22 March 2005

Televising Parliament

*sigh* All the bleating from television networks about how the proposal for Parliament itself to provide live coverage will undermine their freedoms has now lead to the government deferring the idea. Ironic eh?!?! Quite frankly, I was looking forward to the live stream. I'm jealous of the overseas coverage on C-SPAN (US), CPAC (Can), Parliament Live (UK), Australia. Imagine even if - like say CPAC - they started broadcasting Supreme Court hearings as well! *sigh* - I guess it's another year or so listening to scratchy wireless...

18 March 2005

The courts and Buddhist Karmapa controversy

- Khyentse Rinpoche Lama v Hope (10.03.05, High Court, Auckland, CIV-2004-404-1363)

Some of the matters which the courts are called on to judge are fascinating. And sometimes the courts are simply not in a position to adjudicate on particular issues - even though the issue may be central to a dispute before it.

A really interesting example is Khyentse Rinpoche Lama v Hope. This was a dispute about the validity of the appointment of the lama as the spiritual director of a Buddhist monastery - Karma Dharma Chakra Choeling - just north of Auckland.

The lama had been appointed as spiritual director in 1979 by His Holiness Gyalwa Karmapa, the 16th Karmapa. However, the trustees of the trust argued that appointment was either - terminated automatically on the death of the 16th Karmapa in 1981, or - by dismissed by the (alleged) 17th Karmapa, His Holiness Urgyen Trinley Dorjie. But there was a critical dispute about who succeeded to the role of the 17th Karmapa:
The difference between the parties following the death of the 16th Karmapa is a New Zealand expression of a wider debate. Underlying the dispute is an issue of international dimensions whether, as the trustees assert, his true incarnation had been identified int he form of His Holiness Urgyen Trinley Dorje as 17th Karmapa or whether, as some leaders within Karama Kagyu assert, the idenfication of Urgyen Trinley Dorje is yet to be confirmed, or whether the true 17th Karmapa is not Urgyen Trinley Dorje but His Holiness Thaye Dorje, or indeed whether, as the plaintiff asserted, both Urgyen Trinley Dorje and Thaye Dorje are true reincarnations.
For more, see Wikipedia: Karmapa controversy

Unsurprisingly, the court said this issue was not justiciable (at least in the New Zealand courts). That meant the court was left in the position of having to accept the status quo - that is, ignoring the purported dismissal of the lama by the alleged 17th Karmapa.

17 March 2005

Air-India Verdict: Both Not Guilty

This trial was going on while I in Vancouver a couple of years ago. Probably (pre 9/11) one of the most significant acts of terrorism.

- Article: Globe and Mail
- Judgment: R. v. Malik and Bagri

16 March 2005

UN Committee on Elimination of Racial Discrimination - full text

Full text of the committee's statement:
COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION
Sixty-sixth session
17 February-11 March 2005
Decision 1 (66)
New Zealand
Foreshore and Seabed Act 2004
1. The Committee has reviewed, under its Early-Warning and Urgent Action Procedure, the compatibility of the New Zealand Foreshore and Seabed Act 2004 with the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination in the light of information received both from the Government of New Zealand and a number of Māori non-governmental organizations and taking into account its General Recommendation No. XXIII on indigenous peoples.
2. The Committee appreciates having had the opportunity to engage in a constructive dialogue with the State party at the Committee's 1680th meeting and the State party’s written and oral responses to its requests for information related to the legislation, including those submitted on 17 February and 9 March 2005.
3. The Committee remains concerned about the political atmosphere that developed in New Zealand following the Court of Appeal’s decision in the Ngati Apa case which provided the backdrop to the drafting and enactment of the legislation. Recalling the State party’s obligations under article 2(1)(d) and article 4 of the Convention, it hopes that all actors in New Zealand will refrain from exploiting racial tensions for their own political advantage.
4. The Committee, while noting the explanation offered by the State party, is concerned at the apparent haste with which the legislation was enacted and that insufficient consideration may have been given to alternative responses to the Ngati Apa decision which might have accommodated Māori rights within a framework more acceptable to both the Māori and all other New Zealanders. In this regard, the Committee regrets that the processes of consultation did not appreciably narrow the differences between the various parties on this issue.
5. The Committee notes the scale of opposition to the legislation amongst the group most directly affected by its provisions—the Māori—and their very strong perception that the legislation discriminates against them.
6. Bearing in mind the complexity of the issues involved, the legislation appears to the Committee, on balance, to contain discriminatory aspects against the Māori, in particular in its extinguishment of the possibility of establishing Māori customary title over the foreshore and seabed and its failure to provide a guaranteed right of redress, notwithstanding the State party’s obligations under articles 5 and 6 of the Convention.
7. The Committee acknowledges with appreciation the State party’s tradition of negotiation with the Māori on all matters concerning them and urges the State party, in a spirit of goodwill and in accordance with the ideals of the Waitangi Treaty, to resume a dialogue with the Māori community with regard to the legislation in order to seek ways of lessening its discriminatory effects, including where necessary through legislative amendment.
8. The Committee requests the State party to monitor closely the implementation of the Foreshore and Seabed Act, its impact on the Māori population and the developing state of race relations in New Zealand and to take steps to minimize any negative effects, especially by way of a flexible application of the legislation and by broadening the scope of redress available to the Māori.
9. The Committee has noted with satisfaction the State party’s intention to submit its fifteenth periodic report by the end of 2005, and requests the State party to include full information on the state of implementation of the Foreshore and Seabed Act in the report.
11 March 2005
1700th meeting

14 March 2005

Transpower - upper north island grid upgrade

Sunday had an interesting article on the proposed grid upgrade which, amongst other things, could lead to 70m high pylons from Taupo to Auckland. Network utility operators such as Transpower (known as requiring authorities) have special powers under the Resource Management Act to "designate" land for particular purposes. Designating land for a particular purpose has two main consequences (s176):
- First, it exempts the requiring authority from the general rule in section 9 that all works must comply with rules in district plans ("No person may use any land in a manner that contravenes a rule in a district plan or proposed district plan").
- Secondly, people cannot do anything in relation to the designation land that would "prevent or hinder" a project or work without the consent of the local authority.
In many respects, a designation is like a really big resource consent. In practical terms, the designation is incorporated into district plans and "overlays" the underlying zone or controls on the particular land.

