Whiteboard for 26 June 2008
Recent cases
RACING - validity of random drug-testing regime for jockeys contained in Rules of Racing of New Zealand Thoroughbred Racing (NZTR), made prior to enactment of Racing Act 2003 (the Act), but required by that Act to be regarded as having been made for the purposes of s29 of the Act – NZTR’s Rules of Racing (R226(2)(d)) provided a Racecourse Inspector might, and had power to: - "require a rider or stablehand to permit a sample of his blood, breath, urine, saliva or sweat (or more than one thereof), to be obtained from him by or under the supervision of a registered medical practitioner or by an authorised person at such time and place as the Racecourse Inspector shall nominate" - it was an offence against rules for a jockey to have any controlled drug (as defined in Misuse of Drugs Act 1975) present in his or her urine (R528) - further, every rider who was riding, or presenting him/herself to ride a horse, at a racecourse or training centre, under the control or jurisdiction of a club registered with NZTR, was thereby deemed to have consented to obtaining of sample of urine when required by a racecourse inspector (R528(3))
After riding at a race meeting at Te Rapa racecourse in May 2005, the appellant, a licensed jockey, was required by a Racecourse Inspector to provide a urine sample – sample was taken in accordance with protocol made pursuant to NZTR's constitution – after analysis, appellant's sample was reported to be positive for presence of amphetamine and methamphetamine – appellant was charged with 2 breaches of R528 – appellant, inter alia, challenged the validity of R226(2)(d), pursuant to which she was required to supply the urine sample – whether drug-testing rules were authorised by the Act, interpreted in accordance with general law and New Zealand Bill of Rights Act 1990 (Bill of Rights)
HELD: subordinate legislation, involving a relevant guaranteed right or freedom, would be invalid when empowering provision, read in accordance with s6 Bill of Rights, did not authorise its making – s29(2)(d) expressly authorised rules directed to the safety of racing – safety of horses and jockeys, in what was, under the best of conditions, a dangerous occupation, might well be imperilled were jockeys to ride under the influence of controlled drugs – the "safety requirements" of racing meetings must encompass measures designed to eliminate, or at least minimise, the taking by jockeys of drugs, which might induce unsafe riding practices or behaviour, both by detecting and deterring drug-taking – it was hard to see the supply of a urine sample as an interference with bodily integrity, although it could be accepted that a requirement for a sample involved intrusion on personal privacy – that notwithstanding, the risk of danger to rider and to valuable horses was sufficiently great that, whether considered against common law background of fundamental human rights, or against guarantee of freedom from unreasonable search and seizure in s21 Bill of Rights, the racing code had power to impose a random drug-testing regime for jockeys – it was within powers of NZTR, under s29(2)(d) of the Act, to promulgate rules which permitted random drug-testing other than at a racecourse on a race day, without specifying time, place and circumstances – it was entirely reasonable for NZTR to take view that it should not pick and choose which controlled drugs it should proscribe under Rules – a refusal to produce real evidence, emanating from a person in the form of a urine sample, did not engage privilege against self-incrimination – appeal dismissed
Cropp v Judicial Committee & Anor [2008] NZSC 46
From the Times
EVIDENCE - The defendant had been convicted of murder. The trial judge had allowed three witnesses, who claimed to be in fear for their lives, to give evidence subject to protective restrictions. The restrictions were that the witnesses were to give evidence: under pseudonyms; without the defendant or his counsel knowing their identity; behind screens with their voices distorted and; his lawyers could not ask the witnesses questions which would lead to their identification. The House of Lords held that these measures were unlawful and made the trial unfair as they impeded the conduct of the defence. The double murder conviction was quashed.
R v Davis [2008] UKHL 36
TRADEMARKS - This was a case on trademarks and comparative advertising heard in the Court of Justice of the European Communities. It was held that the owner of a trademark could not prevent a competitor from using that trademark in comparative advertising, provided there was no chance of confusion.
O2 Holdings Ltd & Anor v Hutchison 3G UK Ltd [2008] EUECJ C-533/06
ASYLUM - The claimant deserted the Iranian army after being ordered to plant landmines in a populated area during peacetime. The claimant sought refuge in the United Kingdom. The issue was whether use of lethal weapons by a state against unarmed civilians was a gross human rights abuse. The court held on the facts that it had. When the claimant deserted he was trying to avoid a human rights violation and was entitled to asylum.
BE (Iran) v Secretary of State for the Home Department [2008] EWCA Civ 540
Notices & notes
Giving effect to the values used in statutes
The Auckland Branch of Society for Legal and Social Philosophy is holding ameeting at which Justice John Fogarty of the High Court in Christchurch will give a paper entitled "Giving effect to the values used in statutes".
6.00pm Wednesday 2 July 2008, Small Lecture Theatre, 2nd Floor Bldg 803, Law School, Eden Crescent, Auckland.
Organised Crime (Penalties and Sentencing) Bill
The Bill is to be considered by the Justice and Electoral Select Committee, and the Committee is to report to the House on or before 1 September 2008. This Bill increases the maximum penalty for participation in an organised criminal group from five years to ten years imprisonment. It also makes participation in such groups an aggravating factor when sentencing an individual for offences committed as part of the offender’s involvement in organised crime. .
