23 December 2005
R v Labaye  SCC 80
A splendid decision of the Supreme Court of Canada in which they re-interpret the definition of “indecent” – moving from the previous community standards test to a harm-based analysis.
No doubt the facts will excite students too – with the charge being keeping a common bawdy‑house for the practice of acts of indecency arising from the operation of a swingers club. There’s also a companion case: R v Kouri  SCC 81 (a bar for “liberated couples” to have group sex). No chance for additional comment - but will try and pull things together post Xmas.
22 December 2005
New York Blade: Pentagon spied on gay student groups, report says Gay kiss-in labeled 'credible threat' By ANDREW KEEGAN Dec 20, 5:38 PM Pentagon officials have spied on student groups opposed to the military's "Don't Ask, Don't Tell" ban on openly gay military personnel, according to media reports.
A February protest at New York University was one of the events under government surveillance, NBC News reported last week.The network reported that the law school’s gay advocacy group, OUTlaw, was classified as "potentially violent" by the Pentagon. "I was shocked to read that OUTLaw was classified as a threat and investigated," OUTlaw Co-chair Rebecca Fisher said in a telephone interview on Monday. "Since we still don't know how the Pentagon went about investigating us, I'm wondering how far they went in invading our personal privacy to make their determination. Did they read our e-mail? Monitor our meetings?”
Ellen Kranke, a Department of Defense spokesperson who handles issues regarding sexual orientation at the Pentagon, could not be reached for comment Tuesday. Fisher said the Bush administration continues to display an attitude that is anything but democratic."For all its talk about democracy and free speech, this administration seems to feel very threatened by our peaceful exercise of our First Amendment rights," Fisher said. "This does not reflect the values of our Constitution. It's what you'd expect to see in a totalitarian police state, not in a country founded on freedom of conscience."
NBC also reported that a "Don’t Ask, Don’t Tell" protest at University of California Santa Cruz, which included a gay kiss-in, was labeled as a "credible threat" of terrorism by the Pentagon.Servicemembers Legal Defense Network, a group dedicated to helping military members affected by the "Don’t Ask, Don’t Tell" policy, condemned the Pentagon surveillance and monitoring. "The Pentagon is supposed to defend the Constitution, not turn it upside down,"
Dixon Osburn, SLDN executive director, said in a statement released Dec. 20. "Students have a first amendment right to protest and Americans have a right to expect that their government will respect our constitutional right to privacy."SLDN said it plans to submit a Freedom of Information Act request to learn if other gay organizations have also been monitored by the government."To suggest that a gay kiss-in is a 'credible threat' is absurd, homophobic and irrational," Osburn said. "To suggest the Constitution does not apply to groups with views differing with Pentagon policy is chilling."
10 December 2005
Kofi Annan, the United Nations Secretary-General, reminds us of humanity's objection to torture: "Let us be clear: torture can never be an instrument to fight terror, for torture is an instrument of terror. ... Today, on Human Rights Day, let us recommit ourselves to the principles of the Universal Declaration of Human Rights, and let us rededicate ourselves to wiping the scourge of torture from the face of the earth."
His full remarks are available on the UN's Human Rights Day site as follows:
As a post(pre?)-script, the House of Lords decision in A (FC) and others (FC) v Secretary of State for the Home Department [pdf] in which they reject the admission of evidence procured through torture makes refreshing reading. Lord Nicholls said (sentiments shared by the other judges in their speeches):
Fifty-seven years after the Universal Declaration of Human Rights prohibited all forms of torture and cruel, inhuman or degrading treatment or punishment, torture remains unacceptably common. Recent times have witnessed an especially disturbing trend of countries claiming exceptions to the prohibition on torture based on their own national security perceptions.Let us be clear: torture can never be an instrument to fight terror, for torture is an instrument of terror. The prohibition on torture is well established under international law. It is also unambiguous and absolute. It is binding on all States in all territories under their jurisdiction or effective control. It applies in all circumstances, in times of war as in times of peace. Nor is torture permissible when it is called something else: cruel and inhuman treatment is unacceptable and illegal, irrespective of the name we give it. States must honour this prohibition and vigorously combat the impunity of perpetrators of torture. Those who conceive of or authorize any form of torture and other cruel, inhuman or degrading treatment, and those who commit such acts, should not go unpunished. Nor may any State condone torture by a third party. This means that individuals must never be rendered to another State if there is any danger that doing so may subject them to torture. The international community must speak forcefully, and with one voice, against torture in all its forms. Today, I call on all States who have not done so to ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the Optional Protocol to the Torture Convention. And I urge all States to allow the United Nations’ Special Rapporteur on Torture independent access to detainees within their control. Unimpeded access is an essential protection for these individuals, whose isolation makes them especially vulnerable to abuse. Together, we must give voice, and redress, to abused detainees as well as to all victims and survivors of torture. Humanity faces grave challenges today. The threat of terror is real and immediate. Yet fear of terrorists can never justify adopting their methods. Nor can we be complacent about the broader prevalence of cruel and inhuman punishment, which in so many of our societies disproportionately affects the most vulnerable people: the imprisoned, the politically powerless and the economically deprived. Instead, we must respond to this evil wherever we find it by reaffirming humanity’s most basic values. Today, on Human Rights Day, let us recommit ourselves to the principles of the Universal Declaration of Human Rights, and let us rededicate ourselves to wiping the scourge of torture from the face of the earth.
