This study of systems for dealing with young offenders takes as its starting point the contrast between recent developments in the United States and Britain. These developments have occurred as a result of questions which have been raised, on both sides of the Atlantic, about the role of the juvenile court in combating delinquency. In the United States the resulting re-appraisal of the court’s function has been characterised by an emphasis on the fact that the court is part of the criminal justice system, and that it therefore cannot ignore the need to protect society against harmful conduct and to observe the requirements of due process. In England and Scotland, on the other hand, the movement has been towards the creation of tribunals which pay less attention to the child’s offence and which exercise a jurisdiction which tends to blur the distinction between offenders and non-offenders. From an analysis of this contrast the thesis moves to an examination of a significant similarity between the emerging Anglo- American systems. Although different solutions have been adopted to the problem of re-defining the role of the Juvenile court, the reforms in each of the countries studies have been accompanied by a desire to narrow the jurisdiction of the court. The conclusion which emerges from an examination of British and American experience is that, instead of seeing the juvenile court as an all-purpose delinquency-control agency, it should be viewed as an agency whose inherent limitations must be recognised if best use is to be made of its distinctive capabilities. This conclusion raises four related problems which the thesis considers in detail. First, attention is given to the task of attempting to define the court’s role, and an effort is made to determine which functions it can effectively and appropriately perform. Second, on the basis of this analysis, consideration is given to the formulation of criteria which indicate with precision the types of case which should be referred to court. Third, the design of an effective sieving device is discussed: machinery must be created which will ensure that the court receives only those cases which are appropriate to its re-defined role. Fourth, reference is made to the types of informal services which are required to deal with the cases diverted from the court. Against this comparative and theoretical background aspects of New Zealand’s system for dealing with young offenders are considered. This part of the study takes the form of an historical analysis of its development and a description of the system in operation. Because of the conclusion reached regarding the importance of limiting court intake particular attention is focused on the procedures and criteria employed in making the decision as to whether or not a child should be prosecuted. Hence the fieldwork on which much of the New Zealand material is based concentrates on the Youth Aid/Social Welfare conference. An attempt is made to describe and analyse the day-to-day working of this type of sieving device. The findings are discussed, and certain features of the conference system are criticised. The thesis concludes with comments on some of the difficulties which must be taken into account in implementing a policy which emphasises the informal handling of young offenders.

Whole document restricted, see Access Instructions file below for details of how to access the print copy. / The matrix of this thesis is that the determining of liability according to the occurrence of the actual harm which results from the actor's course-of-conduct permits chance to determine criminal liability. The criminal law is posited on the notion that proof of two elements constitutes an offence: a mental element, mens rea and a physical element, the actus reus. Neither element is defined. An analysis of the offences comprising the four categories of offence identified in Part One indicates that - - the mens rea necessary of proof in the majority of these offences is translated loosely to mean intention; - intention is future-oriented and result-focussed; - the determining of liability according to proof both of actual harm and of intention (or, to a lesser degree, recklessness) takes no account of the hiatus which exists in time and in space between the actor's mental element and the actual harm which results; - circumstances beyond the actor's knowledge and control can determine liability and punishment. The object of Part Two is the formulation, within the context of existential philosophy, of a scheme whereby the ability of chance to influence liability and punishment is virtually eliminated. The scheme proposed modifies the doctrine of attempt liability. The analysis of that doctrine in the Second Part indicates that the word "intention", used in its pre-meditative, result-focussed and future-oriented sense, refers to the offence the actor has in mind. Liability is incurred when the actor makes sufficient progress in pursuit of that intention to be dangerously close to completion. The modified theory of attempt liability in Part Two reduces the ability of chance to determine liability in these ways: - the actor's intention to commit an offence is evidenced in her progress in her course-of-conduct to a stage dangerously proximate to completion whereby the fear of the imminent occurrence of actual harm is engendered in the hypothetical, objective bystander; - the actor's liability is dependent upon proof of her knowledge (or belief) and control of the circumstances immediately surrounding the initiation and execution of that course-of-conduct. Intention is evidenced in a course-of-conduct dangerously close to completion whereby the fear of the imminent occurrence of actual harm is engendered in the hypothetical, objective bystander. Existentially irrelevant, intention resumes its former, presumptive role. Liability is established on proof of mental elements both existentially relevant and contemporaneous with that course-of-conduct. The ability of chance to determine liability and punishment is virtually eliminated.

