Yearbook of New Zealand Jurisprudence Editor Dr Claire Breen Editor: Dr Claire Breen Administrative Assistance: Janine Pickering The Yearbook of New Zealand Jurisprudence is published annually by the University of Waikato School of Law. Subscription to the Yearbook costs $NZ35 (incl gst) per year in New Zealand and $US40 (including postage) overseas. Advertising space is available at a cost of $NZ200 for a full page and $NZ100 for a half page. Back numbers are available. Communications should be addressed to: The Editor Yearbook of New Zealand Jurisprudence School of Law The University of Waikato Private Bag 3105 Hamilton 3240 New Zealand North American readers should obtain subscriptions directly from the North American agents: Gaunt Inc Gaunt Building 3011 Gulf Drive Holmes Beach, Florida 34217-2199 Telephone: 941-778-5211, Fax: 941-778-5252, Email: [email protected] This issue may be cited as (2008-2009) Vols 11-12 Yearbook of New Zealand Jurisprudence. All rights reserved ©. 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ISSN No. 1174-4243 Yearbook of New Zealand Jurisprudence Volumes 11 & 12 (combined) 2008 & 2009 Contents NEW ZEALAND’S FREE TRADE AGREEMENT WITH CHINA IN CONTEXT: DEMONSTRATING LEADERSHIP IN A GLOBALISED WORLD Hon Jim McLay CNZM QSO 1 CHINA TRANSFORMED: FTA, SOCIALISATION AND GLOBALISATION Yongjin Zhang 15 POLITICAL SPEECH AND SEDITION The Right Hon Sir Geoffrey Palmer 36 THE UNINVITED GUEST: THE ROLE OF THE MEDIA IN AN OPEN DEMOCRACY Karl du Fresne 52 TERRORISM, PROTEST AND THE LAW: IN A MARITIME CONTEXT Dr Ron Smith 61 RESPONDING TO THE ECONOMIC CRISIS: A QUESTION OF LAW, POLICY OR POLITICS Margaret Wilson 74 WHO DECIDES WHERE A DECEASED PERSON WILL BE BURIED – TAKAMORE REVISITED Nin Tomas 81 Editor’s Introduction This combined issue of the Yearbook arises out of public events that were organised by the School of Law (as it was then called) in 2008 and 2009. The events covered a range of themes including the New Zealand – China Free Trade Agreement, Free Speech, the Economic Crisis and, reflecting the bicultural endeavour of the School, the challenge of cultural intermarriage and burial rights presented by the Takamore Decision. This edition of the Yearbook gathers a selection of papers that are presented under the broad theme of ‘Challenges Facing Aotearoa New Zealand’. The first public event was a public symposium on the New Zealand - China Free Trade Agreement, which was held in June 2008. The signing of the FTA was greeted with great fanfare two years ago. There was also a degree of trepidation regarding the FTA. The public symposium was organised to bring together a range of speakers and views on the significance of the FTA for New Zealand. The School was very pleased to be able to host distinguished speakers such as: Graeme Waters former Head of the China Unit at MFAT at that time and current New Zealand Ambassador to Egypt; Hon. Jim McLay, Executive Chairman of Macquarie New Zealand, former Deputy Prime Minister and current New Zealand Permanent Representative to the United Nations in New York; Professor Yongjin Zhang who was the Director of the New Zealand Asia Institute at the time of the symposium and who subsequently took up a Chair in International Politics at the University of Bristol; Professor Alexander Gillespie of Waikato Law School; Dr Anna Strutt, Senior Lecturer at Waikato Management School; and Margaret Taylor, Campaign Manager for Amnesty International NZ. Subsequently, in July 2008, the School of Law organised a Public Seminar entitled Free Speech and the Safety of the State. Again, the School was very pleased to be able to host a further group of distinguished speakers. Sir Geoffrey Palmer, the President of the NZ Law Commission Dr Rodney Harrison QC who is a Public Law Specialist and Human Rights Litigator, Karl du Fresne who is a Freelance Journalist and former Editor of the Dominion, and Dr Ron Smith Director, International Relations and Security Studies, Waikato University addressed a very full audience and provided a most informative and stimulating set of addresses on the topic of free speech. In May 2009, the School hosted a further public seminar entitled Responding to the Economic Crisis: a question of law, policy or politics? Hon Margaret Wilson, the Professor of Law & Public Policy at the School of Law, here at the University of Waikato, Roger Kerr, the Executive Director of the New Zealand Business Roundtable, and Professor Jane Kelsey of Faculty of Law, ii Yearbook of New Zealand Jurisprudence Vols 11-12 University of Auckland addressed yet another full audience and provided some insightful commentary and analysis on the economic crisis that had just begun to grip New Zealand and the effects of which may still be felt at the time of writing this Introduction. Associate Professor Nin Tomas of the Faculty of Law at the University of Auckland