6,165 results for Scholarly text

  • The statute speaks again - An assessment of New Zealand's journey towards pay equity: The difficulties and implications of an equitable solution

    Minett, Constance Emily (2016)

    Scholarly text
    Victoria University of Wellington

    In 1893 women won the right to vote. Since then, women have been calling for pay equal to that of men. This work evaluates the latest and first successful equal pay claim made under the Equal Pay Act 1972: Service and Food Workers Union Nga Ringa Tota Inc v Terranova Homes and Care Ltd [Terranova]. Terranova redefined the Act’s requirements for the implementation of equal pay and ended four decades of legislative fossilisation. The scope of the requirement of equal pay for female employees for work exclusively or predominantly performed by them contained in s 3 was interpreted broadly. The potential fiscal implications of Terranova created a situation ripe for political action. The Joint Working Group on Pay Equity Principle was established by the Government and negotiations between the Government and residential care industry began. However, this paper’s conclusion is that effective implementation of equal pay is unlikely. The financial cost of the decision is the most significant barrier. There are significant structural barriers to implementation and deeper issues of systematic gender discrimination remain. Viewed correctly, Terranova does not signify attainment of equal pay; rather it is the start of a journey towards successful implementation.

    View record details
  • Reasonable accommodation: Equal education for learners with disabilities

    McMenamin, Rebecca (2016)

    Scholarly text
    Victoria University of Wellington

    This paper analyses the concept of reasonable accommodation which is integral to realising the Education Act 1989’s promise of equal education for persons with disabilities. Currently, that promise is undermined by discriminatory practices in schools. Reasonable accommodation is relevant to determining whether discrimination by State schools is justified pursuant to s 5 of the New Zealand Bill of Rights Act 1990. It raises considerations of the effectiveness of any accommodation and burden of that accommodation on State schools. This paper applies those considerations to the facts of A v Hutchinson and Green Bay High School to conclude that discrimination in the disciplinary decision at issue was not justified. Having assessed that situation, this paper turns to broader policy issues of the limited effectiveness of the law in remedying discrimination by State schools and the need to upskill, educate and support educators to realise the promise of equal education.

    View record details
  • House prices and macroprudential policy in an estimated DSGE model of New Zealand

    Funke, Michael; Kirkby, Robert; Mihaylovski, Petar (2017)

    Scholarly text
    Victoria University of Wellington

    We analyse the effects of macroprudential and monetary policies and their interactions using an estimated dynamic stochastic general equilibrium (DSGE) model tailored to New Zealand. We find that the main historical drivers of house prices are shocks specific to the housing sector. While our estimates show that monetary policy has large spillover effects on house prices, it does not appear to have been a major driver of house prices in New Zealand. We consider macroprudential policies, including the loan-to-value restrictions that have been implemented in New Zealand. We find that loan-to-value restrictions reduce house prices with negligible effects on consumer prices, suggesting that they can be used without derailing monetary policy. We estimate that the loan-to-value restrictions imposed in New Zealand in 2013 reduced house prices by 3.8 per cent and that greater forward guidance on their duration would have made them more effective.

    View record details
  • Maintaining international peace and security: The case for a responsibility not to veto

    Steevens, Hester (2016)

    Scholarly text
    Victoria University of Wellington

    This paper argues that the permanent members of the Security Council (the SC) should have a responsibility not to exercise their veto power when genocide, war crimes, crimes against humanity, or ethnic cleansing (together mass atrocities) are occurring or there is an imminent threat of them occurring. It looks at the origins of the SC and the evolution of the veto. It explains that the flaws associated with the veto threaten the legitimacy of the SC. It then discusses the concept of Responsibility to Protect (R2P) and links this to the veto power. The paper then investigates ways of reforming the veto. It shows that amendment is unlikely so other means need to be looked at. It investigates creative interpretation of the Charter, the Uniting for Peace resolution, and the creation of a code of conduct, and deems creating a code of conduct regulating veto use as the strongest of these options. The paper then analyses initiatives that limit the veto power before proposing a new code of conduct. The paper concludes that there needs to be a commitment by the permanent members of the SC to refrain from using the veto in mass atrocity situations.

