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Nottage, Luke --- "New Zealand Law through the Internet The Commonwealth Law Tradition and Socio-Legal Experimentation" [1999] MurdochUeJlLaw 4; (1999) 6(1) Murdoch University Electronic Journal of Law

New Zealand Law through the Internet: The Commonwealth Law Tradition and Socio-Legal Experimentation

Author: Luke Nottage B.C.A./LL.B. (VUW), LL.M. (Kyoto)
Senior Lecturer, University of Sydney Faculty of Law
Issue: Volume 6, Number 1 (March 1999)
Contents

    Introduction
  1. Internet use has expanded rapidly in my native New Zealand in the 1990s; and more recently in Japan, where I now teach comparative law. In this article I introduce useful material publically available over the Internet as much as possible, first to provide an overview of New Zealand law within the broader context of a "Commonwealth law" tradition (Part II), followed by a possibly related tradition of what I call "socio-legal experimentation" (Part III). Readers already familiar with the basic contours of the contemporary New Zealand legal system may prefer to jump directly to Part III, which mentions the various latest developments in major innovations such as New Zealand's no-fault accident compensation scheme and deregulatory initiatives In Part IV, I conclude with the hope that this and similar works will help overcome the dilemma inadequate promulgation yet burgeoning and increasingly readily available legislation, despite - or sometimes even because of - deregulation.

  2. For many readers around the globe, both New Zealand law[1] and the notion of Commonwealth law[2] may be unfamiliar. Yet an example of why both can be of interest is provided by a casenote on a fascinating dispute involving what must have been one of New Zealand's first beef export sales to Japan, which unfortunately ended up before the Kobe District Court.[3] The plaintiff New Zealand exporter claimed that a contract had been formed after the offer it sent (by telex and airmail) was accepted by the Kobe importer replying (by similar means); but the latter argued that the contract could only be formed following receipt and acknowledgement of a written contract document. The Court held for the New Zealand plaintiff, applying Japanese contract law principles on this issue. Japanese commentators such as Professor Kazuo Iwasaki have pointed out that arguably New Zealand law should have been applied, under Japanese private international law rules. Nonetheless, in his commentary he first went on to suggest that:

  3. Secondly, he concluded by noting the District Court's dictum that its conclusion, that this sales contract could be concluded without formal contract documentation, was subject to any "special declaration of intention" to the contrary by the contracting parties. He pointed out (Iwasaki 1990: 533) that this was analagous to English cases where a contracting party had stated in negotiations that the agreement was "subject to contract" or "subject to a formal contract", or had declared an intention to similar effect (as in Okura & Co Ltd v Navara Shipping Corp SA 1982 2 Lloyd's Rep 537).

  4. Indeed, when this dispute was being decided in the Kobe District Court, New Zealand had followed English law by enacting the Contracts (Enforcement) Act 1956, partially amending the Statute of Frauds. This Act retained writing requirements for enforceable contracts of guarantee and contracts relating to land, but not for other sales contracts. (Interestingly, however, the New Zealand Law Commission recently proposed to abolish this Act, and hence the vestiges of the Statute of Frauds: see Nottage 1998b.) Thus, if the Kobe District Court had examined New Zealand law in this respect, it would have reached the same conclusion. Secondly, however, as a matter of general contract interpretation rather than specific legislative requirements, perhaps the New Zealand law at the time would have been more ready to find some indication that the parties intended the contract to be formed only upon some formal documentation. (This tendency certainly began to emerge in New Zealand following the Court of Appeal's decisions in Carruthers v Whitaker 1972 2 NZLR 667 and Concorde Enterprises Ltd v Antony Motors (Hutt) Ltd 1981 2 NZLR 385. These precedents have usually been interpreted as creating a presumption that if drafting a contract document is referred to during negotiations for the sale or lease of land and for commercial contracts, this is intended as a prerequisite for contract formation: see Nottage 1998b.)

  5. In any event, Professor Iwasaki certainly was justified to begin with the working assumption that New Zealand law would follow English law. After all, New Zealand was a British colony from 1839, and a Dominion (with extensive self-government) from 1907 until formal independence in 1947. Yet perhaps increasing influence comes from the law of other member states of the Commonwealth, formerly called the British Commonwealth, consisting mainly - but now not exclusively - of other former British dominions and colonies.[4] These include Canada, and especially Australia, with which New Zealand has also been increasingly linked in economic matters since the conclusion of a free trade agreement in 1982.[5] While such nations retain strong ties to Britain, they are now all "nations" and have been for many decades, so it is not surprising that their law sometimes - and perhaps increasingly - has developed in new directions (see, respectively, Mason 1996, Glenn 1993; generally Matson 1993). Thus, New Zealand law today finds commonalities with the law of a range of Commonwealth jurisdictions, sometimes including - but no longer dominated - by English law . On the other hand, there remain significant local variations peculiar to New Zealand law (see generally Cooke 1995). Examples include the abovementioned proposal in New Zealand to abolish the remnants of the Statute of Frauds, still retained in England; yet perhaps an even greater strictness in requiring contract documentation before interpreting negotiations as have resulted in a contract being formed (Nottage 1998b).

  6. Such tensions between divergence and convergence within a legal tradition bear interesting parallels and contrasts with Japan's reception and adaptation of Continental law and legal institutions in the Meiji Era, but space precludes exploring these explicitly here. Instead, Part II of this work briefly identifies some of the "building blocks" of the New Zealand legal system, which also give a sense of similarities and differences compared especially to English and other Commonwealth legal systems. This provides one thread linking some of the very extensive New Zealand law-related materials already available on the Internet (see also Nottage 1998a).

  7. Some of the differences stem from New Zealand's tradition of "socio-legal experimentation", sketched in Part III of this work. Many readers, particularly from Japan, may think of New Zealand simply as a quiet country blessed with magnificent scenery and a rich variety of natural resources. In environmental law and regulation, however, we can already see some innovative developments in New Zealand recently. Such a tradition of socio-legal experimentation goes back to the 19th century, with New Zealand being the first self-governing country to give women the right to vote. It continued with extensive development of welfare state principles in the 20th century (eg the Social Security Act 1938: see Komatsu 1998, Takeda 1998), through to the early 1980s. This culminated in a comprehensive no-fault state accident compensation scheme introduced in 1972 (Campbell 1996). Perhaps the most profound socio-legal experiment, however, has been New Zealand's extensive programme of deregulation, initiated in 1984 by a newly elected Labour government. These four topics will be provide another thread through New Zealand law related material. Deregulation will be a major focus because it remains now such a debated topic worldwide, and particularly in Japan (including in legal circles: see eg the special issue in 632 NBL 1998). Many Japanese are particularly interested in New Zealand's transformation from one of the most regulated economies in the world, into one of the most deregulated (see eg Komatsu 1996, Takahashi 1998).

  8. One reason for the large and increasing volume of New Zealand law related material on the internet is the obligation of public authorities to make public information under the Official Information Act 1982 ("OIA": see also NZLC 1997a). This is subject only to limited exceptions which can be reviewed by Ombudsmen appointed by Parliament pursuant to legislation dating back to 1962 (http://www.liinz.org.nz/liinz/other/ombudsmen/#functions). These are themselves further interesting examples of pathbreaking socio-legal experimentation.

  9. This work organises some of this material following the abovementioned two themes, rather than spelling out exactly the routes by which specific websites or material were located. Readers wanting to locate specific information not signposted here can begin with the extensive website maintained by the Legal Information Institute of New Zealand (LiiNZ: http://www.liinz.org.nz/). It is searchable and hosts homepages of other organisations, as well as extensive links to others divided into categories, including an increasing number of very useful law firm sites. Another excellent searchable collection of material and links is maintained by a large New Zealand law firm (http://www.rmmb.co.nz/links/Welcome.html). Each link has a helpful and time-saving introduction and a "pop-up" menu, and each category of links helpfully includes links to key Australian, UK and other country websites, as well as New Zealand sites. Under the "New Zealand Links" category, for instance, are links to Lincoln University's extensive "Ara nui" website; and the helpful "Search NZ" site, described as a "fault-tolerant ('fuzzy') search engine restricted to New Zealand Cyberspace". The latter is hosted by "The Knowledge Basket". This also provides free access to the full text of all New Zealand legislation in force and fee-based services to other legislative material (GP Legislation Acts, http://www.knowledge-basket.co.nz/gpprint/acts.html), although in August 1998 the government published a discussion paper for public comment on public access to legislative material, including that provided in electronic and internet form (http://www.pco.parliament.govt.nz/papers/).

