ylc advocate autumn 2013
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The quarterly publication of the Young Lawyers' Committee WellingtonTRANSCRIPT
AdvocateAutumn 2013
The quarterly magazine of the Young Lawyers’ Committee Wellington
What to do with space junk?“On the edge” fashion tipsCriminal prosecution in Bosnia and HerzegovinaArt (law) for art’s sake
INSIDE THIS ISSUE:
02 YLC ADVOCATE
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AUTUMN 2013 03
YLC Advocate Autumn 2013
Editors: Lizzie Chan & Hamish McQueen
Layout: Rebecca Walthall
Cover photograph by Rebecca Walthall
04
Editors’ Note
05
Upcoming Events
07
Convenor’s Note
08
The YLC Team
09
YLC Member Profile: Amberley Amps it Up
10
Space Junk: Preservation or Eradication? – Leah Hamilton &
William Robertson
14
YLC Welcome to 2013 BBQ
16
Art (Law) for Art’s Sake: What We Should Know About Art Law –Lucy Revill
19
YLC IPLS Meet the Grads Boat Cruise
20
Facebook and Defamation — Publishers’ Path to Liability – Ali Romanos
22
MAS “Basics of Investment” Seminar
24
Sports Teams v Stadium Owners: the Allocation of Stadia Signage Rights in New Zealand – James Roach
26
The Constitutional Review — Where are We Heading? – Jason Cooper
26
Meet the Registry
30
Business: On the Edge – Ani Chan
32
Immigration Ammendment Bill Continues to Breach International Obligations – Jessica Willis
34
Interview with Andrea Ewing on her time working for the Prosecutor’s Office of Bosnia and Herzegovina – Isabelle Werffeli
35
Bridging the Gap Mentoring Programme
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04 YLC ADVOCATE
Editors’ Note
Over the last year the YLC has worked to grow in its role of promoting professional and personal development events for young lawyers. The incoming rules on continuing professional development confirm something that we all know – good lawyers don’t stop learning at law school. And the turn out at our professional developments events show that Wellington young lawyers are keen to improve themselves (and have fun at the same time!). So, it is worth taking a moment to highlight some recent events held by the YLC that you will find more about inside this issue of Advocate.
What would you like to see included in the YLC Advocate?We’d love to hear any feedback about the magazine — especially from potential contributors! So please get in touch at [email protected] or [email protected].
In conjunction with MAS, we have had a series of personal development seminars, starting off this year with a “Basics of Investment” seminar. At this seminar young lawyers learnt about the basic
concepts of investing, and discussed in particular man-aged funds and the share market. Coming up later in the year there will be a “Toolbox Seminar”, aiming to equip young lawyers with skills to help them manage financial issues and acieve a healthy work-life balance. On the professional development side, the YLC recently held a Meet the Registry event, hosted at the Wellington High Court. This event followed on from the successful Meet the Judiciary event last year, and aimed to help young litigators in particular to learn more about what court registries do and to get to know some of Wellington’s registry staff.
The Bridging the Gap mentoring programme has also started for the year, pairing up young lawyers with fourth and fifth year law students at Victoria University. This year the Bridging the Gap calendar has grown, with a series of events planned throughout the year to ensure that both mentors and mentees get the most out the pro-gramme. It is great to see so much engagement in the programme from young lawyers, reinforcing the impor-tance of law being a collegial profession.
Of course, the YLC hasn’t cut down on its social events either. We kicked off the year with a packed Welcome to 2013 BBQ at Chicago Bar. This was followed closely by the Grad Boat Cruise, where new (and some not so new) grads enjoyed the best of Wellington’s long hot summer out on the harbour. And, planning is well underway for the highlight of the year’s events, the YLC ball!
Inside this issue there is also a great range of articles. Make sure to check out the fashion pages! Fashion blog-ger Ani Chan has a double page spread on the latest working styles. We are also excited to have a number of articles touching on some unconventional areas of law, showcasing the diverse places that your law degree can take you. Leah Hamilton and William Robertson con-tinue their three-part series on space law with a look at spcace junk and the question of extra-terrestrial waste management. What risk does waste left in space pose to us, what should we do about it, and what legal frame-work can be put in place to regulate the issues raised by space junk? Shifting focus to planet Earth, Lucy Revill examines the relationship between art and law. Art law asks us to think about how we should treat objects of cultural value and to consider how law can be used to protect human creativity. Art law includes both public and private areas of the law — comprising intellectual
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Upcoming Events
30 May
Quiz night
11 June
Promotional movie night for the ball
20 June
Wine and cheese evening
4 July
Speed dating
23 July
Bridging the Gap mentoring programme drinks
August
YLC Ball, Career planning event
September
Bridging the Gap mentoring programme dinners, MAS Toolbox seminar
October
Oktoberfest, Bridging the Gap mentoring programme drinks, Wellness seminar
November
Toast Martinborough, Christmas party
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property, contract and tax, right up to policy formation on crime and international policy relating to art. We also have an eye-opening interview with Andrea Ewing, a Wellington young lawyer, about her time working for the Prosecutor’s Office of Bosnia and Herzegovina.
In addition, Ali Romanos examines the potential for hosts of facebook pages to be found liable for defamation for posts made on their pages; James Roach discusses some practical ways to allocate signage space in stadiums be-tween the sponsors of stadiums and sports teams; and Jess Willis critisises the Immigration Amendment Bill that aims to “disrupt, deter and manage” a mass arrival of asylum seekers in New Zealand. Finally, Jason Cooper discusses the Government’s constitutional review, and looks at the pros and cons of adopting a written constitu-tion. We are lucky in Wellington to have easy access to a range of seminars on constitutional issues. Some of you may have attended the recent series of Constitutional Review debates on topics such as human rights, Māori aspirations for constitutional change, and republican-ism. These have all been recorded by Radio New Zealand, and are available on their website.
For more check out the YLC website, and make sure to join our Facebook page to keep up to date with the latest YLC activities.
We also thank the YLC’s general sponsors: the Medical Assurance Society and JLegal. Thanks also to Rebecca Walthall, our designer, for the beautiful photograph gracing the cover of Advocate.
LIZZIE CHAN AND HAMISH MCQUEENEDITORS
06 YLC ADVOCATE
Following the first countrywide burst of rain and Maurice Williamson’s Big Gay Rainbow, we have seen the historic enactment of the long-awaited (and face-palmingly common
sense and overdue) Marriage (Definition of Marriage) Amendment Act 2013 — together with the (possibly linked to the rise in weddings and days off required?) Holidays (Full Recognition of Waitangi Day and Anzac Day) Act 2013, which ushered in my favourite new term of the year “Mondayisation” — a term no one previously thought could have positive connotations.
Almost as impressive (and I’m being flippant) have been the activities of the Young Lawyers’ Committee.
The year got off to a great start with our Summer BBQ and Boat Cruise, both of which capitalised on the capital weather and were superb events, but perhaps which I will not live down in a hurry. That said it was great to meet and welcome so many new young lawyers.
The Basics of Investment evening was a great success, building on a “you’re-lawyers-and-should-already-know-you-should-be-saving” foundation to elaborate upon alternative uses for your carefully put aside pennies.
Convenor’s Note
As our endless summer finally draws to a close with the first splutterings of the Wellington weather machine (that said, it is another beautiful day as I write this in May!), it is a great time to reflect on what has been achieved in these long languid summer days.
The joint YLC–VUWLSA initiative “Bridging the Gap” has bounded out of the starting blocks and is once again oversubscribed (too many lawyers goes the call). We are pleased to welcome the Institute of Professional Legal Studies as the flagship sponsor for this programme and who ensured that the launch event was a great and salu-brious evening. The surprise quiz was great fun, involv-ing some really obscure questions. I was personally a bit lost in trying to identify Niki Minaj’s tweets but my team was eventually surprised to triumph (no nepotism involved, we swear)!