    View record details
  • Blocking the future? The regulation of distributed ledgers

    Blummont, Dion (2016)

    Scholarly text
    Victoria University of Wellington

    Distributed ledgers, and in particular blockchain technologies, promise to be revolutionary to financial markets, and the uptake of Bitcoin shows that it can also influence wider society. This paper examines the suggested uses of the technology, as well as the possible regulatory concerns that the technology raises. It looks at various regulatory measures that have been developed by jurisdictions to combat it, as well as possible applications of current regulatory frameworks. The paper then frames the issues in a regulatory lens, and looks at what lessons can be learned for regulation going forward.

    View record details
  • Law reform and the Adoption Act 1955: A history of misfortune

    Doidge, Isla Mirren (2016)

    Scholarly text
    Victoria University of Wellington

    The Adoption Act 1955 is now 61 years old and has been passed over for reform on multiple occasions. This paper analyses the failed history of law reform beginning in the year 2000 when a Law Commission Report was issued. This paper identifies why successive attempts by both Labour and National governments failed in reforming adoption over a sixteen year period. Despite multiple attempts at reform, this paper argues that law reform has failed due to a combination of other important governmental priorities, the controversial issues involved in adoption, the ability of the courts to reinterpret the legislation, and the small impact of reform. This paper concludes by using adoption reform as a case study to draw out three main general principles about law reform. The first is the necessity of reform; this paper argues when law reform involves a controversial human rights problem it becomes simultaneously difficult to progress due to political risk, but once that controversy is resolved the reform is no longer considered as necessary. The second is the opportunity to reform; when law reform is seen as less necessary because other agencies are able fix problems within the legislation, other more critical projects will displace a reform project on the hierarchy of political priorities. The third is political interest; the ability to place the responsibility of ‘updating’ the application of legislation onto the courts or another agency results in reduced political interest in reforming that legislation.

    View record details
  • Central clearing and credit default swaps

    Cao, Tran Bao (2016)

    Scholarly text
    Victoria University of Wellington

    My interest in this research topic was inspired by the apparently global consensus on the mandate for central clearing in the credit default swaps market. At the first glance, the central clearing mechanism with its central counterparties is the hero who saved many market participants from substantial losses following Lehman Brother’s collapse. It was heralded for debunking the complex interconnection among financial counterparties and resolving Lehman Brother’s positions in a timely and orderly manner. Nonetheless, after coming into the spotlight, central counterparties raise significant concern about their potential to concentrate systemic risk and grown into ‘too important to fail’ institutions. Any collapse of a ‘too important to fail’ institution is undoubtedly disastrous and likely results in a cascade of defaults by other market participants. Therefore, it is highly questionable whether central clearing can ultimately maintain and protect the market robustness and sustainability. It is even criticised as the Maginot Line of the financial market for being a costly but inefficient bulwark and creating a “false sense of security”. Therefore, this research paper aims to address the aforementioned concern, whether the central clearing regime should be promoted to mitigate the counterparty risk even when it simultaneously propagates another type of systemic risk to the financial market. As the legal framework and the risk management practices of CCP have not been battle test, it is impossible to reach any final and ex post conclusion on the ultimate efficiency of CCP. Nevertheless, historically CCP managed to withstand severe market distress whereas currently policymakers and regulators are spending increasing efforts on addressing and mitigating the systemic risk concentrated through CCP. Compared to other alternative clearing infrastructures, it is evident that central clearing is the optimal approach to address the counterparty risk and to enhance the market stability. Further, the research demonstrates that despite central counterparties’ potential to concentrate and re-distribute systemic risk, their shortcomings and contagious fallouts are not insurmountable. They can be efficiently controlled and mitigated through the implementation of adequate regulations and supervision.

