Victoria University of Wellington law review最新文献_第10页

Disability Rights and Compulsory Psychiatric Treatment: The Case for a Balanced Approach under the Mental Health (Compulsory Assessment and Treatment) Act 1992 残疾人权利和强制精神病治疗:根据1992年《精神健康(强制评估和治疗)法》采取平衡办法的案例

Victoria University of Wellington law review Pub Date : 2021-06-27 DOI: 10.26686/vuwlr.v52i1.6851

Toni Wharehoka

引用次数: 0

Fearn v Board of Trustees of the Tate Gallery: A Lost Opportunity for the UK's Protection of Physical Privacy 芬恩诉泰特美术馆董事会:英国人身隐私保护失去的机会

Victoria University of Wellington law review Pub Date : 2021-06-27 DOI: 10.26686/vuwlr.v52i1.6840

Aidan Economu

{"title":"Fearn v Board of Trustees of the Tate Gallery: A Lost Opportunity for the UK's Protection of Physical Privacy","authors":"Aidan Economu","doi":"10.26686/vuwlr.v52i1.6840","DOIUrl":"https://doi.org/10.26686/vuwlr.v52i1.6840","url":null,"abstract":"The inadequacies of English common and statutory law have left a noticeable gap in the UK's protection of physical privacy. Mann J's 2019 decision in Fearn v Board of Trustees of the Tate Gallery helped fill this gap as it acknowledged that overlooking between neighbours could constitute an actionable nuisance. A year later, the Court of Appeal reversed this development and reaffirmed that private nuisance cannot be used to combat breaches of privacy. This article evaluates the extent to which the High Court decision in Fearn was a useful and desirable tool for defending physical privacy in order to assess the correctness of the appellate decision. The article contends that Mann J's extension was a justified development as it conformed with precedent, the scheme and principles of private nuisance, the text and horizontal effect of art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, cases decided in the European Court of Human Rights, and broader policy. However, the article acknowledges that Fearn was also a problematic development with limited potential as a protection mechanism. Its limitations arose from the conflict between traditional understandings of the right to privacy and nuisance's association with property, the land-based rationale for compensation in nuisance, the standing restrictions retained from Hunter v Canary Wharf Ltd, irregularities with the common law's favourable attitude towards children's privacy, and Fearn's similarities to anti-harassment legislation. Overall, the article concludes that although Fearn was imperfect in its treatment of physical privacy, it was a step in the right direction and contributed at least partially to filling the persistent lacuna in English privacy law.","PeriodicalId":426444,"journal":{"name":"Victoria University of Wellington law review","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131628761","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Building a Secure Fence and a Well-Functioning Ambulance Reforming New Zealand's Natural Disaster Insurance Scheme 建设安全围栏和运行良好的救护车改革新西兰自然灾害保险计划

Victoria University of Wellington law review Pub Date : 2021-06-27 DOI: 10.26686/vuwlr.v52i1.6848

Hanna Malloch

{"title":"Building a Secure Fence and a Well-Functioning Ambulance Reforming New Zealand's Natural Disaster Insurance Scheme","authors":"Hanna Malloch","doi":"10.26686/vuwlr.v52i1.6848","DOIUrl":"https://doi.org/10.26686/vuwlr.v52i1.6848","url":null,"abstract":"This article proposes reform to New Zealand's natural disaster insurance scheme in anticipation of The New Zealand Treasury's (Treasury) 2021 review of the Earthquake Commission Act 1993. The Canterbury Earthquake Sequence of 2010–2011 revealed many shortcomings in New Zealand's dual-insurance model, outlined in the March 2020 Public Inquiry into the Earthquake Commission. Recent changes in the private insurance market have aggravated these problems, notably, increasing premiums and a move to sum-insured policies. This article explores the lesser known background to the unique EQC system and examines the fundamental reasons for this public system. It aims to establish the most effective natural disaster insurance scheme for New Zealand, holding that retaining the dual-model approach is preferable. However, fresh reforms are necessary. Five reforms are proposed: ensuring the scheme's universality; increasing the EQC cap; implementing differentiated pricing; incorporating incentives for mitigation; including a purpose statement within the Act. Implementing these reforms will best ensure the scheme meets the objective of allowing homeowners to build their secure fence at the top of the cliff, while still ensuring there is a well-functioning ambulance at the bottom.","PeriodicalId":426444,"journal":{"name":"Victoria University of Wellington law review","volume":"94 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122980221","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Meeting the Challenge of the Preventive State: Due Process Rights and the Terrorism Suppression (Control Orders) Act 2019 应对预防性国家的挑战:正当程序权利和2019年恐怖主义镇压(控制令)法

Victoria University of Wellington law review Pub Date : 2021-06-27 DOI: 10.26686/vuwlr.v52i1.6845

