LAW REVIEW - NZLII

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Artides

TE MATA l{OI:

Li\UCKLAND UNIVERSITY LAW REVIEW

Vol 9 No 4 2003

Cite as: (2003) 9 Auckland UL Rev 1101

Judge, Jury and Executioner? Analysing the Nature of the Security Council's Authority under Article 39 of the UN Charter

Page

- Michael Selkirk 1101

Luke v Lyde: Lord Mansfield and che Development of the Principles of Mercantile Law - Bridget Murphy 1140

The Great 'Witch Hunt: The Persecution of Witches in England, 1550-1660 - Anna Garland

Balancing Rights and Interests in Access to Infertility Treatment

1152

- Lisa Fong 1181

The Role of Estoppel as a Defence to Claims in Unjust Enrichment - Jane Taylor 1208

Smoke and Mi1Tors: The Introduction of Private Prosecutions under s 54A of the Health and Safety in Employment Amendment Act 2002 - Natalie K. Fraser

The Approach of New Zealand Courts to Negligent Misstatement: Rationalising Price Waterhouse v Kwan and R.M. Turton & Co Ltd (In Liquidation) v Kerslake and Partners. - Naomi Price

Re-Thinldng Negligent Misrepresentation - Bridget Murphy

The ICC: A Fornm for Show Trials? - Jenni Smith

1230

1267

1283

1298

Ko Ngaa Take Tore Maori

The Eradication of Kiore and the Fulfilment of Kaitiakitanga Obligations - David Kapa 1326

The Alienation of Land in Ireland and in Aotearoa/New Zealand under English Colonization - Brigid Kelly 1353

Playing the Tiriti of Waitangi: The Drama of Maori and the Crown - Amy Mansfield 1367

Case Notes

Affirmative Action in the United States: Grutter v Bollinger 123 S Ct 2325 (2003) - Hamish Oakley

The Demise of Consideration for Contract Variation Antons Trawling Co Ltd v Smith [2003] 2 NZLR 23 (CA) - Craig Ulyatt

Book Reviews

The New Zealand Bill of Rights, Rishworth et al, Oxford University Press, Auckland, 2003. - Paul J C Davies

intemet.law.nz, David Harvey, LexisNexis, Wellington, 2003. - Thomas William Hill

Private Property and Abuse of Rights in Victorian England, Michael Taggart, Oxford University Press, London, 2002. - Andrew Hough

Books Received

1377

1386

1398

1402

1409

1414

Editorial

The last four years in the life of the Auckland University Law Review has seen substantial change as the Review separated from the Auckland University Law Students' Association and came under the auspices of the newly established Auckland University Law Review Charitable Trust in 2001. The year 2003 has been no exception to change. The principal change this year has been the signing of an agreement with William S. Hein & Co to make the Review available electronically as part of Hein-on-Line, and for William S. Hein & Co to become sole distributors of back issues of the Review. We are particularly grateful to Brian Jablonski of William S. Hein & Co. for his patience and assistance in finalizing the agreement.

The advantages of this agreement for the Review are significant. By becoming part of Hein-on-Line, our potential readership will increase greatly, which ultimately helps to fulfil the purpose of the Review. Additionally, in signing over rights to the distribution of back issues the agreement will also help to simplify the business structure of the journal. It has also freed up storage space and allowed us to more precisely produce the number of journals required to be printed each year, thereby saving money.

The need to simplify the business side of the Review as much as possible is an important issue. One of the most significant problems in running the Review is the large staff turnover each year, on both the editorial and the business side. This can lead to a lack of continuity from one year to the next, with staff year after year "reinventing the wheel" so to speak, leading to inefficiency and an unnecessary duplication of work. This is not an easy problem to solve, however, as Editors-in-Chief this year we hope we have managed to develop a simpler and more efficient organization for our successors.

However, despite the problems inherent in the running of the Review, this does not in any way reflect on the high quality of submissions that we once again have received. The choice was difficult but what we have chosen reflects, we consider, some of the strengths of the Auckland University School of Law. This year we have articles on topics of international law, legal history, tort law, human rights law, employment law and restitution.

For the second year running we are pleased to award the Minter Ellison Rudd Watts Prize to an article on an international law theme by Michael Selkirk.The article considers the Security Council's contentious interpretation of its own jurisdiction to restore and maintain international peace and security under Chapter VII of the UN Charter. The success of yet another international law article, following last year's prize-winning article, is a tribute to the enthusiasm and teaching abilities of lecturer Treasa Dunworth.

We are also extremely pleased with the response this year to the Ko Ngaa Take Ture Maori section, a section designed to highlight issues relating to Maori. Thanks in part to the encouragement and support of Kerensa Johnson we have the largest Maori section in the history of the Review.

However, while the contents of the journal are one thing, without the support of numerous people we could not have produced the journal this year. First we wish to thank our editorial and business team for their hard work. In particular we wish to thank Nick Sage and Sarah Walker for taking on extra work when unforeseen circumstances arose.

We would also like to thank both the academic and office staff at Auckland University Law School for their support throughout the year. In particular we wish to thank Paul Myburgh, our faculty advisor, for all his advice throughout the year, and also to Birgit Pflumm in the Law School office for providing assistance in resolving day-to-day problems.

We also wish to thank Minter Ellison Rudd Watts for their continued support of the Law Review and sponsoring the Minter Ellison Rudd Watts Prize for the best article in 2003.

Additionally, thanks are due to Megan Nodder of Oliver Young for her assistance in getting the Review ready for publication, from who we received prompt and efficient responses.

Finally, on a personal note, we would like to thank our families for their support over the past year.

It has been a privilege to be editors-in-chief of the Auckland University Law Review, and we wish the incoming editors-in-chief all the best in 2004.

Anita Kundu

Mark Utting Auckland, November 2003

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Judge, Jury and Exec111Homt(err? A1naliysftng the Nature of the Sec11Jn·itity Cmu11dPs

Autlhrnrity 11uMieir Article 3~~ of tlhte TUN Charfa~r

Michael Selkirk*

1101

'lv'Vinner of the Minter Ellison Rudd ivVatzs Lmv Reviev11 Prize for 2003

~------------ ----------- -

The police ctT'"t ransacking the te;nple, searching J(Jr crilninals .and tho:;::; it calls t--:::rrorists, The niind of the police - the security police in "!}zis case - is a rnnchine} progranuneci to believe tFud history ended c1.nd ·we tvon it . "° Q'uod non }r:-ecerunt bctrba,t fecerunt Barberini. T,he peace c.--:f the p,olice is not the cabn of llze te,nlJle

but th.e silence c:f t.he i-,;Jn1h. 1

The susceptibiEt~r c•f the United Nations Security Council to ::i form of ju(iicial ove:-sight has beeft long d·~bated Oil the basic·,. cf two ~J,rirnary asserti,Jns. FirsL many :::ornrnen:,2,turs ;Jssert that international judicial orgca1s have" 2_ vital rol~ in authoritatively inlerprei:lr,g tF::aty provi8ioas and ensuring their proper observance by b.::)th .~:tate.-Parties and ,hose org2.m establ ish,c:d purnuant to such treaties. In this respec,. the =nternmionKl Cornt of Justice (":CJ") i_, perhars the most appropriate im;titulimJ for sonsidering thr:: legafa:r of Secur:ity Council actions. Sov1ever, il is not the puq:cose of this arli.d:c to addi-es::: the authority, if any, of t!1e ICJ m othe-r irntitmion.s to re,.,-iew the deci2ion2 of United Nrti:ions ("UN'''') orgm1s. 2 Re.tiler, tbis a:ticle considers a second assenion: l:hat the determinations of the ,Security Council are _justiciable as questions of law.

It appears e:,tabEshed, a;1d is ass1J1r1ed for the purpose of this article, tha1 fnt:c.mationa! institutions have rhe capacity to ::,ct rJJ::iawr\•lly. ErownEe asserts that "in principle interrr:adonai organizailons may act uZtff, vir2s and thus create the necesr.ity ,:o decide on the legal effecr of the illegal acls of organizc1.tions" .1 At the same time, it is "'generally aw::pted that UN or;gans have the authority to determine, at least prima facie, the limits of their own jurisc:iction".4 In the Certain Expenses cr,se the ICJ held: 5

Bl1.. The author would Iike to express bis gratitude to Ms Treasa DmwlOrth, lecturer in international law with the Faculty of Lmv at the University of Auckland, for her invaluable guidance and assistance. Koskenniemi, "Tbe Police in the Temple: Order, Just]ce and the UN" (1995) 6 Eur J Int'l L 325,348.

2 This assertion is discussed in detail in Roberts, "Second-guessing the Security Council" (1995) 7 Pace ILR 322. 3 Brownlie, "International Law at the Fiftieth ,<1_nniversary of the United Nations" (1995) 255 RCADI 9, 214; see also

Lauterpacht, Cambridge Essays in lnrernatiorwl Law (1965) 88-121. 4 Koskenniemi, supra note 1, 341.. 5 Certain Expenses of the United Nations (1962) IC] Reports 151, 168 ["Certain Expenses"]. Cited in Bowett, infra note 6.

1102 Auckland University Law Review

[W]hen the Organisation takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organisation.

There is, therefore, credence to the view that Security Council decisions enjoy prima facie validity. However, Bowett asserts that this is a rebuttable presumption that may be challenged "in the final analysis".6

The legality of decisions made by an international institution may be challenged in two fundamental ways. An 'error within jurisdiction' may arise where an institution acts illegally in pursuit of its legitimate purpose; for example, incidents of procedural impropriety. These errors would also include the recent accusations that a Security Council arms embargo, although addressing a legitimate threat to international peace and security, breached the jus co gens right of Bosnian Muslims to self-defence.7 A second avenue of illegality may arise in an 'error going to jurisdiction' 8 where an institution acts outside its purpose or ultra vires. In such instances, a body has no jurisdiction, and therefore no authority, ab initio, to make the decision in question.

This article focuses on the second of these issues, specifically, in terms of the Security Council's contentious interpretation of its own jurisdiction to restore and maintain international peace and security under Chapter VII of the UN Charter. While it is generally accepted that the Charter is a fundamental source of law, Chapter VII proves problematic because it is an interface between law and security policy. As a precondition to the invocation of Chapter VII, the Council must determine the existence of any 'threat to the peace', 'breach of the peace', or 'act of aggression'. The question addressed by this article is whether the Council's current interpretation and determination of these preconditions is an expression of international law determinable by legal criteria, or the prerogative of a political institution.

To this end, Section II of this article briefly considers the motivations behind the empowerment of the Council, and the relevant provisions of the Charter. The Article 39 preconditions have been developed, or neglected, according to the necessity and desires of the Council, especially its permanent members. To better understand the current practices, and constraints, affecting the authority of the Council, Section III shows how 'threats to the peace' have become favoured, because they are conceptually flexible and thus help to preserve the Council's discretion. In Section IV, this article explains the redundancy of the remaining preconditions, due to the role of 'threats to the peace' as a 'lowest common denominator'. Finally, Section V considers the implications of these findings for

6 Bowett, "The hnpact of Security Council Decisions on Dispute Settlement Procedures" (1994) 5 Eur J Int'l L 89, 93.

7 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro)) (1993) ICJ Reports 3.

8 The international judicial system has not been as willing as the Commonwealth courts (including New Zealand) to collapse this 'errors' distinction. See e.g. Anisminic v Foreign Compensation Commission [1967] 2Al1ER 986.

Judge, Jury emu Executioner? 1103

the Council's authority, and concludes that, despite the predominance of 'threats to the peace', only a determination of an 'act of aggression' could be amenable to review as a question of law.

n. Empowering 11:he UN Secmriity Council

The consensus-bound decision-making of the League of Nations proved inadequate to enforce international responsibilities or prevent resort to war. The League Covenant contained no prohibition on the use of force, nor were the League's decisions binding on its member states. 9 Malanczuk summarizes the source of the League's faiiure: 10

[It was] the inherent contradiction in the concept itself of collective security in the form of a mere association of self-interested and sovereign states. The concept assumes that all states have an equally strong interest in preventing aggression .... [In fact] the League could only function to the extent that the member states were able to agree.

Following the end of World vVar II, the victorious powers again considered the prospect of collective security at Dumbarton Oaks in the United States. The unsatisfactory performance of the League was a primary consideration in the drafting of the UN Charter. The eventual soluition was the creation of a smaH, yet extremely powerful, international executive body: the UN Security Council.

J!.. lPrnm21ry Responsibility for fote.rnatirnnal Peace and Security

To prevent a reoccurrence of the League experience, the international community furnished "the [Security Council] with an exclusive competence to impose sanctions open to broad interpretation with regard to the prerequisites for such authority", 11 Consistent with the Council's "primary responsibility for the maintenance of international peace and security", 12 these prerequisites were enacted in terms of the fundamental challenges to international peace: 'threats to the peace', 'breaches ofthe peace' and 'acts of aggression'.

The Council's power to interpret these preconditions - and, accordingly, its own jurisdiction - was the subject of intensive negotiations. Many (particularly smaller) states demanded rigorous regulation of the Council's enforcement powers. Despite these states' considerable efforts, the drafting committee

9 Frowein, "On Article 39"', in Simma (ed), Charter of the United Nations (1994) 606. 10 Malanczuk, Akehurst's Modem Introduction to Jntemational Law (7 rev ed. 1997) 25 ["Akehurst's"'], 11 Frowein, supra note 9, 607. 12 United Nations Charter (1945), art 24(1).


"decided to adhere to the text drawn up at Dumbarton Oaks [in 1944]".13 As Frowein explains, "all proposals for changes which aimed at weakening the authority of the [Security Council] were rejected". 1• The Charter reflected "political compromise among the major powers, with some genuflections in the direction of the smaller States". 15 The result of negotiations at San Francisco in 1945 was Chapter VII of the Charter, the preconditions for the invocation of which were contained in Article 39: 16

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

The travaux preparatoires for Article 39 indicate an intention to provide the Council with the authority "to decide freely when a threat to the peace, a breach of the peace or an act of aggression existed". 11 Indeed, the Charter does not define these preconditions, 18 and throughout the Cold War the Council "successfully warded off attempts to define [these situations] precisely" :19

The sole express concession of the major powers to a limitation on the Council's powers appears in Article 24(2): "In discharging [its, inter alia, Chapter VII] duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations .... "20 Consequently, the jurisdiction of the Council to determine the existence of prerequisite situations "has to remain, at the very least, within the limits of [these] purposes and principles".21 As will be seen, the principle of non-intervention, provided for in Article 2(7), continues to impact on the Council's authority under Article 39.

13 See generally Paul-Bonconr, Report of Paul-Boncour; Rapporteur on Chapter VIII Section B, 12 UNCIO Doc 502-514.

14 Frowein, supra note 9, 607. 15 Kirgis, "The Security Council's First Fifty Years" (1995) 89 Am J Int'! L 506, 507. 16 United Nations Charter (1945), art 39. 17 Frowein, supra note 9, 608. 18 "[A]lthough it is fairly clear from the context that 'threats to the peace' and 'breaches of the peace' were

intended to refer to international peace." Malanczuk, Akehurst's, supra note 10, 388. 19 Zemanek:, "The Legal foundations of the International System: General Course on Public International Law"

(1997) 266 RCADI 9, 50-51. For example, during the 'Greek Frontier Incidents Question' a proposed predetermination of a 'threat to the peace' under certain circumstances was opposed as "equivalent to proposing a definition of the concept of 'threat to the peace"'. The amendment containing the predetermination was subsequently rewritten as a non-binding "point of view". Repertoire of the Practice of the Security Council 1946-51, Chapter XI, 427 ["Repertoire 1946-51 "].

20 United Nations Charter (1945), art 24(2). 21 Appeals Chamber Decision on the Tadic Jurisdictional Motion, Prosecutor v Dusko Tadit, Case No. IT-19-l

AR72, 2 October 1995, [27]. Many commentators argue that Council decisions taken in violation of the Charter are "not binding upon UN Member States, because [the Members] have only agreed 'to accept and carry out ... decisions of the Secnrity Council in accordance with the ... Charter"'. Stahn, infra note 104, http://www.eii!.org[journal/Voll4/Nol/artl-04.html; see also United Nations Charter (1945), art 25; Bowett, supra note 6, 95.

Judge, Jury and Executioner? 1105

Despite this limitation, Schweigman concludes that "the Council has a very vvide n1argin of appreciation in making determinations under Article 39".22 The question at hand is: how wide has that margin of appreciation become? As early as 1946, the Sub-Committee on the 'Spanish Question' recognized: 23

[T]he Security Council must be careful that this sharp instrument [Chapter VH] is not blunted nor used in any \Vay which would strain the intentions of the Charter or which would not be applicable in all similar cases.

Although the la.ck of any authoritative definitions has allowed the Council unprecedented power, it has also led to inconsistency, and, at times, tragic inaction.

2. lnvok.i.ng the Security OoundPs Chapteir VU Jmrfadiction

The Security Council's authority to use coercion to obtain compliance wi1:h its demands pursuant to Chapter VII is constrained by the requirement that there exist a threatened or actual breach of the peace, or an act of aggression. 2''

Schweigman points out that "[i]n this sense Article 39 is 10 be regarded a,s a procedural Ihnit on the Council's authority under Chapter VU".25

However, the Council's practice has been that resolutions axe not required to expressly refer to Article 39.26 fa 1947, regarding the 'Indonesian Question', the Council arguably implied that it v1as invoking Chapter "1IL 27 Today, the Security Council often expressly recognizes that international peace and si::cuity is threatened, in what can be taken as implied references to Article 39. Indeed, lhe Council frequently confirms that H adopts certain measures "acting under Chapter VII of the Charter" as if Article 39 were satisfied.28 Unforlunately, the Council's pov,ern are subject to political manoeuvring and pragmatism at the expense of consistency. Consequently, a "complete inconsistency" of terminology has made it difficult at times to identify whether determinations are being made under Article 39.29

22 Schweigman, The Authority of the Security Council under Chapter VII of the Charter: Legal Limits and the Role of the Intemational Court of Justice (2001) 186,

23 Repertoire 1946-51, supra note 19,425, 24 See for example Ibid 424. 25 Schweigman, supra note 22, 185. 26 Frowein, supra note 9, 613. 27 Repertoire 1946-51, supra note 19, 423-442. The idea that the resoiution was worded in a manner sufficient

to invoke the Council's Chapter VTI powers was disputed. 28 Schweigman. supra note 22, 157; see also 185. Schweig1nan argues that decisions contained in a resolution

that does not include a prior deten11ina-tion under Article 39 cannot be considered binding decisions under Chapter VII of the Chaster.

29 Freudenschu!l, "Between Unilateralism ancl Collective Secmity: Authorisations of the Use of Force by the UN Security Council" (1994,) 5 Eur J lnt'I L 523, cited in Schweigman, supra note 22, 157.


Kirgis suggests that the Council's practice provides "an authoritative interpretation of Chapter VII to the effect that an Article 39 determination must be made in advance of, or at the time of, enforcement action."30 Many commentators, and Governments, agree that the Council's powers are procedurally and substantively limited, but that "the status of the eventual ultra vires acts of the Security Council ... is unresolved".31 In an oft-cited dissent in the ICJ's Namibia Case Judge Fitzmaurice gave reasons for finding that limitations were particularly necessary:32

[Due to the] great ease with which any acutely controversial international situation can be represented as [satisfying Article 39 when] it is really too remote genuinely to constitute one. Without these limitations, the functions of the Security Council could be used for purposes never originally intended.

Accordingly, this article proceeds to evaluate the Council's interpretation of the three preconditions under Article 39.

III. The Increasing Importance of Threats to the Peace

The determination of threats to international peace is perhaps the broadest and most political of the Article 39 preconditions, because the concept of 'threat' is particularly subjective. Similarly, determinations require a detailed understanding of 'peace'; which could refer either to the mere absence of war, or to the harmonious co-existence of states. 33 As discussed above, the drafters of the Charter were reluctant to define what was intended by 'threat to the peace'. In the end, the San Francisco Conference decided not to "accept any definition of a 'threat to the peace' which would bind the Security Council ... because it was thought unwise to bind the Security Council by general definitions". 34

Further complicating the concept was the removal of a strict distinction that had been present in the League Covenant:35

[The distinction] between a threat to the peace ... which resulted from the failure to arrive at a peaceful settlement ... and the presence of a general threat to the peace ... in order not to restrict too greatly the intended broad discretion of the Security Council.

30 Kirgis, supra note 15, 512. 31 Zemanek, supra note 19, 296. 32 Judge Fitzmaurice, dissenting opinion in the Namibia Case (1971) ICJ Reports 52, cited by Judge Bedjaoui in

his dissenting opinion in the Lockerbie Case (Provisional Matters) (Libyan Arab Jamahiriya v United States of America) (1992) ICJ Reports 3, 43.

33 The development of a new understanding of 'peace' is discussed in detail below in Part 6 of Section ill. 34 Repertoire 1946-51, supra note 19,427. 35 Paul-Boncour, supra note 13, 503-504, cited in Frowein, supra note 9, 607,


As a result of the Charter's ambiguity, few commentators dispute that "[n]owhere is the Security Council under fewer strictures than in its determination that a threat to the peace exists".36 Akehurst's conclusion is often quoted (perhaps for its succinctness rather than its absolute accuracy): "A threat to the peace in the sense of Article 39, seems to be whatever the Security Council says is a threat to the peace."37

Although the term 'threat to the peace' under Article 39 has provided the Security Council with a broad discretion, the vague definition of 'threat' has been the cause of division. In this respect, three debates are prominent in determining the scope of the Council's authority. First, disagreement has arisen as to the necessary imminence of any threat before a determination under Article 39 may be justified. Secondly, Governments and commentators have debated the necessity of a 'transboundary effect' arising from any threat for the purposes of Article 39. Thirdly, the last fifty years has witnessed considerable changes in the international community's understanding of 'peace'. Accordingly, the reasoning behind a decision today that there is a threat to the 'peace' may be quite different from the thinking that prevailed at the time the Charter was drafted. This article now turns to discuss each of these issues.

1. Developing a Threshold of Threat

Many states and commentators have concluded that the determination of a threat to the peace "depends on the circumstances of the case, and it requires an examination and investigation of the facts". 38 However, in determining the existence of a 'threat to the peace', the Council must consider whether the actions of a State (or, perhaps, a non-state actor)39 can be said to cross an ill-defined boundary beyond which they can be said to endanger international peace. This fine line between threats and, for example, mere disputes, could be ascertained through legal criteria.40 However, as Dinstein observes, a "threat to the peace is not necessarily a state of facts: it can be merely a state of mind; and the mind that counts is that of the Security Council".41 This being the case, differing appreciations of the facts will determine the opinion or mindset of those considering the existence of a threat.

Even in the early years of the Council's existence, with the San Francisco negotiations fresh in mind, debate ai Jse regarding the application of Article 39 to

36 Dinstein, War, Aggression and Self-defence (3rd Ed, 2001) 251. 37 Akehurst, A Modern Introduction to International Law (1987) 219; see also Malanczuk, Akehurst's, supra note

10,426. 38 See for example Repertoire 1946-51, supra note 19,426. 39 For example, in Resolution 1127 the Security Council determined that the Union for the Total Independence

of Angola- a non-State actor-was a threat to international peace. SC Res 1127, UN SCOR, 3814th mtg, UN Doc S/Res/1127 (1997); see also Dinstein, supra note 36, 253.

40 As appears to be the case with acts of aggression, which are discussed below in Part 2 of Section ill. 41 Dinstein, supra note 36, 251.


potential threats to the peace. As will be shown below, despite historical authorities, the recent practice of the Council suggests a determination of a 'threat to the peace' may be made without evidence that a threat actually exists.

( a) The Spanish Question

In 1946, the Council considered the threat posed by General Franco's regime in Spain. The Security Council commissioned a fact-finding Sub-Committee to investigate the 'Spanish Question'. Jn its report of June 1946, the SubCommittee interpreted Asticle 39 as follO\lvs: 42

[Article 39 requires that the Council] measure the situation as at the moment of the proposed action on its part ... the Security Council should only [invoke Chapter VII] provided it is affirmatively satisfied that a threat to the peace ... has actually come into existence.

The Sub-cormnittee's report declared that ''[i]n the opinion of the SubCommittee the Security Council cannot, on the present evidence make the determination required by Article 39 .... No threat to the peace has been established". 43

While determining that no actu2,l 'threat to the peace' existed, the 3ubCornmittee recognized that the activities of t:he Franco regime "consritute(d] a situation which [was] a potendal menace to international peace and security".'"' This distinction proved unacceptable w a number of States who argued that "[a]ny threat is potential by nature".45

The Polish representa1ive 1Nas particularly critical of the Sub-Cammittee ·s finding, which he concluded contained implicitly "a legal doctrine concerning ,he powers and duties of the Security C:mncil under Article 39":' Indeed, the SubConunittee's assertion was a fundamental step in the creation of legal criteria for determining the necessary threshold of ar:c A1iicle 39 threat The representative of Poland objected to this limitation on the Council, under the authority of which, he contended, "[p]otential, as wen as imminent, dangers can be construed as a threat to the peace."47 The Soviet representative concurred:"

[The Sub-Comn,ittee's] conclusion is incorrect It is due to a restrictive interpretation of Anicle 39 .... Such a conclusion may be the basis for an incorrect and da11gerous doctrine, capable of diminishing the significance of the relevant A1iicle of the Charter ....

42 Repertoire 1946-51, supra note 19,425. 43 Ibid. Emphasis added. 44 Ibid. 45 Ibid 426. 46 Ibid 425. 47 Ibid. 48 Ibid 426.


Both representatives argued that the requirement of an actual, rather than potential, 'threat to the peace' unduly infringed upon the Council's ability to preempt the occurrence of 'breaches of the peace' and 'acts of aggression' .49 The President of the Council agreed that 'threats' "imply necessarily a state of affairs which is no more than a virtual possibility".50 However, the President concluded that the Sub-committee had merely advised the Council that it could "rely on Article 39 or Article 34 according to whether the threat is more or less remote, or more or less imminent". 51

In light of these arguments, a Polish draft resolution declaring that the Franco regime "endangered international peace and security" gained some support.52

The draft resolution failed to be adopted; thus, the sufficiency of potential threats was impliedly rejected. Still, whether the acceptance of the Sub-committee's interpretation of Article 39 had established a legal doctrine was not authoritatively resolved.

(b) The Southern Rhodesia Question

The necessary imminence of threats to the peace was the subject of Council debate when considering the 'Southern Rhodesia Question'. Following the 1963 dissolution of Nyasiland, the white minority in Southern Rhodesia (which constituted only six per cent of the population) sought independence from the United Kingdom as well as white "domination in every aspect of internal public order".53 Despite British offers of self-governance contingent on democratic majority rule, the white regime in Southern Rhodesia unilaterally proclaimed independence in November 1965.

The Security Council immediately declared the Southern Rhodesian government illegal54 and determined that "its continuance in time constitute[d] a threat to international peace and security". 55 The Council passed Resolution 217, the language of which was considered by the Council as a recognition of the potential threat posed by Southern Rhodesia. It was not intended as an Article 39 determination of a 'threat to the peace' ,56 but as an expression of the Council's concern.

49 See Frowein, snpra note 9, 608. 50 Repertoire 1946-51, supra note 19,425. 51 Ibid 425. 52 The resolution was ultimately rejected by seven votes to four. See Ibid; see also Franck, infra note 120, 97-

198. 53 McDougal and Reisman, "Rhodesia and the United Nations" (1968) 62 Am J Int'! L 1-19. 54 SC Res 216, UN SCOR, 1258th mtg, UN Doc S/Res/216 (1965). 55 SC Res 217, UN SCOR, 1265th mtg, UN Doc S/Res/217 (1965). 56 See for example Repertoire of the Practice of the Security Council, Supplement 1966-68, Chapter XI, 202

["Repertoire 1966-68"].


The British Government imposed economic embargoes on Southern Rhodesia in order to force the regime's collapse, and, to ensure their effectiveness, requested international cooperation. However, inadequate international compliance with the embargoes57 prompted the United Kingdom to request mandatory sanctions under Article 41 of Chapter VIL 58 The British draft resolution did not stipulate the existence of an Article 39 prerequisite, but asserted, consistent with Resolution 217, that the continued existence of Southern Rhodesia had automatically satisfied any such requirements. Indeed, the United States' and Pakistan's representatives agreed that the legal prerequisites to Chapter VII were satisfied as the situation was "not only continuing but ... growing more acute",59 and, therefore, that the previously potential threat had become an actual threat to the peace.

None of the fifteen representatives strongly opposed a finding that Southern Rhodesia posed a threat to the peace, although the determination of a cognizable threat to international peace was not without substantial criticism outside the Council.60 However, a number of Council members61 rejected the British assertion that a potential threat could impliedly satisfy the requirement of an actual threat without an express Council determination.62 The Argentine representative argued that: "To refrain from specifically determining the existence of a threat to the peace . . . would be comparable to rendering a judgment which stated the penalty and not the crime." 63 The representative of Jordan reinforced the precedent set in the 'Spanish Question,' when interpreting the requirements of Article 39: "The Council must, as a first step, declare unequivocally that there was a situation in fact posing a threat to international peace and security and that situation existed."64

Ultimately, the United Kingdom and its supporters accepted the introduction of an unequivocal determination of a 'threat to the peace' in the draft resolution, which was subsequently adopted by the Council.65

57 The issue of the international 'threat to the peace' posed by the 'Southern Rhodesia Question' is discussed in detail below in Part 2 of Section III.

58 Schweigman, supra note 22, 60. 59 Repertoire 1966-68, supra note 56, 203. 60 See for example Kirgis, supra note 15, 512; see also Fenwick, "When is there a Threat to the Peace? -

Rhodesia" (1967) 61 Am J Int'! L 753. 61 62 63

Especially Argentina, Japan and Uganda. See for example Repertoire 1966-68, supra note 56, 203. Ibid.

64 Repertoire 1966-68, supra note 56, 204. 65 SC Res 232, UN SCOR, 1339th mtg, UN Doc S/Res/232 (1966).


( c) The South Africa Question

In the case of South Africa, the Council was divided over whether the apartheid system constituted a threat to the peace. From 1960 the Council repeatedly referred to South Africa's disturbance of,66 or potential ability to threaten, 67 international peace. Consistent with the Council's determinations in the Spanish and Southern Rhodesia Questions, this language did not amount to a finding of a threat to the peace for the purposes of Article 39.69

The Council's opinion that the situation was merely a potential threat faced opposition in the UN General Assembly. The Assembly recommended in 1968 that the Council consider "the question of apartheid with a view to adopting, under Chapter VII of the Charter of the United Nations, effective measures to ensure the full implementation of comprehensive mandatory sanctions".70

In making such a recommendation, it follows that the Assembly perceived the situation in South Africa as an actual 'threat to the peace'. Nonetheless, the Council's position was unchanged even after the Soweto killings, when it reaffirmed that "apartheid [was] a crime against the conscience and dignity of mankind and seriously disturb[ed] international peace and security".71 Again, no determination under Article 39 was forthcoming.

The Security Council's policy on South Africa did not change until 1977, when it determined that South Africa's policies and acts (perhaps, most importantly, those against its neighbour states)72 "constitute[d] a threat to the maintenance of international peace and security".73

2. The Sufficiency of Potential Threats as Threats to the Peace

Following the end of the Council's Cold War paralysis, a number of events resulted in the Council reconsidering its previous practices regarding the requisite standard of threat for an Article 39 determination. This threshold has proven difficult to pinpoint, but it must exist in order to provide the Article 39 preconditions with meaning. Accordingly, Judge Fitzmaurice of the ICJ, in his dissenting opinion in the Namibia Case, suggested that a threat to the peace may

66 See for example SC Res 181, UN SCOR, 1056th mtg, UN Doc S/Res/181 (1963); SC Res 311, UN SCOR, 1639th mtg, UN Doc S/Res/311 (1972); SC Res 392, UN SCOR, 1930th mtg, UN Doc S/Res/392 (1976).

67 See for example SC Res 134, UN SCOR, 856th mtg, UN Doc S/Res/134 (1960); SC Res 393, UN SCOR, 1944th mtg, UN Doc S/Res/393 (1976).

68 SC Res 134, UN SCOR, 856th mtg, UN Doc S/Res/134 (1960); see also Schweigman, supra note 22, 57; the Council's action was made in response to the Sharpeville killings.

69 The phrase 'potential threat to the peace', which had caused so much debate during the consideration of the 1946 'Spanish Question', was not intended to become legal doctrine.

70 GA Res 2396, UN GAOR, 23rd sess, 1731stplen mtg, UN DocA/Res/2396 (1968). 71 SC Res 392, supra note 66. 72 The issue of the international 'threat to the peace' posed by the 'South Africa Question' is discussed in detail

below in Part 2 of Section III. 73 SC Res 418, UN SCOR, 2046th mtg, UN Doc S/Res/418 (1977).


not be "a mere figment or pretext". 74 During the early 1990s, the Council's renewed activism75 saw the adoption of language similar to that used in the 'Southern Rhodesia Question', but with a considerably different meaning. It now appears that potential threats to the peace are sufficient for the invocation of Chapter VII. This has been evident in a number of recent Council decisions.

(a) The Somalia Question

In 1991, Somalia collapsed into a political vacuum. In the capital, Mogadishu, factions based around clan loyalties, particularly those clans loyal to Interim President Ali Mahdi Mohamed and General Mohamed Farah Aidid, engaged in heavy fighting. 76 The coincidence of famine and disease heightened the humanitarian crisis in Somalia, which claimed 200 lives every day.77 Exact statistics were elusive but the scale of the crisis was unquestioned.

In 1992, at the request of the Somali representative, the Security Council considered the situation in Somalia, and unanimously adopted Resolution 733, that expressed concern "that the continuation of the situation constitutes, as stated in the report of the Secretary-General, a threat to international peace and security". 78

The Council must have considered that this finding satisfied Article 39, as it imposed a "general and complete embargo" under Chapter VII.79 Schweigman concludes that "it is hard to see how this could be qualified other than as a determination under Article 39".80

Tzartzouras proposes an alternative interpretation, whereby the legal basis for the embargo was Somalia's request to the Security Council, rather than a threat to the peace, "as no [Article 39] determination was made".81 Certainly, the Council expressed only "concern", rather than resolute 'determination', suggesting that its statement was merely an expression of a point of view. 82 More persuasive evidence, perhaps, is that the apparent Article 39 determination was contrary to the established practice of the Council demonstrated in the 'Southern Rhodesian Question', where similar language merely amounted to the expression of a 'potential threat' .83 The determination's inconsistency with previous practice

74 Judge Fitzmaurice, dissenting opinion in the Namibia Case (Advisory Opinion) (1971) ICJ Reports 16, 293. 75 This activism within the Council resulted from a new 'soft' understanding of 'peace', which is discussed in

detail below in Part 3 of Section Ill. 76 Malanczuk, Akehurst's, supra note 10, 403. 77 Papp, Contemporary International Relations: Frameworks for Understanding (5 ed 1997) 467. 78 SC Res 733, UN SCOR, 3039th mtg, UN Doc S/Resn33 (1992). 79 Ibid [5]. 80 Schweigman, supra note 22, 124. 81 Tzartzouras, "The Law of Humanitarian Intervention after Somalia" (1993) 46 Revue Hellenique de Droit

International 197, 216. 82 This argument was proposed in the 194 7 'Greek Frontierlncidents Question'. See Repertoire I 946-5 I, supra

note 19,427. 83 Referring to the "continuation" of a particular situation as a 'threat to the peace'. See the 'Southern Rhodesian

Question' discussed above in Part II.


cannot be explained by the unique nature of the Somali situation,84 as in many of the Council's other determinations it has also departed from the precedents it set during the Cold War.

(b) The Rwanda Question

In 1993, the Council considered the humanitarian tragedy in Rwanda. In May 1994, the Council appeared to invoke Chapter VII: "Deeply disturbed by the magnitude of the human suffering caused by the conflict and concerned that the continuation of the situation in Rwanda constitutes a threat to peace and security in the region."85 This determination was considered sufficient for Article 39, as it was coupled with a Chapter VII authorization for the United Nations Assistance Mission in Rwanda ("UNAMIR"), and later France, to use force. 86 Again, the Security Council's response further evidences the rejection of the 'potential threat' precedent.

( c) The Haiti Question

Responding to a coup d'etat in Haiti in 1993,87 Security Council Resolution 841 concluded that "the continuation of the situation threaten[ed] international peace and security".88 The Council deemed this language sufficient to initiate the Council's Chapter VII jurisdiction, but opinion is divided whether Article 39 was, in fact, satisfied. Malanczuk, supported by Damrosch, considers the 'Haiti Question' "a special case in which the Security Council [acted under Chapter VII] without, however, explicitly determining that there was a threat to international peace and security". 89

This interpretation is in line with Cold War precedents, but inconsistent with the finding in the 'Somalia Question'. Schweigman recognizes the Council's acceptance of potential threats as threats to the peace, and claims that the Council had "determined that the situation in Haiti posed a threat to international peace and security in [Resolution 841]".90 Indeed, a later resolution determined that "the situation in Haiti continues to constitute a threat to peace and security in the region", 91 affirming that a determination of a 'threat to the peace' had been made in Resolution 841.

84 SC Res 794, UN SCOR, 3143rd mtg, UN Doc S/Res/794 (1992). 85 SC Res 918, UN SCOR, 3377th mtg, UN Doc S/Res/918 (1994), Preamble. Emphasis in the original. 86 Ibid; see·also SC Res 929, UN SCOR, 3392nd mtg, UN Doc S/Res/929 (1994). France was authorized to use

'all necessary means' to protect the civilian population. 87 The issne of the international 'threat to the peace' posed by the 'Haiti Question' is discussed in detail below

in Part 2 of Section III; see also the discussion of the new understandings of 'peace' in Part 3 of Section III. 88 SC Res 841, UN SCOR, 3238th mtg, UN Doc S/Res/841 (1993). 89 Malanczuk, Akehurst's, supra note 10,407; see also Damrosch, "Agora: The 1994 U.S. Action in Haiti" (1995)

89 Am J Int'! L 58-87. 90 Schweigman, supra note 22, 136. 91 SC Res 940, UN SCOR, 3413th mtg, UN Doc S/Res/940 (1994); see also Ibid 138.

1114 Auckland Universiiy Law Review

3. A Growing Acceptaruce of Hypothetical Thr,eats?

Consequently, potential threats seem to constitute threats to the peace for the purposes of Article 39. But the broadening of the Council's definition of 'threat to the peace' may not have stopped there. Recent Security Council determinations indicate the possibility that even abstract threats may constitute threats to the peace. It appears that not even a potential threat need be clearly evidenced before the Council. A "hypothetical' threat - the cons.truct of the 'mindsef of Council members that a particular occurrence threatens the peace -seems increasingly to satisfy Article 39.92

( a) The Lockerbie Question

One example of this is the Council's decision in the 'Lockerbie Question'. Following the bombing of Pan Am 103, Libya refused to suffender two Libyan nationals implicated in the bombings to France, Britain, or the United States.93

The disputants eventually had the matter adjudicated by the Security Council. The Council issued its decision in Resolution 731, which urged Libya to "provide a full and effective response to [sunender] requests so as to contribute to the elimination of international terrorism" .94 However, the participation of interested parties in the Council's vote arguably invalidated the resolution,95 and consequently the Libyan Government initiated ICJ proceedings.96

Before the J:CJ could issne its verdict, the Council adopted Resolution 748, under Chapter VII, requiring Libya to surrender the suspects. The Council purported to satisfy Article 39:97

[T]he failure by the Libyan Government to demonstrate by concrete actions its renunciation of terrorism [and] continued failure to respond fully and effectively to the [ sun-ender] requests ... constitutes a threat to international peace and security.

Within the Council, "none of the sponsors introduced any legal reasoning" to support the determination.98 It appears that the Council considered that Libya's

92 For the purposes of this mticle, a 'potential' threat is one supported by evidence that the dangerousness of a situation may escalate, but that at the time does not meet the threshold of an 'actual' threat "Hypothetical' threats are those unsupported by any evidence, but rnerely based on the assumptions and expectations of Council Members,

93 Graefrath, "'Leave to the Court What Belongs to the Court: The Libyan Case" (1993) 4 Eur J Int'! L 184, 196, In fact, according to Graefrath, Libya was "under no obligation in international law to hand over the alleged perpetrators of a te1To:dst act".

94 SC Res 731, UN SCOR, 3033rd mtg, UN Doc S/Res/731 (1992), Preamble, 95 United Nations Charter (1945), art 27(3) explicitly prescribes that in decisions under Chapter Vl parties to a

dispute (in this case France, Britain and the United States) shall abstain from voting, 96 See for example Sato, 'The Legitimacy of Security Council Activities under Chapter VII of the UN Charter

since the End of the Cold War' in Coicaud and Heiskanen (eds), The Legitimacy of International Organizations (2001) 3 I 6,

97 SC Res 748, UN SCOR, 3063rd rntg, UN Doc S/Res/748 (1992), Preamble, 98 Graefrath, supra note 93, 195,


alleged tolerance of terrorism sufficed as a threat to the peace. Resolution 748 introduced the notion that omissions could be threats to the peace; this development had never before been attempted, due to difficulties with the issue of causation.99 Graefrath comments that "[i]t remains absolutely unclear why or how the failure to renunciate terrorism by concrete acts (whatever that may be) or the failure to surrender suspects ... could constitute a threat to the peace" .100

The Council provided no evidence that Libya's 'failures' caused the continuation of international terrorist acts. The threat to the peace can, therefore, be little more than hypothetical.

(b) The ICC Prosecutions Question

In June 2002, the Uniiecl States vetoed efforts to renew tbe mandate of the peacekeeping United Nations IVhssion In Bosni:1 and Herzegovina, ("UNI•.1:IBH"). 101 Tbe Or::ited States' representative to the Council linked the continued participation of Unlted States peacekeepers in Ul'UvHBH \Jitith his concerns of "politicised prosecutior;s"' by the InternatiomJ Criminal Court (ICC). A solution to this impasse, coritained in Resolution 1422, was to grant immunity to peacekeepers from states not party io the Rome Statute. The resolution 7;as

purportedly enacted under Chapter VII, 102 but in doing so the Couacil claimed only a 1enuous 'i:hreat to the peace': "it is in the interests of international peace and security to ft1dlitate Me1nber Scates' ability to contribute to operations established or authorized by the United 1'fations Security Council", 103

Thus, in an extension of i:he 'Lockerbie Question' precedent, Resolution 1422 provided that potenti:JJ ornission or inaction by Slates was sufficient for a determination under Article 39. Neither an 'actual', nor even a 'potential' threat was evide:1t Rather, in the 'min,j/ of the Council the hypothetical consequencts of possible ICC prosecutions constituted a threat to international peace. 104

Responding to this reasoning, MacPherson, supported by ,cithec commentators, argues that "incre,1sed reluctance by ;,, few st,ites ,,o contribute to peacekeeping operations is hardly the type of threa,t to the peace contemplated by

99 Ibid 196. l 00 Ibid. Emphasis in the original. l0l The United States vetoed draft resolution SC Res 1420, UN SCOR, 4564th mtg, UN Doc S/Res/1420 (2002). 102 SC Res 1422, UN SCOR, 4572nd mtg, UN Doc S/Res/1422 (2002), PreamMe. The Security Council may

request a deferral of ICC investigations or prosecutions under Article 16 of the Rome Statute, "in a resolution adopted under Chapter VII of the Charter of the United Nations". Correspondingly, the Council is required to determine a "threat to the peace, breach of the peace or aCt of aggression" pursuant to Article 39.

103 !bid; see also MacPherson, infra note 105. 104- Stalm, "The Ambiguities of Security Council Resolution 1422 (2002)" (2003) 14 Em J lnt'l L 85

httn://www.eiil.orcr/journalNoll4/]\[ol/artl-02.html (at 21 September 2003). Siahn concludes that "[s]uch an assumption raises serious concerns, because it ultimatery i1np1ies that the non-contribution of troops to United Nations peacekeeping operations is in itself a threat to the peace".


Article 39". 105 A number of states106 also criticized the Council's determination as unsubstantiated and counter-productive to "international efforts to combat impunity, the system of international justice, and the collective ability to use these systems in the pursuit of international peace and security". 107

During drafting, the representative of Canada considered that the resolution "contained elements that exceeded the Council's mandate." 108 Indeed, the Jordanian representative stated that adopting the resolution would "edge [the Council] toward acting ultra vires". 109 Nonetheless, the Council adopted the draft Resolution 1422 unanimously. Stahn appears to accept that this decision was within the Council's jurisdiction, as it was "in substance a political decision which lies at the heart of the Council's discretion". 110

The 'ICC Prosecutions Question', in conjunction with the 'Lockerbie Question', has greatly expanded the Council's authority to determine threats to the peace. Should hypothetical threats continue to suffice, the Council's discretion is unlimited by requirements of imminence and is virtually absolute. Still, one fetter may continue to constrain the Council's authority: the requirement that a threat have a 'transboundary effect'.

4. The Necessity of a Transboundary Effect

When considering the existence of a threat to peace, most commentators recognize that, in keeping with the Council's responsibility for "international peace and security", 111 a 'threat' must pose a danger to international peace. 112

Moreover, under Article 2(7) of the Charter, UN Member States and organs are prohibited from interfering with matters "essentially within the domestic jurisdiction of any state". 113 Although Article 2(7) provides that the inviolability of the 'domestic jurisdiction' does not "prejudice the application of enforcement measures under Chapter VII", this should not to be mistaken for an exception that applies to all Chapter VII powers. Rather, the exemption applies only to actions taken under Articles 41 or 42, while Article 39 remains subject to the non-

105 MacPherson, Authority of the Security Council to Exempt Peacekeepers from International Criminal Court Proceedings, ASIL Insights, July 2002, http://www.asil.org/insights/insigh89.htm (at 21 September 2003); Stahn also concludes that "the threat to the peace seems to be based ... on the potential inability of the United Nations to address future threats without US military personnel [and] [a]ny generalization of this principle would render Article 39 borderless". Stahn, supra note 104.

106 Particularly, Canada, Brazil, New Zealand, South Africa, and Jordan. 107 Security Council Requests International Criminal Court not to bring Cases against Peacekeeping Personnel

from States not Party to Statute, 4572nd mtg, UN Doc SC/7450 (2002). 108 Bosnia Mission Mandate in Question as Security Council Debates Legal Exposure of UN Peacekeepers,

4568th mtg, UN Doc SC/7445/Revl (2002). 109 Ibid. 110 Stalrn, supra note 104, http://www.ejil.org/joumal/Voll4/Nol/artl-04.html; see also Bowell, supra note 6, 94. Ill United Nations Charter (1945), art 24. 112 See for example Malanczuk, Akehurst's, supra note 10, 426. 113 United Nations Charter (1945), art 2(7).


intervention rule. Thus, a threat to the peace must possess a transboundary effect. 114 However, this interpretation has been challenged on a number of occasions.

The international community was reluctant to give a specific meaning to the term 'threat to the peace', but the concept was closely associated with the general prohibition of the 'threat or use of force' in Article 2(4). 115 Nonetheless, Frowein argues that hostilities endanger international peace only where "the threat is related to the possible extension of the conflict to other States". 116 The internal threat of force does not of itself fall within the prohibition.

(a) The Indonesian Question

Frowein cites the Council's handling of the 'Indonesian Question' as evidence that "a civil war can lead to a threat to international peace". 117 However, Frowein's assertion is not persuasive. 118 In August 1947, the Council recognized that the Indonesian situation was an international conflict "between the armed forces of the Netherlands and the Republic of Indonesia".119 For an internal conflict or crisis to constitute a threat to the peace further conditions, particularly an international effect, are required.

(b) The Congo Question

Tension between the Council's wide authority, and the inviolability of states' domestic jurisdictions was a "critical source of debate during the Congo crisis" .120

Shortly after the Congo gained its independence from Belgium in June 1960, the mutiny of the Congolese military resulted in attacks on European residents. Belgium responded by deploying its forces in the country. 121 Despite political infighting, President Kasavubu and Prime Minister Lumumba jointly requested military assistance from the UN Secretary-General to stop a "Belgian ... act of

114 Malanczuk, Akehurst's, supra note 10,427; see also Franck, infra note 120, 202. 115 See for example Sato, supra note 96,314; see also United Nations Charter (1945), art 2(4). 116 Frowein, supra note 9, 609. Frowein refers to a failed resolution recognizing a 'threat to the peace' posed by

hostilities between Pakistan and India. He concludes that the Council distinguishes "between the peace between two specific states and international peace". Now that both Pakistan and India are 'nuclear' states, the Council would probably determine a 'threat to international peace' if hostilities arose between the two nations. See also Malanczuk, Akehurst's, supra note 10, 426.

117 Frowein, supra note 9,609; see also SC Res 27, UN SCOR. 173rd mtg, UN Doc S/Res/27 (1947), Preamble. 118 See Frowein, supra note 9, 609. 119 SC Res 27, supra note 117. Although Indonesia was not a UN Member until 28 September 1950, it was

arguably a state by 1947. Indeed, on 12 August 1947 the Security Council invited the representative of the Republic of Indonesia to participate in Council discussions on the 'Indonesian Question'. Additionally, it is debatable whether the language of the relevant resolutions sufficed as a determination for the purposes of art 39.

120 Franck, "Fairness in the International Legal and Institutional System: General Course on Public International Law, (1993-III)" 240 RCADI 9, 198. -

121 See Malanczuk, Akehurst's, supra note 10, 418.


aggression." 122 VVithout determining Belgium's degree of fault,1 23 the Council amhorized Secretary-General Hammarskjold to "t:,Jce the necessary steps ... to provide the [Congolese] Government with such military assistance". 124 That assistance was in the fonrn of a UN peacekeeping mission, the United Nations Operation in the Congo ("ONUC").

Malanczuk affirms that the "legal basis for [ONUC] is obscure and controversial". 125 The Council's Resolution 143 d:id "not make any finding under Chapter VH but, inster,d 'call[ed] upon the Government of Belgium to withdraw their troops"'. 126 Higgins suggests that, without the Congolese Government's request, the Council "would almost certainly h.:,ve been unwilling to act in [this] way ... even though [Chapter VII] was still available". 127 The Congo crisis was international in nature and plausibly satisfied the Article 39 prerequisites. However, only in the Secretary-General's report ',vas there an '"implied finding that the circurnstances ... were such as to justify United Nations action", 123

Furthermore, Franck argues that the Council in fact disavowed exercising any right of intervention in the separatist Katanga provii1ce. 129 This was apparent in Resolution 1,:t6: "[ONUC] wiH not be a party to or in any way intervene in or be used to influence c:he outcome of any intenrnl conflict". 130 Higgins observes that Hammarskjold ',vas "at grealt p2tins to lnsisr that various actions of CNUC [were] in conformity wilh [Article 2(7)]". 13 ' Thsc:: were <tenuous arguments that Article 40 was imroked, but i~ is clear that ,the Council at no bme satisfied the prerequisites of Article 39, Indeed, the JCJ concluded that ONUC did not constitute a Chapter VU ei1forcement measure. 112 Correspondingly, the 'Congo Question' cannot provide aui.hority for the c:ouncirs ability to oven-ide the ft_rticle 2(7) non-intervention rule.

( c) The Southern Rhodesia Question

It cannot be sa.id that the 'Southern llhodesia Question' is evidense that the Security Council has the authority to dispense with the need for a irans-boEndary effect. fo 1966, the Council determined that oil shipments from Portugal to Beira in Mozambique, which were then t,0 be pumped to Southern Rhodesia, 133

122 See Franck, supra note 120, 198. 123 Higgjns, The Development of International Law through the Political Organs of the United Nations ( 1963)

225. 124 SC Res 143, UN SCOR, 873rd mtg, UN Doc S/Res/143 (1960), [2]. 125 Malanczuk, Akehurst's, supra note 10, 419. 126 SC Res 143, supra note 124, [i], cited in Franck, supra note 120, 198. 127 Higgins, supra note 123,225. 128 UN Doc S/4389 (1960); see also Franck, supra note 120, 199. 129 Franck, supra note 120, 198. 130 SC Res 146, UN SCOR, 886th mtg, UN Doc S/Res/146 (1960). 131 Higgins, supra note 123, 225. A similar conclusion was proposed by in the 'Somalia Question' by Tzartzouras,

discussed above .in Section HI Part 2. See Tzartzouras, suprn note 81, 216. 132 Certain Expenses, supra note 5, 177. 133 Schwejgman, sufira n0te 22, 59.


constituted a threat to the peace. 134 Nonetheless, the Council stopped short of declaring that the situation in Southern Rhodesia itself was a threat to the peace. 135

Consistent with Resolution 216, Britain and France confirmed that Southern Rhodesia remained the 'domestic jurisdiction' of Britain, but that inadequate cooperation by some states with British sanctions posed a threat to international peace llild only in that regard could Chapter VH apply. 136 The domestic situation in Southern Rhodesia was never considered to be a threat to international peace.

( d) The South Africa Question

Similarly, the determination that apartheid South Africa posed a threat to the peace was controversial for its apparent interference with the Republic's domestic jurisdiction. The South African government "consistently maintained thai its policies were a matter of domestic concern and that the United Nations was hence not competent to deal with them". 137 Notwithstanding the Council's call for a voluntary arms embargo in Resolution 181,138 the British government maintained that no threat to the peace existed: 139

To make such a determination it was necessary to look at the situation within South Africa itself, and ... it could not be said with any certainty that [the racial] policies endangered the maintenance of international peace and security.

Despite continued international condemnation of apartheid, 140 the Council rernained unsatisfied that the 'South Africa Question' posed a threat to the peace until 1977. The Security Council's inaction under Chapter VU ended with the unanimous adoption of Resolution 418, which determined that "having regard to the policies and acts of the South African Government the acquisition ... of arms and related materiel constitutes a threat to the maintenance of international peace and security" .141

The apartheid policy was only one of the 'policies and acts' that convinced the Council to impose mandatory embargoes under Article 41. Frowein concludes that the Council "considered apartheid in connection with the attacks

134 SC Res 221, UN SCOR, 1277th mtg, UN Doc S/Res/221 (1966). 135 Repertoire 1966-68, supra note 56, 20L Rather, Resolution 217 was considered by the majority of the Council

to be the expression of a potential threat, similar to that posed by Spain in l 946. 136 Ibid 201-2. 137 Schweigman, supra note 22, 52; see also Yearbook of the United Nations: Special Edition, Fiftieth

Anniversary, 1945-1995 (1995) 52-58. 138 SC Res 181, supra note 66. 139 Repertoire of the Practice of the Security Council, Supplement 1964-65, Chapter XI, 185. 140 Schweigman observes that "[a]s part of a controversial move, South Africa was additionally effectively

excluded from participating in the Assembly and most of tbe specialized agencies, resulting from the Assembly's declaration [in Resolution 3151 (XXVIII) of 14 December 1973] that "the South African regime has no right to represent the people of South Afri.ca". Schweigman, supra note 22, 53.

141 SC Res 218, supra note 73; see also Repertoire of the Practice of the Security Council, Supplement 1975-80. Chapter XI, 394.


on neighbouring States as a threat to peace". " 2 ,Arguably, the introduction of this transboundary element, rather than the worsening racial situation, galvanized the Council into action. 143 At that time, the recognition of domestic human rights abuses (even those with potential international impact) as threats to the peace14-l

was politically unacceptable to many Council Members. Despite the fact that the decision in the 'South Africa Question' was influenced by many political considerations, 145 it can still be concluded, with Malanczuk, that the Council's determination ,.,vas "on the whole an important precedent''. 1" 6

The Security Council's decisions in the Southern Rhodesia and South Africa Questions have led a number of commentamrs to conclude that "it is now p:irtially assumed in the literature that internal conditions within a stale alone, such as massive violations of human rights, can be seen as a th~eat to the peace", 147 However, as shown above, such a conclusion is not well-founc!ed. Indeed, Frowein describes lhe 'threat' in the southern i\frican situations as "including the danger of violent involvement with nelghbourlng states". 148

Similarly, Sato believes that the term 'threat co the peace' can no•.;v be "interi:,reted as including essentially internal situations that might degen.era;e fnto an internatio,wl conflict", 149 The necessity for a tra11s bounda1y effect (albeit, perhaps, minimal) appea,rs to persisi:.

( a) The Kurdish Question

Vvhen considering ,;he crisis in Kurdish nrnthern fraq, many Council members, including ve,:o-holders, were reiuctant to intervene for fear of "creat[ing] a pn:;cedent for the involvement of the Security Council in internal maHers". 150 Rowever, in A,pril 1991 the CounciJ adopted Resolution 688, condemning "the repression of the Iraqi civilian population lll many parts of Iraq. including most recently in Kurdish popula:ted 211'eas, the consequences of "Nhich

142 Frmvei.n, supra noi:e 9, 609. 143 Nonetheless, fer Sato, "'it seem[ed] clear that the Security Council was motivated by considerations

concen1ing the apartheid policy, 1,,vhich were sufficiently aggravating at that 'dn1e". Sato, supra note 96, 313. 144 The development of new understandings of 'peace' -is discussed in detail below in Part 3, Section III. 145 Fifoot, "Funci:ions and Powers, and Interventions: UN Action in Respect of Hmnan Rights and Humanitarian.

Intervention", In Radley (ed), To Loose the Bands ofVVickedness - International Intervention in Defence of Human Rights (1992) 151-153,

146 IVIalanczuk, A.kehurst's, supra note 10, 395. 147 Frm,vein, supra note 9, 612; see also I\lialanczuk, Akehurst's, supra note 10, 426. 148 Frovifein, supra note 9, 612. 149 Sato, supra note 96,315. Emphasis added. 150 Malanczuk, "The Kurdish Crisis and Allied Intervention in the Aftermath of the Second Gulf War°' (1991) 2

Eur J lnl'l L 114, 119 ["Kurdish Crisis°'].

Judge, Ju,y and Executioner? 1121

threaten international peace and security in the region" .151 Commentators 152 agree that these 'consequences' were the "massive flow of refugees towards and across international frontiers and , .. cross-border incursions" .153

Accordingly, "the precedent value of this resolution with regard to a more active role of the Security Council under Chapter VII in cases of gross violation of human rights threatening international peace should not be overestimated". 154

Malanczuk criticizes 'literature' in ,;vhich it is dahned that Resolution 688 establishes: 155

[That] the Council may adopt measures under Chapter VH with regard to the internal situation if a massive violation of human rights amounts to a threat to or breach of the peace , , .. A closer analysis ... does not support these comendons.

It appears that the Council found a threat to the peace only once the trans boundary effect was evident 156 Correspondingly, the Council continued to respect the inviolability of states' domestic jurisdiction, as set out in Article 2(7). Nonetheless, M:alanc:z:uk predicted thM the resolution would be an important precedent establishing that domestic human rights vioia1ions may have external effects, 157

(b) The Somalia Question

In the 'Somalia Question', tbe Council's finding of a threat to the peace in Resolution 733 was supported "only with a vague reference to the consequences oflhe Somalian civH war on 'stability and peace in the region"'. 158 Kirgis further condudes: 159

There ·;vas little evidence that lhe slrife betwee'.1 clans in Somalia, devastating though it was for the people of that country, actually posed a serious threat to stability in neighbouring s!ates, at least in the s::mrt terrrL

151 SC Res 688, UN SCOR, 2982nd mtg, UN Doc S/Res/688 (1991). [!]. 152 Schwiegrnan quotes the premnble of Resolution 688, the wording of which parallels Operative paragraph 1:

"[T]he Council determined that 'the repression of the Iraqi civilian population in many parts of Iraq, including most recently in Kurdish. populated areas, which led to a massive flow o[ refugees towards and across international frontiers and to cross-border incursions which threaten internationa] peace and. security in the region'." Schweigman, supra note 22, 81; see also Frm.vein, supra note 9, 612.

153 SC Res 688, supra note 151, Preamble; see also 1v1alanczuk, Akehurst's, supra note 10, 399. 154 Malanczuk, Kurdish Crisis, supra note 150, 129. 155 Malanczuk, Ake/u,rst's, supra note IO, 399. 156 However, it is important to note that Resolution 688 was adopted with only ten votes in favour, three against

(Cuba, Yemen, Zin1babwe) and hvo abstentions (China, India). Schachter suggests that '"the Secmity Council was not asked to authorize or endorse the protective 1neasures in the safety zones [under Chapter VII), presumably because not all of the permanent members were prepared to support them.,. See Schachtec "United Nations Law in the Gulf Conflict" (1991) 85 Am J Int'! L 4·52, 469.

157 Malanczuk, Ake/wrst"s. supra note IO, 400. 158 Kirgis, supra note 15, 513. 159 Ibid.


To the contrary, official UN estimates suggest that two million Somali refugees fled their homes,160 and of those "an estimated 800,000 [became] refugees in neighbouring countries". 161 Following the 'Kurdish Question' precedent, and certain 1992 announcements of the Council, 162 sufficiently large cross-border refugee flows may threaten international peace. 163 Nonetheless, the Council made no "public effort to define the threat to regional security."164

Assertions that Somalia's domestic situation could not constitute a threat to the peace were challenged when the Council authorized the Unified Task Force ("UNITAF") to use "all necessary means" to create a secure environment for aid operations. 165 Malanczuk observed that, in Resolution 794, it is "[f]or the first time . . . clearly stated in a Council resolution, w1thout also invoking external 'consequences', that internal aspects of a humanitarian problem ... threaten international peace and security" .166 Indeed, the Council determined that "the magnitude of the human tragedy caused by the conflict in Somalia, further exacerbated by the obstacles being created to the distribution of humanitarian assistance, constitutes a threat to international peace". 167

However, it is indisputable that the exodus of two million refugees substantially contributed to the 'human tragedy' that unfolded. Furthermore, the Council attempted to eliminate any precedent by announcing that Somalia's unique situation "require[d] an immediate and exceptional response."168

( c) The Rwanda Question

In 1990, ethnic troubles in Rwanda between the Hutu majority and Tutsi minority emerged as a full-scale conflict. By August 1993, fighting between the Hutu-controlled Rwandan military and the Tutsi-led Rwandese Patriotic Front169

160 UN Department of Peacekeeping website, United Nations Operation in Somalia I, http://www.un.org/Depts/dpko/dpko/co mission/unosomi.httn (at 21 September 2003).

161 United States Committee for Refugees website, Somalia, http://www.refugees.org/world/countryrpt/africa/somalia.httn (at 21 September 2003).

162 UN Doc S/23500 (1992). The announcement of the President of the Council following the 3046th meeting of the Council, on 31 January 1992, held at the level of Heads of State and Government, confirmed that nonmilitary crises also threaten international peace and security.

163 Although, unlike the 'Kurdish Question', no "cross-border incursions" were apparent, this does not seem to be determinative following the 1992 Heads of State and Government declaration. See SC Res 688, supra note 151, Preamble; see also UN Doc S/23500 (1992). The development of new understandings of 'peace' is discussed in detail below in Section III, Part 3.

164 UN Doc S/PV.3039 (1992); see also Kirgis, supra note 15, 512. 165 SC Res 794, supra note 84, 10. 166 Malanczuk, Akehurst's, supra note 10, 403-4; Gordon makes a similar observation: that the Somali

humanitarian crisis, which had no cross-border effects, or at least no military ones, triggered the most extreme measures available to the Council. Gordon, "United Nations Intervention in Internal Conflicts: Iraq, Somalia, and Beyond" (1994) 15 Mich J Int'! L 519, 554.

167 SC Res 794, supra note 84, Preamble. 168 Ibid. 169 Malanczuk, Akehurst's, supra note 10,405.

Judge, fwy and Executioner? 1123

ceased under the Amsha Agreement.' 70 To oversee the implementation of the agreement, the Council created the UNAMIR peacekeeping force. 171 However, the assassination of the Rwandan President in April 1994 renewed ethnic violence. The severity and scale of the violence was "unprecedented in the history of the ... entire African continent". 172

As discussed above, in May 1994 the Council purported to determine the existence of a threat to international peace in the 'Rwandan Question' .173

Resolution 918 characterized the threat in terms of the disturbing "magnitude of the human suffering caused by the conflict" which included a "massive exodus of refugees to neighbouring countries". 174 This recognition of a threat to international peace arising from 1.7 million (predominantly Hutu) refugeesrn moving into Zaire, Tanzania, Burundi and Uganda was consistent with the apparent need for transboundary effects evident in previous determinations, particularly the 'Kurdish Question'. As such, Resolution 918 should not be concluded to be evidence of the Council strictly following the precedent of Resolution 794 regarding the 'Somalia Question'. This is again apparent in the Haiti situation.

( d) The Haiti Question

The 'Haiti Question' is among the most controversial of the Security Council's determinations of threats to the peace. Following the end of Duvalier's rnle in 1986, Reverend Aristide became the country's first President in February 1991. After only seven months of democratic rule a coup d'etat deposed Aristide and vested control of the island in Lieutenant-General Cedras. Initially, the Council was cautious not to interfere ,,:vith Haiti's domestic jurisdiction, considering the coup an "internal domestic matter which did not constitute a threat to the peace". 176 On 16 June 1993, however, the Council recognized that "elements of fear which could increase the number of Haitians seeking refugee in neighbouring Member States" constituted a threat to the peace. 177 Kirgis observes: 178

While tying [the threat to the peace] to the prospective flight of hundreds of thousands of Haitians to other countries, the Venezuelan representative gave no particulars regarding ihe threat to international peace such an exodus would cause.

170 United Slates Commillee for Refugees website, Rwanda, htto:/[email protected]/world/countryrpt/africa/rwanda.htm (at 21 September 2003).

171 SC Res 872, UN SCOR, 3288th mtg, UN Doc S/Res/872 (1993), 172 Rwanda, supra note 170. 173 SC Res 918, supra note 85. 174 Ibid, Preamble. 175 USCR website, supra note 170. 176 Malanczuk, Akehurst"s, supra note 10,407. 177 SC Res 841, supra note 88, Preamble. Emphasis added. See also Frowein, supra note 9,612. 178 Kirgis, supra note 15, at 514; see UN Doc Sti'V.3238 (1993) 11-12.


threats of aggression, 191 was a significant step in the development of the Council's powers. With the benefit of hindsight, Kirgis criticizes these efforts: 192

The Council did not help its cause when it failed adequately to assert that the largescale human rights violations in those situations presented latent threats to the peace that could not confidently be predicted to remain within national boundaries. Such an argument could have cogently been made.

However, cogent or not, the Council's respect for the 'domestic jurisdiction' was prevalent in both the Southern Rhodesia and South Africa incidents, and prevented conclusive determinations of threats to international peace resulting from domestic conflict.

During the Cold War, infrequent superpower consensus distorted understanding of the Council's authority and practice. Indeed, Sato asserts that "despite its clear, direct allusion to an armed conflict, the concept of a threat to peace evolved in the practice of the Security Council to refer to something broader than that". 193 Not surprisingly, then, the removal of political barriers opened the way for the further development of the Council's understanding of 'threats to the peace'. Since 1990, the revision of threats to the peace was primarily based on an expanded interpretation of the word 'peace'. Koskenniemi observes: 194

The sense of 'peace' has been widened from the (hard) absence of the use of armed force ... to the (soft) conditions within which - it is assumed - peace in its 'hard' sense depends; a change from a formal to a substantive meaning.

This interpretation was apparent during the meeting of the Council, held at the level of Heads of State and Government, on 31 January 1992. A Presidential declaration following the meeting announced: 195

The absence of war and military conflicts amongst States does not in itself ensure international peace and security. The non-military sources of instability in the economic, social humanitarian and ecological fields have become threats to peace and security.

191 Although, as has been pointed out above in Part 2, cross-border 'aggression' was a substantial factor in the 'South Africa Question'.

192 Kirgis, supra note 15, 512; Franck, supra note 119, 202-204. 193 Sato, supra note 96, 314. 194 Koskenniemi, supra note 1,341 n 69: "This is one of the key themes in the Secretary-General's Agenda for

Peace; to extend the organization's coercive powers from reactive (peace-keeping, peace-making) to preventive action (peace-building)".

195 UN Doc S/23500 (1992).


Although academic explanations for the President's announcement vary, 196

most commentators agree that the declaration indicated a dramatic broadening of the Security Council's Article 39 power to determine ·threats to the peace. Accordingly, Reisman concludes that the Council is free to "use Charter obligations and the symbolic authority of the organisation as they think appropriate to maintain or restore international peace as they define it". 197

The Council's movement from the traditional 'hard' concept of 'peace' has increased its discretionary authority under Chapter VIL According to Dinstein: 198

['Threat to the peace' is now] elastic enough to stretch away from the contemplated use of force and beyond inter-State relations. The Security Council is competent to determine that civil wars or minor internal disturbances - or even mere violations of human rights not entailing force - amount to a threat to the peace.

Dinstein's conclusion is in keeping with the Council's ability to address situations that potentially threaten international peace. Still, the apparent need for transboundary effects is an increasingly minor fetter, especially if the Resolution 794 regarding the 'Somalia Question' is any indication.

Perhaps the greatest advance in the jurisdiction of the Council was in addressing humanitarian crises under Chapter VIL This advance was evident in both the sufficiency of 'potential threats', and the declining requirement of a discernable trans boundary effect. 199 Indeed, Kuhne emotively concludes that "[c]onflicts in which more than half a million people get killed and hundreds of thousands of people are forced to flee are a threat to international peace and security in a highly interdependent world".200

As has been shown above, the Council's recent practice concerning humanitarian crises indicates that Kiihne's proposed criteria are not yet determinative. It is, however, irrefutable that a significant change in the scope of the Council's authority has occurred, and that the Council's authority will continue to develop in the foreseeable future. For example, a right to democracy may be created. 201

196 For example, Frowein finds that "[b]y stressing that the United Nations membership as a whole, working through the appropriate bodies, needs to solve the economic, social and other problems the [Security Council] apparently recognises that Chapter VII is reserved for the military conflict". See Frowein, supra note 9, 608. However, the recent practice of the Security Council repudiates this claim.

197 Reisman, Peacemaking (1993) 18 Yale J Int'! L 418. 198 Dinstein, supra note 36, 252. Kirgis also concludes that heightened humanitarianism, political globalization,

and weapons proliferation amongst State and non-State actors has "lead unavoidably and quite properly to a much expanded definition of 'threat to international peace' than could have been intended fifty years ago". Kirgis, snpra note 15,517.

199 The requirement of a transboundary effect in humanitarian crises is discussed in detail above in Part 2. 200 Kiihne, "The United Nations, Fragmenting States, and the Need for Enlarged Peacekeeping", in Tomuschat,

(ed), The United Nations at Age Fifty: A Legal Perspective (1995) 91, 99. 201 Franck, "The Emerging Right to Democratic Governance" (1992) 86 Am J Int'! L 46-91; see also Malone,

Decision-Making in the UN Security Council (1998) 110. In a more recent example, consider the reinstatement of the democratically elected government of Sierra Leone through an unauthorized nse of force. Nolte, 'Limits on the Security Council's Powers and its Functions in the International Legal System" in Byers, (ed), The Role of Law in International Politics (2000) 325.


Another significant development in the understanding of international peace was a consequence of the growth of international terrorism, and, indeed, other forms of international crime. In 1992, the Security Council asserted:202

The worldwide persistence of acts of international terrorism in all its forms, in which states are involved directly or indirectly, which endanger or take innocent lives, have a deleterious effect on international relations and jeopardise the security of states.

De Brichambaut observes that the Council "has been careful, in all its resolutions concerning terrorism, to assert a link with the preservation of international peace and security".203 Frowein proposes that "[t]he most far reaching use of the notion of 'threat to the peace' was made ... concerning Libya." 204 However, Graefrath concedes that the Council's determination in Resolution 7 48 "reflects a new policy ... illustrated by the statement issued at the Security Council summit meeting of 31 January 1992". 205

The Council's determination that Libya's alleged involvement in international terrorism constituted a threat to the peace was controversial, and "[s]everal commentators have expressed doubts as to the validity of this decision".206 Kirgis conservatively concludes:207

If a government "supports" terrorism on isolated occasions [a 'threat to the peace] is not so clearly at hand. Even if the government's failure to act amounts to a violation of international law, it would not necessarily constitute a threat to international peace ....

Graefrath is more critical of Resolution 748, finding that non-compliance with Council decisions "would not be sufficient to justify action under Chapter VII".208 Also, Sato warns that "cautious consideration is required on the matter of whether the Security Council could reasonably determine [a threat to the peace] simply because Libya had not surrendered the suspects".209

The concept of international peace today is not the same as that envisaged in 1945. The language of the Charter has not been amended, but Kirgis perceives this kind of change as inherent in the "development of the UN Charter as a living constitution".210 Writing in 1995, Kirgis opined that heightened humanitarianism, political globalization, and weapons proliferation amongst State and non-State

202 SC Res 731, supra uote 94, Preamble. Emphasis added. 203 De Brichambaut, ''The Role of the United Natious Security Couucil iu the Iutemational Legal System" in

Byers, (ed), The Role of Law in International Politics: Essays in International Relations and International Law (2000) 271.

204 Frowein, supra note 9, 611, referring to SC Res 7 48, supra note 97. 205 Graefrath, supra note 93, 186. 206 Schweigman, supra note 22, 185. 207 Kirgis, supra note 15, 515. 208 Graefrath, supra note 93, 195. 209 Sato, supra note 96, 316. 210 Kirgis, supra note 15; 515.


actors has "lead unavoidably and quite properly to a much expanded definition of 'threat to international peace'".211 The Council's interpretation of its powers is ambiguous, but that there is a general trend towards assuming greater power is undeniable.

IV. The Redundancy of Breaches of the Peace and Aggression

The corollary of the increasing importance among the Article 39 preconditions of 'threats to the peace' is the disuse of 'breaches of the peace' and 'acts of aggression' as grounds for the invocation of the Council's Chapter VII jurisdiction. Where the Security Council has actively utilized and developed its understanding of 'threats to the peace', these other preconditions have fallen into virtual redundancy. Furthermore, despite a number of attempts, there has been no convincing demarcation of an "unblurred line between the categories of a breach of the peace and aggression".212 Like 'threats to the peace', other prerequisites were clarified neither during the San Francisco Conference nor in the final draft of the Charter.

1. Breaches of the Peace in Practice

During the Cold War, the Council determined that breaches of the peace existed on three occasions: the Korea,213 Falklands214 and Iran-Iraq War Questions.215 In determining breaches of the peace, the Council has provided no authoritative definition of the term. Frowein argues that breaches of the peace arise "when hostilities are engaged in between armed units of two states."216

However, this definition complicates matters: it is nearly indistinguishable from the common understanding of 'aggression' .211 Yet Frowein's definition is seemingly consistent with the precedents in the area. Thus, it seems that the Council has been primarily responsible for the confusion, which began in the 'Korea Question'.

Following the North Korean attack on southern Korea in June 1950, the Council immediately determined that this "armed attack" was a breach of the peace.218 During the Council's debates on the issue, the USSR questioned the

211 Ibid 517. 212 Dinstein, supra note 36, 253. Acts of aggression are discussed in detail below in Part 2. 213 SC Res 82, UN SCOR, 473rd mtg, UN Doc S/Res/82 (1950). 214 SC Res 502, UN SCOR, 2350th mtg, UN Doc S/Res/502 (1982). 215 Malanczuk and Frowein appear to neglect the Council's determination, in Resolntion 598, of a 'breach of the

peace' during the war between Iran and Iraq from 1980-1987. SC Res 598, UN SCOR, 2750th mtg, UN Doc S/Res/598 (1987); Malanczuk, Akehurst's, supra note 10, 391; Frowein, supra note 9, 609.

2 I 6 Frowein, supra note 9, at 609. 217 Acts of aggression are discussed in detail below in Part 2. 218 SC Res 82, supra note 213, Preamble.


Council's ability to intervene in what it considered the Korean domestic jurisdiction. Frowein observes that the Soviet view was rejected because where "effectively ... separated and pacified regimes exist side by side, the protection of peace also applies for them. The outbreak of armed hostilities between them is a breach of the peace".219 Of course, this result was also the product of the USSR's "badly timed boycott" of the decision-making. 220

The Security Council perpetuated the uncertainty sun-01rnding 'breaches of the peace' when it determined that Argentina's 1982 invasion of the Falkland Islands constituted a breach of the peace.221 The Argentiae invasion was an unequivocal breach of Article 2(4), and a seemingly obvious 'act of aggression'. Similarly, in 1987, after seven years of fighting, the Council determined the existence of "a breach of the peace as regards the conflict between Iran and Iraq". 222 Again, in Resolution 660 the Council determined that Iraq's invasion of Kuwait constituted a "breach of international peace and security."223

In light of these precedents, Frowein argues that an attempt was made to "dilute the concept of a breach of the peace" during the Councii's deliberations on the 'Namibia Question' in 1987.224 A proposal that the presence of South African troops in Namibia following the lapse of its League of Nations mandate225

constituted a breach of the peace was vetoed by the United States and United Kingdom. 226 Frowein concludes that "[t]he situation involving the illegal occupation of territory through the continuation of an originally legal administration must be distinguished from a breach of the peace in the sense of Article 39". 227

The failure of this proposal, due to the United States' and Britain's vetoes, mea.nt tha,t it did not become a conclusive expression of the law. But the 'N:unibia Question' may have been an example of the kind of situation that the international community originally intended to prevent when it employed the phrase 'breaches of the peace'. Subsequently, the Council has confirmed that 'peace' is not merely the absence of war. 228 Arguably, then, a breach need not, as Frowein suggests, be in the form of "hostilities".

Unlike detenninations of 'aggression', where one of the parties is recognized as an 'aggressor' ,229 findings of 'breaches of the peace' do not apportion blame

219 Frowein, supra note 9. 609. 220 Dinstein, supra note 36. 257. 221 SC Res 502, supra note 214. Preamble. 222 SC Res 598, supra note 215; see also Dinstein, supra note 36, 257. 223 SC Res 660. UN SCOR. 2932nd mtg, UN Doc S/Res/660 (1990), Preamble. 224 Frowein, supra note 9, 609. 225 Malanczuk, Akehurst's, supra note 10. 328. 226 See UN Doc S/18785 (1987). 227 Frowein. supra note 9. at 610. 228 UN Doc S/23500 (1992). The development of new understandings of 'peace' is discussed in detail above in

Section HI, Part 3. 229 Stone, Aggression and World Order: A Critique of United Nations Theories of Aggression (1958) 21.


in the same stigmatic manner.230 This may prove beneficial where an effort is being made to reach a peaceful resolution; this may account for some of the Council's anomalous determinations. However, the determination that a threat to international peace existed would achieve similar results. The sufficiency of a threat to the peace allows Article 39 to "come into play long before a breach of the peace occurs".231 Moreover, because a breach of the peace endangers the maintenance of international peace and security, it is conceivable that inherent in such breaches are 'threats to the peace'. In terms of Article 39, a 'threat to the peace' acts like a 'lowest common denominator' for the invocation of the Council's Chapter VII jurisdiction.

2. Acts of Aggression at International Law

The final Article 39 precondition, the existence of an 'act of aggression', has also been used by the Council on relatively few occasions. During the Cold War the Council only accepted "short-term military actions by South Africa or Israel as 'acts of aggression"'.232 Due to its infrequent use, the notion of aggression has not benefited from case-by-case elaboration, which could have "afford[ed] guarantees of impartial and passionless determination of future decisions".233

According to Frowein, the fundamental understanding of "[a]ggression presumes the direct or indirect application of the use of force; thus, it is also always a breach of peace".234 As such, the value of the concept in Article 39 is questionable:235

Insofar as aggression can rarely (if ever) occur unaccompanied by either a threat to the peace or a breach of the peace, collective peace enforcement [ under Chapter VII] would seem legally possible without the use of the notion of aggression.

Indeed, Stone rejects the need for the notion of aggression, regardless of how it is defined. Again, it can be seen that the 'threat to the peace' precondition acts as a lowest common denominator for the purposes of Article 39.