Torture is not acceptable. This is a bedrock moral principle in this country. For centuries the common law has set its face against torture. In early times this did not prevent the use of torture under warrants issued by the King or his Council. But by the middle of the 17th century this practice had ceased. In 1628 John Felton assassinated the Duke of Buckingham. He was pressed to reveal the names of his accomplices. The King's Council debated whether 'by the Law of the Land they could justify the putting him to the Rack'. The King, Charles I, said that before this was done 'let the Advice of the Judges be had therein, whether it be Legal or no'. The King said that if it might not be done by law 'he would not use his Prerogative in this Point'. So the judges were consulted. They assembled at Serjeants' Inn in Fleet Street and agreed unanimously that Felton 'ought not by the Law to be tortured by the Rack, for no such Punishment is known or allowed by our Law': Rushworth, Historical Collections (1721) vol 1, pages 638-639.
9 December 2005
The Marriage (Gender Clarification) Amendment Bill was voted down the other night. Tony Milne has a good personal summary of the speeches and events in the House.
Below is voting record of MPs (there's one vote short on the Maori party - I understand because of proxy issues rather than a formal abstention):
Ayes 47 New Zealand Labour 1 (Field);
New Zealand National 36 (Ardern, Auchinvole, Bennett D, Bennet P, Blue, Borrows, Brash, Brownlee, Carter D, Carter J, Clarkson, Coleman, Collins, Dean, English, Foss, Goodhew, Goudie, Guy, Hayes, Heatley, Hutchison, King C, Mapp, McCully, Peachey, Roy, Ryall, Smith L, Smith N, Tisch, Tolley, Tremain, Wagner, Wilkinson, Worth)
New Zealand First 5 (Brown, Paraone, Peters, Stewart, Woolerton);
United Future 3;
ACT New Zealand 2
Noes 73 New Zealand Labour 49 (Barker, Barnett, Benson-Pope, Beyer, Burton, Carter C, Chadwick, Choudhary, Clark, Cosgrove, Cullen, Cunliffe, Dalziel, Duynhoven, Dyson, Fairbrother, Fenton, Gallagher, Goff, Gosche, Hartley, Hawkins, Hereora, Hobbs, Hodgson, Horomia, Hughes, Jones, King A, Laban, Mackey, Maharey, Mahuta, Mallard, Moroney, O'Connor, Okeroa, Parker, Pettis, Pillay, Ririnui, Robertson, Samuels, Street, Sutton, Swain, Tizard, Wilson, Yates);
New Zealand National 12 (Blumsky, Connell, Finlayson, Groser, Henare, Key, Power, Rich, Simich, te Heuheu, Williamson, Wong);
New Zealand First 2 (Donnelly, Mark);
Green Party 6;
Maori Party 3;
UPDATE: Hansard transcript now available.
5 December 2005
2 December 2005
If I am wrong in holding that Professor Farrell’s evidence was insufficiently relevant to warrant admissibility, I would nonetheless exclude that evidence in the exercise of my discretion. I would do so pursuant to s 135 of the Evidence Act, on the basis that, read as a whole, it is confusing. Having attempted, I believe assiduously, to understand the gist of Professor Farrell’s evidence, as set out in his various reports, I regret to say that I cannot make a great deal of sense of considerable parts of that evidence. ...
I have only the vaguest notion of what this [explanation and formula] means. ...
Once again, this [further explanation and formula] means nothing to me. In making that observation, I do not intend to cast any doubts upon Professor Farrell’s technical expertise. Plainly, I am in no position to do so. To be fair, the mathematical formulae set out above were in technical appendices. Perhaps Professor Farrell assumed that any judge hearing a matter of this kind would be able to understand material presented in this manner. If so, he was mistaken, at least as far as I am concerned. I regret to say that evidence presented to a court in this form is likely to be unhelpful, and really should not be adduced. The technical appendices provide a significant part of the rationale for Professor Farrell’s conclusions, which are themselves not altogether easy to follow. Having regard to the difficulty that I have in understanding Professor Farrell’s reasoning, I propose to exclude his evidence in-chief in its entirety. I am prepared, however, to have regard to those parts of his evidence, under cross-examination, that I was able to understand.
