23 December 2005

Rogers video

The High Court has prevented the showing of the videotaped confession and required it be returned to the Court: Rogers v TVNZ (Auckland HC, 22 December 2005, Venning & Winkelmann JJ) For more background info, listen to Steven Price's comment: Nine to Noon: Steven Price The excluded confession apparently isn't as clear-cut as it seems. See also: NZ Herald: Screening of murder confession banned

Why criminalise conduct: harm vs community standards?

R v Labaye [2005] 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 [2005] 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

Pentagon spied on gay student groups

bizarre, if slightly scary...

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."

Project West Wind: consent granted

Decision of Joint Hearings Commissioners [pdf; 274kb]

Evolution vs Creation

Kitzmiller v Dover Area School District A long decision (it has to be if it's trying to rule on the validity of Creation theory...) so still only part way through reading it... Wikipedia crib sheet

10 December 2005

Human Rights Day: Torture and Global Efforts to Combat It

Today is Human Rights Day and the UN's theme for the day is "Torture and Global Efforts to Combat It".

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:

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.

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):

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

Marriage (Gender Clarification) Amendment Bill: voted down

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;

Progressive 1

UPDATE: Hansard transcript now available.

5 December 2005

Marriage (Gender Clarification) Amendment Bill

Civil Union Campaign: Factsheet - Marriage (Gender Clarification) Amendment Bill The Civil Union Campaign has published a factsheet on this Bill and explains why it opposes it. Delightfully well written if you ask me... *grin* ...although I might have used the word "egregious" and "heinous" rather than unacceptable (and indeed, I may have in earlier drafts... but those words - probably wisely - got replaced in the editing process... )

2 December 2005

Expert evidence: you think you're confused!

I came across this ruling of Weinberg J in Australian Retailers Association v Reserve Bank of Australia where he excludes evidence from an academic expert because he just couldn't understand it!

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

Stare decisis in New Zealand - the Court of Appeal

R v Chilton Yesterday, the Court of Appeal in R v Chilton reconsidered but affirmed its previous position on whether it can overturn its previous decisions:

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.

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)

20 November 2005

Sunday Morning with Chris Laidlaw: Sir Kenneth Keith

So rarely do we hear interviews with our judiciary and eminent legal scholars. It was delightful therefore to hear Sir Ken's candid discussion with Chris Laidlaw on National Radio: National Radio (Sunday Morning): Sir Kenneth Keith [expires 18/12/2005]

17 November 2005

Marriage (Gender Clarification) Bill: do we fight (all parts of) it?

[My comment on NoRightTurn:Fighting the marriage bill reposted here] I'm a firm advocate for glb/same sex couple rights - having been heavily involved in the civil union campaign. However, one thought I've been mulling over is whether codifying, at this time, that marriage is between one man and one woman is as bad as it first seems. (I am, though, firmly opposed to the other egregious clauses in the Bill!) This part of the Bill reflects the current legal position following the Quilter case. While it technically could be revisited and overturned in the future, it is unlikely in the foreseeable future. As much as that hurts and is an affront to the dignity of same-sex couples (even with the “separate but equal” civil unions framework), that is the legal reality we presently face. In some respects, there may be some benefit in maintaining a focus point for the discrimination. It reminds us every day that the legal framework in our country still treats same-sex couples as second-class citizens. It’s one thing to point to the three (rather oblique) judgments of the majority of the Court of Appeal in Quilter as the source of the discrimination; it’s another to point to express statutory wording: - Section 3(3): “For the avoidance of doubt, marriage may only occur between one man and one woman." - Section 2A: “A person may not marry another person of the same gender." I think having some symbolic manifestation of the discrimination in our legislation leaves something for our future glb generations to fight against. PS I should add that these are tentative thoughts. My instant reaction is to fight the d*mn thing. Unjustified discrimination like this has no place on our statute books!

The Official Information Act 1982 - A window on Government or Curtains Drawn?

Our Faculty's Fellow in Law and Journalism, and a good friend of mine, Steven Price has completed a fascinating empirical study of the Official Information Act 1982. The New Zealand Centre for Public Law has recently published his paper as an occasional paper, following his recent public lecture. Compulsory reading for requesters and official alike! Steven Price, The Official Information Act 1982 - A window on Government or Curtains Drawn? (NZCPL Occasional Paper No 17, November 2005)

14 November 2005

CERD Committee's Review of the Foreshore and Seabed Act 2004

For a commentary (including background) on the CERD Committee's Review of the Foreshore and Seabed Act 2004 see the article by two of my colleagues in the most recent Victoria University of Wellington Law Review: Claire Charters and Andrew Erueti, "Report From the Inside: the CERD Committee's Review of the Foreshore and Seabed Act 2004" (2005) 36 VUWLR 257 Abstract:
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

Marriage (Gender Clarification) Bill: its sponsor speaks (preaches?)

