W AIKA TO LAW REVIEW TAUMAURI VOLUME 10 2002 CONTENTS Journalistic Responsibility, Freedom of Speech and Protection of Reputation-- Striking the Right Balance Between Citizens and the Media Rt Hon Justice Tipping Where Are the Negotiations in the Direct Negotiations of Treaty Settlements? Craig Coxhead 13 Waikato Law Review: The First Ten Years Thomas Gibbons 39 Lord Cooke ofThorndon: The New Zealand Dimension Peter Spiller 55 Award of Damages to Part-subsistence Villagers in Papua New Guinea Douglas Tennent 67 Battered Defendants and the Criminal Defences to Murder Julia Tolmie 91 Book Reviews Craig Coxhead, Paul Havemann, Wayne Rumbles and Sue Tappenden 115 The McCaw Lewis Chapman Advocacy Contest Jane Walker 125 Editor: Professor Peter Spiller Editorial Committee: Peter Spiller, AI Gillespie, Brenda Midson, Gay Morgan, Linda Te Abo and Leah Whiu. The Waikato Law Review is published annually by the Waikato University School of Law. Subscription to the Review costs $20 per year (plus postage for overseas subscribers); and 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 Editor Waikato Law Review School of Law Waikato University Private Bag 3105 Hamilton New Zealand North American readers should obtain subscriptions direct from the North American agents: Wm W Gaunt & Sons Inc 3011 Gulf Drive Holmes Beach Florida 34217-2199 USA This issue may be cited as (2002) 10 Waikato Law Review. 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 EDITOR'S INTRODUCTION I am pleased to present the tenth edition of the Waikato Law Review. I thank the authors who submitted articles to the Review, the referees to whom articles were sent, and the members of the editorial committee. The Review is proud to publish the Harkness Henry Lecture of the Right Honourable Justice Tipping, a Judge of the Court of Appeal. His lecture on "Striking the Right Balance Between Citizens and the Media" was highly topical, and was enriched by his recent experience as a member of the Privy Council which heard litigation in this area. The growing prestige of the Review in New Zealand continues to be reflected in the articles received from outside the University of Waikato. The Review is pleased to publish an article on damages by a former academic staff member of the University of Papua New Guinea, and an article on the battered woman's syndrome by an academic staff member of the University of Auckland. There are two student publications in the Review. One, by Thomas Gibbons, is an opportune review of the Waikato Law Review over its first ten years. The other, by Jane Walker, is the winning submission in the annual student advocacy contest kindly sponsored by the Hamilton firm McCaw Lewis Chapman. The other contributions to the Review were written by staff at the University of Waikato. These submissions, and the others noted above, underline the Waikato Law School's continuing commitment to its foundation goals. Professor Peter Spiller, Editor, Waikato Law Review. Partners Address Warren Scotter KPMGCentre Paul Middlemiss 85 Alexandra Street Simon Menzies Hamilton Lynden Earl New Zealand Christine Grice Simon Ellis Postal Address Mark Thomson Private Bag 3077 Mark MacLennan Hamilton New Zealand Consultant Murray Branch Communication Telephone (07) 838 2399 Associates Facsimile (07) 839 4043 Chris Marr DX GP 20015 Jillene Peters Email [email protected] Jake Casey Website www.harkness.co.nz Paul Pointon Jarrod Tme • LAWLINK A NETWORK Of INDEPENDENT LEGAL PRACTICES NA TtONWIDE THE HARKNESS HENRY LECTURE JOURNALISTIC RESPONSIBILITY, FREEDOM OF SPEECH AND PROTECTION OF REPUTATION­ STRIKING THE RIGHT BALANCE BETWEEN CITIZENS AND THE MEDIA BY THE RIGHT HONOURABLE JUSTICE TIPPING* Section 14 of the New Zealand Bill of Rights Act 1990 states that: Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form. But the freedom of speech which is there affirmed is subject to any reasonable limit prescribed by law which may be demonstrably justified in a free and democratic society. Section 5 of the Bill of Rights is the vehicle which thereby allows freedom of speech to be curtailed to the extent appropriate to accommodate other rights and values. Hence the law of defamation can co-exist with section 14, albeit in difficult cases there will always be tension between the two, which the Courts must resolve. Freedom of speech does not in general terms entitle people to speak falsely of others to the detriment of their reputations. That would not be for "the common convenience and welfare of society", as Parke B described the rationale for what became an occasion of qualified privilege, in the influential early case of Toogood v Spyring.I Hard-won