See the full extract (including the confusing explanations!) in pdf
The Court also commented on the question of whether it is bound by Privy Council decisions in New Zealand cases ("this Court is still bound by existing Privy Council decisions made in respect of appeals from New Zealand (including the transitional phase) unless and until the Supreme Court overrules them") and Privy Council decisions from other jurisdictions ("[a]ny decisions of the Privy Council with regard to jurisdictions made after the advent of the Supreme Court will of course be of persuasive value only"). ("hat-tip" to Geoff McLay for the case)
This Court has recognised that it is ordinarily bound by its earlier decisions but that it will, in rare cases, be prepared to review and affirm, modify, or overrule an earlier decision… [W]e do not consider the creation of the Supreme Court as our final court of appeal should lead to any change in the way in which this Court approaches its earlier decision.
21 November 2005
20 November 2005
17 November 2005
14 November 2005
This paper describes, from the perspective of the advocates for Mâori claimants, the substance of submissions to, and process followed by, the United Nations Committee on the Elimination of Racial Discrimination in determining that the Foreshore and Seabed Act 2004 discriminates against Mâori. The paper has a number of functions: it illustrates that, contrary to the Prime Minister's suggestions, the process followed by the Committee was robust; provides much needed comment on the Committee's early warning and urgent action procedure; should be useful to other individuals or groups seeking to challenge legislation in international fora; and, finally, sheds light on the Committee's succinct decision by placing it within the context from which it emerged.
11 November 2005
UPDATE: For an interview with The Eradicator on the Bill, see GayNZ.com, "More Mapp: But gays CAN marry! (...the opposite gender)".
GayNZ.com: So that moral perspective wouldn’t have informed the drafting of this bill, and the push to have this bill put through?
Copeland: [pause] Well, I mean, none of this can, ah, separate, our morality from our actions as MPs. My own personal situation is that, um... is that, ah, marriage is the only sexual activity which is sanctioned by God, which has God’s seal of approval. All other forms of sexual activity, therefore, fall short of that very very high standard, whether they be homosexual or heterosexual. They all fall short of that. So I have a moral distinction between the two, and for me of course, that simply reinforces the fact that all of humanity to a greater or lesser extent is sinful. So, homosexual, heterosexual, we’re all in that category, including myself (laughs). Especially me. So its not a question of, of, being judgmental, we’re just simply saying, look, here this is what marriage has always meant, and we want to continue for it to mean that.
GayNZ.com: So that perspective you’ve just outlined, that’s the perspective that’s behind this bill?
Copeland: The, um, no I’ve said what I’ve said. I’ve said what I’ve said. You’re now trying to put words in my mouth. I couldn’t have been any clearer with you, could I?
10 November 2005
The MPs were then sworn in and a speaker elected. I know Margaret Wilson was previously reluctant about the tradition of the Speaker Elect being “dragged” to the table. However, for myself, I think these traditions are important because they remind us of the historical context to our present day proceedings. (As an aside, I lament our country’s reluctance to celebrate traditions and civic occasions. The few occasions we seem to do so are typically sports-related (think the ceremonies at the Olympic Games, rugby matches, and ticker-tape parades for sports champions). And also, more latterly, movie premieres. By why not also for our civic functions? I’m all for making government administration accessible and less formal on a day-to-day basis; but surely it’s appropriate also exercise our traditions in some ceremonial occasions. In fact, I think there is an unsatisfied desire in our community to celebrate who we are as New Zealanders. Notable, I think, was the number of people who participated in the interring of the Unknown Warrior. On a similar line, and all due respect to his wishes, I remain disappointed that there was not the opportunity for a formal state farewell to David Lange. While it was important for his community in Mangere to say their farewells in a way that recognised their relationship to him, so too - in my view - for the wider New Zealand civic community. He will go down in history as one of our great Prime Ministers and, in many respects, the catalyst for the modern, independent and mature nation we now have. It was sad that fact wasn’t able to be recognised through a formal farewell by our state institutions.) Then the next day, the State Opening of Parliament – with the Governor-General reading the speech from the throne. For onlookers outside, this is more ceremonial with the G-G being welcomed onto the forecourt of Parliament with a powhiri and the fanfare from the trumpeters. She then inspected the guard (some might quip that the 60 or so that make up the guard was probably most of our armed forces!). As the National Athem was placed, a 21 (?) gun salute rang across the city from the Point Jerningham. In many respects, it was a delightful fusion of traditional – uniquely New Zealand – with Westminster traditions along side indigenous ceremonies. I must say at that moment I was struck by the atmosphere of the occasion. This was the opening of the body that is responsible for promulgating our laws and is the focal point of our democracy. As a lawyer and legal scholar, the law is what I do. It’s not often one gets to see such a symbolic representation of our democratic processes and the rule of law. So often it’s easy to get caught up in the minutiae of the lawyering and legal scholarship and forget the “big picture”. This moment, for me, was a chance to be reminded of that point.
