Student Theses
Read the new and exciting research our students are working on
Research title: Consent and Coercion: A Socio-Legal Study on Forced Marriages in Aotearoa, New Zealand
This project investigates the issue of forced marriages in Aotearoa New Zealand. Popularly understood as a phenomenon where both or either of the parties do not give free and informed consent to a marriage, this is a violative practice which is found to be interlinked with other known criminal offences like family violence, intimate partner violence and honour-based crimes.
This study aims at learning about the realities of this practice and its impact on lives of people in Aotearoa New Zealand. It aims at achieving this by recording the lived experiences of survivors and those working to assist them, within government agencies and non-governmental organizations. Importantly, this study will examine the role of law in addressing forced marriages and reflect on how the legal response framework in Aotearoa New Zealand can be strengthened to address this issue and better support our communities.
Shannon Eldridge
Publication as Punishment: A Comprehensive Review of Criminal Name Suppression in New Zealand
Courts prohibiting the publication of a criminal defendant’s identity is a topic that has failed to draw much in the way of academic attention, despite its ability to readily trigger controversy even among the general public.
This research project intends to investigate name suppression in a manner that gives due credence to the myriad of competing interests and principles that suppression orders concern, many of which are vital to the operation of the criminal justice system (“CJS”), including open justice, the right to fair trial, the public perception of the CJS, and the media’s role in shaping this.
However, the primary lens through which this investigation is being undertaken entails viewing publication as a punishment. This is not a difficult conception to envisage, given the significantly damaging and enduring stigma that comes with being publically identified as being a criminal defendant in this era of the internet and the proliferation of social media.
With this in mind, particular issues move to the forefront, such as the presumption of innocence, whereby those awaiting trial (and thus presumed innocent), those found guilty, and those acquitted of their charge(s), are subject to the same discretionary exercise which begins with the presumption that their identities will be publicised.
The fact that suppression orders are the result of a discretionary exercise raises the familiar spectre of discrimination in the CJS. Much like conviction, bail, and sentencing, empirical research into decisions to grant/withhold suppression orders may also reveal inequalities in the treatment of defendants based on race/nationality, sex/gender, socio-economic status, and/or the intersection between them.
This project intends to shed light on an under-researched topic, and discuss how suppression law should be developed to better reflect society’s best interests. It should also demonstrate the unique insight the concept of name suppression can provide for assessing key legal principles and issues, particularly those that pertain to how the CJS interacts with the general public through the media in a democratic society.
John Land
The Validity of New Zealand Corporate Transactions undertaken contrary to the Interests of the Company
The growing complexity and significance of corporate transactions means that it is more important than ever that parties contracting with companies have certainty that their contracts are binding.
In that context, a major area of potential uncertainty arises in relation to transactions where directors commit a company to a transaction which is not in the best interests of the company (in breach of s131 Companies Act 1993). Such a breach of duty can give rise to liability by the director to compensate the company or account for profits that they may have obtained.
The impact of the breach on the underlying transaction between the company and the third party contracting with the company is, however, not as well understood. Can the third party to the transaction rely on the contract in fact being valid and enforceable?
This depends in part on questions of agency law - does the director have actual or apparent authority to bind the company to such a transaction? It also depends on principles of equity – can the transaction be set aside in equity because of the director’s breach of his or her fiduciary duty to the company? If the transaction is potentially invalid (either as a matter of agency law or in equity) then in what circumstances can the transaction be ratified or affirmed by the company?
This area of the law involves unfortunate complexity and uncertainty. The law is largely set out in court judgments which are not always consistent. Legal practitioners and business people do not appear to have a clear understanding of the law.
Given the importance of certainty and security in commercial transactions, the law is in need of clarification.
My thesis is that in order to appropriately protect the interests of third parties a transaction entered into in breach of the duty to act in the best interests of the company should be considered voidable only. The company should have the right to set aside the transaction where the third party is not innocent. In most (but not all) cases the company should be able to affirm such a voidable transaction through a ratifying resolution of shareholders (not directors).
Maude Loutsch
My research explores the right to housing in the aftermath of a natural disaster, with particular attention to the Asia-Pacific Region. In the light of past disaster events, it aims to develop a comprehensive human-rights based approach to housing. With the increase of disasters worldwide, the idea is that disaster management will benefit from a based approach. Too often, disaster responses are embedded in bureaucracy and politics, with the devasting consequences of delaying action and creating frustration for the victims. Furthermore, long-term disaster responses rarely mention the right to housing in all of its aspects. They approach housing as mere shelter and only concern themselves with issues of construction and ownership. However, the right to housing encompasses a range of social and cultural aspects that are as important for the victims. A human-rights based approach will bring emphasis on those aspects alongside notions of “non-discrimination”, “participation”, and “vulnerability”.
