The High Court recently dismissed appeals by tenants of Housing NZ arising out of the termination (by notice) of their tenancies, in essence, because their partners were anti-social Mongrel Mob members.
> Winther & Ors v House New Zealand Corporation (09.10.2009, High Court, Wellington, Wild J, CIV-2009-485-1954)
The appellants tried to argue before the Tenancy Tribunal that the termination of their tenancies amounted to unlawful discrimination under the Bill of Rights and breached their right to free association. They said the notices to terminate should be quashed. They wanted to stay put.
But the High Court, in agreement with the Tenancy Tribunal and District Court below, ruled the Tribunal could not consider such a claim. In simple terms, they all said Housing NZ was to be treated no differently from a private landlord. Private landlords could terminate on 90 days notice without given reasons - the state agency was no different, even if it was subject to the Bill of Rights. Any complaints about unlawful discrimination were to be pursued through standard processes under the Residential Tenancies Act, which might led to (only) an award of damages. Justice Wild effectively said to consider the lawfulness of the (alleged discriminatory) reasons for the termination would be to engage in an irrelevant enquiry not mandated by the Act. He relied on pointers in the Act that suggested the ability to raise such concerns, and the ability of the Tribunal to consider them, was relatively circumscribed. Those other processes should be pursued. Or the actions of Housing NZ should be judicially reviewed.
I'm not convinced.
First, it is axiomatic that Housing NZ is in a different to a private landlord. It is a manifestation of the state and therefore is subject to additional obligations founded in public law and the Bill of Rights. This applies even when engaged in the assertion of private property rights. This was made clear in the Police v Beggs [1999] 3 NZLR 615, where a full bench of the High Court (including Wild J) ruled the Speaker's ability to issue trespass notices in relation to Parliament was circumscribed by their obligations under the Bill of Rights. That basic proposition was recently endorsed by the Court of Appeal in Bright v Police [2009] 3 NZLR 132 (leave to Supreme Court refused), where the ejection took place at a local authority meeting.
Secondly, in reality, the appellants were mounting a public law collateral challenge to the termination notice. For better or worse, our courts have generally been receptive to such challenges. The Rule of Law requires public bodies to act lawfully and the courts have been reticent to see people's ability to point to unlawfulness clouded by technical arguments about the proper place or process to raise these concerns. See Knight, "Ameliorating the Collateral Damage Caused by Collateral Attack in Administrative Law (2006) 4 NZJPIL"
Thirdly, against this backdrop, I think a more aggressive interpretation of whether the Residential Tenancies Act allowed the ventilation of breaches of this important public law obligation is required. Section 6 of the Bill of Rights demands this. I've not convinced that the Residential Tenancies Act processes and jurisdictions necessarily exclude the consideration of such a claim. Sure, there are indications in the Act that such claims are not the norm - but that's because the bulk of landlords will be private. Those provisions are, I think, capable of being read subject to a public law gloss in the case of state landlords, without violating the injunction in section 4 of the Bill of Rights. That's orthodox Bill of Rights interpretative methodology. But, regrettably, we don't see explicit reference to that methodology.
Anyways, a fascinating case that crosses the public--private divide. And worthy of further consideration by the Court of Appeal, even though I fear the appellants may have run out of steam by now...
Wednesday, October 21, 2009
Gangs, houses and rights
Wednesday, September 16, 2009
Vetting of Bills - whose responsibility?
I was disappointed to read the follow passage in the Transport and Industrial Relations Committee's report on the Land Transport (Enforcement Powers) Amendment Bill:
New Zealand Bill of Rights issues
Standing Order 261 (1) requires that whenever a bill contains any provision which appears to the Attorney-General to be inconsistent with any of the rights and freedoms contained in the New Zealand Bill of Rights Act 1990, the Attorney-General must indicate to the House what that provision is and how it appears to be inconsistent with the New Zealand Bill of Rights Act. We are aware of concern regarding property issues about vehicle impoundment; the reverse onus of proof in clause 6; and freedom of association, peaceful assembly,and movement. However, Crown Counsel advised the Attorney-General that there were no inconsistencies with the Act.
It's is regrettable that the member of the Select Committee have eschewed their own responsibility to vet the bill for Bill of Rights compliance. The summary adoption of Crown Counsel / Attorney advice is, in my view, inappropriate. It is for the Committee to deliberate on the potential rights breaches and the justification of any limitations on rights. It is notable that in the legal advice to the Attorney-General, Crown Counsel noted that particular aspects of their advice was "not wholly beyond dispute" and "not beyond argument". Especially in these cases, one might expect that the Committee to address the point and to provide reasoned analysis of their position - rather than simply adopting a lawyer's view as being determinative. Human rights judgement calls are as much a responsibility of politicians as they are for lawyers.