Unlike 'breaches of the peace', however, 'aggression' has been defined outside of the Council, particularly through the efforts of the International Law Commission ("ILC") and the General Assembly. Moreover, the difficulties involved in evidencing acts of aggression "are graver than those involved in proof

230 Dinstein notes that "[i]n ... the Falkland Islands War, the Council did not specify who had committed the armed attack: the resolution only determined that 'there exists a breach of the peace in the region of the Falkland Islands (Islas Malvinas)"'. Dinstein, supra note 36, 257. Similar arguments may be made for the Council's findings in the 'Iraq-Kuwait Question' in response to the Iraqi invasion.

231 Frowein, supra note 9, 608. 232 Ibid 610; see also Malanczuk, Akehurst's, supra note 10, 391. 233 Stone, supra note 229, 22. 234 Frowein, supra note 9, 610. 235 Stone, supra note 229, 22.


merely of a 'threat to the peace' or a 'breach of the peace"'.236 Thus, there are two legalistic constraints on the use of "aggression': the development of legal criteria, and the resulting burden of evidence. Both of these constraints have played a significant role in the Council's reluctance to utilize the 'aggression' prerequisite.

3. The Development of Legal Criteria

The notion of aggression has long been an (albeit ill-defined) aspect of customary international law de lege lata. In 1933, the League of Nations attempted to codify the law of aggression, but the sum of its efforts probably did not have even "the non-binding persuasive force of a voeu of the League Assembly or Council".238 The drafting of the UN Charter following World War Two again saw the incorporation of a notion of 'aggression', particularly in Articles 2(4) and 39. Many smaller States, including New Zealand, attempted to include a binding definition of 'aggression' in the Charter.239 The major powers strongly opposed any such definition, and rapporteur Paul-Boncour stressed the difficulties and dangers of negotiating an exhaustive list of aggressive acts. 240

Hence, no definition eventuated. In respect of the general prohibition on the use of force241 contained in Article

2(4), and the right of self-defence in response to an "armed attack",242 the codification of 'aggression' occupied the ILC from November 1950.243 In 1956, irrespective of the concept's potentially superfluous role in Article 39, Wright argued that: 244

[Al satisfactory definition of aggression is an essential prerequisite for a collective security system [and] has to be framed on the assumption ... that 'collective security' does not depend on decisions of the Security Council, but on voluntary action by Members in response to recommendations of the General Assembly.

Accordingly, the General Assembly, in a supplement to the Uniting for Peace Resolution,245 actively sought to define 'aggression' .246

236 Stone, supra note 229, 23. 237 See the Secretary-General's Report in UN GAOR VII, Ann, Agenda Item 54, 35. 238 Stone, supra note 229, 36. 239 Frowein, supra note 9, 607. For discussion on the early development of a definition of aggression, see

generally Stone, supra note 229, 23; see also the evaluation of 'acts of aggression' below at Section IV Part I. 240 Stone, supra note 229, 41. 241 United Nations Charter (1945), art 2(4). 242 United Nations Charter (1945), art 51. 243 GA Res 378B, UN GAOR, 5th sess, 308th plen mtg, UN Doc NRes/378 (1950). 244 Wright, ''The Prevention of Aggression" (1956) 50 Am J Int'! L 514, 518. 245 Uniting for Peace Resolution, GA Res 377, UN GAOR, 5th sess, 302nd plen mtg, UN Doc NRes/377 (1950). 246 Stone suggests there are "two alleged reasons for the urgency of defining aggression, namely the guidance of

the Security Council and the General Assembly in determining an aggressor, and the judicial trial of certain war criminals [ concerning the latter of which] the issues are separate and different (individual rather than State responsibility)". Stone, supra note 229, 23.


In December 1974, the General Assembly finally adopted a definition of 'aggression' in Resolution 3314.247 The Definition of Aggression does not bind the Security Council, although the Council may rely upon the resolution's clarifications.248 Zemanek observed:249

[T]he Security Council [was]' manifestly not interested in having this discretion restricted through abstract clarifications or definitions. [Consequently] when the General Assembly undertook to define aggression, it was "persuaded" to include a saving clause for the discretionary powers of the Security Council in the text.

However, this 'saving clause' is not absolute. The General Assembly confirmed that the "acts enumerated [in the resolution] are not exhaustive and the Security Council may determine that other acts constitute aggression under the provisions of the Charter".250 Arguably, this indicates an expectation that the Council recognize the specific acts included in Resolution 3314 as 'acts of aggression'. The Definition of Aggression became more authoritative following the 1986 Nicaragua Case, in which the ICJ considered that 'aggression' as defined by Resolution 3314 reflected customary law.251

V. Article 39 Determinations as Questions of Law?

It is evident from the foregoing discussion that through its recent practice the Council has enlarged its powers of legal appreciation. The Council's authority to determine the existence of Article 39 prerequisites has developed to meet the perceived needs of the international environment. Few disagree that the Council is a political body.252 Nonetheless, the Council plays a central role in the international legal system through its interpretation and implementation of existing law, primarily the UN Charter.253 De Brichambaut characterizes the Council as a "political organ that produces resolutions having legal consequences".254 But are the Council's determinations capable of review as justiciable questions of law? This section of the article considers th~ Council's decision-making, and the consequences of the prevailing interpretations of Article 39 for the legitimacy of Council determinations.

247 Definition of Aggression, GA Res 3314, UN GAOR, 29th sess, 2319th plen mtg, UN Doc A/Res/3314 (1974). 248 Frowein, supra note 9, 610. 249 Zemanek, supra note 19, 50-51. 250 Definition of Aggression, supra note 247, art 4. Emphasis added. 251 Nicaragua Case (Merits) [1986] IO Reports 14, [195]. 252 Repertoire 1946-51, supra note 19, 427; see also Sato, supra note 96, 316; Dinstein, snpra note 36, 251. 253 De Brichambaut, supra note 203, 275. 254 Ibid 269.


1. The Security Council's Quasi-Judicial Role

Despite the fact that the Security Council is a political body, it frequently exercises quasi-judicial functions in terms of its Chapter VII powers.255 Indeed, as early as 1947, the United States' representative to the Council recognized that "the invocation of [Article] 39 ... raises very complex and serious questions of law".256 Nonetheless, Zemanek concludes that the political nature of the Security Council supersedes any judicial role it may play:257

[W]hile the existence of one of the situations mentioned in Article 39 could be determined according to legal criteria, the actual determination by the Security Council is a political decision in which legal considerations may, but do not necessarily, play a role, though it may be the decisive one.

Thus, under certain circumstances the Council may make determinations based solely on legal considerations. As Brownlie observes, "political organs frequently adopt a course of conduct based upon legal considerations and intended to have legal consequences".258 This is particularly apparent in the invocation of enforcement measures under Articles 41 or 42.

Many commentators recognize that the Council's fundamental judicial decisions under Article 39 relate to considerations of illegality and, consequently, the liability of a given international actor. Bowett considers that in making an Article 39 determination, findings of illegality are unnecessary for the application of Chapter VIl.259 However, Schweigman also observes that the Council's recent practice has tended it towards making legal judgments:260

[T]he Council increasingly seems to take measures under Chapter VII based on a prior finding of illegality and with the goal of remedying that illegality. Indeed, a trend can be discerned toward what has been called the enforcement of international obligations.

This "prior finding of illegality" alludes to determinations under Article 39. Unlike Bowett, Schweigman perceives the recognition of some illegality as underpinning Article 39 determinations. However, the standard of the Council's quasi-judicial functioning does not appear to be consistent across the three Article 39 prerequisites.

255 Schweigman, supra uote 22, 155. 256 Repertoire 1946-51, supra note 19, 430. 257 Zemanek, supra note 19, 296. 258 Brownlie, supra note 3, 211. 259 Bowett, supra note 6. 260 Schweigman, supra note 22, 156; see also Gowlland-Debbas, "Security Council Enforcement Action and

Issues of State Responsibility" (1994) 43 Int'! & Comp LQ 55, 77.


(a) Discretionary Threats to the Peace

As discussed above, the scope of 'threats to the peace' has broadened, and the Council has increasingly used the 'threat' precondition to satisfy Article 39. The concept has evolved beyond actual threats into potential, and now hypothetical, notions of threat. Koskenniemi criticizes the development of the concept:261

Now the chase for a Somali clan leader ... among a host of other controversial Chapter VII decisions, [is] difficult to justify under a coherent theory of 'threat to peace' ... I would suggest that the Council simply has no business venturing into such theory-building.

Findings of threats to the peace are, more than ever before, subjective, emotional responses, defying theoretical constructions and judicial determination. As Dinstein explains, threats "can be merely a state of mind".262

Apart from the necessary compliance with the Purposes and Principles of the Charter, 'threat to the peace' is a term devoid of legal criteria. This, according to Kirgis, makes the Council "the best (in fact, the only) judge of what amounts to a threat to international peace".263 Indeed, in the Kanyabashi Case the ICTR found that:264

[T]he Security Council has a wide margin of discretion in deciding when and where there exists a threat to international peace ... however, such discretionary assessments are not justiciable since they involve the consideration of a number of social, political and circumstantial factors which cannot be weighed and balanced objectively by this Trial Chamber.

Many reject the idea that the Council's 'mind' is amenable to judicial review, because this would be "to substitute [a judicial institution's] own political judgment for that of the Security Council".265

The determination of a threat to the peace is not a question of law and, therefore, "a determination by the Council that a threat to the peace exists is conclusive". 266 The only plausible exception is a breach of the general prohibition on 'threats of force', which may entail judicial consideration of the statements or conduct of a State, or perhaps another international actor. These circumstances are exceptional in the Council's practice. Bowett finds that "[i]n the majority of cases the findings of the Council will be factual and political, not legal".267

261 Koskenniemi, supra note I, 342. 262 Dinstein, supra note 36. 263 Kirgis, supra note 15, 516. 264 Decision of the Defence Motion on Jurisdiction, Prosecutor v Joseph Kanyabashi, Case No. ICTR-96-15-T,

18 June 1997, [20], cited in Schweigman, supra note 22, 266. 265 Howett, supra note 6. 266 Dinstein, supra note 36. 267 Howett, supra note 6.


Accordingly, Bowett concedes that some Council determinations are questions of law. This conclusion may be accounted for by developments in the other Article 39 preconditions.

(b) Of Breaches of the Peace?

The concept of 'breach of the peace' is underdeveloped and confused. If one adopts Frowein's definition, which is consistent with the precedents, the determination of a breach of the peace will turn on the existence of "hostilities ... between armed units of two states".268 But any attempt to distinguish 'hostilities' from 'aggression' at customary international law would be artificial for all intents and purposes.269 Consequently, the legal criteria associated with 'acts of aggression' would allow for the review of breaches of the peace as questions of law. However, this article has shown that Frowein's proposed definition is unsatisfactory.

'Breach of the peace' is now subject to the 'soft' understanding of 'peace' that has prevailed since the Council's January 1992 announcement.21° Consequently, the discretion that the Council has to determine breaches of the peace has been considerably strengthened. Nonetheless, the Council has preferred to use the 'threats to the peace' precondition to initiate its Chapter VII jurisdiction. Unlike hypothetical or potential threats to international peace, whether a 'breach of the peace' exists is a question of fact. However, without authoritative criteria for the recognition of when a breach has occurred, judicial methods of decision-making will be ill-equipped to review such determinations.

( c) Justiciable Acts of Aggression

As this article has shown, international understandings of 'aggression' have been consolidated since the drafting of the UN Charter. The General Assembly's Definition of Aggression provides a non-exhaustive list of criteria. 211 Thus, as Bowett argues, a determination of an act of aggression is "not simply a matter of political judgment. It is a finding based upon an assessment of the facts and the application of a norm of international law, based on that assessment of the facts". 212 Findings of illegality are intrinsic in the determination of acts of aggression because 'aggression' necessitates the recognition of an 'aggressor'. Accordingly, judicial methods are more suited for determining the existence of an act of aggression.

268 Frowein, supra note 9, 609. 'Breaches of the peace' are discussed in detail above in Section IV, Part I. 269 The fundamental distinction will be the Council's avoidance of strictly determining an 'aggressor'. 270 UN Doc. S/23500 (1992). 271 Definition of Aggression, supra note 247. 272 Bowett, supra note 6, 94.


The general prohibition on 'aggression', or the 'use of force' as codified in Article 2(4). has arguably become a fundamental norm of international !aw. Shaw w:1rns: 273

[O]ne must question the competence of thto Security Council to alter ur,_iiaterally the p;·inciples of international law ... it is able to go no further than reaffirm existing international lav, and suggest a particular application iil a particular situation.

Schvveigman views the "ouitlawing of aggression" as a ./us co gens non-11."274

He and numerous other commentators agree that when "exercising its quasijudicial authority, [the Council] must abide by general international law, including customary international law",275

The Definition of Aggression afforded the Council the pO'Ner to "deterrnine that other acts constitute aggression". 276 The formulation of alternative definiticns may form part of what many commentators perceive as a quasi-legislative function. 277 Although lhe Definition of Aggression as an expression of customary law is not exhaustive, it is comprehensive. The existing law captures most, if not all, forms of aggression, and therefore leaves the Council limited room for manoeuvre. Therefore, 'acts of aggression' vvill almost unfailingly be questions of law; the Council cannot siinply change the !avv 1::cs it sees fit

'.:t 'Jrhe Colllsequerrnces tio,r Se,em·Hy Coum1cfi Legitimacy

The powers of :the Security Council are formidable. In cm uncharncteristically conservali_ve approach, Judge \Veeramantry asserted that ::t "'determim,lion u11der Article 39 , .. is one entirely within the discretion of the Councir'. 278 As has been shown, this is not entirely the cac;e, The Council remafos limited, even in determining 'threats to the peace'. Bo,Nett rightly affirms this point:279

T:1ere can be no tlasis for arguing that, as a political mgan, fae Coancil is riot subject to the ultra vires doctrine, Member States have every right to bsist i:hai the Council keeps within the powers ~hey h;ive accorded to it Ender the Charter.

273 Shaw, "The Security Council and the International Court of Justice: Judicial Drift and Judicial Fur1ction" in Muller, Rai and Thur5nszky (eds), Th~ International Court of Justice: Its Future Role after Fifty Years (1997) 234-5, cited in Schweigman, supra note 22, 201.

27 4 Schvveigman,, supra note 22, 199. 275 Ibid 200-20]; see e.g. Kirgis, supra note 15, 53 l; see also Shaw, supra note 273, 234-5. 276 Definition of Aggression, supra note 247, art 4. 277 See for example Sato, supra note 96. 335-336; see also Kirgis. supra note 15, 520-527. 278 Judge 'Neeramantry, Questions of the Interpretation and Application of the 1971 lvlontreal Convention Arising

fivm the Aerial Incident at Lockerbie (Prov Measures) (Libya v US) Diss Op, (1992) !CJ Reports, 66. 279 Bowel!, supra note 6; see also Conditions of Admission to the United Nations (Advisory Opinion) (1948) ICJ

Reports 64-.


The Council is answerable to, not above, the international community it represents.280 Similarly, Koskenniemi also concludes that "[t]he right 'of last resort' of member States to decide, for themselves, on whether an act has been ultra vires is difficult to reject"281

Furthermore, the Council's broad interpretation of its Article 39 authority may force it to make concessions in other areas. Currently, it is thought that, "[a]s a non-judicial body, the Council is not required to set out reasons for its decisions".282 The Security Council has pushed the bounds of its authority, and in contentious cases it has been "disinclined to explain what it saw as the threat to international peace".283 Indeed, Brownlie laments that recent Council determinations have "produced results which exhibit double standards in the application of the law on a scale which places the principle of equal subjection to law in jeopardy".284 However, Kirgis proposes that in consideration for the Council's broad interpretation of its powers of appreciation, the international community will demand "principled Article 39 determinations, publicly explicated, that do not set unlimited or unintended precedents".285

This article has shown that the vast majority of Article 39 determinations made by the Council are not amenable to review. Even if a judicial institution were empowered for that purpose, Council determinations are seldom justiciable as questions of law. However, when making decisions, the Council must also bear in mind the importance of maintaining a sense of legitimacy:286

[T]he legality or constitutionality of various activities by the Security Council is ambiguous or fragile at best . . . . [T]he more the Security Council steps into legally grey areas [such as hypothetical 'threats to the peace'], the more legitimacy is required for its activities to be effective and acceptable.

Kirgis proposes that, to preserve its legitimacy, "[the Council] needs to demonstrate that it is using the powers judiciously".287 If the Council is not accountable to a separate organ of the UN, then individual States will themselves be the final arbitrators of the legality of Council determinations. To date, the

280 See for example the concise and persuasive assertions of the representative of Zimbabwe, UN Doc S/PV.3063 (1992) 54-55, cited in Kirgis, supra note 15, 517-518.

281 Koskenniemi, supra note I, 342. Koskenniemi asserts this point "despite the evident problems it causes to the credibility of the collective system". For example, Doehring suggests that "[t]he position that the whole peacekeeping system of the United Nations would collapse if states would be free to judge themselves about the legality of resolutions ... may be conclusive but not coherent and, in the end not convincing. This position would result in an obligation to do wrong". Doehring, "Unlawful Resolutions of the Security Council and their Legal Consequences" (1997) I Max Planck Yearbook of United Nations Law 98. However, Malanczuk asserts that UN "member States cannot substitute their own opinion for that of the Security Council". Malanczuk, Akehurst's, supra note 10, 394.

282 Dinstein, supra note 36. 283 Ibid 513. 284 Brownlie, supra note 3, 214. 285 Kirgis, supra note 15, 517. 286 Sato, supra note 96, 340. 287 Kirgis, supra note 15, 516.


international community has allowed the Council considerable leeway, but signs of disquiet are emerging. The Lockerbie and ICC Prosecutions Questions are only recent examples.288

VI. Conclusion

The authority of the Security Council under Article 39 to determine the existence of 'threats to the peace', 'breaches of the peace' or 'acts of aggression' is not simply a political discretion. Nor can it be said that judicial review of the Council's determinations will achieve any more the substitution of one political decision for another. Such a definitive conclusion is prevented by the complicated, pragmatic development of the three Article 39 concepts. Given the present broad scope of 'threats to the peace', there appears to be no motivation for the Council to further develop the other Article 39 prerequisites.

Has the Council gone too far by introducing nations of 'hypothetical threat' and 'soft' peace? Kirgis defends these developments as part of the 'living' Charter, in which Article 39 should not be tied "to the kinds of situations delegates had in mind in 1945", and that the international community "need[s] to allow the Council a great deal of leeway to apply and interpret the powers it has long had on paper".289 This is certainly true, but what of the obligations that the Council has also long had "on paper", such as its possible duty to recognize the existence of any Article 39 precondition? Furthermore, why can the 'living' Charter not demand greater accountability and transparency? In providing that leeway, the demands of the international community for accountability and fair process cannot be ignored. Irrespective of whether a particular determination is a discretionary 'threat to the peace' or a justiciable 'act of aggression', the Council must not take the legitimacy of its decisions for granted.

That said, the Council's current precedents are irreconcilable with these demands. The determination of a 'threat to the peace' purely on the basis of an unsubstantiated emotional response will frequently preclude the furnishing of satisfactory evidence and reasoned argument. These issues have come to the fore through the recent focus of the Security Council on Iraq's defiance of Security Council Resolution 1441.290 The reluctance and, arguably, inability, of the United States and Britain to substantiate their allegation - that Saddam Hussein's Iraq continued to retain and develop weapons of mass destruction - is a natural follow-on from the Council's Lockerbie and ICC Prosecutions Questions precedents. Perhaps, only now, will the Security Council members come to realize that they have gone too far.

288 For example, regarding the 'Lockerbie Question', see UN Doc S/PV.3063 (1992) 54-55. Regarding the 'ICC Prosecutions Question', see Bosnia Mission Mandate in Question as Security Council Debates Legal Exposure of UN Peacekeepers, 4568th mtg, UN Doc SC/7445/Rev.l (2002).

289 Kirgis, supra note 15, 516; see also Schachter, "The UN Legal Order: An Overview", in Schachter and Joyner (eds), United Nations Legal Order (1995) 1, 13-14.

290 SC Res 1441, UN SCOR, 4644th mtg, UN Doc S/Res/1441 (2002).

1140

Luke v Lyde: Lord Mansfield and the Development of the Principles of Mercantile Law

Bridget Murphy*

I. Introduction

This article is a close analysis of the 1759 case Luke v Lyde1 heard by Chief Justice Mansfield in the court of the King's Bench. The case arose out of a commercial maritime dispute. Specifically the defendant shipped a cargo of fish for carriage from Newfoundland to Lisbon on the plaintiff's vessel, Sarah. After seventeen days on the sea, and with four days left to sail, the French captured the Sarah. Three days later she was recaptured by an English privateer and brought into Bideford. The defendant then received the fish at Bideford and sold it in the market for half its value. He then paid half of this to the privateer as salvage money. This resulted in the legal question of what freight, if any, were the plaintiffs entitled to. The answer (and ratio) was that apart from an express contract, freight pro rata is always due where a voyage has been partly performed. 2

However, this article will show that the historical importance of Luke v Lyde lies beyond its specific facts and black letter law to the case's location in a time when principles of mercantile law were fresh and developing, when instinctive solutions were made good by reference to ancient sources, and an approach to case law reasoning which has since been largely left behind.

II. The Case in Context

1. The Growth of British Trade and the Problems of Mercantile Law

The period between the Glorious Revolution and the final defeat of Napoleon at Waterloo was marked by a vigorous growth in British economy and trade.3 The empirical discoveries of the late fifteenth and sixteenth centuries created new

2 3

BA/LLB(Hons). The author would like to thank Dr David Williams of the University of Auckland Faulty of Law for his helpful suggestions and support. (1759) 2 Burr 882; 97 ER 614 (Luke). See Metcalfv Britannia Ironworks Company [1976 - 77] 2 QBD 423. P Marshall, The Eighteenth Century (1988) 53. For instance, between 1697 and 1815 commodity exports increased much more rapidly than the growth of the population and faster than the growth of the national product as a whole.

Luke v Lyde 1141

geographical conditions that removed the cenire of European trade from the Mediterranean cities and shifted it to the seaports that bordered the Atlantic. British foreign trade e):panded throughout the sixteenth and seveni.eenth centuries and as Johnson observed in 1756 "there was never from the earliest ages a time in which trade so much engaged the attention of mankind, or commercial gain was sought with such general emulation." 4 Naturally, the pressure of mercantile influence on the courts grew more incessant during this time. Betv1een 1690 and 1750, 136 cases were reported on negotiable instmments and 48 on marine insurance, 5

When Lord Justice Mansfield came to the King's Bench in 1756, the place of the Law Merchant in English fr,w was considerably unsettled. Existing commercial law plinciples ,vere concerned mainly with transactions of domestic commerce.6 While the custom of merchants could be proved in commercial litigation, very fev; general rules and principles had been established to which isolated decisions could be adjusted. It v,as patent that many additions needed to be m:1de to the existing rules of English law if it was to be able to deal with the larger transactions of foreign trade.

A general merchant dissatisfaction with the law is evident in the litenlture of the later half of the seventeenth century. Sir Josiah Child complained "it is well if, after great expenses of time and money, we can make our own Counsel (being Common Lawyers) under:;tand one half of our Case, we being amcngst them as in a Foreign Country."' ~derchants preferred to settle their disput,::;s outside the re2Jrn of the courts. According to 1Vfarius "The right dealing merchant dmh not care how little he hath to do in the Cornman Law."' Cary advocated the establishment of '"Courts of Merch&,nts, .. for the speedy deciding all differences rdating to Se,:c Affairs, which are better ended by those who understand them, lhan they ai-e in Vvestminster-Ha1L"9

The academic CHS Fifoot, offers two explanations for the slow development of the relationship between law and conunerce, 10 namely the notoriously unreliable stme .of the hnv reports 11 and the personality of judges at the time. Of note was John Hoh (1642 - l 709) who wz,s appointed Chief Justice of the F_.ing's Bench in 1689 and V\!ho dmninated rhe beginnings of the new commercial contexL It appears that while Lord Holt appreciated the value of mercantile support as a politician, as a judge he was not prepared to buy it at the sacrifice of

4 Quoted in CHS Fifoot Lord Mansjield (Clarendon. Oxford, 1936), 4. (Fifoot). 5 Ibid 17. 6 VV Holds\vorth, Sources and Literature of English Law (1952) 5. 7 Josiah Child A Discourse About Trade (Printed by A So\vle 1689, Early English books On-line, Electronic

Reproduction Ann Arbour, Iviichigan 1999) 8 John Marius Advice Concerning Bills of Exchange (Early English books On-line, Electronic Reproduction

Ann Arbour, Michigan 1999) 9 John D Cmy An Essay on the State of England in Relation to its Trade (Printed by w· Bonny 1695, Early

English books On-line, Electronic Reproduction Ann Arbour, l\J1ichigan 1999). 10 Fifoot, supra note 4, 7. ! 1 For a detailed. discussion see Part IV of this paper.


legal symmetry. He resisted guidance from commercial-men in his legal reasoning: "litigation was the raw material for the exercise of professional ingenuity, and no protagonist, however influential, could be permitted to dictate the terms upon which his dispute should be resolved."12

2. The Education and Training of Lord Mansfield

Lord Mansfield, William Murray (1705 - 1793), born in Scotland of noble lineage, at the age of fourteen left Scotland for England, never to return. Murray's intellect was prodigious. In 1723 he was placed first on the list of Kings Scholars, proceeding to Christ Church, Oxford. While Murray knew from the outset, due to studies at Oxford, that he was destined for the English Bar, no formal system of legal education existed and he was left largely to his own devices. 13 He studied Modem Ancient History, Greek and Roman. He also defeated William Pitt (the elder)14 in a Latin poetry competition on 'The Death of the King'. In the area of law he read the great Continental natural lawyers like Puffendorf, Grotius and Justinian. As early as 1733 he successfully argued a Scottish case before the House of Lords. In 1742 he became Solicitor-General, entered the House of Commons, and became an indispensable member of government. In 1756 he insisted upon leaving the House of Commons to become Lord Chief Justice of the King's Bench, and was created Baron Mansfield.

According to Sir William Holdsworth, 15 Lord Mansfield's Scottish heritage and educational background had a profound impact on his approach to legal reasoning. His Scottish influence helped him to look not for the appropriate legal writ, but the appropriate legal principle in any given case. 16 His informal and diverse legal education fitted him admirably for the work of creating and settling the law merchant. Lord Mansfield came to English law not to destroy, nor to innovate, but to fulfil: 17

The breadth of his learning prevented him from attaining that accurate knowledge of the development of common law rules which could only come to an English lawyer who had devoted the largest part of his time to the study of its complex technicalities. He approached the common law from the viewpoint of a student of the broad principles of jurisprudence, not from the viewpoint of a student of the evolution of its rules.

12 Fifoot, supra note 4, 9. 13 AWD Simpson (ed), Biographical Dictionary of the Common Law (Butterworths, London, 1984). 14 William, later Earl of Chatham. 15 Holdsworth, supra note 6, 249. 16 W Holdswoth "Lord Mansfield" (1937) 53 LQR 221. 17 Fifoot, supra note 4, 9.

Luke v Lyde 1143

Lord Mansfield wanted to make decisions in commercial matters based upon grounds that the merchant, if he could not approve, could understand. This propensity is suggested in his first reported decision, Raynard v Chase 18 in which he stated: "the general usage and practice of mankind ought to have weight in determinations of this sort affecting trade and commerce." To create this coBaboration of judge and merchant Lord Mansfield found the perfect medium, a special jury, chosen with care from among the merchants of the city. Admittedly, this was not an entirely novel idea. In 166,5 the Court of King's Bench had been moved "for a jury of merchants to try an issue between two merchants, touching merchants' affairs."' 9 But the use of a special jury was both sporadic and without a uniform system and it was Lord Mansfield who converted this occasional institution into a regular one. He trained a corps of jurors to s.ct as a permanent liaison between law and commerce and enquired into the practice v.nd usages of reputable merchants. According to Lord Birkenhead,2'1 Lord Mansfield invited the members of the jury to dine with hin1 frequently and there was no greater source of pride at the time to become 'Lord Mansfield's jurymen'. Vv'hen a case arose which involved a point of principle, or some novel practice, he vvas accustomed to take their verdict subject to a case for the opinion of the fuH court.

While in some cases Lord Mansfield made express reference to the opinion of his jury members, 21 in Luke v Lyde his Lordship W3,s silent as to any jury-held opinion. However, given the importance of Luke v Lyde22 to the development of a commercial law principle .. one can assume that Lord Mansfield did indeed consult men of commerce in reaching the ratio in the present case.

Modern lawyers have a conception of judgments laying down a rule at a certain level of generality, which subsequent judges must, according to the rules of precedent follow; judgments are binding and therefore they make law. This modem approach is an inductive method of discovering the law. 23

H would be misconceived ro suggest that for Lord Mansfield the principles underlying judgments created rationes decidendi or binding precedents in this modern sense. This is largely because English law at the outset of Lord Mansfield's career had no system of binding precedent, due to the "poverty of the

18 (1756) l Burr 2; 97 ER 614. 19 Lilly's Practice, Reg. Ii 154. 20 The Eaxl of Birkenhead Fourteen English Judges (Cassell. London. 1926). 21 See for example Lord IVfansfield's statement "the special jury, among whon1 there were many knowing and

considerable merchants, found the defendant's rnle of estimation to be right and gave their verdict for him." Lewis v Rucker (1761) 2 Burr 1167; 97 ER 769.

22 Indeed, the importance of the case is suggested by the fact that Lord l\1ansfield's decision was reserved until the summer and then brought to London to be heard.

23 Robert William Woug Lord Mansfield's Case Law Themy (Dissertation LLB(Hons), University of Auckland, 1986).


law reports".24 It simply would not have been practicable to have a system of binding precedent, when the evidence of what the precedents were was notoriously unreliable.

Accordingly, Lord Mansfield's approach to the law was deductive. His method of adjudication characteristically involved applying general principles, in the spirit of the law. Although he deemed himself subject to the positive import of precedent,25 they were for his Lordship more often impotent tools for deciding later cases. Rather, the principles were the rationale from which precedents devolved and precedents were merely concrete illustrations of these principles. This approach to case law reasoning is illustrated by the following passage from a judgment Lord Mansfield delivered in the 177 4 case Jones v Randall:26

It is admitted by the counsel for the defendant, that the contract is against no positive law; it is admitted too, that there is no case to be found which says it is illegal; but it is argued, and rightly, that notwithstanding it is not prohibited by any positive law, nor judged illegal by any precedents, yet it may be decided on by principles; and the law of England would be a strange science indeed if it were decided on precedents only. Precedents serve to illustrate principles, and to give them a fixed certainty. But the law of England, which is exclusive of positive law enacted by statute, depends on principles; and these principles run through all the cases according as the particular circumstances of each have been found to fall within one or other of them.

Luke v Lyde is demonstrative of Lord Mansfield's approach to precedent and principle. In order to ascertain Lord Mansfield's approach to case law reasoning it is necessary to understand the substantive legal issues of the case. His Lordship identified two points of law that required addressing.27 The first question is whether any freight is due to the plaintiffs? If answered in the affirmative then the second question to be considered is what freight is due?

Lord Mansfield considered the first question to be a relatively uncontroversial point. He appealed to the contemporary text Molloy, which laid down the principle that "where disability of the ship is inevitable or accidental, without fault of the owner or master, freight is due."28 Accordingly, his Lordship held that in the present case there was nothing to prevent freight from being due. "Freight became due from and upon the freighters taking the goods into their possession: and continued due, by the defendants not totally abandoning them."29

The second legal issue required more concentrated legal reasoning. Mr Hussey, counsel for the plaintiff, cited· a House of Lords case heard by Lord

24 Fifoot, supra note 4, 89. 25 See for example Bishop of London v Ffytche (1783) 1 East 487; 102 ER 188 (Bishop). For a more detailed

discussion on this case see Carleton Kemp Allen, Law in the Making (7th Ed Claredon, Oxford, 1964). 26 Jones v Randall (1774) 1 Cowp 37,39; 98 ER 954,955 [Emphasis added]. 27 Luke, supra note l, 616. 28 Ibid, 619. 29 Ibid.

Luke v Lyde 1145

Chancellor Talbot in 1736, Lutwidge and How v Grey et al,30 as "a foundation"31

for his client's argument. The case apparently stood for the proposition that:

[T]he whole of the freight was due upon the goods sent to Bristol; because the master offered a ship to carry the goods to Glasgow, which was the port of delivery: but as the master declined carrying the other goods to Glasgow (the port of their delivery) they determined that as to them, he ought to be paid only pro rata, as much as was proportionate to his carrying them to Youghall, the place ,where the accident happened.

Mr Hussey further submitted that, pursuant to the Lutwidge case "the contract is not dissolved by the involuntary accident; that the master had his election to carry them to a port of delivery in another ship; and that if he did not, he shall yet be paid pro rata iternis to the place where the accident happened."32

It is evident that there is nothing substantively different about the facts in Luke v Lyde and Lutwidge and How v Grey on the points requiring consideration. Pursuant to a contemporary approach to precedent, the earlier House of Lords decision would have been determinative of the legal issues presented by counsel in Luke v Lyde. Indeed, a modern Lord Mansfield would have been bound to apply the earlier precedent on the basis of stare decisis. However, the case was not presented by counsel, nor accepted by Lord Mansfield as determinative of the issue at law. Rather, the case is referred to as an example (as opposed to authority) of the 'principles' he instinctively 'found' in the common law. The problem was approached as a matter of common sense, the solution lying in a mathematical equation: "The master had come seventeen days of his voyage and was within four days of the destined port when the accident happened. Therefore he ought to be paid his freight for 17 /21 parts of the full voyage for that half of the cargo that was saved."33

However such 'common sense' could not be allowed or expected to appear spontaneously in the mind of the judges. It was important that echoes at least should be heard in the language of recorded experience.34 Accordingly, Lord Mansfield appealed to codes of ancient and contemporary mercantile law to confirm his instinctive solution. The next part of this paper will elucidate and unravel Lord Mansfield's references to codes of the past.

30 See supra note 1, 621. 31 Ibid, 621. 32 Luke, supra note I 621. 33 Ibid, 618. 34 Fifoot, supra note 4, 87.


IV. Sources of Law

From very early times merchants and mariners regulated their dealings by a set of customs and rules known as the Law Merchant, Law Marine or Customs of the Sea. 35 The fundamental feature of the sea-codes was that they did not purport to represent the law of one territory, but the custom of all of the sea. This is suggested by the opening sentence of a prominent sea-code: "Here commence the good customs of the sea. These are the good establishments and the good customs on matters of the sea, which the wise men who travelled over the world commenced to give to our predecessors, who put them into the book of the wisdom of the good customs."36

In Luke v Lyde, Lord Mansfield was sensitive to the idea that maritime law was not "the law of any particular country, but the general law of nations."37

Accordingly, no source was too vast, too insignificant or too ancient to explore. He confirmed his instinctive mathematical solution with reference to Rhodian Laws, the Judgments of Oleron, the Consolata del Mere, the laws of Wisby and the Ordinance of Louis the Fourteenth. The remarkable feature of the codes is the unity of their evolution as a single distinct and continuous body of maritime custom. It appears thus, on closer analysis, that Lord Mansfield was correct in suggesting that all the elucidated maritime codes were "agreeable thereto"38 his instinctive solution.

The original source of maritime custom, which Lord Mansfield aptly refers to as "the ancientest laws of the world"39 is Rhodian Law. This sea-code grew up two or three centuries before Christ in the great maritime centre of Rhodes. It is generally accepted that no authentic text of the Rhodian Code has survived, and thus it is interesting that Lord Mansfield gives as authority for the principle that "the master shall have a rateable proportion, where he is in no fault" articles 27, 32 and 42 of the Rhodian Code.40

The Rhodian sea-code remained pervasive for two or three centuries, until the commercial centre of Europe shifted west to Barcelona. The Code of Barcelona, known as the Consulato del Mar, or Book of Jurisdiction of the Sea, was written in the thirteenth century and first printed in 1494. The provisions of the Consnlato were more diffuse and its details more elaborate than any of the other sea-codes to which Lord Mansfield referred, containing two hundred and fifty short chapters. A papal official describing Barcelona at the end of the fifteenth century, said of the laws: "In almost every maritime city the

35 Thomas Edward Scrutton The influence of Roman Law of the Law of England, IB Rothman, Littleton, 1985). (Scrutton).

36 The Latin translation of The Consolata de! Mere is "Aci commencen !es bones constumes de la mar''. See John Henry Wigmore Panorama of the World's Legal Systems (WW Gaunt, Holmes Beach, 1992) (Wigmore).

37 Luke, supra note 1, 617. 38 Ibid 619. 39 Ibid. 40 Ibid 620.

Luke v Lyde 1147

controversies of mariners and of merchants are settled by them, or by laws derived from them, with the greatest authority; and as formerly men spoke of the laws of Rhodes, now everyone speaks of the laws of Barcelona.""1

The n1aritime code pervasive in 'Nestern Europe was known as the Rooles or Jugements of Oleron. 42 The origin of the code was the outgrowth of a long succession of decided cases in the local Admiralty Courts on the island of Oleron, each paragraph in the form of a ruling on a case.43 It was the laws of Oleron that Lord Mansfield used as authority for his instinctive solution in Luke v Lyde, quoting directly from its first and fourth artides.44 Aside from the fact the code is a written document; Lord Mansfield's particular interest in the laws of Oleron may be explained by geographical conditions. At the ilime the judgment in Luke v Lyde was delivered, the island of Oleron (part of Guienne) was under the English crown, and the great wine trade from Bordeaux to England passed close by the island.-15 Indeed, so closely was the law of Oleron associated with English maritime customs that its authorship used to be attributed to King Richard the Lion-hearted when he returned from the Crusades.46

The Laws of Oleron served as a sea-code for North-Western Europe for several centuries. But the Hansa League'7 of the Baltic had come to dominate northern commerce from Hamburg to Novgorod in Russia." The Hansa Headquarters were at \,Visby, the capital city of the island of Gotland, which lies South-East of Sweden. In the eleventh century Wisby was the commercial trade centre of Northern Europe, holding a population of some twelve thousand merchants and its own unique cmTency. In about 1288 it developed &n influentiaJ international maritime code. The code was compiled for the use and under the direction of prominent merchants and '"was submitted to in an causes relating to sea affairs, and past for just on all the coasts of Europe, from Muscovy to the Mediterranean."'9 It is widely accepted that the Lm~s of Wisby were heavily derivative of the Laws of Oleron. Thus, it appears that Lord Mansfie!_d was correct in stating that "the thirty-seventh article of the Laws of Wisby is to lhe very same purporf'50 as the laws of OJeron.

By the fifteenth century, nations were being organised and the common lav, of the sea was breaking up. This was the period of nationalization of law all over

41 V\Tigmore, supra note 35. 885. 42 Ibid 890. 43 Ibid 891. 44 Luke, supra note 1, 6!9, 45 Ibid, 46 Wigmore. supra note 36, 893. 47 The League was later to become one of Europe's great powers. The League had colonies throughout Europe

and according to Wigmore its rules in its field were more potent than those of a Pope or Emperor, as it could ruin a commercial town by its boycott See Wigmore. supra note 36, 894.

48 Ibid 892. 49 !bid 893. 50 Luke. supra note I, 619.


Europe.51 The Ordinance of Louis XIV established in 1618 is indicative of France's move to national independence. As Lord Mansfield states in Luke v Lyde this code was "collected and compiled under the authority of M. Colbert"52, an influential minister in the French government, as part of his comprehensive plan for the nationalization and codification of all French law. It appears again that Lord Mansfield was correct in stating in that in this code "same rules are laid down"53 : the Ordinance was derived from the established customs of the sea, as handed down in the laws of Oleron.

Lord Mansfield's appeal to foreign codes of mercantile law was not received well by some contemporary commentators. For instance, Junius bitterly stated, "in contempt or ignorance of the Common law of England, you have made it your study to introduce into the Court where you preside, maxims of jurisprudence unknown to Englishmen. The Roman Code, the law of nations, and the opinions of foreign civilians are your perpetual theme."54

However this critique misrepresents the manner in which Lord Mansfield used the sources of law. At no instance in Luke v Lyde did Lord Mansfield ever attempt to substitute ancient maxims for those of the English common law. Rather, he used ancient sources of law as a wealth of principles to guide him upon issues unsettled in England.

V. Procedure

Lord Mansfield made a number of significant procedural reforms to lessen the delay and expense to litigants of his time. During the eighteenth century, a convenient method of isolating a legal issue was to state facts for the opinion of the court after the discharge of the jury. The custom of drafting this statement in chambers enabled lethargic or unscrupulous counsel to adjourn its argument sine die.55 However, Lord Mansfield propounded that he himself would dictate the case and would require its signature by both counsel before the completion of the trial. This practice was explained in Luke v Lyde, where his Lordship stated:56

[H]e took particular care that this should not create delay or expense to the parties; and therefore he always dictated the case to the Court, and saw it signed by counsel, before another clause was called; and always made it a condition in the rule, "that it should be set down to be argued within the first four days of the term.

51 Wigmore, supra note 36, 892. 52 Luke, supra note l, 619. 53 Ibid. 54 Scrutton, supra note 35, 180. 55 Fifoot, supra note 4, 53. 56 Luke, supra note l, 618.

Luke v Lyde 1149

Lord Mansfield also altered the widespread practice of reserving judgments. Soon after he took his place as Chief Justice he neither permitted a second argument nor reserved judgment unless special circumstances convinced him that such a course was desirable.57 It is thus apparent that Lord Mansfield's decision to reserve the judgment in Luke v Lyde was exceptional. Contrary to other cases, Lord Mansfield is not explicit as to his reasons for reserving judgment.58

However one can assume that his Lordship wished to have the time to become learned in the vast sources of the customs of the sea.

VI. The Rule in Luke v Lyde

How then, did Lord Mansfield conceive that the principle he laid down in Luke v Lyde would be used in future cases? Although Lord Mansfield saw the law as being derived from natural principles that underlie cases, it might be that some principles, or at least some expression of them, would become like rules by being established in future case law. Thus, while his Lordship did not treat precedent as conceptually binding per se, he did have a conception of the need to abide by former precedents in the interests of certainty in the law. As he said in a 1782 case, Bishop of London v Ffytche: 59

The object of the law is certainty, especially such parts of the law as are of extensive and general influence, which affect the property of many individuals, and which inflict pecuniary penalties; which create personal disabilities; and which work forfeitures of temporal rights. It was of vast consequence stare decisis; no man could perceive of a contrary practice.

It is apparent in Luke v Lyde60 , Lord Mansfield envisaged that the 'principle' he laid down would become a 'rule' in the future, by its repetition in subsequent cases. Indeed the case was originally heard in the assizes in Devonshire,61 but brought later to London, because his Lordship was62:

57 Fifoot, supra note 4, 36. 58 For an example see Lord Mansfield's express statement "I wish this case to be spoken to by civilians. We can

have no light from our own law. I have been looking ta French Commentary on Colbert's Ordonnance ... " Anthon v Fisher (1783) 3 Douglas 166, 167; 99 ER 594.

59 Bishop, supra note 25. 60 See also Corbett v Poelnitz (1785) 1 TR 5; 99 ER 940 where Lord Mansfield said "the great principle which

the court has laid down is that where a woman has a separate estate, and acts and receives credit as a deme sole, she shall be liable as such" and Rust v Cooper (1777) 2 Cowp 629; 98 ER 1277 where his Lordship said 'the general principle applicable to the present case is this: that a fraudulent contrivance with a view to defeat the bankruptcy laws, is void and annuls the act."

61 The written judgment begins "A special case from the last Devonshire Assizes; reserved by Ld. Mansfield, who went that circuit, last summer. Luke, supra note 1, 619.

62 Ibid 618.


[D]esirous to have a case made of it, in order to settle the point more deliberately, solemnly, notoriously; as it was so extensive in nature ... He always leaned, (even where he had himself no doubt), to make cases for the opinion of the Court; not only for the greater satisfaction of the parties in the particular cause, but to prevent other disputes, by making the rules of the law and the ground on which they are established certain and notorious .... (Additional emphasis)

But how can this view be reconciled with the natural lawyer's notion that judgments or precedents were merely evidence of the law and not the law itself? When Lord Mansfield uses the word 'precedent' he did not mean to say a necessarily positively binding judgment. Rather, he is referring to a judgment or case that is an illustration of the law. Accordingly, a whole line of precedents may be overruled as incorrect illustrations of the right principle or law. The willingness of Lord Mansfield to depart from established precedent under such circumstances is evident from the following passage from the case of Robinson v Bland,63 heard just one year after Luke v Lyde, in which his Lordship stated:

The general practice of associates, in taking damages in these cases is (I am informed) to stop the commencement of an action, and to allow interest no further down. But this practice, however general, is not founded in law, but in mistake and misapprehension, and this will appear very plain, whether it is considered upon the foot of natural justice, or law.

Lord Mansfield's contribution to the development of commercial law principles was suitably described by Buller J in his 1787 judgment Lickbarrow v Mason. 64 After pointing out that, during the last thirty years, commercial law had "taken a very different tum" he said:65

Before that period we find that in Courts of law all the evidence in mercantile cases was thrown together: they were left generally to a jury, and they produced no established principle. From that time we all know the great study has been to find some certain general principles ... not only to rule the particular case then under consideration, but to serve as a guide for the future.

63 Robinson v Bland (1760) 3 Douglas, 166. 64 Lickbarrow v Mason (1787) 2 TR 63. 73; 100 ER 35. 65 Ibid, 74.

Luke v Lyde 1151

VU. Conclusion

This article has attempted to show that the significance of Luke v Lyde lies not in the precise ratio of the case, but instead in the more subtle aspects, the allusions and references. Most fundamentally, the case is instructive of an approach to case law reasoning that has been neglected in recent years. Lord Mansfield was ready - more ready than any of the other great lawyers of his day - to insist that cases must be interpreted and decided in the light of principles. The principles were to be 'found' in a variety of sources - ancient and contemporary and applied in accordance with the substantive justice of the case. H 'Nas this approach to case law reasoning that enabled Lord Mansfield to develop English common favv and bring it into harmony with the conditions of the modern world. Indeed, the fact that English law was able to adapt its principles to the needs of a new age, and yet remained" stable and precise set of principles, can be attributed to the v✓ork of Lord Mansfield. For this reason, it is no overstatement to describe Lord Mansfield as the "founder of commercial law" 66

66 Fifoot, supra note 4, tl7.

1152

The Great Witch Hunt: The Persecution of Witches in England, 1550 - 1660

Anna Garland*

I. Introduction

During the early modern period of European history, witchcraft was seen as a very real crime and those convicted of engaging in it often suffered the death penalty. During this time thousands of people, predominantly women were tried for the crime of witchcraft, and approximately half of these were executed.

Witchcraft as a crime was focused on when there was tension and disarray in society. There have been three significant peaks in the persecution of witchcraft. The first wave of persecution followed the Crusades. Norman expansion into the East brought Europe into contact with Eastern religions, resulting in a dilution of conventional Christian beliefs and fear of heretic influences. The second wave of persecution followed the Black Death, which swept through Europe in the fourteenth century. Satanic witchcraft was believed to have been responsible. The third great wave of witch hunting commenced in the sixteenth and seventeenth centuries. Early modern Europe was wracked by the prolonged turmoil and crises of the Renaissance and Reformation. This was accentuated by sectarian rivalries, and religious intolerance escalated.

It should be noted that much of what has been written about the witch-hunts is incorrect. Earlier historians based their works on inaccurate analysis or folklore. Many historians suggested the Church was responsible for spreading much of the hysteria surrounding the practice of witchcraft. However, modern research has quite conclusively exposed this theory as a myth. Modern historians, with the benefit of comprehensive regional studies, have generally identified that preconditions for a witch-hunt relied more upon cultural, legal and even geographical circumstances than confessional ones.

The distribution of the witch-trials throughout Europe was highly erratic, and some of the most enormous persecutions - for example, the panics of Wurzburg, Germany, occurred adjacent to areas that had virtually no trials whatsoever. Geneva, the heart of Calvinism, had an equally appalling record of persecution as that of the Catholic territories. 1

* BA/LLB. The author wishes to acknowledge, with gratitude, Dr David Williams of the Uuiversity of Aucklaud, Faculty of Law for his support, wisdom aud sense of humour in the preparation of this article. Briggs, Witches and Neighbours: The Social and Cultural Context of European Witchcraft (1996).

The Great Witch Hunt 1153

In England, heightened tensions brought about by the Civil War, 2 the consequent dllution of local authority, and the ever-present panic about the forces of darkness and the apocalyptic struggle being waged between God and the Devil saw witchcraft re-established as a live issue in the 1640s, after a decline in the 1630s,

This article seeks to exm:nine the persecution of witches by focusing on the sixteenth and seventeenth century witch-hunts in England, in particular the East Anglia witch-hunt which proceeded in earnest from 1642 - 164-7, in an attempt to illustrate how the prevailing social, legal and conceptual influences of the period combined to produce the most notorious witch-hunt in English history.

Ideas about witchcraft and magic had long been present in European culture. However, it was the vvitch trials in Switzerland in 1427 that seems to have established the bellef that 001itches vvere magical practitione1s, owing their evil pmvers to a pact they had made 0dith the Devil.3 As the fifteemh ceatury progressed this notion developed a1.1d became 110.or,oe_; complex. n becarne accepted knowledge among theologi3,11s that witches were not isolc,ted individuals dabbling in the occult but rather members of a demonic, anti-Christian hereticr,l sect.4

This fofmative period in tl1e ,vitch craze vvas symboliz°"d by l:wo publications; the first being the Papal Bull of 1484 in which Pope fonocem VHI vigorously denounced the e vH works of witches, and provided papal support and encouragement to wltch-hunting. Buildir:g upon this sentiment, 1the Mallius Afaleficarum5 (The Hammer of Vi/itches) vvas subsequenily published by Dominican inquisitors Heinrich Kramer and Jacob Sprenger in 14870 These 't'NG

documents built upon the existing secufar 11otilon that. witches v,ere a se1ious physical threat to Christianity due to their performance of maleficia, the arguments cloaked in vaguely academic dress.

( a) The Malleus ~Maleficarum

The Malleus Maleficarum detailed an exposition of witchcraft and ::t code of procedure for the detection and punishment of witches, Even by modem standards, it was a cruel and vicious book. It advocated stripping an accused

2 1642-1648, Sharpe, Witchcraft in Early Modem England (2001).

4 Ibid 4, 5 The Malleus Maleficarum outlined methods of torture and other means of attempting to _procure a witch to

speak,


witch before starting to question her, to search for an instrument of witchcraft sewn into her clothes. It went on to suggest that if the witch could not be convinced to confess, that he or she be shown the implements of torture. The Malleus Maleficarum became a handbook for the guidance of judges and magistrates, running into 14 editions between 1486 and 1520.

Many Christian scholars and theologians had previously thought witches to be mere folk tales and superstitions. However, the allegations contained in the Malleus Maleficarum were considered to be the irrefutable truth and silenced dissent. The essential notions of witchcraft were thus well in place by the end of the fifteenth century. The Malleus Maleficarum caused the image of the witch to become firmly established in the elite's consciousness.6

As the first shock waves from the Reformation hit, publication of the Malleus Maleficarum was actually followed by a slump in witch-hunting at the beginning of the sixteenth century. This trend was reversed in the post-Reformation period. From around 1550, the persecution skyrocketed, reaching its height between 1580 and 1660 when witch trials became common throughout most of Western Europe. In central Europe the trials were concentrated in Germany, Switzerland and eastern France, where rival Christian sects sought to impose their views on each other, and in Calvinist Scotland. Countries such as Italy and Spain dealt with accusations of witchcraft by the Inquisition7 and consequently, witchhunting was uncommon.

2. Witch-Beliefs

Witch-beliefs existed in two separate mind sets - that of the intellectual and that of the peasant. The construction of witch-beliefs as they were in the sixteenth and seventeenth centuries was a composite of the differing world views of the masses and the intellectual elite. The great European witch-hunt could not have taken place until the members of the ruling elite, particularly the individuals controlling the operation of the judicial machinery, subscribed to the various beliefs regarding the diabolical activities of witches. 8

( a) Maleficia

In all witch believing societies, witches were regarded as individuals possessing an extraordinary or mysterious power to perform evil deeds. These acts came to be referred to in Latin as maleficia. The essential characteristic of

6 Klaits, Servants of Satan: the Age of the Witch Hunts (1985). 7 In Spain and Italy the Inquisition prosecuted individuals for magic and superstition, on the grounds that such

practices involved either the adoration of the Devil or the abuse of the sacraments, and thus were classified as "manifest heresy". It is worth noting that the Inquisition rarely employed torture, and adhered to strict procedural rules, thus possibly explaining the low incidence of conviction.

8 Levack, The Witch-Hunt in Early Modem Europe (2nd ed, 1995) 28.


these deeds was that they were magical, rather than religious; and harmful, rather than beneficial.

At a local level, and for the masses, the primary fear was maleficia. It was the alleged performance of maleficia which lay at the heart of many accusations of witchcraft. However, at the intellectual level, it was the diabolical witches' Sabbath which was the aspect of primary importance in witch-belief.

(b) The Cumulative Concept

The cumulative concept was subscribed to by the intellectual and educated of early modem Europe. It incorporated three fundamental beliefs with respect to witches, which had evolved over time.9 Each of these components had an individual history and was synthesised to form a core belief from which the European witch-hunts stemmed.

The first was the essence of witchcraft - the diabolical pact which had been entered into with the Devil. Inherent in this concept was belief in the existence of the Devil himself. The second component was participation in the witches' Sabbath, or the collective worship of the Devil and engaging in blasphemous, amoral and obscene rites. The third major component of the cumulative concept was the belief that witches could fly (night flight). The belief in night flight differs from the other components of the cumulative concept, in that it originated from the beliefs of the peasant population. The other elements were contributions of the intellectual elite.

One popular witch-belief closely related to flight that was never fully integrated into the cumulative concept of witchcraft was that of metamorphosis.

( i) Pact with the Devil

The essence of witchcraft was the explicit face-to-face pact a witch made with the Devil. This pact not only gave the witch the power to perform maleficia but also initiated her into the Devil's service. The conclusion of the pact was a formal ceremony which took place after the Devil had appeared to the witch, usually as a handsome, well dressed man and enticed her with the promise of material reward or sexual pleasure. The witch agreed to reject her Christian faith and then paid homage to the Devil either by bowing down before him or by kissing his buttocks. The Devil would imprint a distinctive mark on the witch's body, usually in a concealed spot, as a sign of her allegiance. He would then give her careful instructions for the performance of her maleficent work. 10 ·

Scholars and theologians had not needed to invent a new understanding of the physical world to explain diabolism, as it was able to be incorporated within

9 Ibid 29. 10 Ibid 27.


the intellectual framework that already existed. Witches were servants of the Devil because it was only he that could give them these strange, but explicable, powers.

The pact formed the heretical element of witchcraft, the renunciation of the Christian faith, and enabled the Church to punish witchcraft as heresy.

(ii) The Devil

Naturally there could be no pact with the Devil without a Devil. The Devil was primarily a character of the New Testament - having previously been referred to as Satan throughout the Middle Ages. The Devil was gradually integrated into the doctrine of the fall of man, original sin and man's redemption through the crucifixion of Christ. He was the epitome of evil and Christ's ultimate adversary. The Devil however still held his power at the will of God. The world had come to be perceived as the battlefield of a constant conflict between the Kingdom of Christ and the Kingdom of Satan.

(iii) The Witches' Sabbath

Having made a pact with the Devil, witches were believed to gather periodically with other witches to perform a series of blasphemous, obscene and heinous rites. At these meetings the Devil would appear in various forms. The witches would often sacrifice children to the Devil, dance naked and engage in sexual intercourse with the Devil and other witches.

The witches' Sabbath was perhaps the most important element of the witchbeliefs in contributing to the scale of the European witch-hunts. Without the idea of mass meetings there would have been no witch crazes to catalyse hunting, as hunting involved the search for a witch's confederates. It was the witches' Sabbath that made witchcraft such an horrific crime. It played on the fear that large organised groups could overthrow the established authorities if they so desired.

(iv) Night Flight

Closely associated with the pact and the witches' Sabbath was the belief that witches could use the power of the Devil to fly through the air. The Devil is important in terms of the concept of flight, as the air was known to be the Devil's domain. 11 Demons were confined to the air above the earth, making flight their natural form of transportation. If witches submitted their soul to the Devil then the air would become their domain through which to travel.

11 Indeed, it was a prevailing belief at the time that disease was disseminated through the air via evil vapours (with reference and thanks to Dr David Williams, University of Auckland).


Flight provided an explanation for the ability of witches to attend secret nocturnal gatherings in remote areas without their absence from home being detected. However, belief in the witches' Sabbath could exist independently of the belief of night flight, as it did in Scotland.

(v) Metamorphosis

The ability of witches and demons to assume another form was known as metamorphosis. This belief was already substantially present in the peasant tradition. Among the elite the concept was regarded with scepticism and as heretical; it broke the natural law of God and was believed to be an illusion. Accordingly, this feature never became fully integrated into the cumulative concept with respect to witches, but remained confined to demons.

(vi) Familiars

I have heard old Beldames talk of Familiars in the shape of Mice, Rats, Ferrets, Weasels, and I wot not what, that have appear'd, and suck'd, some say, their blood.12

A familiar, or imp, was a witch's attendant subordinate demon in the form of an animal. Familiars drew nourishment by suckling blood from the witch - from Devil's marks, her breasts, or insensitive parts on her body. In attaching itself to the witch's body the familiar would leave a bruise witch-hunters referred to as a "witch's mark". 13 Sometimes, rather than appearing as a cut or a bruise, it looked more like an extra nipple, or teat.

Familiars had their own names, which they communicated to humans through speech, and they behaved in ways that no natural pet was believed to. They ran errands, brought messages and aided in Devil worship, therefore assisting a witch in performing her maleficia.

The notion of the familiar was primarily confined to England from 1566 onwards, although occasional cases did arise in other countries. 14 Familiars and witch's marks provided strong evidence in many of the English trials, and many people were executed on the basis that they kept animals or had a strange mark on their body.

Familiars were often described in supernatural forms, but no unnatural creature was ever produced as evidence in a courtroom. Similarly, there were no

12 Rowley, Dekker, Ford, The Witch of Edmonton (1658) 16. 13 There is a distinction between a witch's mark and a Devil's mark. The former is the result of the suckling of

familiars; the latter was imprinted by the Devil as a sign of her allegiance to him. It was discovered by intimately searching the accused witch and "pricking" the mark to see if it would bleed.

14 Donaldson, The Role of the "Familiar" in English Witchcraft Trials (1995) htq;,://home.earthlink.net/~tad5/familiar.httn (last modified 17 August 2003).


credible witness accounts of familiars undertaking any act not otherwise attributable to a natural animal.

The English trial records depict two possible means by which a witch acquired her familiar; either inheriting the animal from another witch, or the animal having approached the witch of its own accord. The notion of an inheritance system resonated with the common belief that witchcraft stayed in a particular family and was handed down from generation to generation.

III. Sixteenth and Seventeenth Century England: Social Context

In the sixteenth and seventeenth centuries people believed as much in the supernatural powers of the Devil as they believed in the supernatural powers of God. Just as priests and bishops were seen as God's emissaries, witches were seen as agents of the Devil. The sincere belief in harmful witchcraft was endemic and witch-beliefs were part of people's mindset. Ordinary villagers inherently believed that individuals existed who were capable of employing harmful magic to damage ,livestock or to murder their children.

Early historians previously propounded a firm distinction between the English experience of witchcraft and that of Europe. However, it subsequently became clear that the English experience of witchcraft and witch-hunting was not unique, but rather a variation on a number of themes found throughout Europe.

Several large-scale demonological treatises appeared in England between 1590 and 1627.15 These texts provided a medium more accessible than a fullscale theological tract and afforded the widespread dissemination of witchbeliefs. The authors of these works created a distinctive style of English demonological thought, but demonstrated awareness of the writings of their Continental counterparts. This English style was simply a broader Protestant approach to witchcraft and demonology.

1. The Influence of King James I

When Elizabeth I died in 1603, James VI of Scotland also became James I of England. 16 James played an important role in the development and belief of witchcraft, encouraging belief in witches and witchcraft and increasing the punishments for convicted witches. James has often won the dubious acclaim of being one of the great European witch-hunters of the sixteenth and seventeenth century period.

15 The more notable of these were Henry Holland's A Treatise Against Witchcraft (1590); William Perkins' A Discourse of the Damned Art of Witchcraft (1608); and King James VI and I's Daemonologie (1597).

16 King James VI and I ruled both Scotland and England nntil his death in 1625.


James was brought up under the control of the Presbyterian clergy and was an intelligent man, who was fascinated by witchcraft. He came to believe in and fear witches around 1590 when a conspiracy against his life was revealed. He was convinced that he, as a divine right monarch, was the chief enemy of Satan. On his return to Scotland in 1590 with his new wife, Princess Anne of Denmark, James encountered storms at sea. These were subsequently blamed on a group of North Berwick witches. An attempt was made to also implicate the King's cousin, Francis, Earl of Bothwell, who had some claim to the throne should James die without an heir.

(a) Proof of witch-craft

Agnes Sampson was arrested following an accusation made against her, and she eventually confessed under torture to being a witch. Agnes confessed that she and some other 200 witches had met the Devil at the Kirk of North Berwick, and that he had instructed the witches to throw a christened cat into the sea in order to raise a storm. Others had also been implicated, including John Fian, a schoolmaster, who was alleged to be the leader of the witches. He was brutally tortured in order to extract his confession. 17

James personally interrogated the witches and initially found their confessions exaggerated, remarking that "they were all extreme liars". He subsequently changed his mind when Agnes Sampson took him aside and relayed to him the exact words of his conversation with his new wife on their wedding night. This was viewed by James as irrefutable proof that witchcraft had been performed against him. He was convinced that they had been trying to kill him by raising storms, working on wax images, and by manufacturing poison. 18

(b) Outcomes of the trial

Three witches were tried and sentenced to death. There was insufficient evidence to convict the Earl of Bothwell, and he was banished to Italy. The trial had far reaching effects. James VI playing a prominent part in the proceedings, gave credence to the existence of witchcraft and set the standard for later trials.

James VI was so concerned about the threat witchcraft posed to himself and his country, he undertook to study the subject in some depth. He published his results in the book, Daemonologie. This demonological text was intended to outline the correct way to detect and punish witches: 19

17 Hole, Witchcraft in England, (1977) 15. 18 Ibid 15. 19 King James I, Daemonologie, (1597) 19. Unlike some of the other works published during his lifetime, James

published this text under his own name.


The water test: The suspect is taken to the nearest pond, naked or lightly dressed. He or she is tied left foot to right hand to right foot. If the person floats when thrown in the water, he or she works with Satan!

Throughout his text, James employed his religious knowledge, acquired from the recently translated Bible, to prove witchcraft existed.20

James aimed to ensure his subjects took the threat of witchcraft as seriously as he did. Daemonologie became a textbook for subsequent witch-hunters.21

Following his ascension to the English throne, James repealed and replaced Elizabeth's Witchcraft Act of 1563; his 1604 statute demanding more severe penalties for witchcraft confessed or proven. The punishment for anyone suspected of practicing witchcraft was death. This inflamed and encouraged a climate of torture and false accusations.

(c) King James's Involvement in the Witch-craft Trials

James participated directly in the interrogation and trial of witchcraft suspects. However, while James clearly genuinely believed in the existence of practitioners of black magic and the diabolical conspiracy, he remained generally sceptical. He expressed a cool attitude towards the witch-hunt and spent some time exposing the fraudulent claims of his subjects in their alleged performance of magic. Appreciating that many cases were false, James urged the judiciary to be extremely cautious when dealing with prisoners committed for trial on evidence of bewitching.

2. Political Framework

The period leading up to, as well as during the Civil War was characterised by political disruption and tension, and this most certainly impacted upon society. Charles I succeeded to the throne in 1625, following the death of his father. Embracing the doctrine of the divine right of Kings, Charles considered himself above the law. Following repeated disputes with Parliament for failing to vote supply, Charles determined to rule without it, and did so from 1629 to 1640. Throughout this time, Charles was obliged to raise income from obscure and highly unpopular measures such as impositions, forced loans, the sale of commercial monopolies and Ship Money.

To add to an increasingly volatile political situation, Charles entered the House of Commons in 1642 and attempted to arrest five members of Parliament. Civil War broke out shortly thereafter between the Cavaliers (Royalists) and the Roundheads (Parliamentarians) and raged for six years. Victory went to the

20 For example, at Exodus 22:18: "[p]ut to death any woman who practices magic". 21 Indeed, Witch Finder General Matthew Hopkins refers to Daemonologie in his own work, The Discovery of

Witches.


Roundheads, under Oliver Cromwell, in 1648. Charles I was tried and executed in 1649. England was then declared a Commonwealth and governed as a republic, with Cromwell as Lord Protector. It was with the Restoration of Charles II in 1660 that attitudes towards witchcraft began to shift. 22

IV. Witchcraft and English Law

1. Statutory Framework

Statutes throughout Europe defined the crime of witchcraft. These varied from region to region, so the crime of witchcraft was not uniform in nature between countries.

In spite of the occasional trial of witchcraft in the secular courts, witchcraft was not legally defined as a crime in English law until 1542 by statute 33 Hen. VIII, cap. 8.23 The accusation of witchcraft was not new, but it was now recognised by the legal authorities as a crime and could be prosecuted in court. There is, however, no evidence that this, the harshest of the English witchcraft statutes, was ever enforced. It was subsequently repealed in 1547,24 during the reign of Edward VI, along with other criminal legislation of Henry VIII's reign.

( a) Re-establishing witch-craft as a crime

The important Act came in 1563, with statute 5 Eliz. I, cap.1225 , which reestablished witchcraft as a crime. In this statute, witchcraft was defined as a crime in terms of maleficia, rather than as a demonological alliance between human beings and the Devil. Under this legislation, the killing of humans by witchcraft was punishable by death. Maleficium such as injuring people or animals, or damaging goods by witchcraft, attempting to do the same, using witchcraft to find lost or stolen goods, money, or treasure, or using witchcraft to provoke love or for any other purpose were punishable by a year's imprisonment, with four spells on the pillory during that time for the first offence, and death for the second offence.

(i) King James Statute

Elizabeth's statute was repealed and replaced by a more severe piece of legislation with James VI and I's 1604 Act. This statute made injuring people a capital offence on the first conviction, reasserted the 1563 Act's clause making

22 This is discussed more fully in a subsequent section, The Decline of Witchcraft. 23 Modern English version contained in Statutes of the Realm, Vol iii, 837. 24 Repealed by statute 1 Edw. VI, cap. 12. 25 Modern English version contained in Statutes of the Realm, Vol iv, Pt I, 446.


conjuration of spirits a capital offence, and added the curious offence of using dead bodies, or parts thereof, for witchcraft or sorcery. This was also punishable by death.

The 1604 statute introduced the concept of diabolism as well as Continental demonology into English law. James had been introduced to Continental concepts of witchcraft at the Danish Court, following his mairiage to Princess Anne of Denmark in 1589.

The belief in diabolism was a concept of the intellectual elite. It appeared in the statute simply because the elite drafted the legislation, and it thus reflected their concerns. The more fanciful demonological aspects of witch-belief, such as night flight, were not present in the English statutes, as the transmission of demonology beliefs from the Continent had been partial and incomplete.

James' statute was more specific than its predecessor and most likely sought to include familiars. It specifically addressed not just the conjuring or invoking, but the feeding, of evil spirits: 26

That if any person or persons . . . shall use practice or exercise any Invocation or Conjuration of any evil! and wicked Spirit, or shall consult covenant with ente1taine employ feede or rewarde any evill and wicked Spirit. ...

The 1604 stamte remained in effect until its repeal in 1735. The 1735 legislation repealed both previous Eng!ish statutes against witchcraft. as well as the Scottish Statute of 1563,27

A number of courts could try witchcraft The ecclesiastical courts investigated sorcery, and many fortune tellers and cunning folk were presented before them. In the secular courts, the crime of witchcraft, as defined in the 1563 and 1604 statutes could be tried at quarter sessions - courts held four times per year for each of England's counties, or in the local borough courts. These courts were presided over by individuals with varying degrees of legal training or expertise - frequently none at a]l.28

For the most part, cases of malefic witchcraft were tried at the assizes, as they constituted an effective method of bringing centrally directed justice to the localities, For the purposes of the assizes, England's counties were grouped into six circuits. Twice a year, in January and mid-summer two judges were allocated to each of the assize circuits and sent out from Westminster to try criminal cases in the provinces.29

26 Witchcraft Act 1604. 27 Following the Act of Union, Scotland retained a separate legal system but had no separate Parliament. The Scottish

MPs sat in London rather than Edinburgh. 111ere was considerable anger from some quarters in Scotland that the Parliament in London was repealing so essential a piece of legislation as the Act against witchcraft.

28 Sharpe, supra note 3. 23-24. 29 Ibid 24.


The assizes were presided over by experienced and senior judges who were culturally distanced from the world of village squabbles that so frequently formed the context for accusations of witchcraft. As an added protection, an unwritten convention existed whereby judges could not ride the circuit in which their main residence was located.30

3. The Criminal Justice System

By the time the witch-hunts began in earnest, England was the only country in Europe which had not incorporated at least some of the features of inquisitorial procedure into its central legal system.31 Unlike most territories in western and central Europe, England did not employ or sanction torture as a normal part of the criminal justice process.

On the Continent, officers of the court possessed both the right to initiate legal proceedings and determine their outcome. Judges in England could not instigate a trial, but had to wait for an accusation to be made. Furthermore, England depended upon juries to establish proof and determine the outcome of proceedings. Members of the jury came from within the community, were not legally trained, and were expected to employ the previous knowledge they had of the parties involved when reaching their verdict.32

Evidence at trial was provided by the accusers, watchers, searchers and interrogators. One of the most important issues the jury had to consider was whether the accused had a motive for witchcraft. Important consideration was also given to whether the accused had any prior reputation for maleficia.

The Witchcraft Act of 1563 coincided with new legislation enabling witnesses to be compelled to attend trials. The statute also rendered perjury -effectively, the alteration of a text - a crime. Statements were given on oath. Without an oath, magistrates would not regard a case as seriously established. Unusually, testimony of very young witnesses was permitted in witchcraft cases. This was an exception to the rule, as people under the age of 14 years were deemed unable to understand the importance of an oath and the nature of the truth.

It should be noted that during this period, a trial was only one of the possible methods of resolving cases of witchcraft. Alternatives included the employment of doctors, Godly ministers and counter magic. A legal trial was often a last resort because it was an expensive process.

30 Ibid 24. 31 Levack, supra note 8, 74. The Star Chamber did, however, employ an inquisitorial process. The Star Chamber

was formed by Henry VII in 1487 to pass sentence on those too powerful to be dealt with by an ordinary court or to decide on cases too complex to be understood by what were deemed uneducated juries. Its interrogation methods included torture, mutilations and imprisornnent. It was abolished in 1641.

32 Ibid 73.


V. Who Were the Witches?

A study of records of the sixteenth and seventeenth century witch trials reveals a "typical" accused - marginal, of poor reputation, and low social status - the kind of person viewed most likely to succumb to diabolical temptation in order to improve their situation.

1. Gender

The accused were principally women. However witchcraft was not a genderspecific crime and men were not exempt from accusation. There were a surprising number of men labeled as suspects, often the husbands of witches. When the witch-hunts became indiscriminate at their peaks, so did the issue of gender distinction.

The prototype of a witch in ancient and medieval culture, literature and art was predominantly that of a female. Women were believed to be morally weaker than men, and thus more likely to succumb to temptation from the Devil. Women were seen as intellectually inferior and superstitious and were also viewed as possessing insatiable sexual passions. Customary roles women held in society were seen as giving them more opportunity for witchcraft - cooks could gather herbs and easily poison others. Wise women used herbs and ointments for their cures - those who could cure, could also harm. The wise women who used magic as a means of healing came to be regarded as witches during the witch craze, and the distinction between 'white' magic and 'black' magic found in most societies began to disappear at the magisterial level.33 White magic, however, continued to remain important at the local level, as it was used to ward off the effects of maleficia.

Women who undertook the role of midwife were blamed for the death of newly born infants. As about one fifth of children died at birth or in infancy, this charge was not uncommon.34 Midwives would also be seen out at night traveling to attend a lying-in and this could be construed as her traveling to attend a witches' Sabbath, which only took place under the cover of darkness.

2. Age

"Witches are women which be commonly old".35 The majority of accused witches were aged over 50. This is attributed to a number of reasons; often people were not accused until suspicion of them had been mounting for some time. Older people regularly manifested signs of eccentric or anti-social

33 Levack, supra note 8, 138. 34 Ibid 139. 35 Scot R. The Discoverie of Witchcraft (1584) 5.


behaviour. It was believed that because older people were less powerful they were more likely to use sorcery as a means of protection or revenge. Senility was common, and those who suffered from it were more likely to confess to crimes of witchcraft.

There was widespread recognition that men were both less sexually ardent and capable as they grew older, whereas women allegedly became even more potent. It was believed older women were not as easily able to find sexual partners and were thus more susceptible to temptation by the sexual advances of the Devil:36

Underlying the depiction of the old, sexually voracious hag was a deep male fear of the sexually experienced, sexually independent woman ... There was much more to be feared from the sexually experienced, mature woman, whose passion had not subsided, especially if she was no longer married and no longer able to conceive a child.

Children were also victim to witchcraft accusations. When the process of naming one's accomplices got out of control, children were often accused. It was believed that a tendency towards maleficia was inherited or learned from the parents. Children would often accuse themselves as a means of getting attention, or simply as a result of their own fertile imaginations. In the Basque witch-hunt of 1610-1614, where witches were given freedom to confess with impunity, more than 1300 out of the 1800 who confessed were minors.37

3. Married status

In most regions, the percentage of accused witches who were unmarried ( either widowed or had never married) was higher than the percentage of those accused that were married. Among unmarried females, widows and elderly spinsters were the most likely to suffer an accusation. In a patriarchal society, the existence of women who were subject neither to father or husband was both unconventional and a source of concern. With no sexual partner, it was inferred that single women were also more likely to be seduced by the Devil in the guise of a man. Most unmarried women were also very poor and therefore thought more likely to resort to sorcery to increase their fortunes.

Married women could also be accused however. Conflicts between a woman and her spouse or children would often give rise to accusations of witchcraft. Married women also often became embroiled in conflicts over her husband's land, rents and labour. Many of these disputes led to accusations of witchcraft. The naming of an antagonist's wife as a witch would be most attractive in the absence of a legal mechanism with which to resolve the dispute. Similarly,

36 Levack supra note 8, 143. 37 Ibid 145.


political motives could come into play when members of town councils accused their rivals or their wives.

Accusing someone of witchcraft afforded an expression of hostile feelings which did not have any other socially approved means of expression - violence or legal action not being acceptable by society.

4. Personality

While not conforming to one single personality profile, witches often exhibited certain behavioural characteristics which point to why they attracted accusations of witchcraft.

Witches were often described as sharp-tongued, bad tempered and quarrelsome - traits that naturally resulted in disputes with their neighbours.38

Witches were often the village scolds, prone to cursing, an act easily interpreted as an act of sorcery.

Accused witches certainly had vivid imaginations, as their detailed confessions often revealed. Witches were reputedly religiously and morally deviant; they were, by definition, intrinsically evil creatures.

The witch of the early modern period was best described as non-conformist. The witch was not a foreigner or stranger in the community, but was hardly a typical villager. Female witches often defied contemporary standards of domesticity and provided the antithesis to the notion of the good Christian wife and mother.

5. Social and economic status

The sixteenth and seventeenth century witch-hunt occurred at a time of general economic decline and dramatically increasing population, with poverty becoming more severe and widespread.

The majority of alleged witches were from the lower levels of society, often living at the margin of subsistence. Poorer people were the weakest and most vulnerable members of society and were believed most likely to make pacts with the Devil in order to improve their economic situation. Being dependent upon the community and reliant on the charity and alms giving of others, poor people easily aroused resentment and (when charity was not forthcoming) guilt among their neighbours.

However, the wealthy were not immune from accusation. Wealthier witches were accused in connection with a real or imaginary political conspiracy; especially at the height of the witch-hunt, when accusations became less discriminate. Another motive for accusing wealthy and prominent persons was the desire of either relatives or magistrates to acquire that witch's property upon conviction.

38 Ibid 152.

. I


VI. Anatomy of a Witch-Hunt

Witch-hunts did not start spontaneously. A private citizen, a group of villagers, or a magistrate would start the process by accusing or denouncing someone, or by citing a person who was rumoured to be a witch.

The witch-hunt would begin with a single case, but during the course of the trial a confession together with a list of the names and accomplices the accused had seen at the witches' Sabbath would be extracted.

In most cases, the catalyst was a personal misfortune that a person and their neighbours interpreted as an act of maleficent magic - the sudden death of a child or family member, the contraction of a disease, the loss of a farm animal, sexual impotence or romantic failure.

1. Accusations: Witches and Neighbours

Many witch trials were provoked, not by hysterical authorities or fanatical clergy, but by village quarrels among neighbours.39 Charity and mutual assistance were central to the concept of "good neighbourliness" in early modern society. Customary charity included both the giving of alms as well as the lending of tools and other such items to a neighbour. Those seeking charity were not always the lowest members of society, but also those who occasionally required the help and assistance of their neighbours. This help was provided in the spirit of mutllal help and community - when times were easier the favour would be remrned.

Refusal of charity was an offence which broke unwritten rules of social etiquette. If charity was refused or an argument ensued it was not uncommon for curses to be cast in anger. Those who refused charity felt guilty and expected some manner of redress from the aggrieved party. Any form of misfortune which befell the refuser would immediately be linked in their mind to the person whom they had refused. Anything from a cow failing to produce milk to a death in the family could lead to an accusation of witchcraft. When the connection to the aggrieved party was made, the refuser ceased to be in the wrong. They transferred their guilt to the aggrieved party who, through redress, had not only broken the rules of etiquette but also the law of the land, therefore their offence was greater .

39 Modern thinking on fuis point was reshaped by historians in the early 1970s. See Thomas, Religion a.nd the Decline of Magic: Studies in Popular Beliefs in Sixteenth and Seventeenth-Century England (1971); and Macfarlane, Witchcraft in Tudor and Stuart England: A Regional a.nd Comparative Study (1970). These works conclnded that accnsations of witchcraft during this period were not set in motion by judges or clergymen, but were attributable to interpersonal tensions between villagers, often brought to a head by the refusal of charity. This model is known as the Thomas-Macfarlane paradigm.


England's only mass witch-hunt occurred in East Anglia in 1645-1647. In the winter of 1644 Matthew Hopkins, became alarmed by v,hat he percei~ved to be a local prevalence of witches. His concerns struck a responsive chord with mm1y in the area, and led to the prosecution of 36 women, 2,bout half of whom were executed, at Chelmsford in July 1645. This marked the debut of a short, but vicious, caTeer as self-appointed "Witch Finder General". This subsequent crusade resulted in a total of 250 individuals being tried as witches; in excess of 100 of those being hanged.

Ivlatthew Hopkins is believed to be the son of J:1mes Hopkins, a Purit::m l\1inisrer of Wenharn in Suffolk. n is estimated Hopkins 'vvas born between I 619 and 1622, indicaring he was in his early twenties at the time of the witch trials.46

Hopkins is believed to have been well educared and to have hod some form of legal training, but held no formal qualification. By the early 1640s he had moved from Ipswich to Manningtree and ovrned property there, including an ir,terest ii1 the Thorn Inn in the adjacent parish of },1istley. H was there he is said to have examined the first suspect wiJches.

