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Glazebrook, Hon Justice Susan --- "Foreword" [2023] NZLawStuJl 1; (2023) 4 NZLSJ v

Last Updated: 7 April 2024

Foreword

THE HONOURABLE JUSTICE SUSAN GLAZEBROOK
JUSTICE OF THE SUPREME COURT OF NEW ZEALAND

It gives me great pleasure to write this foreword to the 2023 edition of the New Zealand Law Students’ Journal. It is some years since the publication of the last volume of this journal and the New Zealand legal landscape has been the poorer for its absence. It is very important that young legal scholars have outlets for writing about the topics that interest them. And it is equally important that lawyers, judges, academics and policy‑makers are exposed to new and original thinking.
The articles in this issue certainly fulfil the aims of those involved in the journal’s revival.
The articles are diverse and original but some themes do emerge. The first relates to access to justice, fair trials and fair outcomes in criminal cases. This is certainly a priority for the courts and the suggestions made in the three articles offer interesting analyses which are relevant to this theme.
Kelly Young in “Communication Assistance and Participatory Rights of Neurodiverse Children in the Youth Justice System” argues for the greater provision of specialist communication assistance to child and youth offenders with neurodisabilities in order to fulfil New Zealand’s obligations under Article 12 of the United Nations Convention on the Rights of the Child. She also argues that, in order to create an environment that allows full participation of the child or young person, lawyers, judges and youth justice facilitators should also be trained in effective communication strategies.
Sarah Shanahan in “Piercing Through the Veil of Jury Deliberations: An Analysis of the Jury Secrecy Rule and Proposals for Reform” argues that courts should have a greater ability on appeal to investigate genuine and serious instances of juror misconduct in the course of deliberations in order to safeguard fair trial rights.
Vincent Kenworthy’s article on “Predicting Sentencing Decisions of the New Zealand Courts Using Support Vector Machines” is a timely contribution to the current debate about the possible role of artificial intelligence in the justice sector. In his article he uses a dataset of New Zealand rape sentences to test his hypothesis that textual analysis by artificial intelligence of the facts of previous sentencing decisions can be used to predict outcomes of future sentencing decisions, the aim being to promote consistency in sentencing outcomes. He argues that this article, along with previous research, demonstrate that judgment prediction from textual features is possible but suggests a model structure for sentencing decisions that would allow more accurate sentencing predictions to occur.
The next theme relates to social issues in New Zealand. In this category Britney Clasper’s article on “Conceptualising a Preventative Approach to Eating Disorders in New Zealand” obviously fits. This article surveys and evaluates various measures, both in New Zealand and overseas, to deal with eating disorders, which have a major impact not only on the individual involved but more generally for society. Britney argues that a preventative approach to eating disorders should be instituted and that this should be evidence‑based, meaning an urgent need for sufficiently‑funded research. In the meantime she argues specifically for measures that have been shown to be effective: integrating eating disorder education into the New Zealand health curriculum and measures designed to tackle body distortion in advertising.
I would also put in this category Lauren Argyle’s article on “A Multilateral Agreement for Climate-Induced Migration: Common but Differentiated Responsibilities” given that climate change is already having a profound effect on New Zealand and our Pacific neighbours, and this effect is likely to increase. Lauren advocates for a bespoke agreement for allocating responsibility in an equitable manner for those displaced by climate change. She argues that the common but differentiated responsibility model has been employed for international climate change measures generally and is the appropriate model to use with regard to climate induced migration but also to deal with internal relocation and in-situ adaptation.
Given the current housing issues in New Zealand, I would also include under this theme the article by Rachel McConnell on “Maintaining the Balance: The Scope and Purpose of Hardship under Section 55B of the Residential Tenancies Act 1986”. In that article she examines s 55B, a provision introduced in 2020 allowing landlords to apply to end periodic tenancies on the grounds of hardship. She concludes that this provision is properly a provision of last resort in the context of the other amendments promoting security of tenure and given the other avenues available to landlords to terminate tenancies. One particularly interesting aspect of her discussion is the section on flat‑sharing situations. She suggests that extending the provision to encompass tenants might ease some of the problems arising for tenants in such flat‑sharing arrangements.
The last theme is that of social responsibility in commerce. Sean Chan in “Competition Law or Competition Between Special Interest Groups? The Accountability Deficit in the Commerce Commission’s Market Study Power” points out that the market study power represents a departure from the Commerce Commission’s traditional functions and highlights concerns about the democratic legitimacy of these functions. He examines the Commission’s Market Study into the Retail Grocery Sector as a case study and concludes that the market study process favours organised industry groups at the expense of consumer groups. He argues that there needs to be greater accountability in exercising the market study power.
Last, but by no means least, Lucille Reece, in her article “The Promise of Codetermination: An Attractive Option for New Zealand Companies?” examines the corporate governance model in Germany and Sweden whereby employees elect representatives to sit on boards. She concludes that this model is compatible with the current industrial relations landscape in New Zealand and that its proven benefits (both economic and wider) means that it should be adopted in New Zealand. Lucille’s article provides one possible means of promoting diversity on boards and also a greater focus on employees as “key drivers of corporate prosperity”. It fits within the wider context of scholarship on the proper role and structure of corporate governance and whether the current shareholder primacy model is fair and sustainable in light of current challenges like climate change and artificial intelligence.
I wish to congratulate the editors and authors of this volume. In his foreword to the inaugural volume of the NZLSJ, Sir Geoffrey Palmer, then patron of the New Zealand Law Students’ Association, commented that to write a law journal article requires “determination and dedication”. As current patron of the NZLSA, I echo these comments: the articles demonstrate the very same virtues present in the inaugural volume. The standard of the articles, and the standard of this volume as a whole, highlight the potential for students and young people to make valuable contributions to the legal sphere and the continued importance of these contributions.

Hon Justice Susan Glazebrook DNZM
Supreme Court of New Zealand
2 October 2023