For a fascinating and typically incisive (thanks to CB's probing questions, not GC's responses!) interview, see GayNZ.com's interview with MP Gordon Copeland: “God’s seal of approval”.

A little taster to wet your appetite:

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?

UPDATE: For an interview with The Eradicator on the Bill, see GayNZ.com, "More Mapp: But gays CAN marry! (...the opposite gender)".

For more on the Bill, see: Marriage (Gender Clarification) Bill (Knowledge-Basket) Bills Digest Attorney-General's report (noting the inconsistency with the Bill of Rights) (via NoRightTurn)

International Court of Justice: Sir Kenneth Keith

Big snaps to Sir Ken (a Victoria University alumnus, professor, and present judge of our Supreme Court) for being elected to the International Court of Justice. A huge honour for him personally and also vicariously for New Zealand. Stuff News Report Victoria University Press Release Nine to Noon: Steven Price (expires 16/11/2005)

10 November 2005

PC: Deconstructing Wayne

I'm rather keen for the present debate on the virtues of Political Correctness to move beyond mere slogans (despite my own attempt to counter-balance the sloganisation of the debate from those opposed by advocating a different conception of political correctness) into a robust discussion of the merits. In this regard, I commend the recent GayNZ.com interview with Wayne Mapp. UPDATE: Part 2 of the interview is now available.

Opening of Parliament

A slightly more personal post today after I recently had a "moment" when I popped across the road from Law School to watch parts of the two Openings of Parliament (Commission and State). For those of you that missed them - and that's most of you because there were probably about 50 or so hanging around for the Commission Opening (mainly people eating their sammies on the lawn in the sun); and about 100 or so for the State Opening - they were streamed live on http://www.r2.co.nz/ and will shortly be archived so you can watch them again. Anyways, both opening in their own way were delightful. The first – the Commission Opening of Parliament – has our Chief Justice, President of the Court of Appeal, and Chief Judge of the High Court walking across the road from the High Court in full regalia to formally summons Parliament. The proceeding inside the House are recorded in Hansard:

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.

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.

7 November 2005

Rod Donald

Such a sad loss to the Green Party, politics, and New Zealand as a whole. (Image from http://www.dorkinglabs.com/fim_popup.php?id=189 (slightly cropped))

3 November 2005

NZ Parliament: conscience votes

While I inevitably disagree with the substance of Maxim's views (and, quite frankly, find much of their "research" dubious), they are rather good at creating wizz-bang web features which assist with the debate and dialogue on some political social issues. See, for example, Letter Writing Wizard, Change Agent Toolkit, and NZ Votes. Of course, while these are no doubt intended to be used by moral conservatives, they are also useful for social liberals! One of the more recent ones I've come across (hat-tip: Tony via Jeremy) is a wizard showing how MPs votes on the "conscience" issues in the last Parliament. You can input how you would have voted and see which MPs shared the same views. Out of interest, my votes would have been as follows:
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: No
This 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

PC: minorities

Some wise words, I think, from some American guy:

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

Proud to be PC!

The appointment by one of political parties of a spokesperson (oops, sorry, spokesman) for Political Correctness Eradication has once again sparked debate about the virtue of political correctness.

In a speech earlier this year, The Eradicator says political correctness is ”a set of attitudes and beliefs that are divorced from mainstream values”. On Morning Report he champions the importance of “respecting the views of the majority”, rather than “pandering to minorities’ views”. One of the prime targets in his crusade to stamp out “the viewpoints and language of the politically correct from the institutions of government” is the Human Rights Commission, in part because it promotes “views on the right of way of thinking about discrimination” and advocates for “appropriate language or behaviour”. Other targets include the Waitangi Tribunal and the Ministry of Women’s Affairs.

The Eradicator asks rhetorically: “What sort of nation do we want to build?” Well, here’s your chance to tell him. Send him a message that New Zealanders – whether they form part of the so-called “mainstream” or not – aren’t opposed to the values underpinning political correctness. Send him a message that we already have a nation built on basic Kiwi values of fairness, tolerance, and respect for others. Send him a message that his attempt to advance his anti-PC agenda is out of touch with our modern, fair-minded society. Stand up and say that you’re “Proud to be PC!” Dean Proud to be PC! flyer (PDF, 21KB, yellow) Proud to be PC! flyer (PDF, 21KB, light blue) Proud to be PC! flyer (PDF, 21KB, green) Proud to be PC! flyer (PDF, 21KB, orange) Proud to be PC! flyer (PDF, 21KB, purple) Proud to be PC! flyer (PDF, 21KB, midblue)