    View record details
  • An analysis of the design and implementation of behaviourally informed laws, regulation, and and decisions to 'nudge' in New Zealand

    Hansen, Tory (2016)

    Scholarly text
    Victoria University of Wellington

    The advent of behavioural economics and nudge theory provides new challenges for policy designers and regulators. These theories assume a different model of human behaviour than that commonly used by regulators, and also introduce a new type of governance – that of ‘libertarian paternalism’. This paper seeks to answer the question of how New Zealand’s regulatory design and law reform processes should adapt in light of these two developments. This paper considers the regulatory impact statement process should incorporate a complementary behavioural economic model, whereas the case for a change to disclosure statements is less clear cut. It proposes that explicit and open consideration of behaviourally informed options regulatory impact statements increases the transparency and accountability of government, without decreasing their efficacy. As behavioural economics and nudging become more prevalent, the suggested changes aim to ensure that New Zealand’s law reform processes remain thorough and robust. This should allow complex policy issues to be translated into effective instruments.

    View record details
  • The Dodd-Frank Act: Immortalising bailouts

    Smith, Claudia (2016)

    Scholarly text
    Victoria University of Wellington

    The Global Financial Crisis saw an unprecedented level of government intervention to save failing financial institutions. Bailouts became synonymous with the Crisis. Despite promises of “no more bailout”, international efforts to implement resolution regimes to resolve systemically important financial institutions have failed to solve the bailout issue. This paper examines the Dodd-Frank Act and concludes that instead of providing a pathway for large financial institutions to fail, it has enshrined too-big-to-fail and ensured bailouts will be there when needed. If regulators truly want to eliminate bailouts, too-big-to-fail institutions must be broken up. Until financial institutions become less systemically important, governments will have little choice other than to bail them out. In this light, Dodd-Frank’s Orderly Liquidation Fund is an inevitable but necessary bailout procedure that provides a more organised approach than emergency measures in the face of a severe crisis.

    View record details
  • Navigating the law reform route for driverless cars in New Zealand

    Fookes, Zane (2016)

    Scholarly text
    Victoria University of Wellington

    Driverless cars are an emerging technology, which removes the human driver from transportation and allows the technology itself to drive the car. The introduction of driverless cars to New Zealand will give rise to a number of legal issues, as the new technology attempts to fit within an existing legal framework. There is a need to reform the law to accommodate autonomous vehicles, which raises questions of how to best complete such a law reform process. The introduction of driverless cars can be divided into two stages: the testing stage, and the public introduction stage. Each stage will require a different method of reform. At the testing stage, this paper submits that no law reform should be undertaken. Testing may be undertaken by manufacturers legally within the existing transport law of New Zealand, and any new legislative requirements may repel manufacturers, to whom New Zealand would appeal as a testbed due to its reputation with emerging technologies and favourable liability laws. At the public introduction stage, where driverless technology is made available for purchase by the general public, this paper submits that a new legislative scheme should be drafted, working in correlation with international standards used to ensure quality control of vehicles imported into New Zealand.

    View record details
  • Avenues for enhancing social inclusion: Rethinking New Zealand's approach to social security and welfare

    Chu, Judy (2016)

    Scholarly text
    Victoria University of Wellington

    At present, an intense focus on paid work undergirds the Social Security Act 1964. However, many argue that a broad emphasis on social inclusion should be the primary focus of New Zealand's social security and welfare legislation. This paper explores how the idea of social inclusion has developed in New Zealand and analyses two options for implementing a greater focus on social inclusion. It will begin by briefly defining social inclusion and identifying some of the obstacles complicating implementation. Namely, it will discuss the difficulty of identifying when social inclusion is achieved and concerns about sustainability. This paper will also examine the different occasions in the past where the Government has given particular focus to this idea of social inclusion. Finally, in terms of implementing a greater focus on social inclusion, it will explore the prospects of introducing a right to social inclusion into the New Zealand Bill of Rights Act 1990 and the consequences of directly amending the Social Security Act to include a focus on social inclusion. It will argue that making direct changes to the Social Security Act is likely the best option.