Young litigators were given a chance to meet the registry staff of our country’s courts at our “Meet the Registry” event which was extremely enlightening, and which will hopefully ensure that no young lawyer ever rings the reg-istry to find out a filing fee again. Our thanks go out to the Ministry of Justice and the New Zealand Law Society for making the event possible.
Lastly, we are pleased to welcome a number of new mem-bers to the YLC and Natalie Pierce of the Independent Police Complaints Authority as our Advocacy, Professional Development and Wellness officer. Natalie has been charged with heading a sub-committee to oversee the development of the YLC as an organisation dedicated to the promotion well-being of young lawyers — both individually and as a community — as well as to encourage young lawyers to participate in the law and their communities.
All in all, a great first half to the year.
JAMIE GRANTYLC CONVENOR
08 YLC ADVOCATE
YLC Executive 2013Convenor
Co-Deputy Convenors
Treasurer
Secretary
Sponsorship Officers
Jamie Grant
Heléna Cook Elizabeth Chan
Daniel Fielding
Lorraine Hercus
Guy Carter Sarah Watson
Marketing/Membership
Officers
Communications Officer
Magazine Editors
Advocacy, Welfare and
Professional Development
Officer
Annabel Martin Amberley James
Hadleigh Pedler
Elizabeth Chan Hamish McQueen
Natalie Pierce
Amberley James
Annabel Martin
Daniel Fielding
Elizabeth Chan
Guy Carter
Hadleigh Pedler
Hamish McQueen
Heléna Cook
Helen Arathimos
Lorraine Hercus
Ian Miller
Jamie Grant
Jelena Gligorijevic
Jess Willis
Jordan Williams
Katie Williams
Katrina Kelly
Kerrin Eckersley
Monica Hamlyn-Crawshaw
Natalie Pierce
Nadia Gastaldo-Brac
Nigel Salmons
Nikki Farrell
Pearl Roy
Penelope Skinner
Richard Evans
Rikky Minocha
Sam Mossman
Sarah Watson
Simon Wilson
Tim Cochrane
Committee Members
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Amberley Amps it Up
Hi Amberley, what’s your role on the Committee?Hi Advocate, I’ve just joined the executive as one of the Marketing Officers. I’m also helping to organise the Wine and Cheese night in June and the Ball in August. I hope you’re excited, it’s going to be amazing!
We hear that you have just taken on the role of Marketing officer, what does that involve?The Marketing Officers generally ensure that every-one knows what the YLC is doing and what events we have coming up. So, with the assistance of the fabulous Annabel Martin, I send out emails with all the latest news from the YLC. I also liaise with various people organis-ing our events to make sure they are properly marketed.
What do you do outside of the Committee?I spend too much time eating, drinking, sleeping, and in the shower. I also manage to maintain a pretty healthy mkr addiction and am working on my tendency to fall off chairs and drop objects for no apparent reason. By day (and night) I’m a solicitor at Minter Ellison practising employment and immigration law.
If you were going to write a book, what would you call it and what would it be about?I’m a self-professed history geek so I imagine it would be about some obscure historical event or a terrible piece of historical fiction based on that event. The best title I have heard for a book would be “The Road to Legacy” so I’ll stick with that.
We hear you have just started a YLC netball team — can anyone join?Yes, we have just started a YLC indoor netball team. I think it’s really important that the YLC has lots of facets to it, but fundamentally always remains an organisation focused on young lawyers getting together and having a good time. It’s great to meet up with a range of young professionals every week and have a good run round, and we’re already looking forward to a massive end of season court session. Absolutely anyone can join — ath-letic ability and coordination are definitely not neces-sary. Flick me an email if you are interested in joining: [email protected].
What’s your favourite New Zealand holiday spot?Lake Kaniere. It’s a relatively small lake about 20 min-ute drive from Hokitika on the West Coast of the South Island. I spent a lot of time there with my grandparents when I was growing up and it is without a doubt the most beautiful place I have ever seen.
If someone asked you to give them a random piece of advice, what would it be?Crunchy is infinitely superior to smooth. And, to never forget that just to be alive is a very great thing.
If you could bring a famous person back to life and have dinner with them, who would it be?Good question — Oscar Wilde, Mae West and Sir Thomas More (once I finally manage to finish Utopia).
10 YLC ADVOCATE
Space Junk: Preservation or Eradication?
Where does an astronaut hang out on a keyboard? On the space bar!
LEAH HAMILTON AND WILLIAM ROBERTSON MINTER ELLISON RUDD WATTS
This is the second terrestrial communication in our trio of articles about space law, and will focus on an issue of increasing concern: space junk and extra-terrestrial waste manage-
ment. (Check out Leah and William’s first article in the 2013 summer edition of Advocate here.) Space junk does not refer to some form of intergalactic steroids, but to the vast number of man-made objects found on the surfaces of celestial bodies and in orbit. Although one may think that space junk is of little concern due to the vastness of space (can’t it just float around forever?), 53 years on from the launch of Sputnik 1 numerous man-made ob-jects of varying size and components can still be found on the surfaces of the Moon and Mars.1 Since this waste is so long-lasting and pervasive, what should we do with it?
In this article we will examine the potential threat that space junk poses to us directly, to our satellites and other research objects in space, to future space vehicles, and even to the Earth’s surface if space junk re-enters the at-mosphere. There are two conflicting schools of thought concerning what to do with space junk: disposal and preservation. We also examine whether any laws in New Zealand relating to environmental preservation or waste disposal can provide any clues about how we should deal with space junk.
The threat of space junk
The main objection to leaving space junk in space is the risk that doing so will pose a supernova-sized threat to future scientific endeavours. There is a serious risk that by leaving space junk unregulated in space, there will be a considerable increase in the likelihood of collisions with both apparatus and vehicles carrying human life. As space junk has the potential to turn into lethal hyperve-locity missiles,2 it can be a considerable hazard to both
launched vehicles and those of us remaining on Earth. However, it also has significant scientific value, as it can provide mankind with valuable research opportunities. It is clear that this problem is not going to simply disap-pear. Unfortunately, the solution is not as easy as digging a large hole and burying all of our waste as we do here on Earth.
The preservation of space junk
One view is that space junk should be collected and preserved due to its archaeological and historic value. Space junk can provide valuable insights into human and cultural evolution, as well as valuable opportunities for scientific experimentation. For example, there are nu-merous research possibilities in collecting organic mat-ter left behind by our astronauts in space (for example, Astro-faeces and Pluto-pee) as it can allow scientists to examine how cosmic radiation affects organic molecules, and any possible health risks in human exposure to cos-mic radiation.3
Space junk can also provide mankind with the oppor-tunity to understand the history of early space flight and technology. Objects such as the Hubble telescope, United States satellite Vanguard 1, as well as various ob-jects scattered on the Moon and at the Apollo landing site provide insight into the cultural history of space explora-tion. They also provide an invaluable insight into the cor-rosive properties of various metals, alloys, and plastics in space. Given the historical and educational importance of these objects, it seems as though an effort should be made to preserve them for future generations.4
In New Zealand, the Historic Places Act 1993 establish-es the Register of Historic Places, Historic Areas, Wahi Tapu and Wahi Tapu areas. It is the national schedule of
1 J Silk The Infinite Cosmos: Questions From the Frontiers of Cosmology (Oxford University Press, USA, 2006).2 J Lebans and B Mcdonald The Quirks & Quarks Guide to Space: 42 Questions (and Answers) about Life, the Universe and Everything (McClelland
and Stewart, Toronto, Ontario, 2008) at 36.3 D Viggiano “One Man’s Space Junk is Another Man’s Archaeological Treasure” (paper presented to New Perspectives on Space Law,
Proceedings of the 53rd International Institute of Space Law Colloquium on the Law of Outer Space, Young Scholars’ session, Prague, Czech
Republic, 2010) at 206.4 Viggiano, above n 3, at 208.
