Victoria University of Wellington Law Review

Protecting Aotearoa Democracy by Reforming Parliament

Geoffrey Palmer — 2025-07-22

New Zealand faces an unstable world, perhaps more so than any time since the Second World War. The geopolitical situation is not the only issue. There has been a noticeable decline of democracy in many countries during the last 20 years. The tendency has been toward populism and authoritarianism, even dictatorship. Liberal democracies have come under challenge and people who live in them are uneasy. Democracy has always been a fragile form of government, difficult to establish and relatively easy to lose. New Zealand is one of the world's oldest democracies, establishing universal male suffrage in 1879 and women getting the vote in 1893. New Zealand has had a vigorous commitment to strong democratic institutions. The rule of law, however, is more vulnerable due to executive domination. Values can ebb away without everyone noticing. To guard against such developments in New Zealand, this article suggests that reforming the New Zealand Parliament would be a sound way to keep the commitment to representative democracy. Some of the 12 recommended measures are significant changes, such as increasing the number of MPs to increase the accountability of the executive to the House of Representatives, and better regulating financial donations to political parties. Others are smaller, such as giving better bite to the Official Information Act 1982 and regulating lobbying. Together the recommended measures amount to a significant reform package with which to face uncertain times.

The Nature of the Trust: Quo vadis, New Zealand?

Lucas Clover Alcolea — 2025-07-22

The exact nature of the trust, as well as the nature of the beneficiary's interests thereunder, has been a matter of sustained debate for those operating in the trusts field for well over a century. Are they proprietary? Obligational? Some combination of the two? The debate is not merely the result of the academic desire for conceptual clarity but rather boils down to debates about how best to explain the practice of trust law and render its various doctrines intelligible. For example, how does one explain a beneficiary's rights to trace misappropriated trust property into substitute assets held by third parties? Or the rule in Saunders v Vautier?
This article analyses the three major explanatory frameworks that have been used to explain these rules, as well as the practice of trust law generally: i) the "rights against rights" framework, ii) the traditional "split title" framework and iii) the "impressed obligations" framework. In doing so, it argues that the most convincing explanation of the practice of trust law lies in a reconciled version of the split title and impressed obligations framework.

Self-represented, Querulant or Vexatious Litigants: Two Sides of a Story

Megumi Ogawa — 2025-07-22

Effective and efficient management of unrepresented litigants has long been a challenge for the Australian legal system. Numerous studies have already been undertaken on this topic by judges, legal practitioners and law academics resulting in various proposals for management strategies to deal with unrepresented litigants. However, those efforts were made in a marked absence of research from unrepresented litigants' viewpoints, in particular, unrepresented litigants' perceptions of the court's conduct and the reasons for unrepresented litigants' reactions to the court's conduct. I argue that this knowledge gap has limited the effective management of unrepresented litigants. In this article, I describe the unrepresented litigant's thoughts and actions in litigation in order to demonstrate that taking them into account will enable better management of unrepresented litigants.

United States v Google LLC: An Analysis under Section 36 of the Commerce Act 1986

Paul Scott — 2025-07-22

Monopolisation cases have become prevalent – at least in the United States where the Federal Government has sued a number of tech companies. A United States District Court found Google liable for exclusive dealing in the first of these cases. In 2020, New Zealand amended its monopolisation provision, s 36 of the Commerce Act 1986. It introduced a substantial lessening of competition test, meaning that a monopolist would be liable under s 36 if its conduct had the purpose, effect or likely effect of substantially lessening competition. The Government did so because it believed the old section did not capture much anticompetitive conduct. It gave exclusive dealing as an example of such conduct.
This article examines how a New Zealand court would decide the Google case under the old and new s 36. The United States decision is a useful comparison as United States monopolisation law requires a plaintiff to show the conduct had an anticompetitive effect. The article argues a New Zealand court would not find Google liable under the old s 36 but that it is unknown what it would do under the new s 36. The reason is that although New Zealand law requires courts to identify a counterfactual in the sense of identifying what would happen in the market without the challenged conduct, United States law does not. This means there is no evidence on the issue, making predictions difficult. However, the article argues that the new s 36 improves New Zealand's monopolisation law.