Dissertations / Theses on the topic 'Administrative law – New Zealand'
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1
Wiese, Katja Kristina. "Juvenile Justice: A comparison between the laws of New Zealand and Germany." University of Canterbury. Law, 2007. http://hdl.handle.net/10092/851.
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The main objective of this thesis is to make a contribution to the controversial subject of how the German youth justice system could be reformed. In this context, this thesis aims to discover innovative strategies that might be implemented into German youth justice law. As New Zealand's juvenile justice system, which was established under the Children, Young Persons, and Their Families Act 1989, has become the centre of extensive international attention and has already been adopted and adapted by other jurisdictions, this thesis focuses on the question whether parts of New Zealand's legislation could be transplanted into German youth justice law. For these purposes, the method of Comparative Law is employed. Accordingly, New Zealand's and Germany's social, legal, historical and cultural background are briefly outlined and compared. This comparison reveals that an implementation of concepts of New Zealand law into German law would generally be possible. The historical development of distinct youth justice systems in both countries are presented and differences and similarities are compiled. Both countries' current youth justice legislations are then critically examined. This thesis further provides an evaluation of the practical effectiveness of New Zealand's youth justice system. In this regard, this research is exploratory and qualitative, drawing on semi-structured interviews with 10 practitioners working in the field of youth justice. The comparative and qualitative research identified many strengths as well as some weaknesses of the current youth justice system in New Zealand. Consequently, this thesis comes to the conclusion that an implementation of a youth justice forum comparable to New Zealand's Family Group Conference would be expedient and worthwhile from Germany's perspective, but that some aspects of the New Zealand system like police diversion and the formal court orders, cannot or should not be introduced in Germany. Regarding the latter topic, the comparison of both systems revealed that New Zealand might even be inspired by the German option of imposing youth prison sentences on recidivist offenders.
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Fleming, M. W. A. "Price discrimination law : developing a policy for New Zealand." Thesis, University of Canterbury. Accounting and Information Systems, 1985. http://hdl.handle.net/10092/2736.
Full textAbstract:
The purpose of this thesis is to develop a policy towards anticompetitive
price discrimination in New Zealand. Price discrimination
occurs where the ratio of price to cost in two sales differs.
Legislation against price discrimination may be enacted as part
of our Competition Law, a set of laws designed to promote efficiency and
competition in industry and commerce.
The first section of this thesis examines the economics of price
discrimination and its effects on efficiency, income distribution and
competition. We conclude that the effects are ambiguous and depend
upon the circumstances in which the discrimination is practiced. However
we conclude that systematic price discrimination can be harmful to
competition, whilst unsystematic price discrimination can promote
competition and that there are a priori grounds for anti-price
discrimination legislation.
The second section examines specific approaches taken to price
discrimination legislation. Particular emphasis is placed on the U.S.
Robinson-Patman Act which is one of the most extensively litigated price
discrimination laws in the world. A review of the implementation of this
Act shows that it has failed to promote competition or increase
efficiency. In fact, it has done more to inhibit these goals than
promote them. We conclude that there are conceptual problems with antiprice
discrimination legislation and this conclusion is reinforced by a
study of the Australian price discrimination law. We therefore examine
the conceptual framework in which price discrimination is controlled in
other developed countries such as the United Kingdom, Canada, Eire,
France, West Germany and the EEC. We conclude generally that price
discrimination is a problem of monopoly and should be treated as such. The final part of this thesis reviews price discrimination law in
New zealand and suggests a policy that would align the Commerce Act with
our conclusion that legislation against price discrimination is
undesirable.
3
Schofield, Simon anthony. "The law of climate change mitigation in New Zealand." Thesis, University of Canterbury. Law, 2012. http://hdl.handle.net/10092/10347.
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As the world strives to reduce greenhouse gas emissions to mitigate climate change, the law has a crucial role to play in supporting mitigation solutions. Starting with the common law's potential for the development of a climate change tort in New Zealand, this thesis analyses the applicability of New Zealand's environmental land use planning law before turning to how an New Zealand emissions unit under the Climate Change Response Act 2002 will work in theory and practice to reduce greenhouse gas emissions. This thesis argues that the operation of corporations to drive these reductions as well as the development of renewable electricity from water, geothermal, wind and marine resources will require an integrated approach to sustainability. It explains that the transition from fossil fuels which can be owned to fugacious renewable resources which are incapable of ownership until capture requires reconsideration of the nature of property. Energy efficiency and conservation in addition to sequestration which reduce greenhouse gas emissions expose opportunities and problems associated with disaggregating property law rights. It concludes that New Zealand law must keep sight of the purpose of reducing greenhouse gas emissions through all levels of society, namely, climate change mitigation.
4
Whitcombe, J. E. "Policy, service delivery and institutional design : the case of New Zealand's social sector government agencies, 1984-2007 : a thesis submitted to the Victoria University of Wellington in fulfilment of the requirements for the degree of Doctor of Philosophy in Public Policy /." ResearchArchive@Victoria e-Thesis, 2008. http://hdl.handle.net/10063/589.
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McHugh, Paul Gerard. "The aboriginal rights of the New Zealand Maori at common law." Thesis, University of Cambridge, 1988. https://www.repository.cam.ac.uk/handle/1810/244948.
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In 1840 the indigenous Maori tribes of New Zealand ceded the sovereignty of New Zealand to the British Crown in return for the protection of the chiefs' rangatiratanga (internal government of the tribe) and the tribes' lands, forests, and fisheries. This agreement is known as the Treaty of Waitangi. This thesis considers the extent to which the common law of England recognised the rights embodied in the Treaty of Waitangi upon the Crown's assumption of the territorial sovereignty over New Zealand. Since the principles of the common law developed in an organic manner through the history of British relations with non-Christian societies the present study has used comparative material of an historical as well as strictly legal character. It is believed previous studies of Maori rights upon British annexation have suffered from the failure to assess the Maori tribes' position in terms of a continuum of British colonial constitutional history. Having isolated the relevant common law principles from the body of British practice and other sources, each of the three Parts ends with the particular application of these principles to the New Zealand setting. The thesis is based upon the distinction between imperium (a right of government) and dominium (rights of private ownership) and is divided into three Parts. The first Part looks at the principles governing the Crown's erection of an imperium over non-Christian societies. Part II looks at the effect of British sovereignty upon the customary law of the Maori tribes. Finally, Part III assesses the common law's recognition of the traditional property rights of the Maori. The conclusion reached is that the common law recognised the continuity of Maori customary law and property rights but qualified this by limiting any viability of the customary code to Maori relations inter se and restricting the alienation of the tribal title to the Crown. To that extent the Treaty of Waitangi was not so much a source as declaratory of rules which would have applied in any event. The present study does not consider at length the contemporary status of these post-annexation rights given the Maori by the common law. However, it has significance for contemporary as well as historical Maori claims and amounts to a revision of previous assessments of the common law's response to British annexation of New Zealand.
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Moorman, David Guy. "Vertical restraints in the distribution process under New Zealand competition law." Thesis, University of British Columbia, 1989. http://hdl.handle.net/2429/27353.
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The law relating to vertical restraints in the distribution process has sparked probably more controversy than any other area of competition law over the last 20 years. The debate has been fought out most fiercely between economists of various ideological schools invoking arguments of the importance of economic efficiency versus the need to protect small businesses and the freedom of sellers to choose their own methods of distribution. This has generated an extensive body of literature particularly in the United States. Surprisingly little however has been written in Australia or New Zealand on this subject. This thesis attempts to fill the void, although, in so doing, it does not seek to delve into the technical and complex aspects of law and economics in this area. Rather, it seeks merely to raise the basic issues in the New Zealand context from which base a more sophisticated study can subsequently be undertaken.
By way of introduction, the nature of vertical restraints in the distribution process are described and some background is provided to the areas of debate. The thesis then breaks up into two parts to examine the current state of the law in the United States, Canada, Australia and New Zealand in respect of, first, vertical price restraints and, second, vertical non-price restraints. Where appropriate, a comparative analysis is made to shed light on the interpretation of key words and phrases in the New Zealand legislation.
In respect of each type of restraint, the basic economic issues involved are then canvassed, given the strategic role which economics plays in understanding why vertical restraints are imposed and their competitive effects. Thereafter, various legal and policy issues are discussed to assist in deciding upon the appropriate legal treatment of each type of restraint. Finally, an attempt is made to provide an analytically coherent framework within which to judge vertical restraints in the context of present competition policy.
The conclusions reached call into question the present total prohibition against resale price maintenace in New Zealand and advocate the need for more specific provisions regarding both price and non-price vertical restraints. In particular, it is suggested that a rule of per se illegality should only operate for conduct which attempts to fix, maintain or control the price at which products are resold, while a structured rule of reason should operate for all other types of vertical restraints based on a market power test administered in accordance with guidelines promulgated by the Commerce Commission.Law, Peter A. Allard School of
Graduate
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Birdling, Malcolm David. "Correction of miscarriages of justice in New Zealand and England." Thesis, University of Oxford, 2012. http://ora.ox.ac.uk/objects/uuid:2dae4513-4fd2-40cd-bb6a-dbba696d6d7f.
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This thesis sets out to provide a deep analysis of the mechanisms for review of convictions in New Zealand and England after initial appeal rights are exhausted, and to identify the key areas of similarity and difference between these systems, the reasons for these differences, and their implications. The appeal systems in each jurisdiction are briefly examined, alongside the pressures and restrictions on their functioning. Particular attention is paid to the options for appeal out of time, and for revisiting appeal decisions if new material comes to light. The main discussion is of the specialist procedures for review of suspect convictions in each jurisdiction: the Royal Prerogative of Mercy process carried out by the New Zealand Ministry of Justice and the work of the English Criminal Cases Review Commission. This discussion presents the results of empirical research carried out by the author utilising the files of each of these bodies. It investigates the legal context in which each body functions, and provides an account of how each body functions in practice, by examining the circumstances in which each body will contemplate referring a matter back to an appeal court and the means by which a determination is made as to whether to do so in an individual case. In addition it examines the various factors (legal and non-legal) which impact on their work. Finally, the key features of the two systems are contrasted, with a discussion of the areas of similarity and difference, as well as the possible implications of these, in particular for reform of the New Zealand processes.
8
Bayley, John Edward. "A Doctrine of Good Faith in New Zealand Contractual Relationships." University of Canterbury. Law, 2009. http://hdl.handle.net/10092/2862.
