Law Papers

Permanent URI for this collectionhttps://researchcommons.waikato.ac.nz/handle/10289/32

This collection houses research from Te Piringa - Faculty of Law at the University of Waikato.

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Now showing 1 - 20 of 345

Why does NZ’s new energy plan sideline renewables and ignore progress made already?
(The Conversation, 2025) Barton, Barry
With the public concerned about energy prices and security of supply, the government’s recently released energy package naturally attracted a lot of attention. The package was criticised for being unlikely to either bring down prices or increase construction for new generation. But it’s just as important we see how much the plan assumes fossil fuels are the only answer, and how little it connects with important reforms already underway.
Best practice model for developing legislation
(NZTA, 2020-05) Morgan, Gay; Littbarski, Erin
The history of attempted improvements to legislative design and the design systems of a number of OECD members, including New Zealand’s, inform the best practice model. Regulatory and legislative failures are analysed to discover common denominators, with solutions suggested. Likewise, common denominators in successful international and other national transport safety programmes are included. The model integrates systems and behavioural analysis into regulatory design, regulation monitoring and adjustment mechanisms. The design process is situated within the broader legal system and incorporates drafting. A red, yellow and green light system avoids failure factors. A regulatory tool library includes a suite of regulatory interventions with advice on their use, including differentiating between the behavioural drivers of humans and artificial entities. It recommends the EU’s and Australia’s centralisation of expertise and cross fertilisation of regulatory experience together with early inclusion of civil society and other stakeholders for buy-in and optimal use of systems analysis in developing innovative, effective and resilient regulation. Finally, New Zealand’s regulatory management system overregulates regulators, impeding flexible regulation for changing conditions and value per tax dollar.
Developing principles of corporate human rights due diligence for outer space use and exploration: A critical evaluation
(2025) Brennan, Anna Marie; Bhat, Sandeepa
Corporations are predicted to dominate outer space use and exploration for the foreseeable future. With tentative plans in development for humans to live and work permanently on celestial bodies, what responsibilities will corporations have to observe human rights? It is thought that reform of outer space law is needed to embrace non-state actors to not only delineate their precise legal status but also their rights and responsibilities in outer space. Not only would this pronouncement of rights and responsibilities provide transparency and certainty for corporations, but also for ‘humankind’ as business enterprises such as SpaceX, Blue Origin and the Sierra Nevada Corporation endeavour to make the first leap to establish human communities on celestial bodies. This article will consider the extent to which corporations will need to embed human rights due diligence in their activities on celestial bodies and what measures they will need to adopt to assess, mitigate and remediate human rights violations.
Exploring the possibility of an intergenerational right to return to earth
(2024) Brennan, Anna
If human civilisation realises its grand ambitions to establish extraterrestrial human settlements on Mars in the not-so-distant future, how will human rights apply and be enforced? Rather than States, it is thought that space companies such as SpaceX, Blue Origin and the Sierra Nevada Corporation will be the first to establish extraterrestrial settlements. Rapid technological developments over the last decade mean that these ambitions are no longer science fiction. This article considers the scope of the right to freedom of movement in outer space, especially the right to return to Earth. Due to the perilous nature of the journey from Earth to Mars and the harsh environment in which the first settlements will be established, this article considers whether there are any legitimate and, indeed, permissible circumstances where the right to return to Earth will be restricted. The final part of this article will explore the possibility that future descendants of the first wave of settlers to Mars will have an intergenerational right to return to Earth despite having been born on the Red Planet.
Waste to energy projects, the circular economy, and the law
(LexisNexis, 2024-07) Barton, Barry; Wee, Richman
Two proposals for large waste-to-energy plants are under consideration and causing a great deal of debate. They will use the most common waste-to-energy (WTE) technology, disposing of waste by burning it in an incinerator to raise steam in a boiler, to generate electricity or supply heat for industrial processes. They employ elaborate equipment to reduce air pollution. The issues raised by WTE are significant; New Zealand is among the top waste producing nations in the OECD (3.2 tonnes of waste per capita per annum), and the worst for reuse and recycling: NZ Infrastructure Commission, Rautaki Hanganga o Aotearoa 2022-2052 New Zealand Infrastructure Strategy (2022) at 98. At the same time air pollution from combustion of different kinds already has significant adverse health impacts: Gerda Kuschel and others, Health and Air Pollution in New Zealand 2016 (2022); Stats NZ, “Health Impacts of Exposure to Human-Made Air Pollution” (2023). It seems useful to ask whether the current legal and policy framework for WTE projects is satisfactory.