    Locating New Zealand Law within the Commonwealth Legal Tradition

    The Government

  10. The titular head of state of New Zealand remains Queen Elizabeth II, who is therefore also "Queen of New Zealand" (see her homepage at http://www.royal.gov.uk/today/realms.htm). There has been some discussion about abolishing this constitutional monarchy and becoming a republic; but not to the same extent as in Australia (compare Brookfield 1995 with http://www.republic.org.au/arm/intro.html). The Queen's representative in New Zealand is a Governor-General. However, Governors-General are appointed on the recommendation of the Prime Minister. For many years they have been New Zealanders, often well-known public figures, rather than British citizens sent by the British Crown.[6] Today, the functions of the Governor-General are quite limited, as with the Governor-General in Canada (http://www.gg.ca/rolres_e.html) or the President in some Commonwealth states which are now republics. Nonetheless, following the British tradition of an unwritten (better, uncodified) constitution, these roles are often not explicitly spelt out in New Zealand legislation; instead, some are determined by constitutional convention (McDowell & Webb 1995: 117-8, 128-34).

  11. This may lead to difficulties, for instance as to the role of the Governor-General in formally appointing the Prime Minister. The convention has been that the Governor-General appoints the leader of the party commanding a majority in Parliament (Mulholland 1995: 35-7). This may become more difficult now that coalition governments are more likely following the change from simple "first-past-the-post" electoral rules to a system of mixed-member proportional representation ("MMP"; see http://www.govt.nz/elections/mmpfpp.html, NZLS (ed) 1995a, , Asaka 1997, Simpson (ed) 1998; Kondo 1996b, Ishikawa 1997). However, partly by clearly and persuasively signalling his views well beforehand (http://www.govt.nz/decisionmaker/govgenrole.shtml), the Governor-General's role was not called into question after the first election under this new system, on 12 October 1996. This was so even though it took several months - much longer than Japan following its general election under a new system around that time - for a coalition government to be formed. Both the incumbent National Party and the main opposition Labour Party needed to form a coalition with the New Zealand First Party to secure a majority in Parliament and the right to form a government.[7] Eventually the National Party and the New Zealand Party concluded a publically available coalition agreement (http://www.executive.govt.nz/coalition/coalition.htm).

  12. One of the reasons why a majority of New Zealanders voted in a referendum in 1993 to change the electoral system was that the power of the New Zealand government, once elected, was very extensive. MMP was expected to make Parliament more representative of the voting population, but also to make it more difficult for one political party to monopolise and exercise such "unbridled power" (Palmer & Palmer 1997; Palmer 1992: 175-99). One reason for such power is that there is much overlap between the legislature and the executive, as in the UK and Japan and in contrast to the US.[8] The majority party or coalition parties in Parliament agree on a Prime Minister and members of Cabinet (http://www.executive.govt.nz/), who can direct the activities of government ministries and agencies (lists can be found at http://www.govt.nz/bpsrch/). Over the last decade, however, various reforms have tried to strengthen the independence of Parliament, by appointing new officers responsible only to Parliament such as the Ombudsmen, and by strengthening the Audit Office (http://www.netlink.co.nz/~oag/). On the other hand, some now strongly criticise MMP for creating excessive political uncertainty, resulting for instance in less investment from abroad. They point out that while 54% had supported introducing MMP in the 1993 referendum, the lastest poll shows only 32%, compared to 57% backing a return to the simple "first-past-the-post" system (Editorial, 'Time To End the MMP Farce', The Dominion, 22 December 1998).

  13. A second factor exacerbating "unbridled power" is that the legislature consists of only one House (http://www.parliament.govt.nz/). This limits checks on legislation passed by this House, compared to the bicameral systems in the US and - to a lesser extent - Japan or the UK.

  14. Thirdly, unlike Australia or especially Canada, New Zealand has a unitary rather than a federal system. Even compared to the UK, there has been limited devolution of real authority to local authorities and communities, until some significant initiatives in the 1990s.[9]

  15. Fourthly, unlike Canada, New Zealand still does not have an entrenched Bill of Rights. The Bill of Rights Act 1990 ("BORA": http://www.govt.nz/bor/) is normal legislation which theoretically could be repealed by a majority vote in Parliament at any time. Although it sets out basic human rights, the Act can not be used to strike down inconsistent legislation (s4). But it requires courts to prefer interpretations which are consistent with BORA rights (s6). If ambiguous as to inconsistency, BORA rights must be "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". Despite these restricted premisses, New Zealand courts have been quite activist in interpreting and applying BORA (McDowell & Webb 1995: 155-60) - at least until recently, perhaps (Schwarz 1998). "Rights discourse" in the 1990s has also been advanced by the publicity involved by BORA's requirement that the Attorney-General (http://www.govt.nz/decisionmaker/crown.shtml) report to Parliament when a bill is introduced which appears to breach BORA, usually resulting in the legislation being withdrawn. These developments make BORA's repeal virtually unthinkable politically. Indeed, enacting similar "soft" law in the UK was debated recently (cf Butler 1997), until the new Labour government there introduced legislation to instead incorporate the European Convention on Human Rights directly into UK law (see Zander 1997, and the Lord Chancellor's Department website at http://www.open.gov.uk/lcd/depfram.htm).

  16. Another important brake on the government's "unbridled power" is the increasing importance of the rights of the indigeneous people, the Maaori. Unlike the earlier settlement of Australia, the many Maaori tribes could not be ignored by settlers from Europe ("Paakehaa", in Maaori) who began to arrive after 1800, mainly from the UK. On 6 February 1840, the British Crown concluded the Treaty of Waitangi with a majority of Maaori tribes. The Treaty guaranteed certain rights to Maaori, in particular with respect to their lands. However, the status of the Treaty in both international and domestic law remains unclear.[10] Exacerbating problems of interpretation, there are also versions of the Treaty in both English and Maaori (http://www.archives.dia.govt.nz/holdings/treaty_small.html; for a Japanese translation see Ohira 1995). Nonetheless, there have been clear instances of the Treaty being breached, beginning especially with the Land Wars of the 1860s between certain Maaori tribes and a colonial government increasingly independent of the Colonial Office in London.[11] Many Maaori nursed grievances for decades. At first, these were blunted by an assimiliationist race relations policy, but they re-emerged strongly in the 1970s. More generally, many argued that only a policy of biculturalism and partnership between the New Zealand government (as successor to the British Crown) and the Maaori people was consistent with the Treaty.

    The Judicial System

  17. In 1975, the then Labour Government established the Waitangi Tribunal (http://www.knowledge-basket.co.nz/waitangi/) to hear claims that the government had breached the Treaty. In 1985, it extended its jurisdiction so that it could hear claims of such breaches dating from before 1975 back to the time the Treaty was concluded (see Saito 1993). This has made the Tribunal's workload very heavy, but it continues to render influential reports. Recommendations may be included in these reports and, although they are generally not binding on the government, these are often followed in recognition of the kudos of the Tribunal members (now 16), and its extensive hearings and careful conclusions (see generally Ohira 1994, Ikemoto 1996).