Commission Opening of Parliament By proclamation issued on 7 November 2005, the forty-eighth Parliament was summoned to meet, and it met for the dispatch of business at 2 p.m. on Monday, 7 November 2005. The Gentleman Usher of the Black Rod announced the presence of Her Majesty’s Commissioners. The bar was raised, and the Commissioners took their places at the head of the table. The Right Honourable Dame Sian Elias, Chief Justice of New Zealand, the Chief Commissioner, said: Members of the House of Representatives: Her Excellency the Governor-General not thinking fit to be present here this day in person, has been pleased, in relation to the opening of the Forty-Eighth Parliament of New Zealand, to cause Letters Patent to be passed under the Seal of New Zealand, constituting us, The Right Honourable Dame Sian Elias, Dame Grand Companion of The New Zealand Order of Merit, Chief Justice of New Zealand, The Honourable Noel Crossley Anderson, Distinguished Companion of the New Zealand Order of Merit, President of the Court of Appeal of New Zealand, and The Honourable Anthony Penrose Randerson, Chief High Court Judge of New Zealand to be Her Majesty’s Commissioners to do all things in Her Majesty’s name necessary to be performed at the opening of this Parliament. This will more fully appear by the Letters Patent themselves which must now be read. The Letters Patent were then read by the Clerk of the House of Representatives. The Proclamation summoning Parliament was then read by the Chief Commissioner as follows: SILVIA CARTWRIGHT, Governor-General A PROCLAMATION Whereas, by Proclamation published on 12 August 2005, the Parliament of New Zealand was summoned to meet on 18 November 2005: And whereas I have thought fit to summon it to meet on an earlier day: Now, therefore, pursuant to section 18 of the Constitution Act 1986, I, The Honourable Dame Silvia Cartwright, Governor-General of New Zealand, summon the Parliament of New Zealand to meet in the Parliament House, in the City of Wellington, at 2.00 pm on 7 November 2005. Given under the hand of Her Excellency the Governor-General, and issued under the Seal of New Zealand, on 27 October 2005. Helen Clark, Prime Minister GOD SAVE THE QUEEN! The Chief Commissioner then said: Members of the House of Representatives: We have it in command from Her Excellency the Governor-General to inform you that on 8 November 2005 at 2.00 pm, Her Excellency the Governor-General will declare to you in person the cause of her summoning this Parliament to meet. But since it is necessary that a Speaker of the House of Representatives be first chosen, Her Excellency requests that you, members of Parliament, now proceed to choose one of your members to fill that high and important office, and that having chosen that person, you present that person at 4.30 pm, today, 7 November 2005 at the Government House at Wellington for Her Excellency’s confirmation. The Commissioners then withdrew.
7 November 2005
3 November 2005
Civil Union Bill: Yes Relationships Bill: Yes Death With Dignity Bill: Yes Prostitution Reform: Yes Sale of Liquor Act (Youth Alcohol Harm Reduction): No Care of Children Amendment: NoThis apparently puts me in the same league as the following MPs:
- Deborah Coddington - Rodney Hide - Heather Roy - Ken Shirley - Sue Bradford - Rod Donald - Jeanette Fitzsimons - Keith Locke - Nandor Tanczos - Metiria Turei - Tim Barnett - Steve Chadwick - Helen Duncan - George Hawkins - Dave Hereora - Marian Hobbs - Pete Hodgson - Judith Tizard - Russell Fairbrother (who abstained on one vote).
1 November 2005
No democracy can long survive which does not accept as fundamental to its very existence the recognition of the rights of minorities.(Franklin D Roosevelt, Letter to the National Association for the Advancement of Colored People (25 June 1938))
28 October 2005
27 October 2005
12 October 2005
8 October 2005
I accept that which seems to me to have been always admitted to be the law before the case of R. v. Tewkesbury Corpn., viz. the proposition which I have expressed, as generally applicable to all cases where notice of the law as affecting any subject- matter is material, that is to say, where by the law, if certain facts exist incapacity exists, and where by the law, if the law were known to the elector, his vote would be thrown away if he persisted in voting for the disqualified candidate, he cannot, if the facts exist to his knowledge, or if he have notice of the facts equivalent to knowledge, which by law produce incapacity for election in the candidate, render his vote valid by asserting that he did not know that the facts by law produced such incapacity, or that his vote would be thrown away if he voted for such candidate. Applying those principles to the present notice, if it were the law that personal bribery rendered the person guilty of it incapable of being a candidate I should have thought that the notice was sufficient.The candidate had been disqualified because he bribed voters (by allowing his tenants to kill rabbits on his estate). As this fact and potential disqualification has been made known to electors by his opposing candidate, the next highest polling candidate was declared elected. - Similarly, the Queens Bench in Re Bristol South East Parliamentary Election  3 All ER 354 declared the next highest polling candidate the winner after a candidate was disqualified (peers cannot stand for House of Commons) because the facts giving rise to disqualification were known to voters before they cast their votes – in that case, through a press release by the opposing candidate. (Key legislative provisions in the comment field)
6 October 2005