I am reminded of the remarks of the Court of Appeal in Boscawen v Attorney-General [2009] NZCA 12 about the contestability of the vetting process and the importance of transparent debate on Bill of Rights consistency:
Additionally, the public availability of the advice given to the Attorney-General means that both members of the public and Members of Parliament are able to challenge or support that advice in submissions made to the select committee considering the relevant Bill. This allows further contribution to and participation in the NZBORA debate during the legislative process. Where there are differing views on possible inconsistency with NZBORA rights and as to whether any limitations on any NZBORA right is justified in a free and democratic society, it is appropriate that those issues should be debated in Parliament. ...
[O]pinions can legitimately vary on human rights issues, particularly on the issue of whether any limitations on rights are justified in a free and democratic society and on assessing the appropriate balance between rights and between rights and other values (such as privacy) where these may be apparently in conflict.
We refer to one well known case, discussed in Rishworth and others The New Zealand Bill of Rights (2003) at 200 – 201, where Parliament effectively rejected the Attorney-General’s view. The Attorney-General reported to the House that a Bill providing for random breath-testing of motorists conflicted with the NZBORA. However Parliament took a different view, based on independent legal advice the select committee received from the President of the Legislation Advisory Committee, and passed the Bill on the basis that Attorney-General’s view was incorrect.
Perhaps it is time for New Zealand to consider adopting a specialist Bill of Rights vetting Select Committee, like the United Kingdom (see their Joint Committee on Human Rights). This would empower MPs to form their own judgements on Bill of Rights consistency, develop greater expertise in Bill of Rights matters generally, and better encourage MPs to challenge the singular view of the Executive about Bill of Rights consistency.
Tuesday, August 18, 2009
Standards of Review: Canadian-Style Deference and Lessons For The Antipodes
Tomorrow I depart for a 6 week trip abroad, courtesy of the Canadian Government (in particular, their Canadian Studies programme), to think about, chew the fat about, and write about some Canadian administrative law.
Below is the project summary. More about the substance and progress when I'm over there and I've got my head around it...
- - - - - - - -
"Standards of Review: Canadian-Style Deference and Lessons For The Antipodes"
Judicial review is the main formal mechanism within Anglo-Commonwealth constitutional systems for providing "checks and balances" on administrative decision-making. Central to the operation and effectiveness of this accountability mechanism is notion of the "intensity" adopted – or in inverse Canadian parlance, "deference" applied – by the courts when reviewing or scrutinising the decisions of public bodies and officials. The question of the appropriate degree of intensity or deference is coloured by two equally important competing values. On the one hand, the courts strive to be vigilant, in order to protect the rights and interest of citizens and to uphold the Rule of Law. On the other hand, the courts also recognise the need to exercise restraint, in order to respect the constitutional allocation of power by the legislature to public bodies and officials, and to acknowledge the limits of the judicial function and procedure when reviewing the decisions and judgements made by those public bodies and officials.1 Judicial methodology or the common law doctrines applied by the courts therefore represent a mediated equilibrium or compromise between those two competing tensions.
English, New Zealand and Australian courts have traditionally given effect to this vigilance–restraint equilibrium by applying developed grounds of review which contain prescribed degrees of intensity or deference. For example, when reviewing a legality of administration under the "lawfulness" or "illegality" ground of review, the courts apply absolute vigilance and are entitled to intervene if any legal error is found.2 In contrast, when reviewing the "merits" of a decision (that is, the overall robustness of the decision, any factual findings made, the weight given to different factors, or the reasoning on which it is based), the courts are only entitled to intervene in cases where the decision is manifestly unreasonable.
In contrast, Canadian courts have for many years applied a framework where the vigilance–restraint equilibrium is settled on a case-by-case basis based on the circumstances of particular cases. Initially adopted under the "pragmatic and functional" framework3 – more recently, re-branded a "standards of review" analysis4 – the Canadian courts calibrate the degree of deference or intensity of review under a universal system based on different standards (not grounds) of review.5
The difference between the competing approaches has begun to narrow as the English, New Zealand and Australian courts have become to question the propriety of rigid grounds of review with defined degrees of deference. For example, in England and New Zealand, the courts now accept that, when reviewing the merits of a decision, the degree of unreasonableness required to justify judicial intervention may vary in the circumstances (although the precise methodology to be adopted has yet to be definitely settled).6
This year, however, the Canadian courts modified their standards of review approach,7 in the light of many years of experience and following some criticism of the regime.8 Although the basic framework was retained, the Supreme Court of Canada directed a new approach to the assessment of the reasonableness of the administrative decision under review (that is, collapsing the distinction between patent unreasonableness and reasonableness simpliciter and replacing it with a unified, but context-specific, reasonableness standard).
