{"title":"Is There a \"European Family Law\"?","authors":"Jens M Scherpe","doi":"10.26686/vuwlr.v54i1.8448","DOIUrl":"https://doi.org/10.26686/vuwlr.v54i1.8448","url":null,"abstract":"Europe consists of many very different jurisdictions and there is no institution that actually has the legislative power to create family laws for member states of the European Union, let alone Europe as a whole. Therefore, one could assume that no common \"European Family Law\" exists. However, this article argues that while there of course cannot be a full \"European Family Code\", some core elements of European Family Law have grown organically through similar social and legal developments, while other core elements have been established by institutional actions as well as court decisions. Together, these core elements represent fragments of a growing body of European Family Law.","PeriodicalId":426444,"journal":{"name":"Victoria University of Wellington law review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136184483","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}
{"title":"Corsica, New Zealand and Human Rights","authors":"Michael Tugendhat","doi":"10.26686/vuwlr.v54i1.8451","DOIUrl":"https://doi.org/10.26686/vuwlr.v54i1.8451","url":null,"abstract":"The American and French revolutionaries of 1776 and 1789–1793 invoked the sovereignty of the people to dethrone their kings and make declarations of human rights. In 1755 and 1794, the people of Corsica invoked the same principle to declare their independence first from Genoa and then from France. By agreement with Britain, in 1794 they adopted a constitution guaranteeing human rights, and elected George III to be their king. In the 1830s, under threat from foreign forces, representatives of the people of New Zealand invoked the same principle. They declared their independence and by agreement with Britain they enthroned Queen Victoria on condition of obtaining guarantees of all the rights and privileges of British subjects. By these agreements that are less well known than the revolutions of 1776 and 1789 Britain accepted the sovereignty of both British and foreign peoples as exercised through their representatives, of an elected monarchy and of the duty of governments to guarantee human rights in England and in the Empire.","PeriodicalId":426444,"journal":{"name":"Victoria University of Wellington law review","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136185038","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}
{"title":"The Dance of Legislation: Why Parliamentary Sovereignty is not a Meaningful Public Law Metric","authors":"Philip A Joseph","doi":"10.26686/vuwlr.v54i1.8442","DOIUrl":"https://doi.org/10.26686/vuwlr.v54i1.8442","url":null,"abstract":"\"The dance of legislation\" is a metaphor to capture the parliamentary–judicial dynamic in the creation, interpretation and application of legislation. Contrary to the edicts of classical sovereignty doctrine, Parliament is not the sole actor in (what I term) \"law creation through legislation\". Sovereignty doctrine champions the exclusivity of Parliament in enacting legislative text and discounts any constitutive role of the courts in bringing meaning to the legislative text. The courts deploy interpretive techniques that fix legal meaning in accordance with a range of institutional norms and understandings. These techniques debunk the notion that Parliament's word is the start and end point of what is law, irrespective of what the courts say is the law. The judicial role extends beyond filling gaps in statutory meanings: it extends even to the reconstruction of statutory meaning where institutional norms commend activist interpretive method. The symbiosis that joins the branches lies at the heart of the legislative enterprise. The parliamentary–judicial relationship is an interdependent, collaborative one that draws upon the distinctive, role-specific function of each branch. The quip \"it takes two to tango\" speaks perfectly to the dance of legislation imagined in this article.","PeriodicalId":426444,"journal":{"name":"Victoria University of Wellington law review","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136185596","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}
{"title":"International Codification: Challenges and Perils","authors":"KJ Keith","doi":"10.26686/vuwlr.v54i1.8443","DOIUrl":"https://doi.org/10.26686/vuwlr.v54i1.8443","url":null,"abstract":"This tribute to Professor Emeritus Tony Smith considers the codification of international law, particularly international criminal law, given Tony's long-term commitment to criminal law. It also evaluates the codification of international law in other areas, addressing success and failure.","PeriodicalId":426444,"journal":{"name":"Victoria University of Wellington law review","volume":"179 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136184422","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}
{"title":"The Family Court – Contempt and Inherent Powers","authors":"Bill Atkin","doi":"10.26686/vuwlr.v54i1.8434","DOIUrl":"https://doi.org/10.26686/vuwlr.v54i1.8434","url":null,"abstract":"This article honours the achievements of Professor ATH Smith both in New Zealand and abroad. Its focus is on aspects of the New Zealand Family Court. The law of contempt is now governed by the Contempt of Court Act 2019. The earlier leading case on the contempt powers of the Family Court is analysed, followed by the changes made by the 2019 Act and their implications for the Court. The discussion is on the basis that the Family Court does not have inherent powers to deal with contempt situations not covered by the statutory scheme. As a part of the District Court, its inherent powers are limited to matters of procedure: contempt is a substantive matter, not one of procedure. The article concludes by briefly raising the wider question of whether the distinction between the senior courts and the lower ones, such as the Family Court, is helpful.","PeriodicalId":426444,"journal":{"name":"Victoria University of Wellington law review","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136185317","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}
{"title":"A Tale of Two Codes – The Peregrinations of a Penal Code","authors":"Tony Angelo, Janielee Avia","doi":"10.26686/vuwlr.v54i1.8432","DOIUrl":"https://doi.org/10.26686/vuwlr.v54i1.8432","url":null,"abstract":"Tony Smith was an early contributor to this review. It is fitting therefore that a long and distinguished career in the criminal law be celebrated now in a special issue of the same journal. In the following picaresque-like account a colleague and former student join to celebrate the career of Professor Tony Smith. This article considers two criminal law codes – where they came from and the influence of each beyond its country of origin. The two codes referred to in this article are the Queensland Criminal Code Act 1899 prepared by Sir Samuel Griffith and the draft English Criminal Code 1880 prepared by Sir James Fitzjames Stephen.","PeriodicalId":426444,"journal":{"name":"Victoria University of Wellington law review","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136185340","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}