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> New Zealand’s treasured heritage places and is compiled by the New Zealand Historic Places Trust (NZHPT). If a property is registered, local authorities are required to notify the NZHPT if a project information memorandum or building consent application is received regarding the property. This provides the opportunity for the NZHPT to offer conservation advice to property owners.5 However, this registration is an identification tool and does not in itself prevent places being altered or sold.
Furthermore, the Protected Objects Act 1975 provides for increased protection of certain objects by regulating the export of protected New Zealand objects, establish-ing and recording the ownership of nga taonga tuturu, as well as providing for the return of unlawfully exported foreign objects and stolen protected objects. These Acts could provide clues about how to structure any extra-terrestrial site or object preservation legislation.6
Even so, the possibility remains that if countries were to add extra-terrestrial objects to their registry, other na-tions may interpret this as appropriation or as a claim of sovereignty which would conflict with obligations under the Outer Space Treaty 1967 (OST) and may offend other signatories to this Treaty.7 There are also considerable enforcement problems as an extra-terrestrial police force does not currently exist. Although it may be somewhat difficult, it is possible that elements from these statutes could be incorporated into a regime for the effective management of historical artefacts in space.
The elimination of space junk
On the other side of the spectrum, many people want to see man-made items in space minimised or completely eliminated due to the danger and threat that they pose to future scientific endeavours, current space projects, and their potential impact on Earth. Although space as far as we know is vast, conflicts still eventuate over de-sirable real estate in outer space.8 Perhaps one of the biggest concerns is threat posed to geostationary orbits. Geostationary orbit frequencies are capped, and are highly desirable due to their ability to host communica-tion satellites. Arguably they are currently the most im-portant piece of space “real estate” available.9
As scientists have estimated that geostationary orbits may only possess the capacity to hold 1,500 or so satel-lites, this resource is considerably scarce and must be protected. Thus, it is vital that the orbits be kept as clear as possible and free from any space junk. Currently, how-ever, there are in excess of 200 deceased satellites litter-ing the geostationary orbit and it has been suggested that this number could increase considerably in the next ten years.10 Space junk has the potential to turn into lethal hypervelocity missiles, and one commentator has noted the potentially exponential increases in danger. This is because when space junk collides with another object, it may shatter into countless smaller, but equally-dan-gerous pieces resulting in a debris belt11 larger than that worn by Jabba the Hutt himself.
Some space environmentalists suggest that if the preva-lence of space junk is not decreased completely, the pos-sibility remains that outer space may become soiled and
5 New Zealand Historic Places Trust “About the Register” <www.historic.org.nz>.6 Viggiano, above n 3, at 211.7 Viggiano, above n 3, at 211.8 Viggiano, above n 3, at 213. 9 C Collis “The Geostationary Orbit: A Critical Legal Geography of Space’s Most Valuable Real Estate” in M Parker and D Bell (eds) Space Travel
and Culture, From Apollo to Space Tourism (Wiley-Blackwell, London, 2009).10 The Times of India “Robots to Push Dead Satellites off Earth’s Orbit” The Times of India (12 October 2009) <http://articles.timesofindia.
indiatimes.com>.11 D Kessler and B Cour-Palais “Collision Frequency of Artificial Satellites: The Creation of a Debris Belt” (1978) 83 J of Geophysical Res 2637.
12 YLC ADVOCATE
at worst, unusable.12 This concern underlies the neces-sity to implement some form of regime to manage, clean and regulate space junk in the extra-terrestrial environ-ment.13
New Zealand’s disjunctive ad hoc approach to waste man-agement fails to provide any helpful assistance. Current waste management in New Zealand is subject to a com-plex array of statutes, bylaws and regulations.14 These include statutes such as the Resource Management Act 1991, the Local Government Act 1974 and 2002 and the Hazardous Substances and New Organisms Act 1996. The lack of uniformity and comprehensiveness precludes our current regime from posing as a potential model in outer space. Arguably what is required is an integrated statutory framework capable of providing effective waste management.
So then, what to do with space junk?
Article 8 of the OST provides that a state party to the Treaty, who launches an object into space, shall retain jurisdiction and control over it and ownership of objects launched into space is not affected by their presence in outer space.15 This means that nations are able to ef-fectively ‘own’ space junk. Arguably, this means that a state’s municipal law could apply to the decision-making surrounding what to do with space junk.
Exactly how to go about the task of dealing with space junk is where Houston may have a problem. Currently no legal regime is in place to manage waste or historic ob-jects in outer space.16 The OST may provide some help, however. Article 1 provides that activities in outer space
must be “carried out for the benefit and interests of all countries”.17 Space junk and its associated risks are ar-guably not in the best interests of all countries and they could be said to constitute harmful contamination. In addition, NASA’s Orbital Debris Programme Office has implemented some guidelines with the aim of slowing down the accumulation of space junk. These rules limit what is able to be dumped out in space and they require satellite operators to assist in the clean-up of the geo-synchronous belt by shifting redundant space crafts into “graveyard orbits”.18 However, this approach again lacks the thrust of an effective enforcement mechanism. The OST arguably lacks the specificity required to bring an effective legal claim and does not specify any significant deterrents. Mere diplomatic pressure alone is arguably insufficient to coerce states into compliance with NASA’s guidelines, or the OST.19
Conclusion
As preservationists wish to protect the very same objects which environmentalists wish to destroy or clean up, there is great potential for conflict to arise. In this situa-tion, the ideal approach would be to develop the two ar-eas of law in tandem. The appropriate mechanism for the development of environmental law and management of “space junk” is arguably the establishment of an interna-tional regulatory body, with effective enforcement pow-ers. This could allow important objects to be preserved, but waste to be destroyed in a principled and considered manner. If only it were as simple as zapping the unwant-ed items with our “lazer”. Where is Dr Evil when you need him?
12 H Baker “Protection of the Outer Space Environment: History and Analysis of Article IX of the Outer Space Treaty” (1987) 12 Annuals Air and
Space 143-173.13 Viggiano, above n 3, at 215.14 Environment Canterbury Regional Council “Waste regulation” <http://ecan.govt.nz>. 15 United Nations Outer Space Treaty 1967, art 8.16 Viggiano, above n 3, at 208.17 Outer Space Treaty, above n 15, art 1.18 Viggiano, above n 3, at 218. 19 Viggiano, above n 3, at 217.
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14 YLC ADVOCATE
YLC Welcome to 2013 BBQ An after-work drinks function at Chicago Bar on the waterfront kicked off the year for the YLC on Thursday 7 March.
The event was designed to welcome recent law graduates and solicitors to the Wellington legal scene and catch up with some familiar faces after the summer. It was a free and casual event with the YLC contributing money towards drinks and finger food largely thanks to our main sponsors, MAS and JLegal. There was a great turnout peaking at around 150 people. Thank you to those who attended!
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16 YLC ADVOCATE
That history created “a cloud on the title”, meaning that under international law there is uncertainty as to who the rightful owner in fact is because it may have been looted by
Nazi’s.1 This is just one of a stream of recent cases that involve complex legal issues about art, many of which transcend national borders, termed “art law”. In this arti-cle the author asks what “art law” is. What is its purpose? Can art law affect New Zealand? And how do we balance the ownership rights of the citizen against the right of the public to have unhindered access to the enjoyment of art, stolen or not?
What is art law?
Conceptually, art law is implicitly limited to fine arts and antiquities, usually by an artist of significant reputation. Fine art means art forms developed primarily for aes-thetics, distinguishing them from applied arts that also have to serve some practical function. Art law has two main limbs (drawing on a variety of legal disciplines):
1. Private art law — comprising intellectual prop-erty, contract, tax, copyright, estate, commercial and private international law. Private art law is primarily concerned with contemporary art, art-ists and art dealings.
2. Public art law — focusing on crime and interna-tional policy relating to art. Its primary concern is large, historical art, artists and art-dealing.