visited Waikato Law School for a week in October 2009. We were delighted to have her with us and during her visit she gave a public lecture entitled Who has the right to decide where a deceased person is buried? The Takamore Decision. Associate Professor Tomas examined the then recently decided High Court case of Clarke v Takamore and the challenge that the decision posed for intercultural marriages. As with all previous events, the public lecture was very well supported. All of the afore-mentioned events provided the opportunity for open discussion and the questions asked and observations made during these discussions added a valuable and thought-provoking dimension. The contributors to this volume have revised their papers in order to contribute to this special issue of the Yearbook of New Zealand Jurisprudence. However, readers of the Yearbook should remember that the papers are still largely based on the seminar presentations and there is some variance in length, detail and tone. The priority of the Yearbook has been to allow the papers to be distributed more widely and to record those papers in a permanent form. In my capacity as Editor, I would like to thank all of the individuals who contributed to the public events. I would like to give special thanks to Professor John Farrar, the former Dean of the School of Law, for his very able chairing of both the New Zealand-China FTA Symposium and the Free Speech public seminar. I would also like to thank Professor Al Gillespie who chaired the seminar on the Economic Crisis and Professor Brad Morse who chaired the public lecture on the Takamore decision. I would also like to thank those speakers who were so generous with their time in agreeing to write and finalise their articles for publication in the Yearbook and for their patience with me as Editor. I would also like to make special thanks to Janine Pickering for her skilful assistance in organising these public events and for her editorial assistance in preparing this volume. Dr Claire Breen Associate Professor of Law, University of Waikato Editor Yearbook of New Zealand Jurisprudence New Zealand’s Free Trade Agreement with China in Context: Demonstrating Leadership in a Globalised World Hon Jim McLay CNZM QSO* I. INTRODUCTION: PUTTING THE FTA INTO CONTEXT There are many ways to put New Zealand’s Free Trade Agreement with China into context; one might be to contrast the signing of the Closer Economic Relationship Agreement (CER) with Australia in March 1983 with that of the China FTA almost 25 years later, in April 2008. The ceremonies — if the first could even be so described — could not have been more different. CER which is still regarded as the world’s ‘cleanest’ free trade agreement — was not exactly signed in secrecy, but it might as well have been. Neither country attended and the ‘signing’ was done by video link. Signing was delayed because Australia’s incoming Labor Government wanted to review CER’s terms before agreeing to them. Prime Minister Muldoon, only a convert to CER,1 was worried about the economic and political implications of a deal strongly opposed by New Zealand manufacturers and not seen to advantage by exporters. Twenty-five years later, the China deal was ushered in with great ceremony. The then Prime Minister, Helen Clark, attended the Beijing signing, as did her Chinese counterpart, Wen Jiabao, whose presence signified the importance of the agreement, and 150 business and local government representatives bore witness. The media gave justifiable publicity, and speculated widely — often wildly — on its prospects. How is it that, over twenty-five years, New Zealand has come from (at best) qualified to full support for free trade to a situation where, today, all our major political parties support free trade.2 We have, of course, always advocated open borders for agriculture;3 but our manufacturers were deeply suspicious of anything more. Indeed, National * I express my appreciation to Tom Groser MP and Hon Hugh Templeton, who provided valuable input and original thinking to this address. Wherever possible, I have tried to attribute those sources; but, any errors or omissions — and, above all, the views expressed — remain my personal responsibility. 1 This conversion was largely achieved through the efforts of Hugh Templeton. 2 On the political Left, that’s due, in no small part, to the efforts of Mike Moore in the 80s and 90s. 3 Tim Groser MP, to the writer, in May 2008. Groser advises he never had to convert Prime Minister Muldoon to that particular cause; he was always a believer. 2 Yearbook of New Zealand Jurisprudence Vols 11-12 Party folklore had it that, just before the 1972 election, manufacturers put notes into pay packets warning that National was freeing up imports, and that would cost jobs — so, it was understandable that older MPs regarded free trade with apprehension.