  18. The rest of New Zealand's court system reveal more divergence as well as convergence compared to the court system in the UK or other Commonwealth countries. There are still certain rights of appeal from the Court of Appeal (in the capital, Wellington) to the Judicial Committee of the Privy Council (in London). The Committee consists mainly of British judges from the House of Lords, although occasionally certain serving or retired judges from superior courts in New Zealand, or the few other Commonwealth countries which also retain such appeals, may be invited to join the Committee to hear a particular appeal.[12]

  19. The Committee is a throwback to the days of British colonial administration. In recent years there has been considerable debate about whether or not to retain appeals to the Committee. One argument favouring abolition is that such appeals are so expensive that very few are actually brought anyway, mostly involving commercial or tax law matters. Another is that a court composed mainly of British judges may be unable to fully appreciate local circumstances peculiar to New Zealand in reaching their decisions. The Solicitor-General, the highest official representing the government in legal matters, recently produced a report summarising pros and cons. This led to the National Government introducing a bill into Parliament to abolish appeals (Mulholland 1997: 69-74). However, it has made no progress since the last general election. One reason for this may be that National's new coalition partner in 1996, the New Zealand First Party, drew support from Maaori voters, and certain Maaori groups are said to favour retaining appeals to retain a forum to express grievances against the New Zealand government which is closer to the British Crown, the original signatory to the Treaty.

  20. Already, however, the Committee appears to be astutely redefining a more circumscribed role for itself within the New Zealand court system. This can be seen first in its recent refusal to allow special appeals by adopting a restrictive interpretation of New Zealand's Judicature Act 1908, and by denying that special appeals based on residual prerogative rights of the Crown can only be excluded by express statutory wording (Spiller 1998). Secondly, it seems to be more active in inviting senior New Zealand judges to hear particular cases brought before the Committee. Thirdly, in substantive law such as the issue of liability of local bodies for negligent inspections of buildings (see Invercargill City Council v Hamlin [1996] UKPC 56; 1996 2 WLR 367), the Committee has deferred to a consistent strand of New Zealand court decisions, despite this diverging from trends in British Courts in the 1990s.

  21. Below the Privy Council and the Court of Appeal lie the High Court, with registries in major cities, and numerous District Courts (http://www.law.auckland.ac.nz/court/dc/dchome.html). Compared to Japan, and most other industrialised countries, an intriguing trend in these courts is that overall civil litigation per capita has not increased much, if at all, since the early 1970s (Nottage & Wollschlager 1996). Part, but not all of the explanation, lies in the broad range of other courts and tribunals in New Zealand. Interesting variations associated with the District Courts are the Family Courts and the Youth Court. Judges of these courts have the status of District Court Judge, but they are specialists, and much of the focus of their work and that of these courts is on mediation and reconciliation (Yamaguchi 1998, Michitani 1997: 76-9, 98). About 7000 Justices of the Peace, unpaid and usually not trained lawyers, hear minor criminal cases, following a British tradition. The Disputes Tribunals are more interesting from a comparative perspective, given civil justice reforms in the UK and Japan recently (Wada 1998). These Tribunals provide an informal forum to resolve small claims, with predecessors dating back to 1841, when there was a shortage of legally trained personnel (Spiller et al 1995: 179). There also remain many specialist tribunals, some set up to resolve disputes arising under specific legislation, particularly if novel. Brief outlines of these courts and tribunals can be found on Waikato University Law Library's "Directory of Decisions" website (http://www2.waikato.ac.nz/lawlib/decisions/menu.html) and the website of the Department for Courts (http://www.govt.nz/courts/courts5.html).

  22. The Department was previously part of the Ministry of Justice. As well as promising more efficiency, its establishment on 1 July 1995 can be seen as securing more involvement and autonomy for courts and judges in judicial administration. Nonetheless it is still a government department, as in the UK (http://www.open.gov.uk/lcd/lcdhome.htm) and in contrast to the Supreme Court Secretariat in Japan (Abe 1995). This has led to debate about the process for appointing judges to the higher courts (High Court and Court of Appeal). At present, this is not done by the Department for Courts, which is anyway a government department. Rather, the judges are selected by the Attorney-General, who is usually also the Minister of Justice, and always a politician from the government in power. This has led to fears of politically motivated appointments. There is a constitutional convention in New Zealand that, in deciding who is to be appointed, the Attorney-General acts independently of party political considerations and selects judges according to their qualifications, personal qualities, and relevant experience (McGrath 1998). However, this convention (like others) is not expressly set out. Nor is any other aspect of the process to be followed, by the Attorney-General, prescribed by any statute or regulation. Drawing on developments in Canada's process for appointing federal court judges (McGrath 1998: 317-8), New Zealand's opposition Labour Party recently proposed legislation to regulate the appointments process (Dalziell 1998). It involves creation of a Judicial Appointments Board, consisting of three judges, two civil servants, two law practitioners, and four lay members). The Board would advertise vacancies, review applications in accordance with specified criteria, and present a ranked list of at least two candidates to the Attorney-General. The latter would have to recommend one of these to the Governor-General. However, one proposed criterion for the Board is "recognition of the desirability of reflecting the cultural diversity of New Zealand society in judicial appointments". Such notions have led to sharp criticism from business leaders, some of whom are also opposed to specialised courts like the Employment Court (Kerr 1998).

  23. Most recently, the current Attorney-General (and Minister of Justice) has reaffirmed that all judicial appointments will be handled by the Attorney-General, except for the Chief Justice (appointed by the Prime Minister). While acting independently of Cabinet, consultation will take place with ministers whose portfolios are relevant to the appointments, and with the Ministers of Maaori Affairs and of Women's Affairs. The appointment process will also involve formal advice from the Solicitor-General or another official, the Secretary of Justice, and be based on the following principles:

  24. It remains to be seen when and how these proposals will be implemented. This and other issues regarding judicial administration, and the court system more generally, seem likely to remain the subject of debate over the next few years.

    Lawyers in New Zealand

  25. A related issue concerns law practitioners in New Zealand. Unlike England (especially until 1990), and again partly as a result of an initially limited number of European settlers who arrived in New Zealand last century with adequate legal training, there are few important legal distinctions between solicitors and barristers (Spiller et al 1995: 236, McDowell & Webb 1995: 273-4). Those wishing to qualify as lawyers must first graduate from one of New Zealand's five state-run Law Faculties (see eg the website of Victoria University Law Faculty: http://www.law.vuw.ac.nz/). Next, they must complete a programme of professional training, reduced in 1987 from a one-year part-time course to a 3-month intensive course. They can then register ("be enrolled") immediately as both barristers and solicitors. However, those wishing to practise law must pay for an annual practising certificate, and those wishing to concentrate primarily on court work can take out a practising certificate only as a barrister ("barrister sole"). In 1995, 837 students graduated from the law schools (a majority are women). In 1996, 726 completed professional training (49% women). Upon completion, about 40% went on to employment as a barrister and solicitor or as barrister sole; 24% went on to other employment; but 36% (mostly wanting to join the workforce) had not secured employment. In 1997 there were some 7400 lawyers (28% women) working as barristers and solicitors or as barristers sole, with 90% in private practice (NZLC 1997b: 4, 9-12). In 1998, there were 7547 (32% women), giving one practising lawyer per 502 of population in New Zealand (Haynes 1998)!

  26. Various rules apply to barristers sole, developed from the English law tradition. One involves receiving "briefs" through the intermediation of solicitors, rather than directly from the clients themselves. The best barristers sole also may be appointed "Queens' Counsel" (QC), an honour found in other Commonwealth jurisdictions as well. Further, working as a barrister sole was traditionally a prerequisite to being appointed a judge in New Zealand. Recently, however, some well-known lawyers whose work had mainly been out of court (solicitors, former legal academics) have been appointed to the higher Courts.

  27. Finally, all lawyers must belong to local law societies, federated into the New Zealand Law Society (http://www.nz-lawsoc.org.nz/about/intro.htm#func). By the end of 1998, however, it appreared that Parliament might soon enact a Bill to deregulate the district law societies, making membership voluntary (367 Council Brief 1). These and many other aspects of the legal profession in New Zealand, such as legal ethics (see http://www.vuw.ac.nz/law/Staff/Lecturers/Duncan_Webb/ethics_index.html) are also the subject of considerable debate at the end of the 1990s.

