Kris Gledhill | Auckland University of Technology (original) (raw)
Papers by Kris Gledhill
New Zealand journal of public and international law, 2013
The presumption of innocence, which is protected by the common law and various human rights instr... more The presumption of innocence, which is protected by the common law and various human rights instruments, is regularly challenged by legislation which shifts the burden of proof to the defendant. In various jurisdictions, judges have found that the use of a reverse burden is not warranted: where judges have been given the power to consider offending legislation ineffective or impliedly repealed, they have done so; but where the judicial power comes in the form of a strong interpretive obligation to seek to remove a problematic provision, there has been a bifurcated approach. In particular, judges in New Zealand and the United Kingdom have followed different approaches. The former have found themselves required to uphold a legal burden of proof and the latter have been able to construe the situation as imposing an evidential burden, at least where a legal burden is problematic. In so doing, judges have used an interpretive obligation, found in the New Zealand Bill of Rights Act 1990 a...
Judicial Review, 2015
1. Section 6 of the Human Rights Act 1998 indicates that it covers all public authorities (with e... more 1. Section 6 of the Human Rights Act 1998 indicates that it covers all public authorities (with exceptions for legislative functions), and indicates in subs. (3) that this covers courts, tribunals and “(b) any person certain of whose functions are functions of a public nature” (though not in relation to a private act: see subs. (5)). Other jurisdictions with similar non-supreme law but statutory protection of human rights are broadly comparable, though there has been a tendency over time to become more prescriptive about which bodies are covered or what features are relevant in the determination of the question: see ss 40 and 40A of the Human Rights Act 2004 (Australian Capital Territory (ACT)) and s. 4 of the Charter of Rights and Responsibilities Act 2006 (Victoria). For example, s. 40A(3) of the ACT statute makes it clear that utilities, emergency services and public transport are within the definition. This more prescriptive approach may be a response to the difficulties reveale...
At the same time, it is relatively well established that many convicted people have not made full... more At the same time, it is relatively well established that many convicted people have not made fully rational choices. Hence the prevalence of mental disorder amongst prison inmates; and the success of problem-solving courts, with their emphasis on finding solutions to allow people to manage the features of their lives that drive their actions. In other words, many people who are involved in the criminal justice system have constrained capacity to make choices.
The Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (the Act) comme... more The Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (the Act) commenced on 14 October 2016; it had to be modified under urgency by the Child Protection (Child Sex Offender Government Agency Registration) Amendment Act 2017 to ensure its retrospective application. This retrospectivity was one of the reasons why the proposed legislation was found by the Attorney-General to be in breach of the New Zealand Bill of Rights Act 1990 in his report to Parliament under s 7 of that Act. This article describes the background to and content of the Act as passed, and analyses issues to which it gives rise, including the potential human rights issues.
I. INTRODUCTION Legislation is often introduced in response to international treaty obligations, ... more I. INTRODUCTION Legislation is often introduced in response to international treaty obligations, reflecting that much government policy is developed in the context of international arrangements. The Crimes Amendment Act 2015 is an example of this. It introduces a number of extensions to Part 10 of the Crimes Act 1961 (crimes against rights of property). It adds new offences and rewords existing offences. It also rewrites the people trafficking and bribery offences found in Parts 5 and 6 of the 1961 Act. These changes illustrate the role of international obligations....
ABSTRACT Measures designed to prevent individuals committing future crimes are increasingly part ... more ABSTRACT Measures designed to prevent individuals committing future crimes are increasingly part of legal regimes in common law jurisdictions, typically made in relation to sexual offenders or violent offenders and typically imposed on the basis of evidence that the offender poses a risk of further offending that is unacceptable. These measures may be in the form of community monitoring or restrictions, or both; but they may also extend to preventive detention. One of the many questions arising is the extent to which courts are alert to the difficulties of making such assessments and the rigour of the process followed. This article outlines these difficulties, and reviews whether the courts in England and Wales, New Zealand and Australia are alert to them.
The dominant motif in criminal law is that people make choices, and if a criminal act/omission is... more The dominant motif in criminal law is that people make choices, and if a criminal act/omission is committed, punishment is justified as a desert for an improper choice or to deter future improper choices. This assumption of choice and therefore of control over behaviour is also the starting point for many aspects of the political and economic structure of the current world...
The Returning Offenders (Management and Information) Bill 2015 was introduced to Parliament on 17... more The Returning Offenders (Management and Information) Bill 2015 was introduced to Parliament on 17 November 2015, and became an Act on 18 November 2015. It was passed under urgency, though with a clause requiring a select committee to provide a review on its operation after 18 months (37).This note can be see as an early commentary as to matters that should be examined as part of this review; it also discusses various issues that might be raised in arguments testing the application the Act.
