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.

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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