The purpose of the proposed project is to analyse and critique the unique features of the Canadian regime and recent developments, particularly the concerns that led to the recent change to the regime and the practical experience under the modified regime. It is proposed to undertake this analysis from a comparative perspective, that is, relating the Canadian practice and experience to the more fledgling New Zealand approach to intensity and standards of review. This comparative study will contribute to a broader project assessing whether New Zealand should adopt a formal standards of review framework and, if so, what type of standards should be adopted.9
1 See for example Michael Fordham "Surveying the Grounds: Key Themes in Judicial Intervention" in Peter Leyland and Terry Woods (eds) Administrative Law Facing the Future: Old Constraints and New Horizons (Blackstone Press, London, 1997).
2 Dean R Knight "Simple, Fair, Discretionary Administrative Law" (2007) VUWLR 91 and Michael Taggart "Administrative Law" [2006] NZ Law Rev 75.
3 CUPE, Local 963 v New Brunswick Liquor Corporation [1979] 2 SCR 227 and Canada (Director of Investigation & Research) v Southam Inc [1997] 1 SCR 748.
4 Dunsmuir v New Brunswick (2008) SCC 9.
5 See for example David Phillips Jones and Anne S de Villars Principles of Administrative Law (4 ed, Thomson Carswell, Scarborough, 2004); David J Mullan "Establishing the Standard of Review: The Struggle for Complexity?" (2004) 17 Canadian Journal of Administrative Law and Practice 59; Philip Bryden "Understanding the Standard of Review in Administrative Law" (2005) 54 Uni New Brun LJ 75; Audrey Macklin "Standard of Review: The Pragmatic and Functional Test" in Colleen M Flood and Lorne Sossin (eds) Administrative Law in Context (Edmond Montgomery Publications, Toronto, 2008) 197.
6 See for example Dean R Knight "A Murky Methodology: Standards of Review In Administrative Law" [2008] 6 NZJPIL 117 and Michael Taggart "Proportionality, Deference, Wednesbury" in Judicial Review (New Zealand Law Society, Wellington, 2007) (New Zealand); Andrew Le Sueur, "The Rise and Ruin of Unreasonableness?" [2005] 10 JR 32 (United Kingdom); Lisa Busch "Standards of Review of Administrative Decision-Making in Australian Public Law" [2006] JR 363 (Australia);
7 Dunsmuir v New Brunswick (2008) SCC 9.
8 Guy Régimbald "Correctness, Reasonableness, and Proportionality: A New Standard of Judicial Review" (2005) 31 Man LJ 239; and Toronto (City) v CUPE, Local 79 [2003] SCC 63.
9 For my initial work on this broader project, see Dean R Knight, "Dunne v Canwest TVWorks Ltd: Enhancing or Undermining the Democratic and Constitutional Balance?" (2005) 21 NZULR 711, Dean R Knight "A Murky Methodology: Standards of Review In Administrative Law" [2008] 6 NZJPIL 117, and Dean R Knight, "Standards of Review in Administrative Law" (Seminar for Crown Law Office, Wellington, September 2008).
Friday, August 14, 2009
Loss of a great scholar and friend
Ka hinga te totara o te wao nui a tane.
With the passing of Mike Taggart due to illness yesterday, the NZ legal academy has lost one of its finest and most generous legal scholars.Below is a copy of a painting (by Richard Taggart) presented to Mike to mark his retirement from Auckland Law School last year. It epitomises Mike: a truly fine common lawyer, with incredible enthuthiasm and passion for what he did.
We will all very much miss him.
See also:
> 15 Lambton Quay: "The death of a friend - Professor Mike Taggart"
> Hart Publishing: "A Simple Common Lawyer"
Thursday, August 13, 2009
New Zealand Order of Merit (Modernisation of Titular Titles) Bill
> New Zealand Order of Merit (Modernisation of Titular Titles) Bill
Most folk reading this will know that, for quite some time, I have been lobbying publicly and on this blog for the reinstatement of titulars titles as part of the NZ Order of Merit. With this month's announcement of the re-designated Knights and Dames, part of that campaign has finally come to fruition. I understand there is soon to be a redesignation ceremony, from which point honorands will be able to use the appellations of Sir and Dame.