There are some limits one what can be done under a designation.

A designation only permits authorised projects or works for the designated purpose; other projects or works are still subject to the usual controls (s179(2)) (As a result of the RMAA03 which amended the exemptions in s176, there is now an argument that requiring authorities still remain subject to the general duties imposed on occupiers of land (s16: duty to avoid unreasonable noise; s17: duty to avoid, remedy, or mitigate adverse effects)).

When the previous designations were carried over into the RMA from the earlier regime, the designated purpose was often rather bald (eg, simply "electricity substation" or "sewage treatment plant"). Nowadays, the designation usually includes comprehensive conditions. Cf Papakura District’s designations (Schedule 12) and Wellington City’s designations Designations aren’t the only way that operators can achieve their project.

In some cases, district plans are drafted to allow their activities as permitted or controlled activities (see for example Manukau City). Alternatively, the operators could simply obtain a resource consent. However, the designation process is so powerful it is generally preferred by operators. Designations also play an important role under the Public Works Act.

Generally, a designation will support the view that the land is "required for a public work" (the threshold for compulsory acquisition under the PWA).

UN Committee on Elimination of Racial Discrimination - summary

The parts of the report relating to New Zealand:
New Zealand Foreshore and Seabed Concerning New Zealand, the Committee expressed its appreciation at having had the opportunity to engage in a constructive dialogue with the State party. Bearing in mind the complexity of the issues involved, the New Zealand Foreshore and Seabed Act 2004 appeared to the Committee, on balance, to contain discriminatory aspects against the Maori, in particular in its extinguishment of the possibility of establishing Maori customary title over the foreshore and seabed and its failure to provide a guaranteed right of redress, notwithstanding the State party’s obligations under articles 5 and 6 of the Convention. ... Decision on Situation in New Zealand In a decision on New Zealand, the Committee noted its review of the compatibility of the New Zealand Foreshore and Seabed Act 2004 with the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination in the light of information received both from the Government of New Zealand and a number of Maori non-governmental organizations and taking into account its General Recommendation No. XXIII on indigenous peoples. The Committee expressed its appreciation at having had the opportunity to engage in a constructive dialogue with the State party and the State party’s written and oral responses to its requests for information related to the legislation, including those submitted on 17 February and 9 March 2005. Bearing in mind the complexity of the issues involved, the legislation appeared to the Committee, on balance, to contain discriminatory aspects against the Maori, in particular in its extinguishment of the possibility of establishing Maori customary title over the foreshore and seabed and its failure to provide a guaranteed right of redress, notwithstanding the State party’s obligations under articles 5 and 6 of the Convention.

11 March 2005

US Supreme Court - capital punishment and minors

Roper v. Simmons

Fascinating on so many levels:
- the ultimate issue is interesting in its own right
- the question of over-ruling earlier decisions
- the (ambulatory) interpretation of the US Constitution - the reference to International Law (including a Convention which the US hasn't ratified - along with Somalia, the only countries in the world not to).

But I love it more for the language of the dissent and the (dysfunctional?) relationships and interaction between the judges.

Relationships Bill

The Relationships Bill was read a second time this week - this time by 75 votes to 44 (1 abstention).

To see how the MPs voted, see: Parliamentary votes - Civil Union Bill and Relationships Bill.

Third reading expected on Tuesday.

10 March 2005

Barristerial immunity

Lai v Chamberlains

The Court of Appeal has removed (civil) barristerial immunity in NZ. Still don't know where I stand on the main issue.

(More?) interesting sub-issues though:
- Should the overruling be prospective or retrospective? (Real questions of legal certainty and people's expectations here)
- Should the Court of Appeal be able to overrule its previous decisions? Or should it now kick things up to the Supreme Court?
- Should I have listened all those years ago in Law and Society when we did "right"/"no-right" "privilege"/"duty" "power"/"disability" "immunity"/"liability"?

PS cf the decision of the Australian High Court a couple of days later: D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12

What's with the elephants?

The "elephant" quote is one of my favourites. My lecturer for Judicial Review - Melissa Poole - introduced me to in many years ago. The full quote is as follows (Maxwell v Department of Trade and Industry [1974] 2 All ER 122 at 131):
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. It is pertinent in this connection to recall what Lord Shaw of Dunfermline said in Local Government Board v Arlidge ([1914-15] All ER Rep 1 at 10): 'And the assumption that the methods of natural justice are ex necessitate those of courts of justice is wholly unfounded ... In so far as the term "natural justice" means that a result or process should be just, it is a harmless though it may be a high-sounding expression; in so far as it attempts to reflect the old jus naturale it is a confused and unwarranted transfer into the ethical sphere of a term employed for other distinctions; and, in so far as it is resorted to for other purposes, it is vacuous.' For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?
Cool eh?! And kinda says a lot about the law generally. Hence the name of this blog.

wahoo!

My first blog! PS thanks to Steven Price for sowing the seeds of the idea of a legal blog.

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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