    View record details
  • Calendar 1969

    Victoria University of Wellington (Wellington, N.Z.) (1969)

    Scholarly text
    Victoria University of Wellington

    View record details
  • Mapping and evaluating the regime complex for bribery

    Horner, James (2016)

    Scholarly text
    Victoria University of Wellington

    The international legal framework regulating bribery comprises a multitude of international obligations, domestic laws, financial sanctions, NGOs, codes of conduct, indicator regimes, regulatory and governance frameworks and asset recovery programs. This paper considers that these constituents constitute a ‘regime complex’. It comprehensively outlines the elements of this regime complex and concludes that while in some respects the regime complex functions well, other aspects warrant reconsideration in order to improve overall efficacy.

    View record details
  • Whate'er is best administered is best: Global administrative law, emergency powers and the World Health Organization

    van Alphen Fyfe, Monique (2016)

    Scholarly text
    Victoria University of Wellington

    The World Health Organization is uniquely placed to lay claim to normative legitimacy. It is the key centralised agency for international health law, and has almost universal state membership. Yet its powers of emergency contained in the International Health Regulations – to declare a public health emergency of international concern and determine the necessary response – are subject to considerable critique. The Organization’s legitimacy is potentially undermined. One way to reinforce legitimacy is through the use of Global Administrative Law principles such as transparency, participation and review. This paper examines the use of emergency power in the cases of SARS, H1N1 and Ebola to see if Global Administrative Law principles are present. It then considers whether using Global Administrative Law to constrain and review the use of emergency power is sufficient in itself, or whether it shrouds broader issues that ought to be raised regarding the World Health Organisation, the International Health Regulations, and the architecture of the international order.

    View record details
  • The shortfall in financial markets regulation: Why New Zealand should revisit its insider trading laws

    Fraser, Anna (2016)

    Scholarly text
    Victoria University of Wellington

    Insider trading is an exceptionally challenging offence to define, prove, and enforce. New Zealand is a country especially vulnerable to this challenge, with no insider trading convictions since first regulating the offence in 1988. This paper investigates the reasons behind this, by comparing the structure of New Zealand’s legislation and enforcement to the United States and the European Union. A reform of the Financial Markets Conduct Act is suggested, with four main areas identified to enhance the strictness of New Zealand’s legislation. A novel approach to enforcement is also recommended, through the introduction of a rewards scheme for whistle-blowers to reduce the inherent difficulty of meeting the criminal standard of proof.

    View record details
  • New Zealand's rape shield and the need for law reform to address substantial harm: When politics and the law must address social injury

    Sinclair, Bridget Alice Foster (2016)

    Scholarly text
    Victoria University of Wellington

    Section 44 of the Evidence Act 2006 is New Zealand’s “rape shield” that restricts certain questions being posed to the complainant during cross-examination. This paper analyses this provision, focusing on its legislative reform history. Sexual violence is a criminal area in New Zealand in need of reform and consideration. The criminal justice process is stacked against complainants due to the adversarial system, societal misconceptions and limited protective mechanisms. This issue is a social issue as well as a legal one. In this paper I offer a critique of the current criminal justice process and outline how work in this area could directly address the most pressing concerns for complainants of sexual violence. I argue that more work in this area is necessary. I finish the paper with an analysis of what section 44, its history and its limitations, illustrates regarding law reform.