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The majority of established legal systems are predisposed to the express recognition of good faith in contract. The apparent pressure for harmonisation of contract law arising from globalisation and political union will necessitate the Anglo-Commonwealth common law countries addressing their historical resistance to the observance of a general obligation of good faith. Accordingly this thesis appraises whether there is a requirement for a universal doctrine of good faith in New Zealand contractual relationships. The manuscript focuses on a prospective common law doctrine operating primarily as a rule of construction. It identifies the limits of such a judicial doctrine including its probable lack of application to non-contractual dealings and the likely need for a legislative duty if contracting parties are to be precluded from excluding the obligation. The characteristics of the subject doctrine are explored including the potential definition and uses of good faith. Whilst it is shown that good faith serves an important role in contract law, the analysis reveals that there is no current requirement for an express doctrine within New Zealand. The entrenched ‘piecemeal’ approach synonymous with Anglo-New Zealand contract law is not demonstrably deficient when gauged against the reasonable expectations of contracting parties. The current methodology is preferred to a general, unfamiliar and uncertain good faith principle which is likely to be reduced to equate with the existing New Zealand law in any event. Further, duties consonant with good faith may enhance economic efficiency but not in some instances. Good faith is therefore best imposed in specific circumstances rather than as a universal doctrine. Likewise, there is insufficient evidence to suggest that New Zealand is impaired in the international arena due to a lack of good faith despite pressure for New Zealand to accord with widespread overseas practice. The principle is of minimal utility in international trade where commercial certitude is paramount. Although an imperfect exemplar, the unresolved issues pertaining to contractual good faith in domestic American law confirms the identified reservations associated with the subject doctrine.
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Booth, Kay Lenore, and n/a. "Rights of public access for outdoor recreation in New Zealand." University of Otago. Department of Tourism, 2006. http://adt.otago.ac.nz./public/adt-NZDU20070208.142035.
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This thesis explores the nature of public access rights for outdoor recreation in New Zealand. It aims to improve understanding of these rights by examining the New Zealand public policy framework for public access, the social constructions of access rights and the interaction of these dimensions via analysis of two contemporary New Zealand access issues: the foreshore access debate and the state-sponsored Land Access Review. An institutional arrangements framework forms the study�s conceptual basis and is critiqued for its value in the examination of rights of public access. Multiple qualitative methods were employed to collect data, including interviews with access actors, submission analysis, examination of public policy documents and critical interpretation of the access discourse within the mass media. Key themes from the international access literature are identified and the disparate nature of much of this research is highlighted. Within New Zealand, public access represents an area of research neglect. This thesis provides the first comprehensive study of rights of public access for outdoor recreation in New Zealand.
A threshold has been reached in the evolution of access rights in New Zealand. Societal changes are perceived to be reducing the public�s traditional rights to access land for outdoor recreation. Owing to the importance of these rights within conceptions of New Zealand national identity, the Government is codifying access rights in a bid to protect them. Thus a shift in access arrangements is occurring, from reliance upon social customs to increasing use of public policy instruments.
Access rights are being renegotiated within a highly contested environment. The debate is being staged within the political arena and via the national news media; access has become a significant national issue. As a result, the level of engagement has shifted from localised access transactions between landholders and recreationists, to a national discussion regarding competing rights to land. Access actors have reacted in different ways to the reforms of access arrangements, driven by the manner in which the proposals affect their property rights, social values and norms. Some reactions have been strident and confrontational.
Inadequate public policy arrangements for access have created the 'space' for these multiple social constructions of access to develop. Convergence of a disparate and poorly enforced access public policy framework with varying social representations of access rights is influencing the access outcomes. The 'place' of public access within New Zealand society occurs at the intersection of several strongly-held cultural traditions, including private property rights, Maori customary rights, and a belief that it is a birthright to freely access the outdoors. The tension between these values underpins New Zealand�s unique (and changing) manifestation of the rights of the public to access land for recreation.
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Brown, Hayley Marina. "'A Woman's Right to Choose': Second Wave Feminist Advocacy of Abortion Law Reform in New Zealand and New South Wales from the 1970s." Thesis, University of Canterbury. History, 2004. http://hdl.handle.net/10092/948.
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This thesis interrogates the abortion debate in New Zealand and New South Wales over the period 1970 to the present from a feminist perspective. The arguments of this thesis are five fold. First, it argues that abortion was the central issue for second wave feminists in the 1970s because they believed that until women had complete control over their bodies any other gains made by the movement would be of little significance. Second, feminists who did not support abortion law reform left the mainstream movement and set up their own groups because that movement was not prepared to tolerate a diversity of opinions on the abortion issue. Third, not only was abortion a central issue for feminists; it became a central issue for parliament, illustrated by the establishment of royal commissions in both New Zealand and Australia to investigate abortion among a number of other issues. Fourth, from the 1970s New Zealand women travelled to Australia for abortions. After the 1977 restrictive law change this travel was made possible by women's groups in both New Zealand and New South Wales working together to help New Zealand women. Until now this trans-Tasman relationship has been invisible in the literature. Fifth, in the 1980s and 1990s, when there was a backlash against the women's movement, abortion was targeted by many groups because they too saw it as central to women's liberation. Despite the funding and active support of anti-abortionists in New Zealand and New South Wales, they were not able to restrict access to abortion. In short, this thesis addresses how feminists supported, or in some cases opposed, women's access to abortion during the 1970s and the challenges they faced in the 1980s and 1990s.
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Ng, Mei Lin, and n/a. "In Search of the 'Golden Thread': Common Law Interactions With Indigenous Law in Canada, Australia and New Zealand." Griffith University. Griffith Law School, 2006. http://www4.gu.edu.au:8080/adt-root/public/adt-QGU20070314.163150.
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The thesis explores the interactions of the common law with indigenous law in three jurisdictions: Australia, New Zealand and Canada. Case law involving family, criminal and land law is examined in detail, to establish how the common law has interacted with indigenous law. Two aspects of common law interactions are explored: judicial approaches to the recognition of indigenous law; and, judicial perceptions about the relationship between the common law and indigenous law. Courts faced with indigenous law have taken one of three approaches to recognising it. These are respectively referred to in the thesis as the non-recognition approach, the accommodation approach and the recognition approach. With regard to judicial perceptions about the relationship between the common law and indigenous law, the case law reveals seven different perceptions. They are: no relationship; mere acknowledgement; separate but capable of recognition; adjustment; assimilation/domination; assimilation/search for partnership; and absorption. Where a relationship is acknowledged, although perceptions may vary, essentially they can be placed in one of three categories. Courts may regard the relationship as one between two separate bodies of law, with points of intersection. They may regard it as one of convergence, perhaps even partial integration, between separate legal traditions. Finally, they may regard indigenous law as having been absorbed into the dominant legal system. Courts with this latter perception regard indigenous law as analogous to English local customs. Having identified more than one approach to the recognition of indigenous law, consideration is given to the circumstances in which the approaches are used, exploring differences arising out of the subject area in question and the jurisdiction in which the case is considered. The thesis also demonstrates that some correlation exists between the judicial approach to recognition of indigenous law and judicial perceptions about the relationship of the common law with indigenous law, though this correlation cannot be demonstrated in all cases. Lastly, the capacity of the common law to recognise changes to indigenous law is considered, where the case law reveals that both the judicial approach to recognition of indigenous law, and judicial perceptions about the relationship between the common law and indigenous law have a bearing on the capacity of the courts to recognise change. The thesis demonstrates that both the judicial approach to recognition of indigenous law and judicial perceptions about the relationship between the common law and indigenous law affect common law interactions with indigenous law.
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Cheer, Ursula Jan. "Reality and Myth: The New Zealand Media and the Chilling Effect of Defamation Law." University of Canterbury. Law, 2008. http://hdl.handle.net/10092/3050.
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In 2001, I began the field work in an empirical study of the laws of defamation in New Zealand. This study involved a comprehensive mail-out survey of the New Zealand media, and an adapted survey of defamation lawyers, which were designed to discover how the laws of defamation affected both groups, and what the respondents thought about those laws. The survey was augmented by an extensive search of defamation court files in the most important New Zealand High Court registries. The question behind the survey was essentially whether New Zealand’s defamation laws have a chilling effect on the media, to the extent that stories which should be told do not see the light of day. In this thesis, I contextualise and report on the results of the survey. I first describe and analyse the sources and trends in current defamation law, the other forms of regulation of the media in New Zealand, and the patterns of media ownership. I go on to utilise background data from the survey to present a character and business profile of the media who responded to the survey and find the data confirms the representative nature of those respondents. I then complete contextualisation of the survey by analysing the nature of the chilling effect doctrine itself, a canon which began as a predictive theory importing sociological concepts into legal analysis, but which is now a doctrine applied somewhat inconsistently, but with substantive effects, by the courts. In the following chapters I present the results of the media survey, the court file search and the survey of defamation lawyers, both in narrative and graph or tabular form. My tentative initial finding, that New Zealand’s defamation laws do not have an excessive chilling effect on our media, although they do have some, is progressively confirmed, with each set of data appearing to mirror and corroborate that which went before. In the final chapters, I take this somewhat surprising finding and augment it by theorising about future developments in defamation law. I suggest that increased constitutionalisation of this area of private law, in the form of full incorporation of a Bill of Rights methodology, is both desirable and necessary to protect against any chilling effects, such as they are. I conclude by posing a question about a possible joint future for defamation and privacy claims.
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Scrollini, Mendez Fabrizio. "Right to information arenas : exploring the right to information in Chile, New Zealand and Uruguay." Thesis, London School of Economics and Political Science (University of London), 2015. http://etheses.lse.ac.uk/3361/.
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The Right to Information (RTI) – a right every individual has to access public information held by governments – is now established in more than 100 countries. RTI laws set up a new logic in government: availability of public information is the principle and secrecy the exception. RTI laws create new public information arenas where several actors request, release and use public information for several purposes. In this work, I seek to explore why RTI arenas based on similar principles, work differently leading to different outputs. My explanation is based on a historical- institutionalist perspective arguing that origins of these laws and previous institutional structures matter. I argue that three factors help to shape these arenas: the level of participation in the policy-making process, the professionalisation of state bureaucracy and RTI enforcement institutions. The combination of these factors gives us three different kinds of arenas: functional, mixed and contested. I develop a conceptual framework, operating at a middle-range theory level, to analyse the role RTI laws, requesters, the state, and the existence of RTI enforcement institutions play in each configuration. I show how these arenas evolve and work, running a structured and focused comparison of three case studies: Uruguay, Chile and New Zealand. This work shows how these arenas ended up differing in outputs such as availability of public information and efficiency in processing RTI requests, as well as the existence of effective accountability mechanisms to resolve disputes about public information.
