AUT Law School

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https://hdl.handle.net/10292/10765

The AUT Law School primary objective is to be a centre of excellence for law and humanities research in New Zealand. The school has particular research strength in; Corporate Governance, Insurance Law, Family Law, Employment Law, Sports Law, Wills and Estates, and Media Law.

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An empirical study of demographics of perceptions of tax evasion in New Zealand
(CCH Australia; Monash University, Faculty of Business and Economics, Department of Business Law and Taxation, 2009) Gupta, R
For the first time in New Zealand, this study investigates the relationship between perceptions of tax evasion as a crime and a comprehensive set of demographic variables in New Zealand. A questionnaire survey was administered to 315 respondents in the Auckland region. This research analyses the association between demographic variables and the perceptions of tax evasion using analysis of variance and analysis of correlation variance techniques, rigorous data analysis techniques that enable reliable inferences to be drawn from the study. The findings reveal that the most significant variables that affect tax evasion are education level, employment status, gender, residential location of the respondent, the audit of an income tax return by the Inland Revenue Department, first language and status as a tax professional. The results suggest that to address tax evasion the Inland Revenue Department should target taxpayers with some (or all) of the following characteristics: a low level of education, male, self-employed, those who have not been audited in the past, those who live in rural urban areas, those whose first language is English and those who are tax professionals.
Structuring trusts to deflect attack
(Society of Trust and Estate Practitioners (STEP), 2012-10-24) Dervan, H
This paper discusses the various statutory and common law methods for attacking trusts, the ways to structure trusts to minimise the risks of attack and alternative structures to protect the interests of clients.
The relevance of taxpayers' constitutional rights in the light of revenues' powers of search and seizure
(Commercial Law Department, The University of Auckland, 2013-01-23) Gupta, R
For the first time in New Zealand, this article investigates the role that the New Zealand Bill of Rights Act 1990 has played in New Zealand taxation case law. To determine this, the article analyses the interaction of the New Zealand Commissioner of Inland Revenue’s powers of search and seizure under ss 16 and 17 of the Tax Administration Act 1994 and s 21 of the Bill of Rights Act 1990. The article demonstrates that the absence of constitutional rights in New Zealand, constitutional entrenchment and the inclusion of s 4 in the Bill of Rights Act 1990 have accounted for differing outcomes in the courts.
A precautionary approach to compulsory licensing and tempering the data exclusivity obstacle for access to medicines
(University of Liverpool, 2013-04) Lim, PH; Li, P
This article takes up further on a framework developed for a precautionary approach (PA) which developing countries should adopt for granting compulsory licences in a national health emergency. Working within the legal mechanism of the precautionary framework developed from the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) under the World Trade Organization (WTO) and the Agreement on Trade-Related Intellectual Property (TRIPS), the PA redefines a framework for compulsory licensing based on an adequate margin of safety when there are reasonable grounds for concern about uncertain risks that significant harm to human life and health may occur. The rationale adopted is based on legitimate differential treatment, precaution and risk management for a prescriptive, moderate and least restrictive measure to trade to enable access to medicines. Compulsory licensing under the TRIPS Agreement was developed as a buffer for tempering patent protection and health to “allow for other use of the subject matter of a patent without the authorisation of the right holder” subject to certain conditions. The August 2003 Doha Declaration and subsequent TRIPS amendments for all member countries to be eligible to import provided a breakthrough for access by poorer countries to cheaper generic drugs. The chilling effect of the waiver is shrouded by obvious reticence on the part of developing countries to adopt the WTO language of “national emergency” and “extreme urgency” as a condition for compulsory licensing. The bold efforts by Thailand and Brazil in issuing compulsory licences in 2007 were adopted on grounds of “public non-commercial use” and “public interest”. An objective mechanism to trigger the grant of compulsory licensing would not leave developing member countries at the mercy of possible trade retaliation and sanctions that results only in price reduction bargains instead of a proper use of the inbuilt flexibilities under Article 31(f) of the TRIPS Agreement. In addition to the patent obstacle, data exclusivity under the ambiguous Article 39.3 of the TRIPS Agreement poses another obstacle for access to medicines and the production of generic drugs even under compulsory licensing. Such regulatory protection of undisclosed pharmaceutical test data and the application of confidentiality to test data submitted by pharmaceutical companies so as to be able to obtain marketing approval of the products creates a data monopoly. It prevents the marketing of generic drugs even though the patent licences may have been granted by the government as generic drug manufacturers are unable to access the data. The authors query the obligation set out under Article 39.3 and consider the question of an implicit data exclusivity exception. The authors further argue holistically from a human rights perspective that a wider application of the precautionary approach to temper data exclusivity as a justification for disclosure in a public health emergency would enhance its prescriptive value. This article contemplates a parallel approach to overcome the issue of data exclusivity in the international trade and intellectual property regimes once a precautionary approach is adopted for compulsory licensing.