Both private and public art law look to protect artists’ creativity, autonomy, labour and the product of their ef-forts. The law also must protect cultural heritage and bal-ance this against private rights.
Art (Law) for Art’s Sake: What We Should Know About Art Law
Earlier this year a collector of Old Masters, Steven Brooks, was outraged to find that the £57,000 painting he bought from Sotheby’s in 2004 was worthless. Despite having sold Brooks the piece, art dealers would not touch it as it was once owned by the war criminal Hermann Goering.
LUCY REVILL IS A LAW CLERK IN THE BANKING AND FINANCIAL SERVICES TEAM AT MINTER ELLISON RUDD WATTS.
THE AUTHOR THANKS JUDGE TOMPKINS FOR HIS TIME AND FACILITATION OF THIS ARTICLE.
1 Laura Gilbert “Collector says Sotheby’s sold him Nazi-owned art
— now it’s unsellable” (4 May 2013) The Art Newspaper <www.
theartnewspaper.com>.
Allegorical portrait of a Lady as Diana Wounded by Cupid by 18th-century French artist Louis-Michel van Loo: worthless.
Mokomokai — Don’t belong in Europe
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How do we measure the value of art?
Why should art be treated differently from other forms of personal property? The answer to this lies in considering the “value” of art:
Financial value
Art-dealers transform goods that lack any direct utilitar-ian value into highly priced commodities. For example, the evening before the Lehman Brothers collapsed, over £110 million was paid for Damien Hirst pieces.2 The re-cord sale price for a painting by a New Zealand artist is held by Colin McCahon’s piece “Let Be, Let Be” sold in 2009 for just over $1.1 million.3 If value is measured by giving property rights to the person who is prepared to pay the most for it, art can be seen as of significant value.
Emotional value
These prices reflect an added value that society at-taches to art’s cultural significance. As Professor Sarah Worthington from the London School of Economics notes, one does not put art in the same category as finan-cial investments — there is something different between paying $1.1 million for a painting and paying $1.1 million for shares.4 Even if bought as an investment, buying art makes people feel they are purchasing something emo-tional, protecting a thing that is fundamentally societal. Countries fight for their art and their cultural property.5 New Zealand has battled for the return of “Mokomokai”, stolen in the 18th century. The concerns about how to balance private and public rights have recently led to the rise of a movement aimed at developing coherent legal theory around art.
What is happening in the world of art law?
Pockets of activity are increasing to bridge the gap be-tween the theoretical and practical aspects of art law, by fostering collaboration between domestic and foreign enforcement officials, security consultants, academics and lawyers. International institutions such as Sotheby’s Auction House in London and New York and Christies Auction House in London offer courses in the study of art law. Boutique and larger legal groups alike specialise in the practice of legal issues affecting art and artists.6 In 2004 the Federal Bureau of Investigation established its own dedicated art crime squad. There is even an Association of Research into Crimes against Art (ARCA) in Italy, where New Zealand District Court Judge Arthur Tompkins lectures each year. The University of Auckland has a course on art crime. This recognition that art in-spires legal interest reflects that we now live in a smaller world where people are connected through travel, the in-ternet and international art organisations.
Does art law really have any significance in New Zealand?
The examples above reflect more the exception, rather than the rule. Art law remains largely an under-exam-ined trend, mostly dealt with through traditional regimes of private law. Arguably, art law is so inaccessible that it is not a “real” area of practice. Case law from New York and Europe is, for the most part, completely divorced from the reality of the legal profession in New Zealand. Art law’s narrow focus and lack of immediate commer-cial viability largely suggests that it cannot offer any viable form of employment. Therefore, it would not be unreasonable for the average lawyer to bypass it as being pointless. Is there really much purpose in considering art issues for us as New Zealand lawyers?
2 “Hands up for Hirst” (September 2010) The Economist <www.economist.com>.3 “Colin McCahon breaks New Zealand painting sales record” (28 August 2009) TV3 News <www.3news.co.nz>.4 Sarah Worthington, “Art, Law and Creativity” (2009) 62 Current Legal Problems 168.5 The Elgin Marbles, the marble statues taken from Athens by Lord Elgin the early 1800s and shipped back to the United Kingdom where they
remain in the British Museum, provide a very public example of their cultural property. There is much debate as to whether they should be
returned to Athens. 6 For example, the firms Peterson Belknap Webb and Tyler and the Hoffman Law Firm of New York City.
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Hitler and Goering: Art fans
18 YLC ADVOCATE
7 “Immunity from Seizure for Cultural Objects on Loan” (30 July 2012) New Zealand Ministry of Culture and Heritage <www.mch.govt.nz>.
Ignoring international legal regulations around art could easily lead New Zealand into a cross-border incident. New Zealand currently has no immunity from seizure (IFS) legislation that acts to protect cultural objects on loan from overseas against legal claims. New Zealand risks being excluded from hosting exhibitions, because it does not meet the legal requirements of international galleries and museums. Today, many countries have IFS regimes including the United States, the United Kingdom and France. IFS prevents a person from being able to take a piece of art that is on loan to another country and claim-ing good title to it, even if the piece was taken illegally during wartime or obtained in dubious circumstances in the colonial era.7 Although this has not happened in New Zealand yet, it has occurred internationally.
The principle of IFS is not without controversy particu-larly given the widespread uncertainty over the rightful ownership of artwork that was displaced in the period from 1933 to 1945 by the Nazi regime and is now held by both museums and private collectors. It raises important moral, ethical as well as political, commercial and legal issues. Is justice more important than the public’s right to the enjoyment of a cultural object? Do anti-seizure statutes run against the grain of justice by impairing the fair and speedy settlement of claims from Holocaust sur-vivors and their families? Do IFS statutes conflict with the spirit of a number of other legal instruments either adopted or having force in the jurisdictions in which they operate (for example, nemo dat)? Does making a claim-ant’s recovery efforts more difficult, offend human rights legislation (such as the right to peaceful enjoyment of one’s possessions and freedom from deprivation)? These are questions that we do not yet know the answer to but they affect New Zealand and its international reputation. What we do know is that clearly there are risks in imple-menting IFS. We must ask, is it right for us to accept pres-sure from international museums who themselves have taken stolen art in the past?
How could technology affect art law in the future?
Developing technologies will change art and therefore art law, particularly in respect of copyright and intel-lectual property. In 2011 the world’s first online art gal-lery S[edition] was established selling art for ipads and iphones. A host of contemporary artists (including Damien Hirst) are backing the notion of “making art more democratic” by selling digital editions of their work for as little as £8. Soon, S[edition] will open the world’s first digital marketplace where digital artworks that have already been sold out can be traded between S[edition] collectors. In another art/technology progression, dis-tinguished pop artist David Hockney has produced digi-tal art works, creating more than 400 drawings, first on his iPhone, and later on his iPad. This could provide a new area for legal issues, concerning copyright and in-tellectual property issues that may arise from art’s digi-talisation.
Conclusion
While it is unlikely that there will be any specialist art law firms opening in New Zealand any time soon, art law should be taken seriously as way of conceptualising the relationship between art and law. It provides a use-ful lens to consider art issues from a multi-disciplinary perspective, requiring us to think critically about how we should treat objects of the past and what it is that we want to preserve about our culture going forward into the future. By aiming for a more transparent, coherent pro-fession that is unified by a desire to protect the record of human creativity, we can look to a new direction for the legal profession. Because you just never know who else might have owned that Old Master.
David Hockney (OM, CH, RA): Paints on an iphone and exhibited at the Pierre Berge/ Yves Saint Laurent Foundation
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YLC IPLS Meet the Grads Boat Cruise Young lawyers, graduates, committee members and friends had a great time at the IPLS Meet the Grads Boat Cruise on Thursday 21 March 2013. There was a full turnout on the Sweet Georgia for a cruise around the sights and sounds of Wellington harbour.
The wine flowed, tongues were loosened, new friends were made, and much amiable banter was had. In hindsight it was probably just as well the skipper declined our re-quest to try waterskiing behind the boat.
