10 November 2005

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.

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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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