reputations are entitled to protection as well as freedom of speech. Nevertheless the common law right to protect your good name must co-exist with the right of others to speak freely about you and thus, in some circumstances, falsities will not be actionable. In the days before mass media communication had developed to its present extent, the accommodation of the competing interests was relatively straightforward. Historically it developed largely through the doctrines of fair comment and qualified privilege. In respect of the latter, the law came to recognise that there were circumstances in which the malice that would ordinarily be inferred from the speaking of falsehoods about another person could not reasonably be inferred. I developed this theme in my separate judgment in the first Lange case.2 * A Judge of the Court of Appeal of New Zealand. I (1834) I Cr M & R 181, 193 and 194; 149 ER 1044, 1050; [1824-34] AllER Rep 735. 2 Lange v Atkinson [1998]3 NZLR 424,471-472. 2 Waikato Law Review VollO The familiar duty/interest test for qualified privilege grew up on this basis. It was based on the notion of reciprocity of interest and duty between the speaker or writer and the person or persons to whom the words were addressed. The privilege could be defeated if the malice which was not presumed could be expressly proved. Such malice was called express or actual malice to distinguish it from the malice that would otherwise have been presumed from the speaking of the falsehood. Express or actual malice in this sense can now be regarded as subsumed in the concept of misusing the occasion of privilege adopted in section 19(1) of the Defamation Act 1992. Misuse of the occasion is deemed to have occurred if spite or ill-will can be demonstrated but is not confined to those concepts. Section 19( 1) provides: (I) In any proceedings for defamation, a defence of qualified privilege shall fail if the plaintiff proves that, in publishing the matter that is the subject of the proceedings, the defendant was predominantly motivated by ill will towards the plaintiff, or otherwise took improper advantage of the occasion of publication. By dint of its historical origin and the associated criteria, qualified privilege was, until recently, seldom available for publications directed to a wide audience. It was difficult under the traditional approach to the privilege to conclude that the public at large, or a substantial section of the public, had the necessary legitimate interest in the publication to raise in the publisher a reciprocal duty to publish. A matter which was of interest to the public was not one which per se invested the publisher with a duty to publish it to the general public. But the historical approach to the interest/duty equation has had to respond to two relatively recent phenomena. The first is the rise of the mass media. The second is the growing emphasis which both the common law and constitutional or quasi-constitutional instruments have been giving to freedom of speech. The response of the law of qualified privilege to these developments has been influenced also by the significant fact that malice in the traditional sense is usually difficult to demonstrate when the publication is one involving the mass media. And of course at common law (as under section 19) the onus is on the plaintiff to show that the defendant publisher was actuated by malice (or now its statutory equivalent). The challenge of accommodating all these strands into a coherent legal structure, which adequately balances the competing interests, reached the top Courts in Australia, England and New Zealand at much the same time. David Lange, the former Prime Minister of New Zealand, has been the leading contributor to the jurisprudence in the Antipodes. Albert Reynolds, a 2002 Journalistic Responsibility 3 former Prime Minister of Ireland, has been the main contributor in the United Kingdom. It is not my purpose to survey in any detail the judgments in the various cases. The Australian cases came first. The decisions of the High Court of Australia were influenced by constitutional factors and also by the particular terms of the Defamation Act 1974 (NSW). It can fairly be said that the High Court laid special emphasis on the idea that "freedom of communication on matters of government and politics is an indispensable incident of [the] system of representative government".3 A counterbalance to that freedom, namely, the taking of reasonable care, was able to be found in the statute, either directly or by analogy, so the High Court was not faced with the difficulties other Courts have faced in finding an appropriate control.