The food was tasty, with the skipper’s wife’s homemade dessert sweets a definite high-light. Even the weather cooperated, with the harbour turning mirror-smooth as we pulled back into the wharf to the sound of The Lonely Island’s rendition of “I’m on a boat!” The YLC is grateful to the Institute of Professional Legal Studies and the skipper and crew of the Sweet Georgia for making the evening possible.
20 YLC ADVOCATE
Facebook and defamation – Publishers’ Path to Liability
In Wishart v Murray,1 which concerned a strike-out application in the High Court, Courtney J held that a host of a Facebook page was prima facie liable as a publisher of defamatory comments posted on that page by other users. In reaching her decision, the Judge assessed a number of competing defamation principles across English, Australian and United States authorities, but because of space constraints this article will comment only on the main points of the decision.
ALI ROMANOS IS A LAW CLERK FOR PETER MCKNIGHT, A WELLINGTON MEDIA LAW BARRISTER. HE CAN BE CONTACTED [email protected].
Facts
In 2011, Ian Wishart wrote and published Breaking Silence, a book about the deaths of the three-month-old Kahui twins in 2006. In writing the book, Mr Wishart collabo-rated with the twins’ mother, Macsyna King. Chris Kahui, the twins’ father, had suggested at the trial in which he was acquitted of the twins’ murder that King had inflict-ed the fatal injuries. Although a coroner later found the twins died while in Mr Kahui’s sole care, Ms King’s role in the twins’ death has remained a subject of public debate.
Christopher Murray, upon learning of the book’s impend-ing release, created a Facebook page entitled “Boycott the Macsyna King Book”. Mr Murray used Twitter to publi-cise the page, and he, along with his wife and other uni-dentified people, posted critical comments about King and Wishart on the Facebook page. The substantive hearing will raise a number of potentially defamatory comments made on and off the Facebook page, but this article is only interested in whether it was tenable that Mr Murray could be considered a “publisher” of others’ potentially defamatory comments.
Law
Courtney J summarised the law as: “A person who par-ticipates in or contributes to the publication of another’s defamatory statement is, prima facie, liable as a publish-er, subject to the defence of innocent dissemination.”2 Stated briefly, innocent dissemination, enshrined by s 21 of the Defamation Act 1992, provides a defence to certain conduits of defamatory material.
This defence has traditionally been applied to librarians, booksellers and newspaper vendors, and now seemingly includes internet service providers (ISPs) and search en-gines, too. Such conduits of defamatory material must allege and prove three elements: that they didn’t know a matter contained defamatory material; that they didn’t know it was of a character likely to contain defamatory material; and that their lack of knowledge of the defama-tory material did not stem from their own negligence.
Thus, while a defendant may be held prima facie liable as a publisher for others’ defamatory statements, he or she can be absolved of liability by satisfying the s 21 de-fence. In distinguishing Mr Murray’s position from ISPs and search engines, the Judge remarked that those who hosted Facebook or similar pages were not “passive in-struments” or “mere conduits” of content posted on their Facebook pages.3
It is important to note that, to establish prima facie li-ability, the absence of actual knowledge by the defendant of the defamatory material published will not, in itself, be a decisive factor. As Hunt J explained in Urbanchich v Drummoyne Municipal Council,4 it is sufficient to prove a mere inference that the defendant in some way ratified the defamatory statement:5
The plaintiff must establish that the defendant con-sented to, or approved, or adopted, or promoted … the continued presence of that statement on his property so that persons other than the plaintiff may continue to read it — in other words, the plaintiff must establish in one way or another an acceptance by the defendant of a responsibility for the continued publication of that statement.
1 Wishart v Murray [2013] NZHC 540. 2 At [82].3 At [117]. 4 Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 69.5 At [190].
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In pre-Internet cases, what amounted to a sufficient inference of ratification was more straightforward. In Byrne v Deane,6 the defendants were held to be liable for publication of an anonymous notice posted on the notice board of a golf club. The English Court of Appeal held that it could be inferred that the defendants, the club’s proprietors, had accepted responsibility for the publi-cation of the notice because the club’s rules prohibited notices posted without the secretary’s consent, and the defendants failed to remove the notice. Similarly, the defendants in Urbanchich were held to be publishers of defamatory posters glued by others to bus shelters under the defendants’ control. In this case, the defendants had been asked to remove the posters and failed to do so.
In the online environment, courts have been reluctant to find individuals liable for hosting websites where others have published defamatory remarks.7 However, Courtney J was of the view that the threshold for estab-lishing a prima facie case against a publisher should not to be set too high because truly innocent disseminators could rely on the s 21 defence.8 The Judge described the two circumstances in which online hosts would be liable as publishers of postings made by anonymous users:9
The first is if they know of the defamatory statement and fail to remove it within a reasonable time in cir-cumstances that give rise to an inference that they are taking responsibility for it. A request by the person affected is not necessary. The second is where they do not know of the defamatory posting but ought, in the circumstances, to know that postings are being made that are likely to be defamatory.
Ultimately, Courtney J found that that Mr Murray was a publisher liable for defamatory content on his Facebook page. Mr Murray had given evidence that, in the two months during which the page was active, he had de-leted certain defamatory postings and blocked various users (including Mr Wishart). In these circumstances, Courtney J held that Mr Murray’s ability to exercise con-siderable control over the publication of comments on his Facebook page showed that he was more than a pas-sive instrument or facilitator. Therefore, it was tenable that he was a publisher of the anonymous statements.
Conclusion
It seems unlikely that, at the substantive hearing, Mr Murray will be able to satisfy the s 21 defence. It would be hard to argue that Mr Murray did not know the page was of a character likely to contain defamatory material, given he had actual knowledge of previous defamatory statements published. The lesson, then, is that if you are a host of a Facebook page (or a blog or a forum message board), and you are deemed to have ratified potentially defamatory posts, you may be prima facie liable as a pub-lisher. Ratification may be inferred by your failure to take steps to remove defamatory material in circumstances where you either have actual knowledge of it, or should have known about it. Further, as an individual (as op-posed to, say, an ISP), if you meet the publisher threshold for others’ defamatory posts, it seems unlikely you would escape liability as an innocent disseminator. Website hosts, beware!
6 Byrne v Deane [1937] 1 KB 818 (CA).7 See, for instance, Sadiq v Baycorp (NZ) Ltd HC Auckland CIV-2007-404-6421, 31 March 2008.8 At [90].9 At [117].
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22 YLC ADVOCATE
MAS “Basics of Investment” Seminar The YLC “Basics of Investment” seminar was held at DLA Phillips Fox on Thursday 11 April.
After drinks and a bite to eat, Dan Callaghan from MAS provided an overview of the basic concepts of investing, before taking a closer look at managed funds. Angus Marks, a wealth management adviser at First NZ Capital, then outlined the risks and rewards of the share market. The presentations provoked a great deal of thinking, reflected in the question and answer session that followed. Many thanks to the speakers, to DLA Phillips Fox for their generous hospitality, and to our sponsors MAS for their support of the evening.
MAS is a membership-based society for professional people and offers a range of financial services. For more information about MAS, get in touch with Alison Snook at [email protected].
AUTUMN 2013 23
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24 YLC ADVOCATE
Have you ever thought, “Who is [X] actu-ally supporting?” Are they supporting the home team or are they simply leasing advertising space? This article highlights
some of the commercial arrangements used by stadium owners (Stadium) and professional sports teams (Team) to allocate Stadium signage and beverage rights between them.
