Volume 3, Issue 1

Welcome to 2026. The Faculty of Law continues to produce outstanding research on a range of areas. I am thrilled to showcase a high-quality collection of papers and abstracts covering areas like consumer protection and dark patterns; child abduction; trademark practice and artificial intelligence, and prison gangs. 

Subscribe to our Faculty of Law Research Paper Series for more expert insights into law reform in both Aotearoa New Zealand and beyond. 

-Dr Joshua Yuvaraj, Academic Editor

The King in all his cabinets: Crown and Empire in Te Heuheu Tukino v Aotea District Maori Land Board
Katherine Sanders

The report of the Judicial Committee of the Privy Council in Te Heuheu Tukino v Aotea District Maori Land Board [1941] NZLR 590 is today well-known for the finding that rights under the Treaty of Waitangi have no effect in New Zealand law, save where they are incorporated by legislation. This article asks what Te Heuheu and his supporters hoped to achieve in the litigation, and considers ideas of Crown and empire underpinning that strategy. It argues that debates about the legal and constitutional status of the Treaty were framed by the politics of the 1940 centennial of its signing. The article concludes by characterizing “The Memorial of the Maori People of New Zealand to the Privy Council”, He Pukapuka Whakamaharatanga, as a means of marking the history of the Treaty and its breach at the Centennial. It argues that the Memorial served both to highlight injustice, and to reassert a vision of a political order in which the promises of the Treaty would be fulfilled.

Manipulative Advertising and Vitiating Factors
Joshua Yuvaraj & Jodi Gardner
Ying Khai Liew and Lusina Ho (eds) Asia-Pacific Contract Law, Vol. 1: The Digital World in Context (Hart 2026)

The application of vitiating factors to online contracts is a topic which could cover many different issues. In this chapter we focus on the role that ‘dark patterns’ play in manipulative advertising. We analyze the adequacy of the current law in NZ to address these challenges, particularly in relation to people in vulnerable positions, as well as the potential role vitiating factors play in addressing these challenges.

Dark patterns are ‘user interfaces whose designers knowingly confuse users, make it difficult for users to express their actual preferences, or manipulate users into taking certain actions’. As outlined by Paterson et al, dark patterns ‘burden consumers by constructing hurdles to carrying out choices in their own best interests’. There are many different types of ‘dark patterns’ that can influence consumer purchases — for example, forced action, obstruction, sneak into basket, scarcity messages, urgency messages, bait advertising, misdirection and ‘confirm shaming’. These practices are ubiquitous, and focus on practices that are objectively unfair to all consumers: for example, automatically adding unwanted items to online shopping carts or falsely indicating a lack of availability of a good or service, which are relatively straightforward to recognize and regulate.

This chapter is however concerned with another dark pattern that is more complex and difficult to address: a process whereby people are identified as having potential vulnerabilities (for example by tracking internet search habits), which are exploited by being exposed to advertisements of certain goods and services. We have labelled this practice as ‘vulnerability exploitation’ (VE). VE is an extension of ‘extreme personalization' which combines algorithmic exploitation with a specific targeting of people whose internet usage highlights vulnerabilities.

There are two specific and unique aspects of VE. First, there are three parties involved – (1) the vulnerable consumer, (2) the user interface that takes the data from the consumer and (3) the business that advertises the goods or services. Second, the harm in question does not arise from the content of the advertisement itself, but from the fact that it is purposefully targeted towards people who are already in a vulnerable state who may agree to purchases that are not in their best interests.

This Chapter examines vulnerability exploitation in three contexts: online gaming, digital assets, and fertility treatments. It evaluates the extent to which the law adequately addresses vulnerability exploitation, particularly in the three contexts studied. It also provides some initial thoughts on how NZ’s existing legal framework could be updated to more effectively tackle VE. 

YZA v Western Australian Police and the Potential of Legislated Family Violence Jury Directions to Shift Judicial Reasoning in Family Violence Cases
Hannah McGlade, Stella Tarrant & Julia Tolmie
(2026) 49(3) University of New South Wales Law Journal (forthcoming)

In 2020, reforms to the Western Australian Evidence Act 1906 enacted provisions defining evidence of family violence, permitting its introduction where relevant in all criminal proceedings, and creating a scheme for judicial directions to the jury on family violence. The new provisions are based on an understanding of family violence as a form of social and systemic entrapment. Whilst these reforms built on earlier reforms in Victoria, they are the first criminal law evidence provisions in Australia and internationally to incorporate entrapment principles, and have now been replicated in Queensland. In this paper we document a welcome consequence of the new legislation-which is that judicial reasoning on the facts in the lower courts can now be appealed when it does not conform to up to date understandings of family violence as set out in the relevant provisions. We show how the appellate courts have used the reforms to require a shift away from credibility reasoning reasoning which can unfairly undermine the defence of a person who has in fact responded to ongoing intimate partner violence. However, we also argue that more can be done with the provisions and that educating judges and lawyers on family violence entrapment is required to properly apply the law, especially in relation to Indigenous women. We make this argument through an analysis of YZA v Western Australian Police-the most recent case in which the magistrate's decision was overturned on the basis that it was not consistent with the legislated jury directions.

