23 December 2005
R v Labaye  SCC 80
A splendid decision of the Supreme Court of Canada in which they re-interpret the definition of “indecent” – moving from the previous community standards test to a harm-based analysis.
No doubt the facts will excite students too – with the charge being keeping a common bawdy‑house for the practice of acts of indecency arising from the operation of a swingers club. There’s also a companion case: R v Kouri  SCC 81 (a bar for “liberated couples” to have group sex). No chance for additional comment - but will try and pull things together post Xmas.
22 December 2005
New York Blade: Pentagon spied on gay student groups, report says Gay kiss-in labeled 'credible threat' By ANDREW KEEGAN Dec 20, 5:38 PM Pentagon officials have spied on student groups opposed to the military's "Don't Ask, Don't Tell" ban on openly gay military personnel, according to media reports.
A February protest at New York University was one of the events under government surveillance, NBC News reported last week.The network reported that the law school’s gay advocacy group, OUTlaw, was classified as "potentially violent" by the Pentagon. "I was shocked to read that OUTLaw was classified as a threat and investigated," OUTlaw Co-chair Rebecca Fisher said in a telephone interview on Monday. "Since we still don't know how the Pentagon went about investigating us, I'm wondering how far they went in invading our personal privacy to make their determination. Did they read our e-mail? Monitor our meetings?”
Ellen Kranke, a Department of Defense spokesperson who handles issues regarding sexual orientation at the Pentagon, could not be reached for comment Tuesday. Fisher said the Bush administration continues to display an attitude that is anything but democratic."For all its talk about democracy and free speech, this administration seems to feel very threatened by our peaceful exercise of our First Amendment rights," Fisher said. "This does not reflect the values of our Constitution. It's what you'd expect to see in a totalitarian police state, not in a country founded on freedom of conscience."
NBC also reported that a "Don’t Ask, Don’t Tell" protest at University of California Santa Cruz, which included a gay kiss-in, was labeled as a "credible threat" of terrorism by the Pentagon.Servicemembers Legal Defense Network, a group dedicated to helping military members affected by the "Don’t Ask, Don’t Tell" policy, condemned the Pentagon surveillance and monitoring. "The Pentagon is supposed to defend the Constitution, not turn it upside down,"
Dixon Osburn, SLDN executive director, said in a statement released Dec. 20. "Students have a first amendment right to protest and Americans have a right to expect that their government will respect our constitutional right to privacy."SLDN said it plans to submit a Freedom of Information Act request to learn if other gay organizations have also been monitored by the government."To suggest that a gay kiss-in is a 'credible threat' is absurd, homophobic and irrational," Osburn said. "To suggest the Constitution does not apply to groups with views differing with Pentagon policy is chilling."
10 December 2005
Kofi Annan, the United Nations Secretary-General, reminds us of humanity's objection to torture: "Let us be clear: torture can never be an instrument to fight terror, for torture is an instrument of terror. ... Today, on Human Rights Day, let us recommit ourselves to the principles of the Universal Declaration of Human Rights, and let us rededicate ourselves to wiping the scourge of torture from the face of the earth."
His full remarks are available on the UN's Human Rights Day site as follows:
As a post(pre?)-script, the House of Lords decision in A (FC) and others (FC) v Secretary of State for the Home Department [pdf] in which they reject the admission of evidence procured through torture makes refreshing reading. Lord Nicholls said (sentiments shared by the other judges in their speeches):
Fifty-seven years after the Universal Declaration of Human Rights prohibited all forms of torture and cruel, inhuman or degrading treatment or punishment, torture remains unacceptably common. Recent times have witnessed an especially disturbing trend of countries claiming exceptions to the prohibition on torture based on their own national security perceptions.Let us be clear: torture can never be an instrument to fight terror, for torture is an instrument of terror. The prohibition on torture is well established under international law. It is also unambiguous and absolute. It is binding on all States in all territories under their jurisdiction or effective control. It applies in all circumstances, in times of war as in times of peace. Nor is torture permissible when it is called something else: cruel and inhuman treatment is unacceptable and illegal, irrespective of the name we give it. States must honour this prohibition and vigorously combat the impunity of perpetrators of torture. Those who conceive of or authorize any form of torture and other cruel, inhuman or degrading treatment, and those who commit such acts, should not go unpunished. Nor may any State condone torture by a third party. This means that individuals must never be rendered to another State if there is any danger that doing so may subject them to torture. The international community must speak forcefully, and with one voice, against torture in all its forms. Today, I call on all States who have not done so to ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the Optional Protocol to the Torture Convention. And I urge all States to allow the United Nations’ Special Rapporteur on Torture independent access to detainees within their control. Unimpeded access is an essential protection for these individuals, whose isolation makes them especially vulnerable to abuse. Together, we must give voice, and redress, to abused detainees as well as to all victims and survivors of torture. Humanity faces grave challenges today. The threat of terror is real and immediate. Yet fear of terrorists can never justify adopting their methods. Nor can we be complacent about the broader prevalence of cruel and inhuman punishment, which in so many of our societies disproportionately affects the most vulnerable people: the imprisoned, the politically powerless and the economically deprived. Instead, we must respond to this evil wherever we find it by reaffirming humanity’s most basic values. Today, on Human Rights Day, let us recommit ourselves to the principles of the Universal Declaration of Human Rights, and let us rededicate ourselves to wiping the scourge of torture from the face of the earth.