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Ruru, Jacinta Arianna, and jacinta ruru@stonebow otago ac nz. "Te Tiriti o Waitangi and the management of national parks in New Zealand." University of Otago. Faculty of Law, 2002. http://adt.otago.ac.nz./public/adt-NZDU20070508.135325.
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This thesis assesses the historical and current legislative provision for including nga iwi Maori in the management of national parks. The method of assessment is one of comparison between the legislative provisions and the guarantees promised to nga iwi Maori in te Tiriti o Waitangi.
Part One, Chapter One, establishes the relevance of te Tiriti o Waitangi to the management of national parks. This chapter is designed to act as the benchmark for the assessment of national park legislation.
Part Two outlines the early national park legislation. Chapter Two begins by focusing on the emergence of the national park estate in the late nineteenth, and early twentieth, centuries. Chapter Three focuses on the first consolidated national park statute, the National Parks Act 1952.
Part Three assesses the present statutory provision for including nga iwi Maori in national park management. Chapter Four focuses on the original provisions of the National Parks Act 1980. Chapters Five, Six and Seven focus respectively on the major statutory amendments since made to the National Parks Act 1980: the Conservation Act 1987, the Conservation Law Reform Act 1990, and the Ngai Tahu Claims Settlement Act 1998. Chapter Eight turns to assess national park management documents.
Part Four, Chapter Nine, concludes by exploring how legislation could be used in the future to provide for the Tiriti right of nga iwi Maori to be included in the management of national parks.
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au, gswensen@westnet com, and Greg Swensen. "Reform of Minor Cannabis Laws in Western Australia, the United Kingdom and New Zealand." Murdoch University, 2006. http://wwwlib.murdoch.edu.au/adt/browse/view/adt-MU20070507.150143.
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The past three decades has been a period of intense and sustained debate in a number of major Western countries about the wisdom of police continuing to apply legislation which can severely punish offenders by fines and even imprisonment because of laws and policies that prohibit the use, possession and cultivation of cannabis.
The large and growing number of young adults who have been exposed to the drug, some of whom have been charged and received criminal convictions with attendant deleterious effects on their employment and wellbeing, has forced policy makers to re-evaluate the justification for continuing to criminalise cannabis.
This thesis examines in detail the law reforms that occurred in early 2004 with respect to cannabis offenders in Western Australia (WA) and the United Kingdom (UK) and what lessons these reforms may hold for other jurisdictions interested in decriminalisation of minor cannabis offences.
A study was undertaken to compare the shortcomings and advantages of the different approaches to reform followed in WA and the UK. Reference to the reform in the UK, will be confined to meaning England, Wales and Northern Ireland as the necessary administrative guidelines have not so far been issued for Scotland.
In WA the reforms required a substantial legislative effort to establish a complex framework that outlined in detail the circumstances when police may issue cannabis infringement notices (CINs), whereas in the UK the approach involved limited legislative activity by the reclassification of the legal status of cannabis and by providing police with administrative guidelines issued by the Association of Chief Police Commissioners as to how to exercise their discretion in issuing formal warnings for a minor cannabis offence.
A comparison is made with New Zealand (NZ), where in spite of there being a similar process of deliberation and consultation as in WA and the UK, the government refused to implement formal reform because of a perception it was unable to decriminalise minor cannabis offences because of the restrictions imposed of agreement between the Clarke Labour Government and a minor political party.
The example of the failure of government in NZ to achieve reform illustrates the importance that in some jurisdictions there will be a significant role for non parliamentary advisory bodies and lobby groups to argue for reform and to garner public support when reform has stalled or been frustrated.
The thesis also includes a preliminary exploratory study using a number of indicators, such as prevalence and conviction data, to determine if the reforms implemented by the CIN scheme have resulted in or are likely to create unanticipated harms and to explore some of the issues in being to determine whether changes in law enforcement practices and priorities have impacted on the cannabis market or are likely to change the way cannabis may be transacted in WA.
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Cox, Noel Stanley Bertie. "The evolution of the New Zealand monarchy: The recognition of an autochthonous polity." Thesis, University of Auckland, 2001. http://wwwlib.umi.com/dissertations/fullcit/3002348.
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The aims of this thesis are to determine to what extent the Crown remains important as a source of legitimacy for the constitutional order and as a focus of sovereignty; how the Crown has developed as a distinct institution; and what the prospects are for the adoption of a republican form of government in New Zealand. The imperial Crown has evolved into the New Zealand Crown, yet the implications of this change are as yet only slowly being understood. Largely this is because that evolution came about as a result of gradual political development, as part of an extended process of independence, rather than by deliberate and conscious decision. The continuing evolution of political independence does not necessarily mean that New Zealand will become a republic in the short-to-medium term. This is for various reasons. The concept of the Crown has often been, in New Zealand, of greater importance than the person of the Sovereign, or that of the Governor-General. The existence of the Crown has also contributed to, rather than impeded, the independence of New Zealand, through the division of imperial prerogative powers. In particular, while the future constitutional status of the Treaty of Waitangi remains uncertain, the Crown appears to have acquired greater legitimacy through being a party to the Treaty. The expression of national identity does not necessarily require the removal of the Crown. The very physical absence of the Sovereign, and the all-pervading nature of the legal concept of the Crown, have also contributed to that institution's development as a truly national organ of government. The concept of the Crown has now, to a large extent, been separated from its historical, British, roots. This has been encouraged by conceptual confusion over the symbolism and identity of the Crown. But this merely illustrates the extent to which the Crown has become an autochthonous polity, grounded in our own unique settlement and evolution since 1840. Whether that conceptual strength is sufficient to counterbalance symbolic and other challenges in the twenty-first century remains uncertain. But it is certain that the Crown has had a profound affect upon the style and structure of government in New Zealand.
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George, Robert H. "Reassessing relocation : a comparative analysis of legal approaches to disputes over family migration after parental separation in England and New Zealand." Thesis, University of Oxford, 2010. http://ora.ox.ac.uk/objects/uuid:e0b7e3d4-f7de-41b4-8215-6a5f00cb733b.
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Relocation cases are disputes between separated parents which arise when one proposes to move to a new locality with their child and the other objects. Relocation disputes are increasingly common and are becoming a topic of international concern. This thesis takes a comparative socio-legal approach to examining the legal responses to relocation cases in England and New Zealand. In England, Payne v Payne [2001] 1 FLR 1052 continues to apply principles first enunciated in Poel v Poel [1970] 1 WLR 1469, and generally sees children’s welfare as being promoted by allowing primary carers to relocate, so long as such moves are bona fide and well-considered. New Zealand rejected this approach in the mid-1990s, and now places more emphasis on children having strong relationships with both parents. Consequently, where England is characterised as ‘pro-relocation’, New Zealand is ‘anti-relocation’. Qualitative interviews with legal practitioners in both countries suggest that these characterisations are reflective of the law in practice. Looking at hypothetical case-studies, English practitioners are more likely to support proposed relocations than New Zealanders. Many English practitioners think their law to be outdated, and in particular that it gives too much weight to applicants’ well-being and too little to the value of children having strong relationships with both parents. However, in New Zealand, where an approach similar to that favoured by many English participants is applied, practitioners have the opposite concern, that applicants’ well-being is given insufficient weight, and promoting strong relationships with both parents has become overly dominant when assessing children’s welfare. It is suggested that the current variation in approaches to relocation may fit broader trends in post-separation parenting in different countries. However, given the current ‘search for common principles’ which can be applied to relocation cases internationally, this thesis raises questions about the likelihood of international agreement being reached.
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Davis, Tracy R. "The role of First Nations in oil and gas development under federal regulatory regimes: Options for change and lessons from New Zealand." Thesis, University of Ottawa (Canada), 2001. http://hdl.handle.net/10393/9139.
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The objective of this thesis is to determine what role First Nations have under federal oil and gas regulatory regimes and to make recommendations to enable them to participate in oil and gas development. The author argues that there are persuasive legal and policy grounds to support an active role for First Nations in oil and gas development within their traditional territories. This position is supported through a comprehensive analysis of three federal oil and gas regimes (Northern, Offshore and Indian Reserve Regimes), their legislative frameworks, and recent developments in aboriginal jurisprudence and policy. An assessment of what role First Nations have under the federal environmental assessment regime is undertaken to supplement the overall analysis. The thesis is further supported by an international comparative component that highlights contemporary resource management issues in New Zealand.
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Tortell, Lisa Ann. "The monetary remedy for breach of constitutional rights in the United States of America, India, New Zealand, and the United Kingdom." Thesis, University of Oxford, 2002. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.270152.
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Walker, Peter E., and n/a. "Power relationships and community law centres in Dunedin : power relationships between community organisations, their communities and their funding bodies : specifically focusing on community law centres in Dunedin and the Legal Services Board." University of Otago. Department of Social Work and Community Development, 1997. http://adt.otago.ac.nz./public/adt-NZDU20070528.124321.
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This research engages critically with major public sector accountability theories in relation to the development of law centres in Aotearoa/New Zealand (and comparative international examples) focusing on the two centres in Otago, the Ngai Tahu Maori Law Centre and the Dunedin Community Law Centre.
Definitions of accountability are argued to be embedded within theoretical discourses which produce definable models of accountability corresponding to these theoretical statements. Case studies of the discourses of both law centres and their funding bodies are described and contrasted in terms of their views of the role of law centres, interaction with various interest groups and their accountability relationships. The data identifies a desire of both community law centres to engage with a communitarian, �bottom-up�, model of accountability, in contrast to the former social democratic-bureaucratic and current liberal �stakeholder� and �contract� models of the official funding agencies. The current dominance of the liberal �stakeholder� discourse is seen as based on professional power, hierarchical legal structure and control of funding. It is argued that any shift in the dominance of power relationships surrounding community law centres in Aotearoa/New Zealand would entail a strengthening of ties and links with the community, through seeking alternative power supports, a participatory structure and locally controlled funding.
Keywords: accountability; power relationships; community law centres; dominance; community.
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Safari, N. "Reconsidering the role of the derivative claim in the United Kingdom : a comparative study with the United States and New Zealand." Thesis, City, University of London, 2018. http://openaccess.city.ac.uk/20130/.
