The Young, the Senile and the Franchise

Jonathan Barrett

A presumption of individual autonomy underpins voter qualification in liberal democracies, but is problematic. On the one hand, individual autonomy is an insufficient criterion and needs to be considered with other factors, in particular social solidarity. On the other hand, it is an ideal that does not square with current electoral arrangements, whereby cognitively competent young people are excluded from the electorate, whereas people suffering from senile dementia are potentially included.

Dignity, principally, and social solidarity, as a subsidiary consideration, are proposed as appropriate criteria for deciding whether the young or senile should be excluded from the demos. The position of young people is considered first, and then the more problematic issue of elderly voters suffering from senile dementia.

Legal and practical considerations regarding amendment of the Electoral Act 1993 are also outlined. It is concluded that, when viewed through the lens of dignity, New Zealand’s current system, which excludes the young but potentially includes the senile, is not as paradoxical as the application of a cognitive capacity criterion might suggest. Nevertheless, the demographic shift that is causing the population to age means these issues merit far greater public discussion and policy consideration than they currently attract.

Tax Avoidance, the Rule of Law and the New Zealand Supreme Court

Michael Littlewood

Since the New Zealand Supreme Court was established in 2004, two tax avoidance cases have come before it: Ben Nevis Ltd v Commissioner of Inland Revenue, which concerned the General Anti-Avoidance Rule (GAAR) contained in the Income Tax Act; and Glenharrow Ltd v Commissioner of Inland Revenue, which concerned the GAAR contained in the Goods and Services Tax Act. This article examines these two cases.

It addresses also the wording of the GAAR contained in the Income Tax Act; its interpretation by the courts, in particular the Privy Council, prior to the establishment of the Supreme Court; and the vexed question of the Ramsay principle and its place, if any, in New Zealand law. The article concludes that the Ben Nevis case, in particular, represents real progress; but that much remains to be done. This article also appears in Richard Ekins (ed) Modern Challenges to the Rule of Law (LexisNexis, Wellington, 2011).

Criminal Records, Spent Convictions and Privacy: A Trans-Tasman Comparison

Moira Paterson

The increasingly popular practice of pre-employment checking for criminal convictions is an issue of concern given the large number of individuals who have some form of criminal record.

This article provides an overview and comparison of Australian and New Zealand anti-discrimination, privacy and spent convictions laws as they apply to criminal records and of relevant law reform initiatives. It points out that neither country provides sufficient protection and suggests a possible way forward.

Towards a New Regulatory Regime for New Zealand Online Auctions

Kate Tokeley

Recent statements by the Minister of Consumer Affairs indicate that developing consumer law so that it is technologically neutral is a priority. This article analyses how the current law responds to the technological innovation of the online auction. The article concludes that consumers using online auctions have fewer legal rights and more difficulties obtaining redress than consumers who purchase goods from shops or from New Zealand online stores.

The two main risks facing consumers using online auction sites are that the goods are not delivered or that they are defective in some way. The article concludes that there is an urgent need to update the Consumer Guarantees Act 1993 to expressly cover online auctions. However, this amendment alone will not be sufficient to protect consumers using online auctions.

Several other suggestions are made for creating a comprehensive regulatory framework for New Zealand online auctions. These suggestions include introducing a public enforcement agency to enforce the Consumer Guarantees Act, imposing a duty on suppliers to provide identity and contact information and enacting specific regulation for online auction site operators.

Banking Law

Christopher Hare

As this is the first formal review in the banking law field, it is proposed to reach a bit further back in time than is traditional and to examine the principal developments in the area in the previous two to three years. The longer time-line also makes sense from another perspective, since no current review of banking law could possibly claim to be complete without some acknowledgement of, and reference to, the global credit crisis that resulted from the confluence of a number of economic factors: the development of housing bubbles in a number of jurisdictions (particularly the United States); the relaxation of bank lending criteria (including the growth of “self-cert” and sub-prime mortgages); the weakening of mortgage underwriting practice and the increase in fraudulent underwriting; the increase in predatory lending practices; the increasing deregulation of financial markets and the development of a largely unregulated “shadow banking system” (including the growth of finance companies and other non-bank deposit-takers in New Zealand);

Treaty of Waitangi

Kerensa Johnston

Three cases that examine the role and jurisdiction of the Waitangi Tribunal, the Crown–Ma¯ori Treaty relationship, and the development of a duty of good faith akin to a fiduciary duty are discussed in this review. Haronga v Waitangi Tribunal [2010] NZCA 201 (Haronga) and Attorney-General v Mair [2009] NZCA 625 (Mair) examine recent Ma¯ori challenges to the Crown’s current Treaty settlement policy which, with a few exceptions, is focused on the negotiation and settlement of Treaty claims with “large natural groupings” (LNGs) such as a large iwi or a cluster of smaller iwi, rather than with individual, whanau or hapu¯ claimants.

The Crown justifies this approach on the basis that settlement is easier to manage and work through when it is done with large groups rather than with smaller discrete groups who may have many overlapping interests and rights (see Office of Treaty Settlements “Negotiating Process — Mandating for Negotiations” (2011) ).