R v Mika: An investigation into the Court of Appeal’s neglect of s 27 of the Sentencing Act 2002

The Court of Appeal in the case of R v Mika failed to engage with section 27 of the Sentencing Act 2002 in dismissing Mr Mika’s appeal against his sentence. In both the High Court and Court of Appeal the focus was on Mr Mika’s argument for a discount of 10 per cent to be applied to his sentence to reflect his Māori heritage and associated social disadvantages. Section 27 of the Sentencing Act would allow a court to take into account cultural information regarding Maori offenders’ backgrounds and the systemic disadvantages stemming from this. In dismissing Mika’s appeal, the Court erred in not considering the clear signals from Parliament that the judiciary were to take into account Maori offenders’ backgrounds at the sentencing stage through s 27 in an effort to fit appropriate sentences to Maori offenders. Recent developments in Canada have seen the Canadian judiciary recognise their role in the over-representation of Aboriginal people in the Canadian prison population. The New Zealand judiciary can take lessons from the willingness of the Canadian judiciary to take cultural information into account at sentencing.

Harvey v Beveridge: Common Intention Constructive Trusts in New Zealand?

10.26686/vuwlr.v46i3.4895 ◽

2015 ◽

Vol 46 (3) ◽

pp. 959

Author(s):

Mark Bennett

Keyword(s):

New Zealand ◽

High Court ◽

Adequate Understanding ◽

This article discusses the reasoning of the High Court and Court of Appeal in Harvey v Beveridge in respect of the existence of "common intention constructive trusts" in New Zealand law. It analyses the development of constructive trusts doctrine in New Zealand, and argues that a different approach was taken to the application of this doctrine in relationship property disputes compared with the equivalent English doctrine. This difference was not recognised in Harvey v Beveridge, and it is argued that an adequate understanding of this difference requires us to grapple with the underlying foundations of the New Zealand law, which were left open during the Court of Appeal's development of the doctrine.

To whom will ye liken me, and make me equal? Reformulating the role of the comparator in the identification of discrimination

10.26686/wgtn.17006377.v1 ◽

2021 ◽

Author(s):

◽

Asher Gabriel Emanuel

Keyword(s):

New Zealand ◽

Attorney General ◽

Child Poverty ◽

Chief Executive ◽

Bill Of Rights ◽

Group V ◽

Analytical Reasoning ◽

Recent Developments ◽

The use of comparator groups has to date been central to establishing a breach of s 19 of the New Zealand Bill of Rights Act 1990. The New Zealand courts’ approach to the formulation of comparator groups admits a lack of a clear methodology. This paper argues that, in the absence of a framework guiding the formulation of the comparator, the methodology permits arbitrary and inconsistent decision-making. The flexibility of the approach risks premature exclusion of claims in reliance on intuitive rather than analytical reasoning, limiting the transformative potential of nondiscrimination provisions. Of particular concern is the involvement of matters of justification at the comparator stage. The High Court judgment in B v Chief Executive of the Ministry of Social Development is emblematic of these concerns. Recent developments at the Court of Appeal in Ministry of Health v Atkinson and Child Poverty Action Group v Attorney-General have provided some guidance, but have not gone far enough. This paper recommends that the courts depart from requiring a comparator for claims under s 19. Where comparators are necessary, it is proposed that the courts defer to the claimant’s choice of comparator, and decouple the identification of differential treatment from questions of causation.

Young, Hon. Sir Ronald (Leslie), (born 18 July 1951), a Judge of the High Court, New Zealand, 2001–15; a Judge of the Court of Appeal: Vanuatu, since 2006; Solomon Islands, since 2016

10.1093/ww/9780199540884.013.287678 ◽

2016 ◽

Keyword(s):

New Zealand ◽

Solomon Islands ◽

High Court ◽

The Majestic Equality of Disenfranchisement: Assessing the Right to Freedom from Discrimination in Light of the Ngaranoa Litigation

10.26686/vuwlr.v51i1.6517 ◽

2020 ◽

Vol 51 (1) ◽

pp. 27

Author(s):

Charlie Cox

Keyword(s):

New Zealand ◽

Moral Judgment ◽

Political Theory ◽

Common Sense ◽

Attorney General ◽

Moral Judgments ◽

Ministry Of Health ◽

High Court ◽

The Right ◽

The right to freedom from discrimination in New Zealand is underpinned by equality, one of the most influential, yet amorphous principles in political theory. This article argues that the failure of New Zealand courts to articulate the norms behind the anti-discrimination guarantee enables arbitrary and inconsistent reasoning. The decisions of the High Court in Taylor v Attorney-General and the Court of Appeal in Ngaronoa v Attorney-General thus reflect a wrong turn in New Zealand discrimination law, taken in the case of Ministry of Health v Atkinson. Because discrimination law necessitates moral judgment, this article argues that the courts have been wrong to treat discrimination law as a largely amoral enterprise. Seen in this context, it should be unsurprising that the decisions of Taylor v Attorney-General and Ngaronoa v Attorney-General appear to mask moral judgments behind a façade of empiricism and common sense, and reveal different conceptions of equality.

