LegalResearchFoundation

The Terrorism Suppression (Control Orders) Act 2019 establishes a regime of judicially imposed control orders, devices that subject particular individuals to restrictions on their liberty outside of the criminal justice process. This article discusses the impetus for the control order legislation, namely the need to have a means of dealing with certain returnees from the Syrian Civil War, as well as the legislation's key features, which are derived from equivalent laws in the United Kingdom and Australia. The article also considers whether the legislation might breach certain rights under the New Zealand Bill of Rights Act 1990. The overall picture that emerges is that a considerable responsibility and burden is being placed on the courts to remedy, or at least mitigate, the rights concerns that might arise through the operation of this piece of permanent counterterrorism legislation.

This article evaluates s 17GB of the Tax Administration Act 1994, which grants the Commissioner of Inland Revenue a new power to obtain information for a purpose relating to tax policy development, and Inland Revenue's High-Wealth Individuals Research Project. It considers the purpose of s 17GB, the process by which the government inserted the provision into the Tax Administration Act 1994, and its scope and effect. It also considers the aims of the High-Wealth Individuals Research Project, its methodology and timeline, and the risks its administration poses. This is worth doing for three reasons. First, the government inserted s 17GB into the Tax Administration Act 1994 through an undesirable legislative process. It undermined the Generic Tax Policy Process and resulted in a defective legislative provision. Secondly, Inland Revenue relies on the authority of s 17GB to gather data for the High-Wealth Individuals Research Project. If s 17GB is flawed, there is a risk that the administration of the project will similarly be flawed. Thirdly, the data that Inland Revenue collects may be of great significance to the future of New Zealand's tax policy development, and scrutiny of the project's administration may improve its efficacy.

This article sets out what can be said about how negligence standards operate in the criminal law in Aotearoa New Zealand today. It is suggested that three principles can be gleaned from the case law: that the reasonable person against whom the defendant is measured is placed in the defendant's circumstances as those circumstances are known to them; that the reasonable person is unaffected by the defendant's personal characteristics; and that the defendant's subjective recklessness is relevant in determining whether their negligence was criminal. Whilst the first principle is incontrovertible if negligence is to be a standard of moral fault, the last two principles are more controversial. The article concludes by setting out some of the further questions that these principles raise but do not answer. For example, what is the criteria for differentiating between personal characteristics and circumstances, particularly in relation to circumstances that change people?

Two recent Supreme Court cases have prompted a reassessment of the role of interpretive presumptions in New Zealand constitutional law. In D v New Zealand Police and Fitzgerald v R a majority of the Court in each case used an interpretive presumption to displace apparently clear legislative intent and uphold fundamental norms. This strong use of interpretive presumptions is traditionally controversial because it challenges a Diceyan interpretation of parliamentary sovereignty. This article critiques aspects of these Supreme Court decisions from a different perspective. It argues that presumptions of consistency are best understood as devices that promote substantive rather than formalistic reasoning by resisting empty incantations of sovereign legislative authority. But over-reliance on strong interpretive presumptions can replace one type of formalism — and one set of incantations — with another. The cases display limited engagement with the specific legislative policies implicated and the relationship of those policies with constitutional fundamentals. This is concerning because it risks perpetuating an approach that avoids rather than embraces substantive constitutional adjudication. Future use of strong presumptions should be more firmly rooted in substantive constitutional analysis.