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This thesis studies the role of derivative claims in the English legal system in the context of protecting the company as a separate legal personality, through both the shareholders and employees acting as the derivative claim applicants. In spite of the aim of the English Law Commission to change the derivative claim to a more affordable and more accessible mechanism in the UK, still the current overly restricted approach to this mechanism prevents it to play an effective role in protecting the company. The academic literature brings several factors including the availability of other mechanisms of protection for shareholders, the cost of the derivative claim and the ambiguities in the procedural requirements as the reasons for the ineffectiveness of the derivative claim. This research argues that the derivative claim is the only direct mechanism of protection for the company as a separate legal personality, and that protection of the company extends beyond the protection of its shareholders. Therefore, the hurdles in the way of efficiency of the derivative claim should be removed and it should become a more effective mechanism of protection for the company as a whole. Although the combination of other mechanisms of accountability for directors1 could discipline directors and provide an environment, in which the derivative claim is less needed, however, they have been designed to protect the personal interests of shareholders in the first instance and might not provide a potent protection for the company in all circumstances. This thesis argues that the derivative claim could work as a complementary mechanism and provide protection for the company in situations that the other mechanisms fail to do so. In order to enhance the protection of the company through the derivative claim, the thesis proposes that the scope of derivative claims’ applicants should be extended to employees. Employees have strong incentive to protect the company because they often invest in a company with their human capital, and are deeply dependent on the company well-being for their livelihoods and their pension benefits. In order to make the derivative claim a more affordable and accessible mechanism, the thesis proposes some reforms to derivative claim procedural requirements, including the shareholders ratification and the derivative claim costs. This thesis is a comparative study. The proposals for the derivative claim procedural requirements have been inspired by the derivative claim structures in the United States and New Zealand. The financial structure of the derivative claim in both countries has reduced the risk of the derivative claim for shareholders. Moreover, studying the role of the derivative claim in these jurisdictions confirms the thesis argument that although the availability of the other mechanisms of accountability could affect the need for the derivative claim, still the derivative claim has a role to play as a complementary mechanism.
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Cassagne, Juan Carlos. "New constitutionalism and the foundations of the legal system." THĒMIS-Revista de Derecho, 2017. http://repositorio.pucp.edu.pe/index/handle/123456789/107730.
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Inside the field of Law, the usual question about the meaning of a determined concept or the question towards what it makes reference to has alwaysbeen complicated. In the last years, different events have produced that philosophical trends reconsider the understanding of the legal system.In the present article, the author does a presentation of what new constitutionalism means and its opinion towards it. The author also makes a critical analysis of the positivist and jusnaturalist visions, connecting them with the understandingof Law and the legal system, making an emphasis on Administrative Law.En el campo del Derecho, la pregunta sobre qué significa o a qué hace referencia determinado concepto siempre ha sido complicada. En los últimos años diversos acontecimientos han ocasionado que corrientes filosóficas replanteen la forma de entender el orden jurídico.En el presente artículo, el autor hace una presentación de qué se entiende por nuevo constitucionalismo y su opinión sobre el mismo. Asimismo, realiza un análisis crítico de los planteamientos positivistas e iusnaturalistas, conectando los mismos con el entendimiento del Derecho y del orden jurídico, poniendo énfasis en la rama del Derecho Administrativo.
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Henderson, A. "Restoring law and order : the impact of the new constitutional order on the judicial review of administrative action." Thesis, University of Cambridge, 1999. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.603954.
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The advent of the new constitutional order on the 27th of April 1994 has brought about a fundamental change in the law governing judicial review in South Africa. By guaranteeing everyone the right to just administrative action and providing for the enactment of legislation to give effect to this right the Constitution of the Republic of South Africa, Act 108 of 1996 has consolidated and introduced rules that govern the judicial review of administrative action: It has helped restore law. However it has also brought order to the judicial review of administrative action, which was in a state of chaos before the advent of the new constitutional order. This is the most important aspect of the impact of the new constitutional order on the judicial review of administrative action. The advent of constitutional supremacy means that judicial review is justified and explained ultimately by reference to the Constitution. For, the identification of specially entrenched principles such as 'the rule of law' and 'democratic government' helps to explain the relationship between the courts and Parliament with regard to the control of the executive. While the principle of the separation of the powers, identified implicitly in the Constitution, helps to explain the relationship between the courts and the executive and the limits of judicial review. Moreover, by providing the ultimate source for the exercise of every power that is subject to judicial review and helping to define the limits of those powers the Constitution helps to explain what is meant by 'administrative action'. Finally, by providing express directions for the interpretation of statutes and development of the common law the Constitution has ensured that every application for judicial review will be undertaken with reference to the same set of principles.
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Scotford, Eloise A. K. "The role of environmental principles in the decisions of the European Union courts and New South Wales Land and Environment Court." Thesis, University of Oxford, 2010. http://ora.ox.ac.uk/objects/uuid:23d02748-1197-4f33-a6c6-b98fdbf7c5d1.
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The thesis is a comparative legal analysis of environmental principles in environmental law. Environmental principles are novel concepts in environmental law and they have a high profile in environmental law scholarship. This high profile is promoted by two factors – the high hopes that environmental law scholars have for environmental principles, and the increasing prevalence of environmental principles in legal systems, particularly in case law. This thesis analyses the latter, mapping doctrinal developments involving environmental principles in two jurisdictions and court systems – the courts of the European Union and the New South Wales Land and Environment Court. This doctrinal mapping has both narrow and broad aims. Narrowly, it identifies the legal roles in fact taken on by environmental principles within legal systems. Broadly, and building on this assessment, it responds to scholarly hopes that environmental principles (can) perform a range of significant roles in environmental law, including solving both environmental problems and legal problems in environmental law scholarship. These hopes are based on assumptions about environmental principles that have methodological weaknesses, including that environmental principles are universal and that they fit pre-existing models of ‘legal principles’ drawn from other areas of legal scholarship. The thesis exposes these methodological problems and concludes that environmental principles are not panaceas for pressing and perceived problems in environmental law. It does this by showing that the legal roles of environmental principles, which are significant in environmental law and its current evolution, can only be understood by closely analysing the legal cultures in which they feature. This is a conclusion for environmental law scholarship generally – while environmental issues and problems may be urgent and often global, legal analysis of the law that applies to those problems requires close engagement with legal systems and cultures, as they are and as they develop.
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Walker, Peter E., and n/a. "For better or for worse ... : a case study analysis of social services partnerships in Aotearoa/New Zealand." University of Otago. Department of Social Work and Community Development, 2007. http://adt.otago.ac.nz./public/adt-NZDU20070914.145613.
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Partnerships between organizations are seen as one of the building blocks of the �Third Way� approach to welfare provision both in Europe and in New Zealand. While there is much discussion of this emphasis on building social capital and working in partnerships these partnerships are usually perceived as being between government and community or private organizations as part of a new phase of neo-liberalism. Using qualitative research this thesis explores three partnership sites: Those within a Maori social service provider, Te Whanau Arohanui, and the local Hapu and State organisations; that between the Ngai Tahu Maori Law Centre (an indigenous organization) and the Dunedin Community Law Centre; and finally the State lead Strengthening Families partnership initiative.
This thesis is concerned with the development of citizen participation in public policy decision-making through partnerships. While contemporary studies of policy change have identified stakeholder and actor-network forms as dominant these often seem even less democratic, participatory, accountable and transparent than those they have supposedly replaced. I draw on ideas of deliberative governance to explore options for both the theory and practice of sustainable, permanent and participatory policy change in an age of diversity. I suggest that the practice of Community Development is needed to supplement descriptive and post-facto accounts of policy change and so create a usable practice theory of effective mechanisms for participatory input.
Using a series of case studies of partnerships, a tentative practice theory and strategy for change is proposed. This is set within an interactive framework that is able to confront levels of power to encourage diversity and participation in decision-making from bottom-up initiatives.
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Bacon, Rachel. "Amalgamating tribunals a recipe for optimal reform /." University of Sydney. Law, 2004. http://hdl.handle.net/2123/621.
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The last decade has seen numerous proposals to reform existing tribunal systems in jurisdictions throughout the common law world. Across the board, there have been proposals to adopt generalist tribunal models in preference to smaller, specialist tribunal systems, and to achieve these changes through the process of amalgamation. The most significant recent developments to occur in Australia have taken place in Victoria and NSW during the past five years. Legislators in these States have chosen to amalgamate a number of smaller, specialist tribunals into larger, generalist bodies. In 1997 the NSW Parliament passed legislation amalgamating a number of specialist tribunals to create the Administrative Decisions Tribunal (ADT); comparable legislation was passed in Victoria in 1998 to create the Victorian Civil and Administrative Tribunal (VCAT). There were concurrent attempts to implement similar reforms at federal level. In 1998 the Commonwealth government announced its intention to amalgamate four Commonwealth merits review tribunals to form one �super Tribunal� � the Administrative Review Tribunal (ART). The Bills containing these proposals were ultimately defeated in the Senate, however the Australian Government remains convinced of the benefits of amalgamation at federal level. Similar reforms have been proposed in Western Australia, Tasmania and the United Kingdom. This thesis argues that these reforms are taking place in the absence of data about their likely implications, and without a thorough understanding of the objectives that generalist versus specialist tribunal systems can realistically achieve. This ill-considered or �over-hasty� trend towards amalgamation raises a number of questions which have not previously been addressed in academic or policy-making circles. An obvious question is whether or not an amalgamated tribunal model is more effective than a series of smaller, specialised tribunals in delivering administrative justice, in other words, whether there is any net gain to be had from a government�s decision to amalgamate. The less explored, but equally important, question addressed in this thesis is how the process of amalgamation should be approached in order to realise the maximum potential benefits that an amalgamated tribunal can bring. That is, to ask what are the ingredients of an optimal amalgamation. This is not a question about whether government decisions to pursue amalgamation are intrinsically worthwhile or beneficial for stakeholders. Rather, it is about how government decisions to amalgamate should best be implemented. This thesis proposes a way of differentiating between good and bad amalgamations, that is grounded in theory and informed by experience to date. The proposed approach is to assess the effectiveness of amalgamation processes using relevant measures drawn from an analysis of organisational theory literature: � Legislation � the legislation establishing an amalgamated tribunal needs to ensure the tribunal will have appropriate independence, powers, processes, membership and structure. � Political commitment � those responsible for proposing and planning an amalgamation need to provide appropriate funding and support for the process and for the establishment of an autonomous, self-directed tribunal. � Organisational structure � the structures put in place need to be appropriate, integrated and flexible, and should promote cohesion and interaction. � Process and procedure � the processes and procedures adopted in an amalgamated tribunal need to capitalise upon the opportunities provided by amalgamation, as well as being appropriate, efficient and able to balance the needs of a range of stakeholders. � Organisational culture � an organisational culture which counters natural tendencies towards disjunction will assist members and staff to identify with a newly amalgamated tribunal and to implement initiatives that will improve its performance. � Leadership � effective leadership plays an important role in ensuring a smooth transition from specialist to amalgamated tribunal, and engendering commitment from members and staff. Broadly speaking, these factors fall into the four categories of law, context, organisation and people. It is argued that attention must be paid to all four of these ingredients in order to achieve optimal tribunal reform. The thesis tests this proposition by examining the three most advanced tribunal amalgamations so far, namely, the Commonwealth ART, the NSW ADT and VCAT in Victoria. It is argued that the fate of the Commonwealth ART proposal proves the importance of a solid, generally endorsed legislative foundation in creating a viable amalgamated tribunal. The importance of context, organisation and people is borne out by qualitative research into the amalgamation experiences in NSW and Victoria. The fact that the NSW and Victorian governments decided to pursue policies of amalgamation at the same time provided a unique opportunity to compare the success or otherwise of two concurrent attempts at amalgamation in different jurisdictions. This thesis finds that the unfavourable political context in NSW prevented the ADT from realising its potential. In contrast, the VCAT experience highlights the benefits of paying careful attention to the wide range of factors that can contribute to a successful amalgamation. Of most relevance are the initial scale of an amalgamation, the political �will� behind its implementation, the appointment of a core of full-time members, and the creation of an open institutional culture which facilitates the sharing of information. In short, the thesis concludes that the successful construction and consolidation of a tribunal post-amalgamation requires that the necessary ingredients of optimal tribunal reform � legislation, context, organisation and people � are thoughtfully addressed.