Venue signage
Both the Team and the Stadium need to meet their obli-gations to sponsors and advertising rights holders. The following are some of the considerations that arise in the allocation process:
1. Home Team Sponsors want their advertising to be clearly visible on television (commonly referred to as the “TV Arc”). Examples of ways to deal with this in-clude:
a. During games, the Team’s sponsor is allocated rights to the signage boards that surround the perimetre of the field.
b. Team sponsors may also be allocated signage rights to the changing rooms, the players’ tunnel, the coaches’ box and on the field sponsor marks so that they are within the TV Arc.
c. The Stadium’s signage rights will usually be above ground level (often above 1.2 metres) and are of a more permanent nature. They will be packaged to various businesses for relatively long periods. These packages include Stadium member lounges, corporate box leasing, and naming rights for func-tion rooms and for the Stadium itself.
2. As part of its participation in a competition, the Team will have obligations to the competition owner and its sponsors. The Team, in its venue hire agreement, will usually obtain and then assign signage from within the overall quota it has negotiated with the Stadium.
3. Both the Team and the Stadium must ensure that their obligations to sponsors do not exceed the amount they have been allocated in their venue hire agreement. They must also be mindful that the type of sponsors may be in conflict. These issues may be dealt with by:
a. Each party maintaining constant control and knowledge of its allocation of signage to various sponsors to ensure it does not exceed its allocated amount. This can be difficult to manage and has the risk of human error.
b. Allowing for room within the Team’s sponsorship agreement so that each sponsor’s signage alloca-tion at the Stadium is based on the sponsor’s level of financial support compared to other sponsors (“hierarchy of sponsors”).
c. Following a consultation process before either the Team or the Stadium enters into sponsorship agreements.
d. The parties meeting to discuss and try to negoti-ate, in good faith, any conflicts between sponsors.
JAMES ROACH IS A SOLICITOR IN THE COMMERCIAL AND SPORTS LAW TEAM AT GIBSON SHEAT LAWYERS
Sports Teams v Stadium Owners: the Allocation of Stadia Signage Rights in New Zealand
It’s Friday night. You have finished work and decided to walk along to the stadium to watch the game. As you arrive at your allocated seating (with your hot dog and beer in hand of course), you look around the stadium. Almost every part of the stadium is covered with promotional signage for business entities. Beer wholesalers, accounting firms, electricity providers, banks and many other businesses are vying for your attention.
AUTUMN 2013 25
Alcohol and beverage rights
Another issue that can arise between the Stadium and the Team is the allocation of alcohol pourage rights.
Most Teams have sponsorship agreements in place with alcohol, soft drink, water or sports drink providers. These businesses want to maximise their sponsorship dollars by obtaining supply rights for the Team’s home games. This can be at odds with the commercial operation of the Stadium, which will also have supply agreements for similar products in place. Ways to resolve this include:
a. The Stadium allowing the Team’s sponsors to sup-ply the amount needed for the Team to meet its obligations to each sponsor. Prior consultation is important to ensure that the obligations of both the Stadium and Team can be met.
b. Giving Team sponsors pourage or supply rights to certain parts of the Stadium during the game while the Stadium maintains the catering and beverage supply to the rest of the stadium.
c. Allowing for agreement between the parties on in-dividual occasions.
Conclusion
There is often a balance that needs to be struck between a Stadium and a professional sports Team when organ-ising their commercial arrangements. Both parties are seeking to maximise their sponsorship revenue. Because of this, both parties need to maintain open and clear communication in order to ensure a constructive work-ing relationship. Given the small number of professional sports Teams and Stadiums in New Zealand, both groups need each other for survival.
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Above: Forsyth Barr Stadium, Dunedin. Top: Westpac cricket stadium.
26 YLC ADVOCATE
The rich conversation to date has led to the ex-pression of broad views about what defines New Zealand as well as specific proposals for a written constitution.1 Common themes
include: the need for better public education of the cur-rent constitutional arrangements; further consideration of the status of the New Zealand Bill of Right Act 1990 (NZBORA) and Te Tiriti o Waitangi (Te Tiriti); and whether New Zealand should become a republic. Issues of identity aside, one key issue appears to be whether New Zealand is content to make ad hoc constitutional change by simply amending legislation, rather than by developing more stable constitutional arrangements, such as a written constitution against which future leg-islation could be measured.
The United Kingdom and Israel are the only other devel-oped countries that do not have a written constitution.2
The obvious question is: does a written constitution work? Measuring our success by outcomes, Jack Hodder QC recently pointed out that the constitutionally un-sound Foreshore and Seabed Act 2004 was passed and then repealed after thorough political debate. In this instance, the constitutional wrong of denying access to the courts was remedied through our current flexible po-litical and law making processes and involved significant public discourse.3 Despite examples like this, govern-ments act in a political environment. On occasion, gov-ernments may not reverse previous “bad” constitutional decisions where doing so is expensive or fails to hold political currency. This underscores the benefit of getting decisions right in the first instance. Arguably a written constitution would aid legislative decision-making be-cause the executive, largely responsible for setting the legislative agenda, will consider this additional check on its power seriously before progressing legislation.
The Constitutional Review – Where are We Heading?
As part of the confidence and supply agreement between the Maori Party and the National Party, the Constitutional Advisory Panel Te Ranga Kaupapa Ture was established in 2012 to educate the public on New Zealand’s constitutional arrangements, seek views on those arrangements from the public, and report to the Government on areas of consensus, providing advice on where further work is required. The role of the Panel is to mediate a discussion about the future of our constitution with a cross-section of the New Zealand public and provide recommendations to the Government on where it should go next.
JASON COOPER IS A LEGAL OFFICER AT THE NEW ZEALAND LAW SOCIETY. THE VIEWS HE EXPRESSES ARE NOT THOSE OF HIS EMPLOYER.
1 Radio New Zealand National “Treaty Debate (1): Finding a Place for the Treaty” (27 January 2013) <www.radionz.co.nz> [Treaty Debate (1)]. 2 Philip A Joseph Constitutional and Administrative Law in New Zealand (3rd ed, Brookers, Wellington, 2007) at 17. 3 Radio New Zealand National “Constitutional Review Debates: Debating the Constitution 4: Human Rights” (5 May 2013) <www.radionz.
co.nz> [Debating the Constitution 4: Human Rights].
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Undermining the principle of parliamentary sovereignty is one challenge that any attempt at a written constitu-tion will face. This principle holds that Parliament is sovereign to create legislation, which the courts in-dependently interpret and apply. A written constitu-tion could empower courts to strike down legislation that does not conform to the constitution. This judicial safeguard provides a significant check on Parliament’s power. Although this check may appear to be merely a problem of constitutional theory, it raises a very practi-cal question: who is in charge? Parliament previously at-tempted to limit its own legislative power by enacting s 189 of the Electoral Act 1956, now found in s 268 of the Electoral Act 1993. This section entrenches parts of that Act to protect our electoral system from partisan inter-ference. However, this entrenchment is largely symbolic because s 268 can itself be amended by a mere major-ity in Parliament. This voting requirement shows that Parliament is at least willing to slow down future parlia-ments and make constitutional change politically diffi-cult in order to ensure stability.
In a recent constitutional review debate,4 panel members discussed the effect that a written constitution may have on our judiciary. Jack Hodder QC expressed the view that the judiciary is currently respectful of the consti-tutional boundaries between the courts and Parliament and that placing them in a position where judges may have to strike down legislation would disturb that bal-ance. However, another panel member pointed out that supreme law did not necessarily lead to a politicised or less independent judiciary in either Canada or Australia.
Whatever the likely outcome of this review process, an independent judiciary is essential to the rule of law in any democracy. Consideration of proposals will need to consider what additional measures are required to ensure judicial independence during potentially difficult conversations about the appropriate balance of power between the legislative, executive and judicial branches. What appear to be minor skirmishes and occasional tension behind closed doors now may become significant if a written constitution forces more lively discussion between the legislature and the judiciary (for example, if judges can strike down statutory provisions found to be unconstitutional).