    A Tradition of Socio-Legal Experimentation

  28. Rather than locating New Zealand and its law within the Commonwealth, however, most Japanese readers probably associate New Zealand first with beautiful scenery and rich natural resources. Certainly, you can find -- and send over the internet! -- pretty "postcards" on the website of the NZ Tourism Board (http://www.nztb.govt.nz/). This website also contains some basic "Facts on NZ", including its unique flora and fauna. However, not surprisingly, the New Zealand government is an active contributor to the development of the international environmental law, as recent statements to the UN in New York show (http://www.undp.org/missions/newzealand/environ.htm). Domestically, a sign of its interest in environmental issues - as well as an example of recent attempts to strengthen the independence of Parliament, mentioned in Part II - is the establishment of a Parliamentary Commissioner for the Environment (http://www.liinz.org.nz/liinz/other/environment/). The Commissioner has been active in reviewing the system of environmental management established by the government, and investigating matters adversely effecting the environment.

    The Resource Management Act

  29. An even more significant innovation was the enactment of the Resource Management Act 1991 ("RMA").[13] Rather than prescribing what activities should or should not be allowed, the RMA emphasised the effect any proposed activity may have on the environment. Local authorities were given most of the responsibility for supervising this process, which involves considerable consultation with members of the relevant community (see the Ministry of the Environment's website at http://www.mfe.govt.nz/rma11.htm).

  30. Following a common pattern in New Zealand, new dispute resolution mechanisms were set up along with innovative changes in the substantive law. In particular, a specialist Environmental Court (http://tipnet.taranaki.ac.nz/EnvCourt/court.htm) deals with matters involving the RMA, as well as other environmental legislation. Except for enforcement proceedings, most hearings are usually conducted by one Environment Judge (who is also a District Court Judge) and two Environment Commissioners (not necessarily trained lawyers). Like the Waitangi Tribunal, the Court is not bound by strict rules of evidence and most of its work involves public interest questions; but its decisions are legally binding and can be appealed.

  31. Throughout 1998, however, the government repeatedly raised perceived problems in implementation experienced by the new regime (see http://www.arcadia.co.nz/). On November 16, the Minister for the Environment (MfE 1998) published a major discussion paper. Key proposed reforms to the RMA included:

  32. Submissions were invited by 31 January 1999; but the Minister wrote in the document that he was envisaging presenting a Bill to Parliament in late February or March 1999. He has since reiterated his intention, arguing that the present system often works poorly particularly for individuals and small business operators seeking to make smaller property developments ('No Conspiracy Behind Amendments to RMA', The Press, 7 December 1998). However, the proposals have been strongly criticised by the opposition as "obstructing community participation and increasing costs, particularly for small developers, community and environmental groups, and individuals" ("Govt Draws Fire Over 'Gutting' Act", The Press, 17 November 1998). The National Party's new political ally, the rightist Act Party, also denounced the proposals; but for not going far enough. Nonetheless, if even some of the proposed changes are enacted, they will bring a major reorientation of the RMA, initiating another bout of change.

    Womens' Rights

  33. As mentioned in my Introduction, this sort of socio-legal experimentation was already apparent in the 19th century. An example is the granting of the right to vote to women in 1893, after Parliament had been petititioned (http://www.archives.dia.govt.nz/holdings/petition_large.html).[14] To commemorate this, the government established the 1993 Suffrage Centennial Year Trust to fund projects over 1993-1996, supported by the Ministry of Womens' Affairs (http://www.mwa.govt.nz/who/who10.html). The Ministry's establishment in 1986, and the fact that both the present Prime Minister (http://www.executive.govt.nz/minister/pm/index.html) and Leader of the main opposition Labour Party (http://www.labour.org.nz/people/clark.html) are women, show the fruits of this tradition of socio-legal experimentation in womens' rights. However, there are still major problems in this respect, including access to justice for women, currently being studied by the government.[15]

    Accident Compensation

  34. A third example of socio-legal experimentation is New Zealand's accident compensation ("ACC") scheme. It is well-known to Japanese legal scholars (eg Matsumoto & Tejima 1990), especially those at or from Nagoya University (Morishima 1982, Kato (ed) 1989, Asai 1991). This scheme was enacted in 1972 to provide compensation from the state on a no-fault basis for any personal injury by accident, in exchange for abolishing citizens' rights to sue those possibly responsible for causing the injury (see http://www.acc.org/a/ahistory.htm). Major changes were made in 1982 and 1992. The latter amendments (Asai 1997a, 1997b) have resulted in the system operating more like an insurance scheme (Miller 1994; see also NZLS (ed) 1997a). As of 1997, the scheme consisted of the following components:

  35. Income and expenditures for each of these accounts in 1998 were: $1370 vs $842 million; $456 vs $361 million; $285 vs $258 million; $12.9 vs $12.9 million; $160 vs $169 million (see http://www.acc.org.nz/l/latest.html, 3 November 1998). Improvements in the employers' and earners' accounts were achieved by the government maintaining a high rate of premiums charged to employers (a decline from an average of $2.61 per $100 wages paid to $2.35, compared to the $1.70 average which the Accident Rehabilitation and Insurance Compensation Corporation had recommended as sustainable), and sharply increasing premiums levied on earners (from $0.70 to $1.20, rather than the recommended $0.80). The Minister then responsible for the Corporation, Jenny Shipley (now the Prime Minister), stated that these premiums had been set to have it moving back from a "pay-as you-go" to a "fully-funded basis over 15 years ("ACC Will Cost Workers 70% More", The Press, 3 December 1997). The former basis involves raising money through levies etc each year to cover compensation etc paid out that year, ie only the present costs of injuries. The latter involves setting levies etc calculated to cover both present and future costs of each year's injuries. This is the basis on which private insurance companies operate. Many therefore saw these changes as another step towards readying the scheme to compete against private insurers following deregulation ("ACC Changes Seen As Step to Privatisation", The Press, 3 December 1998).

  36. Recent reforms also include the accredited employers' programme, under which employers manage their own claims. On 27 February 1998, for instance, the meat industry joined in one such programme ("ACC and meat industry join forces to target injury", see http://www.acc.org.nz/ under "Media Releases" and "Corporate"). Another is rebates paid to major employers with good claim records (see eg "ACC pays $85M in rebates to safety-conscious employers", under "Media Releases" and "the Scheme", 22 May 1998). Such developments already introduce more competition into the scheme.

  37. Then, in an annual speech in Parliament on 17 February 1998 (http://www.executive.govt.nz/minister/shipley/pms170298.htm), the Prime Minister also promised legislation that "will bring elements of increased competition into the provision of ACC". At that stage, decisions were promised in May and June 1998, with new measures being phased in from early 1999. In fact, the Accident Insurance Bill was introduced to Parliament on 17 September 1998 ("Listen to the Voters on ACC, Says Minister",http://www.executive.govt.nz/minister/mccully/n980917a.htm). Major proposals included allowing employers to go to private insurers, as well as a new stand-alone government entity, for (still mandatory) work related injury cover; and for self-employed people to do the same for both work and non-work related injuries. It was promptly criticised by New Zealand's main weekly newsletter, for neglecting "the costs of the proposed regulatory regime to ensure claimants receive compensation even if their employer is insolvent or uninsured, to penalise defaulting employers, and to register and supervise insurers, must be considerable. Factors then listed in the Bill's explanatory note (improved incentives for injury prevention, greater choice and flexibility, improved focus on claimants' needs and rehabilitation) that 'these costs will be offset by' seem based more on advertising appeal (or ideology) than practical experience" (Editorial, The Capital Letter, 23 September 1998; accessable through http://www.nbr.co.nz/ under "The Law"). Nonetheless, the insurance industry quickly began positioning itself to compete for an estimated NZ$1 billion worth of accident compensation business ("Insurers Gear Up For ACC", The Press, 30 September 1998). Two of New Zealand's largest private insurance companies concluded an alliance to offer worksite safety assessment, accident prevention services, early treatment, payment of medical and treatment costs, weekly income entitlement while off work, and rehabilitation assistance ("ACC Plans Spark Insurers' Accord, The Press, 17 November 1998).