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Than, Tut. "The Court of Appeal decision in Accent Management Ltd v CIR [2007] NZCA 230 Statutory interpretation in New Zealand tax avoidance law : a thesis submitted to Auckland University of Technology in partial fulfillment of the requirements for the degree of Master of Business, 2007." Click here to access this resource online, 2007. http://hdl.handle.net/10292/416.
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Schijf, Bobbi, and n/a. "Assessing the effect of EIA : the influence of environmental effects information on resource consent decision-making in New Zealand." University of Otago. Department of Geography, 2006. http://adt.otago.ac.nz./public/adt-NZDU20070202.121126.
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Environmental impact assessment (EIA) was introduced to inform decision-makers of the potential environmental effects of the decision before them. It has been adopted worldwide and functions as one of the primary instruments for taking account of environmental consequences in project approval decision-making. To date, there has been very little systematic investigation that explores whether the decision-makers for whom the EIA information is produced actually use it, although there are indications that EIA information is not always effective in influencing decisions. This thesis examines how, and indeed if, environmental effects information influences the decision-making processes for which it is produced, and which factors determine the use of this information. Three main areas of concern are identified and investigated: the responses of individual decision-makers to environmental effects information; the characteristics of the effects information that influence these responses; and the processes by which the effects information is dealt with.
At the core of the methodology employed for this research is the development of an exploratory model of EIA-based decision-making. This model builds on the insights into decision processes from a variety of disciplines, including psychology and planning. To test the utility of the model, it is evaluated against the New Zealand system of resource consent approval decision-making under the Resource Management Act, by means of case studies. Through interviews, direct observation, and analysis of written documents the decision processes in these cases are analysed. These techniques have been augmented by psychosocial methods that allow further probing into the decision processes that takes place in a decision-maker�s head.
The research results show that the effort that is spent on the preparation of EIA reports and the improvement of EIA processes is not wasted. The EIA information clearly influences the decision processes for which it is intended but it is not influencing decisions optimally. EIA information often competes with information on environmental effects from other sources that is of higher quality, more credible, or better tailored to the decision-makers� information needs. A number of ways in which the use of EIA information could be enhanced is explored in this thesis. Foremost, the improvement of the effectiveness of EIA requires a wider adoption of a decision-making perspective on EIA, and a broader recognition of the information needs of the different decision processes for which EIA is prepared.
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Ririnui, Teneti, and n/a. "The recognition of Maori customary fisheries in New Zealand�s fisheries management regime : a case study of taiapure." University of Otago. Department of Geography, 1997. http://adt.otago.ac.nz./public/adt-NZDU20070530.143237.
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The Treaty of Waitangi specifically recognises the rights of Maori to control and manage their fisheries resources. However, since the imposition of fisheries legislation in New Zealand, this right has been consistently eroded. It is only recently that Maori customary fisheries rights have been given a degree of recognition in New Zealand�s fisheries management regime.
The taiapure provisions of the Fisheries Act 1996 are one of the few policy initiatives available for Maori to manage their fisheries resources in accordance with their customary tikanga. This study examines the effectiveness of the taiapure legislation in providing for Maori customary fisheries management. The Maketu taiapure in the Bay of Plenty is studied to analyse the implementation of the initiative at the local level.
The study has found that there are limitations inherent in the legislation and that these are further complicated by inadequacies in its implementation. Recommendations regarding the size, management and establishment process, are made at the conclusion of the study to highlight the amendments needed for the taiapure provisions to properly recognise and provide for the role of Maori, as Treaty partners, in the management of their local fisheries.
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Anderson, Lynley Carol, and n/a. "Stress fractures : ethics and the provision of sports medicine at the elite level in New Zealand." University of Otago. Dunedin School of Medicine, 2005. http://adt.otago.ac.nz./public/adt-NZDU20060911.150036.
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The provision of medical care to top-level athletes in New Zealand comes with a number of challenging ethical issues. Some of these arise out of the commercial interest present in sport that links sporting success with funding, sponsorship deals and media interest. The requirement that athletes stay at peak physical function in order to be successful can, at times, be at odds with concepts of well-being and good health. The employment structure under which doctors are engaged by teams and the employment contracts which define these relationships can be the source of divided loyalty for doctors. For example, sharing health information beyond the doctor-athlete relationship may be in line with contractual obligations, but at odds with what the athlete requests. Divided loyalties also exist when athletes wish to participate in sport despite high risk of harm. Here there is a difference between what the doctor understands as the athlete�s best interest, and the athlete�s consideration of best interest.
This thesis adopts two strategies for examining the area of sports medicine in elite athletes in New Zealand. The first section utilizes qualitative research. Sixteen sports doctors were interviewed and the data analysed. The next section involves normative reflection. Here two issues (where a range of behaviours were exhibited by participants) selected from the data are considered and discussion is presented on how doctors should respond to these issues. An examination of the level of guidance offered to sports doctors from the Australasian College of Sports Physician�s Code of Ethics follows. The level of guidance offered is considered inadequate and the thesis ends with a call to attend to these concerns.
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Goodwin, David Pell, and n/a. "Belonging knows no boundaries : persisting land tenure custom for Shona, Ndebele and Ngai Tahu." University of Otago. Department of Surveying, 2008. http://adt.otago.ac.nz./public/adt-NZDU20080807.151921.
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Aspects of customary land tenure may survive even where formal rules in a society supersede custom. This thesis is about persisting custom for Maori Freehold land (MFL) in New Zealand, and the Communal Areas (CAs) of Zimbabwe. Three questions are addressed: what unwritten land tenure custom still persists for Ngai Tahu, Shona and Ndebele, what key historical processes and events in New Zealand and Zimbabwe shaped the relationship between people and land into the form it displays today, and how do we explain differences between surviving customary tenure practices in the two countries? The research was based on in-depth interviews.
A key difference between the two countries was found to lie in the type and degree of security available over the years to Maori and Shona/Ndebele. Roots of security were found in the substance of the founding treaties and concessions, and thereafter in a variety of other factors including the help (or lack of it) offered by the law in redressing grievances, the level of intermarriage between settler and autochthon, the differing security of land rights offered in urban centres in the respective countries, demographic factors and the availability of state benefits. This research finds that greater security was offered to Maori than to Shona and Ndebele, and that this has reduced the centrality of customary practices with regard to land.
The research found that, in Zimbabwe, tenure security in the CAs is still underwritten by communities and that significant investment is still made in both living and dead members of those communities. Another finding is that land custom has adapted dynamically to meet new challenges, such as urban land and CA land sales. In New Zealand, investment in groups that jointly hold rights in MFL has, to some extent been eclipsed by the payment of rates and the availability of services (e.g. state-maintained boundary records and law enforcement mechanisms) and of benefits (e.g. superannuation, disability and unemployment). Land and community are not as closely linked to survival as they were in the past and, for many, they have come to hold largely symbolic value and less practical significance. Overall, it is the pursuit of security and �belonging� that have been the greatest influences on customary land tenure practices in the long term.
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Ward, Damen Andrew. "The politics of jurisdiction : 'British' law, indigenous peoples and colonial government in South Australia and New Zealand, c.1834-60." Thesis, University of Oxford, 2003. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.289016.
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Allard, Christina. "Two sides of the coin - rights and duties : the interface between environmental law and Saami law based on a comparison with Aoteoaroa/New Zealand and Canada /." Luleå : Luleå tekniska universitet/Industriell ekonomi och samhällsvetenskap/Samhällsvetenskap, 2006. http://epubl.ltu.se/1402-1544/2006/32/.
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Strack, Michael S., and n/a. "Rebel rivers : an investigation into the river rights of indigenous people of Canada and New Zealand." University of Otago. School of Surveying, 2008. http://adt.otago.ac.nz./public/adt-NZDU20081217.163025.
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In Canada and New Zealand there are increasing calls for recognition of aboriginal rights which previously were ignored or denied because of the application of English law to concepts of property rights and ownership. English legal principles are vitally important in Canadian and New Zealand society, but there has always been room for local adaptations which could have recognised the existing practices and rights of the indigenous peoples.
The English law makes various assumptions about ownership of rivers, dividing them into bed, banks and water, and applying various tests of adjoining occupation, tidalness and navigability to determine rights. Aboriginal property rights have been guaranteed and protected by various mechanisms such as government policy, treaty, and the courts, but there is uncertainty about the status of rivers. The form of the survey definition of reserves and rivers is also fundamental to how property rights may be determined. This thesis examines the situation of rivers in Canada and New Zealand through common law, treaty provisions and through what is now, a developing body of applicable and recognised customary/Aboriginal law. From these three legal foundations, a case study approach focuses on the practical situation of the Siksika people on the Bow River in southern Alberta, and the Kai Tahu on the Taieri River in Otago.