This study of systems for dealing with young offenders takes as its starting point the contrast between recent developments in the United States and Britain. These developments have occurred as a result of questions which have been raised, on both sides of the Atlantic, about the role of the juvenile court in combating delinquency. In the United States the resulting re-appraisal of the court’s function has been characterised by an emphasis on the fact that the court is part of the criminal justice system, and that it therefore cannot ignore the need to protect society against harmful conduct and to observe the requirements of due process. In England and Scotland, on the other hand, the movement has been towards the creation of tribunals which pay less attention to the child’s offence and which exercise a jurisdiction which tends to blur the distinction between offenders and non-offenders. From an analysis of this contrast the thesis moves to an examination of a significant similarity between the emerging Anglo- American systems. Although different solutions have been adopted to the problem of re-defining the role of the Juvenile court, the reforms in each of the countries studies have been accompanied by a desire to narrow the jurisdiction of the court. The conclusion which emerges from an examination of British and American experience is that, instead of seeing the juvenile court as an all-purpose delinquency-control agency, it should be viewed as an agency whose inherent limitations must be recognised if best use is to be made of its distinctive capabilities. This conclusion raises four related problems which the thesis considers in detail. First, attention is given to the task of attempting to define the court’s role, and an effort is made to determine which functions it can effectively and appropriately perform. Second, on the basis of this analysis, consideration is given to the formulation of criteria which indicate with precision the types of case which should be referred to court. Third, the design of an effective sieving device is discussed: machinery must be created which will ensure that the court receives only those cases which are appropriate to its re-defined role. Fourth, reference is made to the types of informal services which are required to deal with the cases diverted from the court. Against this comparative and theoretical background aspects of New Zealand’s system for dealing with young offenders are considered. This part of the study takes the form of an historical analysis of its development and a description of the system in operation. Because of the conclusion reached regarding the importance of limiting court intake particular attention is focused on the procedures and criteria employed in making the decision as to whether or not a child should be prosecuted. Hence the fieldwork on which much of the New Zealand material is based concentrates on the Youth Aid/Social Welfare conference. An attempt is made to describe and analyse the day-to-day working of this type of sieving device. The findings are discussed, and certain features of the conference system are criticised. The thesis concludes with comments on some of the difficulties which must be taken into account in implementing a policy which emphasises the informal handling of young offenders.

Whole document restricted, see Access Instructions file below for details of how to access the print copy. / The matrix of this thesis is that the determining of liability according to the occurrence of the actual harm which results from the actor's course-of-conduct permits chance to determine criminal liability. The criminal law is posited on the notion that proof of two elements constitutes an offence: a mental element, mens rea and a physical element, the actus reus. Neither element is defined. An analysis of the offences comprising the four categories of offence identified in Part One indicates that - - the mens rea necessary of proof in the majority of these offences is translated loosely to mean intention; - intention is future-oriented and result-focussed; - the determining of liability according to proof both of actual harm and of intention (or, to a lesser degree, recklessness) takes no account of the hiatus which exists in time and in space between the actor's mental element and the actual harm which results; - circumstances beyond the actor's knowledge and control can determine liability and punishment. The object of Part Two is the formulation, within the context of existential philosophy, of a scheme whereby the ability of chance to influence liability and punishment is virtually eliminated. The scheme proposed modifies the doctrine of attempt liability. The analysis of that doctrine in the Second Part indicates that the word "intention", used in its pre-meditative, result-focussed and future-oriented sense, refers to the offence the actor has in mind. Liability is incurred when the actor makes sufficient progress in pursuit of that intention to be dangerously close to completion. The modified theory of attempt liability in Part Two reduces the ability of chance to determine liability in these ways: - the actor's intention to commit an offence is evidenced in her progress in her course-of-conduct to a stage dangerously proximate to completion whereby the fear of the imminent occurrence of actual harm is engendered in the hypothetical, objective bystander; - the actor's liability is dependent upon proof of her knowledge (or belief) and control of the circumstances immediately surrounding the initiation and execution of that course-of-conduct. Intention is evidenced in a course-of-conduct dangerously close to completion whereby the fear of the imminent occurrence of actual harm is engendered in the hypothetical, objective bystander. Existentially irrelevant, intention resumes its former, presumptive role. Liability is established on proof of mental elements both existentially relevant and contemporaneous with that course-of-conduct. The ability of chance to determine liability and punishment is virtually eliminated.