27 October 2005

Sound bites: zero-tolerance

http://www.nzherald.co.nz/section/story.cfm?c_id=1&ObjectID=10352222 Each time reference to "zero-tolerance" comes up, I wonder whether it's unlawful? In administrative law, there is a strong principle that a decision-maker cannot abdicate their discretion and adopt a rigid policy (see, for example, M v Syms, 5/12/1990 McGechan J & British Oxygen Co Ltd v Minister of Technology [1970] 3 All ER 165). That seems to be what be what is proposed with zero-tolerance - the prosecutorial "discretion" is being undermined and effectively subverted. However, traditionally the courts have also been reluctant to review the exercise of such discretion - but this seems to be changing (see Polynesian Spa Ltd v Osborne [2005] NZAR 408). Perhaps there is some hope in the future that we might be able to knock over this egregious approach to law-enforcement?

12 October 2005

Maori electorate seats

Here's a rant I've been saving up for a while - these are some comments I posted on DPF's blog where he was discussing Tony Milne's arguments in support of the Maori electorate seats. In some respects I agree with some of Tony’s points about the Maori seats. My main issue with the current conversation is the perception that the Maori seats dramatically distort the election - I’m not convinced they’re as widely unusual as some people suggest. First, as Tony notes (and I beg to differ with DPF here), in general terms, each Maori seat represents the same number of people as general seats and therefore the “value” of a vote in the Maori electorate is the same as a vote in a general electorate. The 2002 report of the Representation Committee noted that the “target” number of voters per electorate was as follows (www.election.govt.nz/electorates/ reviewing_electorates.html): - South Island general electorate: 54 308 - North Island general electorate: 54 288 - Maori electorate: 53 130 (Although, my rough calculations from the Statistics Department data (revised General and Māori electoral districts based on Usually Resident Population Count, 2001: www.stats.govt.nz/census/2001-electoral-profile/default) suggests an average – total, not just voter – population of 86,000 people for each Maori electorate and 60,000 for each general electorate.) Secondly, manipulating electoral boundaries to ensure that that electorates generally reflect “like” people is nothing new. In fact, it is mandated for general electorate districts. One of the key consideration when the Representation Commission sets electoral boundaries is “communities of interest” (see s35(3)(f) of the Electoral Act). Notably, this allows the Representation Commission to “group” particular voters within certain electorates. For example, there was a famous (successful) challenge to electorate boundaries when urban voters in Marton were going to be split between 2 electorates, diluting “urban voices” with “rural voices”. Further, it’s no surprise that the Mangare electorate has a Pacific Island population of 49% while neighbouring electorates have a much lower proportion (Mt Roskill: 15%; Maungakiekie: 22%, Manurewa: 23.8%; Manukau East: 34%) – the process of electoral boundaries tries as much as possible to ensure significant groupings of one particular ethnic group are included in the same electorate. Overseas, I’m aware of some (successful) legal challenges in Canada where boundaries were drawn though the middle of First Nation communities (there the requirement is to have regard to “communities of interest or identity”). And I think I recall some electorate maps in the US being rather hotch-potch as they tried to draw electoral boundaries to ensure Black representation. On this basis, it’s not hard to see the Maori seats as an extension of the “communities of interest” proposition – rather than the just the provision of “separate” seats. For a long time, particular voters – typically rural voters – have had the benefit of this type of drawing of the electoral boundaries. Why is it so bad if Maori benefit from it?

8 October 2005

Electoral petitions: seats swapping?