Abducted Child's Best Interests versus the Theoretical Child's Best Interests: Australia, New Zealand and the Pacific 
Mark Henaghan, Christian Poland & Clement Kong
Laws, volume 12, issue 4, 2023[10.3390/laws12040063]

A recent trend can be seen in jurisprudence concerning the Hague Convention on the Civil Aspects of International Child Abduction, at least in the Australasia/Pacific region. Courts are now more mindful of the abducted child in particular and will investigate the true impacts of returning the child to determine what is in their best interests, particularly in cases of domestic violence. This is a departure from the long-standing emphasis on returning abducted children promptly to their country of habitual residence, after which the courts of that country will make the final decision, because it is generally in the best interests of children to deter child abduction. This article compares various jurisdictions' approaches with the lens of whether the courts are preferring the particular child over the 'theoretical' child.

AI and Trade Mark Practice
Rob Batty

The use of artificial intelligence (AI) appears to offer attractive efficiency benefits for those who engage in trade mark work on behalf of others, such as trade mark searching, preparing and prosecuting trade mark applications and advising in relation to trade mark disputes.  This chapter analyses how such use may implicate the professional obligations of lawyers and trade mark attorneys, including obligations of competency, responsibility, confidentiality and obligations to the courts and the administration of justice. I suggest that navigating adherence to such obligations is achievable, and risks can be mitigated. However, there would be merit in ensuring those entering relevant professions, and those already within the professions, receive appropriate education on the limitations and risks in the use of AI.  More radially, I argue that the increased integration of AI into trade mark practice may illuminate concerns about unregulated persons who carry out trade mark work on behalf of others. There are limited levers to regulate, educate and discipline such persons if they make inappropriate or problematic use of AI while conducting trade mark searches, undertaking legal research and providing advice on trade mark adoption, registrability, use or enforcement. I suggest, therefore, that growing use of AI in trade mark practice may prompt regulators to consider who should be able to carry out trade mark work on behalf of others.

Prison Gangs, Organised Crime and Prison Social Order: A Comparative Analysis of Prisons in Aotearoa New Zealand, Australia, and England
Kate Gooch & Katherine Doolin
International Criminology, volume 5, issue 4, 2025[10.1007/s43576-025-00181-5]

Gangs have been described as a central feature of prison life for at least the last 50 years, yet it is only in the last decade that prison gangs have attracted more sustained scholarly attention. The most notable studies have been conducted in North America and, to a lesser extent, Latin America, but there has been little empirical research on prison gangs in Australia and Aotearoa New Zealand. In addition, whilst there have been studies of gangs in England, the presence of gangs in English prisons is contested. Drawing on semi-structured interviews with prisoners and prison staff in Australia, Aotearoa New Zealand, and England, this paper analyses the differences between the three jurisdictions regarding the prominence of prison 'gangs', and, more fundamentally, how gangs were defined. In so doing, this article empirically assesses typical explanations for the prison gangs and, given the role of importation in the jurisdictions studied, questions the extent to which the Eurogang definition can achieve the international appeal originally envisaged. It is argued that whilst criminal collaborations and forms of prisoner governance were present in all three jurisdictions, the extent to which prison gangs assumed a central governance role varied, as did the complexion and character of those gangs. There were crucial cultural, historical, penal, economic, and importation factors that explained these variations but, critically, those factors that held explanatory power had been overlooked by earlier research on prisoner governance. Moreover, our comparative study of three jurisdictions illustrates that realising the global aspirations of the Eurogang programme of research requires a dexterity and criminological imagination that allows for local, historical, penal, and cultural understanding.

The Role of Domestic Courts in International Trade
An Hertogen & Tracey D. Epps
Accepted for publication in Kathleen Claussen and Rodrigo Polanco "Oxford Handbook on Comparative Trade Law"

This chapter examines the role of domestic courts in enforcing and interpreting trade law within their jurisdictions. Our goal is to identify the role of domestic courts in trade disputes and to better understand how these courts become involved in international trade law and why they often, at least ostensibly, play only a secondary role. Our key focus is on the structural or institutional elements of a domestic legal system. We seek to understand how cases emerge, how domestic legal systems enable or restrict the resolution of disputes in national judiciaries, and which types of courts are involved. These questions are important to get a more granular view about who shapes the day-to-day application of international trade law, especially as the field expands to cover broader aspects of economic life. While these questions might not always get a lot of attention in academic writing, access to national judiciaries and the decisions they adopt can be highly important to the ability of private traders to make full use of a state’s international trade agreements.