But... my campaign was not merely about reinstating the titular titles of British origin. I also proposed that we allow equivalent Māori / Te Reo appellations, "Tā" and "Kahurangi" (or such other appellations as Māoridom support). It would, I think, have been a nice compromise in the polemic debate: a nod to our British heritage and a nod to our indigenous heritage.
Anyway, I've now drafted a Member's Bill which would effect such a change.
Also included in the proposed Bill are changes to a couple of the discriminatory elements of the Knightshoods and Damehoods. Honorands of both genders and their spouses should be treated the same - this Bill would ensure they are.
This Bill is free to a good home - I'm happy for any MPs to pick it up and seek to have it progressed in the House.
- - - - - - -
In March 2009, the New Zealand Order of Merit was changed to restore titular titles. That is, the recipients of the highest honours were redesignated Knights and Dames and are entitled to use the appellations of "Sir" and "Dame" before their names.
This Bill further amends the honours system to allow Knights and Dames to use a Te Reo Māori form of appellation, "Tā" and "Kahurangi", if they wish. This reinforces the indigenous nature of the Order and acknowledges that the honours system may evolve to reflect New Zealand's present-day culture. Further, the adoption of an explicitly indigenous appellation may mean some people may be more willing to accept the highest honours.
In addition, the Bill removes the following discriminatory elements of the titular titles and highest honours:
- First, only men are entitled to be conferred with the Accolade of Knighthood (that is, the "dubbing" of shoulders with the ceremonial sword).
- Secondly, only wives of Knights are entitled to the courtesy title "Lady". Husbands of Dames do not receive a courtesy title, nor do (opposite-sex or same-sex) civil union or de facto partners.
These elements are inconsistent with the prohibitions on gender, martial status and sexual orientation discrimination in the New Zealand Bill of Rights Act 1990. This Bill allows women to also receive the Accolade and to be "dubbed". It also removes courtesy titles for wives of any Knights, honoured after the date the Bill is passed (existing courtesy titles may continue to be used), so the spouses, civil union partners and de facto partners of Knights and Dames are all treated in the same manner.
New Zealand Order of Merit (Modernisation of Titular Titles) Bill
Member's Bill
1 Title
2 Commencement
3 Purpose
4 Act to bind Crown
5 Te Reo Māori Titular Titles
6 Accolade of Knighthood
7 Removal of Courtesy Titles
____________________
The Parliament of New Zealand enacts as follows:
This Act is the New Zealand Order of Merit (Modernisation of Titular Titles) Bill 2009.
2 Commencement
3 Purpose
(a) to amend the Statutes of the New Zealand Order of Merit to provide for titular titles in Te Reo Māori, namely "Tā" and "Kahurangi";
(b) to remove discriminatory elements of the titular titles and highest honours.
4 Act to bind Crown
5 Te Reo Māori Titular Titles
"20. Ordinary and Additional members of the first and second levels of this Order may use the following appellations before their forenames from the date of their appointment:(a) in the case of a man of, "Sir" or "Tā"; and (b) in the case of a woman, "Dame" or "Kahurangi"."
(2) Clauses 3(2)(c) and 4(2)(c) of the Additional Statutes of The New Zealand Order of Merit (2009/90) are amended by inserting after the word "Sir" wherever it appears, the words "or "Tā"".
(3) Clauses 3(3)(b) and 4(3)(b) of the Additional Statutes of The New Zealand Order of Merit (2009/90) are amended by inserting after the word "Dame" wherever it appears, the words "or "Kahurangi"".
6 Accolade of Knighthood
"16. It shall be competent for Our Chancellor of this Order to perform in Our Name, and on Our behalf, the ceremony of investing persons admitted to this Order with the insignia of their dignity and confer the Accolade of Knighthood on Knights Grand Companions, Dames Grand Companions, Knights Companions and Dames Companions if such Knights or Dames have not previously received the Accolade."
7 Removal of Courtesy Titles
(2) For the avoidance of doubt, wives of Ordinary and Additional members admitted to the first and second levels of the New Zealand Order of Merit before the commencement of this Act may continue to use before their surname (while it remains the same as that of their husband) the courtesy title of "Lady".
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