Lt is not certain what motivaced Matthe,N Hopkins in his zealous campaign. Historians have represented this as financial greed or puritan enthusiasm, but neither claim has been wholly substantiated. Hopkins was most certainly paid for his v,1itch-hunting campaign.47 Some accounts detail this payment as being modest, while others report it as being financially lucrative, Hopkins having been paid varying sums by each village - £6 for cle&.nsing Aideburgh, £ 15 foT cleansing King's Lynn, and £23 for cleansing Stowmarket.48 The average daily wage during this period was sixpence.

Hopkins' ideas about whches appear to have been influenced to sorne degree by Continental thinking and he is believed to have been a mm1 of deep religious, puritan ideals, He makes reference to Y.ing James rs text Daemonologie i_n his own pamphlet, The Discm;ery ofWitches.'9 Hopkinf beliefs reflect the prev2ciling intellectual thinking of the period, as he v,1as convinced that all 'Nitch1:cG made a satanic pact with the Devil :J.nd then received their familiars or imps with which to do the Devil's work.

46 Deacon, lvfattheiv Hopkins: H!itch Finder General (1976), 58. 47 Hopkins, The Discovery of \iVitches (1647), answer to qu.erie 14. Evidence of payment crnnes both from

Hopkins' own tract and accounting entries in Aldeburgh, Stowrnarket and King's Lynn parish records. 48 Deacon, supra note 46, 171. 49 Hopkins, supra note 47, m1s\ver to Query 10. This pamphlet was written in fVfay 1647, in response to growing

criticism of Hopkins' m.ethods . .It is discussed further in this section.


In his crusade to purge East Anglia of witches, Hopkins did not operate alone. His main associate was John Stearne, a man in his 30s, a settled householder, married, with property in East Anglia. While Hopkins was able to organize, direct, analyse and ensure the success of the witch campaign, Stearne provided the relentless, fanatical element.

Interrogation

Matthew Hopkins and his assistants perfected a system of examining witches that shed no blood and remained within the confines of English law - where, in theory, the use of torture was forbidden. Hopkins was very careful in describing these techniques to the villages he traveled to. The primary means of securing a confession were "watching", "searching" and "walking".

Hopkins offered three means of distinguishing witch's marks from natural marks, which all people have. First, a witch's mark was to be found in an unusual place, for example "bottome of the back-bone".50 Secondly, "they are most commonly insensible, and feele neither pin, needle, aule, &c., thrust through them".51 The third means of detection involved familiars. Hopkins would keep strict surveyance of a witch for 24 hours, making sure none of her familiars came and sucked blood from the hidden nipple on the witch's body. According to Hopkins, the "teat" in that time would noticeably fill up with fluid and become visible. Thus, a witch who had a familiar also had a mark, and it was just a matter of finding it.

2. The Chelmsford Trial

Matthew Hopkins began his successful career in 1644 after a Manningtree tailor, John Rivet, had consulted a "wise woman" about a mysterious illness that had afflicted his wife. He was told that she had been bewitched by two of her women neighbours. These women were not named, but Rivet guessed that one of them was a toothless, one-legged crone, eighty years of age, known locally as "Mother Clarke". Hopkins immediately went into action.

(a) Elizabeth Clarke

Elizabeth Clarke, whose mother had been hanged as a witch before her was consigned to prison where Hopkins began to question her. She was stripped naked, searched and pricked for witch's marks and "[s]he was found to have three teats about her, which honest women have not".52

50 Ibid, answer to Querie 6. 51 Ibid. 52 Ibid, answer to Querie 4.

1174 Auckland University La,w Review

Elizabeth Clarke was then watched - kept without food or sleep - for three consecutive nights. Having been constantly "encouraged" by Hopkins, she confessed on the fourth night to being a witch. Her confession alleged that she kept and nourished five familiars, Holt - a white kitten, Jarmara - a fat spaniel, Sack and Sugar - a black rabbit, Newes - a polecat and Vinegar Tom - a long legged greyhound with a head like an ox, broad eyes and a long tail. 53 According to Hopkins no less than eight people swore they had seen these familiars.

Elizabeth Clarke also confessed to having had "carnal copulation with the Devil for six or seven years" and that he would appear to her three or four times a week at her bedside and lie with her half the night, and would say "Bessie, I must lie with you". This confession was carefully supported by evidence of other witnesses.

Many of the confessions during the Hopkins period make reference to sexual intercourse between the witch and the Devil. Sexual references were rarely noted prior to this time and did not form part of the prevailing witch-beliefs of the masses. Their inclusion in confessions suggests leading questions from the interrogators assisting the witch in fashioning her offence.

Under pressure, Elizabeth Clarke also implicated other witches during the course of her interrogation. During the ensuing investigation of this "network" of witches, Hopkins interviewed or interrogated over one hundred people, but among those arrested only one refused to acknowledge her guilt.54 Others were quick to confess under Hopkins' questioning and further names of imps and familiars were revealed - Elemanzer, Pyewacket, Peck in the Crown and Grizzel Greedigut- "names that no mortal could invent".55

The trials of the accused were held at Chelmsford on 29 July 1645 and resulted in 29 people being condemned. Ten of the accused were hanged at Chelmsford and the others were executed in various hamlets and villages throughout the locality, further adding to the witch hysteria.

(b) The campaign spreads

Cromwell's armies were defeating the Royalists and one town was falling after another. The consequent sense of righteous anger and heightened suspicio:p. in the Parliamentary and Puritan villages of eastern Essex villages fostered religious and moral cleansing in earnest. This moral cleansing included a purge of witches.

After the success of the Chelmsford trials, news of the exposure of the Manningtree witches quickly spread and Hopkins became sought after as a witch

53 The pamphlet Discovery of Witches was illustrated by a specially commissioned woodcut of Hopkins, depicting the discovery of these first witches and their familiars.

54 Elizabeth Gooding was imprisoned for having entertained "two evil spirits, each in the likeness of a young cat, one named Mouse and the other Pease". She was convicted of witchcraft and hanged at Manningtree in 1645.

55 Hopkins, supra note 47, answer to Querie 4.


finding expert The spate of witchcraft accusations soon spread to Suffolk, a county with even stronger Puritan traditions than Essex. By this time, Matthew Hopkins had confen-ed upon himself the title of "Witch Finder General".

The prevailing atmosphere saw gossip and innuendo transformed into formal accusations of witchcraft and devil worship. Most villages had at least one old woman rumoured to be a witch. Hopkins' witches were mainly old, poor and the most feeble and defenseless members of the community, or those unpopular and against whom others held grievances.

John Lowes

Perhaps the least justified and most vindictive case brought by Matthew Hopkins was that against John Lowes, Vicar of Brandeston in Suffolk Lowes was an old man of nearly 80 when Hopkins accused him, stating he "was naught but a foul witch". It appeaxs Lowes had been bad-tempered and was sorely disliked by many in his parish; they complained his sermons were overly long, confusing and too mystical. In probability, these sermons were beyond the grasp of a semi-literate parish. Gradually, by going patiently from house to house and by both cajoling and threatening villagers, Hopkins and Stearne built up a case against John Lowes.

At first Lowes stoutly denied his guilt. However, after having been "swum in the moat", kept awake for three days and nights, and then forced to walk without rest until his feet v,ere blistered, the old man became "weary of his life and scarce sensible of what he said or did" and confessed to sorceries. ]He was found guilty at trial and sentenced to be hanged at Bury. Insisting on his innocence ito the very last, Lowes recited his own burial service on the 'way to the gallows, having been denied benefit of clergy.56

( c) The witch-hunt continues

In late 1645, news arrived in East Anglia of an approaching Royalist army. In the sudden panic the witch trials were suspended, and the 150 men and women held in Suffolk's jail cells seemed to have been given a temporary reprieve, Unfortunately, this alarm was short lived and the trials were resumed, The end of 1645 marked the most intense phase of the East Anglian witch-hunts. Judiciary, constables, accusers and jail ors all worked together to effect expedient trials and executions of accused witches. Execution records detail as many as 40 or 50 people executed at once.57

By the autumn of 1646, 18 months since the witch-hunt began, Hopkins and Stearne had taken their war against witches out of Essex and Suffolk and into the

56 The Witchcraft Act 1604 specifically denies the benefit of clergy to !hose convicted of witchcraft 57 Typically, witchcraft prosecutions in England had occurred only once per year or once every two years.


surrounding shires where another 20 witches met their fate. In order to make their witch-hunting operation more efficient it seems that John Stearne and Matthew Hopkins had split up at this point, Stearne covered the western part of Suffolk and Hopkins went east.

By now, Hopkins had accomplished some 100 hangings and had achieved a degree of notoriety throughout East Anglia. Wherever Hopkins and his assistants went, fear and apprehension surfaced, it seemed no one was beyond his power or reach. However, to the hundreds of ordinary men and women in these counties who detested the witches they believed to live in their midst, Hopkins was a respectable man, even a hero for delivering villages from the scourge of their witches.

3. Growing Opposition

By late 1646 there was discontent among the Puritan elite about the witch trials. A Parliamentary news pamphlet, The Moderate Intelligencer, began to question Hopkins' methods.

A Puritan minister from Great Staughton in Huntingdonshire, John Gaule, did more than anyone else to bring about the downfall of Hopkins. Gaule preached openly against Hopkins from the pulpit and started collecting evidence of his excessive methods and use of torture. Hopkins was incensed and retaliated with a blistering letter to one of Gaule's parishioners:58

My service to your Worship presented, I have this day received a letter to come to a Towne called Great Stoughton, to search for evil disposed persons called Witches ·(tho' I heare your Minister is farre against us thro' ignorance). I intend to come (God willing) the sooner to heare his singular judgement in the behalfe of such parties; I have known a Minister in Suffolk preach as much against their discoverie in a pulpit, and forcid to recant it (by the Committee) in the same place. I much marvaile such evil members should have any (much more any of the clergy) who should dayly preach Terrour to convince such compl~inants for the King and Sufferers themselves, with their families and Estates. I intend to give your towne a visit suddenly. I am come to Kimbolton this weeke, and it shall be tenne to one but I will come to your towne first, but I would certainly know afore whether your towne affords many Sticklers for such Cattell, or willing to afford es good welcome and entertainment, as other where I have beene, else I shall. wave your Shire (not as yet beginning in any part of it myself) and betake to such places, where I doe, and may persist without controle, but with Thanks and Recompense, So I humbly take my leave and rest, Your Servant to be Commanded, Matthew Hopkins.

58 Deacon, supra note 46, 163.


( a) An attack on Hopkins

Gaule subsequently published a pamphlet which contained a month's sermons on witchcraft and denunciations, describing Hopkins' methods and hinting that Hopkins himself was a witch:59

Every old woman, with a wrinkled face, a furr'd brow, a hairy lip, a gobber tooth, a squint eye, a squeaking voice, or a scolding tongue, having a rugged coate on her back, a skull-cap on her head, a spindle in her hand, and a dog or cat by her side, is not only suspected but pronounced for a witch. Hopkins' signs discover no other witch but the user of them.

Arising out of the publicity given to Gaule's pamphlet, certain "queries" regarding Hopkins were raised by objectors and presented to the judges at the Norfolk Assizes suggesting Hopkins himself was a witch.

The allegations of corruption were so marked that Hopkins, now desperately fighting for his reputation, felt bound to reply to them. In The Discovery of Witches 60 Hopkins tackled each of the criticisms in the third person - in a pedantic, formalised, legal manner. He set out each of the queries point by point, and provided a series of cogently reasoned (albeit defensive) arguments by way of response.

A steadily mounting campaign of criticism against Hopkins ensued and was subsequently taken up in London, having reached Parliament. It came to be realised that more witches were being executed than ever before in the history of England and that Hopkins was making a not inconsiderable sum out of his witchfinding activities. A Special Commission of Oyer and Terminer was appointed to monitor Hopkins activities.

(b) Hopkins' demise

By the end of 1646 as his credibility and activities dwindled, Hopkins parted company with his assistants and returned to Manningtree where his infamous career had started. He died in August 1647. Local legend arose that Hopkins was himself swum as a witch by the mob and afterwards hanged. This was totally discounted by John Stearne, who wrote in his own tract, A Confirmation and Discovery of Witchcraft, that Hopkins:61

... died peaceably at Manningtree, after a long sicknesse of a consumption, as many of his generation had done before him, without any trouble of conscience for what he had done, as was falsely reported of him.

59 Gaule, Select Cases of Conscience Touching Witchcraft (1646). 60 Hopkins, supra note 4 7. 61 Stearne, A Confirmation and Discovery a/Witchcraft, (1648).


Parish records indicate that l\!fatthew Hopkins was buried in the nearby viHage of Mistley on 12 August 1647. John Stearne continued the witch-hunt, to a lesser degree, until the following year.

( c) Results of the witch-hunt

The imperfect nature of the records makes calculating an exact total of those accused in Hopkins' witch crusade impossible. An informed estimate would suggest that during his campaign, a minimum of 250 people were tried as witches or at least subjected to prelin1inary investigation. Of these, a minimum of 100 were executed. The real death toll is likely to have been substantially greater, given the high number of deaths resulting from witch swimming.

It is misleading to attribute the occurrence of the East Anglian trials in their entirety to Matthew Hopkins and John Stearne. Hopkins and Stearne acted as a catalyst, exploiting pre-existing tensions and suspicions among villagers by initiating inten-ogations and setting the wheels of justice in motion. Hopkins' importance in the "witch scare" of the 1640s can be downplayed and attributed to other factors: 62

The answer seems to lie in a combination of particular factors, especially the disruption of local government and justice by the Civil War and, possibly, the economic, spiritual, and other tensions which war created. with beliefs in wi1chcraft which, though usually kept just below the surface, were no less widespread and powerful than they had been in the sixteenth century.

VU. The Dedillle of v\l'Vitcb.craft

Ironically, the witch-hunting of the 1640s had discredited witch prosecution. The excesses in these trials led the English intellectual, often serving as a magistrate or grand juror, to doubt the evidence being presented in the witchcraft accusaJions. Few were willing to deny the possibility that witchcrnft existed, but witch-beliefs continued to flourish more among the mainstream than the inteHectual elite, and witch hunting was written off as an activity indulged in by the plebeian religious enthusiast.

The Restoration of Charles II in 1660 saw tolerance and stability gradually replace the uncertainty and puritanism brought on by the Civil War. Greater confidence and prosperity throughout the country led witch-hunting to lose its momentum. There was an outbreak of scepticism among lawyers and judges, and witch-hunting was increasingly regarded as popular superstition or religious fanaticism. The intellectual elite became sceptical of the reality of witchcraft and began to take a more rational view of the world. As a result, witch hunters were exposed as frauds and the legal system began to reject evidence from them.

62 Mcfarlane. supra note 39, 142.


Conversely, however, with the Restoration of the Church of England, the need to maintain witchcraft beliefs was seen as an element in maintaining existing defences against the spread of atheism. If the population ceased to believe in witches, they would then cease to believe in the Devil, and finally cease believing in God.

The 1662 trials of the Lowestoft witches marked the last of the major witch trials in England. The last execution for witchcraft took place in Exeter in 1684 and the death penalty for witchcraft in England was abolished in 1736.

Witch trials declined in most parts of Europe after 1680. Trials in Scotland persisted well into the eighteenth century and as late as 1773, with the last recorded burning of a witch taking place in Sutherland in 1722.

In the late seventeenth and eighteenth century one last wave of witch persecution afflicted Poland and other areas of Eastern Europe, but that ended by about 17 40. The last legal execution of a witch occurred in Switzerland in 1782.

VIIL ConcbJsfon

Why the English witch-hunts occurred at all has been a long-standing issue of debate among historians. It is clear, however, that one of the fundamental preconditions necessary before a witch-hunt was initiated, was the existence of a supportive central government. This generated the necessary legislation and ensured the court system was available to prosecute the accused. Indeed, it is difficult to differentiate on this basis between the witch panics of 1550-1660, and recent terrorism legislation introduced into New Zealand law to address the current concerns with respect to Islamic fundamentalists. 63

It cannot be overlooked that in England during the sixteenth and seventeenth centuries, an levels of society - from the intellectual elite and the masses; from James IV and I to the villager - inherently believed that the world was permeated with supernatural forces. VI/itch-beliefs were not just held by a small irrational portion of the population. Belief in witchcraft v,as inseparable from the prevailing, overarching mental framework of the period. This framework was characterised by religious beliefs, and was used to contextualise and explain that which happened in society's everyday life.

There was no characteristic that the majority of accused witches shared; not gender, not age, not ,.;vealth, not religion. The only thing that united them was the fact that they were accused of witchcraft The diversity of those accused of witchcraft is one of the predominant arguments against theories claiming the witch hunts were a deliberate massacre aimed at a specific group.

This article has demonstrated how little the fundamental nature of human behaviour has changed over time; the only variable being that of social context.

63 TeITorism Supression Act 2002.


Moral panics have continued to surface over the ensuing centuries; panics about Germans, communism, AIDS, paedophilia and child pornography being common in recent times.

Thus, the study of legal history provides an invaluable tool in illustrating the role of law within its social context and, hopefully, provides a forum with which society may learn from previous mistakes and manage recurring events better in the future.

Balancing Rights and Interests in Access to Infertility Treatment

Lisa Fong*

1181

I. Introduction

Infertility is an age-old phenomenon, with accounts of the grief and distress that the inability to produce children has caused sufferers dating from at least biblical times. Many infertile people feel distanced from their own family or incomplete as members of society, such is the value of children and the force of community assumptions concerning families. The effects of childlessness linger long past the childbearing years, 1 especially as people come to contemplate their own mortality.

While adoption, surrogacy and simplistic forms of donor insemination ("DI") have been known for millennia, modern technology now allows the most improbable cases of infertility to be successfully overcome. In vitro fertilisation ("IVF") is the most widely publicised form of medical treatment for infertility, involving implantation in the womb of an embryo conceived outside the parents' bodies.2

Around the developed world, changes in lifestyle beginning in the 1970s have begun to affect the number of people seeking assistance to have children.3

Known factors include delayed childbearing by women, increased prevalence of sexually transmitted diseases and smoking habits. Awareness of medical services and a reduction in adoptions also contribute to the 3500 new referrals New Zealand infertility clinics receive a year.4 More controversially, the demand also includes single women, lesbians (who may overtake heterosexual couples in demand for DI),5 single and gay men seeking surrogacy, post-menopausal women and disabled couples.

Assisted reproductive technology ("ART") has thus not only brought with it relief for the paradigmatic infertile married couple, but has also opened up new

2

3

4 5

BA/LLB(Hons). Thank you to my parents for your support, your unconditional love is returned in full. Royal Commission on New Reproductive Technologies (Royal Commission), Proceed with Care (1993) 171. Also commonly used is gamete intra fallopian transfer, similar to lVF, but that the conception occurs in the fallopian tubes once the woman's egg and man's sperm have been extracted. Zygote intra fallopian transfer occurs when a fertilised egg is placed in the fallopians, rather than the uterus as in IVE Intracytoplasmic sperm injection, used for poorly mobile sperm, involves the injection of sperm into the egg directly. Although physiological infertility has remained constant over the past three decades: Gillett, Peek & Lilford. Costs and Effectiveness of Infertility Services in New Z,ea/and: A Decision Analysis (1996) 9. Ibid 9. "Lesbians' high demand for fertility treatment", Sunday News, Auckland, New Zealand, 12 January 1997, 12.


opportunities for a much wider group. Some would not previously have been considered infertile, even if they had strongly desired and felt the loss of a child they were unable to conceive. Society is faced with challenges to traditional notions of the family and to the definition of infertility itself, due to the ends to which ART can be put into service. Inevitably there is dispute over who should be able to receive treatment and what limits on access to ART are desirable. This issue is the focus of this article, with attention to the rights of those seeking treatment.

A brief excursion initially looks for rights in the law to procreate and, by extension, to seek infertility treatment. The absence of duties on the state indicates that bald rights are inadequate for a fully developed discussion involving the interests of the parties, namely the resulting child and wider society. The challenge is to protect the welfare of the future child without infringing human rights protections, not simply subsume the rights or interests of either party. It is proposed that human rights legislation may be interpreted to accommodate the interests of the child and reconcile these interests with the rights of parents to not be discriminated against. To ensure the legitimacy of selection procedures, however, the State has a responsibility to legislate for the production of access guidelines. The creation and exercise of the guidelines, which are designed to gauge the harm to the interests of the child, requires sensitivity and integrity. The interests of wider society come to the fore in the creation of the guidelines, but especially so in relation to publicly funded treatment. Finally, a review of current legislative action evaluates New Zealand's approach in light of the foregoing discussion.

II. Rights and Infertility Treatment

Concern for the welfare of the child and by association the characteristics of the prospective parents are a critical consideration in access to infertility treatment. Presently, it suffices to say that concern is raised by hopeful parents that the criteria for access to infertility treatment can be biased toward the traditional family structure. For those who perceive themselves to be discriminated against in access to ART, the most direct means of obtaining access to infertility treatment would be to rely upon a right that placed the state under a duty to provide ART services. This would theoretically side step any debate over infertility treatment access by overriding the competing interest of the child. There is difficulty in locating any such right in international treaties, domestic legislation or case law, however. It is apparent from the context of ART that rights talk is only one facet of a discussion on access. It is insufficient to protect the interests of all those involved in the treatment process.

Balancing Rights and Interests 1183

1. Rights defined

A "right" refers to positive or claim rights, when another owes a legal duty to the right-claimant.6 The most useful formulation for prospective parents is a claim-right to infertility treatment that obligates the State to ensure access to treatment to all who are eligible to claim it. Remedy will be available for the breach of the duty. 7 There also exists a "liberty", which is characterised as the absence of a legal duty to do or not do an activity. 8 A strict definition of liberty means that interference in the exercise of the activity will be lawful. Thus a prospective parent seeking infertility treatment may be prevented from receiving it by stringent access criteria, since there is no duty to not interfere. The government need not assist the liberty claimant to exercise the liberty. Generally, however, a liberty will be supported by a duty on others to not interfere with the liberty.9 This does not generate a claim right to infertility treatment as the duty on others to not interfere is derived from other general rights, such as the right to be free from assault. 10 Using the right and liberty concepts, it is possible to analyse the law to discover the position of the prospective parent in New Zealand.

( a) Procreative Rights

From the generality of the prov1s10ns, the procreative rights which are recognised in three of the main conventions are undoubtedly of the liberty form. The relevant provision in the Universal Declaration of Human Rights ("UNDR") in article 16(3) states that "[t]he fmnily is the natural and fundamental group unit of society and is entitled to protection by society and the state". The UNDR qualifies the liberty in the preceding provision of article 16(1), which states that "[m]en and women of full age, without any limitation due to race, nationality of religion, have the right to marry and to found a fmnily". Both the International Covenant for Civil and Political Rights ("ICCPR")" and the International Covenant for Economic, Social and Civil Rights ("ICESCR")12 express similar sentiments. If the conventions are interpreted broadly, treating them as living agreements1' able to accommodate scientific advances, one can at most imply from this a liberty to seek infertility treatment. By definition, this liberty could not be used to demand assistance from the State, only a general duty of noninterference.

6 Evans. "What Does it Mean to Say Someone Has a Right?" (1998) 9 Otago LR 301, 304. 7 Ibid 302. 8 Williams, "The Concept of a Legal Liberty" in Summers (ed), Essays in Legal Philosophy (1968) 128-129. 9 Shanner, "The Right to Procreate: When Rights Claims Have Gone Wrong" (1995) 40 McGill LJ 839. 10 Williams, supra note 8, 139. 11 Article 23(1). 12 Article 10(1). 13 Eriksson, Reproductive Freedom: In the Context of International Human Rights and Humanitarian Law

(2000) 195.


(b) Interpretation under the Bill of Rights

Even without the limitations described, the ICCPR has only been affirmed by, not incorporated into, in the New Zealand Bill of Rights Act 1990 ("NZBORA"). Using the ICCPR to interpret the NZBORA, 14 the liberty to procreate may be brought within the right not to be deprived of life, 15 if procreation is considered in legal terms an essential element of life. 16 Under this analysis procreation still remains a liberty with no specific duties on the State and as such creates weak positive claims for assistance. Similarly, as a disability under the Human Rights Act 1993 ("HRA"), physiological infertility generates no rights to assistance, since, apart from applying to the Government in only limited circumstances, 17 s 52 relates to service provision, not remedy of the disability itself and s 73(1)(a) saves affirmative actions, but does not provide a right to such assistance. The sociologically infertile who would most benefit from a right to infertility treatment would still be excluded.

Although infertility treatment is accepted in New Zealand as part of the core health services budget, health care rights are of limited support. Aside from their unincorporated status, international treaty law provisions relating to health rights are too general to be valuable to a prospective parent. The right to health is not an individual one, but held by society collectively18 and this is reflected in both international and domestic law. A prospective parent will not have a claim against the State for health care let alone infertility treatment specifically as New Zealand legislation contains no obligation to provide treatment.

2. Comparative Jurisdictions' Approaches to Procreative Rig):lts

In the United States, Skinner v Oklahoma19 states that procreation is a fundamental liberty under their Bill of Rights, while Roe v Wade20 finds protection for freedom to terminate a pregnancy and freedom from unwarranted governmental interference is part of an individual's right to privacy in procreation. These liberties, accompanied by duties of non-interference on the part of the State, are also found in Canadian case law. R v Mortgentaler21

establishes that a liberty to procreate and broad protections against governmental interference are part of s 7 of the Canadian Charter of Fundamental Rights and

14 Ashby v Minister of Immigration [1981] I NZLR 222 (CA). 15 NZBORA 1990, s 8. I 6 In the United States infertility is understood as impairment of a major life activity under the Americans with

Disabilities Act 1990, Title VII of the Civil Rights Act 1964, s 4 in Bragdon v Abbott, 524 US 624 (1998). 17 HRA 1993, s 21A. 18 Feldman, Civil Liberties and Human Rights in England and Wales (1993) 901. 19 316 us 535 (1942). 20 410 us 113 (1973). 21 (1984) 47 OR (2d) 353, 394-395.


Freedoms.22 By extension, the Baby M23 case reasons that "if one has a right to procreate coitally,24 then one has a right to reproduce non-coitally". By contrast, in New Zealand the right to life is unentrenched. In the absence of statutory duties on the State, the Ministerial Committee on Assisted Reproductive Technology ("MCART"), a committee heading New Zealand's most comprehensive inquiry into ART which presented its findings in 1994, adopts the view of the majority of submissions that "it is the choice to procreate or not that should be a human right". 25

The overwhelming message is that there exists only a liberty to seek ART with a duty of non-interference on the part of the state. The state is not required to provide applicants with ART or financial assistance to procure those services, as demonstrated in Harris v McRae, a United States Supreme Court judgment, which noted that:26

[l]t simply does not follow that a woman's freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices .... [A]lthough a government may not place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those not of its own creation.

The extent of the duty of non-interference on the state is limited. Since the liberty to seek ART is not absolute, it may legally be restricted where its exercise would cause harm to another, for instance the potential child or society. This was recognised by the Canadian Royal Commission on New Reproductive Technologies ("Royal Commission"), via as 1 justification under the Charter.27

The report of the Ontario Law Reform Commission also notes that a right to infertility treatment in s 7 of the Canadian Charter28 might only amount to a guarantee of procedural, not substantive, due process from the State. If ART were banned altogether, it might not be open to the court to determine the reasonableness of the ban. 29

In a society where the State has a responsibility to balance the rights of the individual and the wider interests of the community, rights talk in relation to infertility treatment access is inadequate and uninformative. The rights model focuses on the parents and draws attention away from the other participants in the process of ART, such as the child, the doctor, and the community. It shuts out the inherent detriment to society that the exercise of the right may cause and

22 The section reads: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice".

23 (1987) 525 A. 2d 1128. 24 Ibid 1164. 25 New Zealand Mimsterial Committee on Assisted Reproductive Technologies (MCART), Assisted Human

Reproduction: Navigating Our Future (1994) 29. 26 448 US 297 (1980) 316, per Stewart J. 27 Royal Commission, supra note l, 456-457. 28 The right to life, liberty and security of person. 29 Ontario Law Report Commission, Report on Human Artificial Reproduction and Related Matters (1985) 43.


precludes questions over the legitimacy of the investment of society's time, energy and resources, factors noted by the Royal Commission. 30 MCART supports the Royal Commission's stance that individual liberties can be limited when the aim is to protect important societal interests.3' The State has legitimate concerns that children will be well cared for. 32

III. Human Rights Legislation

The complex task lies in setting guidelines for access where there is concern for the welfare of the potential child that relates to a prohibited ground of discrimination. The central concern when defining the limits on access to infertility treatment is to ensure the appropriate balance between the right of the infertile to be free from discrimination and the adequate representation of the interests of the potential child. The first concern can arise from overanxious protection of the second, yet the child's lack of voice makes this advocacy important.

1. Discrimination against Prospective Parents

The married heterosexual couple is still the default family form in official circles. The Warnock Report, which led to the enactment of the Human Fertilisation and Embryology Act ("HFEA") in England, remained convinced that the traditional family structure was best for a child. 33 MCART expressly considered the HRA, yet was uncomfortable with assistance to single women.34

The bias of clinics is noted by the MCART report, which records the provision of ART to people with physiological infertility only in some clinics, while others apply an age limit.35 There is thus reasonable desire on the part of applicants for full effect to be given to human rights legislation.

The challenges to the normative family structure are not limited to concern for children born out of wedlock. Disputed cases demonstrate the range of people implicated in the access issue. In 1994 the Human Rights Commission ruled in favour of a single woman refused treatment by a private Auckland clinic on the basis of marital status discrimination. In the same year, the same clinic was found to have acted discriminatorily on the grounds of race and ethnic origins by denying donor insemination of a Maori woman with a white partner using sperm

30 Royal Commission, supra note I, 62-63. 31 MCART, supra note 25, 30. 32 Shanner, supra note 9, 873. 33 Department of Health and Social Security, Report of the Committee of Inquiry into Human Fertilisation and

Embryology (Warnock Report) Cmnd 9314 (1984) para 2.11. 34 MCART, supra note 25, 55-56. 35 MCART, supra note 25, 54, 56-57.


from a Samoan friend. 36 The Human Rights Commission has since noted, however, that whilst denying access to donor gametes on the basis of race will be illegal, more research has yet to be done into the effect of parents of a different ethnic group(s) on a child, and what interests the child has to grow up in an environment of its own ethnicity.37

More recently in 1997, a severely disabled couple took a claim to the Human Rights Commission for the refusal to treat with donor IVF. The clinic argued that the couple's specially adapted house was a hazard for a child, while the couple insisted that the clinic was discriminating on the basis of their disabilities and had ignored the support network they had to care for the potential child. The couple dropped the claim when a public clinic accepted them for treatment.38 Additional concerns relate to age discrimination in the treatment of post-menopausal women,39 and in this case the Royal Commission recommended that IVF not be offered to such applicants.40 New Zealand has not yet faced a request by a postmenopausal woman for treatment. Male surrogacy arrangements are also untested in regards to ethical approval. New Zealand practitioners appear more liberal in respect of access for lesbian couples than overseas colleagues.4 '

2. Application of Human Rights Legislation

Clinics in New Zealand have long called for guidelines in respect of access to ART, so that they may adjust their practices to reflect appropriate standards.42

At present, human rights legislation provides some of the only standards available. However, since 2001 it has been uncertain whether the HRA or the NZBORA will apply to health services.

Part IA of the Human Rights Act establishes that an act or an omission by a person or body governed by s 3 of the NZBORA, which is inconsistent with the right to freedom from discrimination set out in s 19 of the NZBORA, is to be tested against the standard set out in s 5 of the NZBORA,43 to the exclusion of Part 2 of the HRA.44 There are express exceptions in relation to employment,45

36 Coney, "Assisted Reproductive Technologies Timeliue" in Coney & and Else (eds), Protecting our Future: The Case for Greater Regulation of Assisted Reproductive Technology (1999) 7.

37 MCART, supra note 25, Appendix F 4-5. 38 Coney, "The Rights and Interests of the Child" in Couey & Else, supra uote 36, 42. 39 De Wert, "The Post-Menopause: Playground for Reproductive Technology? Some Ethical Reflections" in

Harris & Holm (eds), The Future of Human Reproduction: Ethics, Choice and Regulation (1998) 221. 40 Royal Commission, supra note l, 569. 41 Tyler, supra note 5. 42 A survey of obstetricians and gynaecologists in 1986 in relation to IVF showed that 86% indicated they would

prefer oversight of the area: cited in Daniels, "Assisted Reproductive Technology Policy in New Zealand: Needs, Rights and Responsibilities" (1994) 17(3) Public Sector 24.

43 HRA 1993 s 20I. 44 Ibid s 20J. 45 Ibid ss 22 & 23.


sexual harassment,46 racial harassment,47 racial disharmony48 and victimisation of complainants.49 The rationale is to preserve the distinction between the two statutes and thus the distinction between the role of the Government and private actors. While the HRA regulates the relationship between private actors and accepts discrimination in only limited circumstances, the NZBORA preserves the policy-making function of Government, which is the backdrop to its provision of goods and services. The nature of governmental provision of goods and services means such provision is appropriately assessed against a balancing standard, s 5.50

( a) Application of the Human Rights Act

It is necessary to consider whether the HRA applies to the pro11ision of health services, first via s 3(a) of the NZBORA. As the public health sector has undergone considerable reorganisation, District Health Boards ("DHBs") have inherited the role of the overarching Health Funding Authority (whose assets and personnel went to the Crown)51 in deciding the services to be provided in their districts, but also regain ownership of public hospitals within their district. The DHBs remain subject to Ministerial oversight, with up to four members appointed by the Minister sitting alongside the other seven members.52 The Minister remains responsible to the House of Representatives for the activities of the DHBs.53 Combined, these factors and functions suggest that the DHBs act on behalf of Government.

(i) Public Hospitals

Public hospitals also differ structurally from their earlier counterparts, the Crown Health Enterprises. However, there is no reason to suggest that they will now be subject to s 3(a) of the NZBORA. Despite this closer association with government, both the lack of control of day-to-day activities by the Minister54

and lack of special powers or monopoly vested in the hospitals55 indicate that public hospitals are not performing acts as agents of the Crown.56 This is supported by the Canadian Supreme Court decision Stoffman v Vancouver

46 Ibid s 62. 47 Ibid s 61. 48 Ibid s 63. 49 Ibid s 66. 50 For fuller consideration of these changes see Cooper, Hunt, McLean & Mansfield Re-evaluation of Human

Rights Protections in New Zealand, Ministry of Justice, Wellington, (May 2001). 51 New Zealand Public Health and Disability Act 2000, s 5(9). 52 Ibid s 29(1). 53 Ibid s 8(5). 54 Ibid s 39. 55 Townsville Hospitals Board v City ofTownsville (1982) 149 CLR 282, 291. 56 Paterson & Rishworth, Priority Criteria and the Human Rights Act: An Interpretation (1996) 41-53.


General Hospital, which established that mere supervisory powers of the Government did not make the hospital a public body. 57

Part IA of the HRA may still apply to public and private health services if the provision of such care can be considered a public function, power or duty pursuant to law under s 3(b) of the NZBORA. Ultimately, whether a body performs a public function is a reflection of what activities society perceives should be controlled by the State,58 however it is possible to refine this further. It is suggested that indicators of public function include, but are not limited to public funding through taxation, statutory control, and the exercise of a public good or collective service.59 In Eldridge v British Columbia (Attorney-General)60

the Supreme Court of Canada determined that public health services were a public function subject to the Charter when rendered by a hospital under statutory obligation and funded publicly through taxes. The same analysis can be applied to public hospitals in New Zealand, which provide tax-funded collective services in concert with statutory oversight. It is tendered that public health services do fulfil a public function.

(ii) Private Hospitals

The s 3(b) analysis becomes more difficult with respect to private hospitals. These are incorporated companies subject to the general regulatory framework for all health care providers,61 but under no obligation to provide taxpayer funded health services. There are two possible approaches to take. The first looks beyond solely the function to the body performing the action, following Alexander v Police. 62 This view holds that if the contractual provision of a publicly funded health service by a private hospital is to be considered the performance of a public function, then every instance of health care provision will by definition be a public service.63 The second approach posits that, as is apparent from the judgments in Lawson v Housing NZ,64 Federated Farmers of NZ Inc v NZ Post Ltd65 and TV3 Network Ltd v Eveready New Zealand Ltd, 66 the application of s 3(b) is not determined by the private nature of a body, but through its performance of a public function. 67 Consequently, in relation to some services, private hospitals are capable of being brought within the NZBORA.

57 [1990] 3 SCR 483. 58 Rishworth, "When the Bill of Rights Applies" in Rishworth et al (eds) The New Zealand Bill of Rights, (2003)

86, 89. 59 De Smith,Woolf & Jowell Judicial Review of Administrative Action (5th ed, 1995) para 3.024. 60 [1997] 3 SCR 624. 61 Section 79 ensures that Part IA of the HRA does not just cover private activities that are specifically required

or authorised by statute. 62 (1998) 4 HRNZ 632 (CA). 63 Rishworth , supra note 58, 92. 64 [1997] 2 NZLR 474 (HC). 65 [1992] 3 NZBORR 339 (HC). 66 [1993] 3 NZLR 435 (CA). 67 Butler "Is This a Pnblic Law Case?" (2000) 31 VUWLR 747, 764-770.


The second approach goes some way to responding to MCART's concern that public and private providers not be held to different standards of service,68

and also serves to reduce any anomaly that might occur in the outsourcing of a public ART contract to a private clinic. 69 Some functions of private clinics will remain amenable to the goods and services provision of the HRA when providing private infertility treatment, but in the performance of public outsourcing contracts the clinic is undertaking a public function. Taking the second approach creates the opportunity for a broad analysis of infertility treatment access under both the HRA and NZBORA.

3. The Welfare of the Child

The resulting child is the other significant party in access to infertility treatment. The "welfare" of the child is used to describe the bundle of concerns associated with the child to be born. The interests of the child are invoked because a child to be conceived has no legally recognised rights,70 yet its needs require protection. In relation to screening ART access, the welfare of the child refers broadly to the good care and wellbeing of the future child as it matures, including the provision of education and emotional and physical safety. These interests go beyond existing legal standards of protection;11 however identification of more precise factors for assessing patients' parenting ability has not yet been attempted. The Convention on the Rights of the Child (ratified by New Zealand) provides minimum guiding standards, including a general right of a child to be cared for by his and her parents72 and due regard to his or her ethnic, religious, cultural and linguistic background when the child cannot be with its (genetic) parents.73

( a) Reconciling the Child's Interests with the Liberty of the Parent

The interests of the child and the liberty of the parent are not incompatible. The liberty to receive ART is subject to a limited duty of non-interference. Where the welfare of the future child appears endangered, the State may prevent the exercise of the liberty through the denial of treatment. However, it is argued by what will be referred to as child advocates that legal mechanisms and political will to enforce this are lacking. This lack of protection, which could define the interests of the child more specifically, is compounded by the fact the HRA has allowed the child welfare concerns to be overridden by the interests of the parent.

68 MCART, supra uote 25, 58-59. 69 Fertility Associates has held contracts to provide public fertility treatment since 1996 in both Auckland and

Hamilton. 70 Shanner, supra note 9, 844-845; Coney, supra note 38, 46. 71 For instance the duty to provide the necessaries of life, Crimes Act 1961, s 151 and protection from abuse

under the Children Young Persons and their Families Act 1989. 72 Convention on the Rights of the Child, Article 7(1). 73 Ibid Article 20(3).


(b) Discrimination Claims

To date, all discrimination claims in relation to infertility treatment have been brought under the HRA, rather than the NZBORA. The concerns of child advocates have thus been aimed at the 1993 discrimination legislation, which they believe is unable to accommodate the interests of the future child. This is gauged from the fact that the interests of the parents have been protected by the Human Rights Commission, which has facilitated access to treatment in the few cases citing the interests of the child. There is already concern that the unregulated industry is avoiding judging the suitability of paying applicants, although given the cost of defending an HRA claim at the Commission, they accept this is to some extent inevitable.74 The primacy of the HRA is seen as supported in official reviews of ART by MCART and the corresponding Officials' Committee, who recommended that there was no need to alter the HRA to allow ART to be treated differently from the rest of ihe community.75 Without some form of legislative protection, the concern is that people potentially unable to care for and ensure the welfare of a child will be entitled through the HRA to receive infertility treatment if their incapacity to parent arises from a prohibited ground of discrimination. However, the HRA appears to be able to accommodate the welfare of the child in infertility treatment if there are balanced procedures for assessing the welfare of the child.

( c) Discrimination Claims under the HRA.

Although privately funded infe1iility treatment is only one aspect of the debate, it is governed by the HRA, under which considerable analysis of discrimination in the provision of health care has occmTed. This knowledge developed from the HRA is valuable, and can inform the approach to be talcen with respect to publicly funded infertility treatment by public and private clinics under the NZBORA. S 44 of the HRA is useful in balancing the welfare of the child and the rights of the parents to be free from discrimination. Looking to the words of the provision, denial of service is illegal if it is "by reason of' one of the prohibited grounds ins 21. According to Human Rights Commission v Eric Sides Motor Co Ltd16 "by reason of' requires the prohibited ground to be a "substantial reason in the totality of reasons" or a "substantial and operative" factor in the decislon. This seems at times to create too fine a distinction. A purposive interpretation is helpful in distinguishing between where one draws the line between denying a 63 year-old post-menopausal woman treatment by reason of her future irw.bility to care for a child, and discrimination on the basis of her age.

7 4 Coney. supra note 38, 4 I, 43. 75 Department of Justice, Assisted Human Reproduction: A Commentary (1995) 12. 76 Using the identical phrase in the Human Rights Commission Act 1977. (1981) 2 NZAR 447 (Equal

Opportunities Tribunal).


To refuse a woman treatment because of her age alone would be discriminatory, if evidence does not support the decision that this would be harmful to the child. It vvould have to be shown through other factors that there was reason for believing harm to the child could occur because of the patient's age. Other indicators could include poor family medical history 2.nd lack of availability of a support network, such as an ageing husband. 'Nhen a doctor refuses treatment out of concern for the welfare of the potential child, this is then legitimately advanced as the operative reason for the decision, nol the discriminatory ground itself. Children do not deserve less protection merely because thei0 • parent( s) should not be distinguished on the basis of their disability or characteristics, 77 Thus, the HRA is flexible enough to accmnmodate the welfare of the child, if there is vvide ranging evidence of concern for the child's welfare. This supports calls for guidelines to be developed on factors for assessing eligibility to treatment This approach is equally useful in assessing the existence oi discrinunation under s 19 of the NZBORi'L

Refusals

Refusals on the ground of the vvelfa;re of tbe child based on a parent's disability require Etdditional consideration. Disability must be accomff1odated under s 52 of the HRA, unless this could not be reasonably expected of the service provider. If the section applies to access decisions relating to the ability to parent, in circumstances such as the case of the disabled couple rnentioned above, it could be argued that to ensure the welfare of the child after birth so as to facilitate acce2s is too onerous on the clinic.

(ii) Exceptions

T\vo exceptions a.re contained in s 65 and s 97 of the BRA. The fast requires that a defendant establish "good reason" for any indirect discrirnlnation. An indirectly discriminatoi-y exclusion from infertility treatment mighi be 2. nonsmoking requirement for the benefit of the child while pregnant. Given the proportionately high number of female Maori smokers, this could ,ict as an indire-Ct discrimination of this demographic. The 'Nelfare of the child may wen count as a good reason for retaining the non-smoking requirement.

The other exemption in s 97 of the HRA stipulates that there must be a "genuine justification" for any apparently discriminatory action. This acts as a "final backstop"78 when a decision to not treat is found to be discriminatory under s 44 of the HRA. This justification is to be used in "exceptional cases only"79 as

77 Sandberg, "Child Protection Law and Fundamental Values: IVlentaHy Retarded Parents" in Eekelar & Sarcevic (eds), Parenthood in Modern Society (1993) 481.

73 Paterson & Rishworth, supra note 56, 15. 79 Avis Rent-A-Car Ltd v The Human Rights Cornmission, 15 October 1998, Complaints Revievv Tribunal 28/97.


too liberal a construction might lead to the erosion of the HRA. With a deficit of case law, it is unclear what amounts to an exceptional circumstance; it may be that the welfare of the child is at such risk from a person's extreme mental instability that it is imperative that infertility treatment be denied. Uncertainty over how the provision will work lends weight to the view of child advocates that the section will not be able to protect the welfare of the child as a relevant concern. With the enactment of the Human Rights Amendment Act 2001, which more clearly differentiates the application of the HRA and the NZBORA, the same need exists now as before the amendment for a substantive defence to offset the blanket prohibitions and limited exceptions in the HRA in circumstances that were not anticipated by the Act, which justifies a continued broad view of s 97. Ministry of Transport v Noort80 was the first New Zealand decision to interpret the "reasonable limits prescribed by law as may be demonstrably justified in a free and democratic society" using the Canadian Oakes test, which sets a three step process for balancing competing concems:81

(a) The objective must warrant overriding a right. (b) There must be a rational connection between the measures taken and the

objectives they are to serve. ( c) The measures should be proportional:

(i) They must impair the right or freedom as little as possible. (ii) The deleterious effects of the measures must be proportional in light of the objective they are to serve.

The harm to the future child would have to constitute an "exceptional" objective82 in the circumstances. The refusal to treat would have to be shown by a clinic to be a rational and proportional response to the prohibited ground's effect on the interests of the child. In the instance of the smoking candidate refusal of treatment might not be a proportional response where the woman was a light smoker, if there were medical evidence of minimised risk of harm to the child in the womb. From the analysis of s 44 already made, s 97 will rarely need to be invoked where prohibited grounds of discrimination are not irrelevant distinctions but informed determinants of the welfare of the child. There is room through any of the three sections, if need be, to accommodate the interests of the child.

The s 5 analysis under the NZBORA will differ in respect of publicly funded provision of infertility treatment, with the overriding objective under the Oakes test likely to focus on the resource constraints necessitating the use of facially discriminatory priority criteria. In these circumstances, it may be demonstrably justified in a free and democratic society to refuse treatment to a smoker, which the criteria do in fact do.

80 [1992] 3 NZLR 260, 283 (CA). 81 R v Oakes [1986] 1 SCR 103 (SCC). 82 Avis Rent-A-Car v Human Rights Commission, supra uote 79.


Those concerned for the interests of the child would be able to overcome perceived limitations in the HRA or the NZBORA. The suggestion that either should be subsumed by legislation requiring guidelines to preserve the paramountcy of the child83 is therefore unwarranted as the interests of the child can be legislated for without requiring their paramountcy.

(iii) Paramountcy View

The paramountcy view looks to the Convention on the Rights of the Child84

and current adoption legislation. In Social Welfare v L8' the Court of Appeal determined that the Adoption Act 1955, through its link to guardianship, should adhere to the paramountcy of the child formula used in the Guardianship Act 1968. Thus, in adoptions the interests of the child are the paramount consideration. 86 The rationale is that legal intervention may disrupt relationships a child has formed, limit contact with one side of the family unnecessarily, or artificially attempt to replace existing parental figures. 87 Such considerations do not apply to children born fromART.88 Donor ART children have been catered for under the Status of Children Amendment Act 1987 and are precluded from multiple parent problems, since they are made the legal children of their ART parents from birth. It has been recognised that children may want _links to their biological parents and this is provided for in both proposed bills through centralised information databases. However, the intention of donation is to not continue links with biological parents as family. At least in this respect, a paramountcy provision is unnecessary.

While the welfare of the child is a legitimate concern, the Human Rights Commission notes that it is often used as a smokescreen for discriminatory assumptions about the suitability of people with certain characteristics as parents.89 Prospective parents express concern that systemic discrimination could slip through as relevant indicators of the welfare of the child under s 44 of the HRA, s 19 of the NZBORA, or in the exemption sections. 90 There is thus concern that any guidelines created pursuant to a statutory protection of the welfare of the child make legitimate evaluations of the ability to parent.

83 See Coney, "The Rights and Interests of the Child" supra note 38, 41. 84 Convention on the Rights of the Child, Article 3(1). Ins ll(b) of the Adoption Act 1955, welfare of the child

is interpreted in light of the Guardianship Act 1968, s 6 paramountcy provision. 85 [1989] 2 NZLR 314. 86 Guardianship Act 1968, s 23. 87 Henaghan M, "Legally Rearranging Families" in Henaghan M & Atkin B (eds), Family Law Policy in New

Zealand (1992) 146-147. 88 Or in fact adoptions from birth. 89 Hamed, "Human Rights and Assisted Reproduction" (1994) Tirohia 4. 90 Paterson , "Access to Health and Disability Services and the Human Rights Act" (1995) Human Rights Law

& Practice 5.


IV. Guidelines on Access

Access to infertility treatment lacks coherent guidelines. Presently, regulation of ART is fragmented into disparate articles of legislation, none of which relates directly to ART.91 Infertility clinics lack overarching structures of accountability. In place of this, professional self-regulation is supplemented by clinics voluntarily using the Reproductive Technology of Australia Council (RTAC) guidelines. These do not set procedures for determining access to infertility treatment. As a result, professional capture has occurred in the industry, leading to control of provision without associated responsibilities to ensure it is exercised in a balanced manner.92 While the Royal New Zealand College of Obstetricians and Gynaecologists has issued general ethical guidelines for ART, these presume heterosexuality and ignore difficulties in determining whom to provide to outside the norm. The guidelines assume impliedly that the doctor is the best judge.93

1. Government Involvement

The lack of guidelines for access is the result of considerable reluctance by successive Governments and Parliament to become involved with any part of ART regulation. The government has been inclined to leave the difficult issues surrounding access, among other concerns, to the industry. It has been aided in this by MCART, which advocated little substantial change. Significantly, it indicated there was no need to provide separate New Zealand licensing from RTAC and that providers should adhere to the HRA, using s 97 as an exception clause, without more definitive guidance as to access issues.94 The Government was happy to accede, although balked at a national council, at least on a statutory basis, which might have developed guidelines on access to ART.95 The Official Commentary paper suggests that refusals to treat, arising from medical risks or in the interests of the potential offspring, be determined according to their merits. It suggests that the Human Rights Commission develop relevant guidelines, which it has not so done.96 One writer suggests that Parliament's faith in medical practitioners is stronger than its desire to commit the issue of access to paper, given its lack of response to the Birth Technologies issues paper before in 1985.97

91 Including: Consumer Guarantees Act 1993, Status of Children (Amendment) Act 1987, Human Tissue Act 1964 and Adoption Act 1955.

92 Henaghan "New Zealand: Regulating Human Reproduction" in McLean (ed), Law Refonn and Human Reproduction (1992) 172.

93 Ibid 189. 94 Department of Justice, supra note 75, 7, 12. 95 Ibid 7-8. 96 Ibid 10-12, 14. 97 Department of Justice, New Birth Technologies - An Issue Paper on AID, /VF and Surrogate Motherhood

( 1985) in Henaghan, supra note 92, 171.


Despite its noncommittal attitude the state retains responsibilities to minimise the risk to any child,98 which may result in denial of infertility treatment for some applicants. Fimm to either the pareni or the child has repercussions for society, and Government has a responsibility to ensure that limits are within the tolerance of society's resources tc cope,99 This may seem incongrnous vvith the fact that the State does not interfere in the natural creation of children born to alternative family structures, and with the fact that informal ART is not vetted. One possible response to this argument is that natural procreation is a private matter, whilst infertility treatment invokes the use of a doctor to Rssist in the creation of anotheT being, 100 which entails special responsibilities for those ln a position to ensure the safety of the process.

(a) Legislation

In forthcoming ART legislation the initial step in the state's responsibilities in 2,ccess should be to enact the statutory protection of the welfare of the child. 101

Providers of infertility treatments must be required to take account of the interests of the child when considering to whom to grant access. This is consistent with the ethical responsibilities of docmrs to the i:hird pal'ty in the form of the child, consistent with the state 2cssurning responsibility to prevent harm to children v1here possible and consistent with the state's ability to limiL the liberty to procrr:::,ate where 1he exercise of the liberty would ha.rm others.

The cmTent formulation of lhe bill provides broadly for guidelines to be established by an advisory comnlittee. Although proposed reforms for adoption law recommend legislation of factors to be considered when assessing the welfare of the child, this is for the benefit of the Family Court. 102 In ART; a dedicated regulatory body will have more expertise and flexibility in deciding appropriate criteria and will be able to investigate public opinion itself. This is preferable to the legislature enshrining one particular moral ethical viewpoint 103 However, in the construction of legitimate guidelines to gauge the welfare of the child, the statutory body will have to avoid sanctioning in-elevant factors that might slip through s 44 under the guise of the interests of the child or the welfare of the child.

98 MCART. supra note 25, 56. 99 Daniels and Taylor "Formulating selection policies for assisted reproduction'" (1993) 37(12) Soc Sci Med

1471. 1473. 100 Coney, supra note 38, 44. 101 De Wert, supra note 39. 23L l 02 Law Commission Adoption and Its Alternatives (2000) 70-71. 103 Caldwell & Daniels "Assisted Reproduction and the Lm:v; Implications for Social Policy" in Henaghan &

Atkin (eds), supra note 87. 290.

Balanci11g Rights and Interests 1197

(b) Alternative Family Structures

In the creation of legislation and the subsequent construction of guidelines, the State and regulatory body are obliged to consider the growing bank of research indicating that alternadve structures to the conventional two-pru_·ent family are not inherently harmful to the child. In the three Australian states that have legislated on ART, 104 the two-parent family is :J. proxy for the welfare of the child,1°5 with legislation specifying protection for the welfare of the child and then allowing only manied and/or heterosexual de iacto couples access to infertility treatment 106 In contrast, the Canadian Royal Commission found that families formed by single or lesbian women are neither better nor worse for children than families formed by heterosexual couples. Other factors, such as time invested, nurturing and emotional commitment to the child are most important, 107 while family discord and poverty are more likely to be associated wiU1 children experiencing emotional and behavioural problems.' 03 This is borne out by the grmving number of children naturally born and successfully raised v1ithin alternative structure families, or to a conventional family strucrnre, which then changes. 109 Under-stimulation is a problem noted with children of inteHectually handicapped parents, but is not a significant problem for children of physica11y handicapped parents 110 and can be ameliorated by looking to support networks and family.'" It must remain in mind also that the decision to und.ertake infertility treatment ls not unde1taken lightly and the child will, on the ·,;vhole, be treasured. 112 The approach of IVICART on state limitations is to support the c,pen availability of ART, but to restrict it on a case-by-case basis where, en the individual evidence, it appears that a person will be unable to provide care for the child. It is submitted that this is preferable co the Australian approach.

( c) Preventing Access

The level of harm that v,ill prevent access must be set sensitively. MCART recommends open access with restrictions only in certain cases, phrasing the issue cautiously as: m

l 04 South Australia, Western Australia and Victoria. 105 TmTant, ''Western Australia's Persistent Enforcement of an Invalid Law: s 23(c) of the Human Reproductive

Technology Acct 1991 (WA)" (2000) 8 Jnl Law and Medicine 98·105. 106 Human Reproductive Technology Act 1991 (WA), s 23(c)&(e); Reproductive Technology Act I 988 (SA),

s 13; Infertility Technology Act 1998 (Vic), s 8(1). l 07 Royal Commission, supra note ] , 457. 108 Liu, Artificial Repmduction and Reproductive Rights (1991) 57·58. 109 Roya] Commission, supra note 1, 42-43. l!0 Sandberg, supra note 77, 479-4-81. 111 Royal Commission, supra note 1, 43. ll2 !bid 457. 113 [Emphasis added] MCART, supra note 25, 56.


[A] clinic which wishes to assure itself that the ... person is able to provide care for the child and thus wishes to minimise the risk to any subsequent child would not be in breach of the Act if it denied services where there was doubt.

These two standards of care represent the difficulty in actually determining the cut off point for access. It is unclear what degree and likelihood of harm the child must be at risk from. However, to be free from discriminatory exploitation, it will probably need to be higher than a mere "doubt" of harm to the child, as MCART proposes. The guidelines would have to be careful not to expect to reduce all risk, a standard no parent could hope to achieve. They should also tolerate differences, accepting that a wide range of successful parents and parenting styles exists in the community. Inevitably, however, there will be some people in society who feel their view has been left out.

( d) Overseas Approaches

In considering specific factors for consideration, New Zealand can look to its adoption laws and the approaches of other jurisdictions for inspiration. In R v

Ethical Committee of St. Mary's Hospital, ex parte Harriott, the English Courts approved the use of adoption criteria in access to infertility treatment. 114 The Law Commission Report "Adoption and its Alternatives" recently released recommended factors that should be included in a non-exhaustive list designed to make the best interests of the child more transparent. While many are inappropriate to ART access guidelines, some give a sense of the approach that should be taken. The Law Commission suggests legislation for the consideration of the personal, family and cultural identity that the child will receive, 115 and the preservation of the cultural and linguistic heritage of the child, 116 which hark back to the issue of interracial gamete donation. As well, there is the need for the parents to be suitable and capable to provide for the needs of the child, and to have the appropriate character and attitudes to the proposed child and the responsibilities of parenthood. 117

Further elaboration on the actual qualities parents are to possess, and the factors to be taken into account, can be found in the British model. The Code of Practice established by the Human Fertilisation and Embryology Authority focuses on the importance of a stable and supportive environment for the child. 118

Other factors considered are the parents' commitment to having and bringing up a child; their medical histories and age; their (financial) ability to meet the needs of any child who may result; the risk of harm to the child through hereditary

114 R v Ethical Committee of St. Mary"s Hospital, exparte Harriott, The Times, 27 October, 1987, cited in Grubb, "Access to IVF Treatment- Professional Judgement or Judicial Control?" (1988) Cambridge LJ 168-169.

115 Law Commission, supra note 102, 70. 116 Ibid 71. 117 Ibid 71. 118 HFEA, Code of Practice, part 3.


orders; problems during pregnancy and neglect and abuse; lack of a father; the parents' social histories and the opinion of their usual general practitioner. 119

These wide ranging criteria are still not ideal, with evidence suggesting that doctors are still making uninformed spot judgements as to who will receive treatment, 120 especially concerning single women, elder applicants and same-sex couples. 121 This perpetuates the protection of discriminatory assumptions under the guise of s 13(5) child welfare. 122 While more detailed guidance from the HFE Authority is recommended, 123 the UK approach is favoured by the Office of the Commissioner for Children. 124

( e) Additional Concerns

Worry is also expressed over who is making the assessments, and on what information sources these are based. Doctors are skilled in clinical judgements, but are unequipped to assess social criteria and the counsellors' dual roles of assessing and counselling are also felt to be inappropriate from Victorian experience. 125 These factors are of special concern when people are being turned away upon unsubstantiated grounds. Access under New Zealand adoption law is assessed by a panel of advisers from the Department for Social Welfare and must be approved by the Family Court. 126 Although this is not the approach required when there is no existing child and thousands more infertility procedures are performed than adoptions each year, 127 it indicates the type of wide ranging investigation that is required to support a denial of treatment. Specialised involvement is likely to reduce the advent of spot decisions and admission of stereotypes into judgments. If an overarching ART body were to design and implement the system, it could also ensure a means of review over a decision made, perhaps to a specialised ART complaints committee. Recourse to the Human Rights Commission would follow for complaints based on the HRA. The interpretation of the HRA proffered above could then be used.

(f) Public Involvement

One aspect of the access debate that does generate consensus is the desirability of public involvement in the creation of such guidelines as part of an

119 Ibid para 3.11 - 3.25. 120 Douglas, "Assisted Reproduction and the Welfare of the Child" (1993) 46 Current Legal Problems 62-69. 121 Ibid, 64. 122 Ibid, 55. 123 Ibid, 7 I. 124 Coffey-Noall, "Human Assisted Reptoduction Technology Bill" (1997) 24 Children 12. 125 !TA News, August 2000, http:www.ita.org.au/new-augO.htm (last modified 22 July 2001). Douglas, supra

note 120, 66. 126 Caldwell & Daniels, supra uote 100, 279. 127 Compare 3500 new referrals to ART each year with the 518 adoptions 1998-1999: Ministry of Social Policy,

Statistics Report 1999, (last modified 31 August 2001).


infertility treatment framework. t28 It is believed that public debate on selection issues will mean that criteria vviH be more transparent and ensure the accountability of practitioners. These are essentioJ in an area which has "major elements of control and power". 129 This will also allow the framework of access to be based on moral beliefs widely shared in a pluralistic society and on ethical principles that the majority vvould be very reluctant to modify. t3o Shonlcmd v Northland Health Ltd131 provides a usefu;_ guide as to what constirntes appropriate practice in guidelines for a3sessment for treatment 2,ccording to the Court of Appe2J. Opinions included the views of doctors, medical ethicists, lawyers, pa'dent group representatives, nurses and iwi on matters such as patients' best interests, medical practice, medical ethics and human rights. 132 Additional groups would be relevant in the case of the welfare of the child, which is equally a social as it is a medical issue. The least that can be hoped for, in the likely event that the procedures will not be agreed on by everyone, is legitimacy in process by vvhich the access guidelines are formulated and applied.

PrforUy Cri1teiria for Eirli'ertiUlty Treatment

The issues raised in relation to access guidelines io infertility tre:ltrnent becorne especially significant when seeking public funding for a procedure. As one of the core health services .. infertility trf:cc1Jment funding is applied via priority criterjia. The criteria are designed to optimise the use of health resources by bestowing public treatment on these with the least chance of conceiving without treatment, but with the best chance of success using ART

Annual state funding cf infenihty treatment has recently increased to six minion dollars, around half of the total expenditure on infertility treatment in Ne,;v Zioal:.md per annum. 133 As demand far outstrips supply, priority criterfa restrict access for those vvho are unable to otherwise afford treatment Treatmen': is expensive, with 0Iie cycle for the simplest of donor inseminations costing $470, 13" not including the diagnosccs, specialist consultations and drug therapy to stimufate ovul:ition and sperm development. Complex treatments can cost up to $4995. 135 With chances of a live birth through DI and rvF around 20'36 and 15 percent137 respectively (the nattural rat,e of pregnancy is 25 perce,1t), this effectively pushes up the cost of treatment if p'ltients are willing to try more thi:m one round. The shortfalls of the priority criteria relating to infertility treatrnent are therefore of special concern.

128 Caldwell & Daniels, suprn note l03, 258. 129 Daniels & Taylor, supra note 99, 1476. 130 !bid .. 1478. 131 [19981 l NZLR 433. 132 Ibid 437. 133 "Funding boost for infertility treatment" The Dominion, VVellington, Ne'0.r Zecdand, 9 August 2000. 134 Gillett, Peek & Lilford, supra note 3, 36. 135 Ibid. 136 (UK) Liu, supra note 108, 14.. 137 Gillett, Peek & Lilford. supra note 3. 18.


(a) Criteriafor Funding

Contributors to the development of the criteria are not representative. The criteria are derived from the responses of 19 consumers, 26 health professionals and 3 health administrators, using only 4 central factors out of a possible 10. This falls short of the standard set by Shortland v Northland Health Ltd requiring that guidelines used to deny access must be soundly informed by a representative range of interested parties in order to align with the natural justice requirement in s 27(1) of the NZBORA.

The factors used to rate applicants appear to lack consideration of their potentially discriminatory impact. Most pertinent is the first of the four heads of criteria that looks to factors that exclude applicants from treatment if they compromise the safety of the couple or the child. The National Health Committee states that the HRA and NZBORA are not to be breached when making evaluations for exclusions, and notes the difficulty in assessing the inability to parent or the risk to the child. It suggests that wide public and professional consultation to create a consistent and reliable assessment procedure is necessary, although leaves application of the guidelines to the doctor involved. 138 The Human Rights Commission has advanced its concern on this section and has offered its services to the National Health Committee to assist in the drafting of exclusion factors. 139

Exclusion on the grounds of the welfare of the child and ability to parent is the type of situation for which the guidelines outlined above are contemplated and could be applied under this first head of the priority criteria. However, MCART states that policy grounds may make it inappropriate for the State to "actively encourage" parenthood in some instances. It notes, for example, that it is undesirable for the State to condone financially the creation of children with a high potential of being orphaned by elderly parents and left without support. 140

Similar factors include the inability of prospective parents to raise a child without social welfare. 141 These are political considerations beyond the public funding of infertility treatment itself and beyond the assessment of the welfare of the child, which stray into questions of social welfare dependency. They, prima facie, attract the application of anti-discrimination legislation, and would have to demonstrate an important objective, rationality and proportionality, if they were to ever be implemented. A concern more general to discrimination law is what form of equality access to infertility treatment espouses. For instance, if the guidelines look to equality of opportunity142 treatment might be denied where

138 Gillett & Peek, Access to Infertility Services: Development of Priority Criteria, (1997) 20. 139 Human Rights Commission, Submission to Access to Infertility Services: Development of Priority Criteria,

http://www.hrc.co.nz/org/research/fertilitycriteria.htm (last modified 23 April 2001). 140 MCART, supra note 25, 56. 141 Ibid 55-56. 142 McLean, "Equality and Anti-discrimination Law: Are they the Sarne?" in Huscroft & Rishworth (eds), Rights

and Freedoms: The New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 (1995) 269-270.


applicants are or were fertile, for instance where infertility is a result of earlier lifestyle choices,143 such as through delayed childbearing or sexually transmitted diseases, or where a woman or couple already have a child. Access to public funding for single and lesbian women is already restricted, 144 although, when drafted, the priority criteria expressly included such women. 145

(b) Public Consultation

MCART ultimately recommends resolution of these policy issues through wide public consultation as to what the community sees as an appropriate command of public resources, with open access to infertility treatment in the meantime.146 In the future therefore, the same guidelines as to the welfare of the child and ability to parent may be applied for access to public and private treatments, but public priority criteria may supplement this with additional social criteria. The legitimacy of these considerations is well established, as shown in the analysis of the remaining factors in the priority criteria.

( c) Social and Clinical Criteria

The three remaining grounds for assessment are based on clinical and social criteria. Each raises potential issues of discrimination, yet the Human Rights Commission has given its approval to the criteria. The main objection is to the use of age as a factor reducing the likelihood of access to infertility treatment. MCART "recognises that with publicly funded treatment there will need to be some reasonable limits placed on the age of people receiving treatment". This is consistent with the earlier discussion of rights to healthcare, and follows precedent, deferring to the funding decisions made by authorities. In R v Sheffield Health Authority, ex parte Seale, 147 the local health authority was found to have acted reasonably by applying an upper age limit of 35 years in order to regulate funding allocation. 148 In Cameron v Nova Scotia149 the Canadian province's decision to not fund infertility treatment at all was considered by the majority to be discrimination on the basis of disability. The government was given latitude

143 Daniels & Taylor, supra note 99, 1477. 144 The guidelines and notes on CPAC scoring for publicly funded treatment state that single and lesbian women

are eligible for scoring if a clear biological cause of infertility exists, or at least 12 cycles of DI have been attempted without pregnaucy, of which 6 must be withiu an RTAC accredited unit.

145 Gillett & Peek, supra note 138, 26-28. 146 MCART, supra uote 25, 56-57. 147 (1994) 25 BMLR !, iu The Times, 18 October 1994, cited in Elliston & Britton, "Is Infertility an Illness?"

(1994) New LJ 1552. 148 The case has been criticised for allowing the use age as the only factor in the authority's discretion, but this is

not a problem with the broader considerations used in priority criteria. 149 (1999) 177 DLR (4th) 611 (Nova Scotia CA).


in light of limited resources, however, which amounted to a justifiable limitation under s 1 of the Charter. In Shortland v Northland Health Ltd the New Zealand Court of Appeal upholds the High Court's decision to defer to resource limits placed on rights, as long as the criteria do not fetter individual assessment.150

Publicly funded infertility treatment will be prone to stringent cut-off points based on broad generalisations. In relation to public health resources, need and the ability to benefit will be legitimate primary considerations according to the majority of evidence. The wider public policy questions intimated have yet to be considered, however, and belong to the domain of public debate. Until then, and apart from those policy concerns, the guidelines for publicly funded infertility treatment are intended to reflect the same values as for private treatment.

V. Pending Legislation

Currently before the Health Select Committee are two bills relating to ART, which have the potential to impact upon access to infertility services. The two central issues in relation to access explored here are the limitations on access imposed by the bills and the availability of an appropriate body to develop guidelines under the bills.

The legislative history of the bills demonstrates the reticence to take decisive steps toward legislating the ART issue. The select committee is considering both a private member's bill, the Human Assisted Reproductive Technologies Bill 1996 ("HARTB"), amended by Supplementary Order Paper No 80, and the former National Government sponsored Assisted Human Reproduction Bill 1998 ("AHRB"). The report is due 14 February 2004, following multiple postponements. The time taken for the two bills to reach and move through the select committee demonstrates the lack of impetus within Parliament and the Government on the issue, which means that both bills are likely to need updating on evolving ART issues. 151 Overlap of subject matter will also mean they are likely to be combined. 152

1. The Assisted Human Reproduction Bill

The National Bill has three main threads. It bans unethical ART activities,153

provides for access by children and donors to information about each other154 and re-establishes the National Ethics Committee on Assisted Human Reproduction

150 This approach is consistent with the Code of Rights under the Health and Disability Commissioner Act 1994, which protects the right to be free from discrimination (Health and Disability Commissioner (Code of Health and Disability Services Consumers' Rights) Regulation 1996, Right 2). The previous exemption if the provider took actions reasonable in the circumstances, which was defined as including the provider's resource constraints, has now gone under the new legislation.

151 "Cloning bills outdated says PM" New Zealand Herald, Auckland, New Zealand, 13 March 2001, A7. 152 Beston, "Human clones: down the road of no return" New Zealand Herald, Auckland, New Zealand, 13 March

2001, All. 153 Assisted Human Reproduction Bill 1998, cl 4 & 5. 154 Ibid cl 9-28.


("NECAHR") on statutory grounds. 135 The issue of access is not dealt with directly, although the NECAHR is to develop guidelines for procedures and techniques, 156 which could be interpreted to include access guidelines. This avoids creating a national council on ART, abdicating the responsibility for licensing of clinics to RTAC and more worryingly leaving policy development in the control of a na1Tow ly oriented ethics body. 157 NECAI-IR is equipped to revievv new reproductive technologies to ensure their ethical aspects are considered before application of the technology. 158 This role is reaffirmed under clause 7(a), which states that the Committee is to reviev,r AJCU' proposals for compatibility ·with people's rights. 159 l"·JECA1YJR provides advice on i\RT issues to the I'vlinister of 1-foalth and the National Advisory Committee on Health and Disability Services Ethics, and ethical guidelines to regional ethical bodies. It has limited resmtrces, meetiag only quarterly, and is unable to publish reports or make media statements without Ministry of Health approvzcl. 160 This lack of autonomy, coupled with its ethics focus means it '>NIH be stretched beyond its appropriate function if it is to deal vvith access guidelines.

ff J\TECAHR were unable to produce guidelines for access, the effecl would be to continue with the 2tatus quo, or professjonal self-regulation, the inadequacies of which have aJready been touched on. Alternatively the Human Rights Connnission or the courts could be left to create policy, which is also inapprnpriate. The Lavv Commission Report on adoption is already reconsideri_ng the viability of the Family Court developing its own policieE: on adoption access and suggests the legislation of guidelines to remedy this. 16 ' Lack of statutory protection of the chik, could affect Human Rights Commission decisions when determining access. Essentially, the National bill refuses lo take up the challenge to provide a ,:;ohesjve approach to the HRA and the welfare of the child. Neither of the par,ties' interests and rights are supported in the biWs concern to avoid tackling the contentious subject of access.

In conlrast, I-{ARTB provides an opening for the regulation of access and declares a pervasively child-oriented stance. The bill covers roughly the same te1ni.n as the 1998 Bin in regards lo an information register and banning some ART, such as human cloning. H also esto.blishes a central adrninistrative body ju the Advisory 'Committee on Assisted Reproductive Procedures and Human

155 Ibid cl 6. 156 Ibid cl 7(b). 157 Dm1iels & Hargreaves "The Policy and Ethics of SmTogacy in New Zealand: Vtlho is Left Holding the Baby?"

(1997) 6(2) Otago Bioethics Repmt 4. 158 Paterson, ·'Rationing Health Care and Human Rights: the 1'1orthland Health Case" (1998) 3 l',!ZLR 580. 159 Assisted Hurnan Reproduction Bill 1998. 160 Coney, "The Cuffent Situation in New Zealand" in Coney & Else, supra note 36, 22-23. 161 Law Commission, supra note 102, 70-71.


Reproductive Research in cl 31. The Advisory Cmmnitree is to formulate guidelines on any matter relating to ART, 162 which implies the ability to create access guidelines. It would be appropriate for this function to be stated explicitly. although it is difficult to imagine access not being addressed, since it is one of the central features to affect a child and overarching the 1996 Bill is concern for the paramountcy of the child. The primary principle which must guidle all persons exercising powers or performing functions under the bill is that the "health and well-being of children born as a result of the performance of an assisted reproductive procedure should be paramount in all decisions 2,bout the procedure", 163 The prima facie effecit of the term "pararnountcy" is to oveffide the application of the HRA and NZBRA, le:wing the human rights they contain expressly subject to the interests of the child, The earlier cl 7 which st::-,ted that "nothing in this Act shall derogate from any of the provisions" of tbe human rights legislation has been removed.

Any guidelines win be within the reach of the J\IZBORA since the Advisory Comrnittee is a branch of the executive under the NZBORA s 3(a). The Committee is established by the rvlinister of Health and its members are appointed by the Minister of Health after consultation w_ith the l\illnister of 'vVomen's Affairs. 164 Public and arguably private hospitals perform a public function under s 3(b} of the NZBORA when providing public trecttment, which 1°1ay be reinforced by the application of public access guidelines. S 6 requires an interpretation of the pararnonntcy provision consiscent 'with s 19 nondiscrin1ination to be preferred. As a result, the abilicy to parent and ,:;are for the interests of the child will rtill have to be defined in the careful mariner suggesied earlier in order to reduce discriminatory assumptions about tbe ideal parent Blanket discri:rnination and irrelevancies vvill not be condoned ff1erely because of the paramountcy provision.

The parnmmmtcy provision and human rights legislation are reconcilable only to a certain point and the effect of the clause wiH be felt when there is a doubt over the welfa:re of the child" Parnmountcy of the child sets a high tariff for prospective parents. Although some level of risk must exist to provide R cul off point for access, the paramountcy of the child does not contribute sensitively to the debate that must proceed before that point is set. It may act to favour unrealistic standards, viewing some characteristics with less tolerance than trusted conventional family formations. Pannnountcy of the child could also preclude balancing tests of rationality and propcrtionality under ss 64 and 97 of the HRA, or s 5 of the NZBORA, 165 by acting as an overriding consideration '\IVithout need for proof of a good reason or genuine justification for breach of a prohibited ground of discriminaticn. It is difficult to see the justification for such

162 Human Assisted Reproduction Bill 1996. Supplementary Order Paper No 80, cl 34(])(b), 163 Ibid cl 4(a)o 164 Ibid cl 33(1), 165 ln the unlikely event a claim of breach is brought under the NZBORAagainst a hospital or the Authority itself


stringent measures when debate continues over the legitimate way to define an appropriate child-raising environment or any concrete evidence in the particular case. While the paramountcy phrase is used in adoptions, the underlying rationale is not relevant in ART access decisions. 166

The paramountcy consideration is potentially relevant to a donor information database and experimentation on embryos and foetuses; however, access to ART itself should not be made subject to the paramountcy provision. It is recommended here that protection of the child's interests be legislated in the final version of an ART statute, but that paramountcy in relation to access is unnecessary and impacts too restrictively upon the right to be free from discrimination under the HRA and NZBORA. The enactment of an express child paramountcy provision may merely confirm that ART access was intended to be restricted.

While neither Bill outrages the NZBORA, there is still the danger that a well thought out access provision could fall by the legislative wayside. To avoid this, legislation needs to establish the means for a suitable body to create access guidelines by appropriate means. There should be statutory protection of the interests of the child, but not phrased in terms of paramountcy. Equivalent affirmation of the application of human rights legislation would also help strengthen the intention to balance the interests of parents and children, although this would apply in any event through an advisory committee on ART or through the hospitals' application of access guidelines and general service delivery. The legislative enterprise is in fact not the difficult part of the access issue - this falls to the body creating an accommodative approach in the guidelines themselves. The statutory framework must be there, however, to guide the body's attempt at the reconciliation of children's interests and parents' rights.

VII. Conclusion

Treatment for infertility is not the purely medical issue that it has generally been treated as. It is a social, political, economic and legal concern that impacts on the personal lives of patients and on the way we view ourselves as a community. Access guidelines and decisions under those guidelines deserve close scrutiny to ensure their legitimacy and should strive to accord with the rights of the parents and the interests of the children as far as practicable.

In order to do this, the state must not shy away from the measures that this will involve. Rather than ignoring the access issue, or attempting to solve it by emphasising the interests of certain parties, there should be open acknowledgement of the difficulties that ART presents New Zealand as a society. These should inform the legislation and guidelines that will soon be put to use. In

166 Adoptions from birth have declined in recent decades, but the same issues apply there too. Henaghan, "Legally Rearranging Families", snpra note 87, 146.


this way, wide public consultation especially in relation to social priority criteria can proceed and the debate can really begin.

The NZBORA and the HRA are capable of supporting these efforts. They do not have to be seen as an impediment, but as facilitative mechanisms capable of balancing weighty interests and rights. Combined with incisive legislation and guidelines, a legitimate framework for access can be ensured, as best is possible, to respond to the diverse claims that will be made upon it.

1208

The Rofo of E§toppel as a Defence to Clabns in Unjust Enridnnent

Jane Taylor*

I. JJ:ntrodudiorm

Since recognition of the 'change of position' defence in Lipkin Gorman (a 19.n~i) v Karpnale Ltd' the role of estoppel in claims of unjust enrichment has been questionecl. 2 Three recent English Court of Appeal decisions3 have cast further doubt on the continuing role of the estoppel defence, as the courts creatively strain to limit Hs application. The decision in Dextm Bank & Trust Co. Ltd v Bank of Jamaica," that widened the defence of change of position to include anticipatory reliance, is ostensibly yet another nail in the estoppel coffin.5

The principal concern of the courts is that, successfully pleaded, estoppel will defe8t the plaintiff's claim In its entirety. This may in so:rne circumstances allmv the defendant to retain a 'windfall', resnlting in injustice to the plaintiff. 0 L]I contrast, the change of position defence detennines the extent 'i.o vvhich the defendant's position has changed in reliance on the receipt; it is ,=,nly the corresponding 'dlsemichment' th,lt is protected. This is considered to be a more ''.just" result. 7

The apparent directicn of the judici,try is reflected in Jonathan Parker J's statement in Phiilip Collins L!d v Davi:::: "[t]he lav1 has now developed to the point vvhete the defence of esioppel by representation is no longer apt in restitmionary claims where the [more] flexible defence of change of position is

LLB(Hon.s), DipAcc (Victoria), CA. This article has been \Vritten from a United Kingdom perspective, as the Iaw in New Zealand i.n this area is not v•1eJl developed. Hmvever, the few cases avaifo_bk ein estoppel by representation in T',fov+1 Zealand seen1 to indicate a preference for foe posh-ion taten by the English courts, notwithstanding the ackn.ovvledgment of a unified element of 'unconscionabi1ity' that is conunon to aH estoppels: see Gillies v Keogh [1989] 2 ]\TZLR 327 (CA); Rattroys lVhole:wle Ltd v Nleredyth-Young & A 'Court Ltd [1997] 2 NZLR 363 (CA); Lim v Ward McCulloch Soiicitors Nominees Ltd (1999) 8 NZCLC 261, 922 (CA). [1991] 2AC 548 ["Lipkin Gorman"].