Te Tau Ihu (northern South Island) inquiry (Wai 785)
The Waitangi Tribunal has has released a pre-publication version of its report on the Treaty claims of iwi and hapū of Te Tau Ihu (northern South Island).
Legislation to safeguard ocean ecosystems
To help safeguard New Zealand’s ocean ecosystems, the government is drafting legislation to manage the environmental effects of currently unregulated activities in the Exclusive Economic Zone.
Casual and temporoary employment
A research report exploring the characteristics and extent of casual work in New Zealand and a cabinet paper proposing amendments to the Employment Relations Act 2000 have been releases .
Sponsorship of Cultural Events, Organisations, and Activities, 2007
This report provides government, businesses and cultural organisations with valuable insights into the drivers behind cultural sponsorship.
More time for submissions on GST paper
The closing date for submissions on the issues paper "Options for strengthening GST neutrality in business-to-business transactions" has been extended by one month, to 11 August 2008. The extension is in response to requests for more time to complete submissions.
Back to school
Technology is changing the way that solicitors are training and continuing their professional development. Polly Botsford reports. (Law Society Gazette 26 June 2008)
Auditor-General's reports released
Commerce Commission publishes Methodology Paper: Update on resetting thresholds for electricity distribution businesses from 2009
The Commerce Commission has released its paper "Regulation of Electricity Lines Businesses, Targeted Control Regime, Threshold Reset 2009, Methodology Paper: Update" concerning the reset of thresholds for electricity distribution businesses (EDB). It is part of the process for the reset of the current price-path and quality thresholds applying to EDBs; to take effect from 1 April 2009..
Overhaul of New Zealand’s security industry
The government’s decisions over how it will overhaul the legislation governing the security industry will be drafted into the Private Security Personnel and Private Investigators Bill, which is expected to be ready to be introduced into Parliament within the next few months.
Initiatives to improve court services in Auckland
Details of the initiatives that the government will be focusing on in order to improve the future delivery of court services in Auckland were made during a speech by Rick Barker, to mark the opening of a new Jury Assembly Area and Criminal Registry in the Auckland High Court.
Arbitrators' and Mediators' Institute of NZ Conference
1-3 August 2008 - Montana Brancott Winery, Blenheim, Marlborough, New Zealand.
New Zealand Governance Centre Inaugural Conference
Friday, 15 August and Saturday, 16 August 2008
The Legal Research Foundation is offering its support to this inaugural conference hosted by the New Zealand Governance Centre.The New Zealand Governance Centre has been established as an interdisciplinary Centre that will undertake and promote research in governance including corporate governance, the governance of small and medium sized enterprises, and not for profits, Maori governance, and leadership.
1st New Zealand Bar Association International Conference
The 2008 New Zealand Bar Association Annual Conference will be held in Sydney this year, the weekend of Friday 15 and Saturday 16 August 2008. The Bar Association plans an exciting programme with input from the New South Wales Bar Association. The theme of the conference is A Global Approach to Law – Life as a Barrister in the 21st century.
Twenty years on from the Cartwright Report
Key figures involved in the cervical cancer inquiry will speak at a forthcoming conference marking the twentieth anniversary of the Cartwright Report. The one-day conference, "Twenty years after the Cartwright Report: What have we learned?", will be hosted by the Faculty of Law at The University of Auckland and held at the Hyatt Regency on 29 August.
NZ Law Foundation International Research Fellowship
Applications for 2008 close on 1 September 2008.
21st LawAsia Conference 2008
29 Oct - 1 Nov 2008, Kuala Lumpur Convention Centre
Judges, lawyers, academics and others interested in legal issues affecting the Asia Pacific region are invited to attend LAWASIA’s premier conference.
In the news...
Slade, Maria. "Pay the $4m, court orders ex-Rich List developer". The New Zealand Herald, 27 June 2008, page A1
"Harder drops bid to practise law again". The New Zealand Herald, 26 June 2008, page A5
Ford, Gibb and O'Neill. "Dozens of murder cases at risk after collapse of hitman trial". The Times, 25 June 2008 discusses R v Davis [2008] UKHL 36
Internet sites
Interviews of United States Supreme Court Justices
This site is put out by LawProse, a “provider of CLE training in legal writing, editing, and drafting.” While most of the LawProse website focuses on advertising their services and training sessions, this section of the site provides video interviews with eight of the nine current Supreme Court justices, voicing their thoughts on legal writing and advocacy. The videos are available free of charge. Windows Media Player or a Mac WMV plug-in are needed to view the videos. There are also additional archived interviews from judges and lawyers across the country. Those interviews can be found under the heading "Educational Video Clips" and cover a number of different topics, but focus primarily on legal writing and related issues. This site is beneficial to lawyers and law students looking for advice on how to improve their writing skills. (InSITE, 16 June 2008)
Law Commission papers
Disclosure to Court of Defendants’ Previous Convictions, Similar Offending, and Bad Character
The Commission's latest report reviews the Evidence Act 2006 and the law as it relates to the admissibility of previous convictions, similar offending and bad behaviour in New Zealand. It makes no recommendation to amend the law at this point but proposes that it should continue to monitor the operation and impact of the Act in this area, and report back to government by 28 February 2010. (NZLC R 103)