Core components of the rule of law include the accessibility of the law and its production of for... more Core components of the rule of law include the accessibility of the law and its production of foreseeable results. Legislation sometimes seeks to pursue complex or conflicting policies, and its meaning may require discussion or even a ruling from a judge. But this should not be so when the aim is a simple one such as setting the length of time for which the Department of Corrections is entitled to detain a sentenced prisoner and indeed duty-bound to detain a prisoner to give effect to a court sentence. Whilst criminal sentencing may be factually complex in various situations, when a case has to go to the Supreme Court to confirm the proper interpretation of the length of a sentence, the legislative drafting may be marked down from a rule of law perspective. Fortunately, the solution adopted by the Supreme Court in Marino v The Chief Executive of the Department of Corrections leaves the matter easier to administer.1 However, it has overturned an established approach and revealed that...
1. Introduction: Aims and Outline 2. The Obligation to Secure Internationally Recognised Human Ri... more 1. Introduction: Aims and Outline 2. The Obligation to Secure Internationally Recognised Human Rights 3. The Pre-Existing Protection of Human Rights 4. The Desire to Move Further 5. Working Out the Content of Rights 6. Pre-Enactment Scrutiny 7. The Duty to Respect Rights 8. Interpretive Obligation 9. Litigation and Complaint Procedures 10. Remedies 11. Summaries and Conclusions
Law in Context. A Socio-legal Journal
Case law interpreting the common purpose aspect of party liability and the law on conspiracy in N... more Case law interpreting the common purpose aspect of party liability and the law on conspiracy in New Zealand (as set out in ss 66(2) and 310 of the Crimes Act 1961 (NZ)) has created a situation of over-reach. Individuals who have a limited relationship to criminality carried out by another or in a group context are potentially caught by extended liability rules that can lead to a poor association between the moral culpability of a defendant and serious criminal liability. Indeed, it is suggested that these forms of liability risk guilt by association rather than on the basis of individual positive fault: we suggest that New Zealand’s judges, following and sometimes expanding upon interpretations from other common law jurisdictions, have lost sight of the core concept of individual fault.
International Journal of Mental Health and Capacity Law
This article started with a question from one academic wearing an editor’s hat to another academi... more This article started with a question from one academic wearing an editor’s hat to another academic wearing an academic service user’s hat: conversing about a conference both had attended, the question asked was about the features that make conferences ‘good’ from a service user perspective. The question led to the comments that form Part II of this article. We then decided that we should combine resources and examine what the Convention on the Rights of Persons with Disabilities 2006 (CRPD) has to say about the matter, identifying the normative framework of rights in the context of academic conferences that belong to those who attend in the context of experiencing psychosocial/mental impairment which in interaction with attitudinal and environmental barriers cause them to experience disability; and the corresponding obligations on conference organisers and/or those who regulate the situation and so might be required to impose obligations on conference organisers. This material, in P...
Educational Philosophy and Theory
Australian & New Zealand Journal of Criminology
New Zealand journal of public and international law, 2013
The presumption of innocence, which is protected by the common law and various human rights instr... more The presumption of innocence, which is protected by the common law and various human rights instruments, is regularly challenged by legislation which shifts the burden of proof to the defendant. In various jurisdictions, judges have found that the use of a reverse burden is not warranted: where judges have been given the power to consider offending legislation ineffective or impliedly repealed, they have done so; but where the judicial power comes in the form of a strong interpretive obligation to seek to remove a problematic provision, there has been a bifurcated approach. In particular, judges in New Zealand and the United Kingdom have followed different approaches. The former have found themselves required to uphold a legal burden of proof and the latter have been able to construe the situation as imposing an evidential burden, at least where a legal burden is problematic. In so doing, judges have used an interpretive obligation, found in the New Zealand Bill of Rights Act 1990 a...
Judicial Review, 2015
1. Section 6 of the Human Rights Act 1998 indicates that it covers all public authorities (with e... more 1. Section 6 of the Human Rights Act 1998 indicates that it covers all public authorities (with exceptions for legislative functions), and indicates in subs. (3) that this covers courts, tribunals and “(b) any person certain of whose functions are functions of a public nature” (though not in relation to a private act: see subs. (5)). Other jurisdictions with similar non-supreme law but statutory protection of human rights are broadly comparable, though there has been a tendency over time to become more prescriptive about which bodies are covered or what features are relevant in the determination of the question: see ss 40 and 40A of the Human Rights Act 2004 (Australian Capital Territory (ACT)) and s. 4 of the Charter of Rights and Responsibilities Act 2006 (Victoria). For example, s. 40A(3) of the ACT statute makes it clear that utilities, emergency services and public transport are within the definition. This more prescriptive approach may be a response to the difficulties reveale...