Enforceability of mahr under a sharīʿa law-based contract in New Zealand: a comparison with United Kingdom, Australia, and Canada
(Oxford University Press, 2024) Raman, Dee
Enforcement of sharīʿa-based marriage contracts, which contain provisions for the payment of mahr (dowry/dower) upon death of husband or divorce by either party, has proven to be quite challenging in jurisdictions such as the UK, Australia, and Canada. New Zealand courts are currently dealing with their first such case. In undertaking a comparative analysis, this article highlights that a statutory framework for dealing with such claims is better suited than simply enforcing it as a simple contract, which has the potential to produce unjust and inequitable results.
The Economic Contribution of Religious Charities to New Zealand.
(Springer, 2025) Chevalier-Watts, Juliet; Scrimgeour, Frank
This article considers religious charities from an original perspective, that of their economic contributions to society as an alternative argument to those who wish to see religious charities struck from the charity sector. This is timely because of recent national and international changes to charity law legislation and policies. In essence, the article has demonstrated that religious charities contribute significantly in economic terms to New Zealand society generally, and further, measuring the public benefit of religious charities through an economic lens may assist in determining the differing ways in which religious charities contribute to, and benefit, society.
Are historical perpetual leases on Maori owned land (Native reserves) a basis for currently enforceable fiduciary obligations?
(ALAA, 2024) Dimitrov, Dara
Colonial perpetual leases over what were once native reserves continue to trouble the New Zealand government. The colonial Public Trust Office was tasked with managing and administering Māori property affairs, with a focus on the administration of the native reserves. However, if the perpetual leases continue to be viewed through the contractual lens, relief for the Māori landowners will not be forthcoming. Therefore, examining the rationale for imposing fiduciary duties upon the colonial Public Trust Office is essential. Where traditional legal fiduciary literature explores the onerous proscriptive duties that bind persons occupying a fiduciary position, this article establishes that the extensive statutory role assigned to colonial Public Trust officers in managing the native reserves for their Māori beneficiaries created a fiduciary relationship. Moreover, this article shows that, when the colonial Public Trust Office exercised its powers, this often led to conflicts of interest with their Māori beneficiaries.
Solastalgia as an embodied experience and the principle of proportionality in international humanitarian law
(2023-06-07) Alvarez-Jimenez, Alberto; Barbour, Karen
This article explores how embodied research in the arts and social sciences can inform the interpretation and application of international humanitarian law (IHL). The cornerstone of this article is the use and significance of the concept “solastalgia” (the concept of the pain or distress caused by the loss of, or inability to derive, solace connected to the negatively perceived state of one’s home environment) in embodied research in relation to the principle of proportionality. The concept is being developed for use in the formulation of public policy in the environmental sphere. In this article we conclude that the concept of solastalgia can be useful for the interpretation of the principle of proportionality in general and also for its application during the planning of military operations, for the benefit of civilians.
A study into the ifoga: Samoa's answer to dispute healing
(Te Matahauariki Institute, 2002) Tuala-Warren, Leilani
An 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.
Removing the human from trademark law
(Springer Science and Business Media LLC, 2024-04-22) Roy, Alpana; Marsoof, Althaf
This 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.
Parkins v Parkins
(LexisNexis NZ, 2022-06-01) Chevalier-Watts, Juliet
This 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.
Submission to Environment Committee on Inquiry on the Natural and Built Environments Bill
(University of Waikato, 2021-08-04) Daya-Winterbottom, Trevor
Making 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 2020.1
Indigenous voices
(University of Waikato, 2022-07-11) Daya-Winterbottom, Trevor
Indigenous 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.
COVID and streamlining Resource Management
(University of Waikato, 2020) Daya-Winterbottom, Trevor
Simplifying 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.
COVID-19, RMA reform, and abrogating the Rule of Law
(University of Waikato, 2020) Daya-Winterbottom, Trevor
My 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.
Extraterritoriality and the Rule of Law
(University of Waikato, 2020) Daya-Winterbottom, Trevor
This 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.
Legal personality and Antarctica
(2021) Daya-Winterbottom, Trevor
Presented at the7th Frontiers in Environmental Law Colloquium, University of South Australia, Adelaide, 25-26 February 2021.
Reactive Strength as a Metric for Informing Return-to-Sport Decisions: A Case-Control Study
(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 Martyn
Objective: 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.
Legislative Strategies to Tackle Misinformation and Disinformation: Lessons from Global Jurisdictions
(Australasian Study of Parliament Group, 2023-11-20) Tan, Rachel Sue Yin
The 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.

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