Every community is affected in some way by the decisions that local councils make. Services which communities naturally rely upon, such as clean water flowing from taps, driving or catching a bus to work, or having rubbish collected are all provided by local authorities. But the role of local government in New Zealand society goes beyond the provision of services. Democratically elected local authorities play an essential part in the overall governance and sustainable development of the country. The legal authority within which councils operate is circumscribed mainly by statute. Prior to 1999, key elements of this statutory framework had become outdated. The Local Government Act 1974, in particular, was a collection of parts enacted at different times, reflecting diverse policy approaches and objectives. It was prescriptive, complex and lengthy. Clearly, a more effective and enduring legislative framework was required. In 1999, the Labour-Alliance Government initiated a Review of the Local Government Act 1974 that aimed to achieve a new statute which reflected a coherent overall strategy for local government, moved to a more broadly empowering legislative framework, developed a partnership relationship between central and local government and clarified local government's relationship with the Treaty of Waitangi. This thesis critically examines whether these four key objectives were achieved through the enactment and subsequent implementation of the Local Government Act 2002. Was the result of the Review mere rationalisation of the 1974 Act or true reform? The thesis concludes, taking each of these objectives in turn, that the Local Government Act 2002 only partially reflects a coherent overall strategy. While a number of disjointed objectives in the 1974 Act have been rationalised, true reform that aligns the principles of local self-government in New Zealand with those accepted internationally, is a matter for future action. By contrast, the move to a more broadly empowering legislative framework balanced by greater community accountability under the 2002 Act has resulted in true reform. Although the 2002 Act has not delivered a legislative partnership relationship, it has resulted in enhanced cooperation between central and local government. Finally, greater clarity has been achieved through the reform of local government's relationship with the Treaty of Waitangi.

Whole document restricted, see Access Instructions file below for details of how to access the print copy. / This thesis examines two important common law defences to the defamation action: fair comment, now known as honest opinion in New Zealand, and qualified privilege. It does not purport to be an exhaustive study of the law of defamation. The thesis traces the development of the two defences over the last two centuries, and the discernable shift in the balance the law of defamation achieves between freedom of expression and reputation towards freedom of expression and away from the protection of private reputation as New Zealand became a mature democracy. The fair comment defences applies to matters of defamatory communications of opinion. The change of nomenclature to honest opinion more accurately reflects the inherent nature of the defence. From the inception of the defence if the subject matter of a communication was in the form of opinion, honestly held, it could be widely disseminated, provided the topic was of public interest. The defence began with literary criticisms, but then expanded to encompass comment on public figures, particularly political figures insofar as the comment concerned their public life. It is argued that the suggestion which has recently been made by the courts that the subject matter of the opinion need no longer be on a matter of public interest is both misguided and wrong. The qualified privilege defence, based on reciprocity of duty/interest in the occasion of communication, concerns the publication of false and defamatory matters of fact. For this reason the courts were traditionally reluctant to permit the defence when the communication received wide publication. Towards the end of the 20th century, however, this changed with the greater recognition accorded freedom expression in a mature democracy. Courts in England, Australia and New Zealand acknowledged that all members of the public had an interest in political discussion, particularly as it related to political figures, and that the media had a corresponding duty or interest in disseminating such information. The courts recognised that this had the potential to leave those who sought public office with little recourse when their reputation was attack in the media. Each jurisdiction adopted a different solution to this problem. I argue that the New Zealand Court of Appeal's solution has left the law in an unsatisfactory state and requires statutory intervention by the legislature.

Whole document restricted, see Access Instructions file below for details of how to access the print copy. / This thesis examines two important common law defences to the defamation action: fair comment, now known as honest opinion in New Zealand, and qualified privilege. It does not purport to be an exhaustive study of the law of defamation. The thesis traces the development of the two defences over the last two centuries, and the discernable shift in the balance the law of defamation achieves between freedom of expression and reputation towards freedom of expression and away from the protection of private reputation as New Zealand became a mature democracy. The fair comment defences applies to matters of defamatory communications of opinion. The change of nomenclature to honest opinion more accurately reflects the inherent nature of the defence. From the inception of the defence if the subject matter of a communication was in the form of opinion, honestly held, it could be widely disseminated, provided the topic was of public interest. The defence began with literary criticisms, but then expanded to encompass comment on public figures, particularly political figures insofar as the comment concerned their public life. It is argued that the suggestion which has recently been made by the courts that the subject matter of the opinion need no longer be on a matter of public interest is both misguided and wrong. The qualified privilege defence, based on reciprocity of duty/interest in the occasion of communication, concerns the publication of false and defamatory matters of fact. For this reason the courts were traditionally reluctant to permit the defence when the communication received wide publication. Towards the end of the 20th century, however, this changed with the greater recognition accorded freedom expression in a mature democracy. Courts in England, Australia and New Zealand acknowledged that all members of the public had an interest in political discussion, particularly as it related to political figures, and that the media had a corresponding duty or interest in disseminating such information. The courts recognised that this had the potential to leave those who sought public office with little recourse when their reputation was attack in the media. Each jurisdiction adopted a different solution to this problem. I argue that the New Zealand Court of Appeal's solution has left the law in an unsatisfactory state and requires statutory intervention by the legislature.

