Whiteboard for 2 October 2008
Recent cases
IMMIGRATION - appeal from unsuccessful judicial review proceedings challenging appellants' (both Chinese nationals) removal from New Zealand – appellants had a son J, who was born in NZ and was a NZ citizen - primary arguments related to rights and interests of J – International Covenant on Civil and Political Rights 1966 (ICCPR) and United Nations Convention of the Rights of the Child 1989 (CRC), and the way in which they must influence decisions under Immigration Act 1987 (the Act), considered – the "humanitarian interview": its provenance and current legal status, reviewed – role of Court when conducting judicial review, considered
HELD (inter alia): it was in response to Tavita v Minister of Immigration that Immigration Service adopted current procedure whereby "humanitarian interviews" were conducted, before removal actually took place – process required immigration officer to balance: (a) NZ's interests in controlling access to its borders and associated public policy considerations involving Government's residence policy, and statutory policies aimed at ensuring high level of compliance with immigration laws, and not advantaging those who did not comply with Act over those who did; with – (b) humanitarian considerations affecting overstayer including interests of any affected children – discretions under s54 (making of removal orders) and s58(5) (cancellation of removal orders) could only be exercised in context of scheme of Act as a whole, a scheme which contemplated that those in NZ illegally must either leave or obtain a permit – immigration officers could not exercise discretionary authority so as to leave an overstayer in legal limbo (i.e. in NZ unlawfully but not required to leave) – end result of process should be that overstayer either left NZ (compulsorily if necessary) or had immigration status regularised, perhaps under s35A (grant of permit in special case) or s130 (special directions)
Humanitarian interview was addressed not only to s54 and s58(5), but more importantly to s35A and s130 – it did not matter whether humanitarian interview occurred as part of s54 process or at a time when execution of removal order was imminent – a properly carried out s47(3) assessment (whether exceptional circumstances of a humanitarian nature made removal unjust or unduly harsh and contrary to public interest) which was reasonably proximate to removal would satisfy NZ's obligations under the ICCPR and CRC – if overstayer took view Removal Review Authority (RRA) had got it wrong, they should timeously appeal, or initiate judicial review proceedings – humanitarian interview must be assessed in context of legislative scheme as a whole – immigration officer was not required to engage in a full scale review of everything which had gone before – if there had been an up to date assessment in which best interests of child had been taken into account as a primary consideration, art3 CRC or s54 and s58(5) did not require an elaborate re-appraisal – but, where for some reason there had not been such as assessment, or relevant circumstances had changed, humanitarian interview stage of process was likely to assume greater significance – immigration officer who approached case by reference to s47()3) criteria, would be acting consistently with art3 CRC – it was not that immigration officer, at humanitarian interview stage of process, could only act in favour of overstayer, if satisfied s47(3)test was satisfied – if immigration officer considered, for instance, that permit under s35A was appropriate and was prepared to issue one, obviously there would be no occasion to make removal order under s54 and if order had been made, it would obviously be cancelled under s58(5) - in context of what had gone before, humanitarian interview phases of processes in relation to both appellants were adequate – appeal dismissed
Huang & Anor v Minister of Immigration (CA 262-06, 19 September 2008)
From the Times
CRIMINAL PROCEDURE - A case on warrants for arrest in relation to witnesses who fail to appear in response to a summons.
R v Popat [2008] EWCA Crim 1921
Notices & notes
Judge Advocate General appointed
Christopher John Hodson QC has been appointed to the position of Judge Advocate General of the Armed Forces.
Proposed appointments to the Independent Police Conduct Authority
A majority in the House of Representatives has voted to recommend that the Governor-General appoint Allan Galbraith, and Mel Smith, to the Independent Police Conduct Authority.
Privacy and information requests
"Privacy and information requests - the interrelationship between the Official Information Act and the Privacy Act" - a presentation by Katrine Evans, Assistant Privacy Commissioner (Legal), to the "Legal Issues for Crown Entities" conference held in Wellington 23/24 September 2008.
High Court Rules passed
New High Court Rules will come into force on 1 February 2009, following Parliament’s passing of the Judicature (High Court Rules) Amendment Bill on 11 September.
Will lawyers exist in 100 years?
Technology and standardisation will make lawyers less important, Richard Susskind argues in his forthcoming book, The End of Lawyers? In six draft extracts published in The Times, he examines the radical changes ahead for legal services.
Public Lending Right for New Zealand Authors
The new Public Lending Right for New Zealand Authors Act clearly establishes in law the right of eligible New Zealand authors to receive an annual payment compensating them for free access to their books in our libraries.
Formulating fair penalties for workplace accidents
Bell Gully Senior Solicitor Anna Clark asks whether fines at their current level a big enough stick to encourage safer workplace practices when organisations can insure against reparation awards.
Seasonal worker scheme to be improved
The government has decided on a number of measures to further improve the Recognised Seasonal Employer (RSE) scheme as it enters its second year.
Emissions trading scheme amendments passed
The Climate Change Response (Emissions Trading) Amendment Act 2008 contains provisions dealing with the income tax treatment of the forestry sector’s transactions in emissions units.
Managing Organisational Carbon Emissions
The Ministry for the Environment, through its role in centrally coordinating the Carbon Neutral Public Service (CNPS) programme is often asked for guidance on how best to effectively manage organisational carbon emissions. This factsheet is intended to provide a simple response.
Get rid of your old PCs, phones safely
Kiwis can dispose of the items at 32 centres throughout the country free of charge as part of eDay on Saturday and Sunday 4 & 5 October.
Appointments to the Takeovers Panel
The Governor-General has appointed Murdo Beattie and Andy Coupe to the Panel .
