“Loyal to what?”: the role of parliamentary opposition

“… political opposition is empowered and dignified in a democratic system, and… pays tribute to and teaches lessons about… ‘the provisional nature of political authority’ in circumstances of plurality.”

Advertisements

Andrew Little’s recent High Court victory, finding his commentary on aspects of a Niue holiday resort’s financing to be qualifiedly privileged from defamation liability, casts light into the shadows of Her Majesty’s Loyal Opposition’s constitutional role. Continue reading ““Loyal to what?”: the role of parliamentary opposition”

Avoiding unjust enrichment’s perils

“… an Aristotelian conception of justice”

New Zealand courts have long looked askance at claims of unjust enrichment, doubting such claims constituted causes of action in their own right (Real Cool Holdings Ltd v Northpower Ltd [2012] NZHC 1604 at [38]), and conscious of “the perils that might be thought inherent” in their reliance on perceptions of what was ‘just’ between the parties (Marlborough District Council v Altimarloch Joint Venture Ltd [2012] NZSC 11, [2012] 2 NZLR 726 at [140]). Continue reading “Avoiding unjust enrichment’s perils”

“It’s not all about you”: limiting the Privacy Act’s intrusions

“The words ‘about an individual’ direct attention to the need for the individual to be a subject matter of the information.”

In Harder v Proceedings Commissioner [2000] 3 NZLR 80 (CA) – while noting what constituted ‘personal information’, defined as “information about an identifiable individual” for the purposes of the Privacy Act 1993, was not at issue in the case and remained “open for determination when it directly arises” – the Court of Appeal warned “An unqualified approach to what constitutes ‘information about an identifiable individual’ will lead readily to breaches of one or more of the information privacy principles”. The “unqualified approach” adds significantly to the Act’s regulatory costs – both in compliance, and in remedies for interferences with privacy. No appellate judgment since has interpreted the meaning of the Act’s ‘personal information’. Continue reading ““It’s not all about you”: limiting the Privacy Act’s intrusions”

Brexit: here come the lawyers

As a matter of “powerful constitutional principle”, no exercise of prerogative power alone is capable of altering domestic law

In  R (Miller) v Secretary Of State For Exiting The European Union [2016] EWHC 2768 (Admin), three of the English High Court’s most senior judges (personally and outrageously maligned as partial by the media, to the Lord Chancellor’s unforgiveable silence) last week found against the United Kingdom government’s position on the process by which the UK may withdraw from the European Union.  As well as providing for a frisson of local recognition by the judges’ reliance on Fitzgerald v Muldoon [1976] 2 NZLR 615 (HC) (of which Brexit has populist echoes), the judgment presents substantial challenges to the UK government, not all answerable by its ‘leapfrog’ appeal (to be heard next month by all 11 Supreme Court judges, apparently to avoid any suggestion alternative results could be available from a differently constituted panel). Continue reading “Brexit: here come the lawyers”

“Fruit of the poisonous tree”? Remedying NZBORA breaches

Relying on courts’ obligation to give effect to NZBORA under its s 3, the Supreme Court held the exclusionary remedy could be said to have arisen “under” NZBORA

As evidence obtained by arguable police impropriety again hits the headlines (police use breath-testing checkpoint to obtain information on attendees at an Exit International euthanasia meeting), the Supreme Court has explained the Evidence Act 2006’s fundamental principle – all relevant evidence is admissible unless inadmissible or excluded “under” any statute – permits exclusion of such evidence in civil proceedings, if necessary to remedy New Zealand Bill of Rights Act impropriety. Continue reading ““Fruit of the poisonous tree”? Remedying NZBORA breaches”

Judicial review

Going beyond its “proper sphere”?

A shifting majority (a ‘mobile plurality’?) of Supreme Court judges enabled both sides to claim some success in Ririnui v Landcorp Farming Ltd [2016] NZSC 62 (9/6/16), and enhanced the scope for judicial review of the Crown’s commercial and policy decisions, at least where vitiated by material errors, as unlawful exercises of public power. Continue reading “Judicial review”

Judges and judging

“The unique stressors of judicial life”

Last year, the country’s 46 High Court judges and associate judges, hearing cases at 18 High Court locations around the country, managed from circuits in each Auckland, Wellington, and Christchurch in comparable proportion to their catchment, delivered over 3,300 judgments – roughly 1.5 judgments per judge per sitting week, well over 90% within three months of hearing. Continue reading “Judges and judging”