Rights against unreasonable search and seizure in tax: Canadian and New Zealand approaches compared
(Thomson Reuters, 2013-09-02) Gupta, R
This article investigates the role that the New Zealand Bill of Rights Act 1990 has played in New Zealand taxation case law and provides a comparison with the role played by the Canadian Charter of Rights and Freedoms 1982 in Canadian taxation cases. To determine this, the article analyses the interaction of the New Zealand Commissioner of Inland Revenue’s powers of search and seizure under ss 16 and 17 of the Tax Administration Act 1994 and s 21 of the Bill of Rights Act 1990 and compares it to the interrelation of the Canadian Minister of National Revenue Agency’s powers of search and seizure under s 231 of the Income Tax Act 1985 (Canada) and the Charter of Rights and Freedoms 1982. The article demonstrates that, notwithstanding some differences in the prescribed search and seizure measures in the respective jurisdictions, real difference between two countries is the assessment of what counts as reasonable and unreasonable search and seizure.
Safe harbours, closed borders? New Zealand legal and policy responses to climate displacement in the South Pacific
(Te Piringa - Faculty of Law, Hamilton, New Zealand, 2014-02-01) Rive, VJC
It is expected that by the mid-late century, large numbers of people facing increased environmental, economic and other pressures associated with climate change will respond by leaving their homes and communities to relocate elsewhere. Low-lying island states in the South Pacific such as Tuvalu and Kiribati are commonly cited as nations expected to be in the vanguard of a wave of climate-related migration. With existing strong cultural and economic ties with other South Pacific nations, it would be natural to expect New Zealand’s support role to flow into proactive planning, and legal and policy provision for responding to the effects of climate change in the Pacific. To an extent, this expectation has been met, however New Zealand’s position on the more contentious aspect of climate change adaptation within the Pacific: whether, and to what extent, New Zealand would be willing to open its borders to climate change-displaced persons in the region less clear. It is concluded that to date, despite rhetorical support for its Pacific neighbours, the New Zealand government has not actively engaged with legal, policy or practical implications of likely significant future flows of climate change-related migration to its shores.
Climate change law and policy: litigation, negotiations, prospects
(Courts of New Zealand, 2014-04-12) Rive, VJC
No abstract.
Accounting for Risk: The Advent of Capped Conveyancing Title Insurance
(LexisNexis, 2015) Thomas, R; Griggs, L; Low, R
Title insurance companies originating from America, have, in the past 15 years become part of the Australian conveyancing landscape. However for most residential freehold owners, their activities would be a mystery. A purchaser does not routinely obtain title insurance, with the companies presently focussing on servicing the mortgagee sector. While the lack of penetration in the residential purchaser market may be attributed to the consumer’s lack of knowledge, evidence from Ontario and New Zealand illustrates that title insurance is likely to become an additional cost in the conveyancing process in Australia. In this article we highlight the reasons why, and demonstrate how title insurers have, by working with the legal profession been able to subtly move the risk of responsibility for compensation for loss, (at least in the first instance) from the state to the insurer, but with the added benefit for the state and the conveyancing agents that the cost of the insurance is ultimately borne by the consumer. In New Zealand this development is being accelerated by the introduction of capped conveyancing title insurance. Whether title insurance will become part of the conveyancing process is no longer the relevant question for Australia, (it undoubtedly will), but the unknown issue is just how title insurance companies will work with conveyancing agents to infiltrate the market, and what response this infiltration will have in terms of the state’s view as to their continued role in the provision of assurance. We suggest that developments from New Zealand in relation to capped conveyancing insurance are likely to be replicated in Australia in the near future, and that the state’s role in providing an assurance fund will continue, though the state may seek to expand the areas in which the right to compensation is restricted.
The changing face of conveyancing responsibility
(Thomson Reuters, 2015-12-01) Thomas, R; Griggs, L; Low, R; Edgeworth, B; Sherry, C; OConnor, P
Issues arising out of the introduction of Automation into Australasian conveyancing.