  38. A special parliamentary select committee was set up to scrutinise the lengthy proposed legislation; but it only had only one month to call for public submissions, and another month before reporting back to Parliament. It largely kept to this tight schedule, although trenchant critiques eg by the New Zealand Society (511 Lawtalk 39-40) meant heavy redrafting before the committee on 30 November 1998 reported back recommending that the proposals proceed to a clause-by-clause debate in Parliament. Parliamentarians approved this recommendation 62 to 58 votes. The chair of the committee, a National Party parliamentarian, reported some insurance companies as saying premiums could be cut by 20% when they began competing under the proposed scheme. But opposition spokeswomen from the Labour and Alliance Parties argued, respectively, that even insurance companies admitted that the system would become more expensive and litigious, and that there was no compelling evidence that insurance premiums would fall except by reducing entitles to those making claims for injury cover (Peter Mathias, 'ACC Competition Divides Parties', The Press, 3 December 1998).

  39. On 9 December, independent parliamentarian Alamein Kopu was reported as having voted against the revised proposals ('Kopu Votes Against Government on ACC Bill', The Dominion, 10 December 1998), but only after confirming with the National Party that they still had the (barest of) majorities needed to finally enact the Bill. (Mrs Kopu, who had left the opposition Alliance Party -- amidst some controversy as she had been elected from that Party List, ie under the proportional representation category -- has since supported the ruling National Party coalition on issues defined as being of 'confidence' ie central to the latter's political programme.) At the last minute, despite the Minister of Justice arguing -- somewhat ironically, given the strict timetable his government had imposed for enactment -- that this was an important matter which should have been considered by a select committee with public input, the government then had to agree to a further amendment, proposed by an Act Party politician (in the coalition), which allowed injured victims to sue offenders for punitive damages as well as accident compensation. Several months earlier, the Court of Appeal had judged that this was not permissable under the previous legislation, because it resulted in "double jeopardy" ie offenders being punished twice for their crimes ('Victims Get Right to Sue', The Press, 12 December 1998). On the other hand, Parliament agreed that spouses, children and other dependents who catch HIV from a parent or partner infected due to medical misadventure should be covered, confirming the holding in a recent High Court case involving a wife and son who caught AIDS from the husband who had been given a contaminated blood transfusion ('Victims Get Back Right to Sue', The Dominion, 12 December 1998). In the end, after a marathon 24-hour debate 'under urgency', Parliament enacted by 61 votes to 59 the new legislation, incorporating these points ('ACC Bill Passed Despite Opposition', 12 December 1998).

  40. The Labour Party has announced that it would repeal the legislation if it leads the next government, forcing employers back into a totally publically-provided scheme. An Alliance Party spokeswoman has gone further, warning that private insurance companies might even be forced to pay accident compensation insurance premiums which they will begin to receive, when the Act comes into force in July 1999, back to the public accident compensation provider ('ACC Revamp Goes Through', The Press, 14 December 1998). But Cabinet was quickly asked to approve funding to set up a new State-Owned Enterprise (see III.D below) -- instead of Accident Rehabilitation and Compensation Insurance Corporation ("ARCIA"), and to be headed by a Wellington businessman -- to compete for workplace accident compensation business ('Govt Funding Sought for New SOE', 15 December 1998). Thus, it is already becoming difficult to roll back the reform.

  41. Moreover, while for years the initial architects of the scheme have argued strongly that in its original form a comprehensive community-based (ie state-run) no-fault accident scheme remains sounder policy (eg Palmer 1994, Palmer comments to Epstein 1996), the view expressed by the editor of The Press shortly after enactment of the latest changes probably would find broad agreement nowadays. On the one hand, he correctly criticises enactment of these latest major changes for being too rushed and insufficiently thought through, and "another example of the coalition Government trying to show it is not paralyzed". Yet he notes the problems the ACC system had been facing. These include inadequate treatments and rehabilitation attempts, with horror stories of malingerers receiving benefits for years. He welcomed the new legislation's stricter tests of "capacity to work" as introducing some much-needed rigour. Also noted were the huge future costs of ACC's long-term claimaints estimated by some, NZ$7.67 billion, as well as the many minor claims in the 1.5 million claims made last year. This adds up to an estimated $4.2 billion in productivity lost from workplace accidents last year, with 88,000 people injured and 173 killed. Hence the ACC Minister's arguments, resulting in this new legislation, that private insurance is needed to created more incentives to remedy this record; and to reward employers, who choose to carry the risk of minor claims themselves, with a reduced premiums. Nonetheless, he points out that it still remains to be seen whether premiums will in fact fall ('Competition for ACC', The Press, 14 December 1998).

  42. On that point too, however, events are already moving on. No doubt partly to encourage private insurers to set their premiums lower from July 1999, on 21 December the government further reduced the average employer levy charged by ARCIA, from $2.35 to $2.14 per $100 of wages (with effect from April 1999). Further reductions are not inconceivable, since ARCIA officials had first recommended a decrease to $1.84. So far, this view has been outweighed by more conservative Treasury and Department of Labour officials' concerns as to the multi-billion, still not totally funded, "tail" of long-term claimants remaining in ARCIA's employer's account from previous years ('Workers' ACC Levy to Rise Again', The Dominion, 22 December 1998). As competition opens up, however, further reductions may become inevitable, perhaps with the government eventually "writing off" any unfunded leftover liablity.

  43. Already, moreover, the government simultaneously announced a further increase in the earners' (employees') premium, from $1.20 to $1.40. (This means the premium has been doubled since December 1997.) While the ACC Minister argued that this further increase was driven by the need to fully fund the costs of accidents in this account too, he said also that 'I imagine that many employees will see this announcement another increase and ask when they too can have the benefit of choice and competition exerting downwards pressure on the earners' premium, and promised this possibility would be examined too before July 1999 ('Employers' ACC Levies to Fall', The Press, 22 December 1998). In other words, this seems to be setting the stage for further amendments allowing private insurers also to begin competing for self-insurance by employees for non-work related injuries ('Private Accident Insurance 'Could Result in Lower Levies', The Press, 23 December 1998).

  44. Similarly ominous is a recent proposal for a greater than expected increase in motor vehicle registration fees or in petrol levies, which found the motor vehicle account under the ACC scheme. The Corporation had advised the government that fully funding the account would require only a $36 increase in the annual registration fee or a 3 percent increase in the price of a litre of petrol; but in early April 1999 it said it might have to recommend a $52.50 increase in the registration fee, or a 3 percent increase in petrol tax plus a $13.50 rise in the registration fee. The new Chairman of the Corporation, a former Labour Party finance minister, argues that it is the result of further actuarial research. This found smaller declines in motor vehicle and compensation claimed than anticipated at the end of 1998, when researchers had just looked at trends in all the ACC accounts and assumed that they would apply largely to the motor vehicle account. The actuaries have also recommended a 10 percent "margin for prudence". The present ACC Minister is reported as having expressed "surprise and serious disappointment", saying that switching the motor vehicle account from a pay-as-you-go to a fully-funded scheme was always going to increase costs for motorists, but the latest increase was "most unwelcome" ("ACC Increase 'Not Welcome'",The Press, 10 April 1999). On the other hand, this development seems odd given that less than two years ago the then ACC Minister (Mrs Shipley) said the motor vehicle account had healthy reserves (Editorial, "Disguised Taxes", The Press, 14 April 1999). The current Minister's protestations therefore seem like "crocodile tears". After all, such unexpectedly large increases prompt discontent among the public, but they could then pave the way to the government allowing in private insurers to offer cover for motor vehicle accidents in competition with the Corporation. The end result will still be a compulsory no-fault insurance scheme, but including private insurers - a system which begins to resemble that which has evolved in Japan (Tanase 1990).