This investigation concludes that there are various legal mechanisms by which indigenous people may claim rights to the rivers with which they have a relationship; by resorting to English common law principles; by applying new and developing conceptualisations of customary and aboriginal rights doctrines; by appealing to tribunals examining treaty agreements; or by direct negotiation with the Crown. All of these processes require evidence of past and current relationships, use and occupation of rivers by the indigenous claimants. Current undisputed possession and control may be a satisfactory outcome, but ultimately an acknowledgement of ownership may depend on politically negotiated settlements.
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au, chuntly@parliament wa gov, and Colin Thomas Huntly. "In search of an appropriate analogy for sports entitites incorporated under associations incorporation legislation in Australia and New Zealand using broadly conceived corporate law organic theory." Murdoch University, 2005. http://wwwlib.murdoch.edu.au/adt/browse/view/adt-MU20070129.145203.
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Common lawyers are notoriously suspicious of legal theory. This is exemplified by the dearth of theoretical content in Australian corporate law debate. If the first sin of legal theory is to presume that it can offer a blueprint for actual decision-making and be a substitute for judicial and lawyerly wisdom, then surely it is an equal transgression to profess that judicial and lawyerly wisdom can for long elude criticism without a sound theoretical basis.
Reasoning by analogy is commonplace. This is as true in legal reasoning as in any other discipline. Indeed, it has been suggested that in the Australian legal context analogical reasoning is the very same judicial and lawyerly wisdom referred to above. In order to determine whether there is a true analogy, a number of legal scholars have suggested that a variety of potential known source analogues should be carefully analysed for their potential relevance to a less familiar target analogue lest an inapt analogy should lead one into error.
The modern trading company is widely regarded as an apt source analogue for resolving jurisprudential issues involving incorporated associations and societies. However the basis upon which this assertion is made has never been adequately elucidated. This thesis tests the hypothesis that the modern trading company is the most apt source analogue for developing a jurisprudence of incorporated associations and societies. This is achieved using a theoretical approach drawn from corporate realist theory that is informed by an epidemiological investigation of incorporated sporting associations and societies in Australia and New Zealand.
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Huntly, Colin T. "In search of an appropriate analogy for sports entitites incorporated under associations incorporation legislation in Australia and New Zealand using broadly conceived corporate law organic theory /." Access via Murdoch University Digital Theses Project, 2005. http://wwwlib.murdoch.edu.au/adt/browse/view/adt-MU20070129.145203.
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Harris, Rachael Caroline. "The changing face of co-governance in New Zealand – how are Ngāi Tahu and Ngāi Tūhoe promoting the interests of their people through power-sharing arrangements in resource management?" Thesis, University of Canterbury. School of Law, 2015. http://hdl.handle.net/10092/10792.
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Power sharing regimes in resource management, including co-governance and co-management schemes, are now common across New Zealand. These schemes bring together iwi and the Crown to facilitate various environmental objectives. These arrangements often utilise the tenants of tikanga Māori, in particular the concept of kaitiakitanga, and are generally provided for outside of the Resource Management Act 1991. This thesis shows how two iwi, Ngāi Tahu of the South Island, and Ngāi Tūhoe of Te Urewera in the central North Island, are utilising such schemes to promote the interests of their people. It explains that Ngāi Tahu have built up co-governance in a patchwork manner, utilising the provisions of their settlement to build three distinct co-management arrangements in Canterbury. The thesis shows that Ngāi Tahu have yet to gain full co-governance capacity, but may well have a future role at the table in regional Canterbury governance from 2016 onwards. In comparison, Ngāi Tūhoe have been granted a different kind of governance arrangement that arguably goes beyond co-governance. This governance arrangement is based off the fact that legal personality has been granted to Te Urewera, and will allow Ngāi Tūhoe to promote the interests of their people in a unique way. The thesis will show that the face of co-governance is changing, and the future face of such arrangements may well give iwi more control. However, that there are pitfalls associated with such resource management power sharing schemes that must be taken into account when planning for future arrangements.
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Rennie, Hamish Gordon. "A Geography of Marine Farming Rights in New Zealand: Some Rubbings of Patterns on the Face of the Sea." The University of Waikato, 2002. http://hdl.handle.net/10289/2525.
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Sustainable development of global marine resources has been the focus of various United Nations' agencies and coastal nations since World War II. As capture fisheries resources have come under pressure and perhaps reached their sustainable limit concern has been expressed over the ability to continue to meet the protein needs of expanding populations. One potentially significant contributor to addressing the food needs of the world is marine farming (mariculture). The expansion of marine farming in developing countries has been well-addressed in the literature, but marine farming in developed countries has received less attention. The traditional biophysical requirements of marine farming (sheltered clean water of appropriate depth) have led to conflicts with other users of the coastal environment. In the developed countries in particular, suitable sites are contested places of consumption (recreation, tourism) as well as production (capture fisheries). Moreover, the adjacent terrestrial land and water uses can significantly affect acceptability of marine farming. The avoidance of conflicts and the achievement of sustainable development in such settings are largely dependent on the systems of governance. In developed countries, these are often articulated through planning regimes and associated 'rights'. The global terrestrial planning response in the first two thirds of the 20th Century was dominated by a modernist approach to planning. In the later stages, a post-modern challenge coincided with the rise of neo-liberalism in many developed countries. Planning in New Zealand has shown a similar pattern. The extent to which modern, postmodern and neo-liberal approaches might have been manifest in the marine environment, especially with regard to marine farming, has received little attention. In most developed countries there has been an institutional separation between terrestrial and marine administrative agencies that has resulted in conflict between these agencies and between the regimes they work within and help create. Integrated Coastal Management emerged as a response to this situation and had become the dominant planning regime for coastal resources by the last decade of the 20th Century. It was largely uncritically promoted and accepted, especially by United Nations and coastal state government agencies. These themes provide the broad theoretical and practical context for this thesis. Since the 1970s, there has been a revolutionary break in New Zealand's resource management from a centralized command and control style of modernist planning to a neo-liberal, planning regime characterised by elements of modernism and postmodernism. Concurrently it has revamped, but failed to integrate, coastal and fisheries management and planning. Ironically, each of the resulting primary marine resource management statutes (the Resource Management Act 1991 (RMA) and the Fisheries Act 1983/1996 (FA83/96)) is considered to implement a world-leading model. Marine farming lies at the interface between the regimes created by these and preceding Acts and the nature of the regimes is explored in relation to marine farming. The development of the regimes and the rationale for them is set out with the aid of Scott's (1989, 2000b) axial model of the characteristics of a property right. The thesis groups the development of the New Zealand planning regimes for marine farming into four era: pre-modern (1866-1964), proto-modern (1964-1971), modern (1971-1991), and transitional (1991-2001). The evolution of the industry is shown largely to follow a generalized model of the industry in developed countries. This suggests that the nature of the property rights available for marine farming in New Zealand is not of great significance in the general development of the industry. The planning regime, however, significantly affects the spatial pattern of development of the industry. An analysis of provisions for marine farms in various plans suggests quite different planning 'styles' and approaches have been adopted in different parts of the country at different times. A Geographic Information System of all individual marine farms in New Zealand is developed to the stage where it can be combined with other data to investigate the spatial patterns that have evolved in New Zealand. A typology of patterns of farm arrangement in relation to other farms is apparent from the resultant mapped information. These patterns are shown to represent the outcomes of a combination of competing rights and the responses of and to the contemporaneous planning regimes. The consequences of adopting different styles of planning are apparent. This macro-level research is extended to the micro-level by an exploration of variables affecting the individual farmer's locational decisions. A national postal questionnaire survey of marine farm owners yielded 148 usable responses (32% response rate). Inferential statistical analytical tools were used to test the significance of relationships between particular variables. Multivariate analyses were used to cluster the respondents and the variables and to search for latent factors. These analyses supported field interview findings with regard to the importance of particular variables, especially planning regimes in directing the location and nature of marine farming. The results enabled development of a descriptive model for exploring and comparing the quality of different means of acquiring marine space for marine farming. The analyses also confirmed that significant changes were occurring within the structure of the industry. Analysis of the field interviews, maps, policy documents, Environment Court decisions and other secondary material shows the major capture fishing companies are increasingly dominating the industry. There was a notable presence of a category of 'entrepreneur site developers' exploiting the neo-liberal nature of the planning regimes of the 1990s to open up new areas for marine farming on scales unprecedented in the rest of the world. The consequent race for space has met with stiff resistance from the capture fishing industry, but more especially from the recreational sector. This has led to significant transaction costs. The Government response, a partial moratorium on marine farm development in November 2001, is shown to emulate the modernist command and control style of planning of twenty years earlier and to signal a failure of neo-liberal ideology to meet the needs of the industry and the public at large.
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Barrington, Jane. "Shapeshifting prostitution and the problem of harm : a discourse analysis of media reportage of prostitution law reform in New Zealand in 2003 : a thesis submitted to AUT University New Zealand in partial fulfilment of the requirements for the degree of Master of Health Science, 2008." Click here to access this resource online, 2008. http://hdl.handle.net/10292/471.
Full textAbstract:
Interpersonal violence and abuse in New Zealand is so widespread it is considered a normative experience. Mental health nurses witnessing the inscribed effects of abuse on service users are lead to consider whether we are dealing with a breakdown of the mind or a breakdown in social or cultural connection (Stuhlmiller, 2003). The purpose of this research is to examine the cultural context which makes violence and abuse against women and children possible. In 2003, the public debate on prostitution law reform promised to open a space in which discourses on sexuality and violence, practices usually private or hidden, would publicly emerge. Everyday discourses relating to prostitution law reform reported in the New Zealand Herald newspaper in the year 2003 were analysed using Foucauldian and feminist post-structural methodological approaches. Foucauldian discourse analysis emphasises the ways in which power is enmeshed in discourse, enabling power relations and hegemonic practices to be made visible. The research aims were to develop a complex, comprehensive analysis of the media discourses, to examine the construction of harm in the media debate, to examine the ways in which the cultural hegemony of dominant groups was secured and contested and to consider the role of mental health nurses as agents of emancipatory political change. Mental health promotion is mainly a socio-political practice and the findings suggest that mental health nurses could reconsider their professional role, to participate politically as social activists, challenging the social order thereby reducing the human suffering which interpersonal violence and abuse carries in its wake.
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Carter, David Bernard. "Crossing the wires : the interface between law and accounting and the discourse theory potential of telecommunications regulation : a thesis submitted to the Victoria University of Wellington in fulfilment of the requirements for the degree of Doctor of Philosophy in Accounting /." ResearchArchive@Victoria e-Thesis, 2008. http://hdl.handle.net/10063/1048.