Catherine Hensen

{"title":"Meeting the Challenge of the Preventive State: Due Process Rights and the Terrorism Suppression (Control Orders) Act 2019","authors":"Catherine Hensen","doi":"10.26686/vuwlr.v52i1.6845","DOIUrl":"https://doi.org/10.26686/vuwlr.v52i1.6845","url":null,"abstract":"This article focuses on the control order regime introduced by the Terrorism Suppression (Control Orders) Act 2019 and its implications for due process rights. Control orders are formally civil, and so the heightened criminal procedural protections in the New Zealand Bill of Rights Act 1990 (the NZ Bill of Rights) ostensibly do not apply. But the simplicity of the criminal–civil binary belies the hybridity of control orders. In this respect, control orders capture in microcosm the larger policy shift towards a \"preventive state\" which, rather than relying on ex post facto denunciation, pre-emptively incapacitates threatening individuals before they commit harm. This article assesses how we should deal with control orders' hybridity. It suggests that on the basis of current authority, control orders would not attract the criminal procedural protection in s 25 of the NZ Bill of Rights. Instead, they will be governed by s 27(1), which secures a right to natural justice. It then critically assesses this result. Drawing on the work of Andrew Ashworth and Lucia Zedner, it canvasses four possible approaches to control orders. It argues that, in order to facilitate engagement with their distinctive and problematic features, control orders ought to be distinguished from punishment and dealt with under other provisions of the NZ Bill of Rights. This should stimulate discussion about the kind of procedural protections that are appropriate to safely balance the liberty interests of the subject against legitimate security concerns.","PeriodicalId":426444,"journal":{"name":"Victoria University of Wellington law review","volume":"76 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117310652","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

On what Authority? In Search of a Legal Authority for Government Facilitation of "Media Ride-Along" Programmes and the Privacy Harm they Cause 什么权威?为政府促进“媒体随车”计划及其造成的隐私损害寻找法律权威

Victoria University of Wellington law review Pub Date : 2021-06-27 DOI: 10.26686/vuwlr.v52i1.6847

J. Macpherson

{"title":"On what Authority? In Search of a Legal Authority for Government Facilitation of \"Media Ride-Along\" Programmes and the Privacy Harm they Cause","authors":"J. Macpherson","doi":"10.26686/vuwlr.v52i1.6847","DOIUrl":"https://doi.org/10.26686/vuwlr.v52i1.6847","url":null,"abstract":"Whether it be through the tort of privacy or the Broadcasting Standards Authority, involuntary subjects of reality journalism have suffered sufficient harm at their inclusion to take legal action against the media. Utilising the TV series Border Patrol as a case study, this article looks at the role that government agencies play in facilitating this harm, rather than the media which produce and broadcast these programmes. The tort of privacy is adopted in this article as a framework to examine and establish the significant risk of privacy-related harm in this area. Following the proposition that the state must act under legal authority, it is argued that government agencies must have a clear legal basis for permitting production companies to enter and film passengers in the controlled border space, particularly given the high risk of privacy breaches. There does not appear to be any legal justification or authority for facilitating access to this space. Given these agencies' public assurances regarding transparency and privacy, they should identify and publicise this legal basis, alongside documentation of their interaction and co-operation with the media production company.","PeriodicalId":426444,"journal":{"name":"Victoria University of Wellington law review","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133377030","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

Kia Tāwharautia Te Mātauranga Māori: Decolonising the Intellectual Property Regime in Aotearoa New Zealand Kia Tāwharautia Te Mātauranga Māori:新西兰奥特罗阿的非殖民化知识产权制度

Victoria University of Wellington law review Pub Date : 2020-12-17 DOI: 10.26686/VUWLR.V51I4.6701

Eru Kapa-Kingi

{"title":"Kia Tāwharautia Te Mātauranga Māori: Decolonising the Intellectual Property Regime in Aotearoa New Zealand","authors":"Eru Kapa-Kingi","doi":"10.26686/VUWLR.V51I4.6701","DOIUrl":"https://doi.org/10.26686/VUWLR.V51I4.6701","url":null,"abstract":"This article explores ways to decolonise aspects of the intellectual property system in Aotearoa New Zealand, primarily in respect of trade marks. It considers the seminal Wai 262 report of the Waitangi Tribunal and builds upon its findings and recommendations, while also offering new ideas of legal reform for protecting mātauranga Māori (Māori knowledge and expertise) from undue exploitation. This article also measures those ideas against the objectives and principles of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), as well as other internationally recognised rights. Essentially, this article maintains that for any mechanism to be effective in recognising and upholding the tino rangatiratanga (unqualified self-determination) of Māori over their own mātauranga, that mechanism must be founded upon the principles of tikanga Māori (Māori laws and customs), which is a notion crystallised within the Treaty of Waitangi/Te Tiriti o Waitangi. It must also find its own meaningful place in the law of New Zealand that surrounds us today. It is only in this way that the extractive and thereby oppressive binds of the western intellectual property regime can be unpicked and put aside and the tapu (high status and associated sanctity) of mātauranga can be upheld. These words are also an honouring of those who spent countless hours on the Wai 262 report. It is hoped this article gives new and much needed life to the issue of protecting mātauranga Māori, which is still as relevant today as it was then. Kei aku rangatira, kei aku tapaeru, kei aku whakaruakākā, tēnei e ngākau whakaiti nei (an acknowledgement of all those who took part in Wai 262).","PeriodicalId":426444,"journal":{"name":"Victoria University of Wellington law review","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115005831","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Disclosure of Origin in the Patents Regime: A Call to Shift towards Meaningful Engagement on Māori Terms 专利制度中的原产地披露:呼吁转向Māori条款的有意义参与