  45. This proposed increase to supposedly fully fund the motor vehicle account may not eventuate, since it has drawn sharp criticism from other political parties as surreptitiously increasing taxation generally ("National Accused of Taxing By Stealth", The Press, 13 April 1999). The government must be very careful in managing such criticism, since it faces a general election by the end of 1999 at the latest. Even if the opposition parties regain power, however, they will already find it hard to reverse the amendments of December 1998 and their after-effects. And if the ruling Coalition remains in power, it may proceed quite rapidly to further open up the scheme to competition from private insurers: first, the earners' account; then, the motor vehicle account. Ultimately, the Corporation may well be privatised. In sum, one of New Zealand's most prominent examples of socio-legal experimentation - a comprehensive state-run no-fault accident compensation scheme - will have been displaced largely under pressure from a more recent type of experimentation: deregulation and privatisation.

    Deregulation

  46. As shown by the invokation of terms like "competition" and "choice" in the reform debate briefly chronicled above, one of the driving forces behind recent changes to ACC is certainly the ideology of "new-right" political economics (eg Epstein 1996). This emerged in the UK with Thatcherism (Toyonaga 1998), and has spread to other Commonwealth countries in recent years. But it was applied most rapidly and extensively in New Zealand after the Labour Party took power in the 1984 general election. The result of their policies, followed by policies along similar lines pursued by the National Party when in power from 1990 to 1996, has left New Zealand with one of the most deregulated economies in the world. Economic deregulation has also been accompanied by an extensive programme of "reshaping the state".There is an increasing amount of writing in Japan on both.[16] However, this has not always focused on the major changes to the legislative environment which this process has entailed. Nor has this writing been tied to what is available now on the Internet.

  47. A concise chronology of reforms from 1984-1989 can be found in a recent report commissioned from an American expert by the State Services Commission (Schick 1996: 17). The rest of this Part focuses on events which most involved changes to the legal environment, adding cross-references to material from relevant websites and some further developments from 1990-1995.

  48. The period of reform began with an economic crisis which turned into a constitutional crisis. The Labour Party won the general election of 1984, but the incumbent Prime Minister initially refused to follow its advice and devalue the New Zealand dollar, which experienced a run depleting currency reserves. This led to the dollar being floated and foreign exchange markets being deregulated, and eventually the enactment of the Constitution Act 1986 (Palmer 1992: 45-7).

  49. The new government then embarked on a process of opening New Zealand's economy to the world economy and international competition. Inward foreign direct investment was almost completely liberalised in 1985.[17] In 1986, a busy year, major tax reform began with enactment of a goods and services tax ("GST": http://www.ird.govt.nz/profess/gst605.htm), followed by large reductions in income and corporate tax rates. The stock exchange was deregulated (see now http://www.nzse.co.nz/). Quantitative restrictions on imported goods were removed, and tariffs were reduced.[18] All these changes quickly led to increased investment, particularly from the US.

  50. Providing alternative but more general and transparent controls over growing investment and goods from overseas, however, new legislation was enacted in 1986. The Commerce Act, administered by the Commerce Commission and ultimately what is now the Ministry of Commerce (http://www.moc.govt.nz/cae/bus_law.html) created new rules regulating mergers and trade practices. Consumer rights were strengthened by the Fair Trading Act ("FTA"), administered mainly by a new Ministry of Consumer Affairs (http://www.moc.govt.nz/mca/P1.html). Both laws drew heavily on Australian legislation.[19]

  51. The State-Owned Enterprises Act 1986 required government departments engaged in trading activities to act like private trading enterprises. Beginning in 1987, many such "SOEs" have been privatised. The State Sector Act 1988 (also summarised on the State Services Commission's website at http://www.ssc.govt.nz/) defines those departments which form the - now much reduced - "public service". It set how their "chief executives" were to be employed and the goals they were to pursue, but then gave them much more management autonomy.

  52. The Reserve Bank Act 1989 required New Zealand's central banking authority to maintain price stability. The Reserve Bank must also define, in a public "Policy Targets Agreement" with the government, how it interprets this obligation. (Under the latest (15 December 1997) Agreement, it is 12-monthly price increases of between 0-3% in the All Groups Consumers Price Index excluding Credit Services (CPIX) as published by Statistics New Zealand: see http://www.rbnz.govt.nz/pta.htm.) This, combined with a high interest rate/high exchange rate policy, has helped create and maintain a low inflation economy, after high inflation in the 1970s and early 1980s. The Bank is also responsible for supervising the financial system. In January 1998, for instance, it announced a review of disclosure requirements for registered banks (http://www.rbnz.govt.nz/news/nr980126.htm).

  53. The Public Finance Act 1989, along with the SOEs Act, has made public sector accounting more transparent by requiring financial statements to be prepared under Generally Accepted Accounting Practice ("GAAP"), a set of rules set independently of the government.[20] GAAP is now applied to fiscal forecasts which governments must now prepare under the Fiscal Responsibility Act 1994. This is designed to force the government to be more transparent about its policy intentions, and the short- and long-term impact of its spending and taxation decisions. It was hoped that this would help reduce uncertainty over future fiscal management after the introduction of MMP, with more potential for coalition governments, and the a fiscal surplus in 1994 which was the first in 17 years.

  54. The Employment Contracts Act 1991 abolished compulsory unionism, and allowed employees and employers to negotiate either individual or collective employment contracts. It also established specialist Employment Tribunals and an Employment Court with exclusive jurisidiction to hear disputes involving employment contracts (http://www.nzir.dol.govt.nz/law/eca/features.html#purpose). Again, tribunals were intended to provide a more informal forum encouraging mediation; but an increasing number of employment disputes has made this more difficult to achieve this (see generally Dannin 1997).

  55. Another area where reforms have been undertaken in the 1990s is the health sector. Results have been mixed, and perceptions comparatively negative ("Third Want Health System to Be Rebuilt", The Press, 23 October 1998). Accompanying often novel reforms in this area have been attempts to safeguard patients' rights by means of new dispute resolution mechanisms. One of the first Codes set by the Privacy Commissioner under the Privacy Act 1993 was the Health Information Privacy Code 1994 (http://www.nzhis.govt.nz/publications/Privacy.html). Intriguingly, over 1993-6 there was no right to damages under the Act, so the Commissioner had to rely largely on publicity and persuasion to resolve disputes and raise standards of privacy among private and public agencies, yet the Act had a major impact in practice. So much so, however, that some now question whether this threatens free speech and democracy. Others criticise the frequency with which people withhold information by claiming privacy principles when none apply, particularly in the health system ("Privacy Law 'Damaging Democracy'", The Press, 3 November 1998). In addition, the Health and Disability Commissioner Act 1994 was enacted following major health sector reform legislation in 1993. Fully operational since 1996 (http://www.knowledge-basket.co.nz/hdc/), this Commissioner's office is another increasingly important agency, appointed by Parliament both to promote rights and resolve disputes (NZLS (ed) 1997).

    Conclusion: Cyberspace and the Future of New Zealand Law?

  56. In 1979, the New Zealand legal system was criticised for having "the fastest law in the West".[21] As well the government's "unbridled power", this highlighted the increasing quantity and complexity of enacted law in New Zealand. Almost two decades later, what has changed?

  57. As argued in Part II, the government's power has been bridled somewhat. On the other hand, the New Zealand legal system has long looked for inspiration beyond the UK, towards other Commonwealth countries, and does so perhaps increasingly, despite globalisation of its economy in other directions (eg towards Asia). While this may result in more satisfactory solutions, greater diversity of sources - themselves subject to patterns of divergence as well as convergence - make for increasing complexity.

  58. Furthermore, while many areas of economic activity have been deregulated, the legal environment is certainly just as complex - probably more so - and the volume of "law" has not necesarily declined. The amendments to the ACC scheme over the years have given rise to a large literature (see generally eg Rennie & Raynal eds). In particular, those enacted in December 1998 have created a normative system of great complexity, directly affecting most of New Zealand's population and requiring careful thinking through on the part of employers and their legal and business advisors. Not surprisingly, then, one of the New Zealand Law Society's first series of Continuing Legal Education seminars for 1999 was on "Competitive Delivery of Accident Compensation" (Ireland & Stevenson 1999), and a resultant checklist figures prominently on the Law Society's homepage (http://www.nz-lawsoc.org.nz/cle/accchecklist.htm).