{"title":"A Case of the Highest Authority… So What Does It Mean?","authors":"David Eady","doi":"10.26686/vuwlr.v54i1.8439","DOIUrl":"https://doi.org/10.26686/vuwlr.v54i1.8439","url":null,"abstract":"There has been for some time a widespread view that anyone under investigation with regard to suspected wrongdoing should be entitled to anonymity prior to charge. Yet no attempt has been made to legislate. The matter is governed currently by the recently developed law of privacy, deriving from such cases as Campbell v MGN Ltd and culminating in the decision of the Supreme Court in ZXC v Bloomberg LP. It seems to be accepted, not only in England but under human rights law generally, that such information should be regarded as \"private\". This has not seriously been undermined in any of the leading cases. There is surely a serious question as to whether a suspect does indeed have a reasonable expectation that there should be such a blanket over his or her identity. This information is not purely personal. It relates to suspected wrongdoing – information which legitimately concerns not only any individual under suspicion but also, for example, \"victims\" and no doubt other fellow citizens interested in getting to the truth and in the administration of justice. Naturally, if a suspect's name leaks out, that individual's reputation may be seriously damaged. Some take the view that compensation should be recoverable specifically for injury to reputation – even though the claim would not be brought in defamation. Yet privacy and libel are distinct causes of action with different purposes to fulfil. If damages are to be sought to vindicate reputation, it is hard to see why a defendant should not have available the traditional defences and other principles applying in defamation. If a claimant wishes to demonstrate that the allegations are false, as well as intrusive, why should he not be subject to the same disciplines and risks as one who sues in libel?","PeriodicalId":426444,"journal":{"name":"Victoria University of Wellington law review","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136185032","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}
{"title":"The Insanity Defence: Is It Still Fit for Purpose?","authors":"Warren Brookbanks","doi":"10.26686/vuwlr.v54i1.8437","DOIUrl":"https://doi.org/10.26686/vuwlr.v54i1.8437","url":null,"abstract":"The M'Naghten Rules formulated in 1843 have provided the basis for the insanity defence in many Western countries, including New Zealand. Although many candidates for the insanity defence experience psychosis, the principal determining factor is whether they knew their criminal act was morally wrong, a difficult metaethical judgement. In New Zealand the advent of methamphetamine abuse has created a significant challenge for forensic assessors in differentiating between mental disease and chronic intoxication, raising the question of whether the insanity defence as currently formulated is fit for purpose in assessing criminal culpability in such cases. The article explores this problem through an examination of a number of leading cases, noting the variable character of expert testimony on insanity where methamphetamine is involved. The article then examines the question of whether evidence of mental states falling short of insanity may be utilised to support a palliative claim reducing murder to manslaughter. A tentative new approach invites consideration of allowing investigation of insanity in cases involving meth-induced paranoia, whether or not the threshold of disease of the mind is met. In the concluding sections the article examines the impact of developments in cognitive neuroscience and asks whether neuroscience can help in determining criminal responsibility and whether it supports a \"control limb\" in a reformulated insanity defence. The article concludes with a brief discussion of mental disorder and impulsive aggression.","PeriodicalId":426444,"journal":{"name":"Victoria University of Wellington law review","volume":"81 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136185326","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}
{"title":"The Growing Complexity of a Human Right to Assemble and Protest Peacefully in the United Kingdom","authors":"David Feldman","doi":"10.26686/vuwlr.v54i1.8440","DOIUrl":"https://doi.org/10.26686/vuwlr.v54i1.8440","url":null,"abstract":"Policing demonstrations is difficult, and prosecuting people for public order offences arising from protests may risk closing down some channels for democratic engagement. In the United Kingdom, delicate judgements by police, prosecutors and courts have become still more complex as a result of the domestic application, under the Human Rights Act 1998 (UK), of the rights to freedom of expression and of peaceful assembly under the European Convention on Human Rights. When is it permissible to interfere with those rights in order to protect other interests and rights? When is it necessary to strike a balance between them, and who is responsible for doing so? What are the limits of the responsibilities of the police, prosecutors and judges or juries respectively to make judgements about the appropriate balance, and when may a defendant be allowed to say, in answer to a criminal charge, that criminal legislation should be read and given effect in such a way as to respect the defendant's right to freedom of expression or peaceful assembly so as to entitle the defendant to be acquitted? This article examines developments in policing and prosecutorial practice and in case law responding to those issues.","PeriodicalId":426444,"journal":{"name":"Victoria University of Wellington law review","volume":"174 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136184423","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}
{"title":"Criminal Liability for \"Photographic Piracy\"?","authors":"JR Spencer","doi":"10.26686/vuwlr.v54i1.8449","DOIUrl":"https://doi.org/10.26686/vuwlr.v54i1.8449","url":null,"abstract":"The author is a Professor Emeritus of Cambridge University, where for many years Tony Smith was his friend and valued colleague. In this article he critically analyses the existing law in relation to taking or publishing photographs of other people without their consent and considers the desirability of extending criminal liability for such behaviour by the creation of a new criminal offence.","PeriodicalId":426444,"journal":{"name":"Victoria University of Wellington law review","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136185194","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}
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