Entrenchment is not a new concept in New Zealand. It was considered in Sir Geoffrey Palmer’s A Bill of Rights for New Zealand: A White Paper, which had proposed an entrenched Bill of Rights for New Zealand.5 That White Paper formed the basis for our current NZBORA, al-though proposals to entrench both the Bill of Rights itself and Te Tiriti ultimately failed.6 In addition to traditional arguments against entrenchment, the failure resulted from a lack of political consensus to provide a super ma-jority. Some considered that without a parliamentary super-majority, the courts may not have accepted the power to strike down legislation.7
4 Debating the Constitution 4: Human Rights, above n 3.5 A Bill of Rights for New Zealand: A White Paper (1985) AJHR A6. 6 Clause 4 of the draft Bill of Rights.7 Joseph, above n 2, at 1142–1143. 8 Treaty Debate (1), above n 1.9 CL Montesquieu L’Espirit des Lois (1748) Book 11 at [ch 4], as reproduced in SM Cahn Classics of Modern Political Theory: Machiavelli to Mill
(Oxford, OUP, 1997) at 351.10 Joseph maps the impact of this on previous constitutional conversations in New Zealand, above n 2, at 139–142.11 M Chen Public Law Toolbox: Solving Problems with Government (LexisNexis, Wellington, 2012) at 995.
Interestingly, Mathew Palmer now suggests a similar model that includes entrenching the NZBORA and Te Tiriti but abolishing the Waitangi Tribunal once all his-torical claims have been heard.8 Whether New Zealand is now ready for this model and whether Māori would accept the idea that our courts, steeped in western tradi-tion, are able to decide all contemporary claims under Te Tiriti, remains to be seen.
Fundamentally, our current arrangements aim to ensure effective governance. It is important to acknowledge that a certain degree of instability is inevitable in political systems that allow for healthy debate and tension. That said, Montesquieu warned of inadequate checks on power:9
Political liberty is to be found only when there is no abuse of power. But constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go.
Political philosophers and legal theorists will continue to discuss the merits of having checks on our Parliament. The challenge for the Panel will be to understand what the New Zealand public thinks about those issues.
Looking forward
It is impossible to predict how New Zealand will choose to deal with the questions posed, but our no. 8 wire men-tality,10 the previous failed attempt at entrenching a Bill of Rights, and a general sense that our country is working well under the status quo, all indicate that without sig-nificant political leadership our country faces piecemeal constitutional evolution as opposed to a revolution.
Mai Chen observes that “New Zealanders tend to be ei-ther uninterested in constitutional issues because they lack knowledge of the constitution’s importance (or ex-istence), or are knowledgeable about constitutional is-sues but want to let sleeping dogs lie.”11 If this current constitutional conversation merely increases awareness of New Zealand’s constitutional arrangements and his-tory among a cross-section of the New Zealand public, it will surely benefit the health of our democracy and add depth to other national conversations.
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28 YLC ADVOCATE
Sixty young lawyers came along to the Wellington High Court on 9 May 2013 to mix and mingle with court registry staff from around the region. The Meet the Registry event aimed to help young lawyers starting out in litigation practice to gain a better understanding of the role of court registries, and to get some tips from registry staff about how to get the best results from their interactions with the courts.
The event began with young lawyers and registry members mixing over drinks and nibbles in the foyer of the Wellington High Court, before moving into the jury assembly room where five registry members talked about their role and gave advice for dealing with registry staff. The speakers were Joseph Buckton from the Employment Court, Patrick Fitzgerald from the Environment Court, Jane Penney from the High Court, Clare O’Brien from the Court of Appeal, and Gordon Thatcher from the Supreme Court. Important advice was be friendly, and don’t be afraid to ask questions — but read the court Rules before you ask! The event was very enjoyable, and following on from last year’s Meet the Judiciary event it was great to see court staff reaching out to interact with the newer members of the legal profession.
A big thank you to all the registry staff that came, and also to the Ministry of Justice for sponsoring the event. Thanks also to Kerrin Eckersley, Lizzie Chan and Hamish McQueen for helping to organise the event.
Meet the Registry
AUTUMN 2013 29
30 YLC ADVOCATE
Business: On the Edge
Working in an office, there are certain dress codes you must adhere to. Work within the rules and cultivate your style. Here are a few workplace essentials that will set a dernier cri framework for your “on the edge” business attire.
ANI CHAN IS THE AUTHOR OF THE FASHION BLOG, A HINT OF CHIC: AHINTOFCHIC.WORDPRESS.COM
Juliette Hogan
Camilla & Marc
CameoCountry Road
CameoLiam
Country Road
Ellery
Zara, $118
White Suede, $445White Suede, $480Liam, $299
River Island, $54
Ruby, $249
Kate Sylvester, $339
Zara, $70
Zara, $152 River Island, $62
Feel empowered with your jacket choice. Don’t shy away from struc-tured looks and masculine cuts. Be bold with your colours and make “you” stand out.
Jackets:
Trousers:
You’ll be wearing your pants all day so why not make heads turn? Try different materials, shapes and prints. Metallic, animal and flo-ral prints are big this season so take the plunge!
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Statement footwear:
1 o’clock: Tony Bianco, $205 (www.tonybianco.com.au)
2 o’clock: Barminton, $310 (I Love Paris)
3 o’clock: Kathryn Wilson, $319 (www.kathrynwilson.com)
4 o’clock: Siren, $229 (www.theiconic.com.au)
5 o’clock: Country Road, $149
6 o’clock: Christian Louboutin, $838
7 o’clock: Jimmy Choo, $845
8 o’clock: Beau Coops x Karen Walker, $540
9 o’clock: Moochi, $399.99
10 o’clock: United Nude, $346 (Ultra, Mischief Shoes)
11 o’clock: Miss Wilson, $239 (www.kathrynwilson.com)
12 o’clock: United Nude, $279 (Ultra, Mischief Shoes)
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New season footwear to get you noticed in the office around the clock.
Style tips:
Don’t be afraid to take on the prints or some-thing with a more masculine touch. Make your bold prints or colours your statement piece and work around it. If you’re unsure of what goes with what then my tip is to pick a WOW piece then work the rest of your wardrobe around it with plainer items. This avoids mak-ing your outfit look too busy and always works a charm but in saying that, sometimes print on print also work very well together so play around with your pieces until you get the right combination.
32 YLC ADVOCATE
Immigration Amendment Bill Continues to Breach International Obligations
The Bill recently passed its second reading by 71 votes to 50, unfortunately with only a few changes made at the select committee stage. The Bill continues to breach New Zealand’s
international human rights obligations and will fail to protect the rights of refugees and asylum seekers who reach New Zealand’s shores.
To ensure the Government had the numbers to pass the Bill, it had to secure the support of New Zealand First and United Future. Peter Dunne has agreed to support the Bill provided the definition of “mass arrival” (origi-nally a group of 10 or more asylum seekers) increases to 30 people before the provisions of the Bill will be trig-gered. New Zealand First will support the Bill as long as the Government includes legislation that creates a secure detention facility for refugees.
In summary, there are three problems with this Bill:• A number of its provisions, such as the detention of
asylum seekers under a group warrant for up to six months, breach New Zealand’s international human rights obligations and conflict with New Zealand’s Bill of Rights Act.
• It will not achieve its stated purpose.• It is unnecessary.
JESSICA WILLIS IS A SOLICITOR AT DLA PHILLIPS FOX
This article follows my previous article on the Immigration Amendment Bill published in the winter 2012 edition of Advocate (accessible here). In that article, I set out my concerns with the proposed Immigration Amendment Bill, as part of the Government’s package to “disrupt, deter and manage a potential mass arrival of asylum seekers to New Zealand”.
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New Zealand’s international obligations
New Zealand is obliged under the UN Convention relat-ing to the Status of Refugees to protect the human rights of all asylum seekers and refugees who arrive in New Zealand, regardless of how and where they arrive, and whether they arrive alone or as part of a group. Article 31, a key provision of the Convention, provides for a fair process for dealing with asylum seekers and states that they should not be prejudged:
31(1) The Contracting States shall not impose penal-ties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory with-out authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
The proposed amendments create a different class of asylum seekers based on their mode of arrival. The amendments also remove the right to be heard before the Immigration and Protection Tribunal for subsequent claims, along with the removal of certain rights of judi-cial review. It also further limits prospects for family re-unification.