2 Goff and Jones, The Law of Restitution (6th ed, 2002) 843; Key, "Excising Estoppel by Representation as a Defence to Restitution" [1995] CLJ 525. Scottish Equitable plc v Derby [2001] 3 All ER 818 ["Scottish Equitable"]; National Westminster Bank plc v Somer International (UK) Lid [2002] l All ER 198, [2002] 3 WLR M ["Somer fmernational"]; Phillip Collins Ltd v Davis and another [2000] 3 All ER 808 ["Phillip Collins"].

4 (26 November 2001) unreported, Privy Council, Appeal No. 26 of2000 ["Dex,ra"]. 5 Prior to this case, it was generally accepted that estoppel would continue as a potential defence in situations

where the defendant's change of position preceded the receipt of the benefit: see Fung and Ho, "Change of Position and Estoppel" [2001] 117 LQR 14. 17; Jaffey, "Change of Position and Estoppel" [2002] pt l Lloyds Mar & Com LQ l; Somer International, supra note 3, [47].

6 See Lipkin Gorman, supra note 1, 579 per Lord Goff. 7 Goff and Jones, supra note 2, 838.

The Role of Estoppel as a Defence to Claims 1209

in principle available".8 Should the estoppel defence indeed be consigned to the legal archives?

This article explores the role and function of estoppel in the modern law of unjust enrichment,9 considers the relationship between the defences of estoppel and change of position, and examines the decisions in Scottish Equitable plc v Derby1° and National Westminster Bank plc v Somer International (UK) Ltd11 in detail. The article concludes that the retention and proper application of the estoppel defence is essential to the integrity of the law in this complex area.

II. The Relationship of the Estoppel Defence to a Claim in Unjust Enrichment

Unjust enrichment at the expense of another may be categorised as a causative event that gives rise to a legally recognised right to restitution. 12

Similarly, a representation in estoppel by representation is an event arising from a manifestation of consent. 13 The representation generates a primary obligation to honour the promise. The response of the courts to a breach of this obligation has been to hold the representor to her promise by denying her legal rights to restitution.

Accordingly, where estoppel is raised as a defence to a claim in unjust enrichment, two different events, both giving rise to legally recognised rights, are implicated. Because estoppel operates as an absolute defence, the plaintiff's right to recover his mistaken payment is "trumped by the justice of being bound by seriously intended representations subsequently relied upon". 14 In effect, the defendant's interest in the security of her receipt takes priority over the plaintiff's interest in the restitution of his wealth. 15

Successfully pleaded, estoppel operates as a denial of unjust enrichment ( that is, the defendant's retention of the mistaken payment can no longer be regarded as unjust) rather than a denial of enrichment, which would simply require that the measure of subsequent disenrichment be assessed. 16 Key observes that it is only if the representation is limited to the extent of the defendant's "detrimental reliance" that it might be regarded as affecting the enrichment condition of the plaintiff's action. 17

8 Supra uote 3. 9 Although estoppel is potentially a defence to all types of restitutionary claim, it is mainly concerned with

mistaken payments: see Virgo, The Principles of the Law of Restitution (Oxford, 1999) 694. 10 Supra note 3. 11 Ibid. 12 Birks, The Foundations of Unjust Enrichment: Six Centennial Lectures (2002) 47. 13 See Birks, "Equity in the Modem Law: An Exercise in Taxonomy" (1996) 26 UWALJ 61 - 64 ["Equity in the

Modem Law"]. 14 ·Birks, "Change of Position: The Nature of the Defence and its Relationship to Other Restitutionary Defences"

in Mcinnes (ed), Restitution: Developments in Unjust Enrichment (1996) 68 ["Change of Position"]. 15 See Grantham and Rickett, Enrichment and Restitution in New Zealand (Hart, 2000) 318-319. 16 This is the situation with the quite separate change of position defence. 17 Key, supra note 2, 530. Note that the measure of detrimental reliance is problematic and does not necessarily

correspond to disenrichment.


The question remains whether, in view of the rapid development of the change of position defence, the courts will continue to allow the estoppel defence to prevail over repayment of the defendant's surviving enrichment. Birks has observed that to do so, "a judge would have to find a reason why the justice of allowing the plaintiff to recover the still un-eliminated enrichment should be trumped by the justice of holding the plaintiff to his representations" .18 The answer to this complex question is explored below; first, by considering the doctrinal underpinnings of estoppel by representation; secondly, by analysing the ingredients necessary to establish an estoppel; and finally, by considering the modem role of estoppel as a defence to a claim in unjust enrichment.

III. The Doctrinal Focus of Estoppel by Representation

Estoppel by representation provides a complete defence to a claim in unjust enrichment where (i) the plaintiff makes a representation of fact that leads the defendant to believe that he was entitled to the payment, and (ii) the defendant acts to his detriment in reliance on the representation. 19

The historical development of the doctrine of estoppel by representation has been well documented by a number of academics and comrnentators.20 However, it is useful to outline briefly the history of estoppel as a basis for understanding the potential role of the doctrine in modem law.

1. The Origins of Estoppel by Representation at Common Law

Although the ongms of the doctrine of estoppel by representation were equitable,21 it was developed by the common law in the early nineteenth century following the decision of Lord Mansfield in Montefiori v Montefiori. 22 The broad principle behind the defence was described by Lord Denman CJ in Pickard v

Sears: 23

[W]here one by his words or conduct wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.

18 Birks, "Change of Position", supra note 14, 68. 19 Skyring v Greenwood (1825) 4 B & C 281 ["Skyring"]; Holt v Markham [1923] 1 KB 504 ["Holt v

Markham"]; Avon County Council v Howlett [1983] 1 All ER 1073; [1983] 1 WLR 605 ["Avon CC"]. 20 See Cooke, The Modern Law of Estoppel (2000); Thompson, "From Representation to Expectation: Estoppel

as a Cause of Action" [1983] CLJ 257; MacDougall, "Consideration and Estoppel: Problem and Panacea" [2000] 15 Dalhousie LJ 261.

21 See Cooke, supra note 20, 19-22. 22 (1762) 1 Black W. 363; 96 ER 203. 23 (1837) 112 ER 179; 6 Ad & E 469, 474.


The original aim of estoppel was essentially the same as that of the developing law of contract: to hold people to their promises or undertakings.24

However, the two doctrines conflicted in the mid nineteenth century, primarily due to the operation of the Statute of Frauds 1677 and the tenacious requirements of the doctrine of consideration.25 Following Jorden v Money26 estoppel, both at law and in equity, was no longer concerned with the enforcement of promises because of the courts' insistence that it operate only on statements of fact. The function of cornmon law estoppel was finally clarified in Low v Bouverie,27 where it was explained that: 28

Estoppel is only a rule of evidence; you cannot found an action upon estoppel. Estoppel is only important as being one step in the progress towards relief on. the hypothesis that the defendant is estopped from denying the truth of something that he has saido

Accordingly, the opportunity to form a doctrine of binding reliance-based promises in the developing law of obligations was stifled: a promise was enforceable only as a contract or not at all. 29 Estoppel by representation was confined to a role as a rule of evidence, a purpose that was affirmed by the English Court of Appeal in the leading case of Avon County Council v Howlett30

("Avon CC") and more recently in Somer lntemational.3 1 The consequence of the rule is to preclude the representor from asserting facts contrary to his representation; an estoppel does not confer subslantive rights on the representee. 32

However, allhough estoppel at common law does not technically confer substantive rights, in effect it acts to ensure thaL the expectations of the representee are met As a result, its remedial consequence is essentially the same as that of contract The substantive effect of estoppel relief has been recognised by the courts. In Somer lnternational, Potter LJ commented that: 33

Nonetheless, because of the decisive impact which estoppel by representation may have upon the outcome of any individual case, whether as a step on the way to establishing a cause of action, or as defeating a prima facie valid claim based on facts which (absenl the representation) would entitle the claimant tc recover, such estoppel undoubtedly gives rise to substantive legal consequences,

24 See Freeman v Cooke (1828) 2 Exch 654, 664 per Pmke B. 25 See discussion in Cooke, supra note 20, 24-25. 26 (1854) 5 HLC 185; [1843-60] All ER 350 ["Jorden v Money"]. 27 [1891] 3 Ch 82 ["Low v Bouverie"]. 28 Ibid 105 per Bowen LJ. 29 Jorden v Money 0 supra note 260 30 Supra note 19. 31 Supra note 3, [37] and [53]. 32 Fung and Ho have commented that: "lj]udicial and academic statements that estoppel is a rule of evidence are

predominantly made in order to emphasise that it does not create a cause of action": see Fung and Ho, supra note 5, 18.

33 Somer International, supra note 3, (37].

1212 Auckla;id University Law Review

Earlier, Lord VI/right similarly observed in Canada and Dominion Sugar Co Ltd v Canadian National (West Indies) Steamships Ltd that "[e]stoppel is often described as a rule of evidence, as., indeed, it may be so described. But the whole concept is more cmTectly vievi1ed as a substantive rule of law". 34

Conceptually, therefore, estoppel by representation is, in effect, a binding promise or undeitaking that arises by consent. In essence, the court is seeking to enforce an obligation. As Birks has observed:35

Estoppels have all aiong beeE binding promises. But until recently, the rare word [estoppel] has also been useful for something else, namely to identify their peculiarity in being binding only for one purpose, for the purpose of being used as a shield in litigation ... , 'What ,ve have been doing in the last 50 years is ... recognising that promises as lo past, present and future are all binding in that defensive role ....

Accordingly, estoppel by representation can be viewed as a "detdrnentaI reliance contract". If this were to assume full legal status, the remedy for breach would undoubtedly be contractual, a remedy which is "flexible, adaptable ::..nd relatively ceiefmin".36 Contractual damages are measured from the expectation base unless. exceptionally, a reliance-based award is considered more appropriate.

Paradoxically the evidential rule, which operates as a form of strict liability, serves to ensure that the defendant's expectc:J.tion is indeed borne out: the courts have traditionally had no discretion to assess the measure of relief (whether contractual or otherwise) in estoppel by representation. As will be discussed below, most of the academic and judicial criticism of estoppel in the context of unjust enrichment is focused on this consequence of the defence.

'Equit11ble' estoppel, which includes both proprietary and promissory estoppel, has developed in parallel to common law estoppel despite the attempt by nineteenth century judges to confine estoppel at both law and equity to a rule of evidence. Proprietary estoppel has a long history spanning centuries, culminating in the first major decision recognizing the doctrine in its modern manifestation, Re Basham. 37 Promissory estoppel has undergone rapid development and expansion since Lord Denning's judgment in Central London Property Trust Ltd v High Trees House Ltd,38 ("High Trees") to the extent that it has been used effectively as a cause of action. 39

34 (1947] AC 46, 56. 35 Birks, "Equity in the Modern Law", supra note 13, 63. 36 MacDougall, supra note 20, 296, 37 (1986] 1 WLR 1498. 38 [19~7] KB 130 [ "High Trees"]. 39 Hiiltons Stores (Interstate) Ltd. v Maher (1988) 164 CLR 387 ["Waltons Stores"].


In contrast to estoppel by representation, it is acknowledged that both forms of equitable estoppel modify or suspend the substantive rights of the parties. However, the courts' "mini_mum equity to do justice"40 approach to equitable estoppel rneans that the remedy is usually reliance-based rather than expectationbased.41

AH forms of estoppel have a common underlying purpose: to prevent the plaintiff from refusing to recognise ( or seeking unjustly to deny or avoid) an assumption or belief that she has induced or encouraged in the defendant, ·where the defendant has subsequently acted or regulmed his affairs in reliance on that assumption. This principle has prompted attempts to integrate estoppel by representation i11to a unified doctrine modelled on equitable estoppel: the evidentiary rule would be replaced with a 1nore flexible regime based on notions of fairness, justice, and conscionability. Howevei", with the exception of the Australian High Court, the judiciary has so far resisted any rationalisation of the various forms of estoppel.42 One of the principal attractions of a unified doctrine in the context of unjust enrichment claims, as will be exmnined belm,V, is the notion2J availability of equitable remedies.

Had it not been for the doctrine of consideration, estoppe! by representation might have developed as a branch of contract law in which promises that are relied on to the d,etriment of the promisee are treated in rnuch the same way as contracts. Unless :md u11:til estoppel by representation becomes subsumed into the lavv of contract, it seems correct, in principle, to treat il as an 'almost contract' rather than as a species of equitable estoppel - it is essentially a manifestation of consent. This is certainly the dfrecdon borne out by the authorities," However, whether thi.s analysls causes injustice to the plaintiff in cases of mistaken payment and, if so, what the 1aw's response should be, remains to be considered.

IV. lVIaking mlt the Eie:nllents of the Defence in Unjuist Enrkh.n1em1t Cases

The following section analyses the strict requirements of estoppel by representation: the representation, reliance, and detriment If the defendant to a daim in unjust enrichment is unable to establish an es1toppel, the alternative is to fall back on the defence of change of position.

40 Crabb v Arun District Council [1975] 3 All ER 865. 880; [1976] Ch 179. 198. 41 This is a contentious area; for example, MacDougall advocates a contractual approach to a.11 forms of estoppel:

see MacDougall, supra note 20. 42 See Somer Intemationa!, supra note 3, [38]-[39]. 43 See Cooke. supra note 20, 150- 169. Noie ihat the decisions of the Australian High Court in The

Common:wealth v VerYi;ayen (1990) 170 CLR 394 [ "Verwayen "] and YFaltons Stores, supra note 39, are ostensibly exceptions to the weight of authorities, at least in theory if not in practice (see discussion infra).


Properly understood and applied, the estoppel defence will only be available in a very narrow range of circumstances. The elements required to establish the defence are as follows:

1. The Representation

In accordance with the common law pos1t10n and authorities, the representation must be a clear and unambiguous statement of fact.44 In Lim v Ward McCulloch Solicitors Nominees Ltd, Tipping J stated that "[t]here is a conceptual similarity between the clarity necessary before a representation can found an estoppel and what is required for contractual certainty".45

It is apparent that the payment of money by mistake without any form of collateral representation will not be sufficient to ground an estoppel.46 There is nothing to justify the defendant's reliance on any inherent representation, as the defendant is in as good a position as the plaintiff to know whether the payment is due.47 Goff and Jones state: "A mistaken payment is not in itself a representation which gives rise to an estoppel. There must, therefore, normally be some further indication of the defendant's supposed title other than the mere fact of payment."48 It is also plain that the plaintiff must make the representation to the defendant: representations made by third parties without the knowledge or consent of the plaintiff will not be sufficient.49

The common law has recognised several exceptions to the general principle that representations must be made expressly and unequivocally. These include cases where a duty of accuracy exists,50 and where the representation may be implied from special circumstances surrounding the transfer.51

In advancing a unified doctrine of estoppel, Cooke maintains that representations need not necessarily have contractual certainty, because of the different nature of the two jurisdictions.52 However, if the focus of estoppel by representation is to hold the representor to her promise, the standard of the representation must without doubt be clear and unequivocal. Grantham and Rickett have commented that to found the defence of estoppel "it is necessary to point to some factor which renders the position of the parties unequal"; for example, where the responsibility for the accuracy of the payment lies with the

44 Spencer, Bower and Turner, Estoppel by Representation (3rd ed, 1977) 4; Low v Bouverie, supra note 27, 106. 45 (1999) 8 NZCLC 261, 922, [23] (CA) ["Lim"]. 46 Lipkin Gorman, supra note I, 579; Phillip Collins, supra note 3; National Bank of New Zealand Ltd v Waitaki

International Processing [1999] 2 NZLR 211 (CA) ["Waitaki"]. 47 Grantham and Rickett, supra note 15, 317; Birks, An Introduction to the Law of Restitution (Clarendon,

Oxford, 1985) 403. 48 Goff and Jones, supra note 2, 839. 49 Lipkin Gorman, supra note I. 50 Skyring, supra note 19; cf RE Jones Ltd v Waring and Gil/ow Ltd [1926] AC 670. 51 Holt v Markham, supra note 19. 52 Cooke, supra note 20, 75.


plaintiff.'3 However, merely establishing some degree of inequality may not be sufficient unless the court considers that another category of exception is warranted.

Following the emergence of the change of position defence, it is almost certain that the courts will discern a representation only in the most unequivocal circumstances. As Robert Walker LJ has predicted, "the court will no longer feel constrained to find that a representation has been made, in a borderline case, in order to avoid an unjust result" .54 Accordingly, representations that fall short of contractual certainty are likely to be disregarded. This is a welcome clarification of the law that will restrict the estoppel defence to deserving cases. It is therefore difficult to concur with the statement in Somer International that "whether or not an actual representation as to entitlement v1as made or can be spelt out is largely fortuitous and ex hypothesi the result of accident rather than deliberate conduct".55 For a representation to be valid there must indeed be a "deliberate" consensual act by the representor.

The defendant's reliance on the plaintiff's representation is a critical enquiry in establishing the estoppel defence. Reliance has been described as "believing the representation to be tme". 56 For example, in United Bank v Jiwani the defence of estoppel failed, as it was held that the defendant had not honestly believed that tbe mistaken payment was due to him.57 In addition to being honest, the belief engendered by the representation must also be reasonable in the circumstances.58

Whether a defendant honestly believed the representation to be true, and whether such belief was reasonable in the circumstances, is both a subjective and an objective inquiry. Usually the court at first instance will rule on the evidence before it, and appeal courts are often reluctant to overturn the determination at first instance.59 The onus is on the defendant to establish his honest belief, a burden that, in cases of mistaken payment, will often be very difficult to discharge.

Cooke has commented that the successful use of estoppel in cases of mistaken payment is rare, 3.s usually the payee is well aware that the payment is not his. 60 In cases where the payment represents a 'windfall' it may be almost impossible for the defendant to establish that he honestly believed the truth of the representation (for example, that "the money is yours" or some equivalent

53 Grantham and Rickett. supra note 15, 318. 54 Scottish Equitable, supra note 3, [48]. 55 Somer International, supra note 3. [35]. 56 Cooke, supra note 20, 90. 57 [1976] l WLR 964. 58 Lim. supra note 44, [25]. 59 See for example Scottish Equitable, supra note 3. 60 Cooke, supra note 20, 90.


statement), or that this belief was reasonable. Increased focus by the courts on the honesty requirement may well address the concern described by Slade LJ in Avon CC:61

I recognise that in some circumstances the doctrine of estoppel could be said to give rise to injustice if it operated so as to defeat in its entirety an action which would otherwise lie for money had and received. This might be the case for example where the sums sought to be recovered were so large as to bear no relation to any detriment which the recipient could possibly have suffered.

In contrast to the requirement in estoppel that the defendant must hold an honest belief, knowledge of the mistake is not invariably fatal to the change of position defence. All that is required is that, notwithstanding his knowledge, the defendant has acted reasonably and with a clear conscience. 62

3. Detriment

Estoppel is a reliance-based liability: the defendant must establish that she relied on the representation to her detriment. There are two components to detrimental reliance. First, the defendant must have taken some action in relation to the receipt of the money, usually described as a change of position. 63 Secondly, the defendant must have suffered a detriment by taking that action. The measure of detriment for this purpose is clearly reliance loss, not expectation loss.64

Accordingly, a mere change of position that does not incur detriment will be insufficient to found the defence of estoppel.

The detrimental reliance inquiry is conceptually complicated by the relationships between change of position and reliance-based detriment; and between the reliance loss necessary to establish detriment, and the failure to meet the expectation of the representee. In cases of mistaken payment, the action taken in reliance on the representation is often not a disadvantage to the representee until the representor realises his mistake. However, once demand is made for return of the money, the representee's change of position becomes detrimental, as he must incur the inconvenience of refunding the mistaken payment.65 It is the potential requirement to refund the money ( as distinct from the failure of the expectation) that establishes the necessary reliance loss.66 Dixon J explained this proposition in Grundt v Great Boulder Proprietary Gold Mines Ltd, in which detriment was described as: 67

61 Avon CC, supra note 19, 1089; 624-625 [Emphasis added]. 62 Waitaki, supra note 46, 228. See also Birks, "Change of Position", supra note 14, 59. In Dextra the Privy

Council affirmed that "good faith on the part of the recipient" is sufficient to entitle the defendant to invoke the change of position defence: see Dextra, supra note 4, [40]-[46].

63 This stage of the enquiry is the causation test: see Cooke, supra note 20, 93. 64 See ibid 96. 65 See ibid 99 for a full discussion of this point. 66 See Skyring, supra note 19, 289-90. 67 [1937] 59 CLR 641,674.


[T]hat which would flow from the change of position if the assumption were deserted that led to it. So long as the assumption is adhered to, the party who altered his situation on the faith of it cannot complain. His complaint is that when afterwards the other party makes a different state of affairs the basis of an assertion of right against him, if it is allowed, his own original change of position will operate as a detriment.

Detriment may also consist of an omission to act, in reliance on the representation; for example, failing to sue on time.68

Conceptually, reliance-based detriment is an abstract commodity: it is not necessary, nor indeed desirable, to quantify the loss in monetary terms. Rather, "detrimental reliance is a factor that persuades and provokes a response, that leads the judge to hold that it would be wrong not to estop the representor from doing as he wishes". 69 Early decisions of the courts manifestly regarded any such quantification process as irrelevant and inappropriate.70

Consequently, there is no minimum level of reliance loss necessary to found an estoppel, although the presumption is that any loss that is more than de minimis will qualify.11 Clearly what is de minimis in any particular case is a question for debate, and the de minimis principle may well be a means to avoid extreme results.72 The extent of the reliance loss relative to the amount of the mistaken payment is the critical test.

In estoppel, change of position refers to the action taken in reliance on the representation that is required to establish a causal connection between the representation and the defendant's reliance. It is not a measure of the detriment or reliance loss suffered. For example, while expenditure on a Pacific cruise in reliance on the receipt is clearly a change of position, it is not a detriment per se. Rather, detriment is established when a restitutionary claim is made, and the defendant would be required to refund the mistaken payment. However, if the receipt had instead been invested in shares that increased in value (again, a change of position), no detriment will be suffered, as there has been no reliance loss.73

The tendency of both courts and commentators to confuse the defendant's change of position with the measure of reliance-based detriment, and their further failure to appreciate the role of the detrimental reliance inquiry in estoppel, has been an unfortunate development in this area of the law, particularly with the emergence of the ( quite unrelated) change of position defence to claims in unjust enrichment. While both estoppel and the change of position defences have a significant and valid role in restitutionary claims, the two are conceptually quite different, as illustrated by the following points:

68 Pacol Ltd. v Trade Lines Ltd. and RII SIF IV (The 'Henrik Sif') [1982] 1 Lloyd's Rep 456; Greenwood v Martins Bank Ltd. [1933] AC 51.

69 See Cooke, supra note 20, 98. 70 Skyring, supra note 19; Holt v Markham, supra note 19. 71 See Scottish Equitable, supra note 3. 72 See Virgo, supra note 9, 701. 73 Ibid 700.


(i) The change of position defence is concerned with the quantum of the defendant's disenrichment rather than the extent of reliance-based detriment. For example, repayment of a debt is not generally regarded as a change of position in the sense of disenrichment,74 yet clearly the inconvenience of refinancing would constitute a reliance loss for the purposes of founding an estoppel. Similarly, the loss of an opportunity to sue, which is recognised as constituting reliance-based detriment, will not necessarily be quantified in the change of position defence." Conversely, on the 'wide' view of the change of position defence,76 disenrichment is not necessarily limited to action taken in reliance on the receipt. For example, an innocent recipient of money that is later stolen will be protected by the change of position defence.77

(ii) Perhaps more importantly, while the change of position defence operates to relieve the defendant of the obligation to repay the quantum of his disenrichment, the reliance-based detriment identified in estoppel is only an element in establishing the defence of estoppel. Once the full requirements of estoppel are met, the remedy is focused on making good the defendant's expectations rather than compensating him for the detriment suffered, irrespective of whether such detriment is measured by disenrichment or reliance losses.78

On the basis of the above analysis, it is impossible to see any merit in the "novel and ingenious" argument advanced in Scottish Equitable that the defence of change of position "pre-empts and disables the defence of estoppel by negativing detriment".79 In estoppel, the defendant's change of position is simply the action taken in reliance on the representation. It is not a measure of disenrichment, nor does it equate to the reliance-based detriment required to found an estoppel. Compensating for the defendant's disenrichment will have no effect whatsoever on the determination of detriment in estoppel; a fortiori it cannot negate that detriment. Arbitrarily adjusting for any disenrichment will, at best, purport to destroy the causal link between the representation and the defendant's reliance - which would be like shutting the stable door after the horse has bolted. It is difficult to conceive of a parallel situation where the operation of an alternative defence might break the chain of causation required to found an unrelated and potentially more just defence.

74 Scottish Equitable, supra note 3, [34]-[35]. 75 See Somer International, supra note 3. Although this was discussed on the facts, it was left open as to whether

Joss of a chance would be relevant to the change of position defence, which was not advanced as a potential defence.

76 See Burrows, The Law of Restitution (1993) 425-428; Scottish Equitable, supra note 3, [30] per Robert Walker LJ.

77 Scottish Equitable, supra note 3, [30]. 78 This is the traditional view and is controversial in itself: see the section on Relief in Estoppel infra. 79 Supra note 3, [45]-[47].


4. Fault of the Defendant

The defence of estoppel will fail if the payment was caused by the fault of the defendant; for example, where the defendant is a wrongdoer, or misleads the plaintiff by rnisrepresentation.80

V. A Comment on Unconscionability

The unconscionability factor in all forms of estoppel is concerned with "whether or not it is wrong for the maker of the representation to go back on it". 81

However, this is not a test in itself: it is not a licence for the courts to dispense "palm tree justice". 82 Rather, the elements required to found an estoppel ( as discussed above) must be examined with this underlying principle in mind. 83 ·

In Lim Teng Huan v Ang Swee Chuan, 84 Lord Browne-Wilkinson noted that the unconscionability arises from the withdrawal of the statement; that is, the inconsistency - there is no need for it to have been unconscionable to make the representation itself. Birks has stated that: "[t]here is no other kind of unconscionable behaviour involved other than that which consists in failing to honour one's promises".85 Resort to a subjective evaluation of "all of the circumstances of the case"86 is contrary to principle and "a counsel of despair .... The danger is in crossing unawares from a contract unconscionability to a tort unconscionability". 87

Traditionally, most actual references to unconscionability are found in cases of equitable estoppel, where the court may be required to make a value judgment to achieve a just and fair result. In such cases the representation may be less clear, or may involve, for example, a collllllon assumption. 88 However, as Cooke points out, the court nearly always bases its decision on a thorough examination of the criteria required to found an estoppel. While concern with unconscionability may be less apparent in cases of estoppel by representation (where the promise is more obviously contractual in nature), it nonetheless remains the underlying principle on which estoppel is founded.

It is essential to distinguish the unconscionability factor in establishing an estoppel from the remedial jurisdiction the court exercises once estoppel is found

80 See generally Goff and Jones, supra note 2, 831; Virgo, supra note 9, 700-701. 81 Cooke, supra note 20, 84. 82 Ibid 86. 83 Lim, supra note 44, 261, 927 per Tipping J. 84 [1992] 1 WLR 113, 117. 85 Birks, "Equity and the Modem Law", supra note 13, 64. 86 See Deane J's comments in Verwayen, supra note 42, 445. These words are also found in the New Zealand

test in National Westminster Finance New Zealand Ltd v National Ba11k of New Zealand Ltd [l 996] 1 NZLR 548, 550: "(6) In all the circumstances it would be unconscionable to allow the other party to resile or depart from the assumption".

87 Birks, "Equity and the Modem Law", supra note 13, 64 n 148. 88 Cooke, supra note 20, 85.


to exist on the facts. The unconscionability of the representor in departing from his representation does not, in itself, confer on the court a discretion as to the remedy that it awards. 89 It simply establishes whether the defence of estoppel is made out. The relief granted by the court is a separate inquiry that must be governed by doctrine and principle, and is fully explored in the following section.

Recent developments in estoppel as a defence to unjust enrichment90 have suggested that a 'remedial' unconscionability test is warranted to "avoid the potential injustice which would arise from the defence of estoppel operating as automatically a complete bar to the plaintiff's restitutionary claim".91 This advance followed obiter comments in Avon CC that suggested it might be unconscionable, in certain circumstances, for the defendant to retain the whole of the mistaken payment.92 The response advocated is that estoppel should operate pro tanto, in much the same way as the change of position defence, and accordingly should focus on the extent of the defendant's detriment. While prima facie this approach may seem to more satisfactorily achieve a balance of justice and fairness between the parties, it has a number of critical shortcomings. These shortcomings fall into two main categories:

(i) The representation 'event' is almost entirely overlooked in the analysis, in particular the consensual nature of the event and the consequential expectation engendered in the representee.93

(ii) There is no basis, either in doctrine or in principle, for introducing an element of judicial value judgment and discretion into an area where the court has sufficient flexibility ( albeit within principled constraints) to achieve a just result.

The following discussion and case analysis will support and expand on these observations.

VI. Relief in Estoppel

Although it has been viewed as a rule of evidence,94 the substantive effect of estoppel is to hold the representor to his promise, and, in doing so, to meet the expectations of the representee who has relied on the representation.95 The plaintiff is, in essence, prevented from making out his cause of action.96

However, it is somewhat ironic that despite the attempts of nineteenth century judges to distinguish representations from contractual promises (which require

89 But see Fung and Ho, supra note 5, 19, who hint at this possibility. 90 See Scottish Equitable, supra note 3; Somer International, supra note 3. 91 Virgo, supra note 9, 703; Somer International, supra note 3. 92 Supra note 19, 1078 per Everleigh J; 1076 per Cumming-Bruce J. 93 Somer International, supra note 3, is a good example of this shortcoming: see the discussion infra. 94 Reaffirmed in Somer International, supra note 3, [37]. 95 Jackson, "Estoppel as a Sword" (1965) 81 LQR 84, 87-95. 96 Avon CC, supra note 19.


the element of consideration) by the introduction of the evidentiary rule, the substantive outcome, at least in estoppel by representation under the common law, has been the equivalent of the award of expectation losses (the contractual measure). Accordingly, Cooke has observed that "[e]stoppel is about the meeting of expectations". 97

Where estoppel by representation is successfully pleaded as a defence to unjust enrichment, the usual measure of relief, by operation of the evidentiary rule, is the equivalent of expectation losses - until the perhaps aberrant decision in Somer International, the courts in England resisted any move to compensate reliance loss only. The extent of the detrimental reliance suffered by the defendant is not considered relevant; rather the relief focuses on making good the expectations that the defendant has legitimately formed. In cases of mistaken payment, this has meant that the defendant is entitled to retain the entire enrichment, irrespective of the extent of his detriment.98

There has been widespread criticism of the 'all or nothing' relief provided by estoppel in cases of unjust enrichment, particularly since recognition of the change of position defence. As Grantham and Rickett have observed:99

There is a growing recognition that while the immediate effect of the estoppel may be to prevent the party making the representation from alleging contrary facts, this of itself should not entail that the representor is held to all of the consequences of that statement.

Indeed, the development of a flexible pro tanto remedial regime in estoppel is considered by some to be essential to the survival of the defence. 100 The justification for a pro tanto approach stems from two interrelated sources: both advocate reliance-based detriment as the appropriate remedial response to an estoppel.

1. The Limited Defence approach

The limited defence approach reflects the contention that awarding a complete defence to the representee nearly always leads to a disproportionate and unfair result. In the interests of achieving justice and fairness between the parties, the courts must have the flexibility and discretion to limit the defence to the extent that is deemed necessary, having regard to all of the circumstances of the case. In general, this will mean limiting the defendant's counter-claim to reliance-based detriment. The relevant test is one of unconscionability: is it unconscionable for the defendant to retain the enrichment?101

97 Cooke, supra note 20, 151. 98 Avon CC, supra note 19; Holt v Markham, supra note 19. 99 Grantham and Rickett, supra note 15, 320. 100 Fung and Ho, supra note 5, 19; Key, supra note 2. 101 Somer International, supra note 3, [67].


Doctrinal support for the limited defence approach is tenuous at best. The principle relied on is an equitable one, as summarised by Potter LJ in Somer International: 102

[l]t is clear that the doctrine of estoppel by representation stems from and is governed by considerations of justice and equity. That being so, it is difficult to see why equity should, as between the parties, be impotent in an appropriate case or category of case to require a person relying on the defence of estoppel by representation to rely upon it only to the extent of any detriment suffered.

In support of this view, advocates point to the equitable roots of estoppel by representation, and its description by Lord Cranworth LC in Jorden v Money as "a principle well known in the law, founded upon good faith and equity, a principle equally of law and equity". 10'

Key, a strong advocate of the limited defence approach, argues that "as a matter of principle, there is little to support the traditional view of estoppel by representation as affording a complete defence to restitution". 104 Provided that the defendant's detriment is reversed, it is not unfair to make her disgorge any remaining enrichment as she has not acted in detrimental reliance. He further comments that it is "inappropriate to regard the plaintiff's innocent misrepresentation as affecting the unjust nature of the emichment". 105

2. The Unified Doctrine Approach

Proponents of this approach, which originated in Australia, 106 maintain that the difference in analysis and result evident between estoppel by representation and equitable estoppel leads to inconsistency and potential injustice. Rather, a single unified doctrine of estoppel should be developed in which the court has the remedial flexibility that is apparent in equitable estoppel. The remedial focus of the unified doctrine is on "the minimum equity to do justice", 107 which has been interpreted as reliance-based relief. 108

Support for this approach is based on the view that estoppel by representation, in terms of its substantive effects, has "expanded beyond its evidentiary function". 109 Accordingly, in cases of unjust emichment estoppel would provide a defence only to the extent of the defendant's detrimental reliance. As Mason CJ has stated: 110

102 Ibid [43]. 103 Supra note 26, 210. 104 Key, supra note 2, 531. 105 Ibid 532. 106 See Waltons Stores, supra note 39; Verwayen, supra note 43. 107 Following the conunents of Scarman LJ in Crabb v Arun District Council [1975] 3 All ER 865, 880; [1976]

Ch 179, 198. 108 Verwayen, supra note 43: see generally Cooke, supra note 20, 158-165 for a detailed account. 109 Ibid 412 per Mason CJ. llO Ibid 413.


A central element of ... [the unified] doctrine is that there must be proportionality between the remedy and the detriment which it is its purpose to avoid. It would be wholly inequitable and unjust to insist upon a disproportionate making good of the relevant assumption.

While the unified doctrine approach has a strong foothold in Australia, the English Court of Appeal has not followed this lead. The current position, affirmed in Somer International, was aptly summarised by Millet LJ in First National Bank pie v Thompson:m

[An attempt] to demonstrate that all estoppels other than estoppel by record are now subsumed in the single and all-embracing estoppel by representation and that they are governed by the same requirements has never won general acceptance. Historically unsound, it has been repudiated by academic writers and is unsupported by authority.

However, the courts' future position remains relatively uncertain: in Scottish Equitable, Robert Walker LJ raised the possibility that the House of Lords might adopt a unified doctrine of estoppel to obtain the remedial flexibility evident in equitable estoppel. 112

Neither of these two approaches is convincing. The limited defence approach has several fundamental flaws. First, contrary to Key's view, there is little 'in principle' to support the view that estoppel should not operate as a complete defence in most circumstances. If it is accepted that the strength of the representation is equivalent to that of a contractual promise, it is correspondingly appropriate in principle that the defendant's expectation be fulfilled in its entirety. 113 Equity is unlikely to intervene in this situation, especially to reduce arbitrarily the award to reliance-based relief. 114

Secondly, the focus in estoppel by representation is on the representation itself, and therefore the plaintiff's conduct, not on the detriment suffered by the representee. Although fault (quite rightly) does not act as a bar to a claim in unjust enrichment, 115 it may well be a relevant factor in the operation of the estoppel defence. For example, the representation may have been negligently made, 116 or may be in breach of a duty; it is not at all clear that a representation in mistaken payment cases will necessarily be 'innocent', as Key asserts. If the court considers that it is unconscionable for the representor to resile from his promise, then the defendant is entitled to have her reasonable expectations met.

Thirdly, there is no justification, either in doctrine or in principle, for limiting the defendant's remedy to an enrichment-related defence restricted to his reliance

111 1 All ER 140, 144; [1996] Ch 231, 236. 112 Supra note 3, [48]. 113 Indeed, this has been the attitude of the courts to date with few exceptions: see Cooke, supra note 20, 150-169. 114 This is borne out by the "preponderance of legal authority and judicial dicta at the highest level": see Somer

International, supra note 3, [36]. 115 See Scottish Equitable, supra note 3. 116 As was arguably the case in Scottish Equitable: see Fung and Ho, supra note 5, 19.


interest. Such an approach fails to considef the conduct of the representor in creating a legitimate expectation in the mind of the representee. Contrary to Key's understanding, estoppel does not "operate by considering whether or not it is unconscionable or inequitable to require restitution", 117 Rather, estoppel is concerned vvith Yvhether it is unconscionable for the representor to depart from his representation, which the defendant has relied on to his detriment Detriment hcts no rnle other than as a necess:iry ingredient in establishing the defence: the remedial response of estoppel is plainly concerned v1ith meeting the expectation generated as a result of the plaintiff's representation.

The unified doctrine approach assumiss that reliance-based relief wiH automatically flow in cases of estoppel by representation, due to the intervention of equity and its overriding objective of doing justice between the parties. However, this is neither a logical nor a necessary corollary. Vi/here a representation is dear and unequivocal, as is almost certainly the case in estoppel by representation, it is quite likely that equity vviU continue to favour the satisfaction of the defendant's expectations. Indeeod, this has been the observed practice of the courts in Austra!ia118 (where the unified approach doctrine has its roots). despite th~ High Court's strong olJiter comments suggesti11g otherwise. 119

fo Giwnelli v Ghunelli, 120 the High Court of Australia affirmed that the expectation me,mire of relief was available, relying in part on the judgment of Deane Jin The Cmmnonwealth v Verwayen: 121

Prima facie, the operation of an estoppel by coaduct is lo preclude departme from tbe assumed state of affairso i't is only where relief framed on Lhe basis of that assumed state of affairs would l:,e iaequitably harsh, thr.t so:c~1e lesser form of ;ielief should be awarded.

Accordingly, m estoppel by representation justice is done by meeting expectations, not by remedying cletrim.'cnt 122 There is no reason for this to change, even if a unified doctrine is adopted, unless the requirement for an express promise or representRtion is relaxed. It is only if it becomes unnecessary to identify an express promise or representation - when it is merely necessmy to ascel12cin whether it would be unconscionable for the plaintiff to deny an expectation ihat the defondr.nt has acted on -- that t,he court, in its equicable jurisdiction, may reasonably have a discretion to decide to what extent that expectation should be fulfilled.

In favouring expectation-based relief in estoppel by r1;:presentation, there are two points worth observing:

117 Key, supra note 2, 534. 118 See Cooke, supra note 20, 163. 119 Venvayen. supra note 43,430 per Mason J; 429 per Brennan J. 120 [1999] 161 ALR 473. 121 Supra note 43, 443 per Deane J. 122 See generally Cooke, supra note 20, 158 - 169.

The Role of Estoppel as a Defence 10 Claims 1225

(i) Although potentially exceptional, there may well be cases where the defendant's reasonable expectation, properly assessed, does not amount to the full extent of the mistaken payment. 121 This is an area that has not yet been explored by the courts, as it would require redefining the role of estoppel from a 'strict liability' evidentiary rule to a doctrine that enforces consensual obligations. Perhaps it is time that the courts recognised the substantive remedial role that estoppel legitimately plays by removing the evidentiary 'bar' and moving to a more transparent analysis of the obligation~ and rights of the parties.

(ii) There may be scope for limiting the overall effecl of the representation lo the time intervening between its being made and its subsequent 'revocation'. This potential approach is conceptually analogous to that ia High Trees, where the contractual rights of lhe plaintiff were suspended during the period of operation of the promise, but reinstated once the promise was retracted. Similarly, the defendant in an unjust er~richment claim cou1d be limited to the expectation interests chat he could establish were related lo the period between the maki!1g of the representation and its eventual \,vithdrawaL While perhaps theoretically appealing, this approach is likely to suffer from (not insurmountable) quantification difficulties: at what point does the defendant's legitimate expectation terminate?

VU. The Decision in /Scottish Equ,itabl'e Jilc

In iejecting 1he defence of estoppel by representation, the English Court of Appeal relied on wh::i.t it interpreted as 'excepfrJns', e)qxessed by the Court in Avon CC, io ,the traditional view that a defendant shoulcl, be granted a comple'le defence. Clearly the Cmm considered that it :.vas inequitable for Derby to retair, the greai:er pmt of the mistaken payment of £172,400 ·when his 'change of

position' was only £9,600. Analysing U1e obiter comments of the Courit in Avon CC in comext, it is

unclear ·01hether the learned judges' observations ·were intended lco give rise to exceptions to the general rule, or, alternatively, to HmTison J's subsequent interpretation: 124

[H]aving regard to the dicta of the Court of Appeal [in Avon CC] ... I do not consider that I am bound ... to hold, in the circm'.1sta11ces of this case, that estoppel must operate as a complete defence.

The Court in Avon CC strongly endorsed the evidentiary role of estoppel and its operation as a complete defence based on what it regarded as "established legal principles governing the doctrine of estoppel" .125 Further, the Court

123 Fung and Ho acknowledge that, if estoppel were to operate pro tanto, "the defendant's expectation interest may also call for protection": see Fung and Ho. supra note 5, 18.

124 Scottish Equitable pie v Derby [2000] 3 All ER 793, 806. Harrison J's position was affirmed by lhe CA: see Scottish Equitable, supra note 3.

125 Avon CC, supra note 19, 1086-1087.


specifically considered the proposition that the defence might operate pro tanto and concluded that this was contrary to both principle and authority. 126

Consequently, the elevation of their obiter remarks to the status of 'exceptions' seems to be a somewhat dubious interpretation, particularly as this interpretation is founded on a vague and undefined notion of unconscionability.

While there might prima facie be a possibility that "on the facts it would clearly be inequitable to allow a party to make a profit by pleading estoppel", 121

it is surprising that the Court in Scottish Equitable did not take the opportunity to examine fully the ingredients necessary to establish estoppel before resorting to the unconvincing 'exception' rationale. For example, did Derby hold an honest belief that he was entitled to the funds? Was his detrimental reliance (as distinct from his disenrichment) sufficient to found an estoppel? The facts of the case lend themselves to a detailed consideration of the de minimis threshold. It is unfortunate that the Court did not recognise this opportunity.

Of further concern is that the Court did not consider the conduct of the plaintiff in relation to the making of the representation. This is an essential aspect ,of the estoppel inquiry. As Fung and Ho have commented, "Harrison J should have considered the fact of the claimant's repeated and negligent representations, its disregard of the contrary information provided by Mr Derby during the telephone conversation, and its failure to make a proper enquiry". 128 In addition to this, the time taken to discover the mistake (some sixteen months) is surely of relevance. It seems from the judgment that once the Court rightly decided that carelessness does not preclude recovery in cases of mistaken payment, 129 the conduct of the plaintiff in the estoppel inquiry was overlooked. However, these are two discrete inquiries: the irrelevance of fault to the event of unjust enrichment does not preclude its consideration in establishing the estoppel defence.

Finally, the Court's merging of Derby's disenrichment with the detrimental reliance required to found an estoppel seems to have been influential in its conclusion. However, a proper inquiry is likely to have established that Derby indeed suffered substantial detrimental reliance once the mistake was discovered. For example, the inconvenience of refinancing his mortgage debt, together with the expectation of an improved lifestyle, may well have been relevant.

On balance, it is difficult to conclude that Scottish Equitable was rightly decided. Properly analysed, it seems that the requirements of estoppel were clearly established. Although the Court did not address the unconscionability of the plaintiff, it appears from the facts that it was unconscionable for Scottish Equitable plc to resile from their unequivocal representation. Far from obtaining

126 Ibid 1088. 127 Ibid 1075-1076 per Cumming-Bruce LJ. 128 Fung and Ho, supra note 5, 19. 129 Scottish Equitable, supra note 3, 824.


an inequitable windfall, there seems to be no legitimate reason why, in these circumstances, the defendant was not entitled to have his reasonable expectation met.

VIII. The Decision in Somer International

In Somer International the English Court of Appeal reaffirmed the traditional classification of estoppel by representation as a rule of evidence. 130 However, in order to avoid a result that it regarded as unjust, an "unconscionability test" was applied, which was described as a further "general" exception to the strict rule of evidence based on the decisions in Avon CC and Scottish Equitable. 131 The test was expressed by Peter Gibson LJ as "whether it would be unconscionable and inequitable for the recipient of the moneys mistakenly paid to retain the moneys having regard to what the recipient did in reliance on the representation made to him" .132 The tenuous authority advanced in support of this proposition seems to rest on a hybrid of the limited defence and unified doctrine approaches, and is based on compensating the defendant for the disenrichment suffered. 133

If the unconscionability exception is adopted, it will "probably deprive the traditional rule of any significant role in the future". 134 However, this unprincipled development in the law of estoppel surely cannot survive. The almost exclusive focus by the Court on the defendant's disenrichment is completely contrary to the established principles of estoppel by representation. Rather than considering the circumstances giving rise to the representation and the conduct of the representor, the Court chose instead to focus on the conduct of the representee, and the extent of the detriment suffered.

In analysing the elements necessary to found an estoppel on the facts given, there is little doubt that this case was wrongly decided. The defendant company proceeded to conduct its business on the assumption that the representation was correct: it suffered substantial detriment when the mistake was discovered, albeit that not all of the detriment could be quantified in monetary terms (such as the loss of a chance to sue).'35 In view of the conduct of the plaintiff, there is no apparent reason why the defendant company should not have been entitled, both at law and in equity, to have its reasonable expectations honoured.

This case highlights the grave dangers of adopting a remedial 'unconscionability' test in estoppel cases. By departing from established principles, the court has watered down the significance of the representation to

130 Supra note 3, [37]. 131 Ibid [60]-[61]. 132 Ibid [67]. 133 Ibid [61]. 134 Key, "Estoppel by Representation as a Defence to Restitution: The Exception Proves the Rule?" [2001] CLJ

465,468. 135 The potential outcome of any litigation in this sense is not relevant ( even if it were open for the judge to decide

this as a matter of fact - a point that is contestable): it is the loss of the chance that causes the reliance loss.


the point where it is virtually extinguished. The 'justice' of the plaintiff being entitled to recover his mistaken payment has trumped the legitimate expectations of the defendant who relied on the plaintiff's promise to his detriment. As a result, the consensual strength of the representation has been arbitrarily reduced to one more akin to tort, with a remedy correspondingly focused on compensation for reliance loss. The Court has not given any adequate explanation for this shift in principle: the introduction of the notion of unconscionability in this context is nothing other than a front for judicial creativity.

IX. Conclusion

Estoppel as a defence to claims in unjust enrichment is at a crossroads. This article has attempted to demonstrate that the defence of estoppel by representation has an important continuing role to play in the developing law of unjust enrichment. Recent attempts to restrict its application are misguided and may lead to potential injustice. The decisions in Scottish Equitable and Somer International aptly illustrate this point.

By careru1 and thorough analysis of the criteria required to found an estoppel, most of the perceived injustice to the plaintiff may be alleviated by restricting the application of the defence to deserving cases. Developing and controlling the estoppel framework - rather than resorting to the vague and woolly notion of unconscionability - more appropriately accommodates the potential 'exceptions' recognised in Avon CC. It is unlikely that, properly analysed, the defence will be available in true cases of windfall.

Although estoppel operates as a rule of evidence that prevents the plaintiff from making out his cause of action in unjust enrichment, the substantive effect of the defence is the meeting of the defendant's expectations. By acknowledging that the plaintiff's promise has the equivalent of contractual force, the courts may decide to remove the evidential bar, 136 and accordingly have recourse to the range of 'contractual' remedies available. Such a move would stem criticism of the 'all or nothing' effect of estoppel, and permit recovery by the plaintiff in circumstances where the defendant's reasonable expectation loss did not exhaust his enrichment. The alternative would be to subsume estoppel by representation into the law of consent. However, the doctrine of consideration remains a formidable hurdle to any development in this direction.

Restricting the remedial consequences of estoppel to a pro tanto award based on some measure of reliance loss is neither sound in principle, nor will it lead to justice and fairness between the parties. This approach ignores the critical factor of the representation, its concomitant of reliance, and the protection of the defendant's legitimate expectations. Because detrimental reliance may comprise intangible factors (such as the loss of a chance), the extent of reliance-based

136 The evidential rule is sometimes described as an "historical accident": see Fung and Ho, supra note 5, 18.


detriment often cannot be adequately quantified in monetary terms. Furthermore, this approach wiH potentially lead to confusion 'Nith the change of position defence as the courts attempt to include or exclude factors that may not strictly constitute 'disemichment'. Accordingly, there is a danger that the development of the change of position defence may be muddied quite unnecessarily in order to accommodate the remedial consequences of estoppel.

Although eswppel is the ancesmr of the change of position defence, the two defences perform very different functions. Change of position seeks to rectify the overpayment by measuring the precise extent of the defendant's surviving enrichment In contrast, estoppel seeks to protect the legitimate interest of the defendant arising from his detrimental reliance on the representation. Put simply, change of position involves acting on d1e faith of the receipt, whereas estoppel is concerned with acting on the faith of the representation. In cases of mistaken payment the principles of estoppel require that the expectation of the defendant be protected, in-espective of the plaintiff's detriment Where estoppel cannot be justified on the facts, change of position offers an alternative defence based on the defendant's disenrichment. The "tension" between the two defences identified by Goff and Jones ceases to exist on proper analysis and application of the criteria necessary to found an estoppel. 137

Finally, should the estoppel defence trump the plaintiff's right to recover his mistaken payment? The righr to recover for unjust emichment is rapidly moving tmvnrds stdct liability. Accordingly. !he defences available to the defendant have assumed increasing importance as a means of mitigating what may, i.n some circumstances, be a potentially unjust prima facie right The specific criteria required to found an estoppel explain why the plaintiff, rather than the defendant, should bear the loss that results frnm the defendant's reliance. It is the element of consent in the plaintiff's actions that makes it fair to estop him from pursuing an action for restitution: because of the plaintiff's consent, the defendant's enrichment can no longer be considered unjust. The failure of the courts to hold plaintiffs to thefr representations in cases involving mistaken payments (for example, where an express promise is made forbearing to sue) may potentially bring the law of unjust enrichment into disrepute.

137 Goff ancl Jones. supra note 2, 841-844.


Smoke and Mirrors:

The Introduction of Private Prosecutions under s 54A of the Health and Safety in

Employment Amendment Act 2002

Natalie K. Fraser*

This paper is dedicated to the memory of Mervyn Andre Jones (Merv)

22nd October 1968 - 20th January 2003.

In looking at occupational health and safety we should never get so caught up in the politics that we forget the people that the legislation is designed to

protect.

Hutia te rito o te harakeke Kei hea te komako e ko?

Ki mai ki ahau He aha te mea nui o te ao?

Maku e ki atu He tangata, he tangata, he tangata.

If you pluck out the heart of the flax bush, how can the bellbird sing? You ask me: What is the greatest thing in the world?

I reply: It's people, it's people, it's people.

* BA/LLB(Hons). This paper would not have been possible without the willingness of seven 'industry players' to speak to me in person, openly and frankly, about what impact they believe the amendments will have on the health and safety arena. Their sometimes very different perspectives have enabled me to achieve a balanced analysis of the practical and theoretical effects that the new s 54A will have on health and safety in the workplace. For that I am grateful: Greg Llyod, NZCTU, Wellington; Paul Jarvie, EMA (Northern), Auckland; Peter Berry, Electricity Engineers Association, Wellington; Tracey Conlon, Department of Labour, Wellington; Bernard Healy, Transpower, Wellington; Malcolm Chase, Electrix, Auckland; Grant Johnson, Electrix, Hamilton. I would like to thank Bill Hodge, of the University of Auckland, Faculty of Law for supervising my dissertation. I would also like thank my mother Linda Fraser, my step-father Grant Johnson, my sister Jan-Maree Fraser and her partner Kay Davis for their unwavering love and support.

Smoke and Mirrors 1231

"Employers will be forgiven for believing that the size of the stick has much increased but any carrot is entirely missing "1

I. Introduction

It is undeniable that work is an essential part of everyone's life. It is also undeniable that the social and financial impact of workplace accidents on the community is devastating. The occupational health and safety record in New Zealand is appaUing2 and the "consequences of workplace injury and illness ripple out and affect all of us."3 Not only do 400 people die from work-related fatal iHnesses every year, there are also estimated to be 160 work-related fatal injuries every year. fa any given day it is estimated that someone needs treatment for a workplace incident every two minutes. These figures equate to 242,000 work-related accident insurance claims in 98/99, which is equivalent to a claim being lodged by approximately l in 7 workers. 30,000 injured employees are off work for 5 days or more every year, and 1.25 million days of work are lost every year. The real, as opposed to the insured cost of work-related injuries is estimated at $3 billion for 92/99 periods.' "Despite popular myth, work accidents and disease do not generally occur because of apathy, carelessness or stupidity on the part of workers, but through unsafe and unhealthy systems, processes and tools of work"5

These statistics make it evident that the Health and Safety in Employment Act6 was obviously lacking, and not enough was being done to protect New Zealand's workers. Yet, despite the need for improvement, legislative amendments in the occupational health and safety arena are inherently political and attract great controversy.

As the curtain closed on ihe 2002 Parliamentary year the controversial Health and Safety in Employment Amendment Bill was passed. The purpose of this Act was in part to make the principle Act more comprehensive in coverage,' and also to promote compliance vvith International Labour Convention 155 concerning occupational safety and heath and the working environment. 8 The Act came into force on 5 May 2003.9

Business New Zealand, Submission on Health and Safety in Employment Act Amendment Bill to the Transport and Industrial Relations Select Committee 16.

2 Rt. Hon. M. Wilson "Health and Safety in Employment Amendment Bill - First Reading" (Speech delivered to Parliament, Wellington. 5 December 2001).

3 Occupational Safety and Health, "Aftennath" (2002). http://www.osh.Qovt.nz/order/cataloeue/pdf/aftermath.!llif_(last modified 15 July 2003).

4 These figures are based on the statistics in Office of the Minister of Labour, Discussion Paper on Review of the Health and Safety in Employment Act 1992 (Department of Labour, December 2001). New Zealand's workplace fatality record (4.9 per 100,000) is not good in comparison to Australia (3.8 per 100,000) and the USA (3.2 per 100,000).

5 New Zealand Council of Trade Unions, Submission on Health and Safety in Employment Act Amendment Bill to the Transport and Industrial Relations Select Committee (10-12 December 2002) 6.

6 Health and Safety in Employment Act 1992 [ "HASE Act"]. 7 Health and Safety in Employment Amendment Act 2002 s 3(a). 8 !bids 3(c). 9 See also the extensive advertising campaign as a rneans of educating the public about the amendments:

htto://www.workinfo.fovt.nz.


Included in these amendments is the new s 54A, which removes the Occupational Safety and Health Service's (OSH's) monopoly on prosecutions under the Principal Act. The crux of this amendment is that it allows for private prosecutions to be brought where OSH decides not to take enforcement action.

Although it was one of the "least controversial"10 of the amendments, the new s 54A generated heated dialogue from both sides of the employment fence. 11 This paper examines this discourse and the impact that the new s 54A will have on workplace health and safety.

This paper is divided into five sections. The first section (Part II) introduces the issue of private prosecutions as an enforcement tool for breaches of the HASE Act and examines both the history of private prosecutions and the history of the debate. The section concludes with a review of the proposal to remove the monopoly and a summary of the submissions received by the Transport and Industrial Relations Select Committee.

The issue of private prosecutions in the health and safety arena generates emotive rather than objective responses. Parts ill and IV detail and critically examine the arguments for and against the introduction of private prosecutions under the Act and analyse the strength of the positions for retaining or amending the status quo.

Part V provides a practical examination of the new s 54A and looks at how the section will be applied by both OSH and the private individual on OSH deciding not to take any enforcement action. Part V also examines the interplay between the removal of the monopoly and the new Sentencing Act 2002, and the impact that the two pieces of legislation will have on private prosecutions under the HASE Act.

The paper concludes with a critical analysis of the perceived effectiveness of the amendments and questions whether the introduction of private prosecutions will result in a substantial change to the occupational health and safety environment. The paper concludes that rather than having a positive effect, the amendments constitute a legislative trick analogous to an illusion with smoke and mirrors that does very little to increase the power of the individual under the HASE Act whilst looking like it introduces substantial change.

10 Interview with Tracey Conlon, Solicitor, Department of Labour, Legal Services. 11 This paper captures the viewpoints of diverse actors who have an impact on workplace health and safety: the

employer; the employer representative; an industry-specific employer interest group; a trade union collective, and the Department of Labour. On request of some individuals, comments will remain anonymous. Interview notes are held by the author.


II. The Background to s 54A of the HASE Act.

1. The Issue

Under the former system "injury [was] the only consequence of a breach."12

The issue of the OSH monopoly on prosecution, and the consequent bar on private prosecutions shadowed the HASE Act since its inception. S 54 prevented the laying of an information by anyone other than an OSH inspector. The amendments to the Act removed this monopoly on prosecutions.

The HASE Act was the product of the "recognition of a need to regulate for workplace health and safety."13 Earlier legislation was an eclectic mix of narrow and prescriptive1• Iegislation that was applied in a haphazard fashion: 15

This ... approach was followed through out the world, until the 1970s when governments began to review health and safety legislation from first principles. In the United Kingdom this revision process saw a major Royal Commission led by Lord Robens and the publication of the landmark 'Robens Report' in 1972. The report recommended the introduction of a single piece of legislation which applied consistent policies and enforcement procedures across the range of industries.

In New Zealand the flow on effect of the Robens Report was a comprehensive review of the expanse of health and safety legislation that governed through the 1980s. In 1985 the Advisory Council on Occupational Health and Safety (ACOSH) was implemented as the "principal advisory body to the government on all matters effecting safety, health and welfare at work."16

They were charged with reviewing all existing legislation that impacted on health and safety and to develop a single piece of "comprehensive legislation"17 that encapsulated all forms of work activities. The review culminated in the HASE. 18

The new act was based on a policy of "adherence, accessibility, uniformity of standards, and universal coverage."19 Its enactment repealed the vast expanse of the earlier legislation. In its place was now a single piece of legislation that pertained to both the public20 and private sector. This new legislative approach was based on prescription, rather than reaction and was effective through the imposition of minimum standards.21 Primary responsibility was placed on the

12 Interview with Paul Jarvie, Employers and Manufacturers Association (Northern), Manager Occupational Health and Safety.

13 Occupational Safety and Health A Guide to the Health and Safety in Employment Act 1992 Department of Labour, Wellington, (2000).

14 Ibid. 15 16

Ibid. Mazengarb's Employment Law, 3 (1993), 6000.1.

17 Ibid. 18 19 20 21

Supra note 13. Supra note 16. Supra note 6, s 3(2)(b ). Supra note 13.


employer who operated under a general duty to provide a safe and healthy work environment. This general duty was enforced via a range of "graduated responses available from OSH Inspectors,"22 who acted as an "industrial police force."23

Although the fundamentals of the act were sound, the impact of the new act on workplace accidents was not nearly as effective as envisaged or intended. It was obvious that more needed to be done to reduce the devastating statistics of workplace accidents and illnesses.2•

"Internationally, accident and illness rates have been declining."25 That is also true for New Zealand. However, most of the decline is attributable to changes in the nature of work; as more dangerous occupations shrink in comparison with the rise of the number of safe jobs, not an improvement in workplace safety culture,26 and certain sectors remain over-represented:21

For some a day at work is uneventful. For an increasing number of people it ends in an accident or even worse death. Every week, on average three people who head off to work don't return. They are killed while doing their jobs, or getting to or from work.

The HASE Act empowers OSH as the central enforcement agency for workplace safety. Under the former legislative framework, the Department of Labour failed to achieve satisfactory results in relation to the incidents of workplace non-compliance and the number of cases prosecuted. OSH is currently under-equipped, both financially, and without "enough tools to persuade and require employers who are not complying to comply."28 •

The most effecp.ve means of improving health and safety and thereby reducing the statistics of work-related accidents is to improve decision-making; "that is the behaviours of the actors in the system."29 There was a palpable lack of faith in the system. Parties that took radically different positions in relation to other employment issues agreed that the former system failed to achieve its objectives. Business representatives felt that the amendments would spell the death of "Mum and Dad" businesses that are already crippled by compliance costs.3° Unions did not have a lot of confidence in OSH.31 There is the view that OSH is "ridiculously underfunded",32 and that workers get injured and there

22 Transport and Industrial Relations Select Committee, Health and Safety In Employment Amendment Bill 2001 (HSE/DOUI, 2001) [34].

23 Supra note 16. 24 Supra note 13 at 5. 25 Supra note 4. 26 Ibid. 27 Supra note 2. 28 Supra note 5 at 2. 29 Ibid. 30 Deborah Coddington "Margaret Wilson Wins Over Commonsense" (Media Release, 21 October 2002). 31 Interview with Greg Lloyd, New Zealand Council of Trade Unions, Occupational Safety and Health and

Accident Compensation Corporation Coordinator. 32 Ibid.


seems to be no OSH activity - no prosecution.33 This dissatisfaction has been credited to a failing in the previous legislation.

The current Labour government proposed to fill this gap and:34

[l]mprove the effectiveness of the [HASE] by: providing for increased fine levels," introducing Infringement Offence Notices (IONs) with financial penalties,36 removing the Department of Labour's Occupational Health and Safety Service's (OSH) monopoly on prosecutions,37 providing a more flexible limitation period for the initiation of prosecutions and by making it unlawful to insure against any fine imposed.38

These proposed amendments formed part of the Government's overall strategy for improving injury prevention in the workplace.39 OSH's primacy and core responsibility under the HASE Act was to ensure compliance through education and prosecution, and compliance depends on the credible enforcement of the requisite standards when voluntary compliance does not occur.40 It is this credible enforcement that the Act was deemed to be lacking. "Private prosecutions are perceived as having real potential to increase incentives for compliance."41

S 54 of the HASE expressly prohibited the bringing of prosecutions by anyone other than an Inspector. Under the Act only Department of Labour employees could be issued with a certificate of appointment by the Secretary of Labour.42 Thus, only Department .of Labour employees could initiate prosecutions,43 creating an OSH monopoly on prosecutions. If OSH did not bring a prosecution, criminal redress could not be sought by any other means. This left a bitter taste in the mouths of many.

An increase in OSH prosecutions would:44

[G]ive employers and others with duties under the Act a real apprehension that failure to adhere to the provisions of the Act is likely to result in enforcement action. Without such deterrence, no adequate sanctions exist to deter an employer from using the less regulated environment to fail to put in place adequate interventions to protect their employees from harm.

33 Supra note 12. 34 Changes to the Health and Safety in Employment Act: An Overview (2001) 1. 35 Ibid ss 23, 24 36 Ibid s 29. 37 Ibid s 54A(2). 38 Ibid s 561. 39 Supra note 34. 40 Ibid 4. 41 Supra note 4 at 20. 42 Supra note 6, s 29. 43 Department of Labour Health and Safety in Employment Amendment Act Cabinet Papers (HSE/DOL/lA,

Department of Labour, 2002) 5. 44 Rail and Maritime Transport Union Submission on Health and Safety in Employment Act Amendment Bill to

the Transport and Industrial Relations Select Committee 16.

1236 Auckland University Lmv Review

In the reality of the business environment employers should not get off scottfreeo lfowever, under the previous system a prosecution for a breach was viewed by some as a legitimate business risk!'

The Council of Trade Union submissions made it clear that the former system in its deterrent role did not succeed in preventing workplace accidents: 46

Enforce:11ei1t of the Act by the Department of Labour had been 'soft', rroviding :urther encouragement to employers who decide to 'take the risk' thai they won't be prosecuted fm breaches of the Act, even ir: fatal cases where prosecution vmuld appear to be warramed. More than 90% of prosecutions have been undertaken only after a serious injury has actually occmTecl, thus highlighting the limited value of criminal prosecution as an injury prevention tooL

The Department cf Labour stated that "the need to pricntise and the application of the principles of public prosecution rneans that not all offences are prosecuted by OSJH."47 Financial restraints define and dictate what constitutes public interest in relation to the laying of an information. This statutorily created government monopoly resulted in dissatisfaction when OSH decided not to bring a prosecution:"

The WEY that OSH exercises its discretion to prosecute is not open to judicial reviewo The only matter that can be judicially reviewed is vvhetlm: or not the discretion has been exercised at all, not the actual exercise of the discretiono

Although under the nev,1 section it 'Nould be possible for an employer to lay an infonm1tior1 against an employee for a breach of the Act, the most likely and most contemplated scenario is one in ,,vhich an employee or the employee's union49 brings a private prosecution against their employera Thus, unless otherwise stated it is this potential situation on 'Nhich the submissions and consequent discussion are basedo

2, Tille Histm·y of Prlivate Pir•osecutfons

The decision whether or not to prosecute is not one that is taken lighilyo fr is "the Jllost important step in the prosecution processo"50 A case-specific balancing of the interests of the victim, the suspect and the community as a whole determines whether an information ,1vi11 be laido A wrong decision to prosecute,

45 Supra note 12. 4.6 Supra note 5 at 18. 4.7 Supra note 43. 48 Supra note 440 49 EspeciaHy in a situation \:vhere the union is a party to a collective agreement wit..¾ the ernployer under the

Employment Relations Act 20000 50 David Leung Cheuk-yin, Prosecution Policy and the Private Prosecutor: A I-long Kong Perspective Asia

Crime Prevention Foundc:1:tion .h.UJ:,://'l'vww.acuf.or0 /V'IC8th/AgendaJte1113/BPDleun2:HK.htrnl (at 26 November 2002)0

Smoke and lVlirrors 1237

or conversely a wrong decision not to prosecute v✓onld undermine and erode community faith in the system that has been empowered with achieving justice.51

A criminal prosecution, such as is the consequence of a breach of the HASE Act, will be instituted ''where sufficient evidenc,e exists against an offender and vvhere it is in the public interest to do so."52 The evidence, upon evaluation must be enough to demonstrate a prima facie case and a reasonable expectation of conviction. "A proper evaluation of such evidence will take into account such matters as the avr,ilability, competence and credibllity of witnesses and their likely impression on the court as well as the admissibility of evidence implicating the accused."53 Any defences that are open to the accused or have been indicated also impact on ,the balancing exercise of whether to bring a prosecution.

As well as not being brought lightly, a prosecution is also not brought in the interests of the victim. 54

The decision to begin a prosecution against an individual has profound consequences ... Even if eventually acquitted, he or she will be subjected to the stresses of public opprobrium, court appearances and possibly a loss of liberty while awaiting trial.

It has been admowledged that although in a HSE prosecution "there is not li~-cely to be a Ioss of liberty pending trial, the other concerns apply."55

Prosecuting crim:irn:,J offenders is a central function of the State.56 However, it must be ack~no·i-1ledged that investing so much power in the State attracts dangers of anoi:her type.

(i) Tlze Use or Non-use of State Power

"The ability of private entities and individuals to commence a prosecution 1s a safeguard against the misuse [of this] public power."57 There is a i:heoretical basis and practical consequences in a system that allows for private prosecutions. It has been stated that private prosecutions are " ... [A] useful constitutional safeguard against capricious, corrupt or biased failure or refusal of ... authorities to prosecute offenders against lhe criminal law," thereby providing an important

51 Ibid. 52 Ibid. 53 lbid. 54 Cf. New Zealand Law Corn1nission, 'Prosecution Guidelines' in Criminal Prosecutions, (1997) PP28,

Appendix B. 55 New Zealand Lav,1 Society, Submission on Health and Safety in Employrnent Act Amendment Bill to the

Transport and Industrial Relations Select Comndttee 10. 56 Supra note 54 at 137. 57 Ibid 136.


safeguard for the aggrieved citizen.58 Furthermore, private prosecutions "satisfy State deficiencies existing not through negligence or abuse but rather through economic limitations."59

S 13 of the Summary Proceedings Act 1957 states "except where it is expressly otherwise provided by an Act, any person may lay an information for an offence."60 Under the HASE "the exclusive language of the enabling statute"61

has functioned as a "major restraint"62 on private prosecutions on the refusal of OSH, as the central enforcement agency, to bring a prosecution. "[The] important constitutional and theoretical place of private prosecutions within our system warrants their retention."63

In 2002 the cathartic effect or intended cathartic effect of private prosecutions was played out in the New Zealand media.64 It is suggested that the ability to bring a private prosecution provides the victim with further means of protecting their interests if the public prosecution agency declines to prosecute.65

The instigation of a private prosecution is credited with providing a "window of opportunity for non-professionals to access the increasingly closed shop of justice."66 Some may argue in the current climate that private prosecutions merely provide another means for breaking the victim's or the victim's family's heart.

3. History of the Debate

The proposal to remove the monopoly is a political issue. Reflected in the debate that accompanies the issue is the political platform of the party in power at the time of the discussion. At the core of the issue is the relationship between private prosecutions and perceived union action. The Labour Party has traditionally "favoured the option of private prosecution in conjunction with central enforcement."67 By contrast, National seeks to "restrict the power of unions and worker representatives" via their policies.68 The inherent political nature is evident in the Department dialogue that accompanies the reports to the relevant Select Committees. During National's term in office the official commentary focused on the downfalls that would accompany the removal of the

58 Gouriet v Union of Post Office Workers [1978] AC 435. 59 New Zealand Law Commission, Criminal Prosecution (2000) R66, 94. 60 Summary Proceedings Act 1957 s15. 61 Bill Hodge, "Private Prosecutions: Access to Justice" (1998) NZLJ 145-148. 62 Ibid. 63 Supra note 59 at 92. 64 The family of Steven Wallace brought a private prosecution for murder against Senior Constable Abbot after

the officer fatally shot the 23 year old in the North Taranaki town of Waitara on 30 April 2000. Constable Abbot was found not gnilty by a jury at the High Court in Wellington on 5 December 2002. See Wallace v Abbott [2003] I NZAR 42.

65 Supra note 54 at 13 7. 66 Supra note 61 at 145. 67 Angela Mouton, A Right to Justice: Removing the OSH Monopoly on Prosecutions of Breaches of the Health

and Safety in Employment Act 1992 Occupational Safety and Health Policy Unit (2000) 4. 68 Ibid.


monopoly; Labour turns these downfalls on their head and makes them. positives. One wonders, as the current amendments have passed, if National was successful in the next election would the debate start again?

The political nature of the issue is evident in the way that the monopoly on prosecutions has come full circle within the space of 10 years. Prior to 1990, occupational health and safety in New Zealand was governed by a disparate collection of industry specific legislation.

1990 saw the introduction, and subsequent failure, of an OSH Bill by the Labour Party. Due to the Bill not being passed, the issue of private prosecutions was not thoroughly debated at this point.69 A caucus subcommittee established by the new National Government following the 1990 general election reviewed Labour's Bill and:70

made recommendations in the Management of Health and Safety in Employment Paper, known as the '10 Principles Paper' in August 1991. This paper recommended that private prosecutions be provided for.

The government recommended that "initiating prosecution action for alleged offences should not be limited to the administering agency, but available to all parties affected by the alleged offence, including members of the public adversely affected by work activity."71

Hansard records that the 1991 debate of the Bill saw Labour call for the increased involvement of workers in OSH legislation,72 including allowing for private prosecutions under the Act. However, submissions received in response to a consultation paper based on the Ten Principles Paper were generally opposed to private prosecutions.73 OSH advised the Committee members that the right should be rejected on the basis that it would not materially strengthen enforcement of the HASE Bill, and that it could create a backdoor right to sue for compensation for harm..74 There was also a fear that the ability to take private prosecutions would result in frivolous or vexatious cases.75 As a result, the only amendment made was the reinstitution of the m.onopoly.76

In May 1992 a draft bill was presented to the Cabinet Legislative Committee. Treasury proposed that a general duty related to s 6 only (injured employees could prosecute their em.ployers).77

69 Ibid. 70 Ibid. 71 Supra uote 16. 72 Supra note 67 at 4-5. 73 Ibid. 74 Ibid. 75 Wren, "The Right to Prosecute" Safeguard (January - February 1998). 76 Supra note 67 at 4-5. 77 Ibid.


The Bill, including a report from the Department of Labour prepared by OSH, was sent to the Labour Select Committee, "but ultimately, the status quo remained". 78

The HASE Act came into force in October 1992, and included in it, via s 54, an OSH monopoly on prosecutions. This was not surprising and it has been suggested that the OSH monopoly on prosecutions was "consistent with the obvious object elsewhere in the Act of removing any effective role for unions or other employee representatives in the new statutory health and safety framework. "79

In 1991 the Labour Party sought to remove the monopoly by introducing a private member's bill, the aim of which was to repeals 54 of the HASE Act while retaining OSH as the central enforcement agency. This amendment, it was argued, would bring the Act in line with most of the other recent non-prescriptive public welfare statutes, which do not provide for a monopoly on prosecution. "Labour spokesman on labour relations (as he was then) Pete Hodgson, argued that a significant percentage of valid cases were failing to be prosecuted, evidence that the system was not working."80

1999 saw the advent of a general election. The Labour Party's policy on Occupational Health and Safety was released in October of that year. It described the OSH monopoly as "paternalistic in design", and stated that Labour was committed to removing the monopoly in order to bring the HASE in line with comparative legislation. 81

In November 1999 the Labour Party won the general election-the wheel had turned full circle.

( i) Review of the HASE Act 1992: Proposal to Remove the Prosecution Monopoly

Labour fulfilled their election promise and measures were put in place to remove the prosecution monopoly. The discussion paper on the HASE Act82

produced by the Office of the Minister of Labour detailed the failings of the Act. The paper suggested that under the former system non-compliant employers had nothing to fear. Employers did not face "any direct financial penalty unless it is a fine imposed following a successful prosecution."83

Furthermore, and possibly most telling, were the statistics supporting the report: 84

78 Ibid. see also Report of the Department of Labour to the Labour Select Committee on the Health and Safety in Employment Bill, July 1992.

79 Supra note 16. 80 Pete Hodgson "Labour to Remove OSH's Prosecution Monopoly" (Media Release, 4 February 1999). 81 82 83

Supra note 66, 4-5. Supra note 4. Ibid 17.

84 Ibid.

The Approach of New Zealand Courts 1273

underlying principles of negligence law. This change of approach is evident in the Lords' speeches in Caparo, particularly that of Lord Bridge, with whom the other Lords agreed: 22

Whilst recognising, of course, the importance of the underlying general principles common to the whole field of negligence, I think the law has now moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes.

Indeed, Lord Oliver compares the search for a single approach with pursuing a 'will-o-wisp'. 23 Therefore, in Caparo, the House of Lords approached the question of liability less by principle, than by a detailed analysis of similar cases. Other than the change from a general to a more specific approach to the duty question, three important points can be taken from this case.

First, all the Lords make it clear that foreseeability alone is not enough to impose liability, as foreseeability without limits would impose too wide a duty. The limits that they considered necessary were considerations of "proximity" and whether imposing liability would be "just and reasonable".24 It is not enough simply to consider whether a duty exists, as the existence of a duty is bound up with the scope of that duty and the damage it is imposed to avoid.25 Therefore, in order to determine the existence of a duty it is necessary to look at the purpose for which information was supplied. Given this, it is not surprising that the Lords praised the decision of Richmond P in Scott Group, while discrediting those of Woodhouse and Cooke JJ.

Secondly, Lord Bridge, Lord Roskill and Lord Oliver all questioned the use of the phrase "assumption of responsibility". In their speeches, Lord Bridge and Lord Roskill both referred to the decision in Smith v Eric S. Bush,26 in which Lord Griffiths stated:27

The phrase "assumption of responsibility" can only have any real meaning if it is understood as referring to circumstances in which the law will deem the maker of the statement to have assumed responsibility to the person who acts upon the advice.

Similarly, in both Hedley Byrne and Scott Group, it is clear that an objective standard should be used to determine whether someone has assumed responsibility. This is not surprising as an objective standard is always used in negligence cases, as well as in contract, because the tort of negligence is based on a departure from the behaviour of a reasonable person.

22 Supra note 19, 618. 23 Ibid. 24 Ibid 633. 25 Ibid 627. 26 [1990] 1 AC 831. 27 Ibid 862.


Thirdly, Lord Oliver set out the situations in which the Court will imply an assumption of responsibility. These are:28

( 1) The purpose for which the information is used must be known or ought to have been known by the defendant;

(2) The defendant must know of the plaintiff as an individual or as a member of a set class;

(3) The defendant must know or ought to have known that the plaintiff would act on the information without independent inquiry; and

(4) The plaintiff must have acted on the information and suffered loss as a result.

Following Caparo the approach to negligent misstatement cases in England has been reasonably settled. However it is clear from the decisions in Price Waterhouse and Turton that this is not the case in New Zealand.

III. Negligent Misstatement in New Zealand

1. Price Waterhouse v Kwan

Price Waterhouse were auditors of a firm of solicitors, some of whose clients suffered loss on investments in the solicitors' nominee company. Knowing that they were unlikely to recover these losses from the solicitors, they sued Price Waterhouse who was responsible for auditing the relevant trust accounts. The plaintiffs alleged that their losses were caused, or at least contributed to, by negligently prepared audits. Subject to the Solicitors Audit Regulations 1987, the Law Society could, following an audit, intervene in the affairs of a solicitor if the Society considered this to be warranted. The plaintiffs thus claimed that had the audits not been prepared negligently, the Law Society would have intervened and their losses would have been minimised. There were contractual relations between Price Waterhouse and the solicitors, and between the solicitors and the plaintiffs. However, there was no contractual relationship between Price Waterhouse and the plaintiffs.

In giving the judgement of the Court, Tipping J followed the Anns test to determine whether a duty was owed. After examining the legislative scheme, he concluded that one of its main purposes was to protect solicitors' clients. Therefore, his Honour found that a sufficient relationship of proximity existed for a duty to be owed. To not impose a duty would be to undermine the protection envisaged in the legislation:29

28 Supra note 19, 638. 29 Supra note 1, 43.


Against that background, and in light of the relationships between the auditor, the solicitor, and the latter's clients, there is in our view sufficient proximity between the auditors and the clients to justify the imposition of a duty of care in tmi, subject to such policy considerations as may suggest otherwise. The regulatory regime, under which audits of solicitors' trust accounts are conducted, confirms what is inherent anyway, that the purpose of the audit, at least in significant part, is to protect solicitors' clients from loss as a result of improper conduct in relation to the solicitors' trust accounts.

His Honour then considered policy reasons for and against imposing a duty, before concluding that there were no policy reasons against imposing a duty, and strnng policy reasons for imposing oneo Therefore, the plaintiffs were successful in their claim that a duty was owed by the defendants,

Two observations can be taken from this case. The first is the recognition by the Court that there can be concurrent liability in tort and contract. Counsel for Price Waterhouse argued that to impose a duty of care would circumvent existing contractual relations that the parties had assumed, However, the Court

recognised that the plaintiffs were not limited to their contractua1 claim against the solicitors and that this was especially important where insolvencies were involved. As Tipping J stated in his decision:30

To hold that a party who enjoys sufficient proximity with A to raise a prima facie duty of care in ,mi should be confined to a contractual remedy against B, when ihe efficacy of that remedy is dubious, hardly seems a good poiicy reason for denying the existence of a duty of care in A.

Secondly, had this case been heard according to either Lord Reid or Lord Devlin's approach in Hedley Byrne, the plaintiffs would not have succeeded. Neither actual reliance, nor even k:nov,ledge of the audit regime by the plaintiffs w·as considered necessary. While the Court held that the plaintiffs were entitled to rely in a general sense on the audit regime, it is dubious whether a person can reasonably rely on something of which they have no knowledge. H is similarly strange that a defendant can assume responsibility to a person who has no knowledge of that assumption. Shortly after the decision in Price Waterhouse, the Court of Appeal had to consider another negligent misstatement case with a similar pattern of facts, In Turton the approach to whether a duty was owed and the conclusion drawn from this were very different to that in Price Waterhouse.

