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))

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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