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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Browsing AUT Law School by Title

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    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.
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    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.
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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.
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    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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    Cambodia: Emergency Laws Raise Concerns About Human Rights
    (Humanitarian and Development Research Initiative (HADRI). Penrith, NSW: Western Sydney University, 2020-06-18)
    The Corona Virus Disease 2019 (COVID-19) pandemic has affected every state and territory on earth, including those where there are as yet no cases of infection. Some states have recorded mass infection and crippling death rates, while others have witnessed much more moderate effects. In some states early intervention, social distancing and restrictions on movement have led to promising signs that infection may be under control, while in other states governments reacted differently and have experienced horrendous social and economic damage. The first part of this collection presents short case studies (snapshots) that detail the situation in a particular state or territory up until 31 May. Cases are drawn from Oceania, Southeast Asia, North Asia, South Asia, the Americas, the Middle East, Europe and Africa. Each state represented in this collection discusses the specific ways in which governmental authorities have attempted to deal with the COVID-19 pandemic, including the steps they have taken to slow the spread of infection, and to mitigate the effects of government imposed restrictions on movement and work on their economies. The second part of the collection examines the effects of COVID-19 related policy changes in states for specific vulnerable groups, including domestic violence survivors, undocumented migrant workers, refugees, health care workers, and those trafficked into slavery. This edited collection represents the work of over 50 academic and professional contributors across the world, linked through their research connections to the Humanitarian and Development Research Initiative at Western Sydney University.
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    Can International Human Rights Law Smash the Patriarchy? A Review of ‘Patriarchy’ According to United Nations Treaty Bodies and Special Procedures
    (Springer, 2021-04-01) Mudgway, C
    This article interrogates whether and how the concept of ‘patriarchy’ is used by UN human rights treaty monitoring bodies (treaty bodies) and special procedures to interpret state obligations to respect and ensure women’s human rights. There are two key points that arise out of this study: first, that several treaty bodies and special procedures purposely and consistently use the concept of ‘patriarchy’ when discussing women’s human rights, and second, that although not all treaty bodies and special procedures have referred to the terms ‘patriarchy’ or ‘patriarchal’, an examination of those that have reveals a marked difference in how the terms are used by treaty bodies when compared with special procedures. While treaty bodies render the meaning of ‘patriarchy’ as being synonymous with certain harmful practices, such as female-genital mutilation (FGM), special procedures utilise ‘patriarchy’ as a system of power, permeating every facet of society. In this article I will argue that the current state of dissonance between the understandings of ‘patriarchy’ by treaty bodies and special procedures creates an unnecessary ambiguity that does nothing to advance gender equality. Furthermore, utilising a nuanced understanding of patriarchy, as articulated by intersectional and anti-essentialist feminist scholars, would potentially equip treaty bodies and special procedures for more meaningful interpretation of rights themselves, and greater protection of women’s human rights.
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    Care of Children Act 2004: Continuation of Cultural Assimilation
    (Victoria University of Wellington Library, 2023-12-06) Cleland, Alison
    This article argues that the cultural assimilation of Māori family forms, originating in colonial private family laws, continues under the Care of Children Act 2004 (COCA). It finds that the opportunity to draft a law that was respectful of tikanga Māori and te Tiriti o Waitangi was lost when legislators ignored all the critiques of the operating principles and processes of the Pākehā legal system, provided by Māori during the 1980s and 1990s. The article argues that cultural assimilation continues through court decisions, since COCA principles require priority to be given to parents, with a corresponding marginalisation of whānau, hapū and iwi. The article concludes that incremental reform would be unlikely to achieve legislation that is fit for a bicultural Aotearoa New Zealand. It advocates for a transformational Māori-led family law reform process, guided by te Tiriti o Waitangi/the Treaty of Waitangi and by tikanga Māori.
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    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.
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    Climate change law and policy: litigation, negotiations, prospects
    (Courts of New Zealand, 2014-04-12) Rive, VJC
    No abstract.
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    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.
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    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.
