article explores how.Publication Submission on New Zealand’s written statement to the second session of the UN Cybercrime Treaty negotiations(Other, University of Waikato, 2022-05-19) Dizon, MichaelThe author, a law academic, generally supports New Zealand's written statement to the UN Cybercrime Treaty negotiations. The proposed criminalization provisions are deemed reasonable and well-founded. The focus on striving for consensus and universal acceptance is essential, given the inherently multijurisdictional nature of cybercrime. The recommendation is to concentrate on core cybercrimes like illegal access, illegal interception, data interference, system interference, and misuse of devices to achieve greater consensus. Specific suggestions include incorporating criminal intent requirements in illegal access and interception to avoid impacting legitimate activities. The presentation advocates addressing emerging cyber threats like ransomware attacks and supports criminalizing the online sexual exploitation of children. However, it suggests leaving revenge porn matters to general criminal law as it may not directly relate to information security. The statement appropriately excludes criminal provisions for intellectual property rights violations, leaving them to established international and national intellectual property laws. The author recommends considering cyber-specific elements of money laundering involving cryptocurrencies in the context of cybercrime laws. Finally, it emphasizes the importance of a comprehensive definition for "access information" that includes codes, passwords, encryption keys, and related data for inclusion in the proposed treaty.Publication Technology, laws and values of encryption(University of Waikato, 2021-04-21) Dizon, MichaelA Matter of Security, Privacy and Trust: A study of the principles and values of encryption in New ZealandPublication Cyber- space, law and diplomacy(University of Waikato, 2021-03-25) Dizon, MichaelIndicative questions for discussion: How does international law intersect with cyber diplomacy? How does the legal community see cyber diplomacy and how are they involved in it?What are the latest developments in diplomatic efforts to apply international law to cyber and are new legal frameworks required? What are the latest trends in internet governance, cybercrime and cyber norms?Publication The critical role of technical and social principles and values in encryption regulation(Conference Contribution, University of Waikato, 2021-07-21) Dizon, MichaelEncryption is a complex and enigmatic technology that poses significant challenges to regulators. While encryption is crucial to preserving the security and privacy of information and communications, it can also be used for illegal purposes and means and impede criminal investigations. Governments around the world have been proposing various ways to regulate this technology since the widespread presence and use of computers and the internet in the 1990s. Legislators have unsurprisingly taken a very law-centred approach to regulating encryption. They assume that the enactment of laws can definitively solve the problems brought about by new or disruptive technologies such as encryption. This regulatory mindset is encapsulated in a statement made by former Austrian Prime Minister Turnbull about how law trumps the underlying mathematics of encryption. He said, “The laws of Australia prevail in Australia, I can assure you of that. The laws of mathematics are very commendable, but the only law that applies in Australia is the law of Australia”. The issue with this exceedingly narrow and one-sided view of the relationship between law and technology is that it neglects to take into account important non-legal factors and considerations that are necessary in order to properly deal with encryption or any technology for that matter. Focusing solely on the laws and legal aspects of encryption without sufficient recognition of its technical and social contexts and conditions can result in the adoption of laws that are either ineffectual or unacceptable to the relevant stakeholders or society as a whole. This presentation will discuss the attendant technical and social principles and values of encryption that must be considered when seeking to develop appropriate laws and policies. Through the examination of the often overlooked technical and social dimensions of encryption, this presentation can provide key insights into how to better regulate encryption and technology more generally.Publication A socio-legal analysis of the conceptions of privacy and information security in relation to the laws of encryption(Conference Contribution, The University of Waikato, 2021) Dizon, MichaelDue to the growing collection of users’ personal data by companies, confirmed incidences of mass surveillance by government agencies, and increasing occurrence of large-scale data breaches, people today are rightly concerned about their privacy and the security of their data and the information and communications technologies they use on a daily basis. Faced with these multiplying cyberthreats and risks, ordinary users and citizens have come to rely on both law and technology for protection, particularly encryption as a technical remedy. The problem though is that the law and encryption offer protection in diverse ways. Moreover, people’s understanding of the relevant laws and how they actually safeguard privacy and information security is not sufficiently grounded in the legal and socio-technical contexts. Using New Zealand users, developers and regulators as subjects, this paper will discuss what their varying conceptions or notions of privacy and information security are in relation to encryption and compare these with the applicable laws. This paper will explain why the most pertinent laws are not the oft-cited privacy and data protection laws but are those that concern law enforcement and criminal procedure. This paper argues that the rights of the accused and other rules involving criminal investigations and proceedings are germane to the issue of privacy and security in a digital and connected society.