6 December 2006

State of the (Civil) Union: Assessing the Legal Significance of the Civil Union Act 2004 and Relationships Bill 2005

I gave a paper at a conference over the weekend: > LAGANZ: "20 Years On - Homosexual Law Reform Conference": Below is the introduction, with a link to the full paper:
I Introduction Today we are reflecting on gay and lesbian law reform and, in particular, commemorating the first major achievement – the decriminalisation of homosexual conduct in 1986. The way in which I would like to honour the work and accomplishments of those engaged in that law reform movement is to focus one of the most recent law reform projects. One that shares many of the same features: its significance, its controversy, its impact, and hopefully its legacy too. The Civil Union Act 2004 – and its less high-profile but probably more powerful companion, the Relationships (Statutory References) Act 2005 – marked one of the high points of gay and lesbian reform in New Zealand. The reforms created a state mandated relationship registration scheme, allowing gay and lesbian couples to formally register their relationship in an almost identical manner to straight couples. The reforms also largely harmonised the benefits, protections and responsibilities for married, civil union, and de facto couples, ostensibly providing near equality for all couples before the law. But the reforms require greater scrutiny. A sole focus on the meta-level achievements obscures and hides some of the matters of detail. A number of key questions arise from the reforms. How fully did the reforms achieve equality for gay and lesbians? What was missed or left out? What still remains? In this paper I attempt to canvas some of those issues. [continues...]
> Dean R Knight, "State of the (Civil) Union: Assessing the Legal Significance of the Civil Union Act 2004 and Relationships Bill 2005" Comment and feedback welcomed. PS I tweaked the title of the paper to ensure it more accurately reflects the content.

23 November 2006

Stadium Aotearoa: the injunction

Bill Hodge was on the radio discussing the likely outcome of the injunction: > NatRadio: Stadium Injunction The gist of his comments generally reflect the legal position on local government consultation. However, there are a couple of points which should be clarified. A local authority’s obligation to take account of community views under section 78 does not, by itself, require that they consult. In particular, section 78(3) expressly says: "A local authority is not required by this section alone to undertake any consultation process or procedure." Looking more broadly at local authority decision making, it’s clear there are two distinct tiers of decision making: 1. Decisions generally. Section 78 requires that local authorities take account of community views. However, a local authority is entitled to make a judgement about how this is to be done and to what extent. It may be that the local authority can take account of community views simply asking themselves what they, as citizens, would think. In other cases, they could ascertain community views by other means such us talking with their citizens, running focus groups, or opinion polls, listening to delegations or reading correspondence from their community. Or the local authority may formally consult (if they decided to formally consult, then they would be obliged to undertake that consultation in accordance with the principles of consultation, but otherwise those principles will not apply). But ultimately the decision about whether they should consult lies with them. The only way to challenge a failure to consult under this section is to argue the local authority made a bad judgement. This is usually very difficult and requires the decision be "highly unreasonable" or "irrational". However, it may be possible in this case because local authorities are required, amongst other things, to comply with this obligation "largely in proportion to the significance of the matter affected by the decision" (section 79). Obviously this is a significant decision in relation to which one would expect a high degree of consideration of community views. 2. Significant decisions. A higher and more formal degree of public participation is required for "significant decisions". Section 97 requires that certain significant decisions, such as a decision to "commence ... a significant activity" or to "construct a strategic asset", only be taken if they are "explicitly provided for in the local authority’s long-term council community plan". This is the paramount council planning document and sets out their vision and proposed key activities for the next 10 years. A local authority is required to assess the significance of any decision by reference to their own significant policy. Clearly, a decision of this nature is significant. If the decision is not explicitly provided for in the long-term council community plan, the local authority must amend its plan through the special consultative procedure, that is, a formal decision-making process which sets out mandatory information requirements, a 1 month period for written submissions, and oral submissions directly to the local authority (section 83). (In this case, it may only take 7-8 weeks.) Auckland City is arguing that the waterfront stadium decision is already incorporated into its plan because there is reference to the following activity:
- contributing to regional, national and international facilities (such as a redeveloped Eden Park and/or a convention centre).
However, in my view, tt is simply not credible to say that waterfront option or this decision is "explicitly provided for", especially given the explicit complementary references to Eden Park. As Bill Hodge noted, the waterfront option has not been on the table or incorporated into the long-term council community plan. Auckland City cannot simply retrospectively squeeze this "fresh" option into the existing pigeonhole of an upgrade of a stadium in a completely different location.