My thesis recognizes that the enforcement of a human-rights based approach is immensely challenging in the immediate aftermath of a natural disaster. In the chaos of things, government agencies cannot function properly and deliver on the right to housing. Therefore, it is essential to reasonably interpret the human-rights based approach to housing in the specific context of a disaster, with its practical limitations Nonetheless, my research pursues the idea that governments agencies cannot use disasters as an excuse to set human rights aside entirely. In the short-term recovery, for instance, governments need to provide appropriate shelter to the affected population and deal with the displaced population accordingly. Overall, a human-rights based approach aims to evaluate the current framework and prompt us to consider whether we should continue to engage with the present legislation or whether it should be enhanced with an additional, more housing-focused framework. Truly moving towards disaster management that fully embraces the right to housing would, in my view, give additional protection to victims, especially in a region where the land holds particular cultural importance for indigenous people.
Christabel Pahl
Fair trading legislation protects consumers from misleading or deceptive marketing by brands. But, what happens when the misleading part of the marketing is the brand itself? A brand presents a ‘story’ about a product and the business that produces it. However, the extent to which the law regulates the legitimacy of that story is unclear. My PhD asks whether Consumer law should require brands to be authentic. To answer this question, my research project is cross-disciplinary, looking at the issue from a Law and Marketing perspective. I am fortunate to have great supervisors in both areas. Professor Warren Swain and Dr Karen Fairweather are both extremely knowledgeable about the historical development of contract and consumer law. My other supervisor, Dr Joya Kemper from the Business School’s Marketing department, researches the inconsistencies between companies’ marketing on social issues and their actual practices.
‘Brand authenticity’ is an intriguing issue because, while there is a wealth of recent research on the concept, an agreed definition remains elusive. On the face of it, however, there are many examples of businesses using branding to project certain values or characteristics which the brand’s owner is arguably not entitled to claim. Behind the veneer of branding may lie certain facts that would surprise many consumers. For example, ‘New Zealand’s favourite biscuit maker’ Griffins has not been New Zealand owned since the 1960s. A further example is when a large company capitalises on consumers’ preference for local smaller businesses through branding. Last year one of the country’s largest chicken companies, Brinks, launched a new brand called ‘George & Jo’s’, and the packaging prominently featured a sketched picture of two people. A genuine small scale producer argued that Brinks had breached the Fair Trading Act by giving the impression that it was a new start-up run by two farmers. Brinks withdrew its products from supermarket shelves and the matter did not reach the courts. My PhD will consider whether there is a good argument for fair trading legislation covering inauthentic branding. The answer is not clear-cut: perhaps control over marketers’ creative license to tell a story is one legislative step too far.
Towards International Tax Arbitration-The Theoretical and Practical Perspective:
The key idea of my PhD is that International Tax Law is in need of an alternate dispute resolution mechanism. Should arbitration be mandatory and binding, with participation rights for the taxpayers and independent arbitrators? These features do not currently exist in the existing system. Disputes are expected to increase due to the efforts of States worldwide to tackle aggressive tax avoidance schemes and implement the new international tax rules applicable to the largest and highly digitalized multinationals. The fundamental questions that my research focuses upon are: a) Where are the inefficiencies of the existent dispute resolution mechanism? b) Why do these inefficiencies prevent effective resolution of disputes and what is required for such a model to be effective? c) How can arbitration (or any other form of dispute resolution) be justified through solid theoretical and moral grounds? d) Can the system suggested be validated through empirical data?
My project makes a substantial contribution in three distinct ways. First, it shall reveal the shortcomings of the present legal framework for dispute resolution. Second, it shall connect tax and ethics in this field and suggest that arbitration is not only cost and time efficient but also justified. The vision of a legal system deprived of morality decreases both its chances of acceptance and long-term survival. Third, successful dispute resolution assists in the avoidance of ‘trade wars’. When countries use taxation to recover from the impact of Covid-19 and the new international tax developments currently proposed are implemented then there will be a need for greater international tax cooperation and consensus. Adopting tax treaty arbitration as a peaceful, cost-efficient, and cooperation-promoting mechanism may achieve significant societal benefits. I am the first PhD student to be awarded a Coote scholarship which is a huge honour. After my LLM studies at Cambridge, I look forward to relocation to Auckland to continue my research on this important topic.