LegalResearchFoundation

Since the Human Rights Review Tribunal's 2015 decision in Hammond v Credit Union Baywide humiliation, loss of dignity and injury to feelings under the Privacy Act 1993 has developed as one of the most generous heads of compensation available in New Zealand for non-pecuniary losses. The current approach to quantifying damage emphasises the blameworthiness of defendants and other external factors rather than the impact of privacy breaches on the complainant. That approach is likely to continue under the materially identical Privacy Bill. It is suggested that this approach misapplies the compensatory provisions of the Act and has led to compensation awards that are considerably more generous than those available for emotional harm in other contexts, including the damages available in tort for invasion of privacy. The awards available suggest that complainants will increasingly claim under the Act even where other causes of action are available. The impact of Hammond has also been felt in analogous fields, particularly human rights and, to a lesser extent, employment law, which have responded to the increased awards under the Act by adopting the Hammond methodology and, to some extent, increasing the compensation awards made.

In Attorney-General v Taylor, the Supreme Court held that courts have the jurisdiction to issue declarations of incompatibility when legislation is found to be inconsistent with the New Zealand Bill of Rights Act 1990. This article first offers explanations for why the Court chose this case, arising out of the disenfranchisement of prisoners, to finally establish the jurisdiction to issue declarations of incompatibility. It then discusses the ramifications of the establishment of this jurisdiction for the legal system, as well as for understandings of the Bill of Rights Act in the comparative constitutional law literature.

The wheel clamping of vehicles by private entities was until very recently unregulated in New Zealand. Its legality is still largely determined by common law principles of contract, tort and self-help. This article addresses two main issues: (1) under what circumstances (if any) is wheel clamping lawful; and (2) where it is unlawful, is the motorist entitled to remove the clamp by force? Prima facie, the act of placing a clamp on another's car is both a trespass and a conversion. I argue that this is subject to two defences: contractual agreement and implied consent. Both depend on the presence of signage warning of clamping. The commonly cited self-help remedy of distress damage feasant, however, is unlikely to be available. Finally, where a motorist has been clamped unlawfully, they will be justified in removing the clamp by force only if it is reasonable and proportionate to do so.