  59. More generally, libertarian critics in New Zealand have pointed out that "over the last ten years, government has introduced over 1600 pieces of legislation and 3600 new regulations". They argue that:

  60. New regulation is layered on top of old rigidities, which themselves must be updated to keep pace with the world. The process is clogged; and too often the attempts to regulate behaviour frustrate the very human talents and initiatives they are designed to protect. Moreover, as regulation grows, it multiplies, fed by inherent gaps in information available to public officials, the lack of constraint on their self-interested behaviour, and the actions of politicians, who remain largely powerless in a self-perpetuating web of "regulatory creep". (Shirtcliffe & English 1998: 259)

  61. They criticise the lack of transparent mechanisms for determining priority for bids from various government departments for new legislation, given the limited (7,000) hours set each year for Parliamentary Counsel to actually draft legislation; and the fact that successful bids can justify departments applying for more budget and staff (and renewed bids). They also criticise regulation-making on similar grounds. Shirtcliffe and English note (1998: 261) that the government has recently announced measures to improve regulatory intervention, including:

  62. While acknowledging these as a valuable first step, they offer a more radical proposal: for every new regulation created, a number of existing regulations must be repealed. Cabinet could set the ratio, and departments could bid with each other for scarce drafting time by meeting or exceeding this ratio. In response, Pardy (1998) argues that there remains a need to distinguish good rules (those which define markets) and bad rules (those which distort markets, being specifically applicable to particular transactions or activities). Nonetheless, he agrees with the existence of the problem they identify, namely the unrestricted growth in regulatory control and the sheer size of government.

  63. The apparent contradiction of increasing volume and complexity of law, despite deregulation, is probably very deeply rooted, however. The new legal regimes outlined in Part 3 have aimed primarily to provide ground rules for areas of activity previously involving the state. As a result, for instance:

  64. Despite liberalisation over the last 15 years, in some (limited) aspects the financial system in New Zealand is more regulated now that it was prior to 1984. A system of prudential supervision has arisen that was absent in the early 1980s, imposing new requirements on banks. However these additional requirements can also be seen as moves to promote competition. It is argued that strengthening competition may involve the removal or the strengthening of regulations depending on the issue at hand. (Grimes 1998: 1).

  65. This point can be developed further by considering New Zealand's deregulation of its telecommunications markets. At a recent "online conference" building up to last year's Global Information Summit hosted by the Nihon Keizai Shimbun in Tokyo, on 10 March 1998, Marja Erola explained the process for her native Finland as involving a "camel curve":

  66. The main curve - telecom regulation - is like a hump of a camel. The x-axis is freedom of operations (monopoly - competition), the y-axis is amount or area of regulation. At a monopolistic situation, the amount of regulation can be quite modest; but when the markets are opened it normally means more regulation. Then when the liberalisation process continues towards competition the amount of regulation starts to diminish.

  67. This is some kind of a convergence process. Under the main curve we'll see another curve starting to grow quite slowly. It is 'competition legislation', all kind of normal business legislation (copyrights, consumer rights etc) can be included there. Thus, liberalisation and deregulation mean that telecom business is treated like normal business in a competitive environment. - I try to draw this camel curve here. ...

    Amount or area of regulation

  68. In Finland we have quite nicely passed the hump. We have our historical milestones of the regulatory development. Most countries are still approximately on the top of the curve. One detail should be mentioned: if the tail of the telecom regulation curve of a country is well above the x-axis it propably means that the government of this country is making business by licensing. Which is perhaps not so fair, normally customers have to pay the bill. (Edited from http://www.nikkei.co.jp/summit/english/online/emlnet3.html, comment 020 "The Leading Role of the Private Sector" unfortunately this valuable material is no longer available through the Nikkei's website, since http://www.nikkei.co.jp/summit/english/ now holds material on the 1999 Summit; but a printout is available from me on request)

  69. At first glance, New Zealand also appears to have passed the hump. In the late 1980s public ownership and specific rules were replaced by general competition law principles as the basis for regulation. Nonetheless:

  70. Though widely characterised as complete deregulation, in practice the rejection of detailed regulatory principles was not as complete as superficial consideration suggests. Social regulatory requirements, though not contained in legislation, were retained within the company constitution of the privatised dominant incumbent, Telecom New Zealand. Secondary legislation imposed a variety of disclosure requirements on the company, intended to reduce the information asymmetry between Telecom and new entrants in relation to access conditions. Most importantly, and yet most hidden, government maintained a role in reminding Telecom New Zealand of its commitment to provide interconnection to new entrants on reasonable terms; and threatened to invoke existing legislation or to pass new legislation to provide more detailed principles of interconnection than the competition rules supplied, if Telecom failed to honour its commitments. (Scott 1999: 3)

  71. Nonetheless, Telecom's competitors have persistently argued that this has not been enough. As an indication that the regulatory playing field is still not flat, they point to high profits consistently reported by Telecom since its privatisation. The major competitors, Clear Communications Ltd, has pursued claims vigorously through the courts, although with little overt success.[22] This has resulted in another level of complexity to the deregulatory process:

  72. The parties have responded to the absence of detailed principles for regulation (which resulted in their negotiating interconnection 'in a fog' according to the courts) by developing their own detailed architecture of substantive and procedural principles in a contractual interconnection agreement. The procedural aspects include a hierarchy of mechanisms for resolving disputes which effectively represent a pyramid within the base of the regulatory pyramid .... This experience suggests that the actors found the generalized regime provided by the government to be inadequate to make competition workable." (Scott 1999: 4)

  73. This example shows that it is not enough to focus simply on bodies of primary or even secondary legislation. More informal mechanisms of regulatory governance must also be brought into the picture, along with the contractual regimes negotiated or renegotiated among private and semi-private actors, within or outside the shadow of the regulatory regime. All this may be accompanied by much litigation and out-of-court dispute resolution. That has been a defining feature of New Zealand's telecommunications sector in the 1990s. As we have seen in other areas, such as the environment and the health sector (Part 3 above), we also the emergence of a variety of new forums for alternative dispute resolution (ADR). It is not surprising, then, that the net result is a significant increase in legal complexity, despite deregulation. This suggests that the problems of "legalisation" observed in contemporary industrialised democracies, including New Zealand and Japan (Tanaka 1998), are not going to resolve themselves simply with the dismantling of welfare states.

  74. Indeed, Susskind (1996) talks of the "hyper-regulated society" largely in the context of the UK - ironically, of course, since this was the birthplace of the Thatcherite model of economic deregulation and privatisation (Toyonaga). Moreover, he links hyper-regulation to another problem: inadequate promulgation. This creates a dilemma, in that we still expect citizens to obey the law. Crucially, Susskind argues that this dilemma is exacerbated by the present "technology gap". This is created by great advances in "data processing" but inadequate "information processing". The increasing amount of New Zealand law related material available on the Internet risks exacerbating this situation. But it creates rich opportunities for "information engineers" to transform this additional information into increasingly user-friendly form (Nottage, 1998a).

  75. In this short work, I have attempted to do just that. The rich legal infrastructure in New Zealand, including the many and increasingly computer literate lawyers and legal academics, leaves me quite confident that others there will do so as well, in a variety of ways. Hopefully, their counterparts in Japan and elsewhere also will be encouraged to do so, and transnational collaboration in this endeavour will continue to grow.

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* Associate Professor of Transnational Law, Kyushu University (http://www.law.kyushu-u.ac.jp/~luke/); Barrister and Solicitor of the High Court of New Zealand. I thank Associate Professor Makato Kondo (Gifu University) for help in locating certain New Zealand law related material in Japanese cited herein, and I thank New Zealand's Honorary Consulate in Fukuoka for making available to me the New Zealand News reports. The manuscript for this work was completed on 20 November 1998, but there is a strong likelihood of significant legal, political, and economic changes subsequently. I welcome correspondence and comments, preferably addressed to .