Shift workers' holidays protected under law change
The Holidays (Transfer of Public Holidays) Amendment Act amends the Holidays Act 2003 in relation to the transfer of public holidays for employees whose work shift crosses midnight.
AMINZ Auckland Breakfast Seminar
The speaker is Chris LaHatte on "Life on the Steppes – and how not to litigate there" Tuesday 14 October 2008, The Northern Club. Auckland.
Australia and New Zealand Sports Law Association conference
The ANZSLA 2008 Conference 'Sport:A political football' will be held at the Melbourne Cricket Ground (MCG) between October 15th -17th.
Australian Lawyers Alliance Conference
2008 National Conference, 16 - 18 October 2008, The Langham Hotel, Auckland, New Zealand.
Topics include: Indigenour rights, Ethical dilemmas for lawyers, Dangers of forensic contamination and Human rights charters.
"Losing the forest for the trees: reductionism of the environment in law and policy"
Professor Klaus Bosselmann lectures on international environmental law. Tuesday 21 October 2008, 6:45pm - 8:45pm at the Faculty of Engineering, Symonds St, Auckland.
Construction Adjudication Symposium - Construction Contracts Act 2002
Tuesday 21 October 2008 9.30am to 3.00pm
Venue: The Northern Club, 19 Princes Street, Auckland
This seminar is presented by the Arbitrators’ and Mediators’ Institute of New Zealand Inc. as part of the Institute’s continuing professional development programme. This one-day seminar will cover topics relevant to adjudicators, lawyers and ADR students.
Are you smarter than Bernard Brown?
The Legal research Foundation invites you to ask yourself "Are you smarter than Bernard Brown?" - an evening of wine and fine food, music and quizzing to determine whom among the profession are more learned both in law and in life.
Wednesday 22 October, 2008. 7:00pm at The Northern Club, Wintergarden, Princes St, Auckland.
RAMs Cocktail Challenge Extravaganza
ADLS invites Recently Admitted Members to a Cocktail Challenge Extravaganza hosted by Chapman tripp on Thursday 23 October 2008.
Refreshments from 5.30pm until 7.30pm.
at Level 35 ANZ Tower, 23 Albert Street, Auckland CBD
Please RSVP no later than Friday 17 October 2008 to Eileen Yee.
Take the Lead and Shape Your Future - Repeat Seminar
The Bar Council is delighted to report that as a result of the demand and the huge success of its July seminar for junior/intermediate litigators this seminar will be repeated on:
Wednesday, 29 October 2008, 1:30pm at the offices of Simpson Grierson.
Confirmed speakers include Justice Raynor Asher; Judge Fred McElrea; Alan Galbraith QC; Julian Miles QC; Jim Farmer QC and Deborah Hollings QC.
"Keeping culture free"
In this public lecture, Professor Lawrence Lessig reviews the struggle the "copyright wars" have produced, and maps a future for culture that achieves the ideals the law and industry should seek. Monday 3 November 2008 6:30pm - 8pm, University of Auckland Business School.
2008 New Zealand Insurance Law Conference
The NZILA conference will be held in Wellington over 6 - 7 November at the National Library. The theme this year will be "From the Ashes".
In the news
"Gurkhas win right to retire in UK". Al Jazeera website, 1 October 2008, discusses Limbu & Ors, R (on the application of) v Secretary of State for the Home Department & Ors [2008] EWHC 2261 (Admin)
Rowan, Juliet. "Family violence blamed for rise in crime figures". New Zealand Herald, 2 October 2008, page A5
"Bakery fined after worker's hand crushed in machine". New Zealand Herald, 30 September 2008, page A4
Koubaridis, Andrew. "P and teenagers - judge's recipe for disaster. Violence is getting worse, says Youth Court head, and danger drug will fuel the problem". New Zealand Herald, 30 September 2008, page A1
Gower, Patrick. "Plan to prohibit gang insignia now covers 'intimidating' tattoos as well". New Zealand Herald, 30 September 2008, page A3
Koubaridis, Andrew. "Judge urges publicity on rape of 12-year-old". New Zealand Herald, 30 September 2008, page A4
Scott-Howman, Andrew. "God in the workplace". The Independent, 18 September 2008 discusses New Zealand Airline Pilots Association v Air New Zealand [2008] 2 NZLR 1
Borley, Craig. "Commission to probe legality of KLM's website ticket cancellations". New Zealand Herald, 1 October 2008, page A5
Internet sites
Times Online Archive & The Cases that changed Britain
The Times Archive is a searchable database of 200 years of The Times newspaper, from its launch in 1785 until 1985, covering events from the French Revolution and the American Civil War though to the two World Wars of the twentieth century, as well as the great civil and political movements, crime, culture, exploration and adventure. Every page of The Times has been scanned and digitized, the contents broken down into articles, photos and advertisements and the text extracted, so that the entire Archive is searchable, by keyword as well as dates. The newspapers are displayed as digital images of the original pages, but with the text slightly enlarged so that even the earliest pages, with their archaic fonts and spellings, are readable. The pages can also be viewed as full-page or half-page images. All the featured content on the Archive home page remains free to view, but if you wish to search the Archive yourself you'll be asked to subscribe. Full access prices are: Day pass: £4.95 Monthly membership: £14.95 Annual membership: £74.95.
To celebrate the launch of The Times Archive, Gary Slapper, Professor of Law, and director of the Centre for Law, at the Open University and long-time Times Law columnist, trawled through more than two centuries of Times Law Reports (which you can now read as they originally appeared) and pulled out the 100 most important, influential and colourful cases since the newspaper began publishing in 1785.