Teaching the Virtues of Sustainability As Flourishing to Undergraduate Business Students
(Southern Public Administration Education Foundation (SPAEF), 2016-05-30) Grant, P; McGhee, P
Business leaders have a major influence over the achievement of a truly sustainable world; however to do this such leaders need knowledge, which can provide them with convictions that alter both their individual behaviour and their approach to business. Unfortunately in most business schools sustainability is presented as just another strategy for maximising profits. This article describes an undergraduate sustainability course for business students which has transformative potential. Students are exposed to the neo-classical worldview underlying business-as-usual and are challenged to examine what needs to change to reach the goal of sustainability-as-flourishing. More importantly students are helped to draw their own conclusions about the implications of this change for them personally. The uniqueness of this course lies in the fact that students are given the means and tools to action change by introducing them to a virtue ethics framework. This framework provides a blueprint for how individuals can contribute to achieving sustainability as flourishing through the daily practice of virtue and the inspiration of moral exemplars.
The Supreme Court and the Conventions of the Constitution
(LexisNexis Canada, 2017) Sirota, L; Harrington, M
Conventions are among the most important rules of the Canadian constitution. Yet orthodox legal theory does not recognize them as being rules of law, a view which the Supreme Court of Canada endorsed in the Patriation Reference. Nevertheless, both before and after the Patriation Reference, the Court's jurisprudence engaged with existing or alleged constitutional conventions. This article reviews this jurisprudence, and the scholarly commentary that responded to it. It concludes that the Court's endorsement of the orthodox view that there exists a rigid separation between conventions and law was poorly justified, and ought to be abandoned.
Was the Supreme Court Right to Change the Law on the Right to a Speedy Trial?
(The Centre for Constitutional Studies, University of Alberta, 2017) Sirota, L
In R v Jordan, the Supreme Court of Canada held, by a 5-4 majority and over the vigorous disagreement of the concurrence, that criminal prosecutions in which a trial does not conclude by a set deadline will be presumed to breach the right to be tried within a reasonable time, protected by section 11(b) of the Canadian Charter of Rights and Freedoms. The acceptable length of proceedings set out in the decision is of 18 months from the day charges are laid for cases that proceed without a preliminary inquiry, and 30 months otherwise. The Crown can still show that exceptional circumstances outside of its control have arisen and can explain — and excuse — a case taking longer than that, but unless it does so, a stay of proceedings will be the automatic consequence of such delay. Meanwhile, an accused will be able to show that delay below these ceilings is unconstitutionally unreasonable, but only by demonstrating not only that the delay is “markedly” greater than reasonable, but also that he or she diligently sought to have the case heard sooner.
Researching Ngā Kōti Rangatahi –Youth Courts on Marae: Koia te Hāngaitanga?: That’s the Right Way?
(Wilf Malcolm Institute of Educational Research (WMIER), 2017) Black, SA; Kidd, J; Thom, K; Mills, A; McIntosh, T; Quince, K
Researching in a complex-cultured space that exists to help vulnerable young people has illuminated both tensions and rare insights for our research team. The project aimed to explore Ngā Kōti Rangatahi,[1] which are youth courts that take place on marae (tribal meeting places). The focus of this paper is the preliminary work spanning five years that needed to take place to ensure the protection of young people and for the research to find its place within, between and across spaces occupied by Māori,[2] the pākehā[3] legal system and both pākehā and Māori academic research conventions. The work we needed to do before we could begin the work of researching included doing the work of forming the right team, whakawhanaungatanga (building relationships), making time for kanohi kitea hui (face to face meetings) and the development of the research questions. At the same time, we attempted to walk two paths cognisant of the need of doing things the right way. One was exacting and was based on meeting the orthodox written legal, ethical and academic requirements to conduct research. The other, can be viewed as pragmatic and its unwritten less structured and rule like approach more flexible and adaptable but equally exacting in determining how marae engagement and consultation should be carried out (Gallagher 2008). This paper offers insights into the strengths and challenges of developing a uniquely kaupapa Maori methodology for conducting research within a marae domain when it is occupied by a foreign legal concept.
More v Roper: A Comment on Lawrence Solum’s Defence of Originalism
(DPCE, 2017) Sirota, L
Constitutions can be seen either as defensive mechanisms for protecting liberty, as suggested by the metaphor of entrenchment, or as weapons to eliminate injustice, as suggested by the metaphor of striking down unconstitutional legislation. In his statement on originalism in support of then-Judge Gorsuch’s appointment to the Supreme Court of the United States, Lawrence Solum eloquently defends the former, defensive view, and argues that originalist interpretation is more consonant with it than living constitutionalism. This comment supports Professor Solum’s position by reference to some Canadian cases in which living constitutionalism could have been, has arguably been, or may well become a source of danger to the rights and liberties of citizens.
