New Zealand Law Review - Published Issues - 2013 - Issue 2

Issue 2

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Table of Contents

  • From "The Same Offence" to "The Same Facts" — The Criminal Procedure Act Suddenly Strengthens the Pleas of Previous Conviction and Previous Acquittal
    By

    The Criminal Procedure Act 2011 has dramatically altered the criteria for a valid plea of previous conviction or previous acquittal. This article explores the ways in which the changes introduced by the Act will result in these pleas assuming far greater importance in the practice of criminal law in New Zealand than has hitherto been the case.

  • Limitation of Liability in Maritime Law and Vessel-Source Pollution: A New Zealand Perspective
    By Bevan Marten

    This article discusses the interaction between New Zealand's marine pollution liability regime, which is divided between the Resource Management Act 1991 (RMA) and the Maritime Transport Act 1994 (MTA), and the country's maritime limitation of liability regime. The former encompasses both criminal and civil avenues for the recovery of clean-up costs and other pollution-related losses, notably by way of RMA enforcement orders. The latter is primarily based on the 1976 Convention on Limitation of Liability for Maritime Claims, which caps shipowners' liability for a range of maritime claims, including those involving pollution damage. In addition to arguing that the current division of the pollution liability regime between the RMA and MTA is unhelpful and needs to be revisited, the article examines the interface between the 1976 Convention and domestic law regulating liability for pollution damage. In particular it analyses the issue of what constitutes a "claim" under art 2 of the Convention, in the context of both criminal and civil proceedings.

  • Australasian Torrens Automation, Its Integrity, and the Three Proof Requirements
    By Rod Thomas, Rouhshi Low, Lynden Griggs

    New Zealand and Australia are leading the world in terms of automated land registry systems. Landonline was introduced some ten years ago for New Zealand, and the Electronic Conveyancing National Law (ECNL) is being released over the next few years in support of a national electronic conveyancing system to be used throughout Australia. With the assistance of three proof requirements, developed for this purpose, this article measures the integrity of both systems as against the old, manual Torrens system. The authors take the position that any introduced system should at least have the same level of integrity and safety as the originally conceived manual system. The authors argue both Landonline and ECNL, as presently set up, have less credibility than the manual system as it was designed to operate, leading to the possibility of increased fraud or misuse.

  • Enforcing Financial Markets Law in New Zealand
    By Phillipp Maume, Gordon Walker

    The focus of this article is the enforcement powers of New Zealand's new financial markets conduct regulator, the Financial Markets Authority (FMA). The article traces a shift from an enforcement regime reliant on private enforcement towards a robust public enforcement regime, and considers some of the implications of that shift. In the process, an overview of the enforcement debate is provided. Taking a cue from the scholarship on responsive regulation and the concept of "enforcement pyramids", it compares the enforcement regime prior to the establishment of the FMA to the new framework. In particular, the article discusses the extended regime for enforceable undertakings, the FMA's power to commence or take over civil proceedings, the infringement notice regime, the licensing regimes for financial intermediaries, and civil and criminal liability under the upcoming Financial Markets Conduct Act. The article concludes that New Zealand has finally moved from a light touch regulatory approach towards an enforcement regime that should facilitate a responsive, proactive approach to regulation.

  • Conflict of Laws
    By Elsabe Schoeman

    It has been a while since the last review of conflict of laws developments in New Zealand. In attempting to resurrect review of this area of the law this reviewer was faced with a number of choices: Should the review try to capture as much as possible from the last ten years or so? Should the review focus on a single topic in depth? Should the review only focus on recent reforms? In the end, on a balance of justice and convenience, I decided to adopt a via media approach. This review focuses on the most important recent reform, the new High Court Rules, which reaches back in time to address some significant problems and uncertainties that had arisen in this area of cross-border litigation over the last couple of decades, while also flagging other recent reforms and developments with a view to the future.

  • Restitution
    By Jessica Palmer

New Zealand Law Review Published Issues