The Bill will not achieve its stated purpose
The stated purpose of the Bill is to:1
[e]nhance New Zealand’s ability to manage effec-tively and efficiently a mass arrival of irregular and potentially illegal migrants, and make New Zealand a less attractive destination for people-smugglers.
Punishing asylum seekers does not discourage people-smugglers. The root causes are not in New Zealand, but in the failure of other countries to police people smug-gling. New Zealand already has its own laws around peo-ple smuggling under the Crimes Act 1961. It is clear that policies that aim to deter asylum seekers do not work. In Australia, after a decade of similar policies, over 26,000 asylum seekers have arrived off the coast of Australia.
People will continue to flee their home countries due to war, poverty and political, ethnic and religious persecu-tion. The reality is that any “deterrent” mechanism our Government seeks to impose will never outweigh the ter-ror these people are fleeing from in their home countries.
New Zealand annually receives 750 refugees under the UNHCR quota scheme, a further 300 asylum seekers ar-rive in New Zealand each year. This number is in addition to thousands of residency and other visa applications that are processed each year. Although the Bill has been modeled on 500 people arriving, its focus is on groups of 11 or more (now 30) people. Our current system can al-ready manage these arrivals.
If the Bill seeks to enhance New Zealand’s ability to “manage” asylum seekers, it is ironic that the current National Government recently withdrew funding for a hostel run by the Auckland Refugee Council that pro-vides accommodation for asylum seekers who do not have financial support. The hostel currently provides accommodation for a number of families and individual asylum seekers. In this Bill the Government is talking about assistance for “processing” asylum seekers, yet it has withdrawn funding from a valuable resource that is already providing support.
The Bill is unnecessary
The Bill is punitive and unnecessary. The Government has argued that the recent landing in Geraldton, Western Australia of 66 Sri Lankan asylum seekers who were fly-ing the New Zealand flag, saying they wanted to come to New Zealand, “clearly demonstrates and reinforces the fact” that it’s a matter of when, not if a mass arrival to New Zealand occurs. The boat was over 6000 kilometers from New Zealand. This in no way “proves the govern-ment’s point” as Prime Minister John Key suggested.
Whether or not concerns about the mass arrival of asy-lum seekers are valid, New Zealand should work within the Asia-Pacific region to address refugee protection and the situations in the home countries that are driving peo-ple to make these journeys in the first place.
1 Immigration Amendment Bill (16-2).
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What was the majority of work you did in Bosnia?
I was working for the Head of the Prosecutor’s Office of BiH (Special Department for War Crimes) as a legal as-sistant. Our team dealt with cases in Eastern Bosnia, near the border with Serbia. At the time I was there, all of our cases were in the investigative (pre-arrest) stage. What my role involved, on a day-to-day basis, was es-sentially preparing the case for charges to be laid. I re-searched the applicable law, collated evidence, drafted indictments (including the summary of alleged facts, ref-erencing the witness statements we were relying upon). This also involved identifying the witnesses we needed to speak to, and participating in the interviews.
I also drafted a practice direction on dealing with vul-nerable witnesses and victims, and assisted the US Department of Justice with information on alleged per-petrators that had emigrated to the United States.
What sort of cases were you working on?
Eastern Bosnia in 1992 was not a good place to be if you were Muslim. The Muslim population was being system-atically forcibly transferred or imprisoned in detention camps that had been set up in schools, warehouses etc. The four cases that I worked on involved either mass kill-ings, or sexual and violent crimes allegedly committed in detention camps.
What was your most memorable moment when you were over there?
I was working on a case that involved the murder of around 50 civilians. They had been taken from their home province to a detention camp, and eventually to a forest where they were shot. We had decided to inter-view the person that had driven the vehicle in which the detained men had been transported. He was obviously a very important witness but we were not expecting him to co-operate. Surprisingly he came in and just told us everything, absolutely everything. He was not involved in the shooting, but he knew who was there and could as-sist in identifying the perpetrators. Perhaps he had been waiting that whole time to have the opportunity to talk about it.
Interview with Andrea Ewing on her time working for the Prosecutor’s Office of Bosnia and Herzegovina
INTERVIEWED BY ISABELLE WERFFELI WHO WORKS AT THE NEW ZEALAND LAW SOCIETY AND IS A MEMBER OF AUCKLAND YOUNG LAWYERS
Born in New Zealand and after studying at the University of Canterbury, Andrea Ewing completed her Master of Laws in 2008 at the University of Toronto in Canada. Andrea began looking into internships and found one with the Prosecutor’s Office of Bosnia and Herzegovina, Special Department for War Crimes. She travelled to Bosnia and Herzegovina (BiH) where she worked in a domestic tribunal that dealt with cases as a result of the 1992–1995 war in the former Yugoslavia. Andrea spoke of her work there, her most memorable moments and what she would say to anyone who is interested in working in a similar area.
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At the end of your time in Bosnia what stage were your cases at?
For one of the cases, the accused were arrested about two days after I left. There have now been arrests in all but one of the cases we investigated. Their trials are still ongoing, although one of the trials has been completed with one accused being convicted and one acquitted. It was good to have something come out of the work we did.
Would you do it again and what would you say to young lawyers about doing similar work?
Yes, I would. I don’t regret my time there at all. Having said that, it definitely opened my eyes to some of the dif-ficulties with post-conflict justice. Many people (myself probably included) go into this kind of work expecting that they will be saving the world, but there are limits — political, financial and practical — to what criminal justice can achieve in very divided societies, so long after the fact. And it becomes quite heartrending to bring wit-nesses in to be interviewed yet again about the awful suf-fering that they endured during the war, when you know there is a good chance that the suspect is simply unable to be arrested.
I would definitely recommend this kind of work to any-one who wants to do an internship in an international tribunal, but with a couple of caveats. The first is that it will be hard on your faith in humanity — dealing with hu-man cruelty day in and day out is not good for the soul. The second is that, although international criminal law is seen as a very prestigious field — and much of the work will be fascinating and intellectually stimulating — there may also be an element of drudgery. You’re dealing with so many witnesses and documents, and often many separate sets of allegations that you have to turn into a cohesive story. You need to have a high tolerance for spreadsheets and the like to master all the evidence that goes into a case of this kind.
Andrea now works in Wellington at Luke, Cunningham & Clere as a prosecutor. If you would like more information on the Prosecutor’s Office of Bosnia and Herzegovina, click here.
Bridging the Gap Mentoring Programme
The “Bridging the Gap” mentoring programme was re-launched on Monday 6 May at the Old Bailey. The Bridging the Gap mentoring programme is in its second year of running since its inception in 2012.
Bridging the Gap is a joint initiative of the YLC and the Victoria University of Wellington Law Students’ Society. This year 60 students have been paired with 60 young lawyers, who will mentor them throughout the year with the aim of smoothing the transition between
law school and the profession. We hope the mentoring scheme will also foster a strong professional network of young lawyers.
The launch function was a huge success with lawyers and their “mentee” students meeting for the first time, and even participating in a pop quiz to finish off the evening. The programme promises to offer more events in 2013, with several dinners, drinks evenings, and a career planning seminar scheduled to occur later in the year.
Programme co-ordinator, Heléna Cook says that “Bridging the Gap intends to build on the success of the pilot programme in 2012 and add greater structure and consistency in the programme in 2013. By doing so we are hoping promote longevity and depth in the relationships between the lawyer mentor and his or her student mentee.” Roman Jewell from IPLS, the key sponsor for the mentoring programme, found it encouraging to see IPLS graduates giving back to the community. The YLC is grateful to IPLS for its support.
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www.younglawyers.co.nz