Volume 2, issue 2 (forthcoming)

This year has seen a continuation of concerning trends worldwide: the climate crisis worsens, the rule of law is under threat, and poverty continues to affect even affluent countries. Our second edition of the University of Auckland Faculty of Law's SSRN e-journal attempts to tackle these complex problems. With diverse contributions covering counterterrorism regulation, the justice of administrative tribunals, the historic and contemporary roles of charities law, and even the intersection of tax law and nuclear warfare, our research brings nuanced legal perspectives that advances thinking for policymakers, scholars and lawyers in Aotearoa New Zealand and beyond. 

For more of our world-leading research, follow our SSRN Research Paper Series.

- Joshua Yuvaraj, Academic Editor

The U.S. Government’s 1967 Plan for the Survival of the Tax System in the Event of a Nuclear Attack
Michael Littlewood & Micah Burch

In 1967 the U.S. Government produced a plan (the Proposal) designed to ensure the continued operation of the federal tax system in the event of “a major nuclear attack.” The assumptions on which the Proposal was based were horrific: they included that the number of casualties in the United States might number 100 million; that 50% of the country’s real estate might be destroyed; and that its economy might be even more seriously disrupted than those figures suggest. The Proposal produced in 1967 seems to be the first of its kind. Presumably more recent plans have been formulated, but it seems that almost no information about them has been made public.

This article examines the 1967 plan and the thinking behind it. This is worthwhile for three main reasons. First, the formulation of the Proposal is itself a significant event in the twentieth century history of the United States, but almost nothing has been published about it. Secondly, an examination of the Proposal and the relations between the men who devised it provides novel insights into the manner in which the nation was governed in the 1960s, and of the extent to which the Soviet threat lay like a cloud over all aspects of the government’s decision making. Thirdly, although the Soviet Union has dissolved, the threat of nuclear attack has not. The 1967 plan would seem to be the obvious starting point, therefore, for anyone considering what the government’s current plans are — or should be.

Compliance and Accountability Mechanisms in the BBNJ Agreement
Caroline E Foster

The Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ) was adopted in June 2023 as an implementing agreement to the UN Convention on the Law of the Sea 1982 (UNCLOS). The BBNJ Agreement has particular design characteristics. The Agreement involves relatively light substantive obligations complemented by relatively heavy procedural obligations aimed at ensuring the parties' transparency of action in relation to its various mechanisms for conservation and sustainable use of marine biological diversity and related matters. It is these reporting and information-sharing procedural obligations which are intended to enable the Agreement's overall aims to be met. This means that the Agreement's Compliance and Accountability Mechanisms in the BBNJ Agreement as they are applied to such procedural obligations will be particularly important. The parties will want to keep this in mind as they elaborate further the role of the Agreement's Implementation and Compliance Committee and the operating procedures for the BBNJ Clearing House Mechanism.

Wai 262 Response: A Whole-of-Government Approach?
Jayden Houghton

In 1991, six Māori claimant groups sought the Waitangi Tribunal’s findings that the Crown had breached its Treaty of Waitangi guarantee to allow Māori to exercise tino rangatiratanga (the unqualified exercise of our chieftainship) over our mātauranga Māori (the body of knowledge originating from Māori ancestors, including the Māori worldview and cultural practices) and taonga (tangible and intangible treasures). In 2011, the Tribunal publicly released its full report on the claim. Since then, the New Zealand Government has been working out its response, internally at first and publicly since announcing Te Pae Tawhiti (a work programme to address the Crown’s breaches) in 2019. Māori have repeatedly asked that the Government’s response take a whole-of-government approach. This article demonstrates that the current response falls short of a whole-of-government approach and reiterates that a whole-of-government approach is required to appropriately address the scale of the impact of Wai 262 on governance in New Zealand. The article then provides guidance for the Government to learn from its own experience, as well as international experiences, with whole-of-government approaches, to develop a whole-of-government response that enables it to adequately respond to Wai 262. The article considers why a whole-of-government response is necessary, surveys the work the Government has done to make its response whole-of-government and identifies issues with the Government’s approach, before using scholarship and case studies in Australia and Hong Kong to urge the New Zealand Government to reconsider its approach to whole-of-government responses generally. The article contributes to the literature by presenting findings from Official Information Act requests in 2018, 2020 and 2022 to seven Te Pae Tawhiti-engaged Government agencies and interrogating the concept of a whole-of-government response in the New Zealand context. The insights will help Māori and others to hold the Government accountable as the Treaty partners progress Te Pae Tawhiti.

Charities and politics: where did we go wrong?
Jane Calderwood Norton & Matthew Harding

This paper examines a long-standing doctrine in charities lawthat if an organisation's main purpose is political then it cannot be charitable. This doctrine is not without controversy because it has the potential to exclude many worthwhile organisations from charitable status, and fetter worthwhile advocacy by those that do have status. While no jurisdiction remains unwaveringly committed to the orthodox political purpose doctrine, we argue that none so far have confronted the public benefitand detrimentof political advocacy adequately. This paper proposes a way of assessing the public benefit of political advocacy in liberal democratic societies. It argues that political advocacy can give rise to clear public benefit: this is an indirect or process benefit associated with advocacy itself regardless of the end advocated for. However, recognising political advocacy purposes as charitable should still be subject to two constraints: the altruism requirement (reflected in the 'public' aspect of public benefit); and consistency with liberal democratic values (as part of the 'benefit' aspect). These constraints are needed because, while political advocacy can generate benefit, detriments may also be associated with political advocacy.

The Case for an Independent Reviewer of Counterterrorism Legislation in New Zealand
John Ip

Counterterrorism legislation expands state power. Its enactment is often reactive and rushed. Once enacted, it tends to resist repeal. These features make scrutiny and oversight of the operation of counterterrorism legislation particularly important. However, the institutions ordinarily tasked with these functions, including legislatures and courts, have various limitations. These limitations, coupled with New Zealand's enactment of a relative flurry of counterterrorism legislation since 2019, suggest the need for a different institution. Drawing on models from the United Kingdom, Australia and Ireland, the paper argues for the establishment of a permanent independent office, with complete access to information, to review the operation of counterterrorism legislation at a programmatic level and publish reports with its findings and recommendations. The value of such an entity lies in its capacity to enhance public understanding, facilitate evidence-based policy-making and augment existing legal and political oversight institutions.

Administrative Justice Through Administrative Tribunals in Aotearoa:Exploring the Tensions and Trade-offs
Hanna Wilberg

This chapter offers an administrative justice framework for evaluating remedial avenues, and a sketch of how this might apply to administrative tribunals in Aotearoa New Zealand. My framework aims to identify the range of competing considerations and to emphasise the tensions between them and the consequent need for trade-offs.

Mrs Jelleby, Victorian Values, and the Legal Framework of the Law of Charity in Nineteenth-century England
Warren Swain

From the mid-seventeenth century to the mid-nineteenth century the nature of private charity changed fundamentally. Charities became large, wealthy, national organisations. The legal and regulatory  framework struggled to keep pace. The nineteenth century saw both changes to the substantive law of charities and the regulatory framework. These changes took place against the backdrop of debates about the proper reach of the state.