Waikato Law Review Taumauri Volume 19, 2011
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WAIKATO LAW REVIEW TAUMAURI VOLUME 19, 2011 Fundamentals: A Constitutional Conversation 1 Chief Justice Sian Elias The Evolution from Form to Substance in Tax Law: The Demise of the Dysfunctional “Metwand” 17 E W Thomas Liberty and Justice in the Face of Terrorist Threats to Society 61 Sir David Baragwanath The Architecture of Elections in New Zealand: A Governor-General’s Perspective 79 Rt Hon Sir Anand Satyanand, GNZM, QSO Lawyers and Unpopular Clients 90 The Hon Christopher Finlayson Bonkers and Ors v The Police: Judgment of Athena J in the High Court 94 E W Thomas How International Law Has Influenced the National Policy and Law Related to Indigenous Peoples in the Arctic 123 Timo Koivurova and Adam Stepien The Future of Environmental Law 144 David J Round The Purpose of Substantially Lessening Competition: The Divergence of New Zealand and Australian Law 168 Paul G Scott Justice Baragwanath: A Student’s Tribute 194 Max Harris Developments in New Zealand Jurisprudence 203 Professor Margaret Wilson What About the Wa¯hine? Can an Alternative Sentencing Practice Reduce the Rate that Ma¯ori Women Fill Our Prisons? An Argument for the Implementation of Indigenous Sentencing Courts in New Zealand 206 Gregory Burt Book Review: The New Lawyer: How Settlement is Transforming the Practice of Law 219 Les Arthur Book Review: Judicial Recusal – Principles, Process and Problems 226 Morné Olivier Book Review: Seeing the World Whole – Essays in Honour of Sir Kenneth Keith 232 Myra Williamson Co-Editors in Chief Juliet Chevalier-Watts and Associate Professor Kate Diesfeld Editor, New Zealand Jurisprudence Professor Margaret Wilson Editor, Mäori/Indigenous Submissions Robert Joseph Editor, Student Submissions Gay Morgan Editor, Book Reviews Joel Manyam Editorial Support Janine Pickering Student Editors Erika Roberson and Amelda Schrenk EDITORIAL ADVISORY BOARD Chief Justice, The Honourable Dame Sian Elias (honorary member), Chief Justice of New Zealand. Professor John Borrows, JD, PhD, FRSC, Robina Professor of Law, Policy and Society, University of Minnesota Law School. Professor Penelope Pether, Professor of Law, School of Law, Villanova University. Associate Professor T Brettel Dawson, Department of Law, Carleton University, Academic Director, National Judicial Institute (Canada). Gerald Bailey, QSO, LLB (Cant), Hon D (Waikato), Consultant Evans Bailey, Lawyers, former Chancellor of University of Waikato and member of the Council of Legal Education. Sir David Baragwanath, Honorary Professor, University of Waikato, Judge of the Appeals Chamber of the Special Tribunal for Lebanon, The Hague. Professor John Farrar, LLB (Hons) (London), LLM (London), LLD (London), PhD (Bristol), Emeritus Professor of Law, Bond University, Professor of Corporate Governance, University of Auckland. Deputy Chief Judge Caren Fox, Mäori Land Court. Judge Stephanie Milroy, Mäori Land Court. Dr Joan Metge, Law and Society, with particular interests in law’s role in an ethnically diverse society. Professor Margaret Bedggood, QSO, LLB (Otago), MA (NZ and London), former Chief Human Rights Commissioner. The Honourable Justice Paul Heath, Judge of the High Court of New Zealand. The Honourable Sir Eddie Durie, KNZM, first Mäori appointed as a Justice of the High Court of New Zealand, and leading legal expert on the Treaty of Waitangi. Professor Alex Frame, LLB (Auck) LLM, LLD (Well), former Chair in Te Piringa – Faculty of Law, University of Waikato and Director of Te Matahauariki Research Institute. Professor Paul Hunt, Department of Law, University of Essex, member of the Human Rights Centre, University of Essex and Adjunct Professor, University of Waikato. The Honorable Justice Joseph Williams, Judge of the High Court of New Zealand. Judge Peter Spiller, Honorary Professor of Law, University of Waikato. Associate Professor Morné Olivier, School of Law, University of the Witwatersrand. Professor Michael Hahn, Chair of European Law, University of Lausanne, Honorary Professor of Law, Te Piringa – Faculty of Law, University of Waikato. The Waikato Law Review is published annually by Te Piringa – Faculty of Law at The University of Waikato. Subscription to the Review costs $40 (domestic) and $45 (international) per year. Advertising space is available at a cost of $200 for a full page or $100 for a half page. Back numbers are available. Communications should be addressed to: The Editors in Chief Waikato Law Review Te Piringa – Faculty of Law The University of Waikato Private Bag 3105 Hamilton 3240 New Zealand North American readers should obtain subscriptions direct from the North American agents: Wm W Gault & Sons Inc 3011 Gulf Drive Holmes Beach Florida 34217-2199 USA This issue may be cited as (2011) 19 Wai L Rev. All rights reserved. No part of this publication may be produced or transmitted in any form or by any means electronic or mechanical, including photocopying, recording or any retrieval system, without permission from the editor. ISSN 1172-9597 CO-EDITORS’ IN CHIEF INTRODUCTION We are