I've looked at the Electoral Act to work out this swapping from a list seat to a constituency seat issue. My thoughts are as follows: If an (existing list) MP contests a by-election and wins, their party does not (automatically) gain any extra seats. The section which deals with when a vacancy is created (s55) is not triggered. There's no distinction in section 55 between constituency and list seats - you only have one seat in the House. While the reason why an MP is entitled to sit in that seat may have changed, that MP still only has one seat. The MP hasn't vacated their seat so there's no need to it to be filled by the next person on their list. However, if an (existing list) MP *resigns* in order to contest a by-election then a vacancy is created (s55(1)(f). The vacancy is filled by the next person on the list (ss 134 & 137). If the MP wins the by-election, then their party's numbers in Parliament go up by one. I'm not sure by when the resignation must be made by for it to create a vacancy but I anticipate if it before the results of the by-election are declared - which could be *after* the expected results are know. Similar possibilities arise if an (existing list) MP is declared elected as a result of an electoral petition. There is a potential anomaly in that once the list members are declared (based on the proportionality principle), then there is no automatic provision for re-computation of the list sits if there is a change in the constituency seats. There is some speculation that this means that Heather Roy may be entitled to remain in Parliament even if Rodney Hide was ousted from Epsom as a result of an electoral petition! However, there is a possible means to "cure" this anomaly . A party could file an electoral petition to the Court of Appeal under s258 challenging "the procedures and methods used to allocate seats to political parties ... and the return of members of Parliament consequential on that allocation". The challenge would be on the basis that the outcome of the electoral petition in a constituency seat affects the basis of the allocation. Of course, this means the electoral petition to the Court of Appeal would have to wait until the outcome of any High Court electoral petition - as the time limit for filing such a petition is short, presumably it must be filed in anticipation the a win in the High Court and stayed until that result is known. On this basis, I think then Heather Roy looks vulnerable if Rodney Hide was ousted and, I think, the reallocation of the 2% of the votes might favour the Greens and Labour (who are next closest to gaining extra seats). Therefore I think the possible scenarios are as follows: A. If there is a by-election and: (i) Peters resigned to contest it and wins it, then National loses 1 seat (Clarkson) & NZ First gains 1 seat (new list member plus Peters in Tauranga) (ii) Peters doesn't resign and wins it, then National loses 1 seat (Clarkson) & NZ First stays the same. B. If Peters is declared the winner in Tauranga in an electoral petition and: (i) no challenge to the Court of Appeal is made about the allocation of seats, then National loses 1 seat (Clarkson) and NZ First stays the same. (ii) there is a challenge to the Court of Appeal about the allocation of seats, then National stays the same (loses Clarkson but would bring in the next National list member) and NZ First stays the same.

Electoral petitions: by-election or next highest polling candidate wins?

I'm not convinced that a by-election is the necessary outcome of Peters succeeding with his electoral petition in Tauranga (although I am aware there differing views on this). I think the High Court has the power to declare the next highest polling candidate (although whether they do so may depend on the factual context). My analysis (following only brief research - E&EO!) is as follows: The Electoral Act sets up two means by which an allegation of "corrupt practice" (ie, knowingly overspending under s213(3)(a)) can be dealt with: - A prosecution for breaching s213(3)(a). - An electoral petition challenging the result in a constituency seat under s230. The prosecution path is relatively straight-forward because it happens independently of a challenge to the outcome of an election. If convicted, the MP's seat is declared vacant under s55(1)(e). As a consequence, under s129, a by-election is held. (And, of course, the MP guilty of a corrupt practice can't re-stand because they will be on the Corrupt Practices List and disqualified from voting/standing for 3 years.) However, if the issue arises in an electoral petition (as in the present Clarkson/Peters situation) I think the High Court has