21 November 2006

Stadium Aotearoa: the long-term council community plan

I've previously analysed why this decision should be incorporated in the City's long-term council community plan. See: > LAWS179: Stadium Aotearoa From my discussion with an officer about a LGOIMA request, the City is, I think, going to rely on the following provision in their LTCCP in the Strategic Milestones section of the part on "Arts, Community and Recreation":
Theme: Global city Auckland is a youthful, cosmopolitan and equitable global city. It is a great place to live and is welcoming of new migrants and businesses. Our diverse communities, and pioneer and distinct Pacific heritage, give us a special identity in the world.Auckland’s vitality and our special identity create social, cultural and business opportunities. Milestones: ... 6. Contribute to regional, national and international facilitiesWork with other external parties to develop regional, national and international facilities that attract visitors, boost the local economy and are a source of pride for all Aucklanders. a) Work with stakeholders to redevelop Eden Park to cater to 60,000 patrons by 2010 b) Work in partnership with others to develop the business case for joint funding of an internal-scale convention centre. Milestones to be finished by: [a)] 2010 [b)] 2007 Who is the council working with: [a)] Eden Park Trust Board [b)] Committee for Auckland (etc)
The narrative blurb at the front under “Key Decisions” also describes the following new projects:
- committing $100 million to create some amazing regional, national, and international facilities such as a redeveloped Eden Park and/or international convention centre
And in the “Descriptions of new projects”:
- contributing to regional, national and international facilities (such as a redeveloped Eden Park and/or a convention centre).
And further detail provided:
Name of Project: Contributing to regional, national and international facilities (such as Eden Park or a convention centre) Description: By working with other external parties the council will be able to help contribute towards creating some amazing regional, national and international facilities, which would attract more visitors, boost the local economy and be a source of pride for Auckland is. The draft long-term plan provided for a $50 million contribution towards international facilities for the city, such as the redevelopment of Eden Park and/or an international convention centre and signalled consideration or further $100 million. On 30 June 2006 the Eden Park Trust Board announced a $320 million plan to revamp Eden Park for the 2011 Rugby World Cup nearly double preliminary estimates. Auckland City increased the provision for international facilities, recognising the community facilities to be gained from the Eden Park development, and added a $50 million to additional transport initiatives to provide for improved traffic and pedestrian movement in the vicinity of the park. Key examples of a international facilities are: - a redeveloped Eden Park Eden Park needs to be redeveloped to cater for 60,000 patrons by 2010 for the Rugby World Cup in 2011. Total development cost would be considerably higher than the council's potential contribution and so this redevelopment would require working in partnership with other stakeholders. They council could contribute a certain amount in the form of a grant or a loan, but has not yet committed to doing so. - an international convention centre… Gross cost (before inflation): $100 million Contribution to the vision: Big city baseline - infrastructure and networks
There doesn’t appear to be any separate notation for stadia in the spending or asset information. Or in the three-year capital expenditure plans. But there is again reference to the upgrade of Eden Park in the narrative on “Events” (but no provision for capital expenditure). I think it must be embedded in the “Events organisation, facilitation and sponsorship” line item. The following entry is also found in “Significant Assumptions”:
6. The form of investment in international facilities has not been determined. While it has been treated as capital expenditure in this document, it may be equity in an entity, a loan, the acquisition of a fixed asset, a mix of all three or some other alternative. The final form of the investment will depend on the outcome of negotiation with the parties involved. Given the uncertainty, the investment had not been depreciated, consequential operational expenditure recognised or, as stated earlier, revalued. The impact of not depreciating this asset is not considered material.
Any injunction might then depend on whether the decision is “explicitly provided for” in its LTCCP in section 97(2):
(2) A local authority must not make a decision to which this section relates unless— (a) the decision is explicitly provided for in [its] long-term council community plan; and (b) the proposal to provide for the decision was included in a statement of proposal prepared under section 84.
I think it is not credible to say this decision is “explicitly provided for”, especially given the explicit complementary references to Eden Park. I seriously doubt the “such as” reference will be enough to incorporate reference to other options. Any holistic reading points to only one option being on the table: namely Eden Park. Alternatively, any putative provision for an international stadium, in any event, probably breaches the requirements of section 93(8) & (9) for the detail required in the LTCCP:
(8) A local authority must, in complying with the requirements of this Act in relation to the preparation and adoption of a long-term council community plan, act in such manner, and include in that plan such detail, as the local authority considers on reasonable grounds to be appropriate. (9) A local authority must, in deciding what is appropriate for the purposes of subsection (8), have regard to— (a) the provisions of sections 77, 78, 79, 80, 81, 82, 83, 84, 96, 97, and 101; and (b) the significance of any matter; and (c) the extent of the local authority's resources.
Again, although this is (principally) a matter for the judgement of the local authority, the City cannot credibly claim that the reference to international facility (along with explicit and implicit references to the upgrade of Eden Park) can be read to cover a brand new stadium on the waterfront. I stand by my view that this decision / projects is not provided for in the long-term council community plan and is required, as a matter of law, to be specifically consulted on through the special consultative procedure. A couple of other things: - Apparently someone is mounting an injunction application (I don't know who). - The City are adamant that the present community engagement process is not "consultation"; it is merely the seeking of views so the councillors can take account of community views (under section 78). Odd. No doubt because the present process would not meet the principles of consultation in section 82, particularly the requirements about information and reasonable opportunity to present views.

14 November 2006

Stadium Aotearoa - letter to Minister and the Mayor

Below is my letter to the Trevor Mallard and Dick Hubbard summarising my concerns about the decision-making process: Kia ora Minister and Your Worship I am writing to you both to express my concern about the present decision-making process for the stadium options in Auckland. I am a strong supporter of downtown stadium option. However, I am particularly concerned that the decision to adopt a particular option is to be made by the City within 11 days. In my view, this process does not adequately allow the community to have their say on the proposal and is in breach of the City’s decision-making obligations under the Local Government Act 2002. I urge you to extend the period for making the decision and allow the public to be consulted in accordance with the City’s obligations under the Local Government Act 2002. As you know, local authorities may not take certain decisions unless they are provided for in their long-term council community plan. Section 97, LGA 2002 provides: s97 Certain decisions to be taken only if provided for in long-term council community plan (1) This section applies to the following decisions of a local authority: (a) a decision to alter significantly the intended level of service provision for any significant activity undertaken by or on behalf of the local authority, including a decision to commence or cease any such activity: (b) a decision to transfer the ownership or control of a strategic asset to or from the local authority: (c) a decision to construct, replace, or abandon a strategic asset: (d) a decision that will, directly or indirectly, significantly affect the capacity of the local authority, or the cost to the local authority, in relation to any activity identified in the long-term council community plan. (2) A local authority must not make a decision to which this section relates unless— (a) the decision is explicitly provided for in its long-term council community plan; and (b) the proposal to provide for the decision was included in a statement of proposal prepared under section 84. The present waterfront proposal is not provided for in the City’s long-term council community plan. Clearly, it is a decision to which section 97 applies: it is a decision to commence a “significant activity” and/or a decision to construct a “strategic asset”. (The proposal is obviously a proposal of “higher significance” under the City’s significance policy. The term “activity” has a broad definition under the LGA 2002 and includes the provision of facilities and amenities and also regulatory and other government functions, ie whether or not the City will ultimately construct the stadium does not alter the fact the decision to support it is commencing a significant activity. Also, a decision not to adopt the waterfront stadium is also an decision to commence a significant activity because section 76(4) defines a “decision” to include a decision not to take any action.) In my view therefore, the City is required to amend its long-term council community plan to provide for this decision. As you will be aware, that requires public consultation under the special consultative procedure. The present expedited decision-making process is therefore flawed and does not accord with the City’s legal obligations under the LGA 2002. An “in principle” commitment and later public consultation is also flawed in my view. The government has made it clear that a decision one way or other needs to be made in the next 11 days. Committing to one option and then consulting the public would be perfunctory and amount to the predetermination of the decision. A failure to properly consult will place the ultimate proposal at risk of a legal challenge. I presume the legislation proposed by the government does not involve the validation of defective decision-making processes under the LGA 2002. Public consultation under the special consultative procedure could be undertaken and completed prior to Christmas, without unduly delaying the proposal. I urge you to allow adequate time for this important decision and to ensure the community is able to participate in it, as they are legally entitled. Regards Dean Knight Lecturer, Faculty of Law (Acting) Co-Director, New Zealand Centre for Public Law Victoria University of Wellington, Government Buildings, 15 Lambton Quay, PO Box 600, Wellington, New Zealand [ tel +64 (4) 463 6364 ] [ fax +64 (4) 463 6365 ] [ mob +64 (21) 684 544 ] [ dean.knight@vuw.ac.nz ] [ www.vuw.ac.nz/law ]

13 November 2006

Stadium Aotearoa

I should say I’m a big rugby fan and, while living in Auckland, we had season tickets at Eden Park. However, I fully support the idea of finding a downtown stadium site (although I have said for a long time that the Carlaw Park site must be a better option). As much as I liked the history and quirkiness of Athletic Park (I played on it a number of times and even once scored a try there!), the rugby and events experience from a logistically-sound, downtown stadium is superb.

