Damages and Human Rights
Carol Harlow
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This article examines a number of cases in which courts have agreed to award damages to individuals against government for violations of human rights. It examines the case for money damages in such cases, concluding that in the absence of clear and specific legislative authorisation, the judiciary will necessarily become actively involved in policy decisions relating to the allocation of limited resources. In some cases this will raise serious questions concerning legitimacy and enforceability of judgments. It is also likely in the long run to contribute to the growing “compensation culture” and create a serious drain on government resources.
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The New Exclusionary Rule: Interpretation and Application of R v Shaheed
Scott L Optican |
In R v Shaheed [2002] 2 NZLR 377, the Court of Appeal abandoned the established “prima facie rule of exclusion” in relation to evidence obtained by police in violation of the New Zealand Bill of Rights Act 1990. The Court replaced it with a multi-factored balancing test assessing whether exclusion was a proportional remedial response to the particular Bill of Rights violation in the case at hand.
This article undertakes a wide-ranging analysis and critique of the first two years of case law dealing with the new Shaheed approach. It comprehensively examines the patterns of High Court and Court of Appeal decision-making in the application and interpretation of the proportionality-balancing test (down to September 2004). It also expands an earlier critique of Shaheed (see Optican and Sankoff, “The New Exclusionary Rule: A Preliminary Assessment of R v Shaheed” [2003] NZ Law Review 1) into two new areas: (1) the extension of proportionality-balancing to cases not involving the exclusion of evidence obtained by police in violation of the Bill of Rights; and (2) the uncertain relationship between the exclusion of evidence on the common law grounds of unfairness and pursuant to the analytical schema outlined in Shaheed.
Given its length, and depending on the reader’s particular interests, the article is designed to be read as a whole or in discrete sections. The conclusion gives a summary of the article, discusses the future of exclusionary-rule decision-making under Shaheed, and presents five specific recommendations for improving, rationalising, and clarifying judicial interpretation and application of the proportionality-balancing test. |
Tort Choice of Law in New Zealand: Recommendations for Reform
Elsabe Schoeman |
This article explores the need for, and the content of, reform regarding the common law double-actionability rule for tort choice of law in New Zealand. While a significant number of other Anglo-Common Law jurisdictions have now adopted the lex loci delicti as the general rule for tort choice of law, the need for the formulation of an exception to the general rule, and the content of such an exception, remain to be dealt with satisfactorily. This article focuses on the interpretation and application of such a “proper law of the tort” exception, with a view to reform of the New Zealand conflict rule for tort. |
Reviews |
Intellectual and Industrial Property: Andrew Brown QC
Tort Law: Stephen Todd
The Treaty of Waitangi: Kerensa Johnston
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2004 PART III