Licence authorises but does not oblige— A licence authorises, but does not oblige, a civil union celebrant or an exempt body to solemnise the civil union to which the licence relates.But, secondly, I think the question of refusing services or facilities is not as straight-forward. My quick instinctive analysis (without any significant research) is as follows: 1. The prohibitions in sections 42 and 44 are both engaged. That is, discrimination on the prohibited grounds (sexual orientation, marital status, and family status) is prohibited. 2. Both ss42 and 44 have internal qualifiers which must be engaged: facilities "available to members of the public" or person who supplies facilities "to the public or to any section of the public". In each case, it must be established that, factually, the provider is providing facilities to the public (ie, if, across the board, they do not offer their facilities to anyone then the Human Rights Act protections will not apply). 3. Both ss42 & 44 are subject to various specific exceptions (limited to discrimination based on specific grounds of discrimination). For example, s46 allows discrimination arising from "the maintenance or provision of separate facilities or services for each sex on the ground of public decency or public safety". None of the exceptions seem to relevant. Notably, a couple of the other specific exceptions which could be relevant in relation to other spheres of activity are not replicated for the purposes of ss42 & 44, eg: - the "religious purposes" exception in relation to employment (s28) - the "marital status" exception in relation to employment (s32). 4. A more general justification – such as the usual balancing process that would apply under section 5 of the Bill of Rights – is not available in the first instance. However, the Human Rights Tribunal has the power to declare something lawful if it constitutes a "genuine justification" (but subject to certain, quite reactive, procedural requirements). My quick search only shows one reported case in which this was done: Avis Rent a Car v Proceedings Commissioner (1998) 5 HRNZ 501 (practice of refusing to rent cars to under 21 year olds was genuinely justified by refusal to rent cars to 21-24 year olds was not). The mediation between religious freedom and freedom from discrimination under this provision may allow the discrimination – although, off the top of my head, when considering similar contests (sexual orientation and schools etc), the Canadian courts have generally come down in favour of vindicating the freedom from discrimination/equal treatment. I’ve included the relevant provisions from the Human Rights Act in the comments field.
20 September 2005
"I'm not gay - not that there's anything wrong with that!": Are unwanted imputations of gayness defamatory?
The homosexual intercourse imputations: In most circumstances, it ought not to be the case in Australia that to publish a statement that one adult was involved in consenting, private homosexual activity with another adult involves a defamatory imputation. But whether it does or does not harm a person's reputation to publish such an imputation is related to time, personality and circumstance. Once, it was highly defamatory in many countries to allege, or suggest, that a person was a communist. Now, in most circumstances, it would be a matter of complete indifference. The day may come when, to accuse an adult of consenting homosexual activity is likewise generally a matter of indifference. However, it would ignore the reality of contemporary Australian society to say that that day has arrived for all purposes and all people. At least for people who treat their sexuality as private or secret, or people who have presented themselves as having a different sexual orientation, such an imputation could, depending on the circumstances, still sometimes be defamatory. The introduction of Mr Rivkin's postulated sexual activity with Mr Wood was not entirely innocent, given the context. Mr Rivkin was described as a married man with five children who, by implication, was leading a secret life. This hypothesis was confirmed by the reference to his "high degree of interest in good looking young men" and by his provision to Mr Wood (who arguably filled the description) of a car, clothes, furniture and apartment, by clear implication in exchange for sexual favours. In the context of an article describing two murder hypotheses for the death of the deceased, one of which postulated the engagement of a "contract killer", the suggestion of homosexual activity between Mr Rivkin and Mr Wood in SMH1 went beyond an imputation of marital dishonesty or adulterous promiscuity on Mr Rivkin's part. In the context, such a sexual liaison, inevitably introduced into the matter complained of, as it would be read by the ordinary reasonable reader, the imputation as pleaded.I’m revising the article for a Sexuality and Citizenship Symposium that a couple of us at the Law School are organising in November this year – with a view to publishing the papers next year. Any comments therefore welcomed!
9 September 2005
22 August 2005
12 August 2005
A few random points.
First, there is the question of jurisdiction. I think the basis of jurisdiction has been mischaracterised as “public function” when, in reality, the telling factor was the “significant public consequences” (cf Finnegan). The public function approach is fundamentally flawed because, unlike the other examples of a “public function” giving rise to review, the nature of the function is inherently private. Datafin, Phipps, and Cameron were all cases in which the function was one which could be regarded as having a regulatory or controlling function. And, of course, they are examples where we might have expected the government to have been involved but-for the recognition and acceptance that the private groups were satisfactory controlling the area. In contrast, in this context, Parliament had recognised private freedom not control – the surrounding legal contours indicate a move away from regulation; other methods were adopted to ensure political balance. The argument that the Broadcasting Act needed to have an *express* ouster clause to prevent the court’s supervisory jurisdiction ignores the difference between ousting established review of public bodies exercising orthodox public functions and the “pulling one up by one’s bootstraps” at the very margins by relying on the absence of the express ouster of *public* law supervision in a case dealing with a *private* body. I think it’s fair to assume Parliament didn’t include an ouster clause because previously there was a constitutional principle that such private bodies were beyond the reach of such supervision anyways! However, if characterised as arising from “public impact” (which factually is hard to refute),
I have less complaint about the finding jurisdiction to review – although having found jurisdiction then, I do not think it should have been forgotten that the body being reviewed was as the extreme boundary of what was capable of being reviewed.