the power to declare the next highest polling candidate the winner of the seat: - If a candidate is found guilty of a corrupt practice under section 237, the “his or her election is declared void”. - Under section 243, the High Court then certifies the outcome of the petition, namely “whether the member whose election or return is complained of, or any and what other person, was duly elected or returned, or whether the election was void”. - My view is that the High Court’s power is threefold: declaring that the present winner didn’t win, declaring that another candidate won, or declaring the entire election (in that electorate) void. The different views, I think, arise from the issue about whether a voiding a candidate’s election voids only his or her election or the entire election (in that electorate). I think there are a number of factors which suggest the former is a possibility: - Section 238 specifically empowers the court to avoid the election if corrupt and illegal practices have prevailed such that it is reasonably supposed they affected the result. This seems to allow a wider power to declare the entire election void; the power in section 237 seems narrower and pertains solely to the candidate who is guilty of wrongdoing. - The fact section 55(g) refers to a vacancy being created as a result of an electoral petition is neutral, that is, it does not necessary trigger a by-election for the vacancy; it simply provides for the certified result of electoral petition to be implemented (electoral petition sometimes take months to determine – well after the original winner was sworn in in Parliament). - Overseas caselaw (below) contemplates the power to simply disregard the votes cast for a disqualified candidate, to (re-)compute the result of the election, and to declare the properly elected candidate. Unfortunately, the issue does not appear to have been considered before in New Zealand. It nearly was an issue in Creech v Boorman where the original winner of the seat, Boorman, was found guilty of a corrupt practice for overspending. However, the Court did not need to determine the consequence of voiding his election because it had already determined that Creech was the duly elected after a number of votes were invalidated. I’ve been searching for some overseas authority on this point. (Australia and the UK seem to have similar but not identical wording in their electoral legislation.) The Australian courts have adopted the position that whether votes for a disqualified candidate are simply disregarded and a new result is declared or whether a fresh election is required depends on whether voters’ real intentions can still be determined: - In Re Wood (1988) 78 ALR 257, the High Court of Australia ruled that a further election was not needed after the winning candidate for a Senate election was declared void (not an Australian citizen); the (preferential) votes for that candidate could simply be disregarded and a new winner declared. - In another case, Sykes v Cleary (No 2) (1992) 109 ALR 577, the HCA ruled that it should void absolutely the election for the NSW Senate because a winning candidate was not qualified to stand (because he was a civil servant); amongst other things, they said disqualification of the candidate and preferential system of voting because a “special count could result in a distortion of the voters’ real intentions because the voters’ preferences were expressed within the framework of a larger field of candidates presented to the voters by reason of the inclusion of the [disqualified candidate]”. - In Free v Kelly (No 2) (1996) 138 ALR 649, the HCA reiterated that the relevant principle was whether “an election in which a person who is incapable of being chosen is purportedly returned as a member of the Senate or as a member of the House of Representatives will not warrant an order for a special count unless a special count would reflect the voters’ true legal intent or, conversely, would not result in a distortion of the voters’ real intentions”. - See also Scott v Martin (1988) 14 NSWLR 663 (election of candidate voided for bribery) where the Court recognised that the power to declare a next highest polling candidate “could be exercised appropriately in other circumstances” but declined to do so in that case and instead voided the entire election. The UK courts take the view it depends on whether the facts giving rise to the voiding of a candidate election were known to voters before they cast their votes. - In Drinkwater v Deakin (1874) LR 9, Brett J said:
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 [1961] 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