But... Mallard is dreaming if he thinks that the Auckland City Council and Auckland Regional Council can make a decision about the stadium in 2 weeks. There’s a little legal obligation called participatory democracy that will stand in their way (quite apart from the question of any Resource Management consents). I’ll explain.

First, for all decisions, local authorities are required to take account of community view under section 78 of the Local Government Act 2002:

s78 Community views in relation to decisions

(1) A local authority must, in the course of its decision-making process in relation to a matter, give consideration to the views and preferences of persons likely to be affected by, or to have an interest in, the matter.

(2) That consideration must be given at—

(a) the stage at which the problems and objectives related to the matter are defined:

(b) the stage at which the options that may be reasonably practicable options of achieving an objective are identified:

(c) the stage at which reasonably practicable options are assessed and proposals developed:

(d) the stage at which proposals of the kind described in paragraph (c) are adopted.

(3) A local authority is not required by this section alone to undertake any consultation process or procedure.

(4) This section is subject to section 79.

However, section 79 allows local authorities to make judgements about the extent of compliance with this obligation “largely in proportion to the significance of the matters affected by the decision”.

The upshot is that local authorities must take into account community views but the method to achieve this and extent to which it is achieved is a matter of judgement for them. This section does not require that they consult – community views may be taken into account by applying their own judgement as citizens / delegate or through other means such as public meetings etc.

Secondly, the LGA 2002 requires a greater level of public participation for decisions which are “significant”:

- Section 97 says that certain decisions can only be taken if they are explicitly provided for in long-term council community plan:

s97 Certain decisions to be taken only if provided for in long-term council community plan

(1) This section applies to the following decisions of a local authority:

(a) a decision to alter significantly the intended level of service provision for any significant activity undertaken by or on behalf of the local authority, including a decision to commence or cease any such activity:

(b) a decision to transfer the ownership or control of a strategic asset to or from the local authority:

(c) a decision to construct, replace, or abandon a strategic asset:

(d) a decision that will, directly or indirectly, significantly affect the capacity of the local authority, or the cost to the local authority, in relation to any activity identified in the long-term council community plan.

(2) A local authority must not make a decision to which this section relates unless—

(a) the decision is explicitly provided for in its long-term council community plan; and

(b) the proposal to provide for the decision was included in a statement of proposal prepared under section 84.

Notably, the judgements about the nature and extent of compliance that apply to other decisions do not apply to section 97.

- Local authorities are required to have adopted a policy of determining significance, including the identification of strategic assets. Most of these have a set of quantitative thresholds, ie certain amount of spending, and some qualitative thresholds, ie the proposal affects a small number of people to a high degree or large number of people to a moderate degree. This policy acts as a filter for applying the obligations in section 97.

- If the proposal is not in the long-term council community plan, the local authority must amend the plan under section 84 to incorporate the proposal. Any amendment must be consulted on under the special consultative procedure. (The long-term council community plan is prepared and adopted under the special consultative procedure every three years.)

- The special consultative procedure is the most formalised means by which local authorities can take account of community views. Section 83 sets out a number of mandatory public participation requirements, including public notice of the proposal and a one month period for submissions.

The philosophy behind these requirements is to ensure that local authorities adopt a long-term strategic perspective for significant decisions mandated by public consultation – ensuring a local authority does not act on a “whim” when making a significant decision.

The short point is that the waterfront stadium option is not, as far as I’m aware, provided for in the City’s long-term council community plan.

You’ll find in the City’s long-term council community plan the City’s policy on significance. Clearly the stadium plan will qualify as a significant proposal. This will trigger the obligation to include the proposal in the long-term council community plan by the special consultative procedure.

The legal beagles may be thinking that that amendment can be made in due course, after the City has committed to the proposal. But that must be flawed. There can be no surety about the proposal until it’s in the long-term council community plan. And the City can’t treat the consultation as a mere formality to endorse a decision they’ve already committed to – this would breach the requirements to consult on the proposal with an open mind.

In my view, the only legal option is to expedite an amendment to the long-term council community plan. This would take at least 6 to 8 weeks (and that’s incredibly optimistic!).

10 November 2006

Censorship - appeal stats

Routinely you will see media releases from groups criticising the present censor and the censor's office about various decisions, either saying they're too liberal or too conservative. My own personal view is the counterveiling criticisms from conservative and liberal groups probably means the censor is doing a pretty good job! Anyway, I've obtained some details from the Office about the outcome of appeals from the censor to the Film and Literature Board of Review, which make interesting reading:
Total Number of publications reviewed:1014457
Outcome of review:
- Original rating raised:14122
- Original rating maintained:631647
- Original rating lowered:24168

It shows that the present censor, Hastings, has been found to be too liberal with classifications in only 3.5% of the appeals - in contrast to 27% for the previous censor, Paterson. And too conservative in 14% (Hastings) and 24% (Paterson) of the appeals respectively.

The success of different groups who have appealed is also interesting:

- 100% Hoyts, Nobilangelo Ceramulus Publisher, NORML, John Nicholson, Tweak Holdings Ltd, UIP - 67% Individuals / organisations with no interest in publication wanting higher rating - 50% NZ Film Festival Trust, Sony/Columbia TriStar, Video Wholesalers - 25% Vixen - 13% Society for the Promotion of Community Standards - <1%> Individuals contesting forfeiture or defending prosecutions - 0% Individuals / organisations with no interest in publication wanting lower rating, Christian Heritage Party

It's encouraging to see some certainty in the evaluation process with 83% of the classifications being upheld under Hastings' tenure. I previously criticised the lack of predictability about classification decisions, particularly the disparity between the censor's office and the Board - especially where the possession offence does not require proof of knowledge of the objectionable status or content.

> See Dean Knight, "An Objectionable Offence: A critique of the possesssion offence in the Films, (etc) Classification Act 1993" (1997) 27 VUWLR 541.

I'm also pleased to find data confirming the robustness of the present censor's decision and refuting the supurious claims made about his decisions, particularly his alleged liberalness due to his sexuality. Bill is a good friend of mine and supervised my LLB(Hons) research paper (ie the one published above). I've always found him to care deeply about the proper interpretation and application of the law, regardless of his personal perspectives.

I'm rather keen to do an update on my 1997 article - I still find the possession offence objectionable, particularly as it has been applied to objectionable publications in someone's internet cache...

8 November 2006

NatRadio: Ignorance of Law

Below are links to my discussion with Kathryn Ryan on NineToNoon about ignorance of the law and mistakes: > NineToNoon: Law [archived stream] > NineToNoon: Law [mp3 podcast] And here's the favourite example I had in my notes but didn't get a chance to slip in:
For example: - a person is not guilty if they grew cannabis plants thinking they were tomato plants (mistake of fact); - however, a person is guilty if they grew cannabis thinking that growing them for medicinal purposes was lawful (mistake of law).