2. R.il!L Turton & Co. Ltd. (in Liquidation) v l(ersll/Jlke

Kerslake contracted with the Southland Area Health Board (the Health Board) to provide specifications for building a new hospital. Kerslake's

30 Ibid ~4.


subcontractors provided the engineering specifications, and Turton successfully tendered for the contract with the Health Board to build the hospital. In constructing the hospital, Turton employed subcontractors for the mechanical services as required by their contract. However, following installation, it became evident that the specifications given by Kerslake for the heating system were inaccurate. Therefore, Turton had to undertake remedial work in order to fulfil their contractual requirements. As a result, Turton suffered loss and commenced proceedings against Kerslake. Kerslake was in a contractual relationship with the Health Board, as was Turton. However, no contractual relation existed between Turton and Kerslake. The contract between Kerslake and the Health Board set out where liability should fall, and specifically excluded liability for the accuracy of the mechanical specifications. As in Price Waterhouse, the main argument for the defendant was that imposing a duty of care would be inconsistent with the contractual relations the parties had assumed. However, in this case, confining the plaintiff to a contractual remedy would be ineffective.

The two judges in the majority, Henry and Keith JJ, gave a joint judgment that differed greatly to that of Thomas J. in dissent. Following the English approach, they held that a general test of liability was not possible and that the case should be decided according to its specific facts, including the contractual matrix. Their Honours considered that the contractual matrix denied any duty because:31

(1) Kerslake did not have any special skill over Turton; (2) Turton did not gain the information directly from Kerslake, who

undertook no "voluntary assumption of responsibility" to Turton; and (3) There was no clear indication that Turton would rely on the information,

but rather that they would rely on the expertise of their subcontractors for mechanical services.

The clearest sign that a duty would be inconsistent with the contractual matrix was that the contract between Kerslake and the Health Board, which specifically disclaimed any responsibility for the accuracy of the report. Therefore Henry and Keith JJ came to the following conclusion:32

In our view the duty contended for in respect of the alleged representation that the componentry would achieve the required output would cut across and be inconsistent with the overall contractual structure which defines the relationships of the various parties to this work, and in the circumstances of this case it would not be fair, just or reasonable to impose the claimed duty of care.

31 Supra note 2, 413-414. 32 Ibid417.


The majority went on to say:33

There are, here, no broad policy issues to be considered, In a case such as this, therefore, we would not endorse the concept of a two-stage inquiry, ·which somehow first considers the general criteria (possession of skill, foreseeability, reasonable reliance) as establishing a prima facie duty of care, and then goes on to consider whether the contractual matrix negates the prima facie duty. There is no prima facie duty in that sense, The imposition of a duty will depend upon a consideration of all of the circumstances, which must include the contractual matrix.

Their Honours did not deny the possibility of concurrent liability in toft and contract, but said that the contn,ctual matrix needs to be taken into account when considering the relationships of responsibility and reliance between the parties. That Kerslake denied responsibility to the Health Board for the accuracy of the report shows that they could not have assumed responsibility to Turton. Their Honours did not consider the fact that this would effectively provide no remedy as a reason to impose a duty, as the possibility of insolvency is inelevant ln deciding whether or not to impose a duty; insolvency being a J,j]_own commercial risk

In his dissent, Thomas J claimed to apply the A_nns test, but actually used Lord Reid's Hedley Byrne criteria as the sole determinate of the e;cistence of a duty. In refe1Ting to Hed!ey Byrne, his Honour stated:3'

[!], is generally accepted that a duty of care will ar:se under Hedley Byrne where lhe ,efarionship between ihe parties rnanifest the following criteria:

The maker of the statemenl possesses a special skill; He or she voluntarily assumes responsibility for the statement and it is foreseeable ,hat the recipient will rely on it; It is reasonable for the recipient to rely on the statement and he or she does so; and The recipient suffers loss as a result.

Therefore Thomas J he1d that a "special relationship" existed between Kerslake and Turton because:

(1) The wording of the specifications for installation were mandatory; (2) Kerslake had special skill over Turton; (3) Given the little time available in the tendering pfOcess, and therefore

Turton's inability to check the specifications, it was reasonable for Turton to rely on the specifications; and

( 4) Turton did in fact rely on these specifications and as a result suffered loss.

33 Ibid 418. 34 Ibid 425-426.


Thus, he concluded that Kerslake owed Turton a duty of care. In commenting on the approach taken by the majority, Thomas J stated that the difference was essentially one of approach, and that either approach should give the same result. However, as has been seen they did not. As His Honour put it:35

But the inquiry whether the consulting engineer has assumed responsibility to the contractor for a statement which the contractor then relied upon for the purposes of Hedley Byrne is effectively the question whether the parties are in sufficient proximity to each other for a duty of care to arise. As I have said ... questions of proximity and foreseeability are subsumed in the questions posed by Hedley Byrne: whether a person possessed of special skills has assumed responsibility for his or her statement and is able to perceive that the recipient may reasonably rely upon it. If the answer to that question is in the affirmative, the question is then whether there is anything in the contract or contractual matrix which negates or is inconsistent with that liability. It is not good enough to say that, because of the contractual matrix, no duty of care arises but fail to recognise this conclusion with the fact that the consulting engineer has assumed responsibility to the contractor for his statement and that the contractor has relied upon it.

His Honour went on to say that the approach of the maJonty was fundamentally flawed because it did not take into account the implications of Donoghue v Stevenson. 36 In Donoghue, the contractual matrix was held to be "irrelevant or, at least, neutral."37 Therefore, it did not impose a bar to the plaintiff suing the manufacturer in negligence in a situation where there was a contractual matrix, but no contractual relationship between the plaintiff and the defendant. . Basically, this serves as an acknowledgement that there can be concurrent liability in contract and tort.

Given this, Thomas J must have erred in saying that the majority failed to consider the decision in Donoghue. As mentioned earlier, the majority did not contend that no duty would be owed in situations where a contractual matrix, but no contractual relationship, existed between the plaintiff and the defendant. Rather, they held that the wording of the contract in this specific case shows that there could be no liability. Given this, it seems that the differences between the decisions of the majority and that of Thomas J are deeper than a mere difference in approach to the duty question. The author contends that this difference is instead due to the course of the evolution of this branch of the law both in England and in New Zealand.

Thomas J approached the basis of liability in Turton as a question of "reasonable and foreseeable reliance" - as Lord Reid did in Hedley Byrne, and Woodhouse and Cooke JJ did in Scott Group. Therefore, without inquiring into the contractual matrix, Thomas J held that it was reasonable and foreseeable that Turton would rely on the specifications provided by Kerslake as this was the

35 Ibid 440. 36 [1932] AC 562 (HL) ["Donoghue"]. 37 Supra note 2, 441.


purpose for which the specifications were produced. Hence a "special relationship" existed between Kerslake and Turton that was not negated by the contractual matrix. On this approach, it is likely that the contract would only be relevant if it specifically excluded tortuous actions - mere inconsistency with the contract would not be enough.

In contrast, Henry and Keith JJ approached the case by determining whether Kerslake had undertaken a "voluntary assumption of responsibility" to Turton. This approach was based on the approach of Lord Devlin in Hedley Byrne, and Richmond P in Scott Group - the latter cited with approval in Caparo. Their Honours examined the contractual matrix, not as an exclusive factor in determining liability, but as an indicator of the parties' intentions as to where responsibility for loss should lie. The author agrees that, in light of the contractual matrix, it would be farfetched at least to say that Kerslake had assumed responsibility to Turton, when the former had specifically excluded liability to the Health Board. The approach of the majority, in terms of their treatment of the contractual matrix, is supported by English decisions such as British Telecommunications Plc v James Thompson & Sons (Engineers) Ltd38 and Simaan General Contracting Co v Pilkington Glass Ltd (No2). 39

IV. The Determination of Liability

1. "Reasonable and Foreseeable Reliance" or "Voluntary Assumption of Responsibility"?

There is a deeper difference underlying these two approaches. The "reasonable and foreseeable reliance" approach is similar to the approach taken in most tortuous actions in that it enforces a duty that is imposed by law. In contrast, the "voluntary assumption of responsibility" approach is based on consent.

At first appearance it seems unusual for the law of torts to be enforcing agreements that are generally covered by the law of contract.40 The answer to this, as Lord Devlin acknowledged in Hedley Byrne, is that the tort of negligent misstatement can be better understood when seen as a by-product of the doctrines of consideration and privity in the law of contract. First, for an agreement to be a legal contract there must be adequate and sufficient consideration. Secondly, other than in certain circumstances covered by the Contracts Privity Act 1982, only a party to a contract may sue for damages or specific performance. As many cases of negligent misstatement involve situations where no formal contract exists due to lack of consideration, or the plaintiff is not a party to the contract, a plaintiff cannot succeed through contract law. Nevertheless the advice or

38 [1999] 2 All ER 241 (HL). 39 [1987] I All ER 345 (QB). 40 Todd The Law of Torts in New Zealand (3rd Ed, 2001).


information may still have been given on the understanding that the plaintiff was entitled to rely on it.

Therefore the tort of negligent misstatement can be viewed primarily as having a 'gap filling' role between the law of tort and the law of contract, allowing the law of contract to provide discrete and clear rules. This will suffice in the majority of cases.4' In situations where a plaintiff has a valid claim to compensation for loss suffered through reliance on a defendant who has.assumed responsibility to them, the tort of negligent misstatement provides recourse where the claim would otherwise fail under the law of contract.

Although there are safeguards on both approaches, the author contends that the "voluntary assumption of responsibility" approach is likely to provide a narrower scope of liability and should therefore be considered more desirable than a broad approach. Certainly it is true that a broader liability may encourage care without being too onerous on potential defendants, as regardless of whether a duty is owed, liability will only follow if there has been negligence on the part of the defendant. However, there are also strong views that this will lead to economic problems such as an increase in the cost, and decrease in the availability of indemnity insurance.42 It would also necessarily follow that this cost would, in turn, be passed onto clients. As many situations where the tort arises involve information or advice given gratuitously, it would be undesirable to increase the cost of paid services in order to enable reliance for the recipients of this free advice or information.

Two further implications need to be considered in relation to the fact that these cases often involve advice or information given gratuitously. First, as the recipient is paying no fee for it, the scope of liability should be narrow. If the recipient requires a guarantee that they can rely on the information, this can be obtained through an agreement or contract with the provider. Secondly, the imposition of a heavy burden on people who are acting gratuitously is unreasonable and would tend to discourage these types of transactions. If the "assumption of responsibility" approach is taken, it will ensure that potential defendants are able to choose who can rely on their statements.

Finally, the "voluntary assumption of responsibility" approach provides greater certainty than the "reasonable and foreseeable" approach in an area of law that is at present characterized by an unsatisfactory level of uncertainty. Under this approach, potential defendants are better able to predict and control to whom they owe a duty of care.

41 Rickett & Grantham, "Director's Tortuous' Liability: Contract, Tort, or Company Law" (1999) 62 MLR 133. 42 Pacini, Hillison and Sinason, "Auditor Liability to Third Parties", Managerial Accounting Journal, 2000,

Bradford, U.S.A.


2. Cunter Holt Harvey Ltd v Genesis Power Ltd

Recently, Nevv Zealand has revisited some of these issues in a judicial review of a strike out application. Carter Holt Harvey v Genesis Power43 '.Vas an application in the l'Jew Zealand High Court for judicial revievv of a striking out order. Carter Holt Harvey (CHH) had contracted with ECNZ (the predecessor of Genesis) to construct and install a cogeneration plant, vvhile ECNZ had contracted with Rolls-Royce for the latter to design, construct and install various works in the plant. As in Price Waterhouse and Twwn, there were no co11tractual L·elations between CHH and Rolls-Royce.

CHH claimed that the planl was defective. It sued ECNZ/Genesis in contract, alleging that Rolls-Royce owed CHH a duty of care in tort. In response, Rolls-Royce applied to have the case struck out, arguing that it could not possibly succeed as the contractual relations adopted by the parties clearly excluded the alleged tortuous duty. The JVfaster declined the strike-out application and RollsRoyce sought a review of that decision in the High Court On review, Randerson I held that it was necessary for the court to consider not merely the contract, but als::: all the surrmrnding facts and circumstances - thus following the majority judgment in Turton: 44

I do not read the Court of Appeal's apprmtch in Turton as deciding th,1t the provisions of the contract 'vVere decisive. They were considered w be no more than a factor, albeit an impmtant one i!n that case, in determining whether a duty of care existed.

Therefore, it seems that the New Zeafand courts will take the fellowing approach to negligent rnisstatements. The basis of liability will be determined by an investigation into whether the defendant has volunts:rily assuraed responsibility to the plaintiff. and liability will be imposed in situations where a reasonable person would think that the defendant bad assumed responsibility. In bis inquiDJ, it is necessary to look at all the surrounding facts and circumstances of the case. Analysing any contractual matrix is an important eleinent of this. Hm,vever, a contractual matrix is not detenninative of a duty or lack of a duty -it is merely a factof 'io consider, albeit sometimes a very important one.

V. Cm.1dusirnrn.

Vvithin the space of a few weeks in 2002, Price Waterhouse and Turton v,ere decided by the New Zealand Court of Appeal. Although these cases had similar fact patterns, they vvere approached in different ways and subsequently the judgments differed. The undesirability of this is obvious, as people (at least

43 [2003] 1 NZLR 272 ["CHH"]. 44 !bid 278.


theoretically) plan their actions and business practices according to the law, and this cannot be done where the law is so drastically uncertain. For this reason it is necessary to consider why these two cases have been treated so differently.

The author has premised that these differences are due to the historical development of the law relating to negligent misstatement. Although the law on this matter is now reasonably settled in England, the differences of approach that have arisen in the evolution of this branch of law have had a lasting effect on New Zealand law. This effect is evidenced by the fact that some New Zealand judges have insisted on continuing to apply the Anns test, while others apply a modified version of this test, and others still have followed England's lead and discarded it altogether. Additionally, uncertainty remains as to whether the basis of liability in negligent misstatement cases is a "voluntary assumption of responsibility" by the defendant, or "reasonable and foreseeable reliance" by the plaintiff.

The "reasonable and foreseeable" reliance approach is typical of tort law in that it enforces an obligation imposed by law. In contrast, the "voluntary assumption of responsibility" approach is quasi-contractual; it enforces an obligation that arises out of consent and has essentially a gap-filling role. Such a role is necessary due to the doctrines of consideration and privity in the law of contract. The author considers the "assumption of responsibility" approach to be the more desirable of the two, as it has the. ability to be clear and certain, thus allowing potential defendants to control the extent of the responsibility they undertake to third parties.

It seems likely from the recent decision in CHH that New Zealand Courts will favour the approach taken by the majority in Turton. This approach bases liability on a "voluntary assumption of responsibility" by the defendant, which is determined by considering all the relevant factors in the case. This includes any contractual matrix, although this matrix will not be determinative.

1283

Re~ Thinking Negligent Misrepresentation

Bridget Murphy*

JI. Introduction

The historical development of negligent misrepresentation causing financial loss I has been dominated with concerns of how liability should be limited. It was immediately accepted that the "neighbour" principle elucidated by Lord Atkin in M'Alister ( or Donoghue) v Stevenson2 applied in negligence claims involving injury to person and property vvas too broad to encompass claims involving negligent words. The courts wanted to prevent persons being sued for casual renrnrks made in the course of conversation and liable for an indeterminate amount to an indeterminate class. 3 Due to a preoccupation with these concerns judges formulated their responses to negligent misrepresentation around considerations of policy and remedy. This resulted in judicial neglect of the more lmportant prior inquiry - what gives the plaintiff the right to rely on the defendant's statement? This article suggests an answer by arguing the plaintiff's right to rely on the defendant's words arises from the defendant's assumption of responsibility to the plaintiff. The essence of this concept is that the right is derived from the defendant himself and is asceftained with reference to objective considerations.

This article further argues that it is not helpful to regard negligent misrepresentation cases as cases of economic loss. This is because the history and the substance of the action suggest a closer relationship with the law of contractual obligations ihan to negligence cases generally. The role of negligent misrepresentation, then, is essentially one of a gap-filler as it provides practical justice to a deserving plaintiff when strict contractual doctrines let her down. Accordingly, the proper conceptual place for the action is within a reconstituted law of agreements.

II. Historical Development

The common law was slow to recognise an actionable claim for economic loss caused by negligent words. In tort negligent words could not found a claim

BA/LLB(Hons), The author would like to thank Dr Allan Beever of the Faculty of Law, University of Auckland, for his helpful suggestions and support. Misrepresentations which cause physical damage have never given the courts much difficulty, an.d they are generally treated as a variation of basic law of negligence which goven1s negligent acts: Bruce P Feldthusen Economic Negligence (4th ed, Carswell, Scarborough, Ont, 2000) 47.

2 [1932] AC 562. 3 See Vliramares Corporation v Touche 174 N.E. 441 (1931) ("Ultramares").


in negligence, whether for physical or other damage. Any recovery v1as limited to the intentional tort of deceit, which required proof of either actual fraud or recklessness.' A limited avenue of recovery was available where the parties could be sc1.id to be in a fiduciary relationship with each other, pursuant to the doctrine laid down in Nocton v Ashburion,5 As a result the law of contract remained the primary avenue for recovery, but this was only confined to situations where consideration had passed to parties in privity with one anolher. 6 In any other situation, the plaintiff was remediless.

The first attempt to break with the past arose in Candler v Crane Christmas & Co.7 fo this case the defendants., accountants, prepared company accounts and showed them to the plaintiff at the reciuest of their employer. In reliance on the accounts the plaintiff invested substantial sums of money in the company, The accounts were carelessly prepared, contained numerous false statements and gave a vvholly misleading pictme of the financial state of the company. The plaintiff lost the whole of his investment The majority of the English Court of Appeal held that a false statement made carelessly causing financial loss8 was not actionable in absence of a contractual or fiduciary relationship between the parties.

However in his dissenting judgment Denning LJ held that accountants, in preparing and rendering accounts and reports, also owed a duty of care to any third person to whom the accountants knew l:hat their clients vvere going to show the accounts to and that the third person would consider the reports and accounts ~with S: vievv to the investment of money or some other action to his gain or de([rimenL Thirteen y"'ars later, the question finally cam"' to the House of Lords. The case was Hedley Byrne & Co Lid v Heller and Parmers Ltd.9

IU. Tlhe Rufo iILi lledley Byrne

In Hedley Byrne the plaintiffs (advertising agents) asked their bankers to inquire into the financial stability of a cornpany with which they W':'re having business dealings, Upon inquiry, the company's bankers carelessly gave favourable refei'ences about the company's financial position to the plaintiff's bankers. The plaintiffs relied heavily on these representations and lost substantially when the company subsequently went into liquidation. The sole issue in the case was whether the plaintiffs could recover damages for the losses that they had suffered in reliance on the negligent misrepresentation regarding the company's financiali position. The action failed because the defendants had

4 Derr; v Peek (1889) 14 App Case 337, 5 [1914] AC 932 (!-IL), See aiso Coleman v Myers [1977] 2 NZLR 225. 298 (CA), 6 For an example see Vi'oods v Martins Bank [1959] 1 QB 55. 7 [1951] 2 KB 164; l All ER 426 (CA) ("Candler"'), 8 rt was suggested thrtt negligent words causing physicul harm was actionable, ibid ] 68. 9 [1964] AC 465 (HL) ("Hedley"),

Re-Thinking Negligent Misrepresentation 1285

expressly disclaimed responsibility for the views put forward in a letter to the plaintiff's bankers. So the case elucidated the simple rule that no duty of care can arise with respect to a statement given expressly "without responsibility".

Despite the simplicity of the case all five La:w Lords proceeded to re-examine the law on liability for negligent misrepresentations. The argument that there was some intelligible distinction to make between negligent acts and negligent words was expressly rejected10 and the Lordships determined that English law would henceforth recognise an action for negligent statements causing pure economic loss.

However, their Lordships were not prepared to apply Lord Atkin's dictum. in Donoghue v Stevenson literally when formulating the basis of a recovery for negligent misrepresentation. It was assumed that a duty of care based on "reasonable foreseeability" was too broad for claims in negligent misrepre~entation. Referring to Donoghue v Stevenson, Lord Reid said: 11

That is a very important decision, but I do not think that it has any direct bearing on this case. That decision may encourage us to develop existing lines of authority, but it cannot entitle us to disregard them. Apart altogether from authority, I would think that the law must treat negligent words differently from negligent acts.

Lord Reid offered two primary justifications12 for a restrictive or special duty of care in cases involving negligent words. The first justification was the policy concern of preventing persons being sued for representations made during the course of casusal conversation:13

Quite careful people often express definite opinions on social or informal occasions, even when they see that others are likely to be influenced by them; and they often do that without taking that care which they would take if asked for their opinion professionally, or in a business connection.

The second was that while a negligently made article will cause only one accident, "words can be broadcast with or without the consent or the foresight of the speaker or writer."14 This was the fear summarized by Cardozo J in Ultramares Corp v Touche 15 of "liability in an indeterminate amount for an indeterminate time to an indeterminate class."16

10 Ibid 496 - 516 Hodson U; Morris U and Devlin U. See also J Stapleton "Duty of Care and Economic Loss" (1991) 107 LQR 249.

11 Candler, supra note 7,477. 12 Ibid 479. These justifications have not been considered adequate by some academics. In particular see W

Bishop "Negligent Misrepresentation Through Economists' Eyes" (1980) 96 LQR 360. I 3 Candler, supra note 7, 4 79. 14 Ibid 483. 15 Ultrarnares, supra note 3. 16 This judicial comment has since been cited by Lord Pearce in Hedley Byrne v Heller [1964] AC 465; Lord

Bridge in Caparo Industries v Dickman [1990] 2 AC 605, 621 and by Lord Griffiths in Smith v Bush [1990] I AC 831, 865.


Preoccupied by these policy concerns the House of Lords focused on formulating an appropriate test to restrict the ambit of recovery for negligent words. However, it is difficult to distil a clear definition of the circumstances giving rise to liability in negligent misrepresentation. 11 According to Lord Reid, a duty to take care in words arises where it is plain that the party seeking information or advice was trusting the other to exercise such a degree of care as the circumstances required, whether it was reasonable for him to do that, and where the other gave the information or advice when he knew or ought to have known that the inquirer was relying on him."18 Lord Devlin formulated the test for the assumption of duty differently, proposing that a duty to take care in word arose where a relationship was: "equivalent to contract, 19 that is to say where there is an assumption of responsibility in circumstances in which, but for the absence of consideration, there would be a contract. "20

Since Hedley Byrne, common law courts have continued to search for a test for determining the existence or presence of liability in any particular circumstances. The next part of this article discusses the competing approaches to the basis of recovery in the Commonwealth. The approaches will be examined with reference to cases involving the frequently litigated issue and the liability of company auditors to third parties who rely on the financial statements.

IV. The Competing Approaches to the Basis of Recovery in Negligent Misrepresentation

1. The Anns-Derived Approach

The more conventional21 approach to the question of duty of care in negligent misrepresentation is derived from the House of Lords decision in Anns v Merton London Borough County Council.22 Here Lord Wilberforce formulated a test, intended as a general statement, which set about answering the question that encompassed all negligence claims including negligence misrepresentation. His Lordship posited that the question must be approached in two stages:23

First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter - in which case a prima facie duty of care

17 This was noted in Caparo Industuries v Dickman, [1990] 2 AC 605, 631 (HL). 18 Candler, supra note 7, 528-529. 19 These words were borrowed from Lord Shaw in Nocton v Lorri Ashburton [1914-15] All ER 62; [1914] AC

932,972 ("Nocton"). 20 Candler, supra 7, 528-529. 21 See Barker "Divining an Approach to the Duty of Care" (2001) 10 OLR Nol, 91 (Barker). 22 [1978] AC 728. 23 Ibid.


arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations that ought to negative or to reduce or limit the scope of the duty or the class of persons to whom it is owed or the damages to which a breach of it may give rise.

Initially24 the New Zealand Court of Appeal received this approach to the duty of care with enthusiasm, particularly in cases involving negligent misrepresentation claims.25 This is most evident in the reasoning of Cooke and Woodhouse JJ in Scott Group v McFarlane. 26 Here the plaintiff completed a takeover bid for a public company after inspecting audited accounts prepared by the defendants, who were unaware of the takeover negotiations when the audit certificate was given. The accounts substantially overstated the assets of the company and the plaintiffs sued in negligent misrepresentation.

The majority of the court (Richmond P and Cooke J) dismissed the appeal, but the significant aspect of the judgment was the approach to the duty of care. Consistent with the approach in Anns, Cooke and Woodhouse JJ held the plaintiff only needed to show there was reasonable and foreseeable reliance on the audited accounts. The right to rely on the statement accrued from the mere fact the statement was made. As to the second stage of the Anns-inquiry, Woodhouse J considered it unwise to lay down precise rules as to when liability should be modified or waived. It was not material that the auditors, when they signed their reports, had no knowledge of any intention by the plaintiff or anyone else to formulate a takeover offer. Rather the court should have regard to the facts of each individual case, including the information's likely circulation, its use and significance. According to the majority, the present case contained no compelling considerations to negate the finding of a prima facie duty.

A similar approach (with a different result) was taken in the leading Canadian decision Hercules Management Ltd v Ernst & Young. 21 In this case shareholders in two corporations brought an action against a firm of accountants alleging that the accountants had been negligent in auditing the corporations' financial statements and that as a result they had incurred investment losses. Following the approach in Anns, La Forest J recognised that reliance on the audited statements by the shareholders was reasonable. However, this prima facie duty of care was cut down by a fundamental policy consideration, namely the fear of indeterminate liability. In the present case, the financial report was prepared for the purpose of assisting the collectivist of the shareholders of the audited companies in their task of overseeing management, not for the purpose of making

24 Recent Court of Appeal decisions have suggested that New Zealand courts may be adopting the 'incremental' approach elucidated in Caparo Industries v Dickman. For examples see R M Turton & Co Ltd v Kerslake & Partners [2000] 3 NZLR 406; Boyd Knight v Purdue [1999] 2 NZLR 278. For commentary on this see Barker, supra note 21.

25 For examples see Scott Group v MacFarlane [1978] 1 NZLR 553; Allied Finance and Investments Ltd v Haddow & Co [1983] NZLR 22; Meates v Attorney-General [1983] NZLR 308.

26 [1978] 1 NZLR 553 ("Scott"). 27 [1997] 2 SCR 165 (SCC).


investment decisions or protecting the interests of individual shareholders. Moreover, allowing liability would effectively reduce the supply of accounting services to marginal companies and would increase insurance premiums for accountants resulting in increased costs for their clients. The appeal was accordingly dismissed.

This article asserts that the Anns-derived approach28 is problematic for two primary reasons. Firstly, if one takes the Anns approach seriously, it follows that by the simple act of speaking, the defendant can put herself in a position that may form the basis of her duty of care. This is inconsistent with the general approach of the common law. To be legally actionable, indeed to be legally significant at all, the injury to a claimant in negligence must be something over which the claimant has a right. There are two types of negligent misrepresentation claims, each accruing from a different right.29 The first class of case is where the defendant's negligent misrepresentation causes damage to persons or property.'0

In this class of case the basis of recovery is unproblematic, the right to sue the defendant arising from a claimant's prior right to property and bodily integrity. The second class of case, and the focus of this article, is where the defendant's negligent words result in "pure economic loss". In this class of case the common law affords no prior right to the claimant for the expected or promised profit from her investment. Thus the right must be sourced from the defendant. However, at common law a gift is not to be presumed.31 Thus it is not enough that the defendant made the statement, the plaintiff must show that she had a right to rely on the statement. Rights are given to another only if it is reasonable on an objective test to interpret the givers' actions as surrendering that right. On the balance of these considerations, the Anns-derived approach cannot be supported.

Secondly, the Anns-derived approach is nothing but a framework within which the court must develop policy considerations to define the circumstances in which a duty of care arises.32 The policy considerations are crucial because it is widely accepted (even by its biggest proponents) that liability based merely on "reasonable foreseeability" would place an intolerable burden on defendants. Admittedly, there is nothing necessarily wrong with courts making explicit reference to policy considerations. As Denning LJ noted in Lamb v Camden London Borough Council 33 questions of policy have always lurked in the

28 And its modified forms, which can be seen in South Pacific Manufacturing Co Ltd v New Zealand Security Consultants and Investigations Ltd [1992] 2 NZLR 282.

29 As Cardozo CJ put it "negligence is not a tort unless it results in the commission of a wrong, and the commission of a wrong imports the violation of a right." See Palsgrafv Long Island Railroad Co. 162 N.E. 99 (1928).

30 Denning LJ offered the example of an analyst who carelessly certifies to a manufacturer of food that an ingredient is harmless when it is not or of an inspector of lifts who carelessly reports that a particular lift is safe when it is not. Candler, supra note 7.

31 This is seen most clearly in contract law where there are a number of prerequisites that must be satisfied before a court will recognize rights in an obligation.

32 See Brennan J in Sans Sebastion Pty Ltd v Minister Administering the Environmental Planning and Assessment Act (1986) 162 CLR 341, 367 (HCA).

33 [1981] AC 625. See also Dutton v Bognor Regis Urban District Council [1972] 1 QB 373, 397.


background, guiding the outcome in negligence claims.34 However, it cannot be said that considerations of policy provide a proper explanation for the basis of recovery in negligent misrepresentation. There must be a better and more principled explanation for the strong intuition of judges to restrict recovery in negligent misrepresentation.

2. The Alternative Approach

Richmond P in Scott Group and the House of Lords in Caparo Industries v Dickman elucidated an alternative approach to the basis of recovery in negligent misrepresentation.35 In Scott Group Richmond P reviewed the judgments in Hedley Byrne and rejected the proposition that foreseeability alone could found a duty of care in negligent misrepresentation. His Honour posited that the question in any negligent misrepresentation case was whether the nature of the relationship was such that one party can be held to have assumed a responsibility to the other in regard to the reliability of the advice or information. This relationship could not be found to exist unless at least two factors were evident:

(i) The maker of the statement was or ought to have been aware that his advice or information was in fact made available to and be relied on by a particular person or class of persons for the purposes of a particular transaction or type of transaction;36

and (ii) The maker of the statement, both in preparing himself for what he said and in saying it, must have directed his mind, and been able to direct his mind, to some specific purpose for which he was aware that his advice or information would be relied upon.37

Richmond P found that in the present case the evidence did not disclose circumstances that either made the auditors aware or ought to have made the auditors aware that the accounts were required by the plaintiff as the basis for the takeover offer. Accordingly, he found that no duty of care was owed by the auditors to the plaintiff and dismissed the appeal.

In Caparo Industries, the House of Lords restated the duty of care in similarly limited terms. In that case the defendants were auditors who acted for a company. They had prepared annual accounts on the strength of which the plaintiff bought shares in the company and then mounted a successful takeover bid. The plaintiff alleged that the accounts were inaccurate and misleading as

34 Ibid 636-637. One can see this 'invisible hand' working and a criticism of it in White v Jones [1995] 2 AC 207, 245-258 (White). Goff LJ, criticised by Mustill LJ, reverted to the need to do justice as the principle for liability. This created a "specialist pocket of tort law".

35 [1990] 2 AC 605 (HL) ("Caparo"). See also Esanada Finance Corp Ltd v Peat Marwick Hungeifords (1997) 188 CLR 241,248 (HCA) where Toohey J and Gauldron J stated "only the foreseeability of possible damage without some further control would be to create a liability wholly indefinite in area, duration and amount and would open up a limitless vista of uninsurable risk for the professional man."

36 Scott, supra note 26, 567. 37 Ibid 568.


they showed a substantial pre-tax profit when they should have recorded a significant loss. Counsel for the plaintiff argued that had the plaintiff been aware of this state of affairs, they would never have bid for the company. Relying on, inter alia, the judgments of Cooke and Woodhouse JJ in Scott Group, counsel argued that a duty of care was owed to the plaintiff due to their position as a potential investor in the company being within a definable class of persons likely to be injured.

The Anns-derived approach was rejected by their Lordships,38 who considered that mere foreseeability of harm could never be sufficient to determine the existence of a duty of care where the claim is one for economic loss arising out of negligent misrepresentation. As Oliver LJ stated:39

[l]t is almost always foreseeable that someone, somewhere and in some circumstances, may choose to alter his position upon the faith of the accuracy of a statement or report which comes to his attention and it is always foreseeable that a report - even a confidential report - may be communicated to persons other than the original or intended recipient.

Instead there were four recognised conditions that at the very least were to be satisfied before a defendant can be liable for economic loss resulting from negligent information or advice. They are as follows:4-0

(i) The advice must be required for a purpose, whether particularly specified or generally described, which is made known, either actually or inferentially, to the adviser at the time when the advice is given; (ii) The adviser must know, either actually or inferentially, that his advice will be communicated to the advisee, either specifically or as a member of an ascertainable class, in order that it should be used by the advisee for that purpose; (iii) It is known, either actually or inferentially, that the advice so communicated is likely to be acted upon by the advisee for that purpose without independent inquiry; and (iv) It is so acted on by the advisee to his detriment.

Essential to the decision was the finding that the auditors' duty of care was closely circumscribed by reference to the defendant's knowledge of the advisee and the purpose for which the advice was sought. 41 Their Lordships considered that the purpose of the statutory requirement for an audit of public companies was the making of a report to enable the body of shareholders as a whole to exercise informed control over the company, not to enable existing share-holders or

38 One example is Bridge LJ. See Caparo. supra note 35, 618. 39 Ibid 643. 40 Ibid 638. Although his Lordship disclaimed any intention to lay down conditions which were either

conclusive or exclnsive. 41 A Dugdale "Caparo Ten Years On" (1999) 7-8 TLR 213.


members of the public at large to buy shares with a view to make a profit. 42

Accordingly, the auditors owed no duty of care to the respondents either as shareholders or as potential investors in the company,

The alternative approach to the basis of recovery is clearly favourable to the Anns-derived approach, First, in treating negligent misrepresentation as a special class the alternative approach best represents that of Denning LJ in Candler Crane :md the House of Lords in Hedley Byrne, Secondly, the approach is clearly defined and facilitates certainty in commercial transactions, Finally, the approach is in keeping with fundamental principles of the common law, particularly that the right to rely on a statement cannot be automatic or presumed, but is instead derived from the defendant.

However, it cannot be said that the alternative approach provides an entirely satisfactory explanation for the basis of recovery in negligent misrepresentation. This is because it is again evident that the judges' primary concern is to formulate appropriate "limitation devices" to restrict the ambit of recovery. The approach tells us little about the right that the negligent misrepresentation action seeks to protect,

Vo The Right to Recovery in Negiigent Mlisrepresentation

This part of the article wiH argue that the "limitation devices" elucidated by Richmond P and the House of Lords in fact correspond to a single legal principle, the defendanfs assumption of responsibility,

As Lord Browne-VVilkinson has recently pointed out,43 the notion that the defendant's assumption of responsibility is the basis of recovery in negligent misrepresentation is not a novel one. Hs genesis is to be found in Nocton v Ashburton, where Viscount Haldane LC said: 44

Although liability for negligence in words has in n:rnter:aI respects been developed in our law differently from liability got negligence in act, it is none the less true that a man may come under a special duty to exercise care in giving information or advice, I should accordingly be sorry to be thought to lend countenance to the idea that recent decisions have been intended to stereotype the cases in which people can be held to have assumed such a special duty, V\Thether such a duty has been assumed must depend on the relationship of lhe parties, and it is at least certain that there are a good many cases in which that relationship rnay be properly treated as giving rise to a special duty of care in statement,

42 Caparo, supra note 35, 654. The Court of Appeal held that existing shareholders were owed such a duty distinguishing the shareholder investors from other members of the public. Caparo Industries v Dicknian [1989] 1 All ER 798 (CA)

4-3 White v Jones [1995] 2 AC 270, 27L ("White"), 44- Noc/on, supra note 19, 948

1292 Auckland University Lmv Review

Although there are passages pointing the other way, the reasoning of the majority in Hedley Byme suggests that the crucial element in the case was by choosing to answer the enquiry, the bank had assur;1ed to act, and this assumption created the special relationship on which the ,1ecessary duty of cam vvas founded. 45 This is suggested in the following passage from Lord Morris of Bo1thy-Gest, who stated that: 46

If in a sphere in which a person is so placed that others could reasonably rely upon his judgment or his ski!~ or upon his ability to make careful inquiry, a person takes it upon himself to give information or advice to ... another person who, as he knows or should know, will place reliance on it, ,hen a duty of care will arise.

A renewed focus on assumption of responsibility may be seen in a number cf important recent cases on negligent misrepresentation.47 Indeed in Williams v JVatural Life Health Foods48 Lord Steyn went so faT as to sey that "there is no better rationalization for the relevant head of tort liability than assumption of responsibility. "49

It is also helpful in understanding a defendant"s assumption of responsibility to refer to criticisms of the co11cepi. Todd espoused the central criticism ·01hen he said, "defondants ne01err, or hardly ever, in fact agree to sl1oulder responsibility".50

Indeed some critics have argued that the inference of an assumption of

responsibility is a legal fiction, seldom v,rarranted on the facts, 51 For example, Gordor1 has said:52

In praccically ev,:cry case where gratuitous information is given, :t is distorting lO facts to say that the informant has any iuention of accepting res1Jonsibility ... It is nearly always a moral certainty ihat it never occurs to the adviser that he is unclertaldng anything; his views are given for what they :ere vvor,h.

However, this approach misses the fundamental prem1se of assumption of responsibility. The concept does 11ot require thal the defendant expressly undertake legal responsibility for legal information or advice. Rather, the essence of liability is a mutuality betvveen the plaintiff and defendant ascertained on

objective considerations. The mutuality "arises internally from the relationship which the parties had together chosen to place themselves"53 and requires that

45 As per Goff LJ ·who referred to passages of Devlin and Tv101ris LJJ in Henderson v lv[errett Syndicates [ 1995] 2 AC l 45 (Henderson).

46 Hedley, suprn note 9, 503. 47 For examples see V✓hite, supra note 43; f-Ienderson, supra note 45 ai1d Spring v Guardian Assurance [1995] 2

AC 396 ("Spring"). 48 [1999] 1 WLR 831 ("Williams") 49 lbid 837. Extra-judicially, reference has been made to the "emerging tort of assumption of responsibility".

See R Grantham and Chmfos Rickett, "Director's Tortious Liability" (1999) 62 MLR 133. (Grantham) 50 S Todd Todd on Torts (9th ed 200 l) 227. (Todd) 51 K Barker "Unreliable Assumptions in the Modern Law of Negligence" (1993) !09 LQR 461. ("Barker") 52 DM Gordon, "l-kclley Byrne v Heller in the House of Lords" 91964-6) 2 UBCLLR 113, 119-120. 53 White, supra note 43, 287.


both the plaintiff and the defendant must play an active part in the transaction from which liability arises. 54 The primary focus is not on the state of mind of the defend,mt but rather on exchanges and interaction (statements and conduct) assessed from an objective viewpoint. 55 The right of the plaintiff to rely on the statement is thus derived from the defendant. Beever provides a helpful explanation of the practical application of assumption of responsibility as foUows: 56

If A breaches a contract with B to sell his horse for 100 pounds, B ca11 sue for breach of contract, not because he has an antecedent rlght to A's horse, but because A promised l3 the horse. The right that A breached, then, is created by the agreement between A and B. Representa(ions that involve assumptions of responsibility create similar though more limited rights. ff D, in the knowledge that C is thinldng of an investing in a company, represents to C that the company ls in good financial shape, this is ,taken, on an objeccive lest, to be an assumption of responsibility lo C for the investmen1: even though that investment - typically a chose in action - in itself genefates ao rights as against D. In such a case, the right thai C holds against D is crem:ed by the represe11/atio11 [Emphasis addedl

The assumption of responsibility concept can explain why, as indicated by the cases discussed, it is very r2,re that an auditor will be liable to third parties for negligently prepared accounts. This is because, notwithstanding that the third party's reliance and loss was foreseeable, she had no right as against the defendant to rely on the sltactements. The concept may explain why Richmond P insisted that the maker of the statement \Vas avvare, or ,;:mght to have been sware, ~hat his words v1ould be avaifable to and reli.ed on by a particular type of person or class of persons. Without trii:3 requisite knowledge the defendant could not be said to have assumed responsibility to the plaintiff. The concept can also explain Lord Oliver's emphasis on the purpose for ·which the staten1ent vvas made, as in any other case the defendant did not give the plaintiff a right to rely on the statement in that particular way. To allow recovery in such cases would be to permit recovery for the "violation" of a non-right. 57

His also possible to explain the treatment of the disclairner in Hedley Byrne with the conception of an assumption of responsibility. Occasionally the disclaimer has been said to operate not to deny an assumption of responsibility but rather only as an affirmative defence to liability.53 It is also possible to contend, pursuant to the .Anns basis of recovery, that it was not reasonable for the plaintiff in Hedley Byrne to rely on the statement. However, the correct viev-; is that taken in Hedley Byrne itself; bec,mse of the limiting words, the defendant never acquired a duty of care in the first place.59 Hence there was nothing from which to disclaim.

54 Ibid 297. 5S Williams, supra note 48. 56 Allen Beever "Against Tort Imperialism" Unpublished article, 27. (Beever). 57 !bid 28. 58 See Smith v Bush [1990] l AC 831. 59 Hedley, supra note 9, 486.


Lastly, the concept explains why Denning LJ was correct to have allowed recovery in Candler Crane. Recall that here the accountants had knowledge that the accounts of the company were to be shown to the plaintiffs for the purpose of a potential investment in the company. By making the negligent statements in these circumstances the defendants effectively surrendered a right to the plaintiffs to rely on those statements.

VI. Negligent Misrepresentation: Contract or Tort?

The focus on assumption of responsibility means that it is not helpful to regard negligent misrepresentation cases as cases of economic loss. Accordingly, the conceptual basis of the negligent misrepresentation action closely resembles the law of contract and its proper conceptual place is within the "law of agreements".

The close connection between tort and contract was recognised by Devlin LJ in Hedley Byrne, who spoke of a relationship that, but for the lack of consideration, is "equivalent to contract."60 The connection is created because the basis of recovery in negligent misrepresentation is not the defendant's wrongdoing, but the defendant's assumption of responsibility. Thus the primary right to sue in negligent misrepresentation arises from the same event as a contractual right - consent. 61

The most obvious reason for treating negligent misrepresentation claims differently from other negligence claims is that they raise issues which have very little to do with the problem of personal injury, which the basic rules of negligence law were designed to deal with. As Stapleton62 has elucidated, the tort of negligence emerged in its clearest form in the late nineteenth and early twentieth centuries as a cause of action for a stranger who had been physically injured by the negligent actions of the defendant-stranger. In contrast, negligent misrepresentation arises primarily in a commercial setting in relation to the provision of professional or quasi-professional services (including advice) about a financial transaction such as a loan, sale or investment. This is not the arena of injury, accident and duties owed to strangers, but rather that of frustrated business people and disappointed investors. This was recognised and emphasised by Denning LJ in Candler Crane, who, in considering what persons are under a duty to take care in words said:63

My answer is those persons such as accountants, valuers and analysts, whose profession and occupation is to examine books, accounts and other things, and to

60 Ibid 529. See also Spring, supra note 47, where GoffLl remarked "the Hedley Byrne duty arises where there is a relationship which is, broadly speaking, either contract or equivalent to contract."

61 Graotham, supra note 49, 137. 62 J Stapleton "Duty of Care aod Economic Loss" 107 LQR, 249. 63 Candler, supra note 7, 179. See also Lord Bridge's comments that litigation typically arises "in relation to

statements made by a person in the exercise of his calling or profession". Caparo, supra note 35, 619.


make reports on which other people - other than their clients - rely in the ordinary course of business.

The close relationship of negligent misrepresentation with contract can be further explained by an analysis of the conceptual basis of contract and tort. As Benson has explained, tort in general presupposes that a plaintiff has a protected interest that originates prior to and is independent of the parties' interaction, whereas contract supposes an interest that arises solely through their interaction.64

It cannot be said that a plaintiff in a negligent misrepresentation claim has a prior and independent interest. Rather, the assumption of responsibility concept entails that the right to rely on the defendant's words is derived from the defendant himself and arises, as in contract, solely from that interaction.

Furthermore, as a matter of law, the defendant's assumption of responsibility in negligent misrepresentation is not imposed. This was recognised by Devlin LJ in Hedley Byme:65

I do not understand any of your Lordships to hold it is a responsibility imposed by law upon certain types of persons or in certain sorts of situations. It is a responsibility that is voluntarily accepted or undertaken, either generally where a general relationship, such as that of a solicitor and client or banker, is created, or specifically in relationship to a particular transaction

The concept thus puts pressure on the general distinction that duties in tort are imposed and "assumed duties are a matter of contract".66 For this reason, the validity of the concept has been criticised by a number of distinguished legal academics.67 For instance, Goodhart has questioned why the law of tort should be enforcing obligations that were historically the province of contract:68

The novel phrase "equivalent to contract" means that "there is an assumption of responsibility in which, but for the absence of consideration there would be a contract." This, with great respect, is not an easy concept to apply for it requires an interpretation of the rules of contract. Moreover, it suggests that the liability for misrepresentation is essentially contractual in nature, although it gives rise to an action in tort.

However, such cnt1c1sms belie a more fundamental theoretical issue, specifically the role of negligent misrepresentation in the structure of the law of private obligations as a whole. This may be answered by looking to the purpose the negligent misrepresentation action serves. It is evident that the initial impetus

64 P Benson "The Unity of Contract Law" in P Benson (ed) The Theory of Contract Law (Cambridge University Press, Cambridge, 2001).

65 Hedley, supra note 9, 529. 66 Todd, supra note 50, 277. 67 Other academic writers have criticized the principle of assumption of responsibility as often resting on a

fiction used to justify a conclusion that a duty of care exists. For examples see Barker, supra note 51; B Hepp le "The Search for Coherence" (I 997) 50 CLP 67, 88 and Peter Cane Tort Law and Economic Interests (2nd Ed, Clarendon Press, New York, 1995) 177,200.

68 Arthur L Goodhart "Liability for Innocent but Negligent Misrepresentations" (1964-65) 74 YLJ 286,287.


for an action in negligent misrepresentation was a desire to give effect to an undertaking where no co11sideration had passed and there was no privity bet1,veen the parties.69 As Goff LJ has stated, the problems caused by the strict application of contractt1al doctrines encouraged judges to "seek a solution to problems of this kind within the law of tortious negligence."70 Recently, the House of Lords7 ' hRs found a second purpose for the negligent misrepresentation action. This is to evade what Burrows72 has deemed "unwmrnnted disadvantages" in contract law, in particular the different rules on limitation and remoteness. Thus the role of negligent misrepresentation is essentially an interstitial or "gap-filling" one,73

designed to give practical justice to the plaintiff where strict contractual doctrines let her down.

V\!hat then, is the proper conceptual place for negligent misrepresentation in the law of private obligations? It may be said th:;:t the law of negligent misrepresentation sits in the space between tort and contract, filling the lacuna in the law of private obligations. Though the response musl be restorative and not based on expectation, thereby resembling tort, the existence of the right relies on the acquiescence of the defendant, and hence resembles conirract.74 Accordingly, foe proper conceptual place for the law of negligent misrepresentation is within a reconstituted conception of the lavv of agreements. This conception vvould encompass those situations where strict contractual mles have been established and situations vvhere the courts wish to give effect to an undertaking but there is no consideration or pri vity. Negligent misrepresentation would thus 'Nork in an analogous manner to the doctrine of promissory estoppel giving unilateral75 effect to the voluntary undertaking of the parties where black-letter contractuaI rules cannot be satisfied.

VIL Conclusion

This article has argued that the historical focus or the couds in negligent misrepresentation claims causing financial loss has been on policy and remedy. Courts were concerned o:bout a need i:o prevent people being held liable for casual remarks made in the course of conversation and have liability to a limitless range of plaintiffs. Accordingly, courts have been preoccupied v1ith formulating appropriate "limitation devices" to restrict ithe ambit of recovery in negligent

69 VVilliams, supra note 48, 837. 70 'White, supra noie 34, 263. 71 Henderson, supra note 45. 72 AS Bun-ows, Understanding the Law elf' Obligation (Hart Publishing, Oxford, 1998). 73 This was explicitly recognised b_y LJ Steyn" See Williams, supra note 48. 7 4 Admittedly, the principle upon vvhich the 1neasure of damages is based in negligent misrepresentation is the

phdntiff's reliance interest, and does not protect the plaintiffs expectation of loss. However, it would be misconceived to suggest that this makes the action a tortious clain1. This is because it 1s clear that the damages principle in contract is not closed and reliance damages may be granted.

75 Beever, supra note 56. The right to sue ]n negligent misrepresentation is not reciprocal as with contracts, but is instead unilateral granted only against the defendant.


misrepresentation. This "remedial mentality" has obscured the reason the plaintiff is able to recover in cases of negligent misrepresentation causing financial loss, the defendant's voluntary assumption of responsibility to the plaintiff. According to the concept, it is not sufficient merely that that defendant made the statement but rather requires that the defendant both made the statement and surrenders a right to rely on the statement. This concept gives a principled explanation for the strong intuition of judges to deny recovery to third parties who rely on a negligently prepared financial statement.

The focus on assumption of responsibility means that the negligent misrepresentation action resembles closely the law of contract. This is essentially because the primary right negligent misrepresentation seeks to enforce arises from the same event as in contract - consent.76 Accordingly, we should no longer assume that negligent misrepresentation belongs to the law of tort. Rather, the proper place for the action is within a reconstituted law of agreements. This analysis is inevitable if we view the law of private obligations not as rigidly compartmentalized causes of action, but as a conceptually seamless web.77

76 Ibid 169. 77 Hall v Herbert (1991) 101 DLR 4th 108.

1298

The ICC: A Forum for Show Trials?

Jenni Smith*

I would suggest that barbarism be considered as a permanent and universal human characteristic which becomes more or less pronounced according to the play of circumstances. 1

I. Introduction

The twentieth century was the bloodiest in human history. While it is highly unlikely that there has ever been a period in history jn which war, violence and prejudice was not part of human existence, the twentieth century had one thing that earlier history did not: increasingly potent technology that enabled rnassive human destrnction on a scale hithert0 unknown. According to one estimate, fewer than 167 million lives were deliberately extinguished in the twentieth century through politically motivated camage.2

This is despite the fact that throughout this period there have been efforts to establish a perm.anent international criminal court to try individuals for the commission of international crimes, ln particular, violations of the laws and customs of war. 3 Since the First Hague Peace Conference in 1899 support for the idea has ebbed and flowed throughout the international community, depending on the "play of circumstances". It was not until 1998 that members of the international community convened to am:mge the establishment of such an institution. By 31 December 2000, 139 stc1.tes had signed the "Rome Statute"' enabling the International Criminal Court ("ICC") to formally come inl[O being on 1 July 2002.5

Yet what of war crimes in the interi.111?6 The vast majority of perpetrators ;::if war crimes in the twentieth century were not subject to judicial sanction/ and

BNLLB. This article was written in October 2002. I would like to thank Treasa Dunworth, (Lecturer in Law, University of Aucldand) whose support and encouragement was invaluable, and without ;,vhmn this article would never have been vvritten. Simone Weii, 1909 - 43, French essayist and philosopher, Ecrits Historiques et politiques (1960) 'Reflexions sur la barbarie' (written c. 1939).

2 Brzezinski, Out ~f Control (l 993) 17. 3 McCormack, ''From Sun Tzu to the Sixth Committee: The Evolution of an International Criminal Law

Regime" in McConnack and Simpson (eds), The Law of War Crimes (1997) 3L 4 Rome Statute of the International Criminal Court, UN Doc. PJCONF. 183/9 ["Rome Statute"] 5 http://untreatv.m1.org/ENGLISH/bible/endishinternetbible/partl/chaoter XVIIl/treatv 10 .as 9. ( at 2 October

2002) Aside from the 139 signatures, as of J 9 September 2002, 81 states bad ratified to become state parties to the treaty.

6 Unless otherwise indicated, the term "war crimes" in this article is in.tended in a generic (rather than technical) sense, to include war crimes, crimes against humanity, genocide, crimes against peace, etc.

7 II is beyond the scope of this paper to inquire into what the most appropriate course of action might be in the wake of mass atrocity. For an excellent discussion of the pros and cons of a variety of modes of "management", see Iviinow, infra note 55.

The ICC: A Forum for Show Trials? 1299

even fewer were sanctioned by an international tribunal under international law. Most war crimes trials have taken place under national (rather than international) law, from those of German nationals in Leipzig after the First World War to those more recently for Nazi war crimes in France, Australia, Turkey, Israel, Canada and Germany. 8 Most have taken place under military jurisdiction, and are not in that sense truly "war crimes trials" but more often courts martial for offences against military discipline.9 Furthermore, the post-1945 history of war crimes trials reveals a disproportionate obsession with the prosecution of Nazi war criminals. 10 The history of war crimes trials is a troubling one.

This article aims to examine some of the criticisms of war crimes trials, and to consider whether the ICC can, or should, overcome them. Section II examines these criticisms; particularly the claim that war crimes trials are, to a large extent 'show trials'. The somewhat vague concept of the 'show trial' encompasses a number of ideas: such trials are partial; selective; legally dubious; and their intent is didactic or therapeutic rather than juridical. Section I will also consider the views of some who think that a 'show trial' - in the sense of pedagogic spectacle - is precisely what a war crimes trial ought to be. I argue for the position that "[t]he purpose of a trial is to render justice, and nothing else",11 but ultimately conclude that the debate rests on differing world views that may be irreconcilable.

Section III is divided into two parts. Part 1 examines one of the criticisms outlined in Section II: that war crimes trials seek to serve the interests of victims, to the detriment of justice. This criticism is examined in the context of the first truly international war crimes tribunal created, the International Criminal Tribunal for the Former Yugoslavia ("ICTY"), and in particular one of the very first decisions made by that tribunal: the decision to allow anonymous witnesses in the Tadit trial. 12 Part 2 first examines the place of victims in the Rome Statute, and discusses whether the decision in Tadic would ( or should) occur in the ICC. The examination then turns to Article 65(4) of the Rome Statute and asks the question: will the ICC become a forum for show trials?

II. Criticisms of War Crimes Trials

For most people, 'war crimes trial' is synonymous with 'Nuremberg'. The International Military Tribunal, 13 convened at Nuremberg to try to punish some of the prominent Nazi war criminals, was supposed to be, in the words of Justice

8 Simpson, "War Crimes: A Critical Introduction" in McCormack and Simpson (eds) supra note 3 (1997) 5. 9 Ibid 6. See for example the infamous U.S. v. Calley, 46 C.M.R. 1131 (1971), aff'd, 22 U.S.C.M.A. 535, 48

C.M.R. 19 (1973). Calley's case was heard on appeal in United States Federal courts, but the initial trial was a court martial.

10 Ibid 8. II Arendt, Eichmann in Jerusalem (Revised ed, 1964) 253. 12 Prosecutor v Tadic, No. IT-94-I-T (10 Aug 1995) (Decision on the Prosecutor's Motion Requesting Protective

Measures for Victims and Witnesses) htt;p://www.un.org/icty/tadic/trialc2/decision-e/100895pm.htm (at 2 October 2002) ["Tadic"].

13 In reality, it was not truly 'international' but made up of the more powerful of the Allied States.


Robert Jackson,'4 "one of the most significant tributes that Power has ever paid to Reason". 15 Yet even Nuremberg, the "vvar crimes trial par excellence" 16 has been labelled a 'show trial' - a criticism that has been directed at war crimes trials ever since.

The concept of a 'show lrial" in the Stalinist vein, where a few pre-selected people are symbolically scapegoated, is clearly an anathema to the traditional v1estern concept of the rule of law. But, as I will show below, many of the criticisms of war crin1es trials run much deeper than this. The many issues surrounding war crimes trials do not occupy discrete categories; however, they have been roughly grouped in this article under the following headings: (1) legality; (2) partiality and politics; (3) interests of victims; (4) ideological dimensions; and (5) pedagogic and didactic functions. i7

:t Legality

One of the main criticisxns of Nuremberg, both at the time and subsequently, was that the trials were ex post facto applications of law to acts that were not crimes at the time they were carried out. rn Defence counsel at Nuremberg argued that the idea of universal criminality was not part of intern<1tional law at thztt time, and hence that the defendants could not possibly have knovvn that their acts were illegal. Simpson notes that this argument failed, but "only after a rather unconvincing trawl through pre-War international lav1 for evidence of an incipient criminal law system" .19 In particular, ahhough there 'Nere also arguments as to the precise technical definitions of 'war crimes', it was not really disputed that one of the charges, 'crimes against humanity' ,20 had not been recognlzed at international law. This criticism, that war crimes triah violate the principle null em crimen sine lege is one not confined to Nuremberg; the problem of the vagueness of the definition of a 'crime against humanity' or a 'crime against peace' is one that has remained until the present day. The International Lav; Commission's (somewhat halting) progres8 over the past fifty years, z.s well as the statutes of the ICTY, the International Criminal Tiibunal for Rvvanda ("ICTR"), and the ICC, may have rernedied this to some degree. Hovvever, it is debatable whether (absent the above statutes) the category of 'crimes ag::i.inst humanity' possesses any independent exi.stence.21 At any rate, the prosecution at

14 Chief American Prosecutor at Nuremberg. 15 Justice Robert Jackson, Opening Address to the International IVfilitary Tribunal at Nuremberg, 21 November

1945. 16 Simpson, supra. note 8, 2. 17 This categorisation owes much to Simpson, supra note 8. However, it should be noted that the c1iticisms of

war c1imes trials are numerous - the selection covered in this paper is merely ]Uustrative and far from exhaustive.

18 Simpson, supra note 8, 13. 19 Ibid. 20 Now considered to be the hallmark of Nurernberg. 21 Despite the fact that the ICTY in Pmsecutor v Tadit (Opinion and Judgment, IT-9-1-T. 7 May 1997) stated,

at paragraph 623, that "[iJt is by now a settled rule of customary internatiom1.l law that crimes against humanity do not require a connection to international armed conflict"< A reading of the literature in this area iHust1·ates that it is by no means "settled" that this is so.


Nuremberg acknowledged the vagueness of the category and thereby strove to ensure that this charge was an addendum to the main war crimes charges.

Another accusation levelled at war crimes trials (and one intimately connected with partiality) is that they seem to violate the principle that laws should be consistently applied, a fundamental element of the rule of law. Under this principle, law should be applied uniformly, to all groups, at all times and locations. This was a part of the 'victor's justice' criticism levelled at Nuremberg. The governing laws of the trial were not applied equally; the standards of guilt were applied only to the losers. The Soviets, for example, were not held to account for their aggression against Poland, the Baltic States, or Finland. The United Kingdom and the United States were not required to confront the bombings of Dresden, Hiroshima and Nagasaki.22 Moreover, the fact that war crimes trials have only ever been conducted in the case of a few (mostly Nazi) war criminals along with a selection of perpetrators of other atrocities (such as the ethnic conflicts in Yugoslavia and Rwanda) makes any "justice" weaker by virtue of the fact that so many others have gone un-prosecuted. This has obvious effects for the legality of any individual trial.

Issues of procedural fairness have also been raised. The trial of the major Nazi leaders at Nuremberg did seem to have adequate procedural protections (notwithstanding the other legal issues); indeed, Teitel argues that "Nuremberg was not a show trial, not in the ordinary sense of a pre-ordained result. Right to counsel was guaranteed, along with the presumption of innocence".23 However, Maguire acknowledges that, while "high-ranking Axis leaders were given elaborate trials in Nuremberg and Tokyo . . . lesser offenders were tried by military commissions with few legal pretences".24 The Tokyo trials generally, whether of high-ranking officials or not, were much less concerned with the appearance of fairness, and have been widely condemned as legal farce. General Yamashita Tomoyuki's trial particularly stands out (in the words of the dissenting Supreme Court judges) as "a judicial lynching without due process of law". 25 Not only was the defence treated unequally during the trial, but there was a failure even to comply with basic rules of evidence. Yamashita's conviction rested in large part on hearsay, and, even more absurdly, a hastily constructed propaganda film.26

Commenting on the trial of Yamashita, Japanese philosopher Yoshimoto Takaaki wrote in 1986:27

22 Meltzer, "Remembering Nuremberg" in Cooper (ed), War Crimes (1999) 25. 23 Teitel, "Nuremberg and Its Legacy, Fifty Years Later'' in Cooper (ed), ibid 46. 24 Maguire, "Nuremberg: A Cold War Conflict of Interest" in Cooper (ed), ibid (1999) 68. 25 In re Yamashita, 327 U.S. I, 81 (1946) (Rntledge J dissenting, Murphy J concurring). The trials at Tokyo were

far more military in nature than Nuremberg. They were also condncted by General MacArthur, who made no secret of his hatred of "Japs", speeded up the trial, and decided to have Yamashita hanged even before two dissenting opinions had arrived from the Supreme Court.

26 See Prevost, "Race and War Crimes: The 1945 War Crimes Trial of General Tomoyuki Yamashita" (1992) 14 Hum Rts Q 303, 317-318.

27 Takaaki, "Bungakusha to Senso Sekinin nit suite", quoted in Buruma, infra note 28, 165.


From our point of view as contemporaries and witnesses, the trial was partly plotted from the very start. It was an absurd ritual before slaughtering the sacrificial lamb ... I also remember my fresh sense of wonder at this first encounter with the European idea of law, which was so different from the summary justice in our Asiatic courts ... the accused were able to defend themselves and the careful judgment appeared to follow a public procedure.

Buruma adds: 28

Yoshimoto's memory was both fair and devastating, for it pointed straight at the reason for the trial's failure. The rigging of a trial- the "absurd ritual" -undermined the value of that European idea of law.

The legality problems outlined above are still of at least nominal concern even for those who might argue that a war crimes trial should seek to do more than merely render justice. Lawrence Douglas, who thinks that the idea that a trial should have the sole purpose of rendering justice is a "needlessly restrictive vision of the trial as legal form" ,29 still considers that "[ o ]nee one has decided on the latter course [a trial], one must satisfy law's stern requirements. To permit even the most spectacular crimes to destroy legal form is to turn, pace Arendt, a trial into a grotesque show". 30 Mark Osiel, who argues that the predominant purpose of war crimes trials is the development of a coherent collective memory of a people, still acknowledges that trials will have more effect where acceptance of legal and political processes underscores the entire event.31 The question remains whether the didactic functions of war crimes trials necessarily compromise the very legality that both these proponents of pedagogy claim to be important.32

2. Partiality and Politics

[E]ach war crimes trial is an exercise in partial justice to the extent that it reminds us that the majority of war crimes remain unpunished. 33

The accusation of 'victor's justice' 34 is one example of the problem of partiality in war crimes trials. In perhaps the ultimate irony, the Allied agreement to try German war criminals - to subject them to the rule of law and universal human rights - was signed on 8 August 1945, the same day that the United States dropped the second of its atomic bombs on the predominantly civilian population

28 Buruma, The Wages of Guilt (1994) 165. 29 Douglas, The Memory of Judgment (2001) 2. 30 Ibid 111. 31 Osiel, Mass Atrocity, Collective Memory, and the Law (1997) 43. 32 This question will be discussed in Part 5 below. 33 Simpson, supra note 8, 8. 34 Briefly outlined in Part 1 above.


of Nagasaki, immediately killing approximately 70,000 people.35 Objections raised at Nuremberg pointed out the reality that, while the Allied victors of the Second World War wished to use international law to condemn the actions of the Axis powers, they in no way applied those same international laws to their own wartime acts.36 Robert Jackson's reported comment that the trial was an example of "superior right, not superior might" appears farcical in this context. However, as Simpson points out, the problem of partiality runs much deeper than the 'victor's justice' argument, not in the least because (with the exception of the Nuremberg and Tokyo proceedings) war crimes trials have not typically been conducted by the 'victors' of a war.37 The partiality inherent in the trials is related more fundamentally to ideological preferences and political expediency.

Partiality thus includes a tendency towards prosecuting ideological enemies, rather than ideological friends. 38 Thus, while calls for war crimes trials were heard in the cases of Cambodia and Iraq, these calls were notably absent regarding Vietnam or East Timor. Accusations of selectivity go even further than ideology. In some cases, racial or gender bias also shows through. It has been noted that "[t]he imperfect justice meted out after World War Two itself revealed a curious racial bias against the Japanese and in favour of the German war criminals at Nuremberg where the procedural safeguards accorded to the accused were infinitely greater."39 In the same vein, posters during the war had depicted Germans as the enemy, but in a way that made it clear they were to be respected. The Japanese were conversely presented as somehow subhuman. Crimes against women have been ignored until fairly recently, when it was acknowledged for the first time, by the ICTY, that rape committed on the scale found in the Former Yugoslavia was a crime against humanity.40

Furthermore, the realpolitik of political diplomacy cannot be ignored. What if the price of peace is an amnesty from prosecution? When does political expediency become a reason to ignore atrocity? Aga_in, the wake of World War Two serves as an illustration of this problem. Despite the high rhetoric of the American prosecution in Nuremberg, the political aspect of the trial was also evident. Nuremberg was intended to send a message to the world about unjust war and designed to vindicate Allied military policy regarding the war, including the illegal occupation of post-war Germany by the United States.41 When Robert

35 Many more (approximately 130,000) victims of Hiroshima and Nagasaki died during the next five years, and more have also suffered from long-term effects of the atomic explosions.

36 Simpson, supra note 8, 5. 37 Ibid. 38 See ibid 25, where it is noted that academics often denounce war crimes committed by ideological enemies

but ignore similar crimes committed by ideological friends. 39 Ibid 10. 40 Ibid. 41 Teitel, supra note 23, 50. For discussion of the illegal nature of the United States' occupation of Germany, see

Freidrich, "Nuremberg and the Germans" in Cooper (ed) supra note 22, 87. The United States' illegal acts included contravening the Hague laws for occupiers, which limit an occupier's interference in domestic affairs to acts that secure its military position. The United States instead embarked on an intense ''punishment, purge and re-education program", prohibiting elections, and installing its own hand-picked "German leaders".


Jackson was asked what he thought the purpose of the trials should be, he answered that "they were to prove to the world that the German conduct of the war had been unjustified and illegal, and to demonstrate to the German people that this conduct deserved severe punishment and to prepare them for it". 42 The political aspect of the trials are further evidenced by the fact that once this goal had been served and replaced by more important goals, the vast majority of war criminals convicted by American courts in post-war Germany were "quietly released by 1955".43 Maguire argues:44

Rather than admit outright that the war crimes trials were political acts, U.S. leaders chose to manipulate the judicial machinery, tacitly demonstrating to Germans that they had been correct all along - that the treatment of the vanquished was, and had always been, a political act.

Maguire's comment is overly harsh. Notwithstanding the criticisms that have thus far been outlined, it seems unfair to ascribe a complete lack of a genuine motivation to pursue justice in the United States' prosecution of Nazi war criminals. Further, the fact that the release of convicted war criminals was effected with little pretence of legality does not necessarily imply that the original convictions were also flawed in the same way.45 A day is a long time in politics. The changing political climate of the cold war meant that the United States (which was still in effective control of post-war Germany) chose to release the remaining convicted war criminals. The way the United States went about the releases, rather than the trials themselves, is what prompts Maguire's comment that the prosecution of war criminals "was, and had always been" political; the problem was the United States embarked on a series of legally questionable "proceedings"46 in order to obtain releases, while ostensibly maintaining the existence of legal justification for doing so.

Of all the criticisms regarding international criminal trials, the problem of political expediency is the one most likely to continue under the ICC. However, many of the other 'legality' criticisms seem likely to be largely avoided by the ICC. For example, the Rome Statute does not apply retrospectively, thus avoiding claims that individuals are being prosecuted for acts that were not crimes at the time they were committed. Moreover, crimes are defined publicly and in detail, avoiding potential claims of ignorance as to the elements of crimes. At any rate, these crimes are not 'revolutionary' or even new - they have been slowly evolving in international law for the past fifty years. Thus most future criticisms of the legality of the ICC are likely to be from states challenging the jurisdiction of the Court.

42 Justice Robert Jackson, quoted in Buruma, supra note 28, 145. 43 Maguire, supra note 24, 67. 44 Ibid, 68. 45 Altbough, undoubtedly, some of tbem were. See ibid 26. 46 Such as 'parole hearings' tbe outcomes of which were dictated straight from Washington.


Accusations of political trials are not, however, always negative. Orentlicher defends the concept by saying that "[t]o the extent that trials confirm and enforce core community values, they are political in a sense that is, far from the antithesis of justice, indispensable to public perceptions that justice has been rendered".47

The notion expressed here though seems to rest on the assumption that the public's "core community values" can never themselves be unjust. Yet surely, if anything, the Nazi period taught us the opposite - whole communities can be wrong about something.

Kritz argues that, far from being exercises in partiality and politics, war crimes trials can establish "an understanding that aggressors and those who attempt to abuse the rights of others will henceforth be held accountable".48 But the stark reality of the history of war crimes trials undermines this assertion -since the vast majority of human rights abuses this century have gone unpunished, how can the odd trial here and there establish an understanding that those who do commit such atrocities will be held accountable?

Partiality and realpolitik will undoubtedly always form part of the equation in international criminal law. To what extent will be examined in Section III, but for now it will suffice to say that "[p]ower will always be able to dominate law. We cannot erase this equation, but we can rig it by creating fair and just legal institutions that are more powerful than the criminals."49

3. Interests of Victims

The argument that war crimes trials should allow victims' interests to compromise the justice of a trial is the most difficult to sustain. While many who would class themselves as legal liberals are concerned about the potential threats to justice outlined thus far, there are far fewer who see anything to be concerned about in the notion that, in part, a war crimes trial is a forum for victim therapy. The reasons for this position are obvious. Victims of mass atrocity have suffered some of the worst experiences humankind has to offer. To most of us, it adds a sense of insult to injury to deny the victim the chance to participate in a potentially therapeutic process. Yet, if a trial's purpose is "to render justice, and nothing else"'0 then allowing "even the noblest of ulterior purposes ... can only detract from the law's main business: to weigh the charges brought against the accused, to render judgment, and to mete out due punishment".51

A classic description of therapeutic purpose states that:52

47 Orentlicher, "A Half Century of Silence: The Politics of Law" in Cooper (ed) supra note 22, 107-108. 48 Kritz, "War Crimes Trials: Who Should Do Them - and How" in Cooper (ed) supra note 22,169. 49 Rosenberg, "Tipping the Scales of Justice" in Cooper (ed) supra note 22, 290. 50 Arendt, supra note 11, 253. 51 Ibid. 52 Mertus, "Only a War Crimes Tribunal: Triumph of the 'International Community,' Pain of the Survivors" in

Cooper (ed), supra note 22, 230.


[T]he discourses of torture, rape, murder and other forms of violence teach their targets that they are nothing but objects. The process of telling and of observing one's story being heard allows survivors to become subjects again, to retrieve and resurrect their individual and group identities. From voice comes hope.

Victims of trauma may indeed need a vehicle through which to tell their stories, and thus to heal. Yet that does not mean that a criminal trial is the forum where this should take place. On the contrary, it is suggested here that a courtroom is a bad place for therapy because it compromises both the victims' opportunities for genuine healing and the judicial function of the trial.

For victims, the trial is unsatisfying in several ways. Victims' experiences often do not find their way into legal cases, either because there are too many crimes to try, or because those experiences, although horrible and morally reprehensible, do not constitute crimes under international law: "[t]here is no crime of destruction of souls, deprivation of childhood, erasure of dreams".53

Further, even if their case does come before a court, victims may still be denied the opportunity to truly tell their story, since law's unique processes and discourse changes an individual's experience into something quite different from what she would consider to be her reality. "Law does not permit a single witness to tell his or her narrative; it chops the stories into digestible parts, selects a handful of these parts, and sorts and refines them to create a new narrative".54 If the law is to remain just, victims and witnesses will "undergo the ordeals of testifying and cross-examination, usually without a simple opportunity to convey directly the narrative of their experiences."55

The Eichmann Trial in Israel in 1961 was an occasion where critics say the voices of the victims were heard loud and clear, and resulted in the trial becoming a travesty:56

The prosecutor opened his address with the following words: 'When I stand before you, judges of Israel, in this court, to accuse Adolf Eichmann, I do not stand alone. Here with me at this moment stand six million prosecutors .... ' With such rhetoric the prosecution gave substance to the chief argument against the trial, that it was established not in order to satisfy the demands of justice but to still the victims' desire for and, perhaps, right to vengeance.

The Prosecutor had assembled a collection of Holocaust survivors who longed for their day in court and the opportunity to tell their story. The judges argued with the prosecution over their approach of "painting general pictures," but proved incapable of halting the testimony once it had begun, as Judge Landau put it, "because of the honor of the witness and because of the matters about

;i3 Ibid 233-234. 54 Ibid 234. 55 Minow, Between Vengeance and Forgiveness (1998) 58. 56 Arendt, supra note 11, 260-261.


which he speaks"57• Who were the judges to deny any of these victims their day in court? Who would have dared to question the witnesses' truthfulness as they "poured out their hearts [from] the witness box", even though what they had to tell could only "be regarded as by-products of the trial"?58

Arendt, among others, condemned the trial as a spectacle: many of the witnesses relayed stories of their experiences of the Holocaust which had absolutely no connection to Eichmann or to any of the crimes he was alleged to have committed. By allowing the 'therapeutic' function to intrude, justice was severely compromised. However, as pointed out above, if a trial operates according to the rule of law, it is unlikely that the needs of victims will be met. Mertus notes:59

The problem with ... war crimes tribunals ... is that they are war crimes tribunals. The stuff of law - the elements of the crimes, the rules of procedure, the dance of witness, lawyer, judge - can do only so much. And the closer one is to the crime, the less likely "so much" will be enough.

The trials cannot be "fixed" to address what is missing; rather, additional means must be found to contend with the concerns of survivors.60

4. Ideological Dimensions

Just as belief belongs in church, surely history education belongs in school. When the court of law is used for history lessons, then the risk of show trials cannot be far off. It may be that show trials can be good politics - though I have my doubts about this too. But good politics don't necessarily serve the truth. 61

It was widely accepted among the prosecutors at Nuremberg that they were aiming not only to secure convictions for the accused, but also to play a role in history. Robert Storey, executive trial counsel, spoke of the aim of the trial as being to create "a record of the Hitler regime which would withstand the test of history."'2 The trial of Adolf Eichmann was meant to place the Holocaust in proper historical perspective:63

"We want the nations of the world to know" said David Ben Gurion, then Israeli prime minister .... The trial was not concerned with revenge, he insisted, but it was certainly preoccupied with establishing a place for the Holocaust in history.

57 Presiding Judge Moshe Landau. cited in ibid 209. 58 Ibid 209. 59 Mertus, supra note 52, 229-230. 60 Ibid 242. 61 Buruma, supra note 28, 142. 62 Arendt, supra note 11, 253. 63 Marrus, The Holocaust in History (1987) 4-5.


Ferencz, the Chief Prosecutor in the trial of the Einsatzgruppen, openly acknowledges that the aim of the prosecution was not simply to punish the guilty: "In that case, to pick out twenty-two [of 2000] would have been rather absurd. We had something more in mind. First, of course, we wanted to establish a historical record. "64

The problem with using a trial to create history is that the historical narrative becomes distorted upon its relocation into a legal setting. Law, in order to be effective as law, must distinguish between relevant history and irrelevant or inadmissible history. If certain information is not directly relevant to the procedure, a lawyer must exclude it. An historian is "dedicated to a different mission", 65 and will find excluded information to be a useful part of the story he is trying to tell. Marrus argues that legal procedures are not designed to tell a historical narrative, but to facilitate a fair judgment. "If you want history written, tum to historians, not to lawyers."66 Buruma argues that in the process of conducting a trial, "[t]he terrible acts of individuals are lifted from their historical context. History is reduced to criminal pathology and legal argument . . . [the trials] will not do as history lessons."67

The "re-telling" and "distorting" effect of a war crimes trial "confines a historical moment in its abnormality but wishes to make its lesson universal and atemporal".68 The obsession with Nazi war criminals is classically illustrative of this difficulty. The Nazi period is viewed as an aberration in human history. By relentlessly pursuing and prosecuting those war criminals, society is able to continue to see the episode as unique and, perhaps more importantly, removed from our common experience of humanity. In this way, we can confidently assure ourselves that we would never do anything like that.

The legitimating function of a war crimes trial is linked with criticisms of partiality and also seeks to tell the story from a particular point of view. In this story, good ('us') and evil ('them') are clearly defined. The fact that Nazi war crimes were investigated at Nuremberg while Allied war crimes were not served to reveal the 'truth' that while the acts of the Nazis were war crimes, the acts of the Allies were not. Likewise, the retelling of the Holocaust story in the Eichmann trial lent legitimacy to Israel's existence "and any measures the state deemed necessary to that continued existence". 69 The Barbie trial in France ended up, in part, as an attempt to promote the notion that Vichy France was not really as anti-Semitic as Nazi Germany, and also to legitimate France's conduct in Algeria - the French did not commit crimes against humanity, "because, after all, they were not Nazis".70

64 65 66

67 68 69 70

Ferencz, "Nuremberg: A Prosecutor's Perspective" in Cooper (ed), War Crimes (1999) 32. Simpson, supra note 8, 20. Michael Marrns, quoted in Eviatar, "The Show Trial: A Larger Justice?" The New York Times on the Web, New York, USA, 20 July 2002 hti;p://www.nytimes.com/2002/07/20/arts/20TRIA.htonl?todaysheadlines (at 18 August 2003). Buruma, supra note 28, 152-153. Simpson, supra note 8, 21. Ibid 22. Ibid 23.

The ICC:}, Fommfor Show Trials? 1309

Every war crimes trial serves to implicitly legitimise other conducl that has not been subjected to judicial sanction. Thus the Australian case of Polyukhovich "exclude[d] Indonesian brntafaies in East Timor from its definition of war crimes",71 and firmly rejected the idea that the Aboriginal people had been subjected to genocide via forced removal of children.72 Simpson argues that the proposals to try Saddam Hussein after the 1991 Gulf ,.)\Tar "imply that the Allied bombing of electrical facilities in Iraq complied with the laws of war". 73

Despite these criticisms, there am those who think that a pedagogic spectacle is precisely what a war crimes trial ought to be. Douglas argues that Arendt's scathing critique of the Eichmann trial was a "needlessly restrictive vision of the trial as legal form"o" He does recognize that the "danger of turning a trial into a pedagogic spectacle is that it becomes a legal farce". 75 Douglas argues, however. that, so long as the appearance of legality is maintained, didactic functions are entirely justified. He essentially advocates a "didactic legality", whereby pedagogic interests axe served 'Without compromising judicial fairness. Here Douglas appears to hold a contradictory position: while he rnnintains that legality must be maintained at the same time as the pedagogic spectacle, he consistently demonstrates that these t·vvo functions are rnrely compatible.

Douglas argues that the Holocaust trials failed to preserve historical accuracy because they -were tco constrained by legal processo76 As Osiel puts it77

Like its predecessors at Nuremberg, the Eic:m1:m11 prosecution found itself, in the early going, struggling to reconcile foe need to present a legally cogent case with the need to dramatize the spectacular natme of the crimes to be adjudged.

Douglas's argument stems from his belief lhat "Nazi crimes stretch and overtax conventional jurisprndeutial understandings".78 Since the lac..~, is, he asserts, um1sed to .. and inc,::.pable of, dealing vvith such atrocities, pedagogy can aid the task of the law by helping a society to underntand its traumatic history. Douglas examines hm;v the law struggled to master the "radicalness of N2.zi atrocity" because legal discourse is "too formal and anchored in precedent to make sense of unprecedented crirnes'". 79 Ultimately he concludes that: 80

71 Ibid. 72 Ibid. 73 lbido 74 Douglas, supra note 29, 2. 75 Ibid. 76 See ibid chapters 2 and 3. 77 Ibid 102. 78 Ibid 175. 79 Ibid 4. 80 Ibid 260.