Churches refusing facilities for Civil Unions

An issue that I've been mulling over is whether churches (or, for that matter, taxi drivers) are entitled under the law to refuse to provide their services/facilities for civil unions. First, it's clear that celebrants are not required to perform civil unions if they don't want to (see s13 of the Civil Union Act 2004):
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 perennial issue about whether it’s defamatory to state or imply that someone is gay has come up again – this time in the context of tabulating the number of queer MPs in Parliament. See David Farrar: Gay MPs I prepared a paper on this issue while I was studying at UBC a couple of years ago: "I'm not gay - not that there's anything wrong with that!": Are unwanted imputations of gayness defamatory? It’s a little dated now and needs some revision. In particular, the Rivkin case went to the High Court of Australia - John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50. While it was decided on other technical grounds, Justice Kirby (one of the few out gay judges) made the following comment:
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

Citation of Wikipedia

I thought people might be interested in a Faculty email thread discussing the appropriateness of citing Wikipedia in Law School essays and research papers. POSTSCRIPT: I should add, the issue has not yet been formally resolved by the adoption of a policy and remains an issue of individual academic judgment. (And, of course, I should also add that the views expressed below on the propriety or otherwise of citing Wikipedia are not necessarily to views of the Faculty as a whole!) -----Original Message----- From: [Colleague 1] Sent: Tuesday, 6 September 2005 10:16 a.m. To: _All Law Faculty Staff Subject: Law school policy issue... Do we have a position on the citation of Wikipedia in research papers? [Colleague 1] -----Original Message----- From: [Colleague 2] Sent: Tue 9/6/2005 10:26 AM To: _All Law Faculty Staff Cc: Subject: RE: Law school policy issue... It should be utterly forbidden [Colleague 2] -----Original Message----- From: [Colleague 3] Sent: Tuesday, 6 September 2005 10:43 am To: _All Law Faculty Staff Subject: RE: Law school policy issue... I have had a long conversation with a student who cited it in a property opinion about the complete inappropriateness of it. I told him to consider the "Supreme Court of New Zealand test". If you can cite it to them, you can cite it to me. So other things you can't cite to me are my lectures!! -----Original Message----- From: Dean Knight Sent: Tuesday, 6 September 2005 2:07 pm To: _All Law Faculty Staff Subject: RE: Law school policy issue... If you receive any citations, I would simply refer the students to this page on Wikipedia: http://en.wikipedia.org/wiki/Citation_of_Wikipedia #Citation_of_Wikipedia_in_Law_School_essays_and_research_papers Dean -----Original Message----- From: [Colleague 4] Sent: Tuesday, 6 September 2005 4:20 pm To: Dean Knight Cc: _All Law Faculty Staff Subject: Re: Law school policy issue... Dean, When did the faculty approve this sentence from the wikipedia page" "For example, the Victoria University of Wellington, Faculty of Law does not permit the citation of Wikipedia in student essays or research papers." In my ... seminar, I let students refer their readers to the wikipedia for background information. Suppose the student is working on security issues and wants to refer to the Diffie Hellman key exchange, I see no reason why they shouldn't be able to use and quote the material in the wikipedia. I haven't seen any comparable explanation in a journal article or court decision. I doubt whether our library's hardcopy collection provides any sources. What do you think? [Colleague 4] -----Original Message----- From: Dean Knight Sent: Tuesday, 6 September 2005 5:01 pm To: _All Law Faculty Staff Subject: RE: Law school policy issue... [Colleague 4] and others... The Wikipedia page and reference to it was primarily intended for amusement. However, it does illustrate some of the issues regarding reliance on Wikipedia as reference material. For those of you for whom the penny hasn't yet dropped, I created the page [en.wikipedia.org/wiki/Citation_of_Wikipedia #Citation_of_Wikipedia_in_Law_School_essays_and_research_papers] about half an hour before I circulated the link to it. Wikipedia is an open-source encyclopaedia in which anyone can create or edit pages. The community self-moderates its content. For example, the page I created is presented being commented on and voted on for deletion for differing reasons, namely: - it's "original research" (ie, I made it all up) - "redirect", ie, there's already a more appropriate article elsewhere on Wikipedia. If you want to see or contribute to the discussion, see http://en.wikipedia.org/wiki/Wikipedia:Articles_for_deletion /Citation_of_Wikipedia. Yes, the page is inaccurate because it presently asserts we have a policy on the citation of Wikipedia, which we do not. Hopefully, the Wikipedia processes will ensure this "error" is corrected in the page, amongst other ways, by someone editing this sentence out (note my recent subtle amendment too…). If it doesn't I will remove the offending sentence in a day or so… Personally, like [Colleague 4], I think it’s a great resource and it does seem to fill the gap in some existing resources, particularly with very current events or developments. But there are some obvious problems with its reliability; many of these are recorded by Wikipedia itself: http://en.wikipedia.org/wiki/Wikipedia:Why_Wikipedia_is_not_so_great. If we need to develop some guidance on its citation though (assuming it can't be deal with under the rubric of general reliability and judgement), I think as a rule of thumb it presently would fail the reliability test in s42 of the Evidence Act for use in Court proceedings and accordingly is inappropriate to be cited in legal essays and research papers in substitution for other authoritative works. But, I guess, there may be some (very?) rare cases in which it might still be appropriate to be relied on for citation purposes (although generally the articles will disclose more reliable primary