New Zealand

The International Protection of Adults ◽

10.1093/9780198727255.003.0050 ◽

2015 ◽

Author(s):

Adrian Ward ◽

Gledhill Kris

Keyword(s):

New Zealand ◽

Common Law ◽

Family Court ◽

District Court ◽

District Courts ◽

Appellate Courts ◽

High Court ◽

The Supreme Court ◽

Court Of First Instance ◽

New Zealand is a common law country. The judicial structure is the Supreme Court and the Court of Appeal, which are appellate courts only; the High Court, which hears appeals from District Courts in some situations but is also a court of first instance; the District Court, which is principally a court of first instance but also hears appeals from some Tribunals; and various Tribunals. There is also a Family Court, in which warranted District Court judges sit, and which—along with the High Court—deals with adult protection matters.

To whom will ye liken Me, And make Me equal? Reformulating the Role of the Comparator in the Identification of Discrimination

10.26686/vuwlr.v45i1.4971 ◽

2014 ◽

Vol 45 (1) ◽

pp. 1 ◽

Cited By ~ 1

Author(s):

Asher Gabriel Emanuel

Keyword(s):

New Zealand ◽

Social Development ◽

Attorney General ◽

Child Poverty ◽

Chief Executive ◽

Bill Of Rights ◽

Analytical Reasoning ◽

Recent Developments ◽

The use of comparator groups has to date been central to establishing a breach of s 19 of the New Zealand Bill of Rights Act 1990. The New Zealand courts' approach to the formulation of comparator groups admits a lack of a clear methodology. The author argues that, in the absence of a framework guiding the formulation of the comparator, the methodology permits arbitrary and inconsistent decision-making. The flexibility of the approach risks premature exclusion of claims in reliance on intuitive rather than analytical reasoning, limiting the transformative potential of non-discrimination provisions and offending against the proper construction of s 19. Of particular concern is the involvement of matters of justification at the comparator stage. The judgments of the High Court and Court of Appeal in B v Chief Executive of the Ministry of Social Development and G B as Executor of the Estate of B of Whangarei v the Chief Executive of the Ministry of Social Development respectively are emblematic of these concerns. Recent developments at the Court of Appeal in Ministry of Health v Atkinson and Child Poverty Action Group Inc v Attorney-General have provided some guidance, but have not gone far enough. The author recommends that the courts defer to the claimant's choice of comparator, and decouple the identification of differential treatment from questions of causation.

Failing the System? Enfocing the Right to Education in New Zealand

10.26686/vuwlr.v35i3.5712 ◽

2004 ◽

Vol 35 (3) ◽

pp. 735 ◽

Cited By ~ 1

Author(s):

E J Ryan

Keyword(s):

New Zealand ◽

Attorney General ◽

Right To Education ◽

London Borough ◽

High Court ◽

House Of Lords ◽

Borough Council ◽

The Right ◽

Court Of Appeal ◽

Domestic Level

At both the international and domestic level, the existence of a right to education is given widespread support. But what are the content and consequences of this right? The meaning of the right to education was examined recently in the context of special education by the High Court and Court of Appeal in Daniels v Attorney-General. The High Court saw the right as a substantive one; the Court of Appeal viewed it in procedural terms. These different conceptions of the right affected the remedies available to the plaintiffs. This article assesses the competing understandings of the education right in NZ, and concludes, particularly in light of the House of Lords' decision in Phelps v Hillingdon London Borough Council, that the High Court's approach is to be preferred.

To whom will ye liken me, and make me equal? Reformulating the role of the comparator in the identification of discrimination

10.26686/wgtn.17006377 ◽

2021 ◽

Author(s):

◽

Asher Gabriel Emanuel

Keyword(s):

New Zealand ◽

Attorney General ◽

Child Poverty ◽

Chief Executive ◽

Bill Of Rights ◽

Group V ◽

Analytical Reasoning ◽

Recent Developments ◽

The use of comparator groups has to date been central to establishing a breach of s 19 of the New Zealand Bill of Rights Act 1990. The New Zealand courts’ approach to the formulation of comparator groups admits a lack of a clear methodology. This paper argues that, in the absence of a framework guiding the formulation of the comparator, the methodology permits arbitrary and inconsistent decision-making. The flexibility of the approach risks premature exclusion of claims in reliance on intuitive rather than analytical reasoning, limiting the transformative potential of nondiscrimination provisions. Of particular concern is the involvement of matters of justification at the comparator stage. The High Court judgment in B v Chief Executive of the Ministry of Social Development is emblematic of these concerns. Recent developments at the Court of Appeal in Ministry of Health v Atkinson and Child Poverty Action Group v Attorney-General have provided some guidance, but have not gone far enough. This paper recommends that the courts depart from requiring a comparator for claims under s 19. Where comparators are necessary, it is proposed that the courts defer to the claimant’s choice of comparator, and decouple the identification of differential treatment from questions of causation.

Tompkins, Hon. Sir David (Lance), (born 26 July 1929), Judge of the High Court of New Zealand, 1983–97, Acting Judge, 1998–2003; Judge, Court of Appeal of Kiribati, since 2001, of Vanuatu, since 2002, and of Tuvalu, since 2009

10.1093/ww/9780199540884.013.37849 ◽

2007 ◽

Keyword(s):

New Zealand ◽

High Court ◽