24 October 2006

Sale of Liquor (Youth Alcohol Harm Reduction: Purchase Age) Amendment Bill

> Sale of Liquor (Youth Alcohol Harm Reduction: Purchase Age) Amendment Bill I'm unimpressed by the push to raise the drinking age. And, quite frankly, the Select Committee's report on this issue is a summary of submissions, not - as one might expect - a robust analysis of the issues and evidence. I'm fully supportive of those folk moving to lobby against the increase and will post my more detailed analysis of the issue in due course. However, in the interim, some immediate thoughts:
- First, many proponents of raising the age point to a study on alcohol-related car crashes which, they say, concluded that these have increased amongst 18 and 19-year olds since the drinking age was lowered. The Select Committee report appears to note this report:
Some people consider that alcohol-related harm to young people has worsened since the purchase age was lowered to 18 years in 1999. ... Some people are particularly worried about the increase in alcohol-related car crashes involving youth, and cited national and international studies linking the trend with the lowering of the legal purchase age.
However, if one cares to read the report, you will see that alcohol-related car crashes amongst 18 and 19-year olds have actually decreased in this period, not increased. The study bases its correlation with the lowering of the drinking age on a relative increase in alcohol-related car crashes. See my full analysis of the study when it was published earlier this year: > LAWS179 (13.01.2006): "Drinking Age" I think the distinction is important to note. The lowering of the drinking age was a package deal, associated with other measures to ameliorate any consequential harm - which, apparently, must have been effective. Ignoring the effect of those associated prophylactic measures is wrong in principle in my view.
- Secondly, the Bill undermines the principles underlying the Relationships (Statutory References) Act 2005 by drawing a distinction between married / civil union couples and de facto couples. The proposed exemptions only applies to underage people accompanied by their spouse or civil union partner, not their de facto couple. I guess the rationale for the distinction is one of proof. People can readily "prove" they are married or in a civil union by reference to their marriage / civil union certificate. However, otherwise there is no rational reason to say an underage person is more at risk if they are accompanied by a de facto partner, rather than spouse or civil union partner. This measure will undermine the harmonisation of benefits, protections, and responsibilities undertaken by the Relationships Act.
- Finally, the raising of the drinking age to 20-years is likely to have an adverse impact on gay and lesbian youth. The (arguably unfortunate) reality is that bars represent the predominant forum for gay and lesbian youth to connect with the gay and lesbian community. Most schools and other youth organisations are not the most welcoming places for gay and lesbian youth to come out or to come to terms with their sexuality. Gay and lesbian bars therefore play a major role in the coming out experience. It's been really interesting seeing the younger gay generations flourish over the last few years in gay bars. Raising the drinking age places that at risk because it will exclude gay and lesbian youth from a supportive gay environment at a critical time in their lives.

18 October 2006

Validating legislation - Treasury advice

Dr Cullen has now made the advice available: > Treasury Report > Cullen Cabinet paper A quick read suggests: - The advice on validation is superficial and simply asserts that validation is necessary. No adverse consequences arising from maintaining the unlawful are discussed. - The advice on the breadth of validation is also superficial. The fact that the validation goes beyond solely validating expenditure now vulnerable because of the Aud-Gen's report is not mentioned. Nor is the appropriateness of the 1989 validation date explained or justified. - There was no advice that it be validated under urgency. - The (non-)necessity of interim legislative definitions is not mentioned. In particular, no consider is given to the interim solution being implemented simply by the issue of new directions by the Speaker. - The advice says the Bill is consistent with LAC guidelines. However, clearly, its effect on the Darnton v Clark litigation raises implications about the effect of (retrospective) legislation on pending legislation. In particular, the LAC guidelines incorporate the LAC's May 1995 memorandum: "Legislation Overriding Judgments and Pending Proceedings" and suggest this type of legislation is objectionable because it overrides this pending litigation. If I had set this scenario as a student assignment, I would grade the product a C-. Extremely disappointing. As I've said before, the validation of misappropriations is capable of being undertaken in a manner which is not objectionable. The advice and approach fall to grapple with the significant constitutional issues at stake. I think we deserve better.

Validating legislation: necessity?

> Parliament: Appropriation (Parliamentary Expenditure Validation) Bill I still haven't received the Treasury advice although I understand Cullen released it last night. I've said before that I think that, in principle, validating legislation may not be objectionable - particularly were it confirms the reality of the expectations that were held by relevant public actors at the time. But, having studied the text of the Bill, I am more convinced that the Bill is unnecessary (if, as we are assured it is not, it is not intended to remove any repayment obligation from the parties), goes further than required on any view of the problem and does not need to be passed under urgency. The Bill has two key parts: (a) validation of expenditure under Vote Parliamentary Service for the last 13 years (ie 1989/90 to 2006/2007); (b) clarification of the rules on an interim basis until the end of 2007. A few comments: 1. The validation of expenditure goes beyond the appropriations found to be unlawful by the Auditor-General. There is some sense in that because there is an argument that by analogy this spending is also vulnerable. However, significantly, the Bill intends to validate all appropriations, not just appropriations consistent with the then expectation about the scope of the rule, ie it validates appropriations which are unlawful for any reason - not just because they breach the Auditor-General's recent (re-)interpretation of the rules. This means previous explicit electioneering, such as "Vote for me!" - which everyone accepts was illegitimate - will be validated. It potentially means that any other unlawful spending under this Vote, hypothetically things like the leasing of a corporate box at the Westpac Stadium, will be validated. 2. It's unnecessary to use legislation to change the rules in the interim. The Auditor-General's problematic interpretation arises not from the Parliamentary Services Act 2000, Public Finance Act 1989 or the yearly Appropriations (Estimates) Act (they, at most, refer to "funding entitlements for parliamentary purposes"). The present problem arises from the Speaker's Directions issued under section 8 of the Parliamentary Services Act 2000, and their definition of "parliamentary purposes" / "electioneering". The Speaker could simply issue new Directions, substituting new definitions of "parliamentary purposes" and "electioneering" (as per the definitions in section 7 of the Bill). There is no need for this clarification to be undertaken by legislation.