At the same time, it is relatively well established that many convicted people have not made full... more At the same time, it is relatively well established that many convicted people have not made fully rational choices. Hence the prevalence of mental disorder amongst prison inmates; and the success of problem-solving courts, with their emphasis on finding solutions to allow people to manage the features of their lives that drive their actions. In other words, many people who are involved in the criminal justice system have constrained capacity to make choices.
The Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (the Act) comme... more The Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (the Act) commenced on 14 October 2016; it had to be modified under urgency by the Child Protection (Child Sex Offender Government Agency Registration) Amendment Act 2017 to ensure its retrospective application. This retrospectivity was one of the reasons why the proposed legislation was found by the Attorney-General to be in breach of the New Zealand Bill of Rights Act 1990 in his report to Parliament under s 7 of that Act. This article describes the background to and content of the Act as passed, and analyses issues to which it gives rise, including the potential human rights issues.
I. INTRODUCTION Legislation is often introduced in response to international treaty obligations, ... more I. INTRODUCTION Legislation is often introduced in response to international treaty obligations, reflecting that much government policy is developed in the context of international arrangements. The Crimes Amendment Act 2015 is an example of this. It introduces a number of extensions to Part 10 of the Crimes Act 1961 (crimes against rights of property). It adds new offences and rewords existing offences. It also rewrites the people trafficking and bribery offences found in Parts 5 and 6 of the 1961 Act. These changes illustrate the role of international obligations....
ABSTRACT Measures designed to prevent individuals committing future crimes are increasingly part ... more ABSTRACT Measures designed to prevent individuals committing future crimes are increasingly part of legal regimes in common law jurisdictions, typically made in relation to sexual offenders or violent offenders and typically imposed on the basis of evidence that the offender poses a risk of further offending that is unacceptable. These measures may be in the form of community monitoring or restrictions, or both; but they may also extend to preventive detention. One of the many questions arising is the extent to which courts are alert to the difficulties of making such assessments and the rigour of the process followed. This article outlines these difficulties, and reviews whether the courts in England and Wales, New Zealand and Australia are alert to them.
The dominant motif in criminal law is that people make choices, and if a criminal act/omission is... more The dominant motif in criminal law is that people make choices, and if a criminal act/omission is committed, punishment is justified as a desert for an improper choice or to deter future improper choices. This assumption of choice and therefore of control over behaviour is also the starting point for many aspects of the political and economic structure of the current world...
The Returning Offenders (Management and Information) Bill 2015 was introduced to Parliament on 17... more The Returning Offenders (Management and Information) Bill 2015 was introduced to Parliament on 17 November 2015, and became an Act on 18 November 2015. It was passed under urgency, though with a clause requiring a select committee to provide a review on its operation after 18 months (37).This note can be see as an early commentary as to matters that should be examined as part of this review; it also discusses various issues that might be raised in arguments testing the application the Act.
Core components of the rule of law include the accessibility of the law and its production of for... more Core components of the rule of law include the accessibility of the law and its production of foreseeable results. Legislation sometimes seeks to pursue complex or conflicting policies, and its meaning may require discussion or even a ruling from a judge. But this should not be so when the aim is a simple one such as setting the length of time for which the Department of Corrections is entitled to detain a sentenced prisoner and indeed duty-bound to detain a prisoner to give effect to a court sentence. Whilst criminal sentencing may be factually complex in various situations, when a case has to go to the Supreme Court to confirm the proper interpretation of the length of a sentence, the legislative drafting may be marked down from a rule of law perspective. Fortunately, the solution adopted by the Supreme Court in Marino v The Chief Executive of the Department of Corrections leaves the matter easier to administer.1 However, it has overturned an established approach and revealed that...