Notes

[1] For another still rare overview of New Zealand law in Japanese, see Kondo (trans) 1996a. An increasing among of law-related material is becoming available in Japanese, however, following the establishment in the early 1990s of what is now the "New Zealand Studies Society - Japan", based in the Kansai (enquiries can be directed to c/o Prof Makoto Tanabe, Sonoda Gakuen Joshi Daigaku Tanki Daigakubu, Amagasaki-shi, Minami Tsukuguchi-cho, 7-29-1); and the "Japan Society for New Zealand Studies" (Prof Yasuaki Takahashi, Gunma Daigaku Shakai Joho Gakubu Kokusai Kankei Kenkyushitsu, Maebashi-shi, Aramaki-cho, 4-2). The present work also aims to introduce some of this material.

[2] There has been almost no writing in Japanese on Commonwealth law generically. Exceptionally, see eg Nottage 1997 (but note that the URL for the full text of NZ legislation has since changed to http://www.knowledge-basket.co.nz/gpprint/acts.html). Furthermore, some translations by students of material in English downloaded from the internet, for my course in "Reading Foreign Legal Materials: Commonwealth Law", have now been uploaded onto my website on the Kyushu University Law Faculty server (http://www.law.kyushu-u.ac.jp/~luke/cwealth.html).

[3] Fawlty Ltd sic v Matsui Shoten KK 13/11 Kaminshu 2293 (Kobe District Court, 10 November 1962). For my partial translation of the case, see my website at http://www.law.kyushu-u.ac.jp/~luke/tvcase.html.

[4] For an overview of the Commonwealth, see the website of its Secretariat based in London (http://www.thecommonwealth.org). For brief introductions to member states, including the UK, Canada, Australia and New Zealand, see the 1998 Commonwealth Yearbook (http://www.tcol.co.uk/cyb1.htm). These include brief outlines of their history, recent political situation, and legal/constitutional structure. See also "Legal Briefing Notes" on the law of the former three states, available through the World-Wide Legal Information Association (http://wwlia.org:80homepage.html/).

[5] "CER": see eg the Ministry of Foreign Affairs and Trade website at http://www.mft.govt.nz/Publications/cer/index.htm>. For a recent review, see Holmes 1996. There have also been discussions about extending the Agreement to include Canada (Holmes, ed, 1989), and more recently attempts to foster closer links between CER and ASEAN organisations (http://orpheus.dfat.gov.au/cer_afta/cer_afta_home.html). On 16 February 1998, The Press reported that the former Prime Minister, Jim Bolger, was appointed NZ Ambassador to the US, stating that a main objective was now to explore the possibility of a free trade agreement with the USA. (The Press is a major New Zealand newspaper, based in Christchurch, which makes available online almost all its articles, for free and in searchable form: see http://www.press.co.nz/. Note, however, that it only stores these online for about 3 months.)

[6] The present Governor-General, Sir Michael Hardie-Boys, is a former Justice of the New Zealand Court of Appeal. His predecessor, Dame Catherine Tizard, was the first woman Governor-General and formerly Mayor of Auckland, Fukuoka's sister city and New Zealand's largest. Her predecessor, Sir Paul Reeves, was formerly Anglican Archbishop of Aotearoa and was the first Governor-General of Maaori descent.

[7] On 26 August 1998, this coalition formally broke up (New Zealand News, 26 August 1998). The National Party remained in power with a minority government based on the support of a range of other smaller parties and individual MPs, some formerly of the New Zealand First Party. For a list of MPs elected and their party affiliation, along with brief biographies, see http://www.ps.parliament.govt.nz/mps.htm. For links to websites of political parties, and other government related links, see http://www.liinz.org.nz/liinz/nz/govt/index.html.

[8] McDowell & Webb 1995: 192-210. For a series of short introductory guides concerning this and the ensuing points, see NZ Government Online, http://www.govt.nz/decisionmaker/.

[9] See eg below, fn 14 (RMA). Compare eg http://www.ccc.govt.nz/ with Wada 1996. See also Wada 1997.

[10] McDowell & Webb 1995: 192-210. For an overview of important caselaw developments, see Cooke 1994. See also Ikemoto 1995. Cf recent discussions about the rights of Ainu in Japan: see eg Matsumoto 1998.

[11] See Belich 1996: 229-46. Further, mainly to facilitate purchase of land from Maaori, legislation was enacted in 1862 to transform their holdings from customary collective tenure into individualised ownership. A court was established to assist in this process. It still exists as the Maaori Land Court (http://www.govt.nz/courts/courts5.html#land), although very little land now remains in Maaori hands. See Williams 1987: 428. See also generally NZ Law Society (ed) 1997b.

[12] The composition and workload of the Committee were discussed in the House of Commons on 28 January 1998 (Hansard, columns 222-4 and 254 respectively), available by searching through http://www.parliament.the-stationery-office.co.uk/. Interestingly, one former New Zealand judge, Lord Cooke of Thorndon, is a member of the Committee (and often hears appeals) because, exceptionally on his retirement, he invited to join the House of Lords. Further, as he has also held "high judicial office", he can and does occasionally hear cases on appeal to the House of Lords from lower British courts, when invited by the Law Lords who usually hear such cases. This is a novel example of judicial cooperation working working in the reverse direction: from New Zealand to the UK.

[13] On enacting the RMA, see Palmer 1995. For a Japanese translation, see Hiramatsu 1996-7. See also NZ Law Society (ed) 1995b.

[14] See Bedford 1994, Grimshaw 1987. For an overview from "NZine", a cybermagazine of "Lifestyles, enterprises, and humour from the New Zealand perspective", see http://www.nzine.co.nz/suffrage.html.

[15] See eg New Zealand Law Commission 1997. Following similar initiatives in the UK and other Commonwealth jurisdictions, the Commission (see http://www.lawcom.govt.nz/) was up in 1985 to advise the Minister of Justice on law reform more systematically, and independently from, the Ministry of Justice itself (http://www.justice.govt.nz/). On other civil rights issues for women, see Saito 1995.

[16] See eg Omiya & Oura 1995, Takahashi 1997, Aoyama & Okuda (trans) 1998; cf Matsukawa 1998, Kawachi 1997. See also Boston et al (eds) 1991; Scott 1996.

[17] It was further liberalised in 1995: http://www.knowledge-basket.co.nz/lawlink/pub/magazine/mar97/toepher5.html. See generally now http://www.rmmb.co.nz/investnz/Welcome.html. In the year to March 1998, direct foreign investment amounted to NZ$3.6 billion (New Zealand News, 30 October 1998). See also the Ministry of Foreign Affairs and Trade website at http://www.mft.govt.nz/Publications/invest/index.html.

[18] In the government's "Policies for Progress" statement released on 29 September 1998 (http://www.executive.govt.nz/progress), Prime Minister Shipley announced that the government and the Manufacturers' Federation had agreed to phase in zero tariffs on all imports by 2006.

[19] See generally Bollard 1994. Like the Trade Practices Act 1974 in Australia, New Zealand's FTA includes a generic prohibition on "misleading and deceptive conduct in trade". It therefore helps control the contract negotiation process. The Consumer Guarantees Act 1993, drawing on some Canadian legislation, provides minimum standards in supplying goods and services which cannot be contracted out of in consumer transactions. This Act therefore helps control the content of contracts once concluded. In Japan, the EPA (January 1998) has recently proposed legislation to control both aspects of contracting with consumers.

[20] See the Treasury's website, especially at http://www.treasury.govt.nz/pubs/bmb/fra/intro.htm.

[21] Palmer 1979. After teaching at Victoria University, Geoffrey Palmer got into politics and eventually became Prime Minister. He is now a senior partner in a law firm specialising in public law, including lobbying.

[22] See eg Telecom Corporation of New Zealand Ltd v Clear Communications Ltd 1995 1 NZLR 385 (PC).

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