It was not the pursuit of didactic history that ultimately eroded the legal integrity of the proceeding conventionally conceived; rather, it was the strenuous efforts to secure formal legal integrity that often led to a failure fully to do justice to traumatic history.

Mark Osiel is another who claims that the function of a war crimes trial should be didactic. In his view the trial is a way to deliberately construct the collective memory of a society. He asserts that when criminal trials are effective as a public spectacle, they "stimulate public discussion in ways that foster the liberal virtues of toleration, moderation, and civil respect". 81 Osiel recognizes the challenges that his view presents to the concept of justice, but argues that in a liberal society show trials are justified because "[l]iberal show trials are ones selfconsciously designed to show the merits of liberal morality and to do so in ways consistent with its very requirements".82 Like Douglas, he acknowledges that the appearance of legal integrity is essential to the trial's pedagogic success.

Osiel wholeheartedly embraces the notion that part of the didactic purpose is to change the collective memory of an event. He argues that courts can legitimately "tailor" their "stories" in order to demonstrate the merits of liberal morality. But because a liberal society welcomes dissent, alternative (perhaps more accurate) narratives will be able to compete with the official legal interpretation of an event. 83 In this way, Osiel argues that the truth will be safeguarded.

This argument is dubious at best. According to the logic of this view, the use of the Barbie trial to recast the French in an innocent light in order to produce a 'healthier' collective memory was entirely justified because dissenting viewpoints would be allowed to compete. Osiel fails to realise that dissenting voices are just that - dissenting - and therefore necessarily in the minority. Aside from compromising the justice to the individual defendant (who after all, should be allowed to 'tell her story'), allowing the trial to be used to permit an entire society to bury its head in the sand regarding a tragic event is probably one of the surest ways to see such tragedy repeated. A failure to examine the root causes of atrocities will likely lead to a failure to recognize the first signs of trouble when they once again appear.

Both Douglas and Osiel contend that the success of the pedagogic spectacle is partly dependent on the appearance of fairness and legality. Yet this contention fails to recognize that much of the criticism aimed at war crimes trials has been addressed precisely by this problem: they were pedagogic spectacles that aimed to appear fair and just, yet if the rule of law is to be respected, it must be the actual presence of justice, rather than the mere appearance of it, that is important.

The views of Douglas and Osiel can perhaps be understood as criticisms of legal liberalism's notion of the rule of law as an impartial and objective system of rules. Douglas asserts that Arendt's criticisms presuppose a particular theory

81 Osiel, supra note 31, 2. 82 Ibid 65. 83 Ibid 141.


of the law in general and of the trial as a specific legal form: "this theory comprehends law in its most general sense, as a 'system of rules"'.84 He outlines the challenges to legal liberalism that have been made by legal realists, critical legal scholars, and more recently, scholars of "narrative jurisprudence".85

The classic criticism of legal liberalism's strict adherence to the notion of the rule of law is based on the belief that liberal legal ideology ignores the political, social and historical context in which legal decision-making takes place. "Law is simply politics in different garb: it neither operates in a historical vacuum nor does it exist independent of ideological struggles in society."86 It is argued that law seeks to set itself apart from political and social contexts by pretending to be neutral, objective and quasi-scientific.87

A response to this argument, put forward by Herzog,88 is that while alleging legal liberalism's failure to acknowledge the political and social context of law, critics fail themselves to take into account the political and historical context in which liberalism arose. During religious civil wars in Europe, Enlightenment writers advocated rationality and reason, "not because they had a naive view of the powers of human cognition in social life, but to bash the Roman Catholic Church,"89 the political, religious, and legal power of which was overwhelming. Claims that liberals made for autonomy and coherence of law were bids to take legal decision-making out of the hands of those who had explicitly political interests and who exercised their power arbitrarily, in order to try and ensure law was "more regular, more predictable, and more accountable" .90 "That was a real change. Law used to be transparently political. The history of early modem Europe is full of incidents that make it obvious why liberals pressed for a separation of law and politics."91 Demanding the separation of law and politics in this context meant demanding an end to abuses of the law:92

It did not mean imagining some bizarre world in which the practice of law would make no political difference ... Liberals - and others fond of the rule of law - need not deny that political considerations enter. They need only say that what happens in court is better than the available alternatives.

Thus liberals do not hold fast to the rule of law because they nai:vely think that politics and other considerations do not enter the equation; they do so

84 Douglas, supra note 29, 111-112. 85 For example, Robert Cover and James Boyd White are among this school of thought. Narrative jurisprudence

"understands law as a vital cultural discourse through which social narratives are structured and suppressed and through which normative meaning is defined and contested". Quoted in ibid 112.

86 Hutchinson and Monahan, "Law, Politics and the Critical Legal Scholars: the Unfolding Drama of American Legal Thought" (1984) 36 Stanford L Rev 199, 206.

87 Anleu, Law and Social Change (2000) 65. 88 Herzog, "As Many as Six Impossible Things Before Breakfast:" (1987) 75 Cal LRev 609. 89 Ibid 614. 90 Ibid 626. 91 Ibid. 92 Ibid 627.


because they are aware of the dangers of allowing such considerations to intrude (many of which have been illustrated earlier in this article). When liberals claim that the purpose of a war crimes trial is to render justice, and nothing else, their claim is aspirational rather than descriptive.

More fundamentally, the underlying difference between the two sides of the debate is simply that their views of the human condition are so different. Douglas holds the view that the reason law is not capable of dealing with incidents such as the Holocaust is because such incidents are so "unprecedented" that the law cannot master their "radicalness".93 For Osiel, the opportunity to "shape" the collective memory must be taken partly because that memory is otherwise too terrible to imagine. Douglas and Osiel want to tell a historical narrative - but in so doing refuse to look history squarely in the face. In Simpson's words, the problem is that they "cannot [admit] that history is the history of crimes against humanity. Instead, the history of genocide must be viewed as an aberrant and unique series of disparate events detached from the progress of history itself."94

Such views are essentially ahistorical in that they attempt to "remove from the frame a sequence of crimes stretching unbroken from Nuremberg to the Hague and implicating each of the major powers."95

As stated by the international jurist, B. V.A. Roling, "the foremost, essential function of criminal prosecutions [is] to restore confidence in the rule of law. The legal order is the positive inner relation of the people to the recognized values of the community, which relation is disturbed by the commission of crimes" .96 What was the holocaust but murder writ large? The law is perfectly capable of dealing with that. Criminal law does not inquire into the reasons why people offend. "Justice demands that the accused be prosecuted, defended, and judged, and that all the other questions of seemingly greater import - of 'How could it happen?' and 'Why did it happen?' ... be left in abeyance."97 It is not that these questions are unimportant - far from it - but merely that the law is not capable of answering them. There are other forums in which to debate these issues. A war crimes trial should be left to remain a proper trial.

93 Douglas, supra note 29, 4. 94 Simpson, supra note 8, 21. 95 Ibid 22. 96 Roling, "Criminal Responsibility for Violations of the Laws of War" 12 Revue Beige de Droit International

(1976) 8, quoted in Cassesse, "On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law" ht1;p://www.ejil.org/journa!Nol9/Nol/artl-05.html/tp72 23046 (at 14 July 2003).

97 Arendt, supra note 11, 5.

The ICC: A Forum for Show Tria!s? 1313

UII. Contextual Analy§is

L J1Lllstke and Vktims' Kntenests in the l!CTY

This section examines a criticism outlined in Section II -- that "War crimes trials are used primarily to serve victims' interests - in the context of the ICTY. In particular, the focus is on the decision to aHoYv anonymous witnesses in one of the ICTY's first cases: Prosecutor v Tadic. 98 This illustration highlights the tension bet,,veen foe judicial and therapeutic ( or victim-oriented) purposes of a \Var crimes trial, and demonstrates how an attempt to accommodate non-juridical purposes can unfairly compromise the minimum procedural guarantees to which defendants are entitledo

Although Nuremberg and Tokyo are often referred to as 'international' tribunals, they were, strictly speaking, multinational rather than international, since only the victors of VVorld V'Var Tvvo were represented. The ICTY is, therefore, the first truly international criminal tribunal created - set up not by a group of states, but by the international community as a whole, as represented by the Security CounciL99 Jt has been noted however, that: 100

The daunting challenges confronting the Hague Trib11nal are rendered more comple;t still by the inherent paradox surrounding its cres_tion: It is at once the most ambitioi;s globa! effort since Nuremberg and Tokyo lo subordinate lswless power to the rule of international law and to moral principle, and yet, ar ,he same time, it is a project instituted by states that stunningly failed in Gther respects to mTesl the behavio:ir they I'OVJ claim authority to judge.

The ICTY has thus been seen by some critics as ''little more th:m a sop to the comciEnce of a world that did little to stop the wars and genocide". 101 For this reason, the challenge for the ICTY ?fas to refute these criticisms by manifestly displaymg a commitment to human rights.

Follmving the trend in many national criminal jurisdictions, the Statute of the ICTY makes some provision for the role of victims. It deals with victims mainly in their role as witnesses, as do the Rules of Procedure and Evidence. 102 The ICTY provides a Victims' and ·witnesses' Unit, which provides protective measures, as well as counseUing and support. 103 Article 20(1) instructs the court to have "due regard" for the protection of victims and witnesses. 104 Victims are still placed

98 Supra note 120 99 The Security Council represents the international community in that its power to maintain international peace

and security has been ceded to it by the member states of the United Nationso 100 Orentlicher, supra note 47, l!L 101 Cooper, "Introduction to Pmt II"° in Cooper (ed), supra note 22, I 150 I 02 van Boven, "The Position of the Victim in the Statute of the International Criminal Court" in von Hebel, et al

(eds), Reflections on the Intemational Criminal Court (1999) 800 103 lbido l0LJ Statute of the Inte:rnational Criminal Tribunal for the Fonner Yugoslavia

httn://wWWolll1oOf!dictv/basic/statut/stat2000J1tm (at 12 October 2002),


largely in an auxiliary role by the ICTY Statute and Rules, although some rules relating to restitution and compensation provide a limited degree of reparation for individuals. 105 However, victims' rights advocates see the Statute as fairly limited overall and conclude that "[f]rom the point of view of victims, the work of the ... ICTY ... can be considered a disappointment in many respects."106

As an international criminal tribunal, representing, for some, the zenith of international human rights law, the status of rights of the accused in the ICTY was not expected to be a matter of dispute. Indeed, the UN Secretary-General's report on the establishment of the ICTY stated that "[i]t is axiomatic that the International Tribunal must fully respect internationally recognized standards regarding the rights of the accused at all stages of the proceedings ... ". 107 In particular, Article 14 of the International Covenant on Civil and Political Rights ("ICCPR") was considered as the foundation and core of those rights.

Disappointingly, the ICTY failed to demonstrate a commitment to human rights. In 1995, in response to a request from the Prosecutor, it issued a controversial decision allowing the testimony of anonymous witnesses in Tadic. 108

( a) Right to a Fair Trial at International Law

The right of an accused to examine his or her accusers is recognized as fundamental in most legal systems. It is an element of the right to a fair trial, 109

which was affirmed as a basic human right in 1948 in the Universal Declaration of Human Rights ("UDHR"), and has also been recognized in Article 14 of the ICCPR and Article 6 of the European Convention on Human Rights ("ECHR"). 110

These provisions are "minimum" guarantees, providing a threshold below which courts cannot go without compromising faimess. 111

The provisions for a fair trial recognized internationally are similar to those recognized in both the common law and civil law worlds. Trinidade argues that: 112

Whether we have in mind the component elements of the right to a fair trial, as developed in the common law countries, or those which are derived from fundamental guarantees (garantiesfondamentales), as developed in civil law countries (droit civil), in the present domain we find ourselves before general principles of law, universally acknowledged. With the advent of international instruments of human rights ... the

105 van Boven, supra note 102, 81. 106 McDonald, "The Role of Victims and Witnesses in International Criminal Trials" in Yepes-Enriquez and

Tabassi (eds), Treaty Enforcement and International Cooperation in Criminal Matters (2002) 260. 107 Quoted in Prosecutor v Tadic, infra note 135. 108 Ibid. 109 For a detailed description of the specific guarantees of a fair trial recognized by international law, see

Stapleton, infra note ll I. ll0 It is also debateable whether the right to a fair trial exists as part of customary international law. ll I Stapleton, "Ensuring a Fair Trial in the International Criminal Court: Statutory Interpretation and the

Impermissibility of Derogation" (1999) 31 NYU J Int'! L & Pol 535,548. ll2 Trinidade, "The Right to a Fair Trial Under the Inter-American Convention on Human Rights" in Byrnes (ed),

The Right to a Fair Trial in International and Comparative Perspective (1997) 11.


concepts of fair trial and fundamental guarantees enshrined therein acquire an autonomous meaning. The principles they incorporate are universal; they are general principles of law ... found in different legal systems. They are not the invention of a group of States, but a reflection of the juridical conscience of humankind.

(b) The Majority Decision in Tadi{;

The majority considered that as a body unique in international law it had little precedent to guide it. 113 Rules governing Nuremberg and Tokyo were "rudimentary", with the International Military Tribunal resolving most procedural problems as they arose on a case-by-case basis. 11• The majority further considered that as an "ad hoc institution, the [ICTY] was able to mold its Rules and procedures to fit the task at hand."115

The majority decision purported to look at general rules of treaty interpretation, 116 notably Article 31 of the Vienna Convention on the Law of Treaties ("VCLT") by looking to the "context and object and purpose" of the ICTY Statute.117 However, in the end, the Tribunal's focus was not really on the purpose of the Statute, but rather on what was considered to be the Tribunal's unique and compelling obligation to protect the alleged victims of (and witnesses against) the accused. 118

The Trial Chamber concluded that anonymity was permitted, despite the fact that it is not mentioned in the Statute or Rules. The Court's determination rested mostly on its view that since the Statute contained a particular mandate to protect the interests of victims, it was unique in international law; as such, neither the provisions of the ICCPR or ECHR, nor interpretations of those instruments by other judicial bodies had any binding effect: 119

These considerations [ of victim interests] are unique: neither Article 14 of the ICCPR or Article 6 of the [ECHR], which concerns the right to a fair trial, list the protection of victims and witnesses as one of its primary considerations. As such, the interpretation given by other judicial bodies to Article 14 of the ICCPR and Article 6 of the ECHR is of only limited relevance in applying the provisions of the Statute and Rules of the International Tribunal, as these bodies interpret their provisions in the context of their legal framework, which do not contain the same considerations.

113 Tadit, supra note 12, [20]. 114 Ibid. 115 Ibid [23]. 116 Although the ICTY was not created by treaty, but by the Security Council, the court considered that there was

justification to apply treaty law to the interpretation of the ICTY statute. 117 Article 31, Vienna Convention on the Law of Treaties. The Convention was adopted on 22 May 1969 and

opened for signature on 23 May 1969 by the United Nations Conference on the Law of Treaties. The Conference was convened pursuant to General Assembly resolutions 2166 (XXI) of 5 December 1966 and 2287 (XXII) of 6 December 1967. The Conference held two sessions, both at the Neue Hofburg in Vienna, the first session from 26 March to 24 May 1968 and the second session from 9 April to 22 May 1969 http://www.un.org/law/ilc/texts/treaties.htrn (at 2 August 2003).

118 Stapleton, supra note 111, 562. 119 Tadit, supra note 12, [27].


The Court thus found that although the jurisprudence of other judicial bodies is relevant to the meaning of "fair trial", the proper balance to be struck in each case depends on the context of the legal system in which the concepts are being applied.120 And since the 'context' of the ICTY was a mandate to protect victims, they were justified in reaching a different interpretation. However, as a matter of textual analysis, this was, and remains, a dubious claim. Given that other forms of victim protection were specified in the statute, it would be odd if the drafters omitted to mention the strongest form of protection - anonymity - had it really been contemplated. 121 Moreover, as a rule of statutory interpretation, the intention to remove or minimise a fundamental human right must be done explicitly, not impliedly.

A further argument put forward was that instruments such as the ECHR are supposed to apply in "ordinary criminal" adjudications: since the Tribunal was adjudicating matters "so horrific as to warrant universal jurisdiction", they were justified in applying less stringent rules, such as had been applied in countries conducting their own war crimes trials, where more lenient rules of evidence were allowed. 122 Although defence counsel in those trials had objected to the admission of affidavits and hearsay evidence, it was noted that "there can be no doubt as to their admissibility under the laws governing at least most of the countries which have conducted trials of offences under international criminal law". 123 Here the majority in Tadic has overlooked the argument that a court such as the ICTY, created to vindicate human rights, must be more, not less, concerned with the rights of the accused, and should not be taking lessons from war crimes trials that have been criticised precisely because their guarantees of procedural fairness were weaker than the minimum required by international law. As noted by Simpson, "[i]t is clear that in an area of law so thoroughly politicised, culturally freighted and passionately punitive as war crimes, there is a need for even greater protections for the accused". 124

Since the Court had decided that human rights conventions guaranteeing the right to a fair trial were not binding, it went on to apply a "balancing approach". The reason why disclosure of witness identity is so important was acknowledged: without it, the Defence may be denied the opportunity to gather information that may demonstrate that the witness is "prejudiced, hostile, or unreliable" .125

However, the judges decided that the "interest" (no longer "right") of the accused in gathering this information should be weighed against the witnesses' interest in anonymity. 126 Furthermore, they held that the balancing of these interests is inherent in the notion of a "fair trial", which meant not only fair treatment of the

120 Ibid [30]. 121 McDonald, supra note 106, 263. 122 Tadic, supra note 12, [28]. 123 Law Reports of Trials of War Criminals, vol. XV, 198 (1949), quoted in ibid. Emphasis added. 124 Simpson, supra note 8, 15. 125 Tadic, supra note 12, [54]. 126 Ibid [55].

The ICC· A Forum for Show Trials? 1317

defendant but also of the prosecution and its witnesses. 127 This is a curious position. Rights jurisprudence generally holds that a right cannot be balanced except as against a competing right. This certainly does not mean that a right can be sacrificed in favour of a mere 'interest'.

The general mle that the defendant must know the identity of witnesses may be departed from only in exceptional circumstances: 128 for the majority, such circumstances existed when there was an armed conflict in the area (the "natiomtl emergency" exception alJowed in the ICCPR). 129 However, aside from the fac: that the "national emergency" exception is for national courts, 130 not international tribunals, this seems to be ±1awecil reasoning in the context of the ICTY, which was created precisely because there was an armed conflic1 out of which atrocities had arisen. Moreover, this reasoning sets a dangerous precedent, as the same "emergency" of armed conflict will likely be present in many cases before the ICC

The majority concluded by stating that in such exceptional circumstances, an exception could be made to the "general rule" where (i) there was real fear on the part of the witness; 131 (ii) the testimony to be given was impmtant to the Prosecutor's case; 132 (iii) there was no prima facie evidence that the witness was lying; 133 and (iv) there was no available witness protection progrmmne. 134

Thus the balancing approach concluded that the accused was entitled to "something less than a fair trial" because of the necessity of protecting victims and witnesses. 135

(c) The Dissenting Judgment136

Judge Stephen strongly disagreed with the position of the majority. He reached the opposite conclusion by an examination of the ICTY statute, as well as consideration of the relevant human rights instrnments,

Judge Stephen took into account the Secretar;-General's report on the establishment of the JCTY (mentioned above), which took it as "axiomatic" that the ICTY \il/ould fully respect internationally recognized st::mdards regarding the rights of the accused, 137 He noted the significant difference between "full respect"

127 !bid, 123 Ibid [60], 129 Ibid [61], 130 See Stapleton, supra note 111, for a discussion of the national emergency exception. 13 l Tadic, supra note 12, [62], 132 Ibid [63], Surely. however, the opposite ought to be tme? If the testimony is desperately needed for a

conviction, the defendant should have an even greater interest in ensuring tbe veracity of that testimony. 133 !bid [64]. 134 Ibid [65], !35 Stapleton, supra note 111, 567. 136 Prosecutor v Tadit, No, IT-94-I-T (10 Aug 1995) (Separate Opinion of Judge Stephen on the Prosecutor's

IV.l:otion Requesting Protective Measures for Victims and "VVitnesses). !!JJ:p://www.un,or~/ictv/tadic/trialc2/clecision-e/508l0pmn.htm (at 2 October 2002) ["Tadic disse,1i"].

137 !bid,


for the rights of the accused and "due regard" for the protection of victims and witnesses, as outlined in the language of Article 20(1) of the ICTY statute. Furthermore, he contrasted the "detailed and emphatic enumeration of distinct rights of the accused in Article 21" with the rule-making direction in Article 22, "which does no more than direct that provision be made in the Rules for witness protection". 138

Article 21(2)'s provision for a "fair and public hearing" is the only provision subject to Article 22, which provides for the protection of victims and witnesses. Article 21(4), which enumerates in detail the rights of the accused - including the right to examine witnesses - contains no such provision. 139 Judge Stephen commented: 140

What it is in Article 21(2) that is to be subject to Article 22 can scarcely be the combined concept which precedes that phrase, the concept of a "fair and public hearing". It must rather be only one component of that concept, the public quality of the hearing and not its fairness, that is made subject to Article 22, and this for two reasons: first, because while Article 22 specifically contemplates non-public hearings, it certainly does not contemplate unfair hearings; secondly, because Article 20(1) itself, unqualifiedly and quite separately from Article 21, requires a Trial Chamber to ensure that a trial is "fair".

Some of the recent case law on the issue was outlined, including the decision of the ECHR in Kostovski, 141 in which the Court had found that the "use of anonymous statements as sufficient evidence to found a conviction ... involved limitations on the rights of the defence which were irreconcilable with the guarantees contained in Article 6". 142 Judge Stephen noted further that the wording of Article 6 was almost identical to Article 21(4) of the ICTY Statute. 143

The dissenting opinion of Judge Stephen is compelling, and fits far more comfortably with the conception of a tribunal the supposed aim of which is to punish grave breaches of human rights by appealing to humanitarian norms and the rule of law. "An established procedural right of the accused is to examine witnesses. In order for this guarantee to mean anything, it must guarantee effective examination of witnesses." 144 The decision to allow anonymous witnesses is problematic because it violates international standards and sends a message to the international community that human rights and humanitarian norms are not inviolable. 145

138 Ibid. 139 Ibid. 140 Ibid. 141 Kostovski Case, 166 Eur Ct HR (ser A) 4 (1989). 142 Ibid 21. 143 Tadif: dissent, supra note 135. 144 Stapleton, supra note lll, 568. 145 Furthermore, it has also been argued that limiting the right of an accused to confront his or her accuser reverses

the presumption of innocence, another fundamental right guaranteed by the ICCPR. See Stapleton, supra note lll.


Sadly, the repercussions of the majority judgment in Tadit may be wide. The majority denied that internationally recognized standards of human rights were binding on the ICTY. "Arguing that a tribunal set up by the United Nations to prosecute grave violations of humanitarian law can do so by violating internationally recognized standards of human rights is illogical."146 It overwhelmingly weakens the idea of human rights that such a body seeks to protect. Disallowing anonymous witnesses may result in the loss of potentially damning testimony. Yet allowing anonymous witnesses, especially in an environment as politically charged as an international criminal tribunal, may lead to the conviction of an innocent person. 147

This case is illustrative of the potential dangers that arise when other purposes, however noble, are allowed to intrude on the domain of criminal justice. As it happened, the danger was in fact borne out in Tadit. "Witness L" (whose identity was withheld from the public) provided detailed descriptions of mass murder and public rape, directly implicating Tadit. "Witness L" turned out to be a lying. 148 According to the witness, the story was made up "at the insistence of the Bosnian government" .149

2. Victims' Interests and Show Trials in the ICC?

In July 2002, more than one hundred years since the idea of a permanent court to try international crimes was first proposed, the International Criminal Court finally became a reality. Despite the unfortunate lack of support from the United States, 150 the Court is regarded by many as a bastion of hope for the continued development of human rights protections.

Yet, as the discussion above illustrates, the history of post-1945 war crimes trials is far from encouraging. Tensions between a trial's juridical purpose and its perceived didactic or therapeutic functions were palpably demonstrated in the examination of Tadit above. Here it was shown that the interests of victims were allowed to compromise the right of the accused to a fair trial. This section begins with a general examination of the position of victims in the Statute of the ICC, and then considers whether the Tadic decision would ( or should) occur in the ICC. The discussion then turns to Article 65(4) of the Statute, 151 and considers whether the ICC will be a forum for show trials.

Unlike the ICTY, the question of the position of victims in the ICC was considered from the outset. 152 The Preamble to the Statute notes that the

146 Ibid 573. 147 Ibid 569-570. 148 Ibid 569. 149 Ibid. 150 The United States, arguably the world's greatest military power, has not only refused to sign the Rome Statute,

it has attempted to contract with other states to ensure that any United States citizens who commit crimes that fall under the Court's jurisdiction will not be brought before the Court. Fortunately, most states have resisted the pressure to enter into such contracts.

151 This has received remarkably little attention in the literature. 152 McDonald, supra note 106, 271.


international community is "mindful that during this century millions of children, women and men have been the victims of unimaginable atrocities that deeply shock the conscience of humanity". 153 Although the draft statute did not envisage victims in a significamly different position than in the JCTY Statute, 154 the efforts of non-governmental organizations representing victims' interests at the negotiations in Rome led to a strengthened position for victims in the ICC Statute.

Thus, the ICC Statute. whHe obviously having the prosecution and punishment of peqJetrators as its major focus, also pays special attention to the rights and interests of victims. 155 The criminal law and procedure of previous tribunals ·were heavily influenced by the common law adversmial process. 156 In common !avv system~ the victim is regarded as a witness so as to serve the criminal justice system. This can be contrasted with civil 1m111 jurisdictions ·where the victim stands in his own right in criminal proceedings. The ICC Statute makes room for the victi_m in both capacities and in that sense the Statute is innovative: it is not the product of one predominant legal system and culture, but rnther the result of a healthy cross-fertilisation of several legal systems and cultures. 157

Under the Statute of the ICC and its Rules of Procedure and Evidence .. victims have the right tc participate in every stage of the proceedings, from the time the Prosecutor has requested authorisation to proceed with an investigation to the Pre-Trial Chamber, right through to ihe sentencing hearing. 158 Article 68(3) is of particular significance, 0where it is stated that: "[w ]here the personal interests of the victirns are airected, the Court shall permit their views and concerns to be pr,esented and considered". 159 Bachrach states thar the Statute "consistently underscores the fact that one of the ICC's primar; purposes is to protect and vindicate the '1ictims of the world's most heinous crimes". 160

( a) Relevant Provisions of the ICC Statute

Article 64(2) of rhe Statme instructs the Trial Chm]1ber to ensure that the trial its "conducted with/ul/ respect for ithe rights of the accused and due regard for the piotection of victims and 1Nitnesses". 161

Artide 66 states the presumption of innocence of the accused, and places the onus on the Prosecutor to prove guilt beyond reasonable doubt.

Article 67 articulates the right of the accused to "a public hearing, having regard to the provisions of this Statute", to "a fair hearing conducted impartially",

153 Rome Statute, supra note 4, Preamble. 154 van Boven, supra note 102, 82. 155 Ibid 77. 156 Ibid 88. 157 Ibid. 158 McDonald. supra note 106, 272. 159 Rome Statute, supra note 4, Artide 68(3). Emphasis added. 160 Bachrach, The Protection and Rights of i/ktims under International Ciminal Law, 34 The International

Lawyer (2000), 7, quoted in McDonald, supra note 106, 271. 161 Rome Statute, supra note 4, Article 64(2). Emphasis added.


and "to examine, or have examined, the witnesses against him or her ... ". 162 It is important to note that the fair hearing and minimum guarantees are not subject to other provisions in the Statute. While it has been observed by Schabas that the right to examine witnesses does not necessarily amount to a full right of crossexamination as in common law systems, this apparent limit is consistent with the right to a fair trial in continental legal systems. 163

Article 68 provides for the protection of victims and witnesses and their participation in the proceedings. Paragraph (1) includes the instruction that the Court shall take "appropriate measures" to protect victims and witnesses, but notes that these measures "shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial". 164 Paragraph (2) allows for the exception (mentioned above) to the principle of public hearings provided for in Article 67. 165

Interestingly, Article 68, Paragraph (5), states: 166

Where the disclosure of evidence or information... may lead to the grave endangerment of the security of a witness or his or her family, the Prosecutor may, for the purposes of any proceedings conducted prior to the commencement of the trial, withhold such evidence or information and instead submit a summary thereof'.

Rule 81, relating to restrictions on disclosure, includes in Paragraph 4, the provision that the Chamber "shall ... take the necessary steps ... in accordance with article 68, to protect the safety of witnesses and victims and members of their families, including by authorizing the non-disclosure of their identity prior to the commencement of the trial". 167

However, it should be noted that both the provision in Article 68(5) and Rule 81(4) require that "[s]uch measures shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial". 168 Moreover, this provision applies only prior to the commencement of the trial, and does not extend to during the trial itself.

(b) Tadic Repeated?

Although decisions of the ICTY are not binding on the ICC, they will have persuasive authority, particularly because the statutes governing the ICTY and ICC are similar. Furthermore, the provisions for the rights of the accused in both documents are based on those found in the ICCPR and ECHR. Thus

162 Ibid Article 67. Emphasis added. 163 Schabas, An Introduction to the International Criminal Court (2001) 126. 164 Rome Statute, supra note 4, Article 68(1). 165 Ibid Article 68(2). 166 Ibid Article 68(5). Emphasis added. 167 Rule 81, Rules of Procedure and Evidence http://www.icc-cpi int/docs/basicdocs/rules(e).html (at 2 August

2003). 168 Ibid Article 68(5).


interpretations of those treaty provisions will also be persuasive. 169 While it is true that these human rights instruments are not binding on non-parties (such as the ICTY and ICC), it is inconceivable that their provisions should not be respected by an international court set up to protect human rights. 170

The decision of the majority in Tadit was reached, at least in part, because of the perceived ambiguity of the ICTY Statute. Although Stephen J's reasoning is more compelling, it is at least conceivable that the combined concept of a "fair and public hearing" in Article 21(2) was to be subject to Article 22, which required that provision be made for the protection of victims and witnesses, notwithstanding other provisions that unqualifiedly guaranteed the right to a fair trial. 111

By contrast, the ICC Statute is much more explicit, in that it is clearly only the right to a public hearing that is subject to other provisions in the Statute (not specifically subject to protecting the victims and witnesses). Article 67 articulates the right to a fair and impartial trial independently of any such qualification. Moreover, there are repeated references throughout the Statute to the point that measures taken in the interests of victims and witnesses must not be "prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial".

It is doubtful, given these considerations, that the decision reached by the majority in Tadit would qe repeated in the ICC. Hence, in spite of the overall similarity of the two Statutes in this respect, the ICC Statute is much more successful. While victims are in an enhanced position under the ICC Statute, the rights of the accused and provisions for a fair trial are also more clearly defined.

(c) The Problem with Article 65(4)

Article 65(4) provides that, where an admission of guilt has been made, and

4. Where the Trial Chamber is of the opinion that a more complete presentation of the facts of the case is required in the interests of justice, in particular the interests of the victims, the Trial Chamber may:

(b) Order that the trial be continued under the ordinary trial procedures provided by this Statute, in which case it shall consider the admission of guilt as not having been made and may remit the case to another Trial Chamber. 172

Schabas173 has offered the opinion that this provision is "aimed at situations where a 'deal' is struck between Prosecutor and defence and where sentencing

169 Stapleton, supra note Ill, 570-571. 170 Schabas, "Sentencing by International Tribunals: A Human Rights Approach" (1997) 7 Duke J Comp & Int'!

L 461, 467, quoted in ibid, 573. 171 For example, Article 21(4), supra note 104, which sets out the unqualified minimum guarantees of the right to

a fair trial, including the right to examine witnesses. 172 Rome Statute, supra note 4, Article 65(4). Emphasis added. 173 Schabas seems to be the only author to mention this provision at all - even here, the topic occupies only about

three sentences.


may not fully take into account the rights and interests of victims". 174 He also states that differing philosophical approaches between common law and civil law jurisdictions led to some difficulties in laying down the rules regarding guilty pleas, especially because, unlike the common law world, under civil law systems "confession of guilt is viewed with deep suspicion and courts are expected to rule on guilt and innocence based on the evidence, iTI"espective of such a plea". 175

This may indeed account for the provision in Article 65(4)(a), which gives the court the power to require additional evidence to be adduced. However, the provision in Article 65 ( 4 )(b) goes much further than requiring additional evidence in order to determine guilt, and Schabas' description of civil law discomfort with guilty pleas does not adequately account for the provision. Moreover, the provision directly raises many of the concerns outlined in Section I.

Just what might "the interests of the victims" be? A chance to "tell their story"? An opportunity for the accused and her crimes to be put on public display so that future generations wiH not forget? A variety of therapeutic and didactic functions are possibly implicit in this phrase.

Suffice to say, one cannot predict the impact that this provision might have on the Court The words "in the interests of justice" that preface "the interests of the victims" creates some ambiguity, for the interests of justice and the interests of victims will often conflict. 176 At any rate, if the ICC is to gain credibility as an effective vindicator of human rights, it cannot afford to expose itself to the criticisms that have plagued previous vvar crimes trials. One of the major problems encountered by the ICTY is the relifil]_ce placed on state cooperation in order to achieve its objective of prosecuting individuals for violations of international humanitarian law. Like the ICTY, the ICC also has no police force of its own and must rely on state cooperation if it is to arrest indicted individuals. 177 It is vital then that the ICC does not deviate from standards of ultimvJe justice and fairness; w do so would surely deter states from cooperating.

174 Supra note 163, 149. I 75 Ibid 124. I 76 Refer to Section H Part 3 for a discussion of victim interests and justice. 177 Cassesse, "On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International

Humanitarian Law" http://www.eiilill:giiournal/Vol9/Nol/art1-06.html (at 18 August 2003).


IV. Conclusion

The ICC has the potential to advance the cause of human rights by ensuring that those who commit grave breaches are prosecuted if national courts are unable to do so.178 If the ICC is to take its place as the ultimate arbiter of human rights, it must fervently guard against the possibility that it might itself violate these human rights, by ensuring that it does not compromise its obligation to do justice, even for the "noblest of ulterior purposes". 179

A show trial is anathema to the concept of the rule of law. In spite of the views of those who argue that a pedagogic spectacle is a justified function of a war crimes trial, the view presented in this article is that while such functions will likely always be by-products of a criminal trial, they cannot be its primary purpose. If the aim is something other than justice, justice is unlikely to result.

If one accepts that the purpose of the ICC is the effective prosecution of individuals responsible for the gravest breaches of international humanitarian law, then the biggest threats by far to the effectiveness of the ICC are political. It is possible that the permanent status and established jurisdiction of the ICC may have some effect on the allegations of partiality and selectivity that have plagued previous war crimes trials. 180· However, it would be naive to imagine that political considerations will not affect, to some degree, the Court's ability to prosecute persons who have committed crimes within its jurisdiction. The ability of the Security Council to indefinitely postpone an investigation181 is but one illustration of the potential reach of politics. 182 Lack of state cooperation, even in defiance of the ICC, is another potential problem that must be contemplated.

The German lawyer, Niemeyer, remarked in the 1930s that international law is an edifice built on a volcano - state sovereignty. 183 Cassesse elaborates further that: 184

[W]henever state sovereignty explodes onto the international scene, it may demolish the very bricks and mortar from which the Law of Nations is built. It is for this reason that international law aims to build devices to withstand the seismic activity of states: to prevent or diminish their pernicious effect. This metaphor is particularly apt in relation to an international tribunal. The tribunal must always contend with the violent eruptions of state sovereignty: the effect of states' lack of cooperation is like lava burning away the foundations of the institution.

178 Rome Statute, supra note 4, Article 17(1)(a) reads" ... unless the State is unwilling or unable genuinely to carry out the investigation or prosecution".

179 Arendt, supra note 11, 253. 180 In addition, the fact that, for the most part, judges may not be re-elected may go some way to minimising

political influence on decision-making. Rome Statute, supra note 4, Article 36(9)(a), 181 Rome Statute, supra note 4, Article 16. 182 This, however, is far less threatening than the position sought by the United States, whereby it would not

have been possible for the ICC to prosecute without the consent of the Security Council. A provision such as this would have effectively rendered the Court impotent, as veto powers could be exercised to prevent prosecution of friends or allies of any of the permanent five.

183 Niemeyer, Einstweilige Veif__gungen des Weltgerichtshofs, ihr Wesen ind ihre Grenzen (1932), 3, cited in Cassesse, supra note 176, http://ejil.org/journa1Nol9/Nol/artl-07.html (at 18 August 2003).

184 Ibid.


The Statute of the ICC, while by no means perfect, has the potential to "withstand the seismic activity" of states seeking to interfere with its task. Whether it is able to do so may be dependent on the determination of the Court to interpret its Statute strictly, and above all is dependent on the willingness of the Court's members to manifestly display a commitment to human rights.

In the sphere of international law, it is important to maintain a sense of realism that is not cynical, and an idealism that is not naive. There will always be limits posed by international politics on international law. Simpson notes that "[t]oo often, each new development has been hailed as the harbinger of justice and global harmony."185 In the absence of human perfection, crimes against humanity will not cease, no matter how effective the ICC proves to be. Yet it is a beginning. As Cesare Beccaria stated as long ago as 1764, "the conviction of finding nowhere a span of earth where real crimes were pardoned might be the most efficacious way of preventing their occurrence". 186

Coda

As of 14 July 2003, 91 countries have ratified the Rome Statute of the International Criminal Court,187 including New Zealand (which on 7 September 2000 became the seventeenth state party to ratify the Statute). 188 Between 3 and 7 February 2003, the Resumed Session of the First Assembly of States Parties elected the first eighteen judges to serve on the ICC. 189 The judges are broadly representative of the ICC's member states, hailing from: Trinidad & Tobago; France; Cyprus; Costa Rica; Samoa; Republic of Korea; Ireland; Mali; United Kingdom; Brazil; South Africa; Germany; Italy; Ghana; Canada; Bolivia; Finland, and Latvia. 190 To date there are no cases before _the ICC.

185 Simpson, snpra note 8, 29 186 Beccaria, "Dei delitti e delle pene", translated in Farrar, Crimes & Punishment (1880) 193-4, quoted in

Cassesse, supra note 177, http://ejiLorg/journalNol9/Nol/artl-08.htrnl (at 18 August 2003). I 87 International Criminal Court, States Parties hU;p://www.icc-cpi.int/php/statesparties/allregions.php ( at 20 July

2003). 188 International Criminal Court, New Zealand http://www.icc-cpi.int/php/statesparties/country.php?id=49 (at 20

July 2003). 189 International Criminal Court, Chronalogy of the International Criminal Court

http://www.icc-cpi.int/php/whatistheicc/chronology.php (at 20 July 2003). 190 International Criminal Court, Judges Biographical Notes http://www.icc-cpi.iut/chambers/judges.php (at 20

July 2003).

1326

Tb.e Eradication of Kiore and the Fulfilment of Kaitfalkitanga Obligations

David Kapa

I. Introductfon

In 2003, the Department of Conservation ("DoC") applied to the Auckland Regional Council ("ARC") for a resource consent under the Resource Management Act 1991 ("RMA") to eradicate the kiore (Rattus exulans) from Hauturu Island (Little Barrier Island) in the Hauraki Gulf.' On 2 May 2003 the consent was grnnted subject to a number of provisos.2 However, recent views expressed in a number of prominent nevvspapers, including those of local tangata whenua Ngatiwai, are skeptical of DoC's proposal.' Ngatiwai, while acknowledging the vital role DoC plays on the island in terms of management and conservation and do not seek DoC's removal, objected principaJly on the grounds that they were inadequately consulted, poorly resourced and not put in a position to fulfil their kaitiakitanga obligations to their taonga, the kiore.

This paper serves to provide a background to the situation on Hauturu and ,Nill outline the parties involved and examine the significance of the kiore to the parties. The paper will look at Doe's existing mandate under the Conservation Act 1977 and will serve to critically discuss some of the key RJvIA sections pertaining to Maori and the eradication of the kiore. Along the way it will look to recent developments in case lm;v pertaining to the principles of the Treaty of TWaitangi and will evaluate the concerns expressed by tangata whenua in relation to the RMA. Finally, the paper will canvas the solutions proposed by the Auckland Regional Council in the conditions to it granting the resource consent to DoC.

25 February 2003, File ref: ARC 16411; ACC GN/02/04914. 2 Auckland Regional Council Resource Consent, Permit Nos 27142 and 27148. 3 "A Rat ruling unpopular", The New Zealand Herald, Aucldand, New Zealand, 9 May 2003, "Latest twist in

rat saga right up kiore's alley", The 1Vew Zealand Herald, Auckland, New Zealand, 6 Nfay 2003, "\,Vanted: somebody ready to take the rat bait Rat eradication plan a 'risk for native species"', The J-,Jew Zeoland Herald, Auckland, New Zealand, 14 March 2003, "Taonga or not, when it cmnes to rats, just kiH them all" The New Zealand Herald, Auckland, New Zealand, 6 September 2002.

The Eradication of Kiore and the Fulfilment of Kaitiakitanga Obligations 1327

II. Background to the Saga

1. The Relationship of the Kiore and Hauturu

Kiore is the Maori name for a species of rat that has spread through the Pacific in association with human migration. Prior to European arrival in New Zealand, kiore were present throughout the North and South Islands and on about 50 offshore islands. They were introduced to New Zealand by Maori settlers in about the Tenth Century AD. Due to predation by cats and mustelids, as well as competition from other rodents such as the much larger Norway rat and ship rats, kiore populations were largely decimated on the mainland over the 1800s. At present kiore are restricted to Fiordland, Stewart Island and some offshore islands including the island at issue, Hauturu.

Hauturu was settled by Maori approximately 800 years ago and is the urupa ( 'burial ground') of many ancestors of the N gatiwai hapu. Historically, the island was "forcibly taken from its Maori inhabitants"4 and became a bird sanctuary in 1894. The bush and land at Hauturu was initially burned by settlers and grazed by domestic livestock, but today Hauturu is once again densely forested. The island is host to a diverse range of rare and endangered species of native flora and fauna. At present it is exclusively owned and managed by the Department of Conservation (DoC) and no one may visit or moor off the island without DoC's express permission.

DoC administers approximately 230 of the estimated 600 islands around New Zealand. Of the 230 DoC administered islands, 15 have kiore and there are an additional 9 islands with kiore where the Department manages parts of the island or has an interest through legal protection mechanisms. DoC markets Hauturu as "the only large forested area left in the country relatively undisturbed by browsing mammals."5 In contrast, the kiore is described by DoC as being the only remaining animal pest having significant negative impacts on the habitat values and quality of Hauturu's forest communities.

2. The Key Parties to the Debate

Clearly, the central party to the issue is DoC. Due to a number of statutory obligations, such as the principles of the Treaty of Waitangi, 6 DoC has a positive duty to consult with the tangata whenua iwi and hapu of Hauturu. The extent to

4

5

6

Donohue, "A Test of Animal Conservation and Conflicting Legal Demands: Kiore on Little Barrier Island" (2002) Animal Rights Legal Advocacy Network Newsletter 3. Department of Conservation, "Little Barrier Island (Hauturu) Nature Reserve": http://www.doc.govt.nz/Explore/00l~Other-Places/002~Auckland/Little-Barrier-Island-/Hauturu)-NatureReserve.asp http://doc.govt.nz (last modified 28 April 2003). Resource Management Act 1991, s 8 and Conservation Act 1987, s 4.


which the duty of consultation was met under Part II of the RMA is an issue present in a number of contemporary Maori claims and will be discussed later in the paper.7

The relevant iwi in relation to the rohe (region) of Hauturu is 'Te Iwi 0 Ngatiwai' ('Ngatiwai'). Ngatiwai claimed to exercise mana whenua and mana moana over the rohe from Tapeka Point in the Bay of Islands south, covering the eastern seaboard and all offshore islands to Tokatu Point (South Omaha) and including Aotea (Great Barrier Island) in the Hauraki Gulf. In claiming 'mana whenua' over Hauturu, Ngatiwai effectively fell within the s 2 definition of tangata whenua for the purposes of the RMA, namely, "tangata whenua", in relation to a particular area, means the iwi, or hapu, that holds mana whenua over that area. Accordingly, Ngatiwai were entitled to be consulted by DoC in relation to the kiore on Hauturu.

Ngatiwai encompasses a number of sub-tribes or hapu. In the current situation, Ngatiwai may be seen as a dichotomy made up of the Ngatiwai Trust Board ("NTB") and the Ngatiwai hapu. The NTB is the representative body of the majority of marae throughout Ngatiwai. In addition to the NTB, the specific Ngatiwai hapu that were consulted by DoC were Ngati Rehua and Ngati Manuhiri (also known as MOKO) who were largely in favour of kiore relocation away from Hauturu in the interests of the protection of other endangered species.

It should be noted that although Ngati Rehua are a hapu of Ngatiwai, the NTB was not mandated to represent Ngati Rehua's opinion in relation to the kiore. In the case of Winter & Ors v. Taranaki District Council8 there were competing claims for mana whenua and kaitiakitanga over the land in question. The Crown claimed that the interests of the smaller hapu (Ngati Rahiri) could be adequately represented by the other hapu already involved in the proceedings. In response to this argument the Court found nothing in the Act which directs that one hapu should have to accept representation by another. In relation to disputes between hapu as to mana whenua the courts have held that: 9

It is not for the Regional Council to decide which of the competing tribes is entitled to mana whenua over the area of foreshore ... the appropriate forum for resolving claims of that kind is the Maori Land Court.

Applied to the situation on Hauturu, DoC were correct m allowing consultation with Ngati Rehua separate to the NTB.

7 See Part V, 3, (i) infra. 8 Al06/98. 9 See Tawa and Ngatai v. Bay of Plenty Regional Council (1995) AlS/95 which was noted with approval in

Banks v. Waikato Regional Council (1995) A31/95.


3. Which Tangata Whenua to Consult?

In the course of fulfilling its Conservation Act mandate, DoC saw a potential issue in terms of which sub-group of Ngatiwai it was ultimately under an obligation to deal with under the RMA. This was primarily because the RMA uses different terms for who is to be consulted in given situations. Clause 3 of the First Schedule mentions that 'tangata whenua', 'iwi authorities' and 'tribal runanga' are to be consulted in respect of policy statements and plans. By contrast, s 2 defines 'tangata whenua' and 'iwi authority' but not 'tribal runanga'. Therefore, as was the opinion of the Ministry for the Environment, "the question of 'who to consult' is not an easy one to answer and will depend on the circumstances of a particular situation". 10

An issue that arose in this particular situation was the question whether the NTB constituted an "iwi" for the purpose of consultation. As the NTB did not fit the traditional description of an 'iwi authority' or a 'runanga' within the spirit and intendment of the RMA, DoC questioned its duty to consult with them. Furthermore, as the NTB were not mandated to represent all of the hapu within the Ngatiwai region DoC questioned the resources it should apply in its negotiations with the NTB. From the ARC's perspectives 93 of the RMA states who a consent authority should notify when it is faced with a resource consent application. Under s 93(1) a consent authority must send notice of every resource consent application to a number of specified persons or bodies. Among those to be notified are:

(i) persons who in the opinion of the consent authorities ·are likely to be directly affected by the application, including adjacent owners and occupiers .. . ( section 93(1)(e)), and (ii) local authorities, iwi authorities and other persons or authorities as the consent authority considers appropriate (section 93(1)(a)).

In a similar case involving the NTB, Haddon v Auckland Regional Council,1' the NTB was personally notified and subsequently notified Mr Haddon, a member of a hapu of Ngatiwai. Mr. Haddon claimed that as tangata whenua he "was entitled to be personally notified given his known commitment to the area."12 The Planning Tribunal stated that an onus existed upon the council not only to notify iwi but also the hapu as they fell within the category of 'appropriate land-owners adjacent to the resource' .13 It stated that a council must exercise its opinion under s 93(1)(e) by 'carefully assessing after reasonable enquiry what persons are likely to be directly affected by the application'. In relation to the current situation, if the tangata whenua parties that DoC is required to consult are

10 Ministry for the Environment, Case/aw on Tangata Whenua consultation, RMA Working Paper (June 1999). 11 [1994] NZRMA49. 12 Ibid 54. 13 Ibid 62.


read in line with the s 93 duties imposed on consent authorities, the finding in Haddon can be seen as authority for two assertions:

(i) that the NTB is an 'iwi authority' for the purposes of the RMA, and (ii) that Ngatiwai hapu require consultation in addition to the NTB as they fall within the category of 'adjacent owners'.

4. Additional Parties

Other parties to the dispute consulted by DoC included various community, environmental protection, and user groups such as the Biological Science Departments of Auckland and Victoria Universities and Friends of the Earth. This consultation was primarily as to the extent of the flow-on effects the proposal would have on the environment and non-target species. As the crux of this paper is the inter-relation of Maori and the RMA, the analysis of these other groups will be supplementary to the main issue.

5. Doc's Policy on the Kiore and Iwi Consultation

DoC's policy on the kiore may be summarised as follows: 14

The Department's preference is for the total eradication of introduced rodents, including kiore, from islands administered by the Department, while acknowledging iwi and scientific interest in the kiore .... The Department perceives no real need to take active measures itself to protect kiore, and is able to facilitate other initiatives by interested parties, such a scientific research or transfer of kiore to modified islands.

In short the policy strategy was simple: get the k:iore off Hauturu by eradication or relocation. This policy was criticised by tangata whenua as it was perceived as too rigid and unaccommodating and failed to take into account proposed alternatives. Ngati Rehua submitted that while DoC's consultation duty does not necessitate mutual agreement on every issue, there is a requirement under the RMA to consider alternatives to eradication, such as controlled management of the kiore. It was submitted that if the controlled management initiative could achieve a sustainable balance of all Hauturu taonga, then it would be preferred from a cultural perspective because it would allow Ngatiwai to practice kaitiakitanga over all taonga on Hauturu.

In addition to the Ngati Rehua suggestion, the resource management division of the NTB suggested the alternative of "customary harvesting and sustained management" of the kiore using traditional methods, 15 which would allow for the realisation of iwi kaitiakitanga and rangatiratanga obligations. Ngatiwai reasoned

14 Department of Conservation, Policy Statement An approach to Island Management where Kiore (Rattus exulans) Occur (1995) 1.

15 Ngatiwai Trust Board Resource Management Unit, Policy Statement on Kiore management (1995).


that ldore were not to be viewed as a hindrance to DoC's conservation strategies on Hauturu. The proposal did not involve relocation or eradication but merely supervised culling and Ngatiwai offered to provide a pool of untapped labour and skills to assist DoC in the initiative.

Alternatives aside, of particular interest in DoC's policy statement is the reluctance to concede that it is under a positive duty to consult with tangata whenua in this situation. DoC has attempted to water down its obligation to consult to a mere duty to acknowledge iwi. Intriguingly, Doe's appreciation of its duty to acknowledge tangata whenua is on the same level as its duty to acknowledge "scientific interests". Obviously, being given the same acknowledgement as simply another interest group was extremely insulting to Ngatiwai who viewed themselves as kaitiaki/guardians of the kiore and the island. Chanwai argues16 that this auto-biographical interpretation of its duty to iwi falls far short of the statutory duties imposed under Part II of the RMA and the Treaty of Waitangi, as was shown in the AR C's Resource Consent conditions. As WiUiams puts the problem: 17

There are differences in the administration of conservation areas ... yet through-out the conservation estate the Crown retains the entire right to control and manage all areas, consulting various parties as it sees fit and exciuding Maori along with all members of the public as and when it sees fit.

To an extent, Williams's criticism holds true of the policy statement above. It appeared that DoC clearly imposed too lenient a sanction on itself in relation to iwi consultation. To alleviate the problem, DoC rele:1sed another policy document, '8 which defines how it perceives the duty to "acknowledge iwi". The document st3Jes that iwi acknowledgement will be achieved by:

L Liaising with tangata whenua community groups and other interested parties at appropriate local levels.

2. Consulting with iwi Maori through regional networks including the Department's Kaupapa Atawhai network and Conservation Boards.

3. Maintaining effective dialogue throughout planning, research, implementation and evaluation phases of eradication projects, and subsequently as ecological restoration programmes proceed.

4. Welcome initiatives from iwi, community groups and other interested parties to Ccffe for natural values of islands.

5. Promoting the active involvement of tangata whenua in lciore research and eradication.

16 Chanwai and Richardson, "Re-working Indigenous Customary Rights? The Case of introduced Species" (1998) 2 NZJEL 158.

17 Williams, Matauranga lvfaori and Taonga: The Nature and Extent of Treaty Rights held by Iwi and Hapu in Indigenous Flora and Fauna, Cultural Valued Objects, Valued Traditional Objects ( 1997) (Report prepared for the WAI 262 Claim) 70.

18 Depmtment of Conservation, Policy Statement Background information to the Eradication of l(iore (Rattus Exulans)from Hauturu (Little Barrier Island), (1998) 12.


As will be shown, the above strategies are intrinsically mirrored in the conditions the ARC stipulated in granting resource consent to DoC. The fact that the strategies are still being required of it reflects the fact that DoC may have failed to adequately meet the above objectives in relation to iwi. This problem may have resulted from an underestimation of the cultural and spiritual significances of the kiore to tangata whenua. The following section serves to outline the significance of the kiore to tangata whenua and will attempt to define the holistic Maori conservation ethos and its significance on Hauturu.

III. Significance of the Kiore

The Kiore was probably the first introduced predator in New Zealand. Originating from South-East Asia it has sparked debate as to the origins of Polynesian migration throughout the Pacific and to New Zealand. Kiore is of particular interest as it is an exotic species that was introduced by Maori themselves, as opposed to a species imported from Europe. In this way, it has been said that the kiore situation is analogous to the Australian dingo introduced by the Aboriginal people. 19

In terms of the significance of the kiore to tangata whenua, the kiore are considered a 'taonga tuku iho' passed down through generations to the present day. Whilst DoC acknowledged that the kiore were a taonga to Ngatiwai, it appears evident that the Department grossly underestimated the significance Ngatiwai placed in the taonga. In the view of one of the Ngatiwai claimant hapu (Ngati Manuhiri):20

They [kiore] are old and respected shipmates, who have occupied this island for as long as we have. We have co-habited with them throughout our voyaging in the Pacific and in our entire residency in Aotearoa. They have continued to sustain our tupuna. Expunging them now from our historical record could only be considered with the greatest reluctance. We consider we have a responsibility toward their survival and well-being as part of our ancestral kaitiaki responsibilities.

In the opinion of Ngatiwai hapu, the kiore are of significance as they sustained their ancestors throughout the migration to New Zealand. In this regard Ngatiwai claimed to owe a duty of reciprocity to the kiore. From the hearing evidence it is noted that in addition to this onus of reciprocity to the kiore, Ngatiwai perceived a special duty was owed to the kiore as it was considered to be a taonga tuku iho. This special duty on Ngatiwai derives from the status Ngatiwai holds a1> kaitiaki of Hauturu. In turn the duty of kaitiakitanga stems from the Maori world view on the environment. This will now be discussed.

19 Supra uote 17 at 158. 20 From a facsimile from the Ngatiwai Trust Board to the Auckland Conservator of DoC, dated 19 February 2002.


1. Inter-cultural 'world-views'21 on the Kiore

Firth has described Maori as the ide.al conservationalists due to their close association with the environment.22 According to Walker, the Maori resource management ethic is premised by the notion that Man is genealogically linked to the Earth by whakapapa ties with the Mother Earth (Papatuanuku): "As the human mother nourishes her child in the womb and then upon her breast after the child's birth, so does Mother Earth."23 This epitomises the notion that Maoridom is interconnected with the environment as an intrinsic part of the natural order. Traditionally, land and resources were held in communal "ownership". Maori had but user rights to the resources of Papatuanuku in which there was a reciprocal duty of kaitiakitanga between the tangata whenua and the environment.24 With these "user rights" came duties and obligations of maintenance and preservation for future generations. To this extent, the Maori resource management ethos is inter-generational as evidenced by the term "taonga tuku iho" included in both the RMA and the Te Tore Whenua Maori Act 1993.

It has been shown that Maori subscribe to a holistic view of the environment in which man is the conscious mind of Mother Earth. The duty of kaitiakitanga therefore is crucial to enhance and sustain the life support systems of Papatuanuku. Marsden notes that when the kaitiaki principles are forsaken and Papatuanuku is perceived as a commodity and her natural resources are seen as disposable property to be exploited, then Maori would effectively become a "pillager, despoiler and rapist of his own mother."25

Ngatiwai's perspective in relation to the kiore is indicative of the Maori holistic view of resource management as is illustrated in the notions of reciprocity and kaitiakitanga that permeate its 'controlled management' alternative proposals. In addition, on a practical level, kiore were traditionally a staple part of the Ngatiwai diet. To some hapu, kiore held a special status as a luxury food provided only to child-rearing woman and for prestigious visitors as a vehicle to enhance the mana (prestige) of the host tangata whenua.26 Ngatiwai oral history tells of an island in the Whangarei Harbour called Motukiore and an area outside Kamo called Te Parekiore. Furthermore, land court records give many examples of traditional kiore-catching sites within the rohe, indicia of the paramount importance of the kiore. 21

21 As Marsden notes, "Cnltures pattern perceptions of reality into conceptualizations of what they perceive reality to be; of what is to be regarded as actual, probable, possible or impossible. These conceptualizations from what is termed the 'world view' of a culture." On this interpretation the world view referred to here is the central systemization of conceptions of reality to which members of its culture assent and from which stems their value system.

22 Firth, Primitive Economics and the New Zealand Maori (1929) 238. 23 Walker, Ka whawhai tonu matou - Struggle without end (1990) 11. 24 Supra note 22 at 19. 25 Ibid 20. 26 New Zealand Conservation Authority, Maori Customary Use of Native Birds, Plants and Other Traditional

Materials, Interim Report and Discussion Paper (1995) 93. 27 Ngatiwai Trust Board, Policy Statement in Kiore Management (January 1995) 12.


In terms of the "paramount importance" kiore held to Ngatiwai, it appears that the European perception of the kiore is the juxtaposition of the Ngatiwai view. The view that the kiore is a disease-ridden omnivorous scavenger requiring eradication may stem from historical lessons learnt in England in relation to the spread of the Bubonic plague. To a lesser extent, it is evident that this background may still pervade DoC's analysis of the Hauturu situation. This is reflected in the attitude that the kiore is a threat to indigenous species and therefore eradication is the only viable solution to the kiore problem.

Hence it appears that the Maori resource management ethos is of stark contrast to the traditional "Western" value structures of the New Zealand Government, whose historical background may be seen to be diametrically opposed to the Maori holistic world view. Maori academics have concluded that the anthropocentric ethos within western culture shows a disjunction between the material and the spiritual. Marsden attributes the cause of this disconnection to: 28

[A] capitalistic mode of production that expropriates and commodifies the land, its resources and people. All have a price in the market place. In a market driven economy, prime values are thrown out the window and values that revolve around economics rank uppermost. This value overrides spiritual and human considerations and the profit motive becomes the prime value.

Whilst this view would appear extreme, it is still poignant in acknowledging the Lockean background to Westminster system of law as applied to Maori in New Zealand under the RMA. A problem in the situation on Hauturu was how to reconcile these different world views and what statutory vehicles were available to enable such reconciliation.

2. Inter-Tribal Debate over Kiore

It is universally accepted throughout every faction of Ngatiwai that the kiore are a taonga tuku iho. However, throughout the course of DoC's negotiation and consultation with Ngatiwai, it became evident that there was no internal uniformity within the iwi as to what the specific goals for the kiore were. The NTB put this lack of overall cohesion down to a deficiency of fiscal resources that in tum "placed considerable stress on (NTB's) tribal structure to respond to external requests when (NTB) still lacked the capacity to discuss such matters internally."29 The NTB also noted that this lack of overall internal agreement was not a matter peculiar to Ngatiwai or Hauturu but was an issue endemic to all iwi trust boards operating in the resource management arena across the country.

The basic stance of the NTB was that the kiore were a taonga requiring DoC's protection. It was therefore opposed to DoC's proposal as it would result

28 Supra note 22 at 19. 29 Supra note 20.


in the abolition of its kaitiakitanga duties/rights. However, some members of the NTB adopted a different stance. Counsel for the Director General of Conservation relied on submissions made by NTB board member Terry Mita that the NTB neither supports nor opposes the applications but seeks further constructive dialogue.30 On Mita's view it would appear that the board agreed that the kiore should be eradicated, but sought to employ the kiore situation as leverage to develop a co-management situation with DoC on Hauturu. DoC also portrayed Mita's statement as evidence of the division within the NTB itself as to a preferred course of action in relation to the kiore. On both counts the DoC concluded that there was no extensive evidence that delaying proceedings for further dialogue would gain any mutually agreed position.31

Distinct to the NTB's view were the submissions ofNgati Manuhiri (MOKO) who were of the view that in order to preserve and enhance the ability of Hauturu to support the other taonga, DoC's application should be granted. This position recognised that the kiore were not to be given prime consideration at the expense of the other species of indigenous flora and fauna that were also taonga to Ngatiwai.

Ngati Rehua's opinion also made reference to the taonga status of other species. Notably the tuatara and shark were referred to as 'kaitiaki'. Part of the relationship Ngati Rehua had with these taonga is epitomised in the Ngati Rehua Strategy, 32

[T]he Tuatara represents the Earth and was once found on Aotea and the surrounding islands. According to Whetu McGregor, the old people carried the Tuatara in their coats and jerseys, as a means to keep cool, while collecting titi/mutton-birds ....

Ngati Rehua also relied on evidence from Professor Charles Daugherty (Victoria University) regarding the potential depletion of tuatara in the future if kiore were still present. It was acknowledged that the competition between taonga, namely kiore and tuatara, necessitated the removal. Tuatara numbers were dwindling; kiore were well in supply, thus the removal would support the survival of the rest of the taonga on Hauturu. Whilst this analysis is simplistic and Ngati Rehua would not have sought to balance the importance of one taonga against the other, the underpinning view was that in the interest of preserving the greater good, the kaitiakitanga of all taonga on Hauturu, the kiore should be removed.

In reply, the Director-General of Conservation conceded that a controlled cultural management approach to kiore may be sustainable, achievable and even beneficial to Maori, the community, research and conservation knowledge, but submitted that the place for controlled management of kiore was not Hauturu.

30 Submission in reply to the Director General of Conservation, 22. 3 I Ibid at 33. 32 Ngati Rehua, Environmental Strategy (2001) 3.


The differing views of the tangata whenua indicate the differing opinion within Maoridom as to how ss 6( e ), 7 ( a) and 8 of the RMA may be achieved. As will be shown, all of the different views appear to hinge on the weight afforded to the status of the kiore as a taonga compared to the status of other indigenous or endemic animals and plants such as the tuatara and titi (mutton-bird). In the Commissioner's report it was thought that depending on this weighting, the purpose of the Act can be achieved by either granting or declining the application. 33

The paper will now canvas the technicalities of the resource consent hearing, outlining:

(1) The specific method DoC wished to employ to eradicate the kiore, and (2) DoC's reasons and justifications for the eradication.

IV. The Resource Consent Hearing

From 6-13 March, 2003 a joint resource consent hearing to the ARC and the Auckland City Council (ACC) was held at the Council Chamber. The appointed Councillors were; Mr. Allan Watson (for ARC), Ms Nin Tomas (for ARC) and Mr. Ross Gee (for ACC). The purpose of the hearing was to consider the application made by DoC for the aerial discharge of cereal baits containing 20ppm of brodifacoum to the coastal marine area to eradicate kiore on Hauturu.34 The ARC saw the primary and intended effect of the proposed operation as the eradication of kiore.

The aim of DoC's proposal was to meet its various statutory obligations by restoring the ecology of the island to a condition closer to a state that was present when humans reached New Zealand. Similar kiore eradication operations to the one proposed had been carried out at Codfish, Red Mercury, Cuvier, Marotere, Tiritiri Matangi and Kapiti islands.

1. The reason for the proposal

The planner area of Hauturu is 3083ha. However, due to the steep topography of the island, rising to 722m above sea level in parts, DoC considered the only cost-effective means to distribute the bait was by aerial spraying. The bait was proposed to be distributed by helicopter at an average rate of no more than 18kg/ha and a total application of 55 tonnes.

The bait was to be conveyed to the island by barge, from the Port of Auckland, in three 40 foot and one 20 foot containers. The proposed timing of the operation was to be from June 1 to October 30, 2003, although consent was

33 Auckland Regional Council, Resource Consent Hearing File ref: ARC 16411: ACC GN/02/04914 (25 February 2003) 36.

34 lbid.

The Eradication of Kio re and the Fulfilment of Kaitiakitanga Obligations 1337

being sought for a five year period to allow for postponements. Primarily, consent was required because full coverage cf Hauturu's coastal areas would mean that some bait would inevitably fall into the sea at the outer edge of the application swaths causing incidental discharge of the bait

The consent was granted to take effect as of 30 May 2003 and v✓ould ha.Ve a five year duration elapsing 30 lvfay 2008.

Under the Conservation Act 1987, Doe's function is conserve the natural and historic heritage of New Zealand for the benefit of present and future generations. S 2 of the Conservation Act defines conservation as: "the preservation and protection of cultural and historic resources for the purpose of nwintaining their intrinsic values, providing for their appreciation and recreational enjoyment by the public and safeguarding the options of future generations." Further to this definition, DoC claimed that the removal of kiore frorn Hauturu ,voulol provide further aesthetic and conservation benefits as it would allow the island to return to someihing approximating its pre-human state.35 fo eradicating the only remainiHg exc,tic predator from Hauturu, DoC claimed it would effectively safeguard a treasure of New Zealand's coastal environment for future generations.

DoC also administers the Reserves Act 19Tl and the \VildEfe Act l 9::i3, which require th2.t exotic species and fauna, such as the kiore, are as far as possible eradicated from Nature Reserves. The Fifth Schedule 0{ the Wildlife Act 1953 lists rats as "v,1ildlife not protected". In addition, the Reserves Act 1977 provide for the eradication of non-protected species on Crown reserves by stipulating that; "except where the 1\/[inister otherwise determines the indigenous flora :md fauna, ecological associations and natural environmrnt shall as far as possible be preserved and exotic flora and fauna as far as possible be exterminated."36 These provisions indicate that the kiore are an "exotic species" to vvhich DoC ovves no duty of protection.

In addition to DoC's 1mmdated strategies are the ARC strategies such as the Auckland Regional Pest Management Strategy 2002.-2007 (ARPMS) promulgated under the Biosecurity Act 1993. The ARPlv'!S sets policy on the regional priorities for the management of pests, plants and animals. At paragraph 11.12 the kiore is declaied a pest, along with ship rats and Norway rats, although consultation with Ngatiwai is recommended before rat control that niay potentially impaci: on the ldore i:; undertaken. Prima facie, the provisions seem to indica.te that DoC is under a posiiive obligation to eradicate the kiore in the interest of the preservation of the natural enviromnent on Hau tum. Such a policy

35 Depmtn1ent of Conservation, Policy Statement, supra note 17. 36 Reserves Act 1977, s 20(2)(b).


is endorsed in the Hauraki Gulf Maritime Park Management Plan (1982), the Hauraki Guff Marine Park Act 2000, the Conservation Management Strategy for Auckland 1995-2005 and the DoC policy document An Approach to Island Management where Kiore (Rattus Exulans) Occur.

In addition to the above mandate, DoC is required to "give effect to" the principles of the Treaty of Waitangi in administering and interpreting rhe Conservation Act37 This is the strongest worded Treaty clause in New Zealand legislature and requires positive steps to be taken for the advancement of Treaty considerations. However, pursuant to the resource consent claim rnade under the RMA, DoC claimed that the promotion of sustainable rnanagement of Hauturu is of paramount concern to the proposal when read in line with its existing mandates,

In following existing Depaitrnental guidelines, DoC claimed to have attempted consultation initiatives with tangata whenua about the future of kiore on Hauturu. The following section will serve to assess whether this appreciation is coffect

V. Maori and the Rl\liA

L The Need for thte RM.A

The brainchild of the Labour Government, although brought to fruition by the National Government, the RMA was finally implemented in July 1991. Prior to the RMA, the only Maori recognition i0_ planning legislation was s 3(1 )(g) of the Town and Country Planning Act 1977. ]Pursuant to this section, the government was required to pay regard to Maori, their historical traditions and culture and their relationship with their ancestral lands and waters as a matter of national concern. Despite the advances this section made, in general the Act was still largely insufficient in its accessibility to Maori. The RMA sought to remedy this problem.

H is undisputed that the major purpose of the Rl\,1/\i, is the promotion of the concept of sustainable management of natural and physical resources.38 The RMA significantly changed the framework of natural resource management planning and key policy making in two areas. First, on a general scale it devolved much of the policy making and planning from central government to local and regional government. Secondly, the Act placed considerable emphasis on the interests and resource m,magement issues of concern to tangata whenua. The latter axea is the focus of this section and has been described as follows: 39

37 Conservation Act 1987, s 4. 38 .Ritchie, 1!1aori participation in the Resource fllfanagenient Act: an analysis of provision made for Maori

participation in regional policy statements and district plans produced under the Resource lvfanagernent Act 1991, (1995) L

39 Ibid 2.


The 'principles of the Act' refer to the relationship of Maori and their culture and traditions to natural resources of special significance to them, to the role and function of kaitiakitanga and to the Treaty of Waitangi. Iwi authorities are named as authorities whom regional councils and TLA (territorial local authorities) must consult with in preparation of Policy Statements and Plans.

2. The Relevant Provisions

(i) Section 5

In Green and McCahill Properties Limited v Auckland Regional Council40 it was noted that s 5 is the principal provision of Part II of the RMA and of 'great importance'. Pursuant to s 5(2):

Sustainable management in the Act means managing the use, development and protection of natural and physical resources in a way or at a rate which enables people and their communities to provide for their social and economic and cultural well being and for their health and safety while:

a) Sustaining the potential of the natural and physical resources(excluding minerals) to meet the reasonable foreseeable needs of future generations and

b) Safeguarding the life-supporting capacity of air, water soil and ecosystems and c) Avoiding, remedying or mitigating any adverse effects of activities on the

environment.

The concept of 'sustainable management' is at the very heart of the RMA. In general terms, the definition of sustainable management recognises the requirement that people are able to utilise resources, but that such use should not impact excessively on the ability of the environment to continue to be a source of those resources. The concept is therefore inclusive of the notion of sustainable development in that it requires decision makers to adopt an integrated perspective for managing natural and physical resources. This section recognises that people need to use the resources for their welfare, but that in doing so they must not, either singly or cumulatively, compromise the ability of the environment to continue to provide those resources, or other indirect services to the community.41

In the recent Privy Council decision McGuire v Hastings District Council,42

it was held that the s 5(1) provision of sustainable management of natural and physical resources is not meant to be merely concerned with economic considerations. It was noted that although the section dictates a single broad purpose, "[n]onetheless, in achieving it, all the authorities concerned are bound by certain requirements and these include particular sensitivity to Maori issues."43

This argument was raised by Ngati Rehua in the case of the kiore in support of their co-management proposal.

40 [1997] NZRMA 519 (HC) per Salmon J. 41 Shirley Primary School v Telecom Mobile Communications Ltd [1999] NZRMA 66, per Jackson J. 42 [2001] NZRMA557. 43 Ibid 566.


Essentially, the remaining sections in Part II serve to outline the machinery by which the principles from the purpose in s 5 may be achieved. The Court noted in Mason-Riseborough v. Matamata-Piako District Council44 that ss 6, 7 and 8 all begin with the same phrase, which indicates that each has a direct relationship to achieving the purpose of the Act, namely sustainable management. They may be grouped into three categories:

1) Section 6: matters of national importance; 2) Section 7: other matters which must be particularly regarded; and 3) Section 8: the Treaty of Waitangi and its principles must be taken into account

To gain an understanding of the implications of the Part II machinery, each section will now be elaborated on in terms of recent case law interpretations.

(ii) Section 6

This section serves to identify key matters of national importance which must be recognised and provided for. The persons upon whom the obligation to 'recognise and provide' falls, has been held to include: Ministers of the Crown,45

local authorities preparing policies and plans,46 and consent authorities receiving and processing resource consent applications.47 The approach of the Court in determining priority amongst matters of national importance is set out in Environmental Defence Society Inc. v Mangonui County Council.48 Here it was found that it "will be necessary to weigh the conflicting national interests and reach a conclusion as to where on balance the matter lies". Matters of national importance not included in the RMA may also be brought into consideration if it can be shown "that it assumed such importance in the context of sustainable management of New Zealand that it could of itself assume national importance."49

Whilst all the matters spoken of in s 6 are encompassed in the Maori conservation ethic, of particular interest to Maori is s 6(e) which provides for,

"[T]he relationship of Maori and their culture and traditions with their ancestral lands, water, sites, wahi tapu and other taonga."

Although a discussion of the implications of transplanting Maori terms into statute law will follow, 50 it is evident that read from a literal interpretation, s 6 imposes a positive, imperative onus on the applicant in regards to 'Maori'. To

44 Al43/97. 45 Haddon v Auckland Regional Council [1994] NZRMA 289, Sea-Tow Limited v Auckland Regional Council

[1994] NZRMA204. 46 Smith v Auckland City Council [1996] NZRMA 27 (HC). 47 Hanton v Auckland City Council [1994] NZRMA 289. 48 [1989] 3 NZLR 257 (CA). 49 Marlborough District Council v New Zealand Rail Ltd [1995] NZRMA 357. 50 See Part VI infra.


carry out the obligations imposed under s 6, a two-fold approach w,1-s adopted by the courts in Haddon v ARC. 5' When considering s 6(e) in terms of Maori, the applicant shall have regard to:

1) The recognition of the relationship of Maori with their traditional lands and 2) The provision for the relationship.

Although s 6( e) will not override the purpose of the Act, it may be seen as a clear illustration of governmental intention to recognise and promote the interests of tangata vvhenua. Although DoC asserted that the kiore is not strictly 'indigenous' to Aotearoa, the NTB recognised the kiore as a t,mnga whose ongoing relationship must be recognised and provided for under s 6(e).52 As DoC argued, this requirement was met in its 1:nitigation proposal to relocate kiore off Hautum. 53

(iii)Section 7(a)

A.s previously stated, ss 7 and 7(a) state that in ::tchieving the purpose of the Act, all persons exercising functions and powers under it, in relaiion to managing the use, develapment, and protection of natural and physical resources, shall have particular regard lo kaitiakitanga, This test of "'shall have particular regard td"

'Nhich a consent authority has to meet in crder to discharge its duties has beefl stated to be a ·'high one''.54 In Gill v S.otorua District Counci/55 it 1Nas held that passive compliance would not discharge an authority's duty, it imposes a duty on a council to be 'on inquiry'. In Marlborough District Council v Southern Ocean Seafoods Ltd56 it was held that ~he duty imposed by the test went beyond merely being on enquiry. In the Courfs view the words impose an "injunction to take the matter into account, recognising it as something important to the particular decision". Merely consulting with the rel.evant parties under s 7 does not discharge this duty. 57

The NTB claimed that Doe's eradication proposal would inevitably result in the inability of tangata vvhenua to exercise guardianship/kaitiakitanga according to tikanga. It was submitted that if DoC accepts that kiore are a taonga to Ngatiwai then it must follow that the :NTB are a kai.tiaki of kiore" In short, if the bore were eradicated, the NTB claimed that it vvould no longer be able to practice kaitiakitanga on Hautum as the bore would no longer be present. in reply, DoC submitted that it had offered the opportunity for the NTB to be involved in the

51 [1994] NZRMA 49. 52 Toki, Submissions of the ·Ngati Rehua Trust Board on Auckland Regional Council Resource Consent, PERMIT

NO.s 27142 and 27148, 5. 53 Supra note 13 at 11. 54 Gill v Rotorua District Council ( 1993) 2 NZRMA 604. 55 Ibid. 56 [1995] NZRMA 220. 57 Takamore Trustees v Kapiti Coast District Council [2003] BCL 526.


management aspects of the proposed eradication. However, it would appear obvious that where a party opposes eradication, an offer for that party to be involved in an eradication program would not classify as having regard to kaitiakitanga.

DoC maintained that the kiore were a non-threatened species and thai on a cost-benefit analysis they should be eradicated. DoC argued that the protection of threatened species such as the tuatara took precedence over the ldore on Hautum, taking a hard line Machiavellian perspective. In sustaining the endangered species, DoC seems to have adopted and applied the principle of kaitiakitanga for Ngatiwai. To an extent, Ngati Rehua appeared to tautoko (support) this perspective by suggesting that if the kiore eradication resulted in the tuatara and titi returning to Hauturu, then Ngati Rehua would once again be able to practice kaitiakitanga in respect of these taonga.

Throughout its submissions, it was obvious that DoC was reluctant to recognise Ngatiwai's status as kaitiaki as it feared this would have obliged it to accept a partnership role with the tangata whenua. The decision of the ARC is highly critical of DoC's reluctance to recognise Ngatiwai's kaitiaki status, This has resulted in a caveat condition being added to the resource consent which requires DoC to arrange for Ngatiwai involven1ent in a Kiore Transfer Management Plan (KTMP) before it can start the aerial bait drop. 53

(iv) Section 8

This section requires that applicants shall take into account the principles of the Treaty of Waitangi. The wording of s 8 has been criticized by Maori for the nature of the obligation'9 in that it should be more akin to the imperative direction offered ins 4 of the Conservation Act. In 1:he Ngawha Geothermal Report, WAI 304, the Tribunal attempted to remedy this problem by recommending:60

That an appropriate amendment be made to the Resource Management Act 1991 providing that in achieving Lhe purpose of the Act, all persons exercising functions and powers under it, in relation to the use, development, and protection of natural and physical resources, shall act in a manner that is consistent with the Treaty of Waitangi.

As yet the recommendation is still to be implemented. A further initial criticism is that the principles of the Treaty are not

specifically defined in the RMA and this has left the door open for courts to resolve the issue on a case by case basis.61 This approach has been problematic as certain Treaty principles such as the Crown's duty of consultation and active

58 Auckland Regional Council Resource Consent, Permit No.s 27142 and 27148 (dated 2 May 2003) [11]. 59 Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188. 60 Waitangi Tribunal. Ngawha Geothermal Resource Report - Wai 304 (1993). 61 lbid 191.

The Eradication of Kio re and the Fulfilment of Kaitiakitanga Obligations 1343

protection are inadequately quantified by Governmental Departments. For instance, if consultation is a principle to be 'taken into account' then what is the yardstick to measure it? Furthermore, what guarantee do Maori have that:

Their input into deciding how to 'measure' this principle will be adhered to and given the appropriate weighting? and Based on the hierarchical structure of the RMA, what guarantees do Maori have that the consultation principle will be considered when the over-arching consideration is 'sustainable management?

The above questions win be answered in Part VL The paper wiH now serve to analyse the Treaty principles as referred to in this section.

3. The P.rindpler. of the Tireaty

The principles of the Treaty of Waitangi ultimately derive from the Treaty of Waitangi Act 1975, which in tum established the Waitangi Tribunal. The Waitangi Tribunal sought to provide for the: 62

[O]bservance and confirmation of the principles of the Treaty of Waitangi by establishing a Tribunal to make recommendations on claims relating to the practical application of the Treaty and to determine whether certain matters are inconsistent with the principles of the Treaty.

fo 1987 the Court of Appeal emphasized the principles of the Treaty in the NZ Maori Council v Attorney General caseo63 In interpreting the Treaty principles, it was noted that it is the 'spirit' rather than the literal words of the Treaty that are to be applied. Conu7Jenting on the spirit of the Treaty, Cooke P noted that the "principles are not to be founded in tablets of stone like the 10 commandments"64

but instead must be approached in a holistic vvay. Beverly65 has criticised the RMA for the lack of primacy afforded Treaty principles, and this opinion is largely supported by the Waitangi Tribunal in the Ngawha Geothermal Resource Report - Wai 3040°66

It is difficult to escape the conclusion that the Crown in promoting (the RMA) has been at pains to ensure that decision-makers are not required to act in conformity with, and apply, relevant Treaty principles. They may do so, but they are not obliged to do soo In this respect the legislation is fatally flawed.