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    He Ture Kia Tika - Let the Law Be Right
    (Auckland University of Technology, 2023-10) Black, Stella; Thom, Katey; Burnside, David; Hastings, Jessica; White, Shane; McKenna, Brian; Tumoana, Jeremy; Cannon, Tracey; Burke, Martin; Brookbanks, Warren; Exeter, Daniel; White, Thomas; Tua, Rob; Haitana, Jason; Lampshire, Deborah; Turner, Shelley
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    He Ture Kia Tika/Let the Law Be Right: Informing Evidence-Based Policy Through Kaupapa Māori and Co-Production of Lived Experience
    (Bristol University Press and Policy Press, 2022-03-09) Thom, K; Black, S; Burnside, D; Hastings, J
    Background: Ninety-one per cent of Aotearoa New Zealand prisoners have been diagnosed with either a mental health or substance use disorder within their lifetime. Challenges exist in how to meet their needs. Diverse pūrākau (stories) of success in whānau ora (wellbeing) and stopping offending are missing from academic and public discourse that should direct law and policy changes. Aims and objectives: We describe a kaupapa Māori co-production project called He Ture Kia Tika/Let the Law be Right. We highlight how kaumātua (Māori indigenous elders), academics, and practitioners merged their voices with people with lived experiences of mental health, addiction, and incarceration to create justice policy and solutions. Methods: We focus on the theory and application of our co-production, directed by kaupapa Māori methodology. We describe the work of a co-design group that actively guides the project, from inception towards completion, using rangahau kawa (research protocols) as culturally clear guidelines and ethically safe practices. We then detail our processes involved in the collection of co-created pūrākau (storytelling) with 40 whānau (family) participants, and describe our continued collaboration to ensure law and policy recommendations are centred on lived experiences. Findings: Kaupapa Māori informed co-production ensured rangahau kawa (research protocol and guidelines) were created that gave clear direction for an engagement at all levels of the project. We see this as bringing to life co-production, moving beyond theory to the practicalities of ‘being’ and ‘doing’ with each other in safe, ethical ways for all. Discussions and conclusions: A strong association exists between unmet mental health needs and reoffending. Tackling cultural, health, social and justice issues requires a multi-layered approach from a range of rangatira (leaders including kaumātua/elders) and tohunga, or experts, of their lived experiences to inform future policy and law reform.
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    Indigenising Private Law: Lessons from Samoa
    (Matthew P Harrington, 2023-01-10) Fa’amatuainu, Bridget
    Legally pluralistic societies such as Samoa face a challenge: the legacy of colonialism, including in law-school curricula. In 2019, the National University of Samoa delivered its first Customary Adjudication programme with core topics including Legal Professional Ethics and Customary Law—a programme that I helped design and deliver. However, for the time being, indigenous law remains virtually non-existent in law-school curricula. This paper critically reviews the existing framework for the teaching of private law in Samoa and discuss how law schools could incorporate indigenous private law to a greater degree. It explores approaches adopted in the Pacific to review and reform local private law, while not pedagogical in nature, it carries potential for informing the integration of indigenous materials into the design and delivery of private- law papers. Accordingly, this paper represents a concrete contribution to the ongoing process of decolonisation in the Pacific region.
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    Introduction to volume 6
    ( International Contemporary Ethnography Across the Disciplines (CEAD), 2023-07-24) Lisahunter; Fortin Cornejo, Moira; Thom, Katey
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    Knowledge, Attitudes and Practices Towards Fetal Alcohol Spectrum Disorder Among Lawyers in New Zealand
    (Informa UK Limited, 2024-01-08) Chu, JTW; Wilson, H; McCormack, JC; McGinn, V; Brookbanks, W; Bullen, C
    Fetal alcohol spectrum disorder (FASD) is a developmental disability that can cause difficulties with communication, emotional regulation and executive function, making people with FASD vulnerable to adverse involvement within the criminal justice system. Justice professionals’ knowledge and attitudes of FASD is critical to identifying appropriate responses, management and sentencing in the justice system. This research aims to understand the FASD knowledge, attitudes and practices among lawyers working in the justice sector in Aotearoa, New Zealand. We conducted an online survey on the awareness, knowledge and beliefs of FASD, experience and professional practice with FASD of justice professionals working in the justice sector in New Zealand. Of the 56 participants, most were lawyers. All participants were aware of FASD but had gaps in their knowledge and few felt well prepared to support someone with FASD. There is a need to develop policies, training and support for lawyers, around FASD.
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