sources anyways?). Dean PS As an aside, there are some interesting and useful legal articles being created. See, for example, notable cases decided Canadian Supreme Court (http://en.wikipedia.org/wiki/Supreme_court_of_canada_cases), US Supreme Court (http://en.wikipedia.org/wiki/US_Supreme_Court_cases) and House of Lords (http://en.wikipedia.org/wiki/House_of_lords_cases) - some of the US and Canadian ones have extensive summaries, see http://en.wikipedia.org/wiki/Chaoulli_v._Quebec_(Attorney_General) PPS Might contributions to a page count towards the PBRF?!!? -----Original Message----- From: Dean Knight Sent: Wednesday, 7 September 2005 12:57 pm To: _All Law Faculty Staff Subject: RE: Law school policy issue... A couple of more points to add (sorry to the non-“coneheads”): 1. I have presently (temporarily?) lost my battle with the Wiki community to maintain the page (but I am still fighting to have it restored: http://en.wikipedia.org/wiki/Wikipedia:Votes_for_undeletion #Citation_of_Wikipedia.23Citation_of_Wikipedia_in_ Law_School_essays_and_research_papers) If you still want to see the original page, you can see it in the page history (scroll down below the marked up changes): http://en.wikipedia.org/w/index.php?title=Citation_of_Wikipedia&diff=22673606&oldid=22665573 2. I have now discovered at least a few cases in which Wikipedia was referred to in the Court’s decision; see, for example: - Bryant v. Oakpointe Villa Nursing Ctr., 471 Mich. 411 (2004) (Supreme Court of Michigan) Hunt had no control over her locomotive skills and was prone to sliding about uncontrollably and, therefore, she was at risk for suffocation by "positional asphyxia." [n2] … [n2] HN1"Positional asphyxia refers" to suffocation that results when someone's position prevents them from breathing properly. See <> (accessed July 27, 2004). - Bourgeois v Peters 387 F.3d 1303 (2004) (United States Court Of Appeals) We also reject the notion that the Department of Homeland Security's threat advisory level somehow justifies these searches. Although the threat level was "elevated" at the time of the protest, "to date, the threat level has stood at yellow (elevated) for the majority of its time in existence. It has been raised to orange (high) six times." Wikipedia, Homeland Security Advisory System, available at http://en.wikipedia.org/wiki/Department_of_Homeland_Security_Advisory_System (last referenced Aug. 16, 2004). Given that we have been on "yellow alert" for over two and a half years now, we cannot consider this a particularly exceptional condition that warrants curtailment of constitutional rights. We cannot simply suspend or restrict civil liberties until the War on Terror is over, because the War on Terror is unlikely ever to be truly over. September 11, 2001, already a day of immeasurable tragedy, cannot be the day liberty perished in this country. Furthermore, a system that gave the federal government the power to determine the range of constitutionally permissible searches simply by raising or lowering the nation's threat advisory system would allow the restrictions of the Fourth Amendment to be circumvented too easily. Consequently, the "elevated" alert status does not aid the City's case.” - Harrisson v Alan [2005] 2 SLR 387 (Singapore High Court): 37 As briefly adverted to earlier (see [32] above), the defendants' reliance on the mandate for Option 3 purportedly sanctioned by the March 2004 SGM is flawed. The 93 votes in favour of Option 3 cannot constitute a simple majority of members present and voting. Shackleton on the Law and Practice of Meetings (Sweet & Maxwell, 9th Ed, 1997) at para 7-27 defines "simple majority" as a situation where "a motion is carried by the mere fact that more votes are cast for than against". I find the following illustration of this definition in an online encyclopaedia (at (accessed 3 March 2005)) illuminating: A simple majority is the most common requirement in voting for a measure to pass, especially in deliberative bodies and small organizations. It means that, of those who cast a vote for or against a proposition or candidate, more than half of the votes is necessary for election. As an example, let's consider three propositions: A, B, and C, that are proposed in a club of 100 members. In order for a proposition to be successful, a simple majority must agree to it. The results of the election are: [middot] 20 votes for proposition A [middot] 40 votes for proposition B [middot] 10 votes for proposition C [middot] 10 votes are blank Since there are more votes for B than there are votes for both A and C combined, B has the simple majority and so wins. Notice that the abstentions and non-voters do not affect a simple majority process, since they neither support nor oppose. They only affect an absolute majority. In an election for president in the same club having candidates Jim, Bob, Sally, and Bridget, the results are as follows: [middot] 20 votes for Jim [middot] 20 votes for Bob [middot] 40 votes for Sally [middot] 2 votes for Bridget In this election, no one has more votes than the combined votes of the opponents, so no one wins. In a case like this, most systems would either adopt a plurality rule or would have a second runoff election. Tie votes do not meet simple majority and are classified as failures. [emphasis added] (see also Black's Law Dictionary (8th Ed, 2004) at p 975). - There’s also another couple of cases of Canadian cases in which it was referred to: Bajraktaraj v. Canada (Minister of Citizenship and Immigration) [2005] F.C.J. No. 293 “the quality of the sources relied upon by the applicant, including … a downloaded extract from an on-line encyclopaedia, "Wikipedia," that provided no references for its content, did not impress”; and Almrei v. Canada (Minister of Citizenship and Immigration) [2005] F.C.J. No. 437 where an article was included in the bundle of material relied on by an immigration minister delegate when determining a person was a terrorist and a danger to the security of Canada! Interesting to see judicial reference to it, although I suspect it still does not undermine the “generally discouraged as a substitute for reliable sources” theme which seemed to come through in our threads. Dean

