LegalResearchFoundation

Since the abolition of the provocation defence New Zealand no longer has any partial defences to murder. Nonetheless this article notes that the majority of (the small number of) cases in which battered defendants have been charged in respect of the homicide of their abusive partners since then have resulted in a manslaughter conviction. This outcome is technically supported by an understanding that the defendant lacked the mens rea for murder. The article goes on to examine the sentencing judgments in such cases for what they reveal about how the facts of such cases — and particularly how facts involving intimate partner violence — are constructed and responded to.

The New Zealand judiciary is increasingly willing to give literal effect to legislative provisions that seek to limit or exclude judicial review. Analysis of case law spanning the last century suggests that this not a product of a shift in judicial attitude but instead a reflection of the fact that modern privative provisions say different things, and speak in a very different context, to their historical counterparts. The administrative reforms effected from the late 1960s and the proliferation of statutory appeal routes by which administrative decisions can be challenged have lessened the role that review must play, at least in some contexts. As a result, there has been a move away from reliance on the concept of jurisdiction and nullity-based reasoning, and a corresponding willingness to interpret literally those provisions that limit review and provide for other oversight of administrative decision-making. In some contexts, however, privative provisions threaten more strongly the rule of law values by which the judiciary is oriented. The same is true when an alleged error is particularly egregious. In such instances, and in contrast to the mainstream approach, judges resort to jurisdictional or nullity-based reasoning. The judicial approach to privative provisions is thus inconsistent and, to the extent that nullity-based reasoning is used, at odds with contemporary theories of decision-making. The conclusion drawn is that a new, more conceptually coherent, justification for the judicial approach to privative provisions needs to be posited.

Statutory licensing schemes are proliferating as a means of regulating commercial activity, resource exploitation and activities harmful to the environment. Statutes often declare that entitlements are non-transferable or are transferable only with approval or subject to conditions. Some entitlements, such as resource consents issued under the Resource Management Act 1991 (NZ), are declared not to be property. Despite these statutory declarations, entitlements are often held to be transferable in equity or to be property for the purposes of resolving private disputes. Recently, in Greenshell New Zealand Ltd v Tikapa Moana Enterprises Ltd, the High Court of New Zealand indicated that a resource consent was property that could support a claim for relief against forfeiture, continuing the trend in earlier cases that appear to depart from the statute. In this article we examine the juridical treatment of entitlements in private law. We identify factors influencing the courts’ enforcement of private arrangements which may circumvent the statutory intent. Our analysis will guide legislators in the design of provisions to implement new schemes.