Secondly – and, in my view, more problematic – there is the standard of review that was applied. TV3 set parameters for the number of leaders based on logistical and “good television” factors. They relied on an objective mechanism to determine the 6 – an upcoming poll. To describe this decision as arbitrary or irrational is ludicrous. I know reference to authority is somewhat unfashionable but recall the test for unreasonableness from Woolworths:
“[I]f the outcome of the exercise of discretion is irrational or such that no reasonable body of persons could have arrived at the decision, the only proper inference is that the power itself has been misused. To prove a case of that kind requires "something overwhelming" (Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223, 230 per Lord Greene MR). In Council of Civil Service Unions v Minister for the Civil Service  AC 374, 410 Lord Diplock said in respect of unreasonableness, or "irrationality" as he preferred to call it: "It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it." Similarly, in Nottinghamshire County Council v Secretary of State for the Environment  AC 240, 247, 248 Lord Scarman used expressions such as "so absurd that he must have taken leave of his senses" and "a pattern of perversity" as setting the standard; and in Webster v Auckland Harbour Board  2 NZLR 129, 131 Cooke P spoke of an unreasonable decision as "one outside the limits of reason". Clearly, the test is a stringent one.”Likewise, ‘arbitrary’ must have a similarly a high threshold. Lord Cooke said the term "has a connotation of the despotic[;] [c]aprice rather than a reasoned preference and balancing”. Neither would seem applicable in this case. There is a clear methodology for selecting the leaders and reference to objective standards. The complaint seems to be better characterised as a complaint about the outcome: inconsistency, rather than arbitrariness. That is, the argument that at the lower threshold, the leaders are statistically indistinguishable (although this should not be overstated because apparently the margin of error – upon which there was some reliance – reduces somewhat at the extremes).
Alternatively, Justice Ronald Young seems to have also sowed the seeds of proportionality (albeit in the discussion of relief):
“In a practical sense it is likely to cause no more than inconvenience to TV3. For the plaintiffs, if I refuse to grant the order they will, based on expert evidence, potentially suffer significant electoral disadvantage, irrecoverable which has the capacity to effect the makeup of the next Parliament and therefore the Government of New Zealand. The potential effect in my view therefore falls far more heavily on the plaintiffs."Of course, both of these “novel” standards of review remain somewhat controversial – even in the context of reviewing public bodies exercising orthodox public functions. There was also some suggestion that these circumstances justify a greater degree of scrutiny under an unreasonableness standard: Courts have made it clear that where fundamental rights are affected the levels of arbitrariness or in another context, irrationality required by a plaintiff to establish their case will not be high. Courts are anxious to protect fundamental rights. And here this Court is anxious to protect what I see as a fundamental right of citizens in a democracy to be as well informed as possible before exercising their right to vote and to ensure the electoral outcome is as far as possible not subject to the arbitrary provision of information. One might ask in response: what of the fundamental right – the freedom of expression of TV3? And, in selecting the standard of review, where was the consideration of the nature of the body that is being reviewed?
The authorities which have considered the extension of the court's supervisory jurisdiction into the private sphere have continually commented that the nature of the review may need to be different than the traditional grounds of review that would apply to public bodies and bureaucrats. Notably, the Privy Council in Mercury Energy indicated that, in a cases similarly dealing with the question of the amenability to review in a reasonably unorthodox context, the“[i]t does not seem likely that a decision by a state-owned enterprise to enter into or determine a commercial contract to supply goods or services will ever be the subject of judicial review in the absence of fraud, corruption or bad faith". In my view, these indications are not an invitation for a more rigorous or stringent review of the decision; the indications are in favour of a more deferential standard. After all, although the decision may have a significant public impact, the type of the “decision-maker” is not a public body or bureaucrat – imbued with public law values and methodology – where traditional standards of "good administration" are easily measured. The “decision-maker” is making operational and editorial choices where it seems incongruous to insist on administrative law principles of relevant considerations, proportionality assessments, or other methodology that might be expected of decision-makers of a public law character. Surely, the review being exercised should have been more deferential - intervention reserved for the worst excesses of such as a bad faith or some other, say, if TV3 declined to have Helen Clark at the debate because she was a woman all had previously criticised John Campbell because of the Corngate interview. Or if they declined to have Rodney Hide because the TV lights shone brightly off his bald head! It is almost irresistible to conclude that the judge determined the matter not according to the orthodox approach of considering whether the decision was *open* to the decision maker, but rather by reference to where that he thought the decision was the *correct* one or not.
