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New Zealand Journal of Public and International Law No 1 December Vol 15 2017 International and of Public Journal Zealand New

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New Zealand Journal of Public and International Law No 1 December Vol 15 2017 International and of Public Journal Zealand New NEW ZEALAND CENTRE FOR PUBLIC LAW Te Wānanga o ngā Kaupapa Ture ā Iwi o Aotearoa NEW ZEALAND JOURNAL PUBLIC OF AND INTERNATIONAL 15 VOL 1 NO LAW NZCPL OCCASIONAL PAPERS New Zealand Journal of 1 Workways of the United States Supreme Court Justice Ruth Bader Ginsburg 2 The Role of the New Zealand Law Commission Public and International Law Justice David Baragwanath 3 Legislature v Executive – The Struggle Continues: Observations on the Work of the Regulations Review Committee Hon Doug Kidd 4 The Maori Land Court – A Separate Legal System? Chief Judge Joe Williams 5 The Role of the Secretary of the Cabinet – The View from the Beehive Marie Shroff 6 The Role of the Governor-General Dame Silvia Cartwright 7 Final Appeal Courts: Some Comparisons Lord Cooke of Thorndon 8 Parliamentary Scrutiny of Legislation under the Human Rights Act 1998 Anthony Lester QC 9 Terrorism Legislation and the Human Rights Act 1998 Anthony Lester QC 10 2002: A Justice Odyssey Kim Economides 11 Tradition and Innovation in a Law Reform Agency Hon J Bruce Robertson 12 Democracy through Law VOLUME 15 ▪ NUMBER 2 ▪ DECEMBER 2017 Lord Steyn 13 Hong Kong’s Legal System: The Court of Final Appeal Hon Mr Justice Bokhary PJ 14 Establishing the Ground Rules of International Law: Where to from Here? Bill Mansfield THIS ISSUE INCLUDES CONTRIBUTIONS BY 15 The Case that Stopped a Coup? The Rule of Law in Fiji Debra Angus Joanna Mossop George Williams 17 The Official Information Act 1982: A Window on Government or Curtains Drawn? Eve Bain Sascha Mueller Steven Price Natalie Baird Grant Phillipson 18 Law Reform & the Law Commission in New Zealand after 20 Years – We Need to Try a Little Oliver Hailes Pita Roycroft Harder Rt Hon Sir Geoffrey Palmer 19 Interpreting Treaties, Statutes and Contracts Rt Hon Judge Sir Kenneth Keith 20 Regulations and Other Subordinate Legislative Instruments: Drafting, Publication, Interpretation and Disallowance 2017 DECEMBER Ross Carter Available from the New Zealand Centre for Public Law Faculty of Law, Victoria University of Wellington, PO Box 600, Wellington, New Zealand Email: [email protected], Fax +64 4 463 6365 NEW ZEALAND JOURNAL OF PUBLIC AND INTERNATIONAL LAW CONTENTS Things Fall Apart: How Legislative Design Becomes Unravelled Debra Angus ........................................................................................................................... 149 Too Secret to Scrutinise? Executive Accountability to Select Committees in Foreign Affairs and Defence Eve Bain................................................................................................................................... 161 Housing in Post-Quake Canterbury: Human Rights Fault Lines Natalie Baird ............................................................................................................................ 195 The Politics of Property in Constitutional Reform: A Critical Response to Sir Geoffrey and Dr © New Zealand Centre for Public Law and contributors Butler Oliver Hailes ............................................................................................................................ 229 Faculty of Law Victoria University of Wellington PO Box 600 Wellington The South China Sea Arbitration and New Zealand's Maritime Claims New Zealand Joanna Mossop......................................................................................................................... 265 December 2017 Incommensurate Values? Environment Canterbury and Local Democracy Sascha Mueller ........................................................................................................................ 293 The mode of citation of this journal is: (2017) 15 NZJPIL (page) The previous issue of this journal was volume 15 number 1, June 2017 "Trust the Ministry, Trust the Democracy, Trust the People": Administrative Justice and the Creation of Special Courts and Tribunals in the Liberal Era Grant Phillipson ...................................................................................................................... ISSN 1176-3930 313 "The Ayes Have it": The Development of the Roles of the Speaker of the House, 1854–2015 Printed by City Print Communications, Wellington Pita Roycroft ........................................................................................................................... 353 Cover photo: Robert Cross, VUW ITS Image Services iii CONTENTS Things Fall Apart: How Legislative Design Becomes Unravelled Debra Angus ........................................................................................................................... 