17 October 2006

Validating legislation - the Bill

A copy of the Bill is now available: Parliament: Appropriation (Parliamentary Expenditure Validation) Bill

Validating legislation - Peter Dunne's reply

I'm grateful for Peter Dunne's reply, although it still avoids the issue about the apparent (in my view, dubious) urgency of the legislation:

-----Original Message----- Sent: Tuesday, 17 October 2006 1:07 pm To: Dean Knight Subject: Re: Validating legislation - urgency Dear Mr Knight

Thank you for your message. The Bill goes far beyond the issue of the last election. The Treasury has advised that on the basis of the Auditor-General's report all party spending since 1989 has probably been unlawful, which therefore leaves the Government's books for that period unlawful. This Bill is therefore necessary to resolve that. The Bill also defines what MPs can and cannot do up to the end of 2007, by which time new rules are required to be drawn up and put in place. Without this, and again on the basis of the Auditor-General's report, Parliament will not be able to operate effectively. We are already having perfectly legitimate accounts, which are nothing to do with election spending, refused for payment, for example. I made it clear last week that we would not support retrospective legislation if it was merely to get people off the hook for the 2004/05 and 2005/06 years, because I did not think that was proper. However, this legislation goes much further than that and is necessary to protect the overall integrity of the Government's accounts for the last 17 years, which in turn has some implications for our reputation as a country in the international financial marketplace. The Bill does not absolve parties of their responsibilities in the wake of the Auditor-General's report, nor should it. I have announced earlier today that our Caucus has agreed to repay the money in question, and we will honour that. However, the strong legal advice we and others have received is that repaying the amount in question does not make the expenditure lawful. It remains unlawful and the Government's accounts consequently unlawful, until the legal position is tidied up. That is standard practice, and Parliament passes similar legislation virtually every year to validate various expenditures caught this way, often to the tune of hundreds of millions of dollars. Regards, Hon Peter Dunne MP for Ohariu Belmont / Leader of United Future Minister of Revenue / Associate Minister of Health United Future - Strong Families, Strong Country http://www.unitedfuture.org.nz

Validating legislation - complaint to Ombudsman about non-disclosure of Treasury advice

My request for the Treasury advice has, in the light of the urgency of my request, been effectively declined (that is, it will not be disclosed today and is unlikely to be disclosed this week). My official complaint to the Ombudsman - which sets out details of the dealings - is set out below:

Kia ora As discussed, I wish to lodge an urgent complaint about a failure to disclose official information by the Hon Dr Michael Cullen. On Monday, 17 October 2006 I sent the following email to Dr Cullen: From: Dean Knight Sent: Monday, 16 October 2006 8:54 amTo: 'mcullen@ministers.govt.nz'Subject: Validating legislation Kia ora Late last week, you indicated that you had received advice from Treasury that validating legislation was necessary to address the unlawful election spending issue. Can I please obtain a copy of that advice. Please treat this request as urgent. thanks and regards Dean Knight Lecturer, Faculty of Law (Acting) Co-Director, New Zealand Centre for Public Law Victoria University of Wellington, Government Buildings, 15 Lambton Quay, PO Box 600, Wellington, New Zealand [ tel +64 (4) 463 6364 ] [ fax +64 (4) 463 6365 ] [ mob +64 (21) 684 544 ] [ dean.knight@vuw.ac.nz ] [ www.vuw.ac.nz/law ] At around 5:30pm that same day, I phoned Dr Cullen’s office to follow up the request. I was advised that the person responsible for the matter, Katy Greco-Ainsley, was unavailable but would contact me early the next day. Just before 9am the next day (ie, this morning) I phoned Ms Greco-Ainsley. She advised me that she had not yet located my official request. However, she indicated she would process the request but she wouldn’t be able to get it out today and it was unlikely it would be processed this week. I renewed my request for urgency, explaining that the government was seeking to pass legislation later today under urgency based on the request. I believe Ms Greco-Ainsely readily understood the need for urgency which underlay my request. I asked if she could get back to within the morning about the request and indicated I would have no option but to go to the Ombudsman if the request was not fulfilled by then. Subsequently, at around noon today, Ms Greco-Ainsely advised that the request would be processed but would not be fulfilled today or this week. In the light of the request for urgency, I regard the request as effectively being declined by Dr Cullen. That is, is the light of the request for urgency, the request has not been processed "as soon as reasonably practicable" (section 28(4) OIA) and/or there has been "undue delay" in making the information available which means Dr Cullen may be deemed to have refused the request (section 28(5) OIA). I wish to lodge an official complaint under Part 5 of the Official Information Act and, to the extent necessary, section 16 of the Ombudsman Act. I ask that your investigation be expedited, if possible addressing the matter today or as soon as possible. In the circumstances, I consider it is constitutionally unsound for the government to seek to pass validating legislation under urgency without disclosing the advice on which this urgent legislation is based. The public interest in this matter is extremely significant, particularly as the legal basis for the urgent legislation is unclear and dubious. The necessity for the disclosure of this advice and perniciousness of the delay is self-evident. A copy of this complaint has been copied to Dr Cullen. Regards

Dean Knight Lecturer, Faculty of Law (Acting) Co-Director, New Zealand Centre for Public Law Victoria University of Wellington, Government Buildings, 15 Lambton Quay, PO Box 600, Wellington, New Zealand [ tel +64 (4) 463 6364 ] [ fax +64 (4) 463 6365 ] [ mob +64 (21) 684 544 ] [ dean.knight@vuw.ac.nz ] [ www.vuw.ac.nz/law ]

Validating legislation - why?

