Legalise unfettered contracts

The Law Commission is reviewing the Credit (Repossession) Act 1997.

The questions posed by the Law Commission are wrong. They are asking how the government should regulate lending contracts, while presuming government should regulate lending contracts.

The problem is that the government presumes the authority to dictate the terms of contracts that can be made between adults.

This error of “civil servants” is everywhere that is why I say… those that should be our servants presume to be our masters.

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Posted on July 18, 2011, in Uncategorized. Bookmark the permalink. 2 Comments.

  1. I suppose the most common contract in New Zealand is the Employment Contract. Do you think that should be unfettered as well?

    At present the Employment Relations Act 2000 requires all employers (private and public sector) to give their employees natural justice (a fair process). It was not always so. According to Prof. Philip Joseph (Constitutional and Administrative Law in New Zealand third edition);

    “Under the common law master-servant relationship, procedural fairness was not a prerequisite of a valid dismissal. All the law required was reasonable notice or wages in lieu. Since 1973, [some] employees [covered by the Industrial Relations Act] have enjoyed statutory protection against ‘unjustified dismissal’… In 1985 the New Zealand courts adopted the legislative policy and imported the rules of natural justice into the common law contract of employment (Auckland Shop Employees IUW v Woolworths (NZ) Ltd [1985]) and established that it was an implied term of the employment contract…The Employment Contracts Act 1991 imported the concepts of Personal Grievance and unjustified dismissal into all employment contracts”.

    In support of your stance, I note that in the USA, natural justice is generally only required of government, not the private sector. From the Wikipedia article on Natural Justice;

    “Notably, natural justice is binding upon both public and private entities, such as trade unions.[5] In contrast, the U.S. concept of due process is strictly limited to decisions made by governmental entities, although the U.S. state of California has developed a doctrine of fair procedure which is binding upon certain types of private entities in that state”.

    Perhaps therefore is could be summised that our current Employment regime is left of centre and strongly in favour of the employee. This would be consistent with the views of most employers with whom I have discussed this topic. Arguably, the current “fettered” employment regime is a disincentive for employers to hire staff. Conversely, staff who are unsuited to a particular job remain entrenched where they are, losing self-confidence on a daily basis, supposedly “protected” from nasty employers by the requirement for natural justice.

    • I suppose the most common contract in New Zealand is the Employment Contract. Do you think that should be unfettered as well?
      Yes, I think employment contracts are no different. People should be masters of their own time and property.

      Natural Justice is good policy for government departments but government should not presume to dictate the terms of contracts that can be made between adults.

      It’s not important to me whether the employment regime is left of centre, right of centre or centrist – any law dictating employment terms can never be just because people should be masters of their own time and property not the government.

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