Torture is not acceptable. This is a bedrock moral principle in this country. For centuries the common law has set its face against torture. In early times this did not prevent the use of torture under warrants issued by the King or his Council. But by the middle of the 17th century this practice had ceased. In 1628 John Felton assassinated the Duke of Buckingham. He was pressed to reveal the names of his accomplices. The King's Council debated whether 'by the Law of the Land they could justify the putting him to the Rack'. The King, Charles I, said that before this was done 'let the Advice of the Judges be had therein, whether it be Legal or no'. The King said that if it might not be done by law 'he would not use his Prerogative in this Point'. So the judges were consulted. They assembled at Serjeants' Inn in Fleet Street and agreed unanimously that Felton 'ought not by the Law to be tortured by the Rack, for no such Punishment is known or allowed by our Law': Rushworth, Historical Collections (1721) vol 1, pages 638-639.
9 December 2005
The Marriage (Gender Clarification) Amendment Bill was voted down the other night. Tony Milne has a good personal summary of the speeches and events in the House.
Below is voting record of MPs (there's one vote short on the Maori party - I understand because of proxy issues rather than a formal abstention):
Ayes 47 New Zealand Labour 1 (Field);
New Zealand National 36 (Ardern, Auchinvole, Bennett D, Bennet P, Blue, Borrows, Brash, Brownlee, Carter D, Carter J, Clarkson, Coleman, Collins, Dean, English, Foss, Goodhew, Goudie, Guy, Hayes, Heatley, Hutchison, King C, Mapp, McCully, Peachey, Roy, Ryall, Smith L, Smith N, Tisch, Tolley, Tremain, Wagner, Wilkinson, Worth)
New Zealand First 5 (Brown, Paraone, Peters, Stewart, Woolerton);
United Future 3;
ACT New Zealand 2
Noes 73 New Zealand Labour 49 (Barker, Barnett, Benson-Pope, Beyer, Burton, Carter C, Chadwick, Choudhary, Clark, Cosgrove, Cullen, Cunliffe, Dalziel, Duynhoven, Dyson, Fairbrother, Fenton, Gallagher, Goff, Gosche, Hartley, Hawkins, Hereora, Hobbs, Hodgson, Horomia, Hughes, Jones, King A, Laban, Mackey, Maharey, Mahuta, Mallard, Moroney, O'Connor, Okeroa, Parker, Pettis, Pillay, Ririnui, Robertson, Samuels, Street, Sutton, Swain, Tizard, Wilson, Yates);
New Zealand National 12 (Blumsky, Connell, Finlayson, Groser, Henare, Key, Power, Rich, Simich, te Heuheu, Williamson, Wong);
New Zealand First 2 (Donnelly, Mark);
Green Party 6;
Maori Party 3;
UPDATE: Hansard transcript now available.
5 December 2005
2 December 2005
If I am wrong in holding that Professor Farrell’s evidence was insufficiently relevant to warrant admissibility, I would nonetheless exclude that evidence in the exercise of my discretion. I would do so pursuant to s 135 of the Evidence Act, on the basis that, read as a whole, it is confusing. Having attempted, I believe assiduously, to understand the gist of Professor Farrell’s evidence, as set out in his various reports, I regret to say that I cannot make a great deal of sense of considerable parts of that evidence. ...
I have only the vaguest notion of what this [explanation and formula] means. ...
Once again, this [further explanation and formula] means nothing to me. In making that observation, I do not intend to cast any doubts upon Professor Farrell’s technical expertise. Plainly, I am in no position to do so. To be fair, the mathematical formulae set out above were in technical appendices. Perhaps Professor Farrell assumed that any judge hearing a matter of this kind would be able to understand material presented in this manner. If so, he was mistaken, at least as far as I am concerned. I regret to say that evidence presented to a court in this form is likely to be unhelpful, and really should not be adduced. The technical appendices provide a significant part of the rationale for Professor Farrell’s conclusions, which are themselves not altogether easy to follow. Having regard to the difficulty that I have in understanding Professor Farrell’s reasoning, I propose to exclude his evidence in-chief in its entirety. I am prepared, however, to have regard to those parts of his evidence, under cross-examination, that I was able to understand.
See the full extract (including the confusing explanations!) in pdf
The Court also commented on the question of whether it is bound by Privy Council decisions in New Zealand cases ("this Court is still bound by existing Privy Council decisions made in respect of appeals from New Zealand (including the transitional phase) unless and until the Supreme Court overrules them") and Privy Council decisions from other jurisdictions ("[a]ny decisions of the Privy Council with regard to jurisdictions made after the advent of the Supreme Court will of course be of persuasive value only"). ("hat-tip" to Geoff McLay for the case)
This Court has recognised that it is ordinarily bound by its earlier decisions but that it will, in rare cases, be prepared to review and affirm, modify, or overrule an earlier decision… [W]e do not consider the creation of the Supreme Court as our final court of appeal should lead to any change in the way in which this Court approaches its earlier decision.