There is a great deal of speculation about why validating legislation is needed. We are yet to obtain a copy of the Treasury advice. I think it's useful to examine what might be at risk if the spending remain unlawful or what the legislation might achieve: 1. It may mean the parties need not pay the funds back. However, some parties have committed to do so anyway. 2. It blows the Darnton v Clark litigation out of the water. However, legislating to override existing litigation breaches fundamental legal principles (see LAC guidelines, para 3.3.2 and LAC report, Recurring Issues, "Retrospective Legislation") and I hope (probably naively) that the legislation might expressly preserve the litigation. 3. It preserves the results of the election. However, this was never in doubt because the election results can't now be overturned on this basis (see LAWS179: Validating legislation election not vulnerable because of overspending). 4. It avoids an qualified audit certificate. But, so what? If there was unlawfulness, then why pretend there wasn't? I'm not aware of any other consequences which flow from a qualified audit certifcate (but would welcome clarification from others about whether there are any). It seems that the only compelling reason is the legal fiction of legality. That is, folk are uncomfortable that potential illegality remains on the books. However, as I've pointed out elsewhere, (uncured) illegality abounds in our legal system and the sky hasn't fallen. The presumption of legal relativity (or alternative, relative theory of illegality) recognises that illegal government action is treated as being lawful unless and until that it is successfully challenged in court. I've previously summarised the principles as follows:
[T]he presumption of validity of administrative acts: as Professor Wade explains, "the court will treat an administrative act or order as invalid only if the right remedy is sought by the right person in the right proceedings".[13] This approach was endorsed by the House of Lords in F Hoffmann‑La Roche & Co AG v Secretary of State for Trade and Industry.[14] Lord Diplock explained it in these terms:[15] Unless there is such challenge and, if there is, until it has been upheld by a judgment of the court, the validity of the statutory instrument and the legality of acts done pursuant to the law declared by it, are presumed. This means an illegal decision is "still capable of legal consequences" and "[u]ntil the necessary proceedings are taken, it will remain effective for its ostensible purpose".[16] The approach has important consequences for the status of ultra vires decisions. Not only do ultra vires decisions remain effective if no one challenges them in court, but they may remain effective even if they are challenged:[17] The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The [decision] may be hypothetically a nullity, but the court may refuse to quash it … In any such case the "void" order remains effective and is, in reality, valid. Of course, Professor Wade's theory of legal relativity is not universally accepted. New Zealand's Professor Taggart has propounded his "relative theory of invalidity"; that is, an ultra vires decision is conclusively valid (and not merely treated as such) until a court declares it invalid. The courts' actions are therefore "constitutive", not merely "declaratory", and retrospectively invalidate the decision, not merely recognising its lack of legal consequence.[18] [A]t this point the critical proposition is their commonality: an administrative instrument, decision, or action has some form of validity in law unless and until it is challenged. That is, both theories move past the now historic, pre-Anisminic theory of absolute invalidity.[19] ... Where a citizen seeks to raise the invalidity of an administrative instrument, decision or action, it is not sufficient to merely argue its invalidity; he or she must obtain a ruling from an appropriate court about its invalidity (except, perhaps, in the cases of "flagrant" or "patent" invalidity).[20] - - - - - - [12] William Wade and Christopher Forsyth Administrative Law (8 ed, Oxford University Press, London, 2000) 281. [13] F Hoffmann La Roche & Co AG v Secretary of State for Trade and Industry [1974] 2 All ER 1128 (HL). Wade argued there still may be a class of cases where the illegality was so "patent" or "flagrant" that an order quashing the decision may not be needed, Wade and Forsyth, above n 12, 309. See similar comments expressed by Cooke J in A J Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1 (CA). [14] F Hoffmann La Roche & Co AG v Secretary of State for Trade and Industry, above n 13, 1153–1154 Lord Diplock [15] Smith v East Elloe Rural District Council [1956] 1 All ER 855, 871 (HL) Lord Radcliffe. [16] Wade and Forsyth, above n 12, 308. [17] See Michael Taggart "Rival Theories of Invalidity in Administrative Law: Some Practical and Theoretical Consequences" in Michael Taggart Judicial Review of Administrative Action in the 1980s: Problems and Prospects (Oxford University Press, Auckland, 1986) 70 and a helpful discussion of the various theories in Philip A Joseph, Constitutional and Administrative Law in New Zealand (2 ed, Brooker's, Wellington, 2001) 769–776. See also Christopher Forsyth "'The Metaphysics of Nullity' – Invalidity, Conceptual Reasoning and the Rule of Law" in Christopher Forsyth and Ivan Hare (eds) The Golden Metwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade QC (Oxford University Press, London, 1998). [18] Before Anisminic Ltd v Foreign Compensation Commission [1969] 1 All ER 208 (HL), a distinction was drawn between decisions that were void and those that were voidable. The former applied to decisions that were ultra vires, while the latter applied to decisions quashed for error of law on the face of the record. However, that distinction was rejected in Anisminic and the new theory was adopted, which avoided the conclusion that every decision that was ultra vires was a nullity, void ab initio or a legal nothing. [19] Above n 13.
Even though an independent officer of Parliament, the Auditor-General, has concluded that the spending is illegal, this does not automatic invalidate the spending in the eyes of the legal system. That formal legal consequence might result from the Darton v Clark litigation. Of course, informally and for other purposes, we might still treat the spending as being unlawful - but that's politics and pragmatics, not legal necessity to do so.

Validating legislation - election not vulnerable because of overspending

Some people seem to be suggesting that the imperative for the validating legislation is that the overspending might cast legal doubt over the results of the election. However, it's clear that the election results are immune from challenge based on any overspending. Section 229 of the Electoral Act contains a strong privative clause restricting challenges to the election results (except in circumstances which are no longer available):
s229. Method of questioning election— (1) No election and no return to the House of Representatives shall be questioned except by a petition complaining of an unlawful election or unlawful return (in this Act referred to as an election petition) presented in accordance with this Part of this Act. (2) A petition complaining of no return shall be deemed to be an election petition, and the High Court or the Court of Appeal may make such order thereon as the Court thinks expedient for compelling a return to be made or may allow the petition to be heard as provided with respect to ordinary election petitions. (3) An election petition relating to the return of a member of Parliament representing an electoral district or the failure to present a return at an election for a member of Parliament representing an electoral district shall be presented to the High Court and determined in accordance with sections 230 to 257 of this Act. (4) An election petition relating to the allocation of seats by the Chief Electoral Officer under sections 191 to 193 of this Act may be presented to the Court of Appeal in accordance with sections 258 to 262 of this Act.

16 October 2006

Validating legislation: emails to United Future and NZ First

Below is a copy of my email to Peter Dunne and Winston Peters:
Kia ora Minister I am very disappointed to hear reports that United Future will be supporting the government’s proposal to passing validating legislation for election spending under urgency tomorrow. I ask that you reconsider your party’s support for urgency. I share your concerns about the Auditor-General’s report and the way it effectively re-writes the rules after the spending took place (see my comments on: http://www.laws179.blogspot.com/). My view is that the parties have a credible basis for arguing that their understand of the rules should be preserved and should not be required to repay the money. However, passing this type of legislation under urgency is unnecessary and anti-democratic. We do not have draft legislation or copies of the advice on which it is based. Or time to assess the legitimacy of the legislation. There is no need to circumvent the usual democratic checks and balance. If the rationale for the legislation is robust, it will survive scrutiny anyway. I am particularly concerned that expediting this type of legislation will undermine the citizens’ trust in Parliament. I ask that you reconsider. Regards

Validating legislation - under urgency

NewstalkZB: Parliament in urgency over overspend I extremely disappointed by the decision to pass validating legislation under urgency tomorrow. You will see from previous posts, I don't consider that retrospective validating legislation is necessarily objectionable, although I'm not convinced that the validating legislation needed if the parties pay the money back. However, there's no need to rush it through the House, without the ordinary notice and select committee scrutiny. No-one has yet seen a copy of the draft legislation. Despite requesting a copy under the OIA as a matter of urgency, I have not yet been able to obtain a copy of the Treasury advice which the Minister says requries this action. Expediting this type of legislation leads to citizens distrusting our Parliament. If there are legitimate imperatives underlying the need for the legislation then the legislation will survive the democratic processes and scrutiny. The government ought to allow the country time to consider and assess these imperatives.