Victoria University of Wellington law review Pub Date : 2020-12-17 DOI: 10.26686/VUWLR.V51I4.6702

Brooke Marriner

引用次数: 0

Indigenous Customary Law and International Intellectual Property: Ascertaining an Effective Indigenous Definition for Misappropriation of Traditional Knowledge 土著习惯法与国际知识产权:确定传统知识盗用的有效土著定义

Victoria University of Wellington law review Pub Date : 2020-12-17 DOI: 10.26686/VUWLR.V51I4.6700

N. Dennis-McCarthy

{"title":"Indigenous Customary Law and International Intellectual Property: Ascertaining an Effective Indigenous Definition for Misappropriation of Traditional Knowledge","authors":"N. Dennis-McCarthy","doi":"10.26686/VUWLR.V51I4.6700","DOIUrl":"https://doi.org/10.26686/VUWLR.V51I4.6700","url":null,"abstract":"The effective protection of indigenous traditional knowledge from misappropriation is a fundamental challenge faced by the intellectual property system. A substantial aspect of this challenge is how the intellectual property regime can practically utilise or incorporate indigenous customary law as a means of protection against misappropriation, when there is an inherent tension between the former and the latter. Any international legal instrument intended to protect against misappropriation of indigenous traditional knowledge will have to contend with this tension: a definition of misappropriation ought to encourage use of local indigenous customary law, but it also must be practically applicable within the confines of the intellectual property system. Consequently, this article considers the challenge in two parts. The first part requires ascertainment of a potential international legal definition of misappropriation that will uphold and maintain indigenous customary law, in the context of the World Intellectual Property Organization (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) draft articles. To ensure the definition effectively affirms indigenous customary law, it will be based on three key \"approaches\" to indigenous custom. The second part entails application of the definition to the domestic context, namely through the case studies of New Zealand and Australia, and a subsequent critique of the difficulties of application, to illustrate the challenge of incorporating indigenous customary law within the intellectual property system. This article concludes that the risks inherent in an aspirational definition of misappropriation which may have some challenges in application are outweighed by the potential of normalising and encouraging indigenous customary law as the foundational basis for truly effective protection of traditional knowledge against misappropriation.","PeriodicalId":426444,"journal":{"name":"Victoria University of Wellington law review","volume":"203 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116148773","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

The Misappropriation of the Haka: Are the Current Legal Protections around Mātauranga Māori in Aotearoa New Zealand Sufficient? 哈卡语的盗用:新西兰奥特罗阿地区目前对Mātauranga Māori的法律保护是否足够?

Victoria University of Wellington law review Pub Date : 2020-12-17 DOI: 10.26686/VUWLR.V51I4.6698

Isabella Tekaumārua Wilson

{"title":"The Misappropriation of the Haka: Are the Current Legal Protections around Mātauranga Māori in Aotearoa New Zealand Sufficient?","authors":"Isabella Tekaumārua Wilson","doi":"10.26686/VUWLR.V51I4.6698","DOIUrl":"https://doi.org/10.26686/VUWLR.V51I4.6698","url":null,"abstract":"This article analyses the protections the New Zealand intellectual property framework provides for the haka and mātauranga Māori. Part II of this article defines the key terms of \"misappropriation\", \"traditional knowledge\" and \"mātauranga Māori\" in order for the reader to fully understand these concepts in an indigenous, and specifically Māori, context. Part III of this article discusses the importance and significance of haka in Māori culture, particularly looking at the history and significance of Ka Mate, the most well-known haka in New Zealand and the world. Examples of different companies, both New Zealand and internationally-owned, using the haka for commercial benefit are analysed to establish whether or not their use of the haka is misappropriation, and if so, the harm this misappropriation has caused Māori. Part IV discusses the current legal protections New Zealand provides for mātauranga Māori and whether they sufficiently protect the haka and mātauranga Māori generally. It will assess the Haka Ka Mate Attribution Act 2014 as a case study. Part V outlines the limitations of the intellectual framework. Part VI of this article looks to what legal protections would be sufficient to protect against the misappropriation of the haka and mātauranga Māori generally.","PeriodicalId":426444,"journal":{"name":"Victoria University of Wellington law review","volume":"66 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122130998","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

Protecting Traditional Knowledge: An Analysis of the Pacific Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture 保护传统知识:太平洋地区保护传统知识和文化表现形式框架分析

Victoria University of Wellington law review Pub Date : 2020-12-17 DOI: 10.26686/VUWLR.V51I4.6699

P. S. Salī

引用次数: 1