1. Introduction: Aims and Outline 2. The Obligation to Secure Internationally Recognised Human Ri... more 1. Introduction: Aims and Outline 2. The Obligation to Secure Internationally Recognised Human Rights 3. The Pre-Existing Protection of Human Rights 4. The Desire to Move Further 5. Working Out the Content of Rights 6. Pre-Enactment Scrutiny 7. The Duty to Respect Rights 8. Interpretive Obligation 9. Litigation and Complaint Procedures 10. Remedies 11. Summaries and Conclusions
Law in Context. A Socio-legal Journal
Case law interpreting the common purpose aspect of party liability and the law on conspiracy in N... more Case law interpreting the common purpose aspect of party liability and the law on conspiracy in New Zealand (as set out in ss 66(2) and 310 of the Crimes Act 1961 (NZ)) has created a situation of over-reach. Individuals who have a limited relationship to criminality carried out by another or in a group context are potentially caught by extended liability rules that can lead to a poor association between the moral culpability of a defendant and serious criminal liability. Indeed, it is suggested that these forms of liability risk guilt by association rather than on the basis of individual positive fault: we suggest that New Zealand’s judges, following and sometimes expanding upon interpretations from other common law jurisdictions, have lost sight of the core concept of individual fault.
International Journal of Mental Health and Capacity Law
This article started with a question from one academic wearing an editor’s hat to another academi... more This article started with a question from one academic wearing an editor’s hat to another academic wearing an academic service user’s hat: conversing about a conference both had attended, the question asked was about the features that make conferences ‘good’ from a service user perspective. The question led to the comments that form Part II of this article. We then decided that we should combine resources and examine what the Convention on the Rights of Persons with Disabilities 2006 (CRPD) has to say about the matter, identifying the normative framework of rights in the context of academic conferences that belong to those who attend in the context of experiencing psychosocial/mental impairment which in interaction with attitudinal and environmental barriers cause them to experience disability; and the corresponding obligations on conference organisers and/or those who regulate the situation and so might be required to impose obligations on conference organisers. This material, in P...
Educational Philosophy and Theory
Australian & New Zealand Journal of Criminology
The law relating to detention on the basis of mental disorder and the tribunal at the centre of a... more The law relating to detention on the basis of mental disorder and the tribunal at the centre of applications for release should be settled and certain, given that it involves deprivation of liberty and a vulnerable population, two factors that make it important that the law be clear. However, the vast (and growing) body of case law suggests that this is not so. In this context, the aim of this book is to collate important cases relating to the powers and procedures of the Mental Health Review Tribunal. The book is broken into different sections, each dealing with different areas of the Tribunal's substantive powers or issues of procedure that arise. Each section sets out a summary of the statutory position in the Mental Health Act 1983 and the MHRT Rules 1983 (and the full text of relevant parts of the Act and the Rules is set out in an appendix), followed by a series of propositions that have been established by the cases; there are then extracts from the relevant cases. These sections are set out in alphabetical order: so to find the case law relating to a particular issue, look down the list of different sections to find the relevant one. There is also a full index at the front, which refers to the relevant part of the statute or rules and, if there have been cases, the chapter of the text.
The law relating to mental health and the tribunal which is at the centre of applications for rel... more The law relating to mental health and the tribunal which is at the centre of applications for release from detention should be settled and certain, given that it involves deprivation of liberty and a vulnerable population, two factors which make it important that the law be clear. However, the vast (and growing) body of case law makes it plain that this is not so. In this context, the aim of this book is to collate important cases relating to the powers and procedures of the Mental Health Review Tribunal. The book is broken into different sections, each dealing with different areas of the Tribunal's substantive powers or issues of procedure that arise. Each section sets out a summary of the statutory position in the Mental Health Act 1983 and the MHRT Rules 1983 (and the full text of relevant parts of the Act and the Rules is set out in an appendix), followed by a series of propositions which have been established by the cases; there are then extracts from the relevant cases. These sections are set out in alphabetical order: so to find the case law relating to a particular issue, look down the list of different sections to find the relevant one.
The law relating to mental health and the tribunal which is at the centre of applications for rel... more The law relating to mental health and the tribunal which is at the centre of applications for release from detention should be settled and certain, given that it involves deprivation of liberty and a vulnerable population, two factors which make it important that the law be clear. However, the vast (and growing) body of case law makes it plain that this is not so. In this context, the aim of this book is to collate important cases relating to the powers and procedures of the Mental Health Review Tribunal. The book is broken into different sections, each dealing with different areas of the Tribunal's substantive powers or issues of procedure that arise. Each section sets out a summary of the statutory position in the Mental Health Act 1983 and the MHRT Rules 1983 (and the full text of relevant parts of the Act and the Rules is set out in an appendix), followed by a series of propositions which have been established by the cases; there are then extracts from the relevant cases. These sections are set out in alphabetical order: so to find the case law relating to a particular issue, look down the list of different sections to find the relevant one.