12 October 2006

OAG report

> LAWS179: "Shifting Goalposts" > LAWS179: "Retrospective (or retroactive) legislation and pledge cards" > LAWS179: "Killing Miss Muggins: Officially Induced Error" > LAWS179: "Rule of Law and retrospective legislation" > OAG report > Speaker's Reply No suprises. The report came out as most people predicted. Beyond the OAG's (and SG's) view on whether the spending was authorised, it's interesting to note the view of the parties and PS that the OAG's interpretation is inconsistent with previous practice and PS was actively involved in giving "guidance" on what was permissible and not. But probably most interesting aspect is the legal advice on the interpretation of the rules. Quite frankly, I'm with Jack Hodder on this one (attached to the Speaker's reply). In my view, the former SG's advice is unduly conservative and ignores the reality of the functions of politicians and the purpose of the rules. Hodder's analysis is much more compelling. Below are my comments on another blog on the critical "tainting" point:
1. I've always taken the Court of Appeal's decision in Attorney-General v Ireland [2002] 2 NZLR 220 to represent the orthodox view of how to deal with multiple purposes, one authorised, one not. Notably, they rejected a strict unauthorised purpose taints and invalidates the legitimate purpose: "[39]The authorities show that Courts have adopted five or six different approaches to the situation where the decider has sought to achieve both authorised and other purposes. (See eg de Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th ed, 1995) at para 6-077 (they have six (“none of which is entirely satisfactory”) but (1) and (2) appear to be the same) and Taylor, Judicial Review: A New Zealand Perspective (1991) at para 14.40 who identifies five tests and says three can be seen to come to the same conclusion.) One prominent variable involves the ranking of the unauthorised purposes (true or dominant as opposed to subsidiary), the “but for that purpose” test, the materiality of that purpose and the very existence of that purpose. Allbut the last involve the difficulty for the Courts of speculating about the weight actually given to particular purposes, an even more difficult matter if the decision is made by a multi-member body (Aronson and Dyer, Judicial Review of Administrative Action (2nd ed, 2000) at pp 250 – 251). [40] A further variable which we consider to be crucial in the context of the legislation in this case is the character or quality of the additional purpose. Does the particular purpose or even more its fulfilment “run counter”, to “circumvent” or “undermine” the proper statutory purpose, to quote Cooke J in Poananga? The Crown in its written submissions relied on the more directly relevant leading authority of Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997. Lord Reid, in one of his great administrative law judgments, says this at p 1030:“Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court. So it is necessary first to construe the Act.” [41] He then reviewed the legislation and the facts and returned to the wider issues at pp 1032 – 1033:“If it is the Minister's duty not to act so as to frustrate the policy and objects of the Act, and if it were to appear from all the circumstances of the case that that has been the effect of the Minister's refusal, then it appears to me that the court must be entitled to act.” [42] That careful wording, consistently with that of Cooke J in Poananga, reminds us that purposes not within the statute are not necessarily “invalid” or “improper”; the additional pursuit of such other purposes may not thwart or frustrate the policy of the Act in question. As indicated in both those cases, we need to return to the terms of the Reserves Act. [43] Is there anything in that Act to indicate that the other purpose (or effect) in this case is prohibited so long as the statutory purpose is being pursued (and in fact achieved) and is not in any way compromised by the other purpose? No such prohibition appears in the express terms of the statutory provisions themselves. There is for instance no express language matching the word “only” in para [35] of the High Court judgment (set out in para [8] above) or identifying any purposes as “invalid” (see para [31] of the judgment in para [7] above). The fact, emphasised by Mr Mills, that the powers related to the particular reserve, simply restates the issue: if the power is exercised for that reserve and for the statutory purpose, may it also be exercised for other areas and purposes so long as the statutory purpose is not prejudiced? We can see no indication in the legislation that other non-prejudicial purposes are prohibited. The Judge referred to none, nor did Mr Mills. Nor can we see anything in the rights and interests reflected in the legislation which will be damaged by the existence of the additional purpose. There is nothing here for instance which is comparable to the natural justice protections which were circumvented in Poananga. [44] We stress again that the additional purpose and use in the circumstances of this case did not prejudice the pursuit of the statutory process. Indeed, the implementation of that additional purpose may actually have facilitated the carrying out of the statutory purpose. But for the establishment of the area office at North Head, the improvements to and preservation of the historic buildings in the reserve and the enhanced public access may not have been accomplished. (That efficient and economic exercise of the powers conferred by the Reserves Act may well gain support from the State Sector Act 1988, s 32(d) and the Public Finance Act 1989 (see para (c) of its title and related substantive provisions), but since no argument was presented along these lines we take that no further.)[45] We conclude that, because the statutory purpose is satisfied and the additional purpose and use do not in any way prejudice that purpose, the additional purpose and use do not make the departmental action unlawful." ... "If I was summarising the principle of the Ireland case, I would say: Where adminstrative action is taken based on two purposes - one authorised and one not - the administrative action will not automatically invalidated because of the presence of the unauthorised purpose. The unauthorised purpose will only invalidate the otherwise authorised purpose if it undermines, thwarts or frustrates the authorised purpose. In the context of the examples given: 1. Pamphlet with legitimate parliamentary business on one side and impermissible electioneering on the other): This would probably be okay because they are relatively separate and the authorised activity could have taken place, and was not undermined, by the inclusion of illegitimate electioneering. 2. Apportioning a "fused" advert and dividing between "parliamentary business" and overt "electioneering": Probably impermissible because the legitimate purpose and electioneering are probably indivisible and this is more directly an attempt to circumvent the prohibition."
UPDATE: One surprise - kind of. Labour announced they would pay the funds back. As I've previously suggested, I'm not convinced that they should be required to - if ordinary administrative law principles were applied. However, I can understand the political imperative which has lead to them doing so.

