LegalResearchFoundation

The New Zealand judiciary is a vital constitutional institution, and its legitimacy depends on maintaining public confidence. Yet there is a significant degree of public-facing ambiguity about what, or who, that institution includes. This article surveys the ways in which the judiciary and its constituent members are presented and regulated by the New Zealand government in the wake of the 2016 courts reforms. Senior judges have dominated regulatory and critical attention, reflecting their particular constitutional role, but a concern with the legitimacy of judicial power requires a broader focus. The discussion therefore extends from "inferior" judges to various nonjudge and non-court adjudicators, including in the tribunal system, as potential candidates for inclusion in the modern judiciary. It considers evidence for and against their inclusion, in and beyond the current statute book, and invites critical reflection on whether conventional understandings of the judiciary as "the judges" may be increasingly under-inclusive.

The aim of this article is to point to a flaw in one of the measures recently enacted by the New Zealand Government to prevent tax avoidance by large multinational enterprises (MNEs). That measure is s GB 54 of the Income Tax Act 2007, which was added to the Act in July 2018 and which is aimed at what is referred to as "the artificial avoidance of permanent establishment status". The problem with s GB 54 is that it seems to be a nullity, in the sense that it does not catch anything that would not in any event be caught by s BG 1, the general anti-avoidance rule or GAAR. But it is also possible that the courts, in order to salvage s GB 54 from complete redundancy, will read down the scope of the GAAR. Perversely, therefore, the enactment of s GB 54, intended to prevent one particular form of tax avoidance, might make it easier to get away with others.

Thirty years after its enactment, the application of the New Zealand Bill of Rights Act 1990 (NZBORA) in judicial review proceedings remains an area of the law that is both confused and confusing. That state of affairs exists despite the best efforts by a range of commentators to provide clarity and direction. In this article, the author examines the history of the NZBORA in administrative law, from the days of heady optimism in its infancy, to the inertia that soon set in and remains today. It outlines those various commentators' approaches, recent developments in the area, and provides a critique of the seemingly omnipresent judicial reticence to adopting any one particular approach when navigating the NZBORA's relevance to administrative law.

Young adults are increasingly recognised as a distinct group, both in society and in the context of the criminal justice system. This article explores the evidence which highlights the distinct characteristics of young adults, and the principle supporting differential treatment of this age cohort. Consideration is given to the existing provisions that cater for young adults, including the newly established Young Adult List Court. Particular focus is given to assessing the efficacy of discounts provided for age under the Sentencing Act 2002. Two potential conceptual models for reform are canvassed. Processes and responses available under the current youth justice system may be extended where appropriate; such an approach has been adopted by several overseas jurisdictions. Alternatively, a distinct "third system" may be established with procedures and outcomes developed specifically for young adults.