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Police officers employ numerous tactics to elicit incriminating statements from an accused. For instance, law enforcement officials will sometimes insert undercover police officers into a detention cell to procure evidence - cell-plant operations. During the 1990s, the Supreme Court of Canada held that where undercover state agents actively elicit incriminating statements from an accused while in detention, such conduct violates the latter's right to silence situated in section 7 of the Canadian Charter of Rights and Freedoms (the "Charter"). Remaining silent is a legitimate way to resist the power of the state when it conducts investigations. Police officers undermine this right and ability to resist when dispatching undercover officers in this manner, since an accused is unaware that they are speaking to state agents. However, an accused person with the assistance of their lawyer(s) may further resist the prosecution's intended use of these incriminating statements through litigation - specifically, applications to exclude evidence under the Charter. While the Court has not considered cell-plant cases since 1999, Canadian trial courts at the superior court level have developed the right to silence jurisprudence concerning cell-plant cases. In addition, the Supreme Court of New Zealand has adopted the legal tests formulated by its Canadian counterpart. This article examines this jurisprudence, revealing how some decision-makers are showing sensitivity to the spatial context in which these operations occur. The case law also exposes how undercover officers may impact their exchanges with accused persons by building temporary and situational relationships with them. This is despite the lack of a prior relationship between the accused and undercover agent(s). In turn, this raises concerns about whether state actors have actively elicited incriminating statements from an accused. The jurisprudence also highlights how undercover officers are engaging in the functional equivalent of an interrogation despite the Supreme Court of Canada's decisions in the 1990s admonishing against these tactics. An examination of this jurisprudence provides tools to challenge prosecution attempts to use cell-plant statements in future cases. [ABSTRACT FROM AUTHOR]

In Attorney-General v Taylor, New Zealand's Court of Appeal upheld the High Court's recognition, and exercise, of an implied jurisdiction to make (non-binding) declarations of legislative inconsistency with the New Zealand Bill of Rights Act 1990 (the NZ Bill of Rights). Recognition of this novel jurisdiction says something important about the evolution of judicial-legislative relations under the NZ Bill of Rights. The question is: what exactly? This article suggests that a close analysis of the Court of Appeal's decision in Taylor in fact discloses three interwoven narratives that speak to the constitutional role of the courts in enforcing the NZ Bill of Rights: the NZ Bill of Rights as "legal benchmark"; the NZ Bill of Rights as "facilitator of inter-branch dialogue"; and the "common lawfuelled bill of rights". The article unpicks these narratives, explores the relationship between them and discusses the extent to which they succeed in accommodating or justifying the new declaratory remedy. [ABSTRACT FROM AUTHOR]

This article furnishes a comparative analysis on the constitutional recognition of Indigenous peoples in four jurisdictions. The analysis looks at two jurisdictions that share a similar colonial heritage with Australia, namely New Zealand and Canada; and two jurisdictions at the forefront of plurinational constitutional recognition of Indigenous rights (Ecuador and Bolivia). Experience in these countries suggests that constitutional recognition (of Indigenous peoples) occurs in a variety of ways, including the protection and promotion of Indigenous cultures, their land titles and their political representation. This variety stems largely from a common denominator: the need for protecting the political, collective rights of marginalised groups. This protection is generally intended to alleviate these groups' economic and social disadvantages. The analysis identifies two dimensions for constitutional recognition: a wide-versus-narrow dimension and a dynamic-versus-static dimension. Both dimensions break along colonial lines, with recognition in the two postcolonial countries exhibiting a wide and static approach and recognition in the two plurinational countries exhibiting a narrow but dynamic approach. These jurisdictions could provide guidance in the Australian context, where resolving the tension between our colonial heritage and our postcolonial aspirations holds the key to alleviating the disadvantages facing Indigenous Australians. [ABSTRACT FROM AUTHOR]

The article highlights the judicial innovation related to the New Zealand Bill of Rights Act. It examine how it came to be enacted, noting that the original proposal was for a ‘higher law' instrument that would permit judicial override of legislation. It reports the failure of operation of the New Zealand Bill of Rights Act, as well as to other jurisdictions that have adopted statutory rights instruments.