Using Spiritual Intelligence to Transform Organizational Cultures
(Business and Organization Ethics Network (BON), 2017-02-01) McGhee, P; Grant, P
Recently spirituality has become a viable topic of discussion for management scholars seeking a means to enhance work cultures and improve organisational effectiveness. However, the path from spirituality to transforming organisational culture is not immediately obvious. Fortunately, several authors have developed frameworks that provide connections. In particular, the notion of spiritual intelligence (SI hereafter) is helpful. This paper begins by describing spirituality and SI in the context of organisational transformation. It then details research involving working professionals that sought to answer the question: “How (and why) might SI transform organisational culture to be more ethical?” It concludes with discussion and implications of developing and practicing SI in organisational contexts.
Constitutional conflict and the development of Canadian aboriginal law
(The University of Notre Dame Australia Law Review, 2017-12-01)
This paper argues that aboriginal rights in Canada have been greatly affected by 19th Century governmental and social conflicts within the Canadian colonial state. These conflicts, largely over the ownership of land and regulatory authority between the federal government and the provinces, especially Ontario, necessarily impacted aboriginals on the ground while colouring how their legal claims were recognized and implemented. The judicial decisions regarding these disputes the courts assumed colonialist and essentializing assumptions about the nature of indigenous life, settler-indigenous relations and state sovereignty which led to a depreciation of the legal rights and aboriginal sovereignty historically evidenced in state-aboriginal interaction from the first English settlement of North America. The result was that prior to 1982, the legal efficacy of treaty rights, the scope of aboriginal rights recognised by the courts and an expansive legally protected notion of indigenous sovereignty was severely circumscribed or non-recognised in law. Subsequently, the rights now protected under sec. 25 of the Constitution Act 1982 are more restricted than the text of the section would suggest.
Cryptocurrencies and Consumer Rights in New Zealand: Risky Business?
(Elsevier, 2018) Ayoubi, L
Analysis of the technological, legal, socio-economical, and ethical implications of cryptocurrencies is quickly producing a vast and often interdisciplinary body of literature.Depending on its perceived nature, different set of laws would be applicable to a cryptocurrency and the goods and services associated with it. This article focuses on the consumer rights aspect of trade in cryptocurrencies in New Zealand. The aim of the article is to provide an analysis of the application of existing consumer rights protection laws to users of cryptocurrencies. The analysis is built on the manner in which cryptocurrencies are currently treated for legal purposes in New Zealand.
What Makes a 'Good' Conference from a Service User Perspective
(Northumbria University Library, 2018-03-19) Gledhill, K; Gordon, S
This article started with a question from one academic wearing an editor’s hat to another academic wearing an academic service user’s hat: conversing about a conference both had attended, the question asked was about the features that make conferences ‘good’ from a service user perspective. The question led to the comments that form Part II of this article. We then decided that we should combine resources and examine what the Convention on the Rights of Persons with Disabilities 2006 (CRPD) has to say about the matter, identifying the normative framework of rights in the context of academic conferences that belong to those who attend in the context of experiencing psychosocial/mental impairment which in interaction with attitudinal and environmental barriers cause them to experience disability; and the corresponding obligations on conference organisers and/or those who regulate the situation and so might be required to impose obligations on conference organisers. This material, in Part III, is followed by some final reflections and thoughts as to good practice. The context in which our arguments are framed is academic conferences on mental health and mental capacity law. Although our reference to ‘service user’ is therefore limited, some of our contentions can no doubt be applied to people experiencing other forms of disability and to conferences of a different type. These wider points are not a concentration in this article, but only because it was conceived and written with a more specific focus. Naturally, we are not suggesting that persons experiencing psychosocial or intellectual disabilities will only be interested in conferences on mental health and mental capacity matters, or that people experiencing other forms of disability will not have an interest in such conferences.
Review: Melbourne Social Equity Institute, 'Unfitness to Plead and Indefinite Detention of Persons with Cognitive Disabilities'; and Justice, 'Mental Health and Fair Trial'
(Northumbria University Library, 2018-03-19) Gledhill, K
Anatomy of an international norm entrepreneur: The friends of fossil fuel subsidy reform
(Cambridge University Press, 2018-08-31) Rive, V
This comprehensive volume provides the first book-length account on the politics of fossil fuel subsidies. This title is also available as Open Access.

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