Whole document restricted, see Access Instructions file below for details of how to access the print copy. / This thesis examines two important common law defences to the defamation action: fair comment, now known as honest opinion in New Zealand, and qualified privilege. It does not purport to be an exhaustive study of the law of defamation. The thesis traces the development of the two defences over the last two centuries, and the discernable shift in the balance the law of defamation achieves between freedom of expression and reputation towards freedom of expression and away from the protection of private reputation as New Zealand became a mature democracy. The fair comment defences applies to matters of defamatory communications of opinion. The change of nomenclature to honest opinion more accurately reflects the inherent nature of the defence. From the inception of the defence if the subject matter of a communication was in the form of opinion, honestly held, it could be widely disseminated, provided the topic was of public interest. The defence began with literary criticisms, but then expanded to encompass comment on public figures, particularly political figures insofar as the comment concerned their public life. It is argued that the suggestion which has recently been made by the courts that the subject matter of the opinion need no longer be on a matter of public interest is both misguided and wrong. The qualified privilege defence, based on reciprocity of duty/interest in the occasion of communication, concerns the publication of false and defamatory matters of fact. For this reason the courts were traditionally reluctant to permit the defence when the communication received wide publication. Towards the end of the 20th century, however, this changed with the greater recognition accorded freedom expression in a mature democracy. Courts in England, Australia and New Zealand acknowledged that all members of the public had an interest in political discussion, particularly as it related to political figures, and that the media had a corresponding duty or interest in disseminating such information. The courts recognised that this had the potential to leave those who sought public office with little recourse when their reputation was attack in the media. Each jurisdiction adopted a different solution to this problem. I argue that the New Zealand Court of Appeal's solution has left the law in an unsatisfactory state and requires statutory intervention by the legislature.

Whole document restricted, see Access Instructions file below for details of how to access the print copy. / This thesis examines two important common law defences to the defamation action: fair comment, now known as honest opinion in New Zealand, and qualified privilege. It does not purport to be an exhaustive study of the law of defamation. The thesis traces the development of the two defences over the last two centuries, and the discernable shift in the balance the law of defamation achieves between freedom of expression and reputation towards freedom of expression and away from the protection of private reputation as New Zealand became a mature democracy. The fair comment defences applies to matters of defamatory communications of opinion. The change of nomenclature to honest opinion more accurately reflects the inherent nature of the defence. From the inception of the defence if the subject matter of a communication was in the form of opinion, honestly held, it could be widely disseminated, provided the topic was of public interest. The defence began with literary criticisms, but then expanded to encompass comment on public figures, particularly political figures insofar as the comment concerned their public life. It is argued that the suggestion which has recently been made by the courts that the subject matter of the opinion need no longer be on a matter of public interest is both misguided and wrong. The qualified privilege defence, based on reciprocity of duty/interest in the occasion of communication, concerns the publication of false and defamatory matters of fact. For this reason the courts were traditionally reluctant to permit the defence when the communication received wide publication. Towards the end of the 20th century, however, this changed with the greater recognition accorded freedom expression in a mature democracy. Courts in England, Australia and New Zealand acknowledged that all members of the public had an interest in political discussion, particularly as it related to political figures, and that the media had a corresponding duty or interest in disseminating such information. The courts recognised that this had the potential to leave those who sought public office with little recourse when their reputation was attack in the media. Each jurisdiction adopted a different solution to this problem. I argue that the New Zealand Court of Appeal's solution has left the law in an unsatisfactory state and requires statutory intervention by the legislature.

Whole document restricted, see Access Instructions file below for details of how to access the print copy. / This thesis examines two important common law defences to the defamation action: fair comment, now known as honest opinion in New Zealand, and qualified privilege. It does not purport to be an exhaustive study of the law of defamation. The thesis traces the development of the two defences over the last two centuries, and the discernable shift in the balance the law of defamation achieves between freedom of expression and reputation towards freedom of expression and away from the protection of private reputation as New Zealand became a mature democracy. The fair comment defences applies to matters of defamatory communications of opinion. The change of nomenclature to honest opinion more accurately reflects the inherent nature of the defence. From the inception of the defence if the subject matter of a communication was in the form of opinion, honestly held, it could be widely disseminated, provided the topic was of public interest. The defence began with literary criticisms, but then expanded to encompass comment on public figures, particularly political figures insofar as the comment concerned their public life. It is argued that the suggestion which has recently been made by the courts that the subject matter of the opinion need no longer be on a matter of public interest is both misguided and wrong. The qualified privilege defence, based on reciprocity of duty/interest in the occasion of communication, concerns the publication of false and defamatory matters of fact. For this reason the courts were traditionally reluctant to permit the defence when the communication received wide publication. Towards the end of the 20th century, however, this changed with the greater recognition accorded freedom expression in a mature democracy. Courts in England, Australia and New Zealand acknowledged that all members of the public had an interest in political discussion, particularly as it related to political figures, and that the media had a corresponding duty or interest in disseminating such information. The courts recognised that this had the potential to leave those who sought public office with little recourse when their reputation was attack in the media. Each jurisdiction adopted a different solution to this problem. I argue that the New Zealand Court of Appeal's solution has left the law in an unsatisfactory state and requires statutory intervention by the legislature.