delighted to present the 2011 edition of the Waikato Law Review; a particularly special edition. The Review is proud to introduce its Editorial Advisory Board, which comprises national and international academics, legal experts and members of the judiciary of stellar reputation and expertise. We are very grateful for the support of the Board. The Review is also pleased to intro- duce the new Editorial team, comprising Editors for New Zealand Jurisprudence; Book Reviews; Maori/Indigenous Submissions; Student Submissions; and welcoming for the first time the sup- port and assistance of Student Editors. In light of the Review’s particular special publication, we are proud to present sterling submis- sions from members of Parliament and the judiciary, academia, as well as established and emerg- ing legal scholars. Of particular note, the prestigious Harkness Henry lecture, traditionally the Review’s lead ar- ticle, was delivered by the Chief Justice, The Hon Dame Sian Elias. This lecture was very well received and whilst not only being memorable for its thought provoking content and excellent delivery, it was also memorable because it is the first occasion that a speaker from a previous year has returned to give the lecture; Te Piringa and the Review are especially grateful and honoured that the Chief Justice returned to mark the twentieth lecture sponsored by Harkness Henry. The articles and reviews that comprise this year’s edition present a range of views that are as diverse as they are critical and stimulating. The Mäori title of the Waikato Law Review, Taumau- ri, means “to think with care and caution, to deliberate on matters constructively and analytically”; this title expresses perfectly the values and goals of the Review. We believe that this edition ex- plores and expands the boundaries of law and legal studies to develop a further understanding of the contexts within which the law operates and evolves. We would like to express our thanks to all the contributors and reviewers for making this edi- tion special in so many ways. This edition would not have been possible without the tireless contribution and professional expertise of Janine Pickering, and without the support of Amanda Colmer from A2Z Design. We also extend our thanks to Ingrid Leersynder and Erika Roberson for their valuable editing and formatting assistance. Juliet Chevalier-Watts and Kate Diesfeld Co-Editors in Chief THE HARKNESS HENRY LECTURE FUNDAMENTALS: A CONSTITUTIONAL CONVERSATION BY CHIEF JUSTICE SIAN ELIAS* It is more than 20 years since Sir Robin Cooke, then President of the Court of Appeal, explored elements of the New Zealand constitution in his paper “Fundamentals”.1 At the time he wrote, the constitutional moment which might have led to an entrenched Bill of Rights, enforced by judicial review of legislation and beyond Parliamentary encroachment, was slipping away. The compro- mise eventually enacted as the New Zealand Bill of Rights Act 1990 seemed the more likely outcome. This evening, I thought I might revisit some of the themes touched on by the President. With 21 years experience of the New Zealand Bill of Rights Act and other significant legislative re- forms which can properly be regarded as “constitutional”, it seems time to take stock. There are other reasons to get our thinking in order. Persistent unease about the nature of our constitutional arrangements keeps the idea of change stirring. The Cabinet has now set up a Constitutional Advi- sory Panel to undertake a review and to gauge whether there is support for reform.2 Reform issues identified are electoral representation (including Mäori representation), the place of the Treaty of Waitangi in the constitutional order, whether we should have a written constitution, and whether the scope of the New Zealand Bill of Rights Act should be expanded (perhaps to include property rights).3 A final report is to be produced by 2013. Whether or not the review leads to major reform, the exercise will be of benefit if it proposes steps to make the existing constitution more intelligible and accessible and suggests better ways to protect its values. If even that is too ambitious, shining a light on what we have is worthwhile in itself, so opaque and misunderstood is our constitution. So it is to be welcomed that one of the purposes of the review is to “stimulate public debate and awareness of New Zealand’s constitu- tional arrangements”.4 The constitution is too important to be left to lawyers to tiptoe around. The constitution we have is not easily explained. Although it is partly captured in some major statutes, it is largely a common law construct. As such it is a subject in constant motion.5 A snap- shot at any one time is not only difficult to obtain and contestable in itself but quickly becomes misleading. The conventions that make the constitution work are habits of behaviour that can be lost through non-observance. Stephen Sedley once said about the British constitution that if we ask what the governing principles of the arrangements are and how their legitimacy is derived “we * Chief Justice of New Zealand.