Finally, even if it is expected that the decision could be characterised as arbitrary, it is quite simply constitutionally unsound for a judge to have determined that the 2 particular leaders be added to the debate. (As an aside, Richard Lewis of Destiny must be incredibly gutted – after all, he was polling higher than Anderton!) Even if the lowest standards of deference are accorded to TV3’s editorial decisions, there still remains an infinite number of approaches which remained open to TV3, including justifying the original 6 on different grounds, reducing the debate to 5 (but then ACT be able to rely on Coughlan style unfairness if TV3 reneged on its invitation – after all TV3 is subject to "public law obligations"), arranging a supplementary debate for the minor parties, etc. This approach to relief – disingenuously justified due to the pressures of time (surely, if the judge himself is capable of making such a decision after two in half hours of oral argument and a 10 minute adjournment, TV3 might be entitled to reconsider its decision in the 8 hours remaining before the debate; and, of course, TV3 had indicated in its evidence that it had reviewed its decision on alternative bases and considered that it could still justify the selection of the original 6 leaders!) – fails to demonstrate any recognition of the supervisory, rather than merits, bases of judicial review and further compounds the concerns that the judge overreached his constitutional position by failing to accord any degree of deference to the choices available to TV3. If TV3’s so called “ex post facto justification” was rejected as not being made in good faith, why wasn’t the matter stood down for 2 hours to allow for the decision-maker to exercise *their* discretion in the Court’s ruling? If the basis for impugning the decision is arbitrariness in methodology, rather than ultimate outcome, surely it was not a fait accompli that a proper, considered, rational methodology would have concluded that the 2 leaders should participate in the debate?
[UPDATE: My later NZULR article on this is here.]
29 April 2005
27 April 2005
The Court never convincingly explains its departure from the natural meaning of §922(g)(1). Instead, it institutes the troubling rule that “any” does not really mean “any,” but may mean “some subset of ‘any,’ ” even if nothing in the context so indicates; it distorts the established canons against extraterritoriality and absurdity; it faults without reason Congress’ use of foreign convictions to gauge dangerousness and culpability; and it employs discredited methods of determining congressional intent. I respectfully dissent.
21 April 2005
19 April 2005
My understanding is that the contempt allegation against Moodie arises in relation to him failing to comply with the (ex parte?) order for him to return the 3 copies of the report he obtained. Although it is being reported in some places that the Court “suppressed” the report, there does not appear to be any suppression orders in relation to the report or proceedings. However, the High Court has so far been declining requests to inspect to Court file – even to obtain the details of the order to return the document I understand the order was made by Justice William Young on (or around) 24 March 2005, although the basis seems to be unclear. Ordering the return of the document appears to be in the context of the Court’s supervision of the discovery process. However, some reports have indicated that Moodie obtained the document independent of the court proceedings (the application declined was, after all, to seek discovery of the report). Wild J noted that he was “unsure quite how, or from whom” Moodie obtained the report but indicated his view that he held it “in his capacity as counsel for the plaintiffs and for the purposes of this proceeding” and that rule 312 of the High Court Rules applied to its use and disclosure. How the document was obtained by Moodie appears to be central. If it was obtained through the discovery process, then the implied undertaking that the document wont be used for a collateral or ulterior purpose will apply. However, this rule only applies where documents are produced under compulsion in the discovery process (see Telstra NZ Ltd v Telecom NZ Ltd (1999) 14 PRNZ 108). There remains the question of whether the use of the document can be restrained as a breach of confidence. This is a slightly different beast though and, given the now apparent widespread availability of the report in the public domain, there is an argument that the document has now lost its confidential nature?
A couple of things since then: - The High Court has confirmed (orally) that there is no supression order. The order only requires the return of the copies of the report and Moodie to advise who holds copies of the document. - Moodie did apparently receive a copy of the report through the court process (offered on a confidential basis by the Crown to show him that there was nothing in it) but contests that he received it on a confidential basis - he says he specifically reserved the right to use it if it did contain significant things. - Apparently, the report circulating on the web is not the copy that Moodie received in discovery. It's said to be the copy that Ron Mark was sent anonomously. - Haven't had a chance to consider the Court Martial rules - but there is a prospect that these rules impact on the confidentiality and availability of the report.
11 April 2005
8 April 2005
7 April 2005
A remarkable event last night on Member's Day. Parliament was unilaterally suspended by the Goverment by removing the sole minister from the House after one party removed leave to suspend the House for a offical dinner for the President of Indonesia.