149 Too Secret to Scrutinise? Executive Accountability to Select Committees in Foreign Affairs and Defence Eve Bain................................................................................................................................... 161 Housing in Post-Quake Canterbury: Human Rights Fault Lines Natalie Baird ............................................................................................................................ 195 The Politics of Property in Constitutional Reform: A Critical Response to Sir Geoffrey and Dr © New Zealand Centre for Public Law and contributors Butler Oliver Hailes ............................................................................................................................ 229 Faculty of Law Victoria University of Wellington PO Box 600 Wellington The South China Sea Arbitration and New Zealand's Maritime Claims New Zealand Joanna Mossop......................................................................................................................... 265 December 2017 Incommensurate Values? Environment Canterbury and Local Democracy Sascha Mueller ........................................................................................................................ 293 The mode of citation of this journal is: (2017) 15 NZJPIL (page) The previous issue of this journal was volume 15 number 1, June 2017 "Trust the Ministry, Trust the Democracy, Trust the People": Administrative Justice and the Creation of Special Courts and Tribunals in the Liberal Era Grant Phillipson ...................................................................................................................... ISSN 1176-3930 313 "The Ayes Have it": The Development of the Roles of the Speaker of the House, 1854–2015 Printed by City Print Communications, Wellington Pita Roycroft ........................................................................................................................... 353 Cover photo: Robert Cross, VUW ITS Image Services iii (2017) 15 NZJPIL The New Zealand Journal of Public and International Law is a fully refereed journal NEW ZEALAND JOURNAL OF published by the New Zealand Centre for Public Law at the Faculty of Law, Victoria University of PUBLIC AND INTERNATIONAL LAW Wellington. The Journal was established in 2003 as a forum for public and international legal Advisory Board scholarship. It is available in hard copy by subscription and is also available on the HeinOnline, Westlaw, Informit and EBSCO electronic databases. Professor Hilary Charlesworth Rt Hon Sir Geoffrey Palmer QC University of Melbourne Distinguished Fellow, NZ Centre for Public NZJPIL welcomes the submission of articles, short essays and comments on current issues, and Professor Scott Davidson Law/Victoria University of Wellington book reviews. Manuscripts and books for review should be sent to the address below. Manuscripts Newman University Dame Alison Quentin-Baxter must be typed and accompanied by an electronic version in Microsoft Word or rich text format, and Barrister, Wellington should include an abstract and a short statement of the author's current affiliations and any other Professor Andrew Geddis relevant personal details. Manuscripts should generally not exceed 12,000 words. Shorter notes and University of Otago Professor Paul Rishworth comments are also welcome. Authors should see earlier issues of NZJPIL for indications as to style; Judge Sir Christopher Greenwood University of Auckland for specific guidance, see the New Zealand Law Style Guide (2nd ed, 2011). Submissions whose International Court of Justice Crown Law Office, Wellington content has been or will be published elsewhere will not be considered for publication. The Journal Emeritus Professor Peter Hogg QC Professor Jeremy Waldron cannot return manuscripts. Blake, Cassels and Graydon LLP New York University Regular submissions are subject to a double-blind peer review process. In addition, the Journal Professor Philip Joseph Sir Paul Walker occasionally publishes addresses and essays by significant public office holders. These are subject University of Canterbury Royal Courts of Justice, London to a less formal review process. Sir Kenneth Keith Deputy Chief Judge Caren Fox Māori Land Court Contributions to NZJPIL express the views of their authors and not the views of the Editorial Emeritus Professor, Victoria University of Committee or the New Zealand Centre for Public Law. All enquiries concerning reproduction of the Wellington Professor George Williams Journal or its contents should be sent to the Student Editor. Professor Jerry Mashaw University of New South Wales Yale Law School Hon Justice Joseph Williams Annual subscription rates are NZ$100 (New Zealand) and NZ$130 (overseas). Back issues are High Court of New Zealand available on request. To order in North America contact: Sir John McGrath Gaunt Inc Gaunt Building Editorial Committee 3011 Gulf Drive
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