22 August 2005

R v Lavender: interpretation of criminal statutes

R v Lavender Interesting dissent from Kirby J where he discusses some of the interpretative issues arising in relation to criminal statutes.

12 August 2005

Dunne v Canwest - Enhancing or vandalising the Constitution and democracy?

Dunne and Anderton v Canwest TVWorks Limited (PDF 58KB)

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 [1948] 1 KB 223, 230 per Lord Greene MR). In Council of Civil Service Unions v Minister for the Civil Service [1985] 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 [1986] 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 [1987] 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

Discount Brands - a C+ for the Supreme Court

Westfield (New Zealand) Limited v North Shore City Council I've reflected more on the Supreme Court's decision. I give them a C+: - The idea of more scrutiny for notification decisions is okay because it is a gate-keeper decision otherwise not subject to checks and balances. The decision is essentially operational and doesn’t involve any policy content. However, it still needs some deference because it is question of judgment for an “expert” decision‑maker/tribunal. - However, justifying a high degree of “correctness” on the use of the phase “if the consent authority is satisfied” is spurious. Rather than “satisfied” being the “strongest decisional verb”, its history in administrative law has been based on it being one of the more “subjective”, not objective”, types of decisions (cf “in the opinion of the Minister”). - It is artificial and unhelpful to separate the notification into 2 decisions – first on sufficiency of evidence and secondly the actual decision itself. - The “test” of adequacy or sufficiency is largely unhelpful and extends beyond established grounds for reviewing factual errors (no evidence to support factual conclusion or (genuine) mistake of fact). The test simply restates a truism that the decision-maker have sufficient evidence but, in my view, the decision fails to go on how the supervising court should approach (non-)compliance with this standard. Only Blanchard J suggests the idea that the Court might consider whether the Council “could reasonably be satisfied” that the information was adequate. Others seems to implicitly suggest that judicial intervention could be justified whenever there is insufficient evidence. - In particular, the Court fails to consider functional consequences of reviewing adequacy; effectively confers right of appeal against the merits of non-notification. Any time an aggrieved person considers the Council got it wrong, they can ex post facto find (or create?) evidence which casts into doubt the Council’s factual conclusion – thereby arguing the Council didn’t have sufficient or adequate evidence before them. There is no finality for such decisions. In any event, most of the relevant considerations are better characterised as factual assessments, rather than factual findings, where the decision maker exercise their expert judgment about these matters. - The nub of the case (and, incidentally, the Videbeck case which started this sufficiency of evidence approach) seems to be more defects in logic or reason. That is, the relevant decision-makers make to demonstrate the basis on which they made their decision, including rejecting the views of officers or other experts. In my view, a more workable approach would be to simply examine whether the decision-maker’s decision (ie, the substantive decision not to notify) was reasonable (in a simpliciter sense, not the more deferential Wednesbury/Woolworths test). This would capture the – I think, generally accepted – deficiencies in this case but provide a better and more predictable standard for other cases as well.

27 April 2005

"I respectfully dissent"

Small v United States I love the nature and tone of the dissenting judgments from the US Supreme Court. The quote that follows is the final paragraph from one of Thomas J's dissents. The case itself was about the phrase "convicted in any court" in legislation prohibiting people with convictions from possessing firearms - the majority ruling that it encompassed only domestic, not foreign, convictions.
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

Supreme Court, public notification under the RMA, and Discount Brands

Westfield (New Zealand) Limited v North Shore City Council Unsurprised by the outcome; still reflecting on the analysis and supervisory standard set by the Court (the local authority must have "adequate" information before it makes a decision on notification - but initially rather concerned by what that means!

19 April 2005

Berryman bridge - contempt?

Someone posed the question whether someone (a member of the public) was party to contempt if they referred to or downloaded the Butcher report. My analysis (from NZMLJ) below:

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

Prisoners and Bill of Rights damages

No developed or strong views at this stage - however, this issue did come up at a dinner party recently and prompted some interesting (but truncated) points and animated discussion. Those present promised to reflect further - this post will allow them to contribute their views directly. Prisoners' and Victims' Claims Bill

7 April 2005

Collapsing Parliament

NZ Herald: Cullen walkout means dinner wins the day
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

Light relief: High Court of Australia, Big Bang theory, and litigants in person

http://www.austlii.edu.au/au/other/hca/transcripts/2002/C4/1.html This is the transcript of a real case before the High Court of Australia. I would try and summarise the argument of the applicant in person (something like he's failed to get credit for proving that the Big Bang theory in false and that, in fact, the world doesn't exist) but in doing so I am probably mischaracterising his argument, in particular, the link to his application - in this case, an electoral petition challenging the election in the Australian Capital Territory seat of Fraser. Enjoy! PS "big snaps" to Jacques for the heads-up on this case UPDATE: But wait, there's more... That was the second time the case ended up in the HCA. See the earlier one also: http://www.austlii.edu.au/au/other/hca/transcripts/1996/C102/1.html

5 April 2005

Strict construction of criminal statutes?

R v de Montalk (07.03.05; CA157/03) I'm quite uneasy with this recent decision of the Court of Appeal. On its face, it’s a simple case about whether the Crown must prove that a person has actually been operating the vehicle when they are charged under section 34(1)(b) of the Land Transport Act 1998 (“operating a motor vehicle on a road without displaying current evidence of a vehicle inspection” (ie a warrant of fitness). The Court ruled that it need not because the offence was a “stationary vehicle offence” (by virtue of section 41A of the Transport Act 1961) and therefore subject to the (statutory) strict liability provisions applicable to such offences. I’ve previously come across the peculiarities of the transport legislation and, particularly, the issue of whether offences which refer to “operating” a vehicle can qualify as “parking” or “stationary vehicle offences” (particularly when the vehicle is, factually, parked or stationary at the time the “operating” offence is committed). But I didn’t see the “ingenious” solution the Court came up with. It goes like this: - The warrant of fitness offence used to be in the Transport Regulations (reg 85) made under the Transport Act. - Section 41A of the Transport Act 1961 defines “stationary vehicle offences” to include:
(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 [1969] 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 [1986] 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 [1970] 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!).

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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