W AIKA TO LAW REVIEW TAUMAURI VOLUME9 2001 CONTENTS Some Human Rights Issues Ron Dame Silvia Cartwright Conditional Gifts and Freedom of Testation: Time for a Review? Noel Cox 24 Great Elucidations: The Interpretation of Revenue Statutes in New Zealand Thomas Gibbons 63 No Rights Without Responsibilities? Third Way and Global Human Rights Perspectives on Citizenship Paul Havemann 75 The Extensive Powers of the Commissioner of Inland Revenue in Assessing and Collecting Tax Debts Joel Manyam 91 Henry Greathead Rex Mason QC CMG: An Outstanding Law Reformer Derek Round 131 Close Corporations in South Africa: A Viable Option for New Zealand Small Business Corporate Law? Michael Spisto and Helen Samujh 153 EEO for MiioriWomen in Maori Organisations Linda TeAho 187 Reading Hate Speech from the Bottom in Aotearoa: Subjectivity, Empathy, Cultural Difference Catherine Lane West-Newman 231 Waikato Law School's Bicultural Vision- Anei Te Huarahi Hei Wero I A Tatou Katoa Leah Whiu 265 Book Reviews Joel Manyam, Brenda Midson, Stephanie Milroy, Sue Tappenden 293 The McCaw Lewis Chapman Advocacy Contest Anton Usher 315 Editor: Professor Peter Spiller Editorial Committee: Peter Spiller, Wendy Ball, Radha D'Souza, David Gendall, AI Gillespie, Paul Havemann, Anna Kingsbury, Brenda Midson, Stephanie Milroy, and Gay Morgan. 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 (2001) 9 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 ninth 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 Her Excellency the Governor-General, the Honourable Dame Silvia Cartwright. Her lecture on "Some Human Rights Issues" was eagerly awaited in the light of her extensive involvement in international human rights, and was well received by a large audience. The growing prestige of the Review in New Zealand is reflected in the increasing number of articles which are being received from outside the University of Waikato. The Review is pleased to publish articles on testation and hate speech by academics from Auckland, and the article on Rex Mason by the journalist Derek Round. There are two student publications in the Review. One, by Thomas Gibbons, is on the interpretation of taxation legislation. The other, by Anton Usher, is the winning submission in the annual student advocacy contest kindly sponsored by the Hamilton firm McCaw Lewis Chapman. The other articles in the Review are written by staff at the University of Waikato. These articles, and the others noted above, underline the Waikato Law School's continuing commitment to professionalism, biculturalism and law in context. Professor Peter Spiller, Editor, Waikato Law Review. ··!IKII!\4,-!!i_ess Hemy ~&:~ Partners Address Warren Scatter KPMG Centre 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 Murray Branch New Zealand Associates Communication Chris Marr Telephone (07) 838 2399 Jillene Peters Facsimile (07) 839 4043 Jake Casey DX GP 20015 Paul Painton Email [email protected] Susan Woodhouse Website www.harkness.co.nz • LAW'LINK A NETWORK OF INDEPENDENT LEGAL PRACTICES NATIONWIDE THE HARKNESS HENRY LECTURE SOME HUMAN RIGHTS ISSUES BY THE HONOURABLE DAME SILVIA CARTWRIGHT* Greetings Nga hau e whii, ngii iwi e tau nei, tenii koutou katoa. E ngii mana, e ngii reo, rau rangatira mii, tenii koutou, tenii koutou, tenii koutou katoa. My greetings to you all, people who have gathered from near and far. To all honoured guests, to the speakers, my respects and, again, my greetings. Ngii mihi o te tau kia koutou. Thank you for your warm welcome. I am delighted to be invited this year, in the first year of my term as Governor-General, to present this prestigious lecture. My connections with the Waikato, with Hamilton, with this University and with Harkness Henry are long and fond, at least on my part. I am conscious too, that I follow in the footsteps of a number of eminent judges and lawyers who have delivered this address. I am deeply honoured to have been invited to speak today and on the topic of Human Rights in New Zealand. You may wonder why I have chosen this, rather than a legal or judicial topic, or a subject associated with my new vice-regal role such as a constitutional issue. The answer is quite simple. I am rapidly losing touch with the juridical issues which might be engrossing for this audience, and there have been no major new constitutional developments upon which I wish to touch, since Sir Michael Hardie Boys so ably discoursed on the subject of "Continuity and Change - The 1996 General Election and the Role of the Governor-General" in July 1997. Human Rights and its impact on our society and internationally is an evergreen subject, one which I find fascinating, and one which has real * DBE, PCNZM, Governor-General of New Zealand. 2 Waikato Law Review Vol9 application through all the social, economic, cultural and political changes that this country and, many overseas, undergo. I. INTRODUCTION So my subject tonight is human rights. Though it is not a topic on every lip, I hope that I can convince you that it deserves more attention than it receives. In New Zealand, human rights tend to be thought of as someone else's issue - in Africa and Asia, in recent history in Latin America, sometimes in the United States of America and in the Middle East. We tend to think that we have no problems in New Zealand. In our media, stories with the headline "human rights" tend to the trivial and even the silly. Some of you may, for instance, have seen the splash in the news recently about what the Race Relations Conciliator wore to the Wellington Club. Was that really an issue of human rights? And why was there so much fuss about it? What about real stories of racism in New Zealand or pieces on the way in which dress restricts a person's right to work, to go to school without looking and feeling different from other students - as if in some way you are marked out as being in a minority. Why would dress be of any importance anyway? Well, of course 1t IS important to the young woman who must wear a veil or be stoned, or to the young girl born in New Zealand who even here must wear a scarf out of some outdated biblical notion that women's hair must be hidden. But most of you might say real human rights issues are not hindering our people. Listen, however, to what Kofi Annan, the Secretary-General of the United Nations, has to say: Simply stated, the pursuit of development, the engagement with globalisation, and the management of change must all yield to human rights imperatives, rather than the reverse. Well, New Zealand has an interest in development, perhaps not at the level of a developing country, but the issue is of vital importance to us as we continue our ongoing struggle to maintain our standard of living. And globalisation -it has benefits and disadvantages for New Zealanders, so we are keenly interested in the debate. And we all know about change and its management. That has been a hot topic for two decades now. All of these issues can have an impact on the human rights of sectors of our community, 2001 Some Human Rights Issues 3 and we must constantly be on guard to ensure that these rights are not subjugated to those of others. Perhaps a good starting point for today are the questions posed for all countries by Mary Robinson, High Commissioner for Human Rights and Secretary-General for the World Conference against Racism: As a new century begins, we believe each society needs to ask itself certain questions. Is it sufficiently inclusive? Is it non-discriminatory? Are its norms of behaviour based on the principles enshrined in the Universal Declaration of Human Rights? Those questions come from the Declaration on Tolerance and Diversity. Supported by Kofi Annan, with Nelson Mandela as its Patron, this Declaration has been signed so far by 79 nations, including New Zealand. It has its roots in the Universal Declaration of Human Rights drafted at a time of intense interest in human rights. The Declaration, to which I shall return later, is inspiring and challenging. II. NEW ZEALAND'S ROLE IN INTERNATIONAL HUMAN RIGHTS DEVELOPMENT Not many of us know about New Zealand's proud history in the human rights field. Starting with the conference where the United Nations' Charter was drafted in 1945, New Zealand has been a leader. The original proposals for the Charter had no substantial material on human rights - the notion was that states' rights took precedence over individuals' rights.