62 Ministry for the Environment, Taking into Account the Principles of the Treaty of Waitangi: Ideas for the implementation of Section 8 Resource Management Act 1991, (1993) 5.

63 [1987] l NZAR 10. 64 Ibid l2. 65 Beverley, "The Incorporation of the Principles of the Treaty of Waitangi into the Resource Man.age1nent Act

]991- Section 8 and the issue of Consultation"' (1998) 1(2) NZJEL 1520 66 Supra note 60 at 145.


As previously indicated, there were two key principles at issue in the current situation with Ngatiwai, namely those of consultation and active protection.

( i) Consultation

In the Ministry for the Environment's RMA working paper (June 1999) it was considered "recognised good practice that applicants for resource consents engage in consultation with the tangata whenua where their proposals may affect the matters referred to ins 6(e) ands 7(a)".67 It was also found that consultation is a two-way process. If iwi refuse to consult then they cannot expect the Court to hold that consultation has been inadequate. Thus a balance must be struck between the parties to meet the onus under this principle. The approach of the courts in recent cases has shifted away from a narrow focus on consultation in favour of a holistic application of Part II of the RMA.

In a similar case to Hauturu, Ngai Tahu Maori Trust Board v Director General of Conservation,68 Ngai Tahu challenged DoC's decision to issue whalewatching permits to a non-indigenous tourist enterprise which would directly compete with the iwi's business. Ngai Tahu sought injunctive relief on the basis that they were entitled to exclusive rights to the whale-watching tours as the whales were their taonga.

Ngai Tahu's argument was based on the principles of the Treaty of Waitangi to which DoC had a duty to give effect to under s 4 of the Conservation Act 1987. The iwi argued that pursuant to the treaty principles of consultation and active protection they had a right to veto the issue of additional licenses to competing non-indigenous enterprises. The case went to the Court of Appeal where Cooke P held that in allocating the permits, DoC was required to give a "reasonable degree of preference" to Maori operators to give effect to the principles of the Treaty. It was noted that: 69

Statutory provisions for giving effect to the principles of the Treaty of Waitangi in matters of interpretation and administration should not be narrowly construed .... It is difficult to find ... any indication of the value to Ngai Tahu of the right to be consulted. Some psychological benefit may be hinted at, but there is an absence and even a repudiation of any suggestion that Ngai Tahu's representations could materially affect the decision. Such issues are not to be approached narrowly ... the Crown is not right in trying to limit [the Treaty] principles of consultation.

It was held that to restrict DoC's responsibility to Ngai Tahu in this situation to one of mere consultation would be hollow and redundant. It was thought that a reasonable Treaty partner would not restrict consideration of Ngai Tahu's

67 Supra note 63 at 11. 68 [1995] 3 NZLR 553. 69 Ibid.


interests to mere matters of procedure. Applied to the kiore situation, the Ngai Tahu Maori Trust Board decision adds a valid commentary on the duty imposed on DoC in relation to consultation. Applying the above rationale, DoC's duty to consult Ngatiwai would appear to far surpass simple acknowledgement. Such an argument is mirrored in the ARC's findings.

(ii) Active Protection

In relation to the degree of protection owed by the Crown to Maori, the Waitangi Tribunal has commented that the concept is subjective and will depend on the individual circumstances in each case. The leading Tribunal decision on the principle of active protection is the Ngawha Geothermal Decision (WAI 304) in which Ngapuhi Maori claimed the geothermal energy at Ngawha was a taonga tuku iho. Maori objected to a proposal by the Northland Council to tap the geothermal energy at Ngawha on the grounds that the proposal would detrimentally affect the mana and mauri (life-force) of the taonga. In upholding the claim the Tribunal found that the Crown was obliged to ensure that the claimants were protected from the actions of others that might impinge on the rangatiratanga of their taonga by "prejudicially affecting the continued use and enjoyment of their resources, whether in spiritual or physical terms". 70

Flow-on effects from the Wai 304 decision have been the disputation of the Crown's ability to recognise and provide for Maori spirituality in the RMA. This will be discussed in the next section (at VI, 3).

The Tribunal observed that the degree of governmental active protection required by the duty would depend on the nature and value of the resource. In the case of a highly valued, rare and irreplaceable taonga of spiritual and physical importance, such as that of the Ngawha geothermal resource, the Crown is under a high fiduciary onus to ensure its protection, whereas in the present scenario DoC could have argued that it had legitimate concerns necessitating the relocation of the kiore. Consequently DoC could have argued that such concerns serve to negate the high fiduciary duty of active protection in the present case.

In response to this position, Ngati Rehua may have argued that in terms of the principle of active protection, the vulnerability of the kiore on Hauturu, should consent be granted, was extreme. By this argument, the vulnerability of the kiore must be taken into account in the same manner as the vulnerability of the tuatara and titi under a controlled management program. Implicit in the promotion of controlled management is the notion that active steps are to be taken by DoC to adopt a "kiore management program" that provided for all taonga on Hauturu. As will be discussed, such an opinion was endorsed by the ARC and was a caveat to the ARC granting resource consent to DoC.11

70 Supra note 60 at 136. 71 Supra note 30 at [I 2-14].


Under the principle of active proiection there appears to be auihority for Ngatiwai's grievance that DoC failed to take into account the alternative proposals it suggested in relation to Hautum. In Ngai Tumapuhaarangi Hapu v Carterton District Council,72 it was held that an examination of alternatives may be a way of testing if a proposal is reasonable in the prevailing circumstances. As DoC failed to actively examine the alternatives proposed by Ngatiwai, there may have been room to caU for a breach of this principle.

The Privy Council in McGuire v Hastings District Council73 stated that where a proposal would significantly affect Maori land which the owners wished to retain, then a Ireasonable alternative should be considered, even if it were not ideal, This was argued in the case of Friends of Ngawha Inc v. Minister of Corrections. 74 Here Maori claimants argued that alternative sites for a proposed prison were not considered by the Department of Corrections. However, when applied to Hautum, any such argument would not hold as in DoC's opinion there is no evidence in Ngatiwai's proposals which would meet the requirements of a "reasonable alternative" to the stated eradication/relocation proposal.

Throughout the course of the paper several issues have arisen in criticism of the RMA and its application to Maoridom, Some of the criticisms are merely semantic, whereas others are aimed at the core of the Act itself. As it applies to kiore, the paper will now address the following problems with Part II of the RMA focusing on:

a) the hierarchical structure of Part II b) the inability of the Act to deal ·,;vith 'spirituality', and c) the problems involved in incorporating Maori words and phrases into

legislature

VL Issues Arising from Pa.rt H of the RMA

L The Semantk ArgtmrJl1ent

H has been argued that the RI\/IA depicts a hierarchy in relation to Maori concerns depicted in the inter-relations of ss 5, 6(e), 7 and 8, This argument is supported by the language used in each of the sections.

Whilst 'sustainable management' in s 5 is the undeniable primary thrnst of the Act, in terms of language, s 6( e) is the strongest worded section in relation to Maori interests. S 6(e) states that "administers of the Act slhaH recognise a!lld iJirovlide fot" the relationship of Maori and their traditions". !Haken semantically, the imperative mentioned in s 6( e) implies more trenchant obligations than that

72 AP6/0l (HC, 25 June 2001) per Chisolm J. 73 [2002] NZLR 557 (PC). 74 AP 110/02 (HC, 20 June 2002) per Wild J.


of ''to have particular regard to ... " found ins 7. Furthermore, s 7 is stronger worded than the duty to merely "take into account" the principles of the Treaty of Waitangi found in s 8.

Critics of the Act claim that the Treaty considerations should be afforded more primacy in the interests of good faith. The stance is that s 8 should be raised to a matter of national importance in s 6 as opposed to being paid lip-service at the bottom of the Part II queue. Applied to N gatiwai, such paramount importance would undoubtedly place a more substantial burden on DoC as it would be required to recognise and provide for the kiore's active protection as a taonga of Ngatiwai.

2. The Problem with Hierarchy

A difficulty lies in this hierarchical approach to the RMA in that in practice, it is difficult to divorce the concepts of 'wahi tapu' and 'taonga' depicted ins 6(e) from the concepts of 'kaitiakitanga' ins 7(a) and the Treaty principles of s 8. As an example, under Article 2 of the Treaty, the principle of rangatiratanga guarantees Maori the right to utilize their resources for development. It is argued that this principle is intrinsically synthesized withins 6(e). The problem arises in a situation where the two sections appear to conflict as to how can this supposed hierarchy exist?

Furthermore, in the event of a conflict between two essentially Maori terms, such as wahi tapu and kaitiakitanga, how can European legislature intervene to grant ascendancy to one over the other? This not only highlights the problems involved in incorporating Maori terms into English statutes, it shows how the strict interpretation of the RMA could give rise to gross injustices to Maori. In the words of Thomas Aquinas, "lex injusta non est lex".

3. Cultural and Spiritual significance of the kiore

In Beadle v Minister of Corrections [2002],75 an issue arose as to the failure of the Courts to recognise a Taniwha ( called "Takauere") who was said to be of great spiritual significance to Maori as a kaitiaki of the region. Although it was common ground that the presence of a Taniwha could symbolise the importance of a resource, the Court held that the Taniwha was not a person or a physical creature. It was thought that Takauere could be broadly described as a, "mythical, spiritual, symbolic and metaphysical being." It was argued that: 76

The enabling purpose of the RMA is for the well-being of people and communities, and does not extend to protecting the domains ofTaniwha, or other mythical, spiritual, symbolic or metaphysical beings. The definition of the term 'environment' in section 2(1) does not extend to such.

75 A74/02 (8 April 2002) Environment Court. PA Catchpole, DH Menzies and Judge Shephard (presiding). 76 Ibid 12.


Although ss 6(e), 7(a) and 8 refer to the protection of Maori values, the Tribunal held that "those sections have been carefully worded" and should not be over extended. The argument is that a judicial body would have great difficulty ascertaining such beings existed since they were not matters that could be physically proved, only asserted by the claimants.

Similarly in Otararua Hapu of Te Atiawa v Taranaki Regional CounciI'1 the cultural values said to be affected were described by the Maori claimants as metaphysical and spiritual. The Court stated that "in the absence of evidence we cannot claim to have a full understanding of them". This appeared to count against the hapu, as the court rejected the claims that the proposed site was a marae called Hanga Rua.

Applied to Hauturu, from the above case law it could be said that the spiritual significance of the kiore, as a kaitiaki of Hauturu, may have been compromised by DoC. This deficiency in the current RMA is currently the subject of review in Parliament pursuant to the recently proposed RMA Bill.

4. Maori Words in Legislation

The issue is best epitomized in the following whakatauki (Maori proverb);

E kore ai e whakawaia E whakangaro I te tikanga, Kei hiiritia e te ture, Kei waihotia ki teture tangata ...

Never allow tikanga to be watered down or lost, Lest they be codified in the law (of the coloniser) And left to languish, severed from its spiritual source ... 78

As a whole, the RMA statutorily recognises several principal paradigms of tikanga Maori including; kaitiakitanga, tangata whenua, tangata raranga, tauranga waka, wahi tapu, iwi and mana whenua. Despite these inclusions, it has been argued that in a number of circumstances, "often the meaning behind a term such as 'mana whenua' cannot be fully appreciated without recourse to a wider spiritual context."79 Choice elements, central to an understanding of tikanga Maori, were notably omitted from mention in the RMA. For example 'mauri', a concept defining the life-force of an ecosystem, which underpins the entire fabric of the Maori holistic world view, was notoriously omitted despite its inclusion in the original Resource Management Bill.80

77 A124/98 (Environment Court, W 129/96, 20 September 1996, Judge Treadwell). 78 A Ngatiwai whakatauki (proverb), frequently cited in oral tradition. 79 Durie, Te Mana, Te Kawanatanga- The Politics of Maori Self-Determination, (1998) 30. 80 Ibid 31.

The Eradication of Kiore and the Fulfilment of Kaitiakitcmga Obligations 1349

In selectively incorporating some tikanga and excluding the essential tikanga that support it, the government may be seen as "wacering dovvn" tikanga Maori through incorporation in statute. This is especially problematic where there is a power imbalance between the parties as is arguably the case ln the cmwnt situation where a Government Department and an "under resourced iwi group"81

are in dispute. Typically, the lesser party has a tendency to become undervalued and assimilated into the greater, especially in the case of consultation. It follows that without adequate Treaty protection, there is a real perceived danger within Maoridom that tikanga ,viH become severed from its holistic roots and subsequently commodified into tools of statutory interpretation.

An example of the dangers of tilrnnga Maori incorporation in law can be found in the definition of 'kaitiakitanga' found in s 2, The definition has been deemed inappropriate by many h!Iaori as the interpretation fails to capture the true gist of the concept. Bosselman offers a definition of kaitiakitanga more a1dn to

the ethos of the Maori holistic view: 82

ll [kaitiakitanga] means managing the use, develop;nent, and protection of natural and physical resources in a way, or at a rate, which enables peoples and communities to provide for iheir social, economic and cultural well-being while sustaining the potential of natural mid physical resources lo meet the reasonably foreseeable needs of future generations.

The incorpofation of the "ethic ;:;f stewardship" within s 7 of the RNIA, as a Lranslation for kaitiakitanga, fails to fully encapsulate the essence of its Maod coumerpart. In addition, the meaniags of vvords within IVIaorl society are not always pan-tribally binding and lhere may be differences in understanding betv1een different iwi across the country. It is a testament to the extent of difference between the cultures that there ls no equivalent l:erm for kaitiakitanga in Western languages. 83

As Maori terms are largely unfamiliar to the legal profession they are translated into English and brought back within the comfort-zone of codified law. Throughout this process, there is a concern from traditionalists that the oral traditions of l'vfaoridom will become lost Of at least inadvertently weakened by the procedure. By restricting a universal tikanga plincip!e to a few English words there is a concern amongst Iwi that councils ·01ill adopt the strict interpretations of the "letter of the law" and become inflexible, Councils ,;viU then have to favour strict interpretations of the law, acting within the reasonable scope of the law, for fear of acting ultra vires to the RMA.

By inaccurately narrowing the scope of 1v1ao1i terms such as 'kaitiakitanga' and 'tino rangatiratanga' in statutory translations, there is a concern the tikanga

8] Ngatiwai Trnst Board Resource Ma11agement Unit, Submission: ivlaori Customary Use of Native Birds, Plants and Other Traditional Material, (! 995),

82 Bosselman. When Two Worlds Collide (1995), 83 Ibid.


will backfire and be used against Maori in Court.84 This was demonstrated in the Corrections Department's argument in the Beadle in which the term 'Principle Kaitiaki' was mentioned in support of its argument. The term was proposed as an adaptation of kaitiakitanga and was not to be found in the RMA. The prevailing criticism is that the term 'Principle Kaitiaki' was merely a term concocted by the Crown to suit its own needs, allowing it to legitimately proceed with the prison. 85 In the case of Hauturu, DoC claimed to be providing for Ngatiwai's kaitiakitanga in eradicating the kiore as it argued it was doing so in the interest of preserving the other taonga on the island. Hence, the tikanga relied on by Ngatiwai is also relied on by DoC, an illustration of how taken may be severed from its holistic source and left to languish as a tool of statutory interpretation.

VII. The Permit/Consent Conditions

As previously stated, DoC's application was for the discharge of contaminants into the coastal environment. The ARC was therefore required to make a determination on the proposed discharge. It proceeded to go to great lengths to state that it was not required to determine whether the eradication of kiore was appropriate or not. As it eventuated, DoC's application was granted subject to certain proviso. The ARC Resource Consent was highly critical of DoC and its failure to recognise the kaitiaki status of Ngatiwai Iwi. Warwick Murray, providing evidence to the ARC on behalf of DoC during the hearing, noted that: 86

The Department has consistently, over many years, advised the [NTB] of its policy to not fund iwi to support their involvement in consultation with the Department. We are not able to vary from this policy to financially support Ngatiwai's involvement in ongoing discussions over kiore.

The provision of the Hauturu Liaison Committee and the KTMP caveat sought to re-evaluate DoC's stance. Pursuant to the ARC recommendations, DoC is required to establish and meet the 'reasonable costs' of both initiatives, which may be seen as an attempt by the ARC to remedy the NTB's concerns of being under resourced

The Liaison Committee is required to consist of at least one representative from each of the following parties: DoC, NTB, Ngati Rehua and Ngati Manuhiri and from any other parties which the parties all agree should be represented. The Committee is further required to convene at least one month prior to the

84 Cooper and James, Kaitiakitanga and Local Government: Tangata Whenua participation in Resource Management (1998) 62.

85 Bennion (ed), "Environment Court- Ngawha Prison" (2002) Maori Law Review, 5. 86 Warwick, Community Relations Manger for the Department of Conservation (evidence presented in support

of applications for resource consent by the Director-General of Conservation), Thursday March 6 2003.


application of the baits on Hauturu. These conditions ensure that the issue of representation is resolved and that Ngatiwai are provided every opportunity for consultation prior to any DoC action.

The key purposes stated by the ARC for the Committee are as follows:

(1) To enable the ongoing consultation between the members of the Committee on matters relating to the eradication operation.

(2) To advise DoC of appropriate tikanga protocols to be followed for the eradication operation.

(3) To work with and advise DoC on the development and implementation of the KTMP as required by Condition 11

(4) To provide opportunities to Ngatiwai Iwi to exercise kaitiakitanga over the taonga of Hauturu.

(5) To provide Ngatiwai the ability to exercise tikanga and maintain their mana whenua relationship over Hauturu

When one looks at these key purposes it is obvious that the ARC seeks to establish a co-management situation for Ngatiwai on Hauturu in relation to the kiore through the recognition of their kaitiakitanga obligations. DoC had never envisaged such a scenario throughout its consultation procedures and it is fair to say that this decision would have taken the Conservation Minister by surprise.

As was noted in the hearing, DoC considered that the RMA process and consultation has not been easy for both parties. Warwick Murray submitted that:

[The RMA process] undoubtedly erodes or has undermined our working relationship with the Ngatiwai Trust Board and in my view that is a very unfortunate effect. However, the Department remains committed to continuing the search for ways of enhancing our relationship and to progress our mutual Treaty obligations as required under the Conservation Act 1987. In doing so we must continue to balance these Treaty obligations with statutory imperatives provided under the Reserves Act by preserving the significant indigenous biodiversity present on Hauturu, now and for the future.

It is evident that the ARC recommendations will certainly provide for enhancement of DoC's Treaty obligations in relation to Ngatiwai and Hauturu. However, the likely scenario arising from the ARC's findings is that DoC will inevitably seek judicial review on the grounds that the consultation onus imposed on them exceeds that prescribed in their existing mandate. It is likely that DoC will appeal against theARC's findings that DoC is under an obligation to relocate the kiore under the proposed KTMP. All of the indicia in DoC's statutory mandate point to a duty to eradicate. The requirement to relocate kiore is even contrary to the AR C's own policies under the Biosecurity Act. 87 On these grounds the case is certainly judicially reviewable. However, it must be taken into account that the consent has a five year 'use-by' date and so delay may do more harm than good.

87 Note the ARPMS outlined at Part IV, 2 supra.


VHL Conclusion

H is obvious that the legal answer to the question of eradication is rather nanow; the kiore should be renwved or eradicated in the i-aterests of susi!ainabl,e management of Hauturu" However, as is the case with most Resource management decisions pertaining to Maori, the side issues pertaining to tangata whenua consultation and tikanga are where the heart of the dispute lies.

In terms of the ARC granting DoC resource consent, the end result of lhe application is by no means indicative of a victory for DoC. To an extent, the decision may be seen as a situation where DoC has 'won the battle, but lost the war'. DoC is allowed to drop the baits to eradicate the kiore but only after thorough consultation with tangata whenua. The requirements of the ARC granting the consent requires Ngatiwai's kaitiakitanga be recognised and essentially envisages a co-management situation in relation to the kime. Such acknowledgements were what 1',Jgatiwai sought initially. lt would appear that if DoC had consulted adequately in the first place, pursuant to the guidelines set out in ils own policy statements, the analysis of the legal issue involved under the Riv1A ·would have been a simple affair.

1353

The Alienation of Land in Ireland and in Aotearoa/New Zealand under English Colonization

Brigid Kelly

I. Introduction

Ireland was one of England's first colonies and New Zealand was one of the last, yet the inhabitants of both suffered from the alienation of land in favour of British settlements. 1 The people of both countries were left with a deep sense of injustice and bitterness that continued through the generations. The societal structure of pre-colonial Ireland was similar to that of New Zealand and the colonizers' attitudes towards the existing populations reflected their own belief in the cultural superiority of the British. There are some stunning similarities between the methods used to alienate land in each country, even though the concentrated periods of land alienation were separated by over two centuries, and the Treaty of Waitangi and humanitarian interests supposedly protected Maori. Both countries lost land on the basis that it was empty or under utilized and then had legislation passed that allowed for confiscation of land for rebellion. In both countries there are examples of land sales that fell little short of compulsion because of the circumstances the existing peoples had been placed in by their colonizers. The experiences of Irish and Maori both reflect that the colonizers would always find a way to alienate land, even if that way was not entirely justified. 2

II. Background Similarities

Pre-colonial Irish and Maori societies were not as dissimilar as one might be led to believe. There were some key similarities between the two that were reflected in the methods and ideologies surrounding their colonization. Prior to the Norman invasion, Ireland already shared with its invaders the notion of a high king, however that king did not rule as such, and the real authority lay with around 150 individual chief kings each of whom ruled a tuath (tribal kingdom).3

This picture of pre-colonial Ireland is akin to an image of pre-contact Maori

The colonisers of Ireland over the years were both English and Scottish and the colonisers of New Zealand were predominantly from the United Kingdom which included Ireland in the nineteenth century. Through this essay the term British will be used to refer to the colonisers in both instances.

2 It important to note that Irish history contains evidence of two groups who suffered from discriminatory policies: Irish natives and Irish Catholics. These two groups are not interchangeable. Although most Irish natives were also Catholics, there were also a large number of Old English Catholics who settled in Ireland after the Norman invasion, who later were discriminated against after the reformation and the reign of Henry VIII. Both groups at different times in history found their land alienated through biased English land policies.

3 Johnson, Ireland: Land of Troubles: A History from the Twelfth century to the Present Day (1982) 13-14.


society although Maori h,i_d no concept to parallel the role of the high king until the King Movement emerged midway through the nineteenth century. Furthermore, both the kings of Ireland and the chiefs of Aotearoa were limited in the exercise of their authority by customary law, including their ability to alienate land. In Ireland "the kings could not change the law: they could only interpret it."4

The decentralized nature of freland made it "an easy country to occupy", but one that was "singulady difficult to conquer" just as New Zealand was.5 However, the high concentration of rulers in these societies provided the ideal setting for a divide and rule colonial policy that maffed so much of British colonial history.

These tribal societies also viewed land in a particular vvay. Both societies acknowledged political dominion over land but not actual ownership.6 In Aotearoa this was reinforced by the fundamental belief that the land was both whakapapa 8.nd mother. Early land transfers in New Zealand have been ciiticized because Maori were not fully aware of what they were giving away, a

misunderstanding that was facilitated by cultural differences between i:he colonized and colonizers. This same criticism of cultural misunderstanding was made concerning the Norman invasion of Ireland as "the Irish lords thought they were submitting under duress to a new political authority [whereas] the feudal lnvaclers believed that they were acquiring a rigid, complete and perpetual mvnership of the 'land', fron1 the zenith to the uttermost depths."7 VVhile cultural misunderstanding vvas clear in both circumstances, the content of the misunderstanding was different '7Vhile the British might have believed that they were acquiring the ownership of land in both countries, in New Zealand, Maori did not think that they were submitting to a political dominant. On the contrary they believed thal the Treaty of Waitangi was guaranteeing then'! their rangatiratanga, their land and their possessions. Their land deals 'Nere not seen as transfers of title, but rather a granting of a right to use land that they continued to have mana whenua overo

In early Maori and Irish understandings ofland possession, the land belonged to the community as 3, whole and was not the property of the chief, however early Irish society did have more of an understanding of indlvidual tide. It was a "deeply engrained idea of the Irish that every free man should have the right to the secure occupation of the land ,vhich he requires for use," but the right to the land did not derive fron1 the chief as it belonged to the whole clan,8 This belief continued long after the Norman invasion. Just as in New Zealand, English law and control did not manifest immediately in Ireland and did not extend to all parts.' Even the Irish who did have relationships with the English may not have

4 Ibid 14. 5 Kolberl & O'Brien Land Reform in Ireland. A Legal Hist01y or the Irish Land Pmblem and its Settlement

(1975) 3. 6 Ibid 14. 7 Ibid. 8 lbid 8. 9 Supra note 3 at 19.

The Alienation of Land in Ireland 1355

understood the nature of that relationship and the consequences if they "objected or rebelled or had to be conquered" with their lands being forfeit to AngloN ormans.10 This relationship of English dominance when dealing with the Irish continued over centuries to be brought into colonial policies in New Zealand in the nineteenth century.

III. Early Colonial Experiences

In both the Irish and Maori colonial experiences the colonizers came with an ingrained sense of cultural superiority. Irish natives were regarded as "more uncivill or uncleanly, more barbarous and more brutish in their customs and demeanures, than in any other part of the world that is known". 11 The Irish were themselves "without the law" and as a result the injuring or killing of an Irishman was not a recognized crime to the English and if an Englishman ever held land, no amount of occupation gave an Irishman good title to that land. 12 In some ways Maori were more respected than the Irish, perhaps as a result of the humanitarian thinking of the nineteenth century. While this humanitarian thinking was often paternalistic to a fault or alternatively ignored, it did provide some minimal protection to Maori and their lands. Even so Maori still found themselves the objects of derogatory rhetoric, being labelled "an inferior branch of the human family" that could only be saved by rejecting their culture. 13 Just as in Ireland, these views "became the basis for justifying policies which were designed to remove control of the land from Maori and destroy their identity as a people."14

The New Zealand Company held to the views of the Swiss Jurist Emerich de Vattel, that it was mankind's obligation to cultivate the earth and "those who did not cultivate the land had no right to it and those who took it to cultivate were obeying the laws of nature."15 In the opinion of the New Zealand Company and many British settlers in New Zealand, Maori did not use the land effectively and therefore alienation of this land was only right. The Irish situation shows just how little had changed in two hundred years. In Elizabethan Ireland land was alienated because it stood "neither with Christian policy nor conscience to suffer so good and fruitful a country to lie waste like a wilderness."16 In the 1580s a popular Roman law concept was res nullius which stated that land that was unoccupied or under-utilized was the "common property of humanity until it was brought into efficient use by enterprising people who might then become its owners."11 This

10 Supra note 5 at 13. 11 Canny, The Elizabethan Conquest of Ireland. A Pattern Established: 1565-1576 (1976) 127. 12 Supra note 5. 13 Yensen, "It went so well, what went wrong?" in Yensen, Hague & McCreanor (eds) Honouring the Treaty: an

introduction for Pakeha to the Treaty ofWaitangi (1989) 59-60. 14 Ibid61. 15 Hutton & Risehorough The Crown's Engagement with Customary Tenure in the Nineteenth Century (1997) 8. 16 Supra note 11 at 119. 17 Carmy, Making Ireland British: 1580-1650 (2001) 133.


sort of thinking created an illusion of vast areas of wasteland that was free for plantation. This was repeated in New Zealand with the doctrine of terra nullius to rationalize the alienation of land from Maori because they did not occupy or use it. The concept of mana whenua extending to areas that were not occupied or cultivated ran into conflict with the supremacy of English common law, despite the guarantees of the Treaty of Waitangi.

Defective titles were a further way that land was alienated in Ireland. Defective titles were particularly exploited in the reign of James I by Thomas Wentworth who traced crown title back to the Norman invasion four centuries earlier with no regard paid to the fact that Irish people had occupied the land for centuries. 18 As a result Irish "were obliged to surrender a third or a quarter of their land, but given secure possession of the rest."19

Catholic holdings were reduced from three fifths in 1641 to one twentieth by the time of William III in the late seventeenth century. 20 Security of title in Ireland was no more effective than in New Zealand where "by 1880, despite the inalienation clause supposedly required in all Crown grants, practically the whole of the awards had 'passed into the hands of Europeans, either by sale or lease' [as] the Crown grants were 'only required in order to perfect the titles' of the European purchaser who had acquired the interest".21 The focus in both Ireland and New Zealand was on getting the land out of the existing populations' hands and earning some revenue for the Crown.

The Treaty did ensure that the experience of Maori would be somewhat different. The British Crown's authority in New Zealand rested upon the Treaty, not conquest, although this authority did not mean much until the time of the New Zealand Wars. The Treaty recognized Maori rights to possession of their lands and in that respect it was not as easy to justify legally alienation of land as it had been in Ireland where the claim of conquest was made. Instead the Colonial Government adopted another method of land alienation also used in Ireland, legislation that allowed for the confiscation of land for rebellion. But first they had to find some rebels.

IV. Confiscation Legislation

New Zealand and Ireland had almost identical legislation for the confiscation of land for rebellion, but there is an important distinction to be made between the two. The Irish actively rose up against British control. Leaving aside the question of whether the Irish were justified in rising or whether they were truly rebels, the Irish actively rose up against British rule several times over the centuries, often with bloody consequences. The New Zealand experience was worlds apart. The

18 Ibid 283. 19 Supra uote 3 at 36. 20 Supra note 5 at 20. 21 Supra note 15 at 91.


Maori were resisting British control, but initially this resistance was in a passive form. Maori refused to sell further land and insisted on recognition of their rangatiratanga as guaranteed by the Treaty and it was this passive move that contributed to the New Zealand Wars. In short, the Irish experience was one of an armed rising from a repressed population, native or Catholic, whereas the New Zealand experience was one of a governmental declaration of war against a people who were considered rebels because they were not doing what the government wanted them to do.

The government in New Zealand had to find a justification for conflict that could in turn justify confiscation. The King Movement's assertion of independence on the basis of the Treaty ofWaitangi was held to constitute treason and thus justify war.22 Even in Ireland where claims of rebellion were much easier to make, soldiers in the sixteenth and early seventeenth centuries still: 23

[R]elished the prospect of Irish revolt which would provide opportunity of outright confiscation ... and they sought eagerly for evidence of rebelliousness which might force the crown to take action against those they aspired to dispossess.

Three key pieces of legislation originally from Ireland were adopted in New Zealand in 1863: The New Zealand Loans Act, Suppression of Rebellion Act and the New Zealand Settlement Act. The Colonial Office accepted these three Acts and while they did impose some restriction on the implementation of the Acts, the Colonial Government largely ignored these restrictions. 24

1. The New Zealand Loans Act 1863 (a.k.a. The Adventurers Act 1642)

The New Zealand Loans Act was modelled on the Adventurers Act 1642 and allowed for the sale of confiscated land to pay for the process of colonization. 25

Adventurers were the financial contributors behind the suppression of the 1641 rising in Ireland. The Adventurers Act allowed for the forfeiture of a rebel's property, its seizure and sale to Parliamentary supporters and prevented subsequent parliaments from pardoning or restoring the property to the said rebel.26 The financial contributors under the Adventurers Act were predominantly parliamentarians who made confiscation in Ireland "a prominent part of English policy in a conquered Ireland."27 Parliamentarian self interest was just as evident in nineteenth century New Zealand. Thomas Russell and Fredrick Whitaker were

22 Orange, The Treaty ofWaitangi (1987) 158. 23 Supra note 17 at 270. 24 Supra note 22 at 169-170. 25 New Zealand Waitangi Tribunal, Waitangi Tribunal Report WAI 143: The Taranaki Report, Kaupapa Tuatahi,

(1996) 133. 26 Supra note 3 at 41. 27 Wheeler, Cromwell in Ireland (1999) 228.


prime examples of self-interested parliamentarians. They were both members of the Dommett Ministry that proposed war in the Waikato, were the owners of the Bank of New Zealand that funded the loan for the vvar and were partners in Whitaker and Russell, a firm of land agents.28 New Zealand's land was a bank to pay off debts just as Ireland had been. What is disturbing about both these Acts is that land was promised before it was even established who was in rebellion and what land was liable for confiscation, resulting in some dubiously defined rebels.

2, The Sll!p]l_:me:ssfon of Rebemrnm Act 1863 ( a.k.a The Irish Ad :!1799)

The Suppression of Rebellion Act was taken from the Irish Act 1799, enacted to deal with the 1798 Irish rising led by Wolfe Tone "in circumstances entirely different from those in the Vl/aikato of New Zealand."29 The Suppression of Rebellion Act allowed for the "death, penal servitude or corporal punishment" of persons found to be in rebellion within the entire colony despite the fact the 'rebellion' only occurred in particular are:is.30

Later the Act was repealed and an Indemnity Act was passed in its stead. This Henry Sewell viewed as significant because one was "a kind of plenary indulgence beforehand for violence or excesses of any kind or degree committed under colour of authority," whereas the other was "s, Constitutional form of absolution for things done under special emergencies."'1 This distinction may have made the law look better and less draconian but the practical result was the same. The removal of legal protections was because the government felt threatenedo Whether that threat was defined before or after the action occurred made no practical diffeienceo

Indemnity Statutes also appear in Irish history. However, the Indemnity Act of the Restoration excluded its benefits from Catholics and as a result they were not entitled to the return of their estates.32 In both countries the suspension of civil liberties such as habeas corpus was considered abhorrent by the standards of the time and yet it was justified by the circumstances. The Vl/aitangi Tribunal noticed the irony that when the 'Nest Coast Commission criticized the Habeas Corpus Suspension Bill for Ireland because there was "no statesmanship in merely acts of force and acts of repression", it vvas just fifteen months before lParihaka ·was invaded and the New Zealand government passed its own legislation to suspend habeas corpus during peace time. 33

28 Simpson, Te Riri Pakehai The White Man's Anger (1979) 146,148. 29 Ibid 147. 30 Supra note 22 at 166 0 1690 31 Ibid 176. 32 Arnold, The Restoration Land Settlement in County Dublin, J 660-l 68g A History of the Administration of the

Acts of Settlement and Explanation (1993) 39-40. 33 Supra note 25 at 250.

The Alienation of Land in Ireland

3. The I"'Jew Zeafand SeHJemenoc Act 1863 (a.k.a Act of Settlement 1652)

1359

The primary piece of legislation used in New Zeahnd to facilitate confiscation of land was the New Zealand Settlement Act that "did grievous damage to Maori-Pakeha relationships, for it left Maori people with a deep felt sense of injustice that still rankleso "34 'The New Zealand Setitlement Act was based on the 1652 Cromvvellian Act of Settleinent for Ireland which left the Irish with an an too familiar legacy of bitterness and betrayal. While the Cromwellian Settlements that followed the 1641 rising are bitterly remembered, the confiscation of lands from Irish rebels and redistribution of that land to those who had helped crush the rebellion can be found in the preceding two centurieso 35 Both Mary I and Elizabeth I confiscated land with no pretence of it being anything else, while the Stuart Kings introduced an "era of confiscation by legal subtlety and subterfuge" where "natives [Irish] learnt with terror that law could be made in times of perfect peace, and without any provocation being given, a not less te1Tible instrument that the sword for rooting them out of the soiL"36 This quote could equally have been made about the legislation that surrounded the invasion of Parihaka in 1881, and just as with Parihaka, there are examples in Irish history of attempts to provoke rebelllon to attain land that the Crov✓n did not otherwise have any legal title too37

The confiscations made under the Tudor Queens and Stuart Kings built up resentment amongst the l1ish that was unleashed in the 1641 rising, which was later crushed by OFver Cromwell and lied to a new wave of confiscations. Prior to 1641, the "discoverers" dispossessed the Irish by demanding documented proof of title that was usually non-existent am.angst people used rn traditional clan ownership. When four-fifths of Connaught was held liable for seizure the Irish rose up, only to be effectively put downo 38 While it was the Colonial Government who dedared war in New Zeal.and the war was in part also caused by IVfaori unwillingness to part with any more of their land, which was falling more and more into the control of the Britisho

The New Zealand Settlement Act allowed for ilhe confiscation of the lands of "evilly disposed" natives who vvere held to be in rebellio11o 39 The previous premier Alfred Dornmett originally drew up the Bill. Dommett considered that to set off the cost of war "it would be only 'just and reasonable' . 0 0 to take all the Waikato and Taranaki lands best suited to English settlement, and bani.sh the rebellious

34 Supra note 22 at 167 0

35 Supra note 27 at 227 0

36 Supra note 5 at !So 37 Supra note 11 at 119 38 Supra note 5 at 19-20 39 Supra note 28 at 1480


tribes to 'the valleys and plains further up in the interior."'40 The Whitaker-Fox Ministry followed Dommett's model and passed the New Zealand Settlement Act into law on the basis that European settlements would overawe the Maori population and bring about peace.4' The Treaty of Waitangi was relied on to facilitate the confiscation. The Native minister argued that Article Three proclaimed Maori as British subjects and because they were British subjects, under English law their land was forfeit if they rebelled.42 However, other rights of English subjects such as the right to a fair trial were overlooked when the Suppression of Rebellion Act was passed. Furthermore, other parts of the Treaty of Waitangi, which guaranteed Maori their rangatiratanga and possession of their lands and which would have provided some protection for Maori, were ignored.

The preamble of the 1652 Act in Ireland stated that it aimed for the "suppression of the horrid rebellion" that had cost "much blood and treasure" and that "total reducement and settlement" of the nation was required. 43 The effect of the act was "to move the Irish Catholic gentry and landowners into the west of the country, resettling their lands with New Model soldiers", the "Hell or Connaught" policy.44 The same was seen in New Zealand. In Taranaki all were affected, even non-combatants, because everyone's land was taken; people were relocated, land tenure was changed, and a whole new social order was imposed. The losses were physical, cultural, and spiritual. As Sir William Martin, our first chief justice, noted when opposing confiscation in 1864:45

The example of Ireland may satisfy us how little is to be effected towards the quieting of a country by the confiscation of private land; ... how the claim of the dispossessed owner is remembered from generation to generation and how the brooding sense of wrong breaks out from time to time in fresh disturbance and crime.

The aims and the effects of the New Zealand Act were closely correlated to those of Ireland. The Native Minister claimed the Act's purpose was to suppress the "present rebellion" and acknowledged that the "proclamation of confiscation over a district would have a blanket effect so that the lands of 'Natives [who] have not been in rebellion' could also be confiscated, but he stressed they would be entitled to compensation through a Compensation Court."46 The Act stated that the "land of any tribe or section of a tribe 'or any considerable number thereof"' found to be in rebellion would be "eligible sites for settlements" and become "Crown land freed and discharged from all Title, Interest of Claim of any person whomsoever."47 The result was that many Maori who had not taken part in the War, or even worse, who had fought on the side of the government, could lose

40 Supra note 15 at 81. 41 Ibid 82. 42 Supra note 25 at 13 I. 43 Supra note 3 at 47. 44 Ibid 47-48. 45 Supra note 25 at 13. 46 Ibid 110. 47 Hutton and Riseborough, The Crowns Engagement, supra note 15, 82.


their lands. "Only the lands of those in rebellion would be confiscated, the lands of 'really loyal natives' would just be taken."48 There was a similar failure in Ireland to distinguish between loyal and rebel landholders. Criticism was made in Ireland during the reign of James I where no distinction was rnade betvveen loyal and rebel landowners when renewing dormant crown titles.49

The idea of paying soldiers with land to settle on and thus providing a buffer zone to conflict was new to Ireland in 1652.'0 The Ne1.;v Zealand Settlement Act provided for the same sort of rnilitary settlement and prospective soldiers were signing contracts with the government months before the Act was passed into faw. 51 The Irish experience had already informed the government that there ,vould ahvays be enough land, even if there ,Here not enough rebek Rebels could always be found. The Treaty of \Vaitangi did not provide any further protection. However, in both Irefand and New Zealand many of the would-be military settlers sold their land on to land speculators, sometimes at ridiculously low prices, leaving the land agents to go on and make an immense profit on sales.52

In rhe Settlemem Acts of 1652, ::tllowances were made for ~he return of confiscated land through compensc,tion courts. Irish rebels had to forfeit part of their estate and possibly be moved from their remaining liand to estates of equal value elsewhere in ''such other places -within the nation, as shall be Judged most consistent \Vith publitc safety" unless they proved as Protestants that they had "good affection" tovvards parliament and if Catholics that rhey had "constant good affection" during the rebellion. 53 This was not always an easy thing to prove. In New Zealand the lands of those "who had not themselves been in rebeHion or aided, assisted, or comforted those who had" or who had surrendered by the appropriate date or were "well disposed natives'" were only to be confiscated "as necessary for the security of the country, and then only against payment of compensation."54 This was a bitter blow for some Maori. The Ngamahanga hapu on the West Coast also found that despite them being supporters of the Crown during the war, most of their land had been promised to military settlers.55

An 1865 amendment even allowed for compensation to be paid in land rather than money. However, this had more to do with the state coffers being empty than any desire to return the land as, after all, the land returned should not have been "lands of equal value somewhere else, but their own ancestral territory."56

The compensation court set up by the 1863 Act was riddled vvith flaws, including claimants having to travel long distances to courts, inability to claim

48 Ibid< 49 Supra note l7 at 255< 50 Supra note 27 at 228. 51 Supra note 15 at81-82. 52 Supra note 27 at 229; supra note 28 at 148< 53 Supra note 32 at 29< 54 Supra note 15 at 82-84_ 55 Ibid 87. 56 Ibid<


unless they appeared in person and poor notification which was important as there was a six month limit within which to make daim.57 AH of the above mentioned factors helped facilitate the alienation of Maori land. Land that was returned was usually of poor quality compared to the land taken. In the Waikato 1,202, 172 acres of the most fertile land was confiscated while the lands of Maniapoto who were clearly defiant of the government found their less fertile lands untouched.58 The same pattern occurred in Ireland, where confiscations focused on the more fertile areas and the land that was returned was largely infertile.59 In New Zealand the hundreds of thousands of acres of land that was returned, was returned under individual title which meant that it was only lost again as it was easier to alienate.60

V. Compulsion to Sell and Linmited Land Rights

Only a sixth of the land alienated in the North Island between 1861 and 1891 was confiscated, the rest was the result of sale.61 Sale may jmply that the land was parted with willingly but a closer examination has shown that circumstantial pressures on Maori contributed to their haste to seH.

Similar pressures were also evident in some Irish land sales. During Stuart rule some Irish Catholics who suspected that they 'Would have their lands taken "were all too ·,;villing to part with these lands at bargain prices to Old Engiish speculators before they became forleit to the Crown ttu-ough the process of plantation."62 Ownership also passed from Irish Catholic hands because of a system of mortgages prevalent during the Stu:ut era particularly in Connacht where money was advanced to sorne needy Irish landholders who, failing to understlmd the commercial environment defaulted and found their land forfeit 63

Just as Irish lost their land to mmigage and sold up before it w.::.s taken, so some IVIaori tumbled into debt and were forced to sell their land as a result of the Native Land Court process which was both cosily and time consuming.64 The Native Land Comt not only individualized title making it easier to alienate, it also fragmented these individual titles. The Papakura Rule set out by Chief Judge Fenton in 1867 under the benevolent claim of trying to reconcile Maori custom with a daim of succession stated that an estate should be divided equally amongst the deceased children if they died intestate, resulting in extreme fragmentation of estates over the generations.65 The Gravelkind Act of the eighteenth century also forced Irish Catholics to divide their estates between their sons unless the eldest

57 Ibid 85, 58 Supra note 28 a! 149, 59 Supra note 5 at 19, 60 Supra note 28, 152, 61 Belich, Making Peoples· A History of the New Zealanders from Polynesian Settlement to the end of the

Nineteenth Century (1996) 259. 62 Supra note 17 at 412. 63 !bid, 64 Williams, Te Kooti Tango Whenua (1999) 189. 65 Ibid 179-18 L


son converted to Protestantism.66 The lesson was the same; do it our way, the British way, or subdivide your land into nothing of use. The irony in the Irish situation was that Gravelkind and Tanistry which provided for the division ofland between sons was old Irish law that was condemned during the reign of James I because it went against the "English principles of primogeniture and entailment. "67

The notorious Gregory Clause that operated during the 1840's Irish Famine barred a person access to the minimal poor relief that was available if they possessed more than a quarter acre of land. Further land was alienated this way as necessity induced people to sell what they otherwise would not have. The poor law guardians who were also landlords "insisted that the heads of starving families relinquish their holdings before being allowed to enter the workhouse, or kicked out those who were not technically destitute".68

Various penal laws further restricted Catholics by limiting their use of land including the ability to purchase, transfer and lease as well as to make a profit from their land. If a Protestant was able to prove that a Catholic farm had made more than the allowable margin of profit then they could obtain legal possession of the farm."69 Maori also found it hard to make a profit from their land as their collective title was not considered good security by banks and they were not loaned the money needed to develop their lands.70 In Ireland an eldest son could reduce his own father to a life tenant and assume ownership of his father's land ifhe converted to Protestantism.71 This was comparable to the ten owners system implemented by the Native Land Court which granted rights to those who conformed to the system (that is using the Land Court) while effectively destroying or at least minimizing-the rights of others who had interests in the land. Maori and Irish were left to either adopt their colonizer's worldview, or suffer as second-class citizens within the imposed system.

VI. Further Effects of Colonization

The alienation of land from the Irish and Maori had such a fundamental effect on the development of each culture that it is often easy to lose sight of the other impacts of British colonialism and further similarities between the Irish and Maori experience of colonization. Both Maori and Irish found themselves viewed as inferiors by their colonizers and they in fact seem to have existed on a similar plain on the hierarchy of the civilizations. For a dark skinned people the Maori were seen as "better blacks" and by some as descendants of the Aryan race just "as our own Anglo-Saxon race" was.72 By contrast, the Irish natives were seen as

66 Supra note 3 at 54. 67 Ibid 34. 68 Supra note 3 at 88-89. 69 Supra note 5 at 23. 70 Supra note 61 at 260. 71 Supra note 5 at 23. 72 Belich, 'Myth, Race and Identity in New Zealand' (1997) New Z.ealand Journal of History 31 (I), 18.


too barbarous and uncivilized to really be from the same stock as the English. Instead the Irish were more closely linked to other barbarians, the Tartars, Arabians and Scythians from the Black Sea area Even as late as the sixteenth century Fynes Mory son wrote that "some of the Irish are of the race of Scythians, coming into Spain and from thence into freland." 73 In short, the Maori were viewed as among the best of dark skinned peoples and Irish as among the worst of the fair-skinned ones. Either way, they were still seen as inferior to the British.

Running along with this observalion of the cultural inferiority was the desire to civilize the natives and in both comTi:ries Christianity was to do its part. The Christian church already existed in Ireland before Henry H invaded in 1171 under papal buH. However, the Pope considered the existing church an inferior version of Christianity ancl. in need of reform, although Henry never did fulfil the papal requirements or conquer the whole countryo74 In twelfth century Europe most invasions such as this one needed some sort of papal mandate because the influence of the church was so strorlg. l'viaori in contrast had never been introduced to Christianity, but the missionary and humanitarian movements of che early nineteenth century ensured that they soon were. The convertibility of the '"heathens" in the South Pacific brought the missionaries, who also preached capitalism and a more superior vvay of life, down in droves. 75

Until a population was civilized it was seen as irresponsible to allow them to vote because they could not understand so great a systemo Unfortunately when civilization meant abandoning one's own worldview and submitting tc another one, emancipation was often a long time coming and in the meantime llaws were passed to inspire people to convert to that civiJizationo Vlilllam Pitt as part of the Act of Union 1801 pushed for Catholic emancipadon, but King George III refused" Pitl resigned in protest leaving Catholic emancipation to wait until 1829 'When denying it might have caused civil war. 76 In l\[ew Ze2cland the Constitution Act 1852 required that property must be held individually to give rights to vote. This in effect disenfranchised Maori.77 This was of course unless they abandoned their traditional way of lifo and adopted the civilized worldviev.J of English common law property rights.

Both the Irish and f,/faori wished, at lez,st at some point, to be the n'Iastern of their ov✓n destiny, but were denied. Under section 71 of the New Zealand Consfrcutio11 A.ct 1852 Maori were entitled to have a separate system of government, yet lhey were repeatedly denied this right. In Ireland, the better part of a century was spent fighting for Horne Rule. Vv'hen Home Rule was 011 the verge of being achieved, the Protestant majority in the Ulster counties resisted, resulting in Ireland becoming self-governing only once it had been hTeparably divided into two parts ,md so it remains today.

The early colonial experiences of both ]Maori and Irish were that British

73 Supra note 11 at 126-127. 74 Supra note 3 at 15-18. 75 Supra note 61 at 128-129. 76 Elliot, British History Displayed: 1688-1950 (1955) 123. 168-169. 77 Supra note 13 at 64.


colonization did not mean much at all. In New Zealand Governor Gore Browne noted that while "English law has always prevailed in the English settlements, [it] remains a dead letter beyond them."78 Two legal systems also existed in Ireland for centuries before traditional Brehon laws vvere wiped out.79

What is interesting about comparing early English law in Ireland and l\Tew Zealand is that in Ireland it was used to promote segregation and in New Zealand, assimilation. The 1366 Statute of Kilkenny forbade Angfo--Irish from adopting aspects of the "Irish enemies" culture upon pain of confiscation of prope11y.80

New Zealand colonial policy, once it got past the fatal impact theory, or perhaps because of it, promoted the speedy assimilation of the Maori rnce into that of the British, Assimilation was to be ihe absorption of one culture into another.

The Native School system ,vas one means of facilitating this assimilation and one of the most effective v.rays of doing this was by alienating a people from their language. For a time Maori children were forbidden from speaking te reo at school and were punished for doing so. Yet, more importantly, some Maori supported this, wanting their children to learn English out of ''economic necessity", 81 The decline of the Gaelic language shares vvith te reo the unfortunate reality that in part it was kiHed by the schools and in part from the inside out The l'fational Educations Scheme of 1831 had a "fatal effect on the Irish tongue" and prominent Irish nationalists such as Daniel O'ConneH insisted that English be "the language of Irish nationalism", 82 In both cases however there v1ere other factors tl1at contributed to the decline of lhe indigenous languages which are not discussed here,

The Irish might not have had a Treaty of Waitangi but what they did have was a Treaty of Limerick made after the Battle of the Boyne where William HI defeated James IL The Treaty promised Catholics, rnany of whom had supported Jarnes H that they v1ould not have to tal<e the Oath of SL1premacy, i.n which they had to acknowledge the Church of England, and would only need to swear allegiance to •Nilliam as King. But fear of the Catholics meant that the Treaty vvas not kept" The Treaty also provided some protection from forfeiture to Catholic landowners, but the Dublin Parliament made up entirely of Protestants di.d not ratify the Treaty until 1697 and even then it was only as far "as may consist with safety and welfare of your Majesty's subjects of this kingdom".s4

Instead the "Treaty was shamefully broken" by Irish parliamentarians who had an interest in the "Cromwellian Settlements".85 H seems to be the case in both New Zealand and Ireland that Kings and Queens 1were very good at makiag Treaties, and their Governments were very good at breaking them.

78 Supra note 61 at 229. 79 Supra note 5 at 16. 80 Ibid. 81 Simon nnd Tuhiwai Smith (eds), A Civilising !vlission? Perceptions and Representations of the New Zealand

Native School System (2001) 146, 164. 82 Supra note 3 at 94. 83 Supra note 76 at 13. 84- Supra note 3 at 93. 85 Supra note 5 at 16.


With these extensive similarities between the Irish and Maori experiences of colonization, one would think that the Irish in nineteenth century New Zealand would be empathetic to the Maori struggle. Many renegades who fought with the Maori in the New Zealand Wars were Irish Catholics. However, perhaps over forty percent of the imperial troops were Irish Catholics and fought just as vigorously against Maori as "a key aspect of British Imperialism was persuading its victims to conquer each other."86

VII. Conclusion

The colonization of Ireland and New Zealand was separated by centuries, yet the methods used to alienate land from the existing inhabitants were disturbingly similar. The British colonizers benefited from the decentralized nature of the indigenous societies and at first slowly alienated land by claiming that it was empty or under utilized and therefore free for colonization. When resistance grew amongst the Maori and Irish, whether passive or aggressive, the response of the colonizers was to pass legislation that justified the confiscation of land from rebels and then using this land to pay off the costs of war and military. The New Zealand Loans Act, the Suppression of Rebellion Act and the New Zealand Settlement Act passed in 1863 all had their origin in legislation that was passed to deal with the Irish colonial experience and the so-called rebels in both countries found tracks of land alienated under this legislation. Even when land was not confiscated or had been returned, both the Irish and Maori found that further land was alienated through sale or mortgage. Many of these sales were not as voluntary as they should have been; instead they were responses to pressuring circumstances created by their colonizers. In both Ireland and New Zealand the indigenous peoples found their own customs manipulated by the British to fragment ownership of the land, which then facilitated land alienation.

While the alienation of land was of fundamental significance to the development of the Irish and Maori peoples, it is important to not lose sight of the fact that the alienation of land was only one of many colonial experiences that the Irish and Maori shared. Both were viewed by the British as inferior and in need of civilizing and were denied the right to vote or rule themselves, despite what the Treaty of Waitangi guaranteed. Both also watched their language decline to near extinction for a time. British colonization was a harsh and unforgiving process in both Ireland and New Zealand, where people lost their lands and identity and had it replaced with a legacy of bitterness.

86 Supra note 61 at 243.

Playing the Tiriti of Waitangi: The Drama of Maori and the Crown

Amy Mansfield

All the world's a stage And all the men and women merely players They have their exits and their entrances,

And one man in his time plays many parts ... 1

I. Introduction

1367

This essay will explore the relationship between Maori and the Crown in Aotearoa-New Zealand through the metaphor of the play. Specifically, I will consider the script of the play as provided by te Tiriti o Waitangi/the Treaty of Waitangi;2 the actors, their roles and the ways in which they have been characterised; the props they have used in the various scenes and acts of the play, which encompasses mechanisms and resources of a legal, institutional, financial, cultural and personal nature, and the scenery or backdrop against which the action takes place, namely the pre-colonial, colonial and post-colonial setting, both national and international. Finally, I will discuss the relationship in terms of an interpretation or production, considering how it might be directed, who will direct it and what that direction entails. I have chosen to present the essay this way because it strikes me that conceptualising the Maori-Crown relationship and its history through this metaphor affords some interesting insights into its nature and also invests its future with an element of imagination. Imagination is, in my opinion, an essential pre-requisite to reconfiguring and advancing the relationship.

I should point out that the decision to "tell" this essay in terms of a drama necessarily means it is a personal response and the register it employs is not perhaps in keeping with that of an archetypal academic essay. However, I am compelled to present it in this way not for lack of engaging with the literature on the subject, but because, in reading commentaries, I have consistently encountered the language, imagery and preoccupations of the dramatist such that, rather than imposing the metaphor on the relationship, it seemed to announce itself as an appropriate, indeed useful framework for understanding the subject.

Shakespeare As You Like It 2.7, 139-142. 2 Hereafter "the TOW". The Treaty of Waitangiffe Tiriti o Waitangi was an agreement signed between many

of the Maori chieftains and the British Crown in 1840.


IL The Script - The Treaty of VVaitangi/ Te Tiriti o -,Naitangi

V\Te begin with a consideration 0f the play's script the "TOVV". Those vvho say the Maori-Crown relationship should begin and end with the TOW usually rely on one of three approaches to the document These are the intentional, the textual and what I will call the interpretive approach.3 I will deal with the third in the final section of this essay. Let us look now al the first two approaches.

The imentiona1 approach is that, in engaging in Treaty jmispruclence, the primary task, indeed duty, is first to recover and then lo realise the intentions of its signatories. In order for the docament to mean anything, it requires a "meaner" or, in the case of TOW, tvvo. The. task of realising the original signatories' intentions is figured either as a moral duty to them, as tipuna (ancestors), or as the self-evident and necessary goal of any act of ii1terpretation. Tunks, for example, writing in relation to constitutional change in Aotearoa-Ne·v•/ Zealand, comments that such change may be regarded as an opportunity for Maori rather than a thrnat "if it gives effect to the exchange accepted by our tipuna in the Maori Treaty text."4 Implicit in the reference to tipuna here is the commitment to realising in any contemporary constitutional ::nrangements their intentions at the ti=ne of entering into the TO\V. It is a personal commitment the intentional approach is concerned with the person behind the document, with authorship and the author.

By contrast, the textual approach i8 concerned with the text itself. Not only is it not possible to recover inl:entions from the departed authors, but it would not be desirable even if it were. Human beings come and go; words live on. To aHow the TOW to speak to the present, all we need to do is read the document itself. The script says loud and clear that taonga (treasures), for exarople, were to be protected. Crown actions vkiich undermine that protection are therefore in breach of the TOW text One need not go beyond the words to find the guarantees on which to base a claim, but must only prove the thing in question falls 'Nithin the meaning of taonga. 5

Both the intentional and the textual approaches, however, are confounded by the duality of the TOVif. VVhether one considers the contemporary situation in Aotearoa-New Zealand from the point of view of intention recovery or textual imperatives, the co-authorship and bi-lingual nature of the document and its conditions of production dictate that ai,y modern reception of it will be complicated. The TOW script prescribed a relationship that it does not, perhaps cannot, now describe. The dialogue initially scripted vvas scrapped for a Crown

3 The ideas of intentionalism and textualism are discussed frequently in the United States in the context of their debate on the Constitution. See, for example, Lyons, "Constitutional Inteq.1retation and Original Meaning" 4 Social Philosophy and Policy 75.

4 Tunlcs "Mana Tiriti" in Trainor (ed) Republicanism in New Zealand (1996) 113, 118. 5 It is not, of course'., suggested that proving this is a simple n1atter.

Playing the Tiriti ofWaitangi 1369

monologue - can it now be revived in its original form? Might it not need some editing? Most importantly, if this is to be the case, who will be the author of the modem edition? Dawson puts the issue thus: "In situations of conflict over language, a key question concerning the use of sovereignty is, whose classifications are to be sanctioned by law? Who does the classifying?"6

The questions of authoritative classifications and of authorship commonly arise in the context of constitutional debate. Despite the history of TOW jurisprudence, there is an enduring belief in the relationship between authorship of constitutional texts and authorship of destiny. For this reason, Maori have been adamant that any constitutional changes should be the product of systematic, widespread and effective consultation.7 Durie, for example, suggests that two constitutional commissions should be established to frame the constitutional debate and give it some focus, culminating in a referendum which delivers a 75% majority on both the Maori and the general electoral rolls. 8

Wickliffe, also, advocates an extended dialogue before any decisions are made, specifically that "the Crown should fund a series of hui [meetings] whereby Maori can arrive at some consensus on the issue."9

A constitutional amendment which was drafted and passed after an extended dialogue between the TOW partners and which reflected the substance of that dialogue could be counted as truly co-authored text. Such an achievement would stand in juxtaposition to the TOW's own conditions of production, which, according to the accounts of Ranginui Walker,10 were anything but systematic. There is a real and justified possibility that the TOW drafter, Henry Williams, took an active part in the deception, the results of which we are still suffering, by mistranslating "sovereignty" as kawanatanga/govemance in Article I instead of "mana" or "rangatiratanga" - there should be no such opportunity for linguistic sleight-of-hand in a modem-day amendment, at least if the change is to have legitirnacy. 11 The process by which we prepare to "write the future" of our country should not be tainted, or we risk tainting the product with it.

The role of the Courts in fixing or transforming the relationship between the Maori and the Crown deserves some attention; for if the goal in changing the constitutional arrangements is a question of writing the future, as I have suggested, it must be acknowledged that, for better or worse, the authorship of the past has been largely a judicial undertaking. I referred to this above in terms of

6 Dawson, The Treaty ofWaitangi and the Control of Language Institute of Policy Studies, Wellington (2001). 7 Most recently, the argument has been made in relation to the proposal, to abolish the Privy Council and

establish an autochthonous Supreme Court. 8 Durie "A Framework for Considering Constitutional Change and the Position of Maori in Aotearoa" in James

(ed) Building the Constitution Institute of Policy Studies, Wellington (2000) 414,423. 9 Wickliffe "Multiculturalism and the Constitution-Lessons from Another Country: Fiji" in James (ed), supra

note 8, 244, 246. 10 Walker "The Treaty ofWaitangi as the Focus of Maori Protest" in Kawharn (ed) Waitangi: Maori and Pakeha

Perspectives of the Treaty ofWaitangi Oxford University Press, Auckland (1989) 263-78. 11 Tnnks has argued that constitutional change requires the consent of Maori if it is to have legitimacy "in the

eyes of Maori": Supra note 4, 118. I would add that legitimacy "in the eyes of Pakeha" also reqnires it.


a dialogue-become-monologue. The silencing of the second TOW voice, that of Maori, was done via judicial prnnouncen1ent The change in the mainstream view of the TOW as originally scripted from "a simple nuHity" 12 to "an agreement ... of the greatest constitutional importance to New Zealand" 13 has arguably been driven by the judiciary.

Is this a usurpation of authorship and, with it, authority? Perhaps, but thc;re is little doubt that the judiciary will continue to be charged with partial responsibility for telling and re-telling the Treaty tale. How might the limits of this function be set? What other factors can influence and facilitate the resurrection of the lost dialogue, both inside and outside the theatre of the Courtroom? These issues need to be explored, for the goings-on in the Courtroom - a play within the play - have ramifications not only for what we, as actors, do, but also for what we are.

:he judicial coinage that has received considerable attention, in pa1t for the way in which it may reconfigure decision-making processes, is that of the "principles of the Treaty". The change in focus from the TOW text to the "principles" has been characterised variously as a "cop-out" or a necessarily realistic and "practical" compromise in the contemporary political environment Their inclusion in the Treaty of Waitangi Bill 1974 attracted some scepticism. In a submission echoing the questions posed by Dawson,1' Nga Tamatoa asked: "If this Bill is, in fact, designed to provide for the observance and confirmation of the principles of the Treaty then we must ask \vhich, and whose principles?'""

That question gives rise to another: how malleable are the principles in comparison to the TOW script? As Kelsey notes, early references to the principles seemed to employ them interchangeably with rhe "spirit" or "provisions" or "text" of the TOVV, 16 Later, attempts v;ere made by the :Nevv Zealand 1\/faori Council to derive "implicit principles" from the explicit ones provided by the Articles of the TOW. 17 Such attempts were rejected by the Court of Appeal in favour of a set of principles which denied tino rangatir:1tanga and affirmed parliamentary sovereignty, clearly a derivation from the English text. On this basis, it is arguable that the principles can be manipulated in an act of interpretation into just about anything? If this is so, hovv principled is a "principles approach" in terms of textual or authorial fidelity? Are the principles of the Treaty "the antithesis of the Treaty itself"?18 Does the approach leave the actors in a position where, in the c1.bsence of the TOW script, everything must be improvised?

12 Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72, 78. J 3 New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513 (PC) 516, 14 See text accompanying note 6 supra. 15 Nga Tamatoa Submission on the Treaty ofWaitangi Bill (1974) [emphasis added]. 16 'Treaty Ideology in the 1980s" in Rogernomics and the Treaty of Waitangi (PhD Thesis, University of

Auckland. 1991), 720, 72L 17 New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641, 673 (HC and CA), 18 This is a formulation suggested by Kelsey, supra note 16 al 730.

Playing the Tiriti of Waitangi 1371

III. The Actors and the Directors - The Crown and Maori

If improvisation is the order of the day, it is not a process entirely without direction. The principles, however they are derived, have been held to set precedents of a sort, have accustomed the TOW actors to defining their roles in particular ways and to delivering particular kinds of performances. Principles derived from the English script, in accordance with the colonialist model around the world, have positioned the TOW actors in terms of a familiar dichotomy, in Wickliffe's words, in "a paradigm of dominance and subordination". 19 This is chiefly evident in the notion of sovereignty, in that it requires the subjection of Maori, placing them in a passive role in the hands of an active state. The dichotomous relationship may also be characterised as dominant-submissive or master-slave. Whatever the particular formulation, the function of it is to deny the autonomy of Maori - they are not there to act, but only to be acted upon, not to communicate or speak with authority, but to receive, not to define, but to be defined.

The difficulty with this conception of the TOW actors' relationship is that it makes the characters essential. It requires role consistency "from go to whoa" (whenever "whoa" is) and will not allow for character development. Even with the dispossession of land and language that has occurred since the signing, there is ample evidence to suggest that Maori will not be dispossessed of self. A character silenced into ultimate and enduring submission is telling of the tragedy of colonialism. But there is more to this tale than colonialism.

The "more" is supplied by the Maori text of the TOW. Where the English text posits a Crown monologue under a single director, the Maori text proposes a co-directed dialogue. It envisages that two directions may be taken concurrently, that two paths can be traversed. A single sovereign state, on this view, is not a foregone conclusion: "the capacity of states for shared sovereignty should not be discounted."20 Attempts to discount such a possibility are based, according to one commentator, on the "fiction of the state's indivisible, that is unshareable sovereignty. "21

The TOW, at least the Maori text, provides two directors for this play we are living through. But these are not, of course, the only sources of direction. Increasingly, international bodies and agreements are influencing, in some cases undermining, the authority of the national directors. The United Nations is one example of such a body, though its resolutions and instruments are not binding

19 Wickliffe, supra note 15, 244. 20 Durie, Te Mana, Te Kawanatanga - The Politics of Maori Self-Determination Oxford University Press,

Auckland, (1998) 12. 21 Supra note 4 at 131 [emphasis added].


until incorporated into domestic law. Further examples include the General Agreement on Tariffs and Trade and the World Trade Organisation, of which New Zealand is a member. 22

Sorne have suggested that the Privy Council also acts as an external "check" on the exercise of Crown power. This argument has been put by Maori specifically in opposition to the proposed abolition of the Privy Council. 23

Hmvever, there is some doubt as to its cogency: the Privy Council, as an institution of the British Crown, can only offer solutions which adjudicate on New Zealand domestic lavJ. Tunks, 1;vho is not convinced of the value of retaining the Privy Council, remarks that "[i]t is not and never ·,vas a fomm where the fundamental practices of the Crown and the legal system may be challenged by Maori."2' As a director, the Privy Council hails fron1 the same school as the New Zealand Courts and its method is similarly monocu1tmal: "[j]ustice can only be delivered [by the Privy Council] in terms of the Queen's justice". 25

Furthermore, continued appeals to the Privy Council compound "the age-old problem of Maori being forced to seek redress through the Court system of [their] colo1t1isers and :in doing so, giving rise to the incoffect assumption that (they] accept colonial mle."26 The Privy Council is no less susceptible than the New Zealand Courts to 1.he "law's function of legitimating itself, its makers and the capitalist values of the vVsstem world which form the bases of wbat is now called 'global culture' ."27

One international instrument that warrants particular attention is the Declaration on 1.he Rights of Indigenous Peoples, drafted by the United Nations VVorking Group on Indigenous Populations. As yet, the contents of che Declaration have not been finalised. Moreover, it is not clear what benefit becoming a signatory to the final version will bring to Nevv Zealand MaorL The queries raised in relation to it concern the status of the TOW script as against the international instrument. V\Thich will hold more sway? Could the international document be invoked to usurp the direction ordered by the TOW in the event of a dash? Mcst importantly, how wiH the Decfaxation address the issue of selfdetermination? 'Will Article III, one of those on which 0.greerneilt has so far not been reached, be written to affirm the right to "external" self-determination, which vvould accord with rnngatiratanga (chiefiy authority) and imply a secession from the post-colonial state in order to establish an independent indigenous nation-state? Or will it merely offer "i11ternal" self-determination within the framework of a unified state?

22 The interaction between these inten1ational bodies/agreements, national governments and indigenous peoples is a topic of some controversy. Hm;vever, it is not within the scope of this essay to do more than flag their ilnportance.

23 Numerous submissions on the Supreme Court Bill contained this argument. See, for example, tviaryann :fl1Iere Mangu Subniission to the Justice and Electoral Select Committee on the Supreme Court Bill 2003 (26 ]\/lay 2003).

24 Supra note 4 at 126. 25 Ibid 129. 26 Ibid 124. 27 Ibid 129.


If the latter is the case, which it likely win be, what real value will the Declaration have in terms of offering alternative direction to/for TOVV players? Would not internal self-determination :1mount to little more than is currently guaranteed under the TO'i/11? There is concern that an international instrument which is inadequate in its treatment of the question of self-determination will be used, despite or because of this inadequacy, as a substitute for rather than a.s a supplement to the TOVV. The perceived step forward of ratifying such an instrument would in fact be a step back: it would do internatiormlly what would be done at the national level by the introduction of a written constitution which entrenched TO"i-V discourse in its current state, namely in terms of "the principles".

IVo The Props - Propping Up the §tatus Quo?

The international bodies and instrumenls discussed above are not just sources of direction - they are props: mechanisms, tools or resources that can be invoked to advance the action of the play. Of course, the TO'IN players also have domestic props at their disposal. These might be political, personal, cultural, financial or governmental/institutional. One such institutional prop is the Waitangi Tribunal., established in 1975 to hear and make recommendations Dn claims arising from the TOW. Insofar as it addresses Ivi:aori griev:mces, tht; Waltangi Tribunal may be seen as a prop which facilitates action in Maori interests, in other words, which enables Maori to be lnstitutionally active. However, the non-binding nature of Vlaitangi Tiribunal recommendations dictates that the action contemplated is intrinsically limited, comrol1ed and subordinate lo the hvrocation of other institutional props. Its subordinate sta1us to iihat of the Courts parallels the status of JVfaori in the Crown conception of their relationship.

The degree to vvhich characters may advance the state of play, or play of the state, is at least partially dependent on the resources on whlch they can draw. v.re have seen one example of an institutional prop/resource already in the \Vaitangi Tribunal. The Courts also act as an institutional prop. As was notecl28 in relation to the Privy Council, hm,vever, while the Courts are theoretically culturally blind and avaiJab1e to everyone, there is some scepticism as to how or whether this works in practice. Obviously, financial matters serve as a barrier to access to the type of justice doled out by the judiciary. But the concerns about this institutional prop go beyond the financial; essentially they seek an acknowledgment that the institutional is inextricably bound up with the cultural. It follows from this admission that a people whose culture is not reflected in the institutions of the nation are less likely to utilise institutional resources to advance their interests. The flipside of this i:s suggested by Durie, 'J\lho writes that: 29

28 See text accompanying notes 23-28 supra. 29 Supra note 20 at 7.


Maori people could realise greater levels of economics self sufficiency, improved social well-being and less dependency on the State if they took advantage of their own distinctive social institutions such as iwi (tribe) and hapu (sub-tribe) and actively developed their own tribal resources.

I can offer a personal anecdote in support of this proposition. I am employed part-time as a reporter for the Select Committee News, an independent publication subscribed to by government departments and corporates. The job involves sitting in on select committee hearings and subsequently writing up a report on the contents of the oral submissions. Recently, I attended one of the hearings of the Justice and Electoral Committee on the Supreme Court Bill. At that hearing a submission was made by a kuia ( elder) from Northland, who, speaking in Maori with a translator, made explicit reference to her extreme discomfort in that forum. 30 Neither the venue nor the protocols of the committee were congruent with those of her culture. The attendance of the select committee at a hui (meeting) on the marae of her iwi , as per an invitation that had been extended but not taken up, would be more conducive to her people's participation in the debate, a debate which is widely recognised to be of some constitutional significance.

This woman's account alerted me to something I had noticed at earlier meetings - the politics of listening and of speaking. Some submitters were clearly more comfortable with and adept at handling this institutional prop/process than others. They were familiar with the scene, sometimes knew the committee members personally, were accompanied by legal counsel, were all costumed in suits. They spoke the same language, were listened to within a shared frame of reference, were reading, we might say, from the same script.

The select committee, of course, is part of a different branch of government from the Courts. But there is no reason why an acknowledgment that our institutions are culturally constructed and constituted should not apply equally to the legislative or, indeed, executive branches of government. To grant a broad application is essentially to say that in coming to a problem we are all coming from somewhere. It is to recognise that, while our responses and behaviour may not be set, we are always already on set, always acting against a backdrop, and against a series of previous backdrops.

V. The Scenery/Backdrop - Historicity

This is the recognition of ancestry and history. Making our entrance in the post-colonial act of the play, it is easy to forget the scenes and scenery of the precolonial and colonial past. Exemplary actors and directors guard against this possibility, tracking recurrent themes and motifs, noting consistency in order that the shape of contrasting development may be discerned and further envisaged.

30 Merereina Uruamo Submission to the Justice and Electoral Select Committee on the Supreme Court Bill 2003 (26 May 2003).


An informed actor knows she is formed by her environment and that of her forebears. In terms of the law, she knows that the common law and the institutions of government in New Zealand pre-date colonialism are not universal but are particular, are a product of that place, of whence the tauiwi came. She knows the methods, the ways and means of colonialism, the history of legislated dispossession of land and language, the confiscation of culture, the evolution of the struggle and of the contemporary mindset. She scrutinises that mindset, her own era and actions with the perspective of history. "If the move from a monarchy to a republic is perceived as a radical measure, then as an event it pales into insignificance alongside the shift from tribal governance to colonial rule."31

VI. Interpreting/Producing the Play -the "Interpretive Approach"

Knowing all this, the informed actor, like the directors who guide her, sees that post-colonialism is in some respects simply a state of mind, since the structures and attitudes which characterise colonisation endure the onset of the post-colonial era. In interpreting her post-colonial role; she sees that the development she can play out in one version of the play is of the subversion of traditional roles of both Maori and the Crown. It is an objection to and rejection of the way those roles have been formerly played. For Maori, as Durie notes, it is about "rejecting any notion of passive assimilation into national or international conglomerates".32 It requires a new approach to dispossession, namely that we ask ourselves what do we want to dispossess ourselves of? It is a re-visitation, a revision, a rewriting of the colonial monologue. It is both revisionist and pre-visionist - it is about having a different vision, imagining and realising an alternative.

The alternative is a co-production. It is both the product of imagination and productive of imagination. In that respect it is self-generating rather than selfdestructive. It is not just a hybrid of tauiwi and Maori cultures, but is something transformed. It is what the land inspires in and requires of us. It is our response to the privilege we share of living in this Pacific jewel, on this emerald set in sapphire.

There is nothing to suggest co-production is impossible. The process has been undertaken in Fiji, and a variety of it is being contemplated by Scotland. Wickliffe suggests that "all we need to begin the process is goodwill and commitment."33 As I suggested at the beginning of this paper, I would suggest imagination is also a necessary pre-requisite. Imagination can allow us to be critical of our existing script, roles and props, in order to overhaul and reinvent them. Some of our institutional props, through wear and tear, clearly need to be

31 Supra note 8. 32 Supra note 20 at 4. 33 Supra note 9 at 246.


replaced or upgraded. The Waitangi Tribunal, for example, needs more bite. Our script needs the reinvigoration that comes with meaningful dialogue. The historical theme of dominance and subordination needs to be transcended by one of partnership which is more than rhetorical: it must be at once political, legal and spiritual. The players need to acknowledge that they are both in supporting roles, have the courage to trust one another and act "out of their skin".

VII. Conclusion

The aim of this essay has been to present the relationship between Maori and the Crown through the metaphor of the play. Through the use of the categories of script, actors, directors, props and backdrop, I have tried to organise and critique the various aspects of that relationship. These are not, of course, the only categories. It occurs to me, for example, that the role of ushers in guiding the audience to a particular view of the play has parallels with the task of educators in nurturing one take or another on the Maori-Crown relationship and the history of Aotearoa-New Zealand. The politics of listening and hearing, which I mentioned in relation to select committees, go hand-in-hand with the politics of seeing. What we see depends on where we are seated, or where we stand, if we can't afford a seat. It also depends on the light in which the action is presented to us - the function of lighting and sound in the TOW play offer some further interesting parallels. In the final analysis, wearing our various hats, we are at once the directors, the actors, the script, the props, the backdrop, the audience, the ushers and the technicians of this, our play, our country. Now that it is our tum to play our parts, the question remaining is, how will we make our scene?

1377

Affirmative Action in the United States

Grutter v Bollinger 123 S Ct 2325 (2003)

The 5-4 decision of the Supreme Court in Grutter v Bollinger1 confirmed the constitutionality of some forms of affirmative action in the United States, although there are indications that this may change in the future.

For twenty-five years Regents of the University of California v Bakke2 has been the first point of reference in American discussions of the constitutionality of affirmative action. The Supreme Court has finally returned to the issue in Bakke: whether universities can consider race and ethnicity when granting admissions. Although the decisions in both cases are confined to public universities, it is widely felt that Grutter's impact will extend, as did Bakke's, to all public race-conscious recruitment programmes and even to similar private programmes.

The petitioner, Barbara Grutter, applied for admission to the prestigious Law School at the University of Michigan, Ann Arbor. She was eventually refused a place. The admissions programme involved a policy of ensuring a 'critical mass' of minority students. Grutter sued the Law School and the University claiming a breach of her rights under the Equal Protection Clause of the Fourteenth Amendment3 and under various statutory provisions which provided coextensive protection for that Clause. The Clause reads:

No State shall ... deny to any person within its jurisdiction the equal protection of the laws.

Notwithstanding its wording, the Clause, in conjunction with the Due Process Clause of the Fifth Amendment, is now regarded as imposing the same obligations on federal, state and local authorities.4

As is typical with American constitutional law, some outline of curial jargon is necessary before Grutter can be appreciated. Governmental distinctions based on race or ethnicity do not automatically contravene the Equal Protection Clause. They, along with distinctions based on religion, are considered inherently suspect and cause the courts to apply strict scrutiny to the distinction at issue. To pass strict scrutiny, the government must first indicate a compelling governmental interest, and secondly demonstrate that the measure in question is narrowly tailored to advance that interest. It makes no difference that the racial distinction

1 123 S Ct 2325 (2003) ["Grutter"]. 2 438 US 265 (1978) ["Bakke"]. 3 Hereafter the "Clause". 4 Bolling v Sharpe 347 US 497 (1954); Adarand Contractors v Pena 515 US 200 (1995).


in question is seen as "benign" rather than "malign";5 although liberal justices have often advocated a lower standard for "benign" distinctions.6 By comparison, quasi-suspect distinctions based on gender or legitimacy attracts a more relaxed intermediate level of scrutiny (a non-compelling government interest will suffice), while the judicial test for the constitutionality of all other types of distinction is only a rational basis test.

Bakke was the obvious applicable authority for considering equal protection issues in university admission cases. The decision of Justice Powell is regarded as controlling because the other justices split into two blocks of four. The thrust of his argument follows.

Universities cannot have a compelling interest in remedying the effects of past discrimination because public authorities other than universities are better able to address that interest. Nevertheless, universities do have a compelling interest in attaining a diverse student body. However, the admissions programme at issue was not narrowly tailored because it involved two separate programmes; non-minority students could not compete for sixteen seats set aside for the special admissions programme. What is permissible is for a university to consider race as one of many factors of diversity that an applicant can bring to a university. Under such a scheme:7

The applicant who loses out on the last available seat to another candidate receiving a 'plus' in the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right colour or had the wrong surname. It would mean only that his combined qualifications, which may include similar nonobjective factors, did not outweigh those of the other applicant. His qualification would have been weighed fairly and competitively, and he would have no basis to complain of unequal treatment under the Fourteenth Amendment.