    View record details
  • Henry VIII clauses: Their place in modern New Zealand

    Brennan, Sean (2016)

    Scholarly text
    Victoria University of Wellington

    New Zealand’s statutory and regulatory environment is becoming ever more complex in order to respond to the demands of an increasingly technologically and socially diverse world. For law makers, this provides significant challenges, particularly in the way that the relevant regulatory regimes are drafted. One of the responses made by the United Kingdom Parliament is the proliferation of the controversial so-called “Henry VIII clause”. These enable the executive branch of government to amend, suspend or override Acts of Parliament. These clause come with various expedience benefits, but also have some significant drawbacks, particularly in respect of their constitutional implications. This paper seeks to assess why these clauses are used and what about these clauses really is of concern. This paper concludes that New Zealand’s concerns, while shared with the United Kingdom’s to some degree, are really focused on the issue of policy production, and that if that is the understanding to be taken of these clauses, our use of the term “Henry VIII clause” may take on a different meaning.

    View record details
  • The revival of pay equity in New Zealand: The pursuit of a social goal through law reform

    Doyle, Charlotte (2016)

    Scholarly text
    Victoria University of Wellington

    The Equal Pay Act 1972 was passed as a piece of social law reform intended to eradicate discrimination in wages between men and women. For over forty years since the passing of the Act, there has been little progress on the implementation of pay equity in New Zealand and it continues to be an important legal battleground for the achievement of gender equality in employment. The successes and failures of achieving law reform around pay equity in New Zealand indicate that the institutions responsible for the instigation and implementation of such reform are each influenced by broader socio-economic and political climates. The Equal Pay Act 1972 has long been understood to be limited to assessments of equal pay for the same work, despite apparent provision for assessments of equal pay for work of equal value in the Act. Through the use of a purposive approach, recent judicial treatment of the Equal Pay Act 1972 by the Court of Appeal has departed from previous understandings of the Act by finding it extends to assessments of equal pay for work of equal value. This paper considers how this interpretation has generated a renewed effort on the part of the Government for reform around pay equity in light of the history of the Act. It argues that in moving forward, the choice between mechanisms of law reform is not clear cut. Both strong legislation and a responsive judiciary are required to work in tandem to achieve a social goal such as pay equity.

    View record details
  • Deposit insurance: Friend or foe?

    Radburn, Crosby (2016)

    Scholarly text
    Victoria University of Wellington

    Following the Global Financial Crisis many governments have undergone reform to ensure stability in financial markets. One mechanism adopted throughout many jurisdictions is deposit insurance. The Reserve Bank of New Zealand has chosen not to adopt such regulation. This essay criticises this decision. The current regulatory framework leaves depositors vulnerable to losses upon bank failure. Upon bank failure recovery is largely subject to the discretion of the Minister. This provides uncertainty in the markets, and consequently aggravates the risk of banks runs and a contagion risk. Adopting a suitably designed deposit insurance scheme will remove this uncertainty, create confidence, and increase the stability of the banking sector.

    View record details
  • Constitution Aotearoa - Hopeless dream or possible reality? An analysis of the hurdles facing major constitutional law reform in the New Zealand context

    Roberts, Scarlet Rhiannon (2016)

    Scholarly text
    Victoria University of Wellington

    Law reform is a complicated endeavor even at the best of times. Large scale constitutional reform then can seem a distant daydream. Sir Geoffrey Palmer and Dr Andrew Butler have undertaken to draft a codified constitution for Aotearoa New Zealand in an attempt to make that dream a possible reality. This paper looks at the core features of the draft constitution and highlights aspects of the proposal which may throw up hurdles in the reform process to be followed when attempting to pass the constitution into law. The key issues fall into two categories: those relating to legality and those relating to legitimacy. Ultimately issues of legality such as the propriety manner and form provisions, entrenchment and supreme law can be overcome. However, issues of legitimacy are at the crux of constitutional law reform. In order to produce a constitutional text which carries political legitimacy an extensive programme of public engagement must be undertaken, including educative elements as well as consultative elements which utilise new technologies as much as possible in order to engage as many communities across New Zealand as possible. While constitutional reform is possible, the actual reform process itself is instrumental in whether the vision will ultimately succeed or fail.

    View record details