Standing Order 38 provides:
SO38 Minister to be present A Minister must be present during all sitting hours of the House. If a Minister is not present, the Speaker interrupts proceedings and the bell is rung for up to five minutes. Where no Minister appears, the Speaker adjourns the House until the time for its next sitting.UPDATE: For more on the Opposition's response (including an attempted (and very creative) filibuster), see Scoop: Standing Orders Protest Yields A Partial Victory.
UPDATE 2: Hansard Advances are now up:
- 6 April 2005 (the collapse)
- 7 April 2005 (the fall-out).
Transcripts of exciting bits in full in comments to this post.
6 April 2005
5 April 2005
(c) Any offence against any regulations made under this Act or the Transport (Vehicle and Driver Registration and Licensing) Act 1986 that is declared by such regulations to be a stationary vehicle offence for the purposes of this definition.(Before 1997, the section had specifically referred to reg 85.) - Regulation 136A of the Transport Regulations specifically declares that regulation 85 is a stationary vehicle offence. (This provision was enacted when section 41A was made generic in 1997.) - When the Land Transport Act 1998 was passed, it: * repealed (revoked?) reg 85 (but not reg 136A), and * provided the warrant of fitness offence in section 34(1)(b) of the (new) Land Transport Act. - By dint of section 22 of the Interpretation Act (“a reference in an enactment to a repealed enactment is a reference to an enactment that, with or without modification replaces, or that corresponds to, the enactment repealed”), the reference in (still live) reg 136A to (now repealed) reg 85 must be read as being a reference to the (new) section 34(1)(b) because section 34(1)(b) “replaces” or “corresponds” to reg 85. - Therefore, section 41A of the Transport Act “deems” the offence in section 34(1)(b) of the Land Transport Act 1998 to be a “stationary vehicle offence” and subject to the codified strict liability provisions in section 41A of the Transport Act. Cunning (by their own admission, their argument was “semantically a little awkward”), but not very satisfying. The Court’s reliance on the Parliament’s intention and purpose is weak. It said:
It is simply not credible to attribute to Parliament an intention that the relevant offence no longer be a stationary vehicle offence. In situations such as this, it is important where possible to construe legislation in a way consistent with, and not destructive of, the overall scheme.In my view, imputing some notional intention to Parliament in this situation is, in itself, not credible. Significantly, the “offence” had been moved from the Transport Act and placed it in the Land Transport Act. There was a clear demarcation of the offences moved. “Moving vehicle offences” or “driving offences” were moved to the Land Transport Act, “stationary vehicle offences” or “parking offences” remained in the Transport Act. However, the interpretation effectively treats the offence as being one against the Transport Act, not the Land Transport Act. Also, the Court seems to be pulling itself up by its boot-straps when it relies on section 22 of the Interpretation Act. Section 34(1)(b) is a complete provision. There is no redundant reference or reference overtaking by repeal. There is no necessity for it to be “paired or tied” with reg 136A or section 41A of the Transport Act. It operates effectively independantly - the Crown just has to prove that the offender was "operating" the vehicle as an essential ingredient of the offence. Most troubling though, in my view, is the lengths to which the Court was prepared to go to ensure the provision was subject to the strict liability provisions and in doing so ignored the fundamental interpretative principle that, in cases of ambiguity in criminal offences, the courts ought to give the benefit of any uncertainty to an accused. Lord Reid in Sweet v Parsley  1 All ER 347 said:
[I]t is a universal principle that if a penal provision is rasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted.Our Court of Appeal endorsed that principle in Millar v MOT  1 NZLR 660 (Cooke P and Richardson J):
[I]t is legitimate and in our view important to pay more than lip service to Lord Reid's proposition in Sweet v Parsley that it is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted. The qualification reasonably is also important and prevents an overweighting in favour of the accused.Ashworth (Principles of Criminal Law (2 ed, 1995, p76)) describes its justification as being part of the Rule of Law or the principle of legality (along with non-retroactivity and maximum certainty) as follows: One justification for this might be fair warning: where a person acts on the apparent meaning of a statute but the court gives it a wider meaning, it is unfair to convict that person because that would amount to retroactive lawmaking. Of course, this is principle is not absolute. It implicitly recognises that the provision must have reasonably tenable alternative interpretations – the principle cannot be used to circumvent clear language. Also, the principle complements the principle of interpretation (recognised in s5 of the Interpretation Act) that the meaning of a provision must be “interpreted in the light of its purpose”. The House of Lords in DPP v Ottewall  AC 642 has previously indicated any “doubt” about lexically-possible interpretations might be resolved by reference to the purpose and statutory context without need to resort to the principle of strict construction. Ashworth describes that its “proper place is in a sequence of points to be considered by a court when construing a statutory offence, i.e. only if doubt remains after examining the legislative purpose”. However, in my view, this case wasn’t one readily resolved by reference to the purpose and scheme of the legislation (if anything, it added more doubt!). It will be interesting to see if the case gets appealed to the Supreme Court (and, if it does, whether that makes any difference!).