Therefore, the admissions programme in Bakke was unconstitutional but the University was not completely barred from considering the race of applicants.

The petitioner in Grutter argued that Bakke was wrong in allowing universities to consider race. In the alternative, she argued that the respondent's programme violated the Bakke standards.

Justice O'Connor wrote the opinion of the Court. She stated the first issue was whether obtaining 'the educational benefits that flow from a diverse student body' constituted a compelling state interest. The Court began by deferring to the judgment of the respondents and their amici that diversity is essential to their educational missions. The Court continued:8

5 Bakke, supra note 2, 289-291 (1978); Adarand Contractors v Pena, supra note 4, 213-227. 6 Bakke, supra note 2, 355-362 per Brennan, White, Marshall, and Blackman JJ (concurring in part and

dissenting in part); Adarand Contractors v Pena, supra note 4, 243-253 per Stevens J (dissenting). 7 Bakke, supra note 2 at 318. 8 123 S Ct 2325, 2339 (2003) [Internal citations omitted].

Case Notes 1379

As part of its goal of "assembling a class that is both exceptionally academically qualified and broadly diverse" the Law School seeks to "enrol a 'critical mass' of minority students." The Law School's interest is not simply "to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin." That would amount to an outright racial balancing, which is patently unconstitutional ("Racial balance is not to be achieved for its own sake"). Rather, the Law School"s concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce.

The respondents viewed a "critical mass" as a meaningful representation sufficient to prevent the isolation of minority students.

The benefi"i:s of diversity cited by the court were cross-cultural understanding, breaking down racial stereotypes, and livelier and more interesting classroom discussion. The respondent's amici emphasized that the benefits vvere not theoretical but real. Business and military leaders stressed the importance of employing individuals who, in addition to being wen qualified, reflected a variety of backgrounds. The Court agreed that "it requires only a small step from this analysis to conclude that our country's other most selective institutions must remain both diverse and selective."9 Given the importance of education in imparting civic responsibility and training leaders, the Court found that the respondents had demonstrated a compelling interest

On the issue of narrow tailoring, the Court cited Justice Powell's view that a University can only consider rnce or ethnicity as a 'plus' and must nm insulate individuals from comparison with all other applicants; "individualized consideration demands that race be used in a flexible, non-mechanical way." 10

Quotas or separate admissions programmes are thus unconstitutional. The fact that the Law School's programme was not labelled a quota was not

decisive. Strict scrutiny required that the Court examine the programme to see if it operated as a de facto quota system. Using the definition of 'quota' as "a program in which a certain fixed number or proportion of opportunities are reserved exclusively for certain minority groups" 11 the Court concluded that paying attention to the numbers of minority students to be admitted did not transform the supposedly flexible admissions programme into a quota system. The Comt found that the program adequately allowed for non-racial aspects of diversity to be considered, and consequently there was sufficient individualised consideration for the narrow tailoring requirement to be satisfied. Such individualised consideration meant "the Law School's race-conscious admissions program does not unduly harm non-minority applicants." 12

However, the Court went on to state that a "core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination

9 Ibid 2340. JO Ibid 2342. 11 Ibid, quoting Richmond v J.A. Croson Co, 488 US 469,496 (1989) [internal quotation marks omitted]. 12 Ibid 2346.


based on race".' 3 Thus, all race-conscious programmes must have a logical encl point The Court accepted the Law School's anticipation that a time would come when race would not be used in admission. The Court stated: "We expect that 25 years from novv, the use of racial preferences will no longer be necessary to further the interest approved ioday." 14

The Law School's programme was thus upheld. Because the respondents only chose to justify their policy on the grounds of diversity, the Court did nor 1nention when, if ever, remedying either the effects of past state-sanctioned discrimination m ongoing racial inequality would constitute a compelling interest.

Chief Justice Rehnquist authored the leading dissenting opinion. He examined the respondent's admission patterns of recent years and conduded: 15

[T]he Law School has managed its admissions program, not to achieve a 'critical mass', but ,o extend offers of admission to members of selected minority groups in proportion to Lheir statistical representation in the applicant pool. But this is precisely the type of racial balancing th,,t the Court itself calls 'patently unconstitutional'.

By contrast, Justice O'Connor, writing for the Court, had adopted a different approach of simply looking at the admissions process to see if it involved genuine individualised consideration. The two justices simply looked a1 different things il1 apply strict scrntiny.

Chief Justice Rehnquist guardeciiy chose to ba2e his dissenting 0pinion on a rejection of the Court's opinion on linflited grounds. He did not addtess whether the diversity rationale can constitute a compelling interest. Justice Kennedy by contrast ezplicitly accep~ed the Bi::ikke precedent, but still condemned the Court's application of strict scrutiny. He said the Court accepted the Tespondents' arguments "in a review nothing short of perfunctory". 16 He argued thai "the concept of critical mass is a delusion used by the Law School to mask its attempt to make race an automatic factor ln nmst instances and to achieve numerical goals indistinguishable from quotas." 17 Of particular concern to Kennedy J was the narrow fluctuation in the percentages of minority applicants adrfiiUed over recent years.

Justices Scalia and Thoma:s also dissented, conforming to their previously :nticulated position that the Constitution abhors all classifications based on race. 18

Justice Thom;1s vvas also concerned that the admissions programme 'Was

conditioned by the Law School's desire to retain its ,;tatus as an elite institution rather than by genuine concerns for diversity.

13 Ibid, quoting from Palmore v Sidoti 466 US 429 (1984), 432. 14 Ibid 2347, 15 Ibid 2369. 16 Ibid 237L 17 Ibid. 13 See Ada.rand Contractors Inc v Pena 515 US 200 (1995).

Case Notes 1381

A companion case delivered on the same day, Gratz v Bollinger19 applied Grutter to an undergraduate admissions programme of the same University. The programme differed from that in Grutter, involving a points system in which applicants were given twenty points by virtue of their being members of an underrepresented racial or ethnic minority. This was about one fifth the points usually required to gain admission. Chief Justice Rehnquist, writing for the majority of six, concluded that the narrow tailoring requirement was not satisfied and declared the programme unconstitutional. The automatic points-allocation was not flexible enough to allow for individualised consideration. The points system could still operate to vary the number of minority applicants admitted, but was nevertheless considered too close to a fixed quota. Gratz makes clear that universities cannot ascribe a preordained value to race. Justices Souter and Ginsburg dissented, stressing that because the automatic twenty point allocation could be overcome by other factors, there was not an impermissible racial quota. Souter and Ginsbury JJ also approved the clarity and openness of the University's consideration of race, and still championed the view that benign racial distinctions should be treated more leniently by the courts than malign distinctions. Justice Stevens dissented on issues of standing.

Consequently, the constitutionality of admissions programmes is currently determined by the fine line between the programmes at issue in Gratz and Grutter. The key determinants of unconstitutionality will be whether a raceconscious scheme operates so as to set aside a fixed percentage of places for a minority group, and whether minority candidates receive an automatic advantage over non-minority candidates. If the reviewing court adopts O'Connor J's approach, the optimal approach for a university is to demonstrate a process that maximises individualised consideration. But the Kennedy/Rehnquist perspective seems to indicate that the most important consideration for a university is to avoid consistency in its approaches to minority admissions. However, because even O'Connor J's approach shows the judiciary will look closely to seek whether a programme genuinely gives individualised consideration to applicants, the case was interpreted by some as restricting the ambit of affirmative action.

The deduction seems injudicious once it is acceptable that the Court's deference to a Law School's educational goals make strict scrutiny something of a misnomer. The Court presumed the respondents had acted in good faith when emphasising the importance of diversity; surely this does not represent the highest level of judicial review that strict scrutiny should entail. Both the compelling interest and the narrow tailoring requirements seemed compromised. If a university can state the importance of diversity without challenge, then the judiciary can hardly then find that the interest is not compelling. Similarly, if a university stresses the fundamental importance of diversity, the judiciary will presumably accept a wide variety of actions as narrowly tailored to that interest.

19 123 S Ct 2411 (2003).


The main problem with Grutter concerns the Court's view that a fixed quota system breaches the Equal Protection Clause, whereas the use of a critical mass standard does not. Justice Powell's diversity rationale in Bakke was a deliberate distancing from quota systems. But by linking diversity to attaining a critical mass, the Court seems to have come full circle. If a university insists on developing a critical mass of minority students, what is this other than a quota with ill-defined boundaries? Just as seats were set aside for minorities in the Bakke program, the use of a critical mass standard will mean that some seats will not be contested by non-minorities. The only difference is that the number of seats in the Bakke programme was specified, whereas in the Grutter programme, it was left uncertain. This indefiniteness may operate to prevent blatant instances of poorly qualified candidates being admitted on the grounds of race; but if race was not meant to compromise other standards of merit, there would be no need to consider it. Thus, the practice that the Court condones does not seem to be a different kind of practice from a fixed quota system. Admission decisions under a critical mass standard still depend on race, although this may not be as decisive a factor as under an unambiguous quota.

With a hard-and-fast quota, one can at least establish exactly how many successful applicants benefit from race-conscious policies. Similarly, the Gratz programme specifically identified how influential the race factor was. The Court's rejection of the Gratz programme sends a message that subjective assessment of diversity is preferable. This may defeat the purpose of limiting the use of race to the Court's specification. Undisclosed views of the desirability of structuring universities along racial lines may prevail.

Given those problems, it is hard to read O'Connor J's judgment without questioning the conclusion that the programme does not amount to unequal treatment on grounds of race. Whatever justification there is for doing so, under the Grutter programme, race is assessed as an aspect of an appellant's merit. This has been allowed to happen because the Supreme Court's strict scrutiny approach, unlike the usual trend in New Zealand rights jurisprudence,20 does not explicitly involve assessing the extent of the right in question and balancing it against the countervailing governmental interest. Grutter shows that there is nothing in "strict scrutiny" that actually prevents unambiguous racial discrimination; all that is required is a compelling interest that is narrowly tailored so as to avoid unnecessary discrimination.

If the individual rights of the petitioner were at issue, then courts must test every aspect of the relevant governmental interests against the importance of equal protection in order for it to be an effective constitutional guarantee. Even if attaining diversity is as important as the University claimed, the Court should have gone further and articulated reasons why this permitted a deviation from

20 See Ministry of Transport v Noort [1992] 3 NZLR 260, 274-275 per Cooke P, 278-280 per Richardson J, 296-297 per Ganlt J; Moonen v Film and Literature Board of Review [2000] 2 NZLR 9, [15] - [18]; Rishworth et al, The New Zealand Bill of Rights (2003) Auckland, Oxford University Press, 55, 137-141, 172-174.

Case Notes 1383

equal protection. The lesson for the New Zealand courts is that the adoption of catch phrases like 'strict scrutiny' in rights jurisprudence has the potential to cause judicial reasoning to veer from the actual question of the extent of individual rights.

Grutter, like Bakke, shows the Court purporting to explain away a problem by saying that there is equal protection even when race-conscious policies operate. The programmes that they condone can be reduced to the same essential attributes as the programmes that they condemn. Ultimately, it seems a truism that race-conscious policies treat people unequally on the grounds of race.

In Grutter the Court seemed aware of this problem when it concluded that the programme did not 'unduly harm non-minority applicants' .21 Although 'unduly' is often used as a mere flourish, its use seems to indicate that the Court views the Grutter programme as an acceptable restriction on the Equal Protection Clause.

This unequal treatment may well be justified, but it is improper for judges to deem it not to be unequal treatment. One may of course sympathize with the Court, because the alternative approach is a straight moral argument over when it is justifiable to treat people unequally on the grounds of race. This argument becomes even more problematic when the rationale for the limitation on equal protection is not remedying past discrimination but achieving diversity. This means that the deviation from unequal protection is not offset against some obvious harm. Such an argument is hardly of a judicial character. Thus it seems safer to prefer the New Zealand situation where issues of affirmative action are largely placed outside of judges' hands.

The obvious benefit from Grutter is that lower courts now have a much clearer authority that Bakke, there having previously been uncertainty as to whether Justice Powell's diversity rationale was binding. But neither Grutter, nor Gratz, nor even Bakke give any substantial indication as to how much reliance can be placed on race during an individualised consideration of an applicant. Grutter also gives little indication of when public authorities can use raceconscious measures for reasons other than educational diversity.

Grutter is best understood as confirming the constitutionality of affirmative action while slightly altering its ambit. What will certainly change is the jargon; the "meaningful individualised review" of race is likely to replace "single admission track" as the paradigmatic example of what the Equal Protection Clause allows; and 'plus factors' will likely be replaced by talk of a 'critical mass' in future cases. Justice Thomas branded this last appellation a 'faddish slogan of the cognoscenti' .22 He certainly has a point in decrying how these buzz-words dominate Supreme Court jurisprudence, although one does get the feeling that "faddish slogan of the cognoscenti" is itself doomed to become a faddish slogan of the cognoscenti.

21 Supra note 8, 2346. 22 Ibid 2350.


Justice Thomas's condemnation derives from his belief that the ambit of the Equal Protection Clause is determined by a race-blind principle.23 Proponents of affirmative action also base their arguments on principles underlying the Clause. They argue that the principle or racial equality means that all governments have a duty to eliminate socio-economic inequality between races and to actively champion the interests of vulnerable minorities.

The Supreme Court's continuing insistence that all racial classifications are subject to the highest possible standard of review suggests that it is strongly in favour of the race-blind principle. However, as Bakke and Grutter show, this principle is not all-persuasive. The reference to the limited duration of the programme in Grutter links affirmative action to addressing the preconditions for race-blind equality, and says that achieving these preconditions is itself an aspect of equality. 24 But the actual reasons for infringing the race-blind principle in Grutter are not explicitly linked to addressing socio-economic inequality. Instead, the infringements are justified by the importance of diversity in education.

Perhaps this limitation on the race-blind principle is preferable to limitations directly addressing socio-economic inequality, which raises a vast array of difficulties, the most troubling being the ability of the judiciary to decide what constitutes a minority and what minorities deserve special treatment. Nevertheless, the effect is what the proponents of affirmative action wanted (they did after all, welcome Grutter) because it is now legitimate to build and sustain a critical mass of minorities.

This is not to say that the Court adopted an unpopular rationale. A record 107 amici briefs were filed in Grutter, and those in support of the respondents largely championed the diversity rationale rather than the need to address inequality.

Aside from the rather cryptic expectation that race-conscious policies will be unnecessary in twenty five years, there are two other reasons why the future of affirmative action is decidedly uncertain.

First, several states (including Florida and California) have already banned their universities from considering race at all, thus preventing Grutter from having any direct impact.

The second reason concerns the composition of the Supreme Court. A prospective federal judge's view on the constitutionality of affirmative action is an important issue when vacancies are filled, although it rates behind abortion and the exclusion of illegally obtained evidence as a litmus test of constitutional philosophy. President Bush is certainly more likely than a Democratic President to appoint an ardent opponent of affirmative action in the mould of Scalia and Thomas JJ.

23 See Harlan J's canonical dissent in Plessy v Ferguson 163 US 537,559 (1896). 24 Supra note 8, 2346.

Case Notes 1385

Some thought that O'Connor J's opinion was a valedictory, but she defied predictions by not resigning at the end of the Court's term. If we take Kennedy J as a supporter and Rehnquist CJ as an opponent of affirmative action, there would need to be a switch of two votes to prohibit affirmative action altogether. The odds seem. to be against this happening in the next few years: the Justices continue to show no sign of resigning; Rehnquist CJ is tipped to be among the first of the current Court to retire; Democratic Congressmen are treating judicial appointments as their area of most active hostility to the Bush administration; and Bush himself could conceivably backtrack from his race-blind position (as he did by welcoming the Grutter decision) and appoint a pro-affirmative action justice as part of his policy of courting the decisive Hispanic vote.

Nevertheless, the future of constitutionality of affirmative action may be decided by the next few Supreme Court nominations. These are likely to be hotly contested, considering how Grutter and Lawrence v Texas,25 a case decided in the same week extending constitutional protection to homosexual sex between two consenting adults, have brought the Supreme Court back to the centre of the American cultural wars.

Hamish Oakley BA/LLB (Hons)

25 123 S Ct 2472 (2003).

1386

The Demise of Consideration for Contract Variations

Antons Trawling Co Ltd v Smith [2003] 2 NZLR 23 (CA)

Introduction

In the last issue of this journal the present author argued that consideration should still be required for the variation of contracts. 1 This Court of Appeal decision confirms that the New Zealand courts will follow the lead set by the controversial English case Williams v Roffey Brothers & Nicholls (Contractors) Ltd2 in watering down the traditional requirement of consideration in contract variation cases. The New Zealand Court of Appeal, in responding to academic criticism of that decision, in Antons Trawling Co Ltd v Smith 3 actually go further and purport to do away with the requirement of consideration altogether. The decision is also noteworthy for its more general approach to the function of consideration. If this approach is to be applied more widely, then it could have much broader consequences for contract law. It is submitted that the decision is ill-considered and inconsistent with traditional contract doctrine.

Background Law4

Consideration is one of the elements required for the formation of a legally enforceable contract. Consideration will normally be found in either the conferment of a benefit on the other party or the suffering of a detriment. To be sufficient in law it must be of some economic value and be something that is not already due. As consideration is required at the time of formation, which in the case of bilateral contracts is before performance is due, it usually takes the form of an exchange of promises each of which is valuable as it entails the assumption of legal obligations.5 The courts have dealt with variations of contract by applying formation principles, and have therefore required that consideration again be provided by both parties before a variation will be enforced. The nonenforcement of variations unsupported by consideration is expressed in two legal rules: the pre-existing duty rule and the part payment of a debt rule.

The pre-existing duty rule holds that a repeated promise to do something that you are already contractually bound to do will not amount to consideration for the

1 Ulyatt, "Should Consideration be Required for the Variation of Contracts?" (2002) 9 Auckland U L Rev 883. 2 [1991] 1 QB 1 (CA) ["Williams v Roffey"]. 3 [2003] 2 NZLR 23 (CA) ["Antons Trawling"]. 4 For a more detailed discussion of the background law see Ulyatt, supra note 1, 884-889. 5 See generally, Coote "The Essence of Contract" (1988) 1 JCL 91.

Case Notes 1387

purpose of rendering a variation enforceable. The traditional authority for this proposition is Stilk v Myrick,6 which involved a sea captain's promise of extra wages to non-deserting crew. A related rule is the part payment of a debt rule which provides that payment of part of a sum owed will not satisfy a whole debt unless accompanied by an extra chattel. The traditional authorities for this proposition are Pinnel's Case7 and Foakes v Beer.8 While the two rules developed separately, they can be considered to express a broader rule that a gratuitous offer to reduce or increase one party's obligations will be unenforceable for want of consideration.

These rules were long considered problematic in variation cases because there often seemed to be factual benefits that the doctrine of consideration did not recognize. The decision in Williams v Roffey gave legal effect to those concerns. The English Court of Appeal required a much lower standard of only "factual" or "practical" benefit to constitute consideration despite the traditional view that such benefits are worthless in law. The case involved a promise of extra payment by a head-contractor to a carpenter sub-contractor who had become unable or unwilling to finish its carpentry work, in return for timely completion of the required work. In enforcing the promise, the English Court of Appeal asserted that it was not overruling Stilk v Myrick, but rather subjecting it to a process of refinement.9 This assertion has been criticised elsewhere. 10 These criticisms need not be repeated here except to say that it is undeniable that Williams v Roffey greatly undermined the pre-existing duty rule.

The Facts

The fisheries legislation provided for permanent property rights in the fisheries resource. For the purposes of this note a simplified explanation of the regime that the legislation created will suffice. The legislation allows for the holding of quota defined as a percentage of the total allowable commercial catch ("TACC") in each quota management area. Effectively, the TACC will be the maximum amount of fish that can be caught on an ongoing basis without permanently depleting the resource. When the TACC is increased in respect of a species of fish in an area, a quota holder's entitlement automatically increases. However, a period of research would usually be required in order to prove that sufficient quantities of fish exist and that fishing is sustainable before more than a nominal TACC would be set, and this could involve substantial effort.

6 (1809) 2 Camp 317; 170 ER 1168. 7 (1602) 5 Co Rep 117a; 77ER 237. 8 (1884) 9 AC 605. 9 Supra uote 2, 16. 10 See for example, Coote, "Consideration and Benefit in Fact and Law" (1990) 3 JCL 23, 25-26; Chen-Wishart,

"Consideration: Practical Benefit and the Emperor's New Clothes" in Beatson and Friedmann (eds) Good Faith and Fault in Contract Law (1995) 123; and Ulyatt, supra note 1, 887.


In 1989/90 the Antons group of companies ("Antons") had acquired 126 tonnes of Orange Roughy quota for an area known as Area 1. Antons had previously participated in a MAF research programme to evaluate the potential for commercial fisheries in the area. Between 1986 and 1993 a total of just 27 tonnes of Orange Roughy had been caught. The plaintiff Mr Smith ("Smith"), an experienced fisherman, joined Antons in April 1994 as the skipper of one of its vessels. Smith fished for Antons under the Auckland Share of Catch Agreement ("SOC Agreement"), which provided that the crew would be paid a percentage of the value of each catch (after specified cost deductions). Fishermen working under a SOC agreement would tend to earn more by fishing established areas as compared with unproven fisheries. Thus, the SOC Agreement also provided for the agreement of fixed daily rates to be paid when exploratory fishing is undertaken. Prior to the first voyage Smith asked the Managing Director of Antons about daily rates paid while undertaking exploratory fishing, and was told that it was not Antons's policy to pay daily rates. Thus, the percentage formula always applied. The policy also provided that, inter alia, the areas to be fished would be at the direction of Antons.

When Smith joined in April 1994 he enjoyed immediate and unheralded success in Area 1. After a catch of 96 tonnes at a site known as the Mercury Knoll, Smith met with the Managing Director of Antons on June 8 to discuss the involvement of MAF in future fishing of Area 1 in order to carry out the research needed to have the TACC, and thereby Antons's quota, increased. During the discussions Antons told Smith that if he undertook exploratory fishing and proved a commercial fishery then Antons would transfer to him 10% of any additional quota they obtained as a result. This agreement was the subject of the proceedings.

Smith then began to undertake the exploratory fishing programme, and results through to June 1995 were very promising. On 1 October 1995 an unforeseeable change in MAF policy occurred involving the declaration of a major increase in TACC. This increase was not the result of intense study and sustained catch histories but rather was attributable to a special statutory arrangement known as the Adaptive Management Programme ("AMP"). The TACC for Orange Roughy in Area 1 was increased from 190 tonnes to 1190 tonnes. Antons, as the owner of approximately 66% of Area 1 quota, received 663 tonnes of that increase. The purpose of the AMP was to allow commercial fishing to be carried out subject to strict research requirements in areas where it had been shown that there were fish but where a commercial fishery had not yet been conclusively established.

Smith continued to fish in accordance with the increased quota until 25 August 1996 when he leftAntons's employment. In 1995/96 and 1996/97 close to the entire quota was caught in Area 1 but catches thereafter dramatically declined. It was realised that the 1000 tonne allowance for the Mercury Knoll area was wholly unrealistic. This eventually led to a 30 tonne catch limit being imposed for the Mercury Knoll area. However, as a result of the AMP the rest of

Case Notes 1389

Area 1 was more thoroughly explored and commercial fisheries were established. The TACC for Area 1 was increased to 1400 tonnes in 2001/02. Smith claimed to be entitled to 10% of the approximately 800 tonne overall increase in Antons' s Area 1 quota.

The Decision in the High Court

At trial, 11 Rodney Hansen J found the existence of a contract upon the terms that if Smith proved a commercial fishery then he would receive 10% of any additional quota transferred to Antons. 12 The proving of a commercial fishery was treated as a threshold issue, which once satisfied entitled Smith to 10% of all additional quota allocated to Antons. In this sense no causal link was required between the proving of the commercial fishery and the transferring of quota. Indeed Rodney Hansen J seemed to hold that the terms of the contract indicated that the granting of quota was to be the "key determinant" of whether a commercial fishery had been proved. 13 Thus, the issuing of additional quota was expressly treated as prima facie evidence that a commercial fishery existed. 14

Finally, His Honour rejected the argument that quota granted on the condition of compliance with an AMP does not amount to a commercial fishery. 15 Having concluded that a commercial fishery now existed, Rodney Hansen J held that it had been proved by Smith because his efforts had led to a more extensive exploration of Area 1. 16 Accordingly, Smith was held to be entitled to 80 tonnes. Notwithstanding the Court of Appeal's later claim to be in agreement with the High Court on this point,17 absence of consideration did not arise as an issue at any point.

The Decision in the Court of Appeal

In its judgment (delivered by Baragwanath J) 18 the Court of Appeal set out three "critical" issues for determination: 19

1. Whether the oral promise required proof of a commercial fishery or merely the awarding of quota to Antons; 2. Whether Smith had actually performed such that he was entitled to benefits; 3. Whether Smith's claim was defeated by the absence of consideration.

11 Smith v Antons Trawling Co Ltd (Unreported, 12 February 2002, High Court, Auckland Registry, CL40/98, Hansen J.

12 Ibid para [74]. 13 Ibid. 14 Ibid para [81]. 15 Ibid paras [86] and [90]. 16 Ibid para [98]. 17 Supra note 3, 25. 18 The other members of the court were Anderson and Paterson JJ. 19 Supra note 3, 26.

1390 ,4uckland University Law Review

The Court materially departed from the High Court's reasoning m their answers to both of the first two issues.

The Court of Appeal held that the contract, properly constmed, vmuld rev,rard Smith upon the happening of two events: (1) Smith proving a commercial fishery; a.nd (2) Antons thereby securing additional quota. 20 The Court expressly tre:1ted the securing of additional quota as a second condition precedent whereas the High Court had only required the proving of a commercial fishery. Furthermore the Court of Appeal, through the use of the word "thereby" added a causation component: Antons 1vould need to secure additional quota as a result of Smith proving a fishery before he would receive a reward (limited to that quota causally attributable to his efforts).

When considering i:he extent to which Smith had fulfilled these conditions the Court made a number of significant findings of fa.ct The Court held that it -was the common expectation of the parties that for a commercial fishery to be established it needed to be demonstrated to MAF through the results of an exploratory research programme that catches of commercial quantities were sustainable vvithout depleting the resource. 21 In contrast to the High Court, this led the Court to hold that quota granted in accordance with an AMP was not the result of a proven commercial fishery. The purpose of the programme was held to be to "allow exploratory fishing" not to recognise a proven fishery. 22 This different finding would seem to stem from the Court having the benefit of additional submissions as to the nature of the AMP.

As a result of the more onerous conl[ractual requirements and the finding that only a resource demonstrated to be sustainable to IVIAF amounted to a proven commercial fishery, the Comrt found tha.t the extent to ,;vhich Smith's efforts satisfied the contract was greatly reduced. Only the quota that pertained to the Mercury i Colville Box, which in 2001 had been reduced to 30 tonnes, was held to be attributable to Smith's efforts. 23 Accordingly Snfr1th's entitlement ·was reduced from approximately 80 tonnes of quota to approximately two tonnes. While the Court's treatment of the first two issues differed from that of the High Comt, it can be described as fairly unexceptional.24 It is the Court's treatment of the third issue that is worthy of further comment, and which wiH be the subject of the remainder of this note.

Before giving the Court's decision in relaltion to the third issue, whether Smith's (reduced) entitlement was defeated by the lack of consideration, the Court set out the background law and briefly considered academic criticism, primarily that of Professor Coote,25 of the Williams v Rojfey "practical benefit" approach:26

20 Ibid 42. 21 Ibid 34-35. 22 Ibid 39. 23 Ibid 42-43. 24 Although it was clearly very significant for the plaintiff. 25 Coote, supra note 10. 26 Supra note 3, 45.

Case Notes 1391

[Professor Coote] argues with force that mere performance of a duty already owed to

the promisee under a contract cannot constitute consideration and that the only principled way to such a result is to decide that consideration should not be necessac7 for the variation of contract.

The Court then concluded, in the most significant passage of the judgment, that: 27

TNe are satisfied that Stilk v Myrick can no longer be taken to control such cases as Roffey Bros, Auomey-General for England and Wales and the present case where there is no element of duress or other policy factor suggesting that an agreement, duly performed, should not attract the legal consequences that each party must reasonably be taken to have expected, On the contrary, a result that deprived Mr Smith of the benefit of what Antons promised he shouJd receive would be inconsistent with the essential principle underlying the law of contract, that the law will seek to give effect to freely accepted reciprocal undertakings. The importance of consideration is as a valuable signal that the parties intend to be bound by their agreement, rather than an end in itself. Where the parties who have already made such ir;tention clear by entering legal felations have acted upon an agreement to a variation, in the absence of policy reasons to the contrary they should be bo:.ind by their agreement, Whichever option is adopted, whether that of Rofj'ey Bros or that suggested by Professor Coote and other amhorities, the resuli is in this case the same,

This passage contaiHs a number of proposirions and it is important to break: them down to understand the precise effect of this judgment,

First. the Cou1i brings to an end any doubt caused by the language of VVilliams v Roffey that Stilk v Myrick remains good law. Secondly, the Court signals that when deciding whether to uphold a contractual variation it witll look for vvhether the variation was tainted by duress or "other policy factor[s]". Thirdly, the Court described the "essential principle" underlying contract law as being that the law willi give effect to freely accepted reciprocal undertakings and that the doctrine of consideration serves merely an evidential function ensuring

that the parties truly intended to be bound. Finally, the Court made it clear thaJ it viewed the practical benefit approach from Williams v Roffey and the abolition of conslderation in variation cases as alternative n1ethods of reaching the same resul.t. Each of these propositions merits individual examination,

The abolition of the pre-existing duty rule

The decision in Antons Trawling to depart from the pre-existing duty rule as stated in Stilk v Myrick is not altogether surprising. It was foreshadmved in a number of earlier New Zealand decisions. In Newmans Tours Ltd v Ranier

27 Ibid 45-46.


Investments Ltd1-8 Fisher J treated Williams v Roffey as well-settled authority and therefore assumed, without discussion, its application to New Zealand law. Later, in Machirns Properties Ltd v Power Sports World (1987) Ltd,29 the High Court applied Williams v Roffey to enforce a settlement of a debt made without fresh consideration. In doing so, Machirus dubiously reconciled Williams v Roffey with Re Selectmove30 (the subsequent English Court of Appeal decision that refused to apply Williams v Roffey to the part payment of a debt line of cases) on the basis that the latter is distinguishable because the absence of a continuing relationship between the parties precluded the existence of any additional benefit. Finally, the Court of Appeal was confronted with the issue for the first time in AttorneyGeneral for England and Wales v R,31 a case governed by English law. In applying Williams v Roffey, the Court made a point of commenting that New Zealand law and English law were materially the same in the area. Yet Antons Trawling presents the first New Zealand case applying New Zealand law to apply Williams v Roff ey at the Court of Appeal level.

One difficult aspect of the decision given the ,important precedent set is that on an initial reading it is not immediately clear why the court treated the agreement as a contract variation, or indeed how lack of consideration was an issue. In this respect it is noteworthy that in the High Court absence of consideration was not mentioned as an issue anywhere in the judgment. Indeed, in that court the relevant agreement was treated not as a contract variation but as a stand alone contract.

So how did the court come to treat the case as involving a contract variation unsupported by consideration? If the oral agreement of 8 June was treated as a variation of the written SOC Agreement alone, then consideration could be found in Smith giving up his right to have a daily rate agreed upon for exploratory fishing under that agreement. However, Antons had already made it clear to Smith that it was not their policy to pay daily rates when the crew undertook exploratory fishing. Rather, the crews were expected to find fish and would be paid their ordinary percentage in accordance with the SOC agreement formula. It seems that the court treated the oral agreement of 8 June 1994 as a variation of the agreement that Smith's remuneration would always be based solely on the remuneration formula from the SOC agreement, even when undertaking an exploratory fishing programme. As Smith was already bound to undertake an exploratory fishing programme if so directed, on this understanding absence of consideration was very much a live issue. Regardless of whether one treats the variation as unilateral, as the Court did, or bilateral in nature, Smith did not promise to do anything he was not already bound to do nor did he actually do anything that he was not already bound to do.

28 [1992] 2 NZLR 68 (HC), 80. 29 (1999) 4 NZ Conv C 193,066 (HC) [ "Manchirus"]. 30 [1995] 1 WLR 474 (CA). 31 [2002] 2 NZLR 91 (CA).

Case Notes 1393

The conclusive abolition of the pre-existing duty rule has a number of consequences. As Professor Coote himself has recognised, a contractual variation is usually treated as a separate discrete contract.32 The removal of the need for consideration has the effect that agreements to vary a contract will now attract the force of law more readily than normal contracts. It is hard to justify why gratuitous variations, the only variations that offended the pre-existing duty rule, are given the binding force of law when stand alone gratuitous promises are denied contractual force as gifts. Here many will point to the practical benefits that arise out of maintaining a pre-existing relationship, the basis of Williams v Roffey, as the distinguishing factor. Yet this argument is weak as "practical benefit" can usually be equated with "motive", and all gratuitous promises have some motive.33

Perhaps more importantly on a doctrinal level, the rationale for awarding expectation damages after a breach is undermined. The forward-looking contractual remedy, which places the innocent party in the position that he or she would have occupied had the contract been fully performed, differs considerably from the backward-looking compensation remedy the law ordinarily provides to a party who has been wronged. A party can usually argue that in being deprived of the other party's performance, they have lost something that they purchased and that only expectation damages will compensate them. This is a simple application of the bargain rationale of contract that views consideration as the price paid for the other party's promise. But in a scenario where the promisor gratuitously increases the benefit the other party is due to receive under a preexisting contract, and then fails to provide this increased benefit, this rationale will not justify an increased expectation award. The increase is not purchased and so it is difficult to understand how there has been any additional "loss". This is why it has been argued by some, including the present author, that a reliance based remedy is appropriate in respect of breached variations that were unsupported by consideration.34 Then, the innocent party receives the expectation damages that they originally purchased, but are also compensated for any additional losses incurred through reliance on the variation. Allowing expectation damages to be realised in respect of gratuitous variations therefore severely undermines the justification for the different contractual remedy.

Additionally, the removal of the requirement of consideration increases the scope for advantage-taking within contractual relationships. Yet the Court's second proposition suggests that they had this problem in mind.

32 Coote, "Common Forms, Consideration and Contract Doctrine" (1999) 14 JCL 116, 128. 33 Chen-Wishart, Practical Benefit, supra note 10, 127. 34 Halyk, "Consideration, Practical Benefits and Promissory Estoppd: Enforcement of Contract Modification

Promises in Light of Williams v Rojfey Brothers" (1991) 55 Sask LR 393, 400-403; Chen-Wishart, Practical Benefit, supra note 10, 134; Ulyatt, supra note 1, 909.


Preventing advantage-taking

The removal of the requirement of consideration opens the door to potential abuses of contract variations. As a result of this decision, entering into contractual relations with a party transforms that party into the only person that can impose unilateral obligations that the law will recognise. Yet it is unclear why the entering of a contract should have this consequence. This decision will only encourage sharp practices where the original contract is used as a tool for extortion. Indeed it becomes much easier to quote originally a low price, or submit a low tender, only to later increase the price when the other party is dependant on performance. Yet the Court of Appeal seemed to be alert to this consequence and signalled that the test for whether variations will be enforceable will turn upon the absence of duress or other policy factors.

Although the doctrine of consideration was a blunt tool for the purpose,35

leaving the prevention of advantage-taking to other doctrines raises practical difficulties. The residual policy factors that the Court mentions could presumably be an attempt to include other doctrines similar to duress, such as unconscionable conduct, and perhaps lesser types of illegitimate pressure not amounting to duress. In this respect the Court was careful not to commit itself to the test for economic duress as the sole determinant for when a variation will be given legal effect. This was wise. Leaving such issues to be dealt with through the doctrine of economic duress is inadequate. That doctrine is still developing and is currently unable to satisfactorily discriminate between those cases of illegitimate advantage-taking and mere hard bargaining. The dearth of cases where protests of economic duress have been upheld demonstrate that too few cases satisfy the demanding elements of this doctrine. But it remains to be seen how the Courts will be able to use these "policy factors" to identify those variations which ought not to be enforced. The failures of economic duress suggest that this will not be an easy task.

The "essential principle" and the role of consideration

The Court asserted that failing to hold Antons to their promise would be inconsistent with the essential principle of contract law that parties will be held to freely accepted reciprocal undertakings. The Court's articulation of the underlying philosophy of contract law itself is uncontroversial, but it is difficult to see why the principle required that Antons be held to their promise. Far from requiring the decision, it seems that the principle does not sit well with the decision. The key word here was "reciprocal". It is through the doctrine of

35 See Reiter, "Courts, Consideration and Common Sense" (1977) 27 U of Toronto LJ 439, 465; Aivazian, Trebilcock and Penny, "The Law of Contract Modifications: The Uncertain Quest for a Bench Mark of Enforceability" (1984) 22 Osgoode Hall LJ 173, 185; Chen-Wishart, "The Enforceability of Additional Contractual Promises: A Question of Consideration?" (1991) 14 NZULR 270, 275; Ulyatt, supra note 1, 889-890.

Case Notes 1395

consideration that the law ensures that both parties are bringing something to the contractual arrangement. Where consideration is lacking, as here, the undertakings are hardly reciprocal. Smith promised to do nothing more than he was already bound to do. Legally, Antons gained nothing. Thus, it would seem that the underlying principle of contract law doctrine would have required the opposite result

More controversial than the Court's flawed application of the "essential principle" however, are the Court's comments about the nature of the role played by consideration in contract law doctrine. In vvhat appears to be a throw2,w2,y line, the Court asserts that consideration serves merely an evidentiary function in establishing that the parties intended to be bound. Yet this bald assertion (not backed up with any authority) is contrary to the received learning that consideration plays a substantive rather than evidential role in contract doctrine.

As Vl!ebb has already noted, 36 this reasoning resembles that of Lord Mansfield during his eighteenth century attacks on the doctrine of consideration. In Pillans v Van Mierop37 his Lordship denied that consideration was a substantive requirement for a contract to be legally binding, instead treating it as a means of demonstrating that the parties truly intended to be bound. On this account, lf alternative "sigm:.1s" that the parties intended to be bound were present, such as when the contract had been reduced to writing, then consideration was unnecessary. Yet just a few years later this proposition was soundly rejected. 38

V\Then one opens up any of the leading contract law textbooks the history of the assertio,1 is raised and its swift defeat explained.39 Consideration does more than merely ensuring that parties have considered the consequences of making their promises legally enforceable and providing evidence of that intention. Consideration fa said to serve several functions, including distinguishing between non-gratuitous and gratuitous promises and, as mentioned earlier in this note, justifying the award of expectation damages.

While the Court of Appeal's reasoning was firmly aimed at variation cases, this assertion has potentially far-reaching consequences in that it could greatly undermine the role of consideration in fornmtion cases. Indeed, it amounts to an additional attack on the doctrine of consideration in that it weakens the general function of consideration. H consideration performs merely an evidential role then it becomes arguable that it should not be a mandatory requirement but rather one that can be dispensed wHh in cases where the requisite intention is otherwise proved. There are numerous reasons why contracts unsupported by consideration, though clearly intended by the parties, should not be enforced. Thus, this comment can only be described as bold, and unnecessary, for a Court of Appeal sitting as a divisional court. It can only be hoped that it will not be followed.

36 Duncan Webb, "Consideration and variation" [2003] NZLJ 54. 54. 37 (1756) 3 Burr 1663; 97 ER 1035. 38 Rann v Hughes (1778) 7 T.R. 350n; 4 Bro.P.C. 27; 2 ER 18. 39 For example, Chitty on Contracts vol I (1999), 167.


Practical Benefit vs Abandomnent

The judgment treats the abandonment of consideration in variation cases, and the Williams v Roffey approach of requiring merely practical benefit, as alternative routes of reaching the same result In doing so the Court frankly recognised that the effect of Williams v Roffey is to wholly overmle Stilk v Myrick, an :1drnission that even the judges involved in Williams v Rojfey were not prepared to make. This frankness is cmTLmendable. aowever, the source of the Court's reasoning rnay have been misunderstood. Of the two routes the Court seems to prefer the complete abandonment of consideration, at least partly because of Professor Coote's criticisms of the practical benefit approach,

Coote suggests that performance cannot amount to consideration for the purposes of creating legal obligations at the time of the exchange of promises because it comes too late.40 Yet, vvhile Coote was indeed critical of the reasoning in Williams v Roffey, it is not entirely clear that he supported the wholesale abandonment of consideration in variation cases. The Court seems to attribute that view i:o Coote on the basis of a remark in the conclusion of chat article:"

Theoretically, it may still be open to a court of final resort in a common law country to decide that consideration should not be necessary for the variation of a contract., .. But "What it is submitted no court of final resort could do without hopelessly compromising the doctrine of consideration would be to [follow Williams v Roifey.]

1Nhat I understand Coote to be saying is that the wholesale abandonment of consideration in variation cases would be more desirable than upholding Williams v Rojfey. His cmrunent is thus comparative in nature. Coote seemed to consider that by tre:1ting variation cases separately, less damage would be done to the doctrine of conslderarion as it applies to formation cases, By no means is it dear that if given the choice in a variation context between reinstating the requirement of pre-Wi! Iiams v Roffey traditional consideration and the wholesale abandonrnent of consideration, Coote would choose the latter. Indeed in a later note published in the same journal" Coote stated that his preference for resolving difficulties ir.i this area of the law '01otdd be legislative reform.

Coote seemed to consider that the weakening of the doctrine of consideration in variation cases had occurred and could not be reversed. By doing away with the need for consideration altogether in variation cases, the weakening of the doctrine through the "practical benefit" ?!pproach can be prevented from spreading to formation cases. The practical benefit approach is tantamount to the removal of consideration anyway, and the need for concrete rnles is clearly much more important for the formation of contracts than it is for variations. So in terms of containing the damage to the doctrine caused by Williams v Roffey, there is

40 Coote, srnpra note 10. 26, 41 Ibid 28-29, 42 Coote, supra note 32, 129.

Case Notes 1397

much to be said for this approach. However, given the indifferent treatment that Williams v Roffey received in Re Selectmove and the lack of a definitive House of Lords statement on the matter, it is perhaps a little premature to abandon the hope that consideration will be reinstated in variation cases. In any case, the wholesale abandonment of consideration places the law in a no worse position than under the practical benefit approach. If formation cases have now been insulated from that approach then the development should be welcomed.

Conclusion

Antons Trawling unequivocally dispenses with the pre-existing duty rule. All contract variations will now be enforceable subject only to an enquiry as to the existence of duress or other policy factors. In adding this enquiry the Court seems to be alert to the increased potential for advantage taking that their decision creates. In light of the failings of the doctrine of duress it is unclear how effective the Court will be in preventing advantage taking. On the whole, tlµs development is unfortunate. There is much to be said for continuing to require full legal consideration before variations will be enforced through contract law. In particular, the rationale for awarding expectation damages in respect of variations can only be justified by requiring consideration. Variations do sometimes create additional legal benefits but these could be adequately dealt with through the introduction of a reliance based remedy.

Yet the decision was not altogether unexpected and if the shift from consideration as "practical benefit" to no consideration at all in variation cases protects the doctrine in respect of formation cases, then at least in that respect the development is positive. More concerning, the Court of Appeal suggests that consideration plays merely an evidentiary role. While this is clearly inconsistent with authority, it may lead to the more general erosion of the doctrine. Despite Professor Coote's first attempts to insulate the doctrine of consideration in formation cases, it may yet need protection from this new attack. The doctrine of consideration is a fundamental aspect of contract law and these attacks ought to be resisted. It can only be hoped that this trend will be quickly curtailed, otherwise the future for the doctrine looks bleak.

Craig Ulyatt BA/LLB (Hons)

1398

The New Zealand Bill of Rights, R:i.shworrth et al9 Oxford University Press, 1WeUington (2003)

Rights jurisprudence is relatively new in New Zealand and is, in part, driven by :JJ]_ international trend towards recognition of civil, political and criminal rights. 1 The New Zealand Bi.ll of Rights Act 19902 is, internationally, one of the more recent statutes to address rights, both civil and criminal. Despite its relative infancy, Nevv Zealand rights jurisprudence is developing at a steady pz.ce. This book represents the most comprehensive consolidation of those developments to date. 3

The book is organised into 29 chapters usefully set out to mirror the various provisions of the Act. Included are chapters on the application and interpretation of the Act, discussions about rights, both 'human' and 'criminal procedure' based, and on remedies for a breach of the Act

The first table of contents lists the chapter heading and the author. The second table breaks down the contents of each chapter. There is, of course, the stands.rd 'tc1.ble of cases' and a comprehensive index. There is no excuse for not being able to locate relevant material in this book. The organisation of the book is excellent, especially given the volume of material contairnod therein.

Inside each chapter, the relevant sections of the Act under consideration are reproduced prior to the commentary. The commentary sets out a general overview of the particular area before moving on to a detailed analysis of the relevant right. This detailed analysis is broken up by relevant headings and subheadings into easily comprehensible and digestible segments.

The footnoting of material in the chapters I reviewed is extremely comprehensive, and is conveniently located throughout the chapter rather than at rhe end. Readers vvill find the footnotes an essential and iffvaluable tool in clarifying the ideas presented by the authors and facilitating a greater appreciation of the subject by students and practitioners alike.

The book is well researched and may be considered an extremely thorough analysis of criminal procedure. In providing a commentary of the Act, the authors make numerous detailed references to jurisdictions that have a longer history of rights jurisprudence, notably the United States of America and Canada.

Most importantly, and to the credit of the authors, the book is readable and useable. It is pitched both at the person coming to grips with the Act for the first time and the person who wants to drill down to the finer detail and consider some of the more controversial points about rights jurisprudence that have come to light to date.

For a 1nore detailed descli.ption of the relevant international covenants forming the background of the Act see Rishworth et al, The New Zealand Bill of Rights (2003). l 1.

2 Hereafter "the Act". 3 TI1e book itself is huge, as is evident from the sheer volume of material included in its 852 pages, and the fact

that the authors felt compelled to insert two tables of contents.

Book Review 1399

Because of the size of the book this review has been limited to the chapters focused on criminal procedure and specifically those authored by Scott Optican.4

Optican authored four chapters, namely search and seizure, other rights of persons arrested or detained under any enactment, the rights of persons charged with an offence, the right to be tried without undue delay and retroactive penalties and double jeopardy. He co-authored with Paul Rishworth minimum standards of criminal procedure for trial, sentencing and appeals.

While these chapters clearly present the law as it is, Optican makes clear his view on the gaps and omissions of the courts in dealing with particular issues, for example the lack of a concise definition of 'search'. Optican, more than any other author in this book, sets out his views on how these gaps and issues should be resolved. Undoubtedly, his views are closer to a due process model5 than a crime control model and for that reason more orientated to defence counsel.

Those students who have experienced Optican's colourful and animated criminal procedure classes will be extremely familiar with the layout of the search and seizure chapter. This right is one of the most litigated in criminal procedure jurisprudence. Consequently, this chapter is much longer than the others. A breach of this provision relating to search and seizure in the Act is likely to lead to an exclusion of evidence during trial. For this reason, the section has a significant impact on a number of criminal trials. Students, academics and other actors in the judicial process continually debate the provision along with the associated consequences for its breach.

The variety of opinions about the reasonableness of any search and seizure can be classified on a continuum that starts with due process and ends with crime control. It is, arguably, inevitable that these views will differ according to a variety of factors, such as the circumstances of the case, the subject of the search and the viewpoint of the person trying the facts of the case. Optican offers a view that may be characterised as being closer to the due process model. If there were any criticism of this chapter, it would be Optican's failure to acknowledge arguments for interpretations at both ends of the continuum. 6

The chapter logically commences with a discussion of what constitutes a search. Optican identifies this as an issue that the courts regularly avoid. He

4 Hereafter "Optican". 5 Criminal procedure rules balance society's need for the investigation, detection and prosecution of crime (the

crime control model) against protecting the rights of people in the criminal justice system from unfair and oppressive conduct (the due process model).

6 For example the discussion of R v Loh (1997) 14 CRNZ 649. 446 (CA) and the conclusion that Loh "ratifies a police decision to target a number of motorists for criminal investigation based largely on their ethnicity. and highlights the manner in which s 21 has frequently been used in the service of unlawful, results-orientated policing rather than to control the police." See the discussion of R v Bradley (1997) 15 CRNZ 363 (CA) and R v Gardiner (1997) 15 CRNZ 131, 459 - 460 where the possibility that privacy expectations in a dwellinghouse may vary by conduct bringing suspicion upon the occupants is rejected in favour of very strict reasonableness criteria to " ... enforce and regulate, rather than expand, present police powers ... ".


suggests that the Court of Appeal needs to define an approach to the determination of the issue and that Parliament, if dissatisfied, should legislate.7

The second aspect of the chapter relates to the reasonableness test. Optican considers that the Court's approach to the determination of the issues is too flexible and variable, and as a consequence, it diminishes any principled approach to the search or seizure tests. 8 As a result, Optican has analysed precedents in terms of patterns of decisions, for example: searches of houses; cars; and persons rather th;m having one reasonableness standard or test to apply to all searches and seizures. This is a practical and sensible approach to make sense of the variety of decisions.

The chapter headed "Other Rights of Persons Arrested or Detained Under Any Enactment", more than any other, highlights the absence of comprehensive New Zealand empirical studies in the area of ciiminaljurispmdence, for example the existence of a number of rights is justified as being required to balance the inherent pressure that custody may place upon the accused person. 9 'While undoubtedly that pressure may exis[, there are no New Zealand studies on rights within a New Zealand context, such as lawyer access rights, which would allow the courts to consider precisely and in an informed way the effect and consequence of a breach of those rights. In the main, the views presented in this book will be relevant However, it is worth considering alternative views and hypotheses that may be particular to New Zealand.

A distincrion not drawn in the analysis of these rights is that betv1een police action in making patrol and investigative anests. The approach currently taken by police to execute mTests may have a significant effect on a Court's determination of the reasonableness of an mTest, for example in relation to the right to be informed of the reason for an arrest and the right to be charged promptly if at all. fo the case of the former, it will usually be apparent why the suspect has been arrested; whereas in the latter case, police may require more time to investigate.

There will be an infinite variety of situations arising in criminal law and in Bill of Rights jurisprudence. Not all situations can be identified and commented

7 "Finally, judicial rationalization of the term 'search' - accompanied by Comt of Appeal decisions explaining clearly why police conduct vviH or will not be subject to the Bill of Rights restraints - 1nny galvanise Parliament to legislate where is concludes that various techniques of criminal investigation are best dealt with by statute rath.er than by common law elaboration of s. 21," supra note 1, 428.

8 "As long as the Court of Appeal continues to assess the reasonableness of police investigations based on their individual facts, it will be difficult to state convincingly what circumstances wilI cause a search and/or seizure to violate or comply with the Bill of Rights. Tims. at present, the most useful method of analysis under s 21 is to identify certain persistent patters of official investigative activity and to examine the judicial criteria of reasonableness ( or unreasonableness) typically applied to those recurring sets of facts. Accordingly, the categories set out below attempt to examine, in thematic fashion, search and/or seizure scenarios ... "Ibid 438.

9 For example see supra note 1, 552 where Optican states "The core purpose of s 23 is to ensure that, in their initial, official encounter with authorities, those suspected of wrongdoing have some protection against the police-dominated atmosphere typically associated 'Nith deprivations of liberty pursuant to law." Optican cites R v R (CA) (184/92, umepmted 3 August 1993) 6. noting that "a person under official detention is in a vulnerable position and so is more subject to coercive pressure thmll when official questioning takes place on more equal terms.

Book Review 1401

upon, and this book makes no claim to answer the full range of difficult questions that arise in the context of criminal rights. However, the book does provide a strong starting point and well reasoned jurisprudence from which to address new and significant issues as they arise in New Zealand.

Criminal procedure and Bill of Rights' jurisprudence will continue to evolve in New Zealand. While it would have been ideal if, from the commencement of the Act, clearly defined rules and rights were ascertainable, it is hopeful that a degree of certainty will develop with emerging case law. I hope that the demand for this book is sufficient to justify the authors publishing regular updates and continuing to provide invaluable assistance to people involved in the criminal justice system.

Paul J C Davies


internet.law,nz, Judge David Harvey, lLe:xisNexis, 'Wemngt!lJJn, 2003.

The confluence of established law and networked technologies is the focus of the innovatively titled intemet.law.nz written by District Court Judge David Harvey. His Honour is well suited to deliver an informed discussion on the interaction between the law and the Internet. Judge Harvey developed an interest in information technology while in practice, and following his appointment to the bench he has been involved in the introduction of infom1ation technology to the judiciary. The Judge is also a member of the Faculty of Lav, at the University of Auckland 'Nhere he lectures on Law and Information Technology, and makes editorial contributions to Butterworths Technology Law Forum and Butterworths Electronic Business and Technology Law. He is also involved in several Auckland District Law Society committees a11d was recently appointed Chair of the Copyright Tribunal. 1

This book is a significant analysis of legal issues arising from the development and utilisation of networked technologies. Judge Harvey states that his intention is not to create a definitive text; in fact he questions whether one could be produced a_nd still claim to have any currency, such is the pace 2-t which networked technology is developing. 2 For this reason he focuses on specific topics, the diversity of which is notable. He addresses the following issues: internet information and research; jurisdiction and conflict of laws; governance; criminal law; evidence and technology; tortious liability; e-commerce; and copyright.

A consequence of this diversity is that the book wiH prove relevant to many audiences: students, practitioners, business people, and others vvill find material of benefit to their work or research, As the title suggests, selected issues are primarily addressed in a local context. However, in recognition of the intemefs cross-jurisdictional nature, case law from foreign jurisdictions is explored, without loosing sight of divergent underlying policy factors, 3

Judge Harvey acknowledges that networked technology is developing quickly. As such, the legal boundaries of commercial practice may not be clear. His Honour adopts a rigorous method of assessing the state of the law in relation to internet associated activities. First, he identifies the law as it stands and questions whether it correctly applies to the activity in question. 4 If it does not, he analyses whether its application can be developed conectly to apply, and if not, he assesses the policy behind the law and questions its applicability to the activity instead.' Finally, vvhere appropriate he postulates a revised approach or

New Zealand Internet Safety Group, "Symposium Speakers - Judge David Harvey" Netsafe: Society, Sqfety & the Internet Symposium !ill;j;,://www.netsafe.org.nz/ie/netsafe society/netsafe dharvev.asp (last modified 27 January 2002).

2 Harvey, iniemet.law.nz (2003). 3 !bid vi.

Ibid v. 5 Ibid.

Book Review 1403

reform.6 Given the uncertainty of internet users and law practitioners as to the boundaries of legality, this may prove a useful methodology for identifying internet codes of practice.

Judge Harvey's book reflects the relationship between networked technologies, globalization, and the law. Generally, while networked technologies and globalization symbiotically drive each other forward, the law has failed to maintain the same pace. This deficiency is demonstrated in the recent amendments to the Crimes Act 1961 that were intended to address crimes pertaining to networked technologies but which contain significant loopholes.7

Paradoxically, the ability of hackers to strike at computers around the globe with the aid of the Internet suggests that a globalized form of criminal law is needed. By comparison, copyright law has contained an element of international law since the Berne Convention of 1886.8 Judge Harvey considers various arguments regarding a greater internationalist approach to copyright.9 In keeping with his objective approach he does not favour any specific theory, but he does put forward the opinion that the internet represents a significant challenge to areas of law where territoriality is traditionally a consideration. He concludes by stating that on his analysis of the various theoretical approaches put forward, a change in approach to issues of jurisdiction, forum, and choice of law is inevitable as the digital paradigm becomes ubiquitous. 10

The first part of Judge Harvey's book addresses the reliability of information accessed on the internet and provides practical guidelines for evaluating websites. 11 As electronic sources supplement and frequently replace manual sources, this chapter will be of value to students, website developers and practitioners seeking to ensure their research material will stand up to scrutiny.

The rest of the book is divided into two broad categories: the application of the law to the internet that addresses issues surrounding governance and jurisdiction; and behaviour that the existing law may potentially address, including torts, crime, and online contracts. Judge Harvey also addresses overarching issues such as evidence and intellectual property in the context of the internet.

The second chapter commences by examining theoretical12 and judicial13

approaches to issues about jurisdiction on the internet. Here Judge Harvey

6 Ibid. 7 Ibid 196-201. 8 Infra note 23. 9 Argnments considered are by: Graeme Austin, Tanya Poth, Graeme Dinwoodie, Ruth Okediji and Jane

Ginsburg. 10 Supra note 2 at 538. 11 Ibid 1-24. 12 Generally: David Johson and David Post, Juliet Oberding and Terje Norderhaug, Yochai Benk:ler, Stephan

Wilske and Teresa Schiller, and Henry Perritt. In relation to copyright: Graeme Austin and Jane Ginsburg. 13 Notably: Twentieth Century Fox Film Corp v iCrave TV No00-121 (Unpublished decision, WD Pa, Jan 20

2000); Yahoo! V UCRA 145 F Supp 2d 1168; Gutnick v Dow Jones (2001) VCS 305; NZ Post v Leng [1999] 3 NZLR219.


addresses High Court Rules 131, 219 and 220, District Court Rule 139 and the proposal made by Clive Elliot14 in response to NZ Post v Leng. 15

Typically, a court may have jurisdiction in a case but it may not represent the most appropriate forum for the trial. 16 Judge Harvey explains that this may be particularly problematic in relation to internet based activity. 17 The presence of a website or a contractual provision stating which forum is preferred may not alone be sufficient to justify an exercise of jurisdiction by local courts. 18 However, if these factors are coupled with injury to the plaintiff occurring within the forum or the solicitation of business in or the targeting of the forum, then they may be sufficient to justify bringing an overseas defendant under a domestic court's jurisdiction.19

In this chapter, His Honour emphasizes that issues of jurisdiction arising from the internet demand 'a principled, intellectually rigorous' application of existing rules.20 The myth that activities occurring over the internet are beyond the reach of the courts is emphatically rejected.21

The third chapter of the book addresses internet governance. This chapter is particularly appealing for those with an appreciation of jurisprudence. Judge Harvey analyses various regulatory theories, then considers the role of international organizations and domestic courts in the administration of domain names on the "world-wide-web".

Judge Harvey places the major schools of regulatory theory on a continuum from formal approaches based upon conventions of law and the state through to informal approaches based upon technical conventions, private responsibility and trans-national scope.22 Towards the formal (right) side of this continuum is found the school of digital realism which enunciates the principle that "there [is] no more a law of cyberspace than there [is] a 'Law of the Horse' ."23 At the opposite end are the cyber-anarchists who promote the free and open flow of information across the internet and challenge state regulation and the application of intellectual property rights to the internet. Central on the continuum is the 'Code is Law' theory that states that 'in cyberspace, architecture is the dominant and most effective modality to regulate behaviour' .24 Some readers may question the importance of what can be mistaken to be high theory divorced from the true sources of internet regulation, namely national legislative bodies and select international organisations. However, it is unreasonable to suggest that theorists do not influence the discussions that precede the formulation of regulatory policy.

14 Elliot, "The Internet -A New World Without Frontiers" [1998] NZLJ 404. 15 [1999] 3 NZLR 219. Elliot's proposal is examined in depth at Harvey, supra note 2 at 27-28, 83-87. 16 Ibid 27. 17 Ibid. 18 Ibid. 19 Ibid, 27-28. 20 Ibid 87. 21 Ibid. 22 Ibid 91. 23 Easterbrook, "Cyberspace and the Law of the Horse" (1996) Univ Chicago Legal Fornrn 207. 24 Harvey, 101.

Book Review 1405

In showing no preference for any particular theory, Judge Harvey leaves the way open for the consensus of theories that is likely to emerge in the years ahead as the Internet becomes subjected to greater and more sophisticated regulation.

Judge Harvey discusses the origins of the Internet Corporation for Assigned Names and Numbers and critiques the procedure it adopts to resolve disputes about top level domain names (those following the single suffix pattern, such as .com).25 His Honour also discusses litigation in the domestic courts of disputes involving country code domain names (those using a double suffix, such as .co.nz) under the tort of passing off, the Fair Trading Act 1986 and trademark law.26 This discussion illuminates the need, in cases involving the Internet, for a rigorous application of traditional common law principles to the facts of each case. It also emphasises the broad role taken by relatively new and versatile statutory causes of action.

While much law may be applied consistently to the internet, in some instances application of existing rules is problematic. This is particularly so in relation to criminal law. Judge Harvey recognises the inherent difficulty of defining computer related criminal activity and encapsulating these definitions into a workable legislative scheme.27 For instance, prior to the enactment of the Crimes Amendment Act 2003, the Crimes Act 1961 was clearly deficient in prohibiting 'hacking' .28 The recent amendments have prohibited several activities associated with computers, to address concerns about hacking. These include accessing a computer system for a dishonest purpose;29 damaging or interfering with a computer system;30 making, selling, distributing or possessing software for committing a crime;3 ' and accessing a computer system without authorisation.32

Unfortunately, the scope and application of these provisions has not been made by the definitions accompanying the amendments, for example, the meaning of 'computer' has not been specified. Judge Harvey highlights the risks inherent in the knee-jerk criminalisation of online behaviour that is treated differently offline. 33 His Honour equates accessing a computer system without authorisation to entering an office and browsing through a filing cabinet. Arguably tort law addresses the latter behaviour adequately. Furthermore, existing legislation may apply to behaviour unique to the internet, such as cyber-stalking and online harassment. 34

Judge Harvey discusses the practical and legal implications of the collection, admissibility and presentation of evidence harvested from the internet under

25 Ibid 99-100, 115-144. 26 Ibid 144-160. 27 Ibid 213-214. 28 Ibid 174. 29 Crimes Amendment Act 2003, s 250. 30 Ibid s 251. 31 Ibid s 252. 32 Ibid s 253. 33 Supra note 2 at 213-214. 34 Ibid 227-239.


ex1stmg law. His Honour notes there is potential for conflict between online surveillance and the New Zealand Bin of Rights Act 1990.35 Practical guidelines are set out for the use of demonstrative evidence and reconstructions in court, and the presentation of evidence using new technology.36 This credible advice will prove to be increasingly useful for practitioners.

Judge Harvey examines liability for tmtious acts committed online. In relation to negligence, His Honour notes that expert sysiems37 attract a duty of reasonable care in the information supplied, while on vvebsites the standard of care is based upon an assessn1ent ofthe authority that the particular site conveys.38

Internet relay chat rooms are thus unlikely to attract liability.39 Trespass is reasoned to be applicable to virus attacks on the basis that interference, rather than physical contact creates Iiability40 and the harm caused may be merely functional under R v Garrett (No 1 ).41 Trespass has also been applied successfully to 'spam' emaiL42 Defamation is discussed43 with consideration given to the Internet defamation case Gutnik V Dow Joneso 44

Online business relationships are also discussed in the book, with a focus upon electronic commerce" The internet has been compared with the industrial revolution in its importance to human development. However, the full potential of this new 111ediu111 of exchange has yet to be reached""' Judge Harvey argues that the courts will take an important role in facilitating the effective utilisation of the internet as a rnech:inism to conduct commercial transactions in the future, as they have done under the Sale of Goods Act 1908 a,nd subsequent legisl3,tion. New n1eans of contracting, such as shlink-,vrap,46 click-·,vrap,47 and brmvse-wrap'8

contracts are discussed:9

This chapter is notable for containing significant contributions from two of Judge Harvey's former students. The structure of the discussion in paragraph 7.203 on contract formation and the postal acceptance rule is credited to Adeep Segkar,50 and paragraph 7.2A- on the Electronic Transactions Bill 2000 was based

35 Ibid 278-281. 36 Ibid 281-285. 37 These are defined as "intelligen.t knowledge-based advisors [ which] could consist of a distillation of an area

of[ ... ] expertise into a body of rules"" ibid 293. 38 Ibid 293-298, 298-300. 39 Ibid 298. 40 Hamps v Darby [1948] 2 KB 311. 41 (2001) DCR 955. The need for intention is not absolute provided harm results: Wilson v New Brighton

Panelbeaters [1989] 1 NZLR 74. 42 Supra note 2 at 309-316. 43 Ibid 316-342. 44 [2001] vsc 305. 45 Supra note 2 at 343. 46 This tem.1 refers to the licence agreement that is presumed to have been accepted when the plastic shrink-wrap

tbat allowed tbe terms to be viewed was broken open by the purchaser of the software inside. 4 7 This terrn refers to the licence agreement that is presumed to have been accepted ,;vhen a box is clicked to

indicate acceptance of terms set out on web page or \vindow. 48 This term refers to the hcence agreement that is presumed to have been accepted when a licence is referred to

in the course of using a program without the terms being displayed on the user's screen. 49 Supra note 2 at 361-371. 50 Ibid 371-395.

Book Review 1407

on a supervised research paper by Karen Riddle.51 His Honour's willingness to incorporate research by students is somewhat unusual but is nothing less than successful. There appears to be no difference in quality to the material written wholly by His Honour.

The final chapter of the book is a selective discussion of intellectual property rights on the internet with a preliminary precis of basic copyright principles. Digital rights management, copy protection and circumvention are discussed in depth.52 His Honour notes copyright legislation reflects a print paradigm and, as such, requires reconsideration to counter the tension between traditional rights given to users and producers and the special privileges conveyed to copyright holders by new technologies.53 His Honour also discusses the copyright implications of hyper-linking following the finding in Universal Studios v Reimerdes.54 His Honour also discusses peer-to-peer file sharing, analysing A&M Records v Napster,55 and concludes with premonitions of the globalization of copyright law as a consequence of the internet.56

Comparisons may be made between Judge Harvey's book and a substantial intellectual property treatise published in 2002, Intellectual Property in New Zealand.57 In terms of scope, Judge Harvey's exposition on copyright takes up 116 pages whereas the relevant section of the treatise addresses the same topic in only 14 pages. Additionally, it must also be noted that other intellectual property issues are addressed elsewhere in the book: there is a significant discussion of intellectual property rights in domain names, and briefer consideration to intellectual property issues is given in relation to online research. The picture that emerges, of intellectual property issues distributed throughout the fabric of the book, is reflective of the close association between the Internet and intellectual property law. Given this close association, the approach taken in Intellectual Property in New Zealand of having a section specifically addressing the Internet does not seem as well conceived as Judge Harvey's approach, which allows him to approach the topic in much greater detail in respect to various issues where they arise. This is not to suggest that Intellectual Property in New Zealand is anything less than a very respectable work. Rather, it demonstrates the consequences of His Honour's particular perspective, arising from his knowledge of intellectual property and networked technologies.

On reaching the end of the book, readers might well ask whether Judge Easterbrook was correct when he stated that "there [is] no more a law of cyberspace than there [is] a 'Law of the Horse'." 58 Judge Harvey argues that there

51 Ibid 395-415. 52 Ibid 423-538. 53 Ibid 423. 54 2000 WL 1160678 SDNY 2000 (17 August 2000). It was held that linking to a site that contained software

for circumventing DVD Encryption was functionally equivalent to making the software itself available. 55 114 F Supp 2d 869 (2001). 56 Supra note 2 at 533-538. 57 Frankel and McLay, Intellectual Property in New Zealand (2002). 5 8 Supra note 2 at 91.


are ,ffeas where the existing law fails to meet the challenges posed by the internet, notably in relation to criminal law, particularly hacking. It follows that where the existing law falls short there is a necessity for some kind of "law of the horse", although His Honour does not suggest that the internet merits an entirely separate legal structure. Judge Harvey's pragmatism on thls and other issues is admirable. It can be seen most vividly operating in the discussion of governance theories where Judge Easterbrook's famous quote first arises, where a wide variety of theories are drscussed vvith no apparnnt preference on His Honour's behalf.

Overall, i;uemet.law.nz is to be highly recommended. It combines clarity of thought and expression, informed analysis, and clear organization in a way that only the best legal texts seem to achieveo These attributes combine to create a roxe species of legal text: one that may be read for understanding and also for pleasure. His Honour's unmistakable enthusiasm for the subject helps to ignite a keen interest in the reader. The only criticism that may be made of the book is the disappointing regularity of typographical e1rnrs in some sections of the text. Regrettable as these errors are, these do not reflect upon the author as much as they do on his publisher's editorial team, nor do they detract from what is overall a work of high quality and superior insight.

Thomas William Hill

Pil'ivate Pr(Jperty and Abuse of Rights in Victorian England, J'lillkL'lla12l Taggan19 Oxfo:rd Unive:r§iity Press~ London, 2002.

1409

Private Pmperiy and Jlbuse of Rights' offers a detailed investigation of the social context and legal ramifications of the leading case Bradford v Pickles,1 which provides a vehicle for the exmnination of the scope of legal property rights.

Edward Picldes ("Pickles") owned land adjacent 1to a fresh 'Water spring that the local ::mthority of Bradford ("the Corporation") utilised to supply the town with water. Pickles asserted the desire to rnine his land for flagstone and conceived of a plan m drain subterranean water from his soil to expose the deposits. This plan threatened the local water supply fed in part by the spring that flowed under Pickles's land" At the time, it was believed that flagst011e was worthless and the lacal authority suspected Pickles to be pursuing an ulterior motive maliciously designed to coerce the Corporation to purchase his land" Terse negotiations led to an impasse, prompting the Corporation to litigate for relief.

The Corporation prevailed at first instance,' but ulitirnai:ely failed to injunct Pickles from draining lhe water beneath his land"' Together with an alternative claim under s,tatute, the Corporation argued that Picldes' exercise of his property rights was malicious and hence a breach of the common law" In finally deciding the case in fa•10ur of Pickles, the House of Lords unambiguously stated:'

L is the act, not the motive fri,: the act that musi be regarded. ff JJ1e act, apart fron1 motive, gives rise :nerely to damage without legal injury, the motive, however reprehensible it 1nay te, will not supply that elemenL

Professor Taggart has undertakeil extensive &rchival rese,Irch ito illuminate the broader context of the litigation and to present the reader with a n10re circumspect view of this nineteenth century case" The importance of the decision ltends to have been distilled to a fine point by the rigours of comroon law evolution. Bradford now stands for the propositiori that motive is irrelevant to tm"tious liability. However, one can glean more legal edificaition frorn the case than this point alone"

One of the underlying themes of Abuse of Rights is rhe differrnce betvveen the common la'vv and the civilian approach to the exercise of property rights. Professor Taggart reveals the diametrically opposed nature of the two systems in his analysis of the judgments given in the litigation. Their core differences wmrnnt a deeper investigation, a process that is systemaiically fulfilled as the chapters of the book proceed" Professor Taggart begins with a focus upon the case

Taggart Private Property and A.buse of Rights in Victorian England (2002) [ "Abuse of Rights"]. 2 [1895] AC 587 ["Bradford'°l 3 [1894] 3 Ch 53a 4 [1895] 1 Ch 145" 5 Supra note 2 at 600-601 per Lord Macnaghten.


itself, but expands to consider the broader theoretical and historical issues of the cs,se upon which I will comment further below.

Professor Taggart's overt fascination with the facts and history of the case produces a work that is both thoroughly researched and well written. Chapter One acquaints the reader with the town of Bradford at the end of the nineteenth century, tracing the town's emergence as an incorporated borough and the 'municipalization' of the local water supply. It becomes clea.r to the reader that, with the passage of numerous private bills, the process of municipalization was achieved in a piecemeal fashion. Professor Taggart later illustrates 1.hat the private legislation affecting this process was complex, woefully drafted, and ultimately failed to capture the mischief of Pickles's actions.

Professor T3.ggart adeptly animates the characters involved in the dispute, leaving the reader to enjoy the unfolding events of the book as if it were a novel. One such protagonist was the Town Clerk, William McGovern, who formed 'the hub around which the multifarious activities of the Council took place.' 6 Such research aiso reveals the history of the Pickles family, in particular the successful attempt by Pickles's father ("Pickles Senior") to procure payment for a part of his land containing coal.

In Chapter Three, each of the three stages of the litigation7 is examined and lhe judgments analysed closely. In rendering their judgement, the House of Lords eschewed any reference to the burgeoning influence of civil law concepts on the acceptable exercise of property rights. The reader detects Professor Taggart's fmstration that '[R]oman and civil law learning ... ,Nas given short shrift on the basis of precedent in the courts belmv. ' 8 That is regrettable to Professor Taggart because civilian influences 'gave the courts in Pickles the chance to think through in a careful way the implications of [previous] decisions .... '9

Chapter Four examines the statutory provisions relevant to the case and Taggart vividly illustrates shortcomings of the legislative effort aimed at safeguarding Bradford's vvater supply. Despite a seemingly exhaustive prohibition, 10 the House of Lords opined that since it did not own the water before it reached their land, the Corporation had no right to the flow of the water. Professor Taggart explains that the right to property was considered to be a fundamental one, and in light of Dicey's theory of Parliamentary Sovereignty, 11 it was guarded in practice by rules of statutory interpretation alone. Therefore, any statute expropriating private property required clear wording to justify an

6 Supra note 1, at 23. 7 [1894] 3 Ch 53; [1895] l Ch 145; [1895] AC 587. 8 Supra note 1, at 63. 9 Ibid 23. 10 See Bradford Corporation Waterworks Act 1854, s 49 :

Ancl be it enacted, That after the said Many Wells Springs have been purchased by the Company, it sl1all not be lawful for any Person other than the said Company to divert, alter, or appropriate in any other 1\/[anner than by Law they may be legally entitled, any of the Vlaters now supplying or flowing from the same [Part A], or to sink any VVell or Pit, or do any Act, ]'vlatter, or Thing whereby the 'Naters of the said Spiings may be drav,;n off or diminished in Quantity [Part BJ [as annotated by Professor Taggart].

11 Dicey Introduction to the Lavvs of the Constitution (1885).

Book Review 1411

interference with the private property owner's rights. So in relation to the Bradford Waterworks Act 1842, the public interest in an adequate water supply justified the grant of Parliamentary power on the proviso that all property interference was to be fully compensated.

Pickles was excluded from public consultations and not offered compensation because his land existed above the percolating spring water, as opposed to downstream from the point at which it emanated. The interpretation given to the s 49 by their Lordships meant that prior interference with the spring water was not actionable, according to accepted principles of statutory interpretation. Professor Taggart presents the archetypical common lawyer as having 'an ingrained resentment of statute law,' 12 and observes that the 'methods of interpreting statutes developed against the common law backdrop: the preservation of property and liberty, and the minimisation of State interference.' 13

This assessment fits well with the substance of the judgments themselves, which are at pains to underline the fundamental nature of Pickles's property rights. Had Professor Taggart concluded his treatment of the case here the reader would have gained a superior grasp of the legal implications and social context of the case.

Henceforth, Professor Taggart undertakes a more theoretical study, beginning with a consideration of property and water rights. Sources as early as Blackstone are examined to trace the emergence of the theory of prior appropriation as the governing rule of subterranean water. According to this rule, the first landowner to appropriate flowing water has the right to use it to the detriment of all other subsequent users upstream or downstream.

Equipped with this cogent analysis of nineteenth century property rights in relation to water, the reader feels obliged to concur with Professor Taggart's sentiment that 'what was done (by the Corporation) ... was manifestly inadequate for the protection of the water supply.' 14 The scrupulous analysis of theories of property rights provides a vital context to the case. By coalescing important legal historical thought on property rights, Professor Taggart's book offers a rich source for future academic work in this area.

The final two chapters constitute the piece de resistance. Professor Taggart examines several doctrines which mediate a property owner's absolute right to use their property in any way. He begins with the doctrine of abuse of rights as it derived from French law. The doctrine was perceived as a 'manifestation of equity' 15 serving to demarcate the extent of private rights when important collective interests were prejudiced. Several illustrative cases are provided to demonstrate the concept in action. Similar treatment is afforded to the Scottish doctrine of aemulatio vicini, which recognised the right of a landowner to use his property in any way except for pure spite or other oblique motives. Finally

12 Supra note I at 105. 13 Ibid. 14 Ibid 118. 15 Ibid 145.


Professor Taggart turns to consider why the equitable courts of the English Chancery Division did not develop a remedy for the abuse of property rights. The reasons he provides, centre on the historical formalisation of the equitable jurisdiction - '[t]he animating and universalising moral spirit was somehow diminished or entirely lost'. 16 This brief survey of the doctrine of abuse of rights discloses the wealth of civilian acumen, which had evolved to moderate the type of dispute contemplated by their Lordships' decision in the case.

Professor Taggart distils the main causes of the absence of a common law abuse of rights doctrine down to an unwillingness to follow civil law traditions, the effect of legal positivism (in that Pickles's immoral behaviour had to be unlawful before it was actionable) and the common law's predisposition towards wrongs and remedies rather than rights themselves - 'The history of the common law is of the remedial tail wagging the substantive dog'. 17 A clearer way of expressing this is to note that the Corporation failed to win their case because they could identify no legal wrong committed by Pickles. A civilian approach would place more importance on the exercise of the rights at stake, rather than simply looking for a legal wrong.

Malice and tort law are analysed in Chapter Seven. Professor Taggart notes the American approach to malice, citing Oliver Wendell Holmes's suggestion that the intentional infliction of injury should be actionable without any additional requirement of unlawful conduct. He reflects that this created a 'doctrinal vehicle for attacking the malicious exercise of legal rights' in America, under the guise of a prima facie tort. 18 Without such a doctrine (which Holmes oddly chose not to apply to subterranean water rights) the English common law provided only the tort of nuisance. This was unhelpful due to its traditional focus upon emanations from a person's land, not the prevention of such emanations. Perhaps legal evolution of the tort of nuisance could have spanned the conceptual gap. It did not, and it became embedded in the common law of torts that the motive with which conduct is done is irrelevant to its tortiousness.

In his Epilogue, Professor Taggart briefly considers the public / private law divide. He manages to draw the threads of his tale together, noting how the rejection of the Corporation's argument underscored the attitude toward property at the time. He ends with the stimulating observation that: 19

If the common law is to continue to have a role to play in the control of (public and private) power, it is vitally important to recognise the pervasiveness of the doctrines and ideas which limit the exercise of power in the interests of neighbours, the public, and the public good.

16 Ibid 155. 17 Ibid 157. 18 Ibid 186. 19 Ibid.

Book Review 1413

Professor Taggart notes in his first sentence that '[t]his book tells the story of a water dispute in Bradford, England, in the late nineteenth century' .20 To accept this as the only function served by this work would be misleading. Together with providing an engrossing study of the case in its broader context, Abuse of Rights addresses profound topics in an economical fashion to keep the book a manageable and pertinent work. The second half of the book examines cavernous issues which demand a greater depth than Professor Taggart can provide. It is regrettable that Professor Taggart has dichotomised the book into a case study and a theoretical foray. The reader could easily tolerate a work twice the length, and this would do true justice to the implications raised. When one considers the relevance of property law theory to contemporary legal issues it seems inevitable that further work will follow. The current furore in New Zealand over riparian rights and foreshore ownership taken on a new light after digesting Professor Taggart's venture into nineteenth century property law.

At some points, the repetition of material is evident, a matter addressed explicitly in the text. This seems well intentioned but unnecessary as Abuse of Rights is an alluring read that demands thorough attention and sequential reading. So in that respect the chapters could have been constructed to produce a seamless flow without detriment to the topics covered. This indicates the expansive nature of the subject matter covered, which together with Professor Taggart's assiduous referencing will assist in any further research into the area. Abuse of Rights provides an engrossing study of the legal landscape of nineteenth century England together with a fine study of the antithetical relationship between common and civil law approaches to property rights.

Andrew Hough

20 Ibid 1.


BOOKS RECEIVED

BUTLER A (ed), Equity and Trusts in New Zealand Thomson Brookers, Wellington, 2003, cxx, 1247p.

ROWE D and HAWES C (eds), Commercial Law Essays: A J\few Zealand Collection, The Centre for Commercial and Corporate Lavi, Christchurch, 2003, xiv and 143pp.

Documents

LAW REVIEW - NZLII