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Taylor, Nicola J., and n/a. "Care of children : families, dispute resolution and the Family Court." University of Otago. Children's Issues Centre, 2006. http://adt.otago.ac.nz./public/adt-NZDU20060810.120428.
Full textAbstract:
This study explored family members� experience of, and satisfaction with, New Zealand Family Court dispute resolution processes concerning children�s care arrangements following parental separation. A qualitative method was employed, using individual interviews with 22 parents and 8 children from 15 families, in three court districts, during 2001-2002. Follow-up interviews were also conducted with the parents one year later to assess the factors affecting compliance with their agreements and court orders. Focus groups were held with 16 Family Court professionals (lawyers, counsellors, specialist report writers and judges) in two cities to obtain their views on the family members� perspectives.
Sociocultural and ecological theories, the sociology of childhood and the UNCRC provided the conceptual basis for the research. Historical developments in child custody and divorce laws, which provided the impetus for the establishment of Family Courts internationally, have also been reviewed.
Each parent was legally represented, with 87% of the families also attending Family Court counselling and judge-led mediation conferences. Defended hearings occurred in 27% of the cases. Family members reported a broad range of views about their legal and court experiences. They valued their interactions with professionals who took an interest in them and their children, provided clear information and support, let them have their say, and competently managed the dispute resolution processes. Dissatisfaction was frequently expressed with the conduct of ex-partners and with professionals� styles of practice, particularly where these involved erratic or uncompromising attitudes and adversarial tactics. The desire to respond to what was written in an ex-partner�s affidavit escalated some parenting disputes onto a litigation pathway. Delay, cost, gender bias, lack of enforcement of court orders, and inadequate opportunities to feel heard, understood and respected were also identified as problems associated with Family Court proceedings. Earlier access to a wider range of information, support and conciliation services was recommended, together with more post-order explanation and support.
The professionals wanted a stronger emphasis on the Family Court as a court of law, rather than a social agency. A clearer demarcation between the court�s conciliation and adjudication functions was considered necessary to avoid clients having unrealistic expectations of the Family Court. Family members� therapeutic needs were important, but thought best met within community-based agencies.
The children were aware of their parents� court proceedings and most wanted the opportunity to play a more direct role in the decision about their future living arrangements.
Significant or modest changes had occurred in 60% of the families by the time of their follow-up interviews. Some changes had led to a reversal in the original care arrangements, while others had impacted upon the frequency of a child�s contact with their non-resident parent.
A new conceptual model for the resolution of post-separation parenting disputes has been developed. This integrates the theoretical framework underpinning the study with the international research evidence on the impact of parental separation and the principles and practices of an effective child-inclusive and culturally responsive family law system.
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Bär, Alida Lucia. "Recent Developments in South African Consumer Insolvency Law - An analysis of the National Credit Amendment Act 7 of 2019 and its possible impact on the economy, taking into account the experiences of the British, New Zealand and German legal systems." Master's thesis, Faculty of Law, 2020. http://hdl.handle.net/11427/32199.
Full textAbstract:
A key challenge of the present is the growing number of consumer debtors, often caused by easy access to credit. Especially for people on low incomes, even an unforeseen event can lead to a situation in which credit rates can no longer be serviced. The result is insolvency. However, in the past many jurisdictions were not prepared for the challenges of low income insolvency. It was not until more recent times that legislators began to develop special insolvency procedures tailored to people with low incomes. This comparative research presents the insolvency proceedings of South Africa, in particular the recently introduced low income insolvency proceedings, and compares them with those of New Zealand, Great Britain and Germany, whereby Germany is the only one of these countries without a low-income insolvency procedure. It is established that each of these proceedings has advantages and disadvantages. It is also noted that despite the existence of insolvency proceedings, the number of consumer debtors continues to rise. Therefore, in addition to a proposal for insolvency proceedings combining the feasible aspects of each of the legal systems presented, it is also proposed to teach financial literacy at school in order to prevent over-indebtedness.
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Heite, Martin. "Privacy, Constitutions and the Law of Torts: a Comparative and Theoretical Analysis of Protecting Personal Information Against Dissemination in New Zealand, the UK and the USA." University of Canterbury. Law, 2008. http://hdl.handle.net/10092/2955.
Full textAbstract:
The New Zealand Court of Appeal has recently acknowledged the existence of a freestanding tort of invasion of privacy in Hosking v Runting. The tort is in its infancy and the courts are still grappling with essential problems, the most prominent of which is the conflict with countervailing interests in freedom of speech. In need of guidance, the courts turn to overseas authorities, predominantly from the United Kingdom and the United States of America. The commonly found descriptive nature of the comparison invites a broader analysis of these jurisdictions. In this thesis, I offer a theoretically informed comparative law analysis of New Zealand's new tort with the American public disclosure of private facts tort and the British extended breach of confidence action. In all three jurisdictions, the conflict of privacy with individual and societal concerns in freedom of speech has led to an exten-sion of (quasi-) constitutional norms derived, for instance, from the New Zealand Bill of Rights Act 1990 into the common law sphere – the horizontal effect. The horizontal application of constitutional rights poses significant legal problems to the common law, because it has learned to deal with duties rather than rights. The time has come to re-consider the nature of rights in both constitutional and tort law. The comparison shows that New Zealand has effectively adopted two torts – one following the duty-based lead of the United States of America and an alternative modelled along the lines of the more rights-orientated British law. The law of the United Kingdom and the USA differ to a degree that calls their comparability into question. I present the preferable British ap-proach as a 'constitutionalised common law tort of privacy.' The results also show that this model represents a competitive third way to traditional solutions based on common law or statute by means of utilising a statutory human rights instrument as an analytical framework for the common law.
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Huntly, Colin Thomas. "In search of an appropriate analogy for sports entitites incorporated under associations incorporation legislation in Australia and New Zealand using broadly conceived corporate law organic theory." Thesis, Huntly, Colin Thomas (2005) In search of an appropriate analogy for sports entitites incorporated under associations incorporation legislation in Australia and New Zealand using broadly conceived corporate law organic theory. PhD thesis, Murdoch University, 2005. https://researchrepository.murdoch.edu.au/id/eprint/83/.
Full textAbstract:
Common lawyers are notoriously suspicious of legal theory. This is exemplified by the dearth of theoretical content in Australian corporate law debate. If the first sin of legal theory is to presume that it can offer a blueprint for actual decision-making and be a substitute for judicial and lawyerly wisdom, then surely it is an equal transgression to profess that judicial and lawyerly wisdom can for long elude criticism without a sound theoretical basis.
Reasoning by analogy is commonplace. This is as true in legal reasoning as in any other discipline. Indeed, it has been suggested that in the Australian legal context analogical reasoning is the very same judicial and lawyerly wisdom referred to above. In order to determine whether there is a true analogy, a number of legal scholars have suggested that a variety of potential known source analogues should be carefully analysed for their potential relevance to a less familiar target analogue lest an inapt analogy should lead one into error.
The modern trading company is widely regarded as an apt source analogue for resolving jurisprudential issues involving incorporated associations and societies. However the basis upon which this assertion is made has never been adequately elucidated. This thesis tests the hypothesis that the modern trading company is the most apt source analogue for developing a jurisprudence of incorporated associations and societies. This is achieved using a theoretical approach drawn from corporate realist theory that is informed by an epidemiological investigation of incorporated sporting associations and societies in Australia and New Zealand.
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Huntly, Colin Thomas. "In search of an appropriate analogy for sports entitites incorporated under associations incorporation legislation in Australia and New Zealand using broadly conceived corporate law organic theory." Huntly, Colin Thomas (2005) In search of an appropriate analogy for sports entitites incorporated under associations incorporation legislation in Australia and New Zealand using broadly conceived corporate law organic theory. PhD thesis, Murdoch University, 2005. http://researchrepository.murdoch.edu.au/83/.
Full textAbstract:
Common lawyers are notoriously suspicious of legal theory. This is exemplified by the dearth of theoretical content in Australian corporate law debate. If the first sin of legal theory is to presume that it can offer a blueprint for actual decision-making and be a substitute for judicial and lawyerly wisdom, then surely it is an equal transgression to profess that judicial and lawyerly wisdom can for long elude criticism without a sound theoretical basis.
Reasoning by analogy is commonplace. This is as true in legal reasoning as in any other discipline. Indeed, it has been suggested that in the Australian legal context analogical reasoning is the very same judicial and lawyerly wisdom referred to above. In order to determine whether there is a true analogy, a number of legal scholars have suggested that a variety of potential known source analogues should be carefully analysed for their potential relevance to a less familiar target analogue lest an inapt analogy should lead one into error.
The modern trading company is widely regarded as an apt source analogue for resolving jurisprudential issues involving incorporated associations and societies. However the basis upon which this assertion is made has never been adequately elucidated. This thesis tests the hypothesis that the modern trading company is the most apt source analogue for developing a jurisprudence of incorporated associations and societies. This is achieved using a theoretical approach drawn from corporate realist theory that is informed by an epidemiological investigation of incorporated sporting associations and societies in Australia and New Zealand.
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O'Driscoll, Stephen James, and n/a. "Conduct of counsel causing or contributing to a miscarriage of justice." University of Otago. Faculty of Law, 2009. http://adt.otago.ac.nz./public/adt-NZDU20090506.091357.
Full textAbstract:
The Crimes Act 1961 and the New Zealand Bill of Rights Act 1990 provide that a person accused of a criminal offence in New Zealand has the right to be represented at trial by counsel. The purpose of representation by counsel is to protect the accused�s interests; ensure that the accused is able to present their defence to the Court; ensure that the accused receives a fair trial; and ensure that the accused is not the subject of a miscarriage of justice.
It is implicit that criminal defence counsel must be competent if they are to be effective advocates on behalf of their clients. If counsel is not competent, there is a risk that counsel�s acts or omissions may cause or contribute to a miscarriage of justice.
The Crimes Act 1961 allows an accused to appeal against their conviction on the basis that they have been the subject of a miscarriage of justice through the conduct of their counsel. The thesis analyses the Supreme Court decision of R v Sungsuwan that sets out the test that an appellate court must consider when deciding to allow an appeal based on the conduct of counsel.
The thesis examines 239 Court of Appeal decisions between 1996 and 2007 that have considered appeals from jury trials where at least one of the grounds of appeal was that defence counsel caused or contributed to a miscarriage of justice. The thesis notes the increasing trend to use "conduct of counsel" as a ground of appeal. In 1996 there were 4 appeals; in 2006 there were 43 such appeals and in 2007 there were 29 appeals.
