LegalResearchFoundation

This article discusses the obligations assumed by New Zealand under the 2015 free-trade agreement (FTA) with Korea, in the context of New Zealand’s participation in an evolving investment treaty regime. It finds that, consistent with the trend towards greater liberalisation and protection of foreign investment in New Zealand’s FTAs, the investment obligations under the agreement with Korea are generally more extensive than those assumed by New Zealand under its earlier agreements, but less extensive than the investment obligations in the more recent Trans-Pacific Partnership Agreement. The international regime for regulating foreign investment is undergoing a period of reflection, in view of sustained criticism of the nature of the protections it affords to foreign investors. The investment chapter in the FTA with Korea contains several safeguards which are intended to respond to such criticism, preserve policy space for governments, and improve perceptions of the legitimacy of the investment treaty arbitration process. The effectiveness of some safeguards is open to question. The article also questions whether the role of domestic courts is sufficiently recognised.

The retention of DNA from suspects and convicted offenders has potential societal benefits, including: identification and ruling out of potential suspects; matching to “cold cases”; and deterrence of individuals from crime. Developments in technology have led to the rapid expansion of state-controlled databanks, containing individuals’ intrinsically personal information. New Zealand has had such a databank since the mid-1990s, but legislative reforms have expanded its remit considerably. This article considers the conceptual and operational issues relating to the retention of DNA in New Zealand and makes recommendations on the ambit and governance of the databank.

In Ministry of Health v Atkinson, a group of parent caregivers and their disabled adult children brought a claim against the government under the New Zealand Bill of Rights Act 1990. The allegation was that a policy of not paying family members to care for their disabled loved ones constituted unjustified discrimination in breach of s 19. The plaintiffs succeeded at the Human Rights Review Tribunal, the High Court and at the Court of Appeal. The government responded by enacting legislation that effectively overruled the courts and prevented similar claims from being brought in future. In this article, I argue that the courts contributed to this constitutional crisis because their approach in Atkinson was flawed. Section 19 has been interpreted too broadly, so that it now captures all sorts of legitimate government policy-making it was never designed to reach. At the s 5 stage, the courts subjected the government to too high a standard of review given the circumstances of the case, and overemphasised shortcomings in the Ministry's decision-making processes when the focus of s 5 is on substantive justification. I conclude that New Zealand's discrimination jurisprudence is badly in need of revision, and suggest some ways forward.