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.]

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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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