During the period under review the Court of Appeal allowed the appeal and specifically held that counsel�s conduct, either alone or in combination with other grounds, caused or contributed to a miscarriage of justice in 41 cases. The thesis analyses the common complaints made by an accused against trial counsel and the common areas where the Court of Appeal upheld complaints against counsel.
The thesis takes into account the Lawyers and Conveyancers Act 2006 and the Lawyers and Conveyancers (Lawyer: Conduct and Client Care) Rules 2008 that came into existence on 1 August 2008. The new legislation places particular emphasis on the obligations of counsel to uphold the rule of law and to facilitate the administration of justice in New Zealand. Counsel also has an obligation to protect the interests of their clients.
The thesis concludes that the plethora of cases coming before the Court of Appeal, and the number of appeals allowed by the Court, demonstrate defence counsel do not always protect the interests of their clients and can cause or contribute to a miscarriage of justice.
The thesis makes a number of recommendations that may reduce the risk of both an accused appealing on the basis on the conduct of counsel and an appeal being allowed on the basis of the conduct of counsel. In particular, it is suggested that there should be greater degree of co-operation between the New Zealand Law Society and the Legal Services Agency to ensure the maintenance of high standards among criminal defence lawyers.
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Mersinis, Themistoklis G. "The case for contractual solutions in third party pure economic loss : a comparative review of the law in Germany, Greece, the United States, Scotland, England, Australia, Canada and New Zealand." Thesis, University of Edinburgh, 1998. http://hdl.handle.net/1842/26773.
Full textAbstract:
The purpose of this thesis is to examine third party loss in a number of jurisdictions. Third party loss is the loss suffered by persons not party to a contract as a result of the violation of a contractual obligation. Compensation poses a problem when the violation is careless as opposed to intentional and the loss that is caused is purely economic. The starting point of this work is German law where, in order to protect third parties, two contract-based mechanisms have been judicially developed, because the law of delict, based on a system of restrictively enumerated, statutory delicts, provides no protection for pure economic loss. The two mechanisms are Drittschadensliquidation and contract with protective effects vis-á-vis third parties concerns the violation of protective duties which do not concern performance, affecting personal, property, and/or financial interests of the third party not related tot he performance. The mechanisms were developed mainly in the course of the present century and have expanded to numerous applications, for instance: indirect agency; expert opinion, including valuators' and auditors' liability; attorney liability; liability for services, works, medical treatment. The mechanisms, debated vigorously by theorists, are remarkable examples of judicial law-making. The mechanisms of German law, their applications, the theoretical bases, the relationship between them and the judicial activism that led to their formulation are presented and analysed. In Greek law, where the law of delict is based on a general clause and not on enumerated delicts, protection in delict for pure economic loss probably exists. Therefore, as in a similar system, that of France, third party loss is not a distinct, pressing problem. On the other hand, there are certain doubts whether delictual protection is certain or whether it is the best option. Thus the possibility of contractual solutions is worth examining, even if only to reject their relevance to Greek law. In American law, in comparison to other common law jurisdictions, more efficient protection for third parties exists. The third party beneficiary rule, a contractual mechanism to confer benefits to non parties, has expanded impressively. Moreover, liability in tort for pure economic loss is more extended than elsewhere in the common law world but, nevertheless, is substantially deficient. It is argued that contract could expand to cover cases of third party (pure economic) loss and that this is the most viable and preferable way for improvement. Despite the existence of a general clause in delict and the jus quaesitum tertio (a means to confer benefits on non parties by contract), Scots law is seriously handicapped in dealing with pure economic loss cases due to the influence of English law. It is argued that the Scots law of pure economic loss is not identical to English law and that reform by increasing the role of the contract is desirable and manageable, provided the necessary judicial determination is present. Among Commonwealth major systems, Canadian, Australian, New Zealand and English laws, the latter stands as an exception, clinging to traditional doctrines and applying, with few exceptions, an exclusionary rule to pure economic loss claims. In the other jurisdictions, otherwise so closely connected, the law is distinctly different. It is difficult to evaluate this different approach to pure economic loss. Commonwealth systems should also contemplate reform tending towards encouraging contract-based approaches. Most likely, this reform will require more than judicial law-making. The conclusion focuses principally on the desirability of an increased role for contract in third party loss cases, on the advantages of a more unified civil liability system - a system with greater intechangeability between contract and delict - and on the importance of judicial assertiveness in the process of keeping the law up-to-date and responding to new social needs.
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Alrajaan, Turki. "The Saudi Arbitration Law 2012 assessed against the core principles of modern international commercial arbitration : a comparative study with the model law and Scots law." Thesis, University of Stirling, 2017. http://hdl.handle.net/1893/28039.
Full textAbstract:
Following the Aramco arbitration in 1963, Saudi Arabia’s approach to international arbitration resulted in a reputation for being an arbitration unfriendly country. This was addressed to some extent by the Arbitration Law of 1983. However, arbitration under the 1983 law remained dependent on the approval of the national courts. With too much scope for judicial intervention, the legal framework undermined the final and binding nature of the award, constrained party autonomy and created inefficient delays. In 2012, a new Law of Arbitration was passed to replace the 1983 law with a legal framework intending to meet the needs of international commercial parties. The question addressed by this thesis is whether the Arbitration Law of 2012 (SAL 2012) succeeds in creating a legal framework that is consistent with the three core principles that provide the foundations for modern international commercial arbitration. These core principles of party autonomy, procedural justice and cost-effectiveness were used as normative tools for assessing the provisions of the SAL 2012, which were based on the UNCITRAL Model Law. Relying on those principles, the SAL 2012 was subjected to a comparative legal analysis, using the Model Law and the Arbitration (Scotland) Act 2010 as comparators. Although hampered by a lack of available case law involving the SAL 2012, the analysis concluded that the SAL 2012 is a very significant development, providing a legal framework that facilitates arbitration, encourages a pro-arbitration culture and achieves a balance between the three core principles that should meet the needs of international commercial parties. Despite this, the law could be further reformed to make Saudi Arabia even more attractive as a location for arbitration. While acknowledging that future reform should be guided by empirical research on arbitration in Saudi Arabia, proposals were made for the further development of a pro-arbitration legal framework.
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Ma, Yan. "Raising half the sky work-life balance of Chinese female administrative workers : a thesis submitted to Auckland University of Technology in partial fulfilment of the requirements for the degree of Master of Business (MBus), 2008 /." Click here to access this resource online, 2008. http://hdl.handle.net/10292/501.
Full textAbstract:
In recent years, a growing body of research has examined the issue of work–life balance (WLB). WLB initiatives have been developed by organisations, not only to aid employees in leading healthier and more satisfying lives, but to attract and retain talent. One area where WLB issues have not been examined in detail is from the perspective of Chinese immigrant women. As one of the largest and growing Asian ethnic groups, the WLB issues faced by Chinese women are especially worthy of being examined and addressed. The primary purpose of this research was to explore the WLB experience of Chinese women in administrative roles at Auckland University of Technology (AUT). It also aims to contribute to the body of knowledge on WLB issues for minority ethnic groups and investigated Chinese women’s coping strategies for integrating work with their non-work roles. An exploratory qualitative case study approach was adopted for this study in order to compare and contrast organisational initiatives and policies for WLB with women’s experiences. A triangulated research design was also employed to glean qualitative data by virtue of multiple methods including archival evidence such as publicly available documentation, secondary research on WLB and AUT’s WLB policies, and semi-structured interviews. This study involved 12 Chinese female administrative staff and three staff members from the Human Resource Department (HRD), the Asian Staff Network (ASN) and the AUT Branch of Tertiary Institutes Allied Staff Association (TIASA). Participants were recruited by utilising sources such as the Asian Staff Network (ASN) and the researcher’s network of contacts within AUT. The findings of the study indicated that Chinese women’s WLB experience and ways of handling work–family conflict (WFC) and family–work conflict (FWC) were affected by their experiences of immigration and cultural backgrounds. In particular, their family situation had a critical influence on the way they organised their households and arranged for childcare or eldercare. Child/elder care responsibilities, personal/family emergencies, and personal/individual sacrifice engendered tensions around their ability to integrate WLB. In addition, work factors such as heavy workloads, meeting deadlines, and working longer hours, and cultural barriers caused emotional stress and physical consequences. While informal support from managers and colleagues and the WLB policies offered by the university helped women address their WLB issues, some policies were underutilised. A variety of coping strategies such as family members, win-lose strategies, time management, building clear boundaries, changing mindsets, and demonstrating commitment were actively adopted by Chinese women as mechanisms to cope with tensions between their work and family lives. The implications of these findings are discussed in light of the theory and practice of WLB.
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Wunderlin, Beverly J. "The Regulation of Medically Assisted Procreation in Europe and Related Nations and the Influence of National Identity, Social Cultural, and Demographic Differences." Thesis, University of North Texas, 2002. https://digital.library.unt.edu/ark:/67531/metadc3192/.
Full textAbstract:
This study details the Medically Assisted Procreation regulations in thirty-five nation-states, and explores the influence of national identity, social cultural and demographic differences on these regulations. Detailed data were gathered from ministries of health, offices of prime ministers, embassy staff, and others on regulations for each nation. These data were used to categorize the nations in regard to MAP legislation status and regulatory policy regarding marital or age restrictions; posthumous conception; sperm, ovum, or embryo donation, surrogacy; and policy on handling donors. Possible associations between national identity, social cultural, and demographic data for each nation and their regulations were explained. The thirty-five nations were treated as a population with common geographical and political ties. PRE methods, and eta coefficients were used to assess the associations. Sixteen nations have adopted MAP legislation, eight nations have either alternative regulatory guidelines or partial structures, four nations have legislation pending and possibly some laws, and seven nations are unregulated. Based upon statistical analysis, language group emerges as an important indicator for differences in MAP regulations. For example knowing a nation's language group enabled percent improved prediction of that nation's regulatory handling of embryo donation. The percent GDP spent on health care was found to have a substantial or moderate association with most regulations. The findings of this study indicate that the cultural roots associated with national identity as well as economic circumstances such as health care budgets impact the policy making process responsible for the regulation of MAP in Europe. Among other mediating circumstances, MAP related family law cases brought to the European Court of Human Rights create an accumulation of judge-made law, which help create a common European standard. This study of the European region provides a baseline for further research and a reference for cross cultural comparisons.