4 October 2006

Election expenses - prosecution under the Electoral Act

> Scoop: National asks cops to explain on pledge card probe > NZHerald: Police dragged into election spending row > NoRightTurn: Cause for complaint > KiwiBlog: Brash complains to Police over Electoral Act investigation I've previously written a bit about the legitimacy of the spending on the pledge cards, concluding that it might be credible spending under the Leaders' Fund and may not need to be repaid (retrospective legislation on this point might not be objectionable). However, I take a different view on the question of whether it should have been recorded as an electoral expense under the Electoral Act and whether, consequentially, Labour exceeded the cap. I'm concerned about the robustness of the Police's analysis of the charges and evidence when they decided not to prosecute (I won't detail the concerns here - others have addressed this elsewhere). There is some speculation that the real reason was the time for a prosecution expired (or a prosecution could never have been bought in time after the election). It's the question of the timing of a prosecution that I want to address. Section 226 of the Electoral Act sets a 6 month time limit for any prosecution:
s226. Time limit for prosecutions A prosecution against any person for a corrupt practice or an illegal practice shall be commenced within 6 months after the offence was committed: Provided that where the person charged has been reported by the High Court in its report on the trial of an election petition to have been proved guilty of the offence, a prosecution shall be commenced within 6 months after the offence was committed or within 3 months after the date of the report, whichever period is the later to expire.
There's some question mark about when any offence was committed, assuming there was one. A lot of people have adopted the 6 months from the election date or the date of the electoral return. However, I suspect it's at an earlier point in time. The offence in section s214B(3) is as follows:
(3) Every person who directly or indirectly pays or knowingly aids or abets any person in paying for or on account of any election expenses any sum in excess of the maximum amount prescribed by this section is, (a) If the act is done with knowledge that the payment is in excess of the maximum amount prescribed by this section, guilty of a corrupt practice; and (b) In any other case, guilty of an illegal practice unless the person proves that he or she took all reasonable steps to ensure that the election expenses did not exceed the maximum amount prescribed by this section.
The critical elements are "pays" and "in excess of the maximum amount". This means, I think, the time of any offence was when Labour paid the first invoice that took them over any limit (assuming the pledge cards are attributable spending under the Electoral Act - there's seems to be no doubt that if it was, they were over the limit). As an aside, there is some dissonance between the reference in the offence section to "pays" when the definition of election expenses refers to "incurs". Now, factually, I have no idea when this took place - it may have been rather early in the election process. Alternatively, it might have been months after, particularly if an actual payment approach is adopted. (Actually, I was once involved in litigation which raised the issue of whether a cause of action arose when expenses were "incurred" or "paid": see Watercare Services Ltd v Affco New Zealand Ltd.) I suspect therefore that any prosecution was always going to face limitation problems. The question has been raised about whether retrospective legislation could be used to amend the limitation provision to allow a prosecution. However, if a desire to allow a prosecution is to be pursued, I'm not convinced it is necessary. There is a possible solution within the Electoral Act itself, albeit somewhat of a "hail mary". Section 266 of the Electoral Act empowers the Governor-General extend the time for doing anything which could not have been done in the time required:
s266. Validation of irregularities Where anything is omitted to be done or cannot be done at the time required by or under this Act, or is done before or after that time, or is otherwise irregularly done in matter of form, or sufficient provision is not made by or under this Act, the Governor-General may, by Order in Council gazetted, at any time before or after the time within which the thing is required to be done, extend that time, or validate anything so done before or after the time required or so irregularly done in matter of form, or make other provision for the case as he or she thinks fit: Provided that this section shall not apply with respect to the presentation of an election petition or to the giving of security for costs in relation to an election petition.
Now, it's not straight-forward for a number of reasons: - Although, on its face, the section is wide enough to cover this scenario, it's clearly not the purpose of the section (and could be "read down" according). - It would need to be established that a prosecution within the time limit was never a possibility; I'm not sure that was the case. - Applying the section might have retrospective effect, which is problematic in the criminal context. On the other hand, it's only the limitation period not the substantive criminal offence (the Court of Appeal in R v Hibberd [2001] 2 NZLR 211 seemed less concerned with retrospectivity in limitation provisions: "Any failure to provide in the reforms for what would amount to an amnesty is not ... the equivalent of the retrospective imposition of a penalty.") and conceptually a prosecution now would not violate the offender's decision-making functions - merely remove an amnesty. - Limitation periods generally arise because of a desire for a fair trial and, in this context, the legal certainty related to the election. In this case, neither is really an issue: the provisions already recognise an extended limitation period if the offence is reported in an electoral petition (which is not a possibility for party spending). - Realistically, the prospect of the Governor-General gazetting an Order in Council is remote because these are gazetted on advice of the Executive Council, ie the government. Anyways, food for thought!

3 October 2006

NZ Centre for Public Law: Dr Judit Bayer, "ISPs' liability for third party content: Ways of Regulation"

I meant to post this earlier. The NZ Centre for Public Law is today hosting a public lecture on the regulation of the internet by one of our senior research fellows: Dr Judit Bayer Cyber Research Fellow, Victoria University School of Law and InternetNZ "ISPs' liability for third party content: Ways of Regulation" 12:30-1:30pm, 3 October 2006 Rutherford House Lecture Theatre 3 Lambton Quay, Wellington > NZCPL: Lecture flyer

2 October 2006

"Equality" and "equality"?

> NZHerald: Peters' claim Brash comments 'evil' wins backing > NZHerald: Brash stirs up Maori 'storm' The "one law for all" mantra has once again hit the headlines. I think one of the most disappointing aspects of public dialogue on this issue is the failure of the left and social democratic parties to meaning engage. Unfortunately, the discussion of equality is framed on "formal equality", that is, consistent or equal treatment. However, that is not the only conception of equality. For example, increasingly prevalent is a focus on "substantive equality" where the focus is on achieving equality of results, or a more limited form, where the focus is on equality of opportunity. Sandra Fredman explains the differences in Discrimination Law (2002, OUP):
How do we explain then how equal treatment can in effect lead to inequality, while unequal treatment might be necessary in order to achieve equality? The apparent paradox can be understood if we accept that equality can be formulated in different ways, depending on which underlying conception is chosen. Equality of treatment is predicated on the principle that justice inheres in consistency; hence likes should be treated alike. But this in turn is based on a purely abstract view of justice, which does not take into account existing distributions of wealth and power. Consistency in treatment of two individuals who appear alike but in fact differ in terms of access to power, opportunities or material benefits, results in unequal outcomes. An alternative conception of equality, therefore, is based on a more substantive view of justice, which concentrates on correcting maldistribution. Such a principle would lead to a focus on equality of results, requiring unequal treatment if necessary to achieve an equal impact. Alternatively, the focus could lie on facilitating personal self-fulfillment, by equalizing opportunities. This differs from both the above conceptions, in that a notion of equality which stresses equal opportunities is consistent with inequality of treatment and inequality of results. Unequal treatment might be necessary to equalize the opportunities of individuals, but once opportunities are equal, different choices and capacities might lead to inequality of results. The choice between different conceptions of equality is not one of logic but of values and policy. Equality could aim to achieve the redistributive goal of alleviating disadvantage, the liberal goal of market or contractual equality and the political goal of access to decision-making processes. It is striking that, despite the widespread adherence to the ideal of equality, there is so little agreement on its meaning and aims

I've uploaded the chapter from which the extract is drawn: > Fredman, Discrimination Law

I know it's harder to sell "substantive equality" to the general populace because it requires a deeper analysis and doesn't fit short sound-bites. However, if the social democratic vision of substantive equality - which underpins much of the equality jurisprudence in our legal system and our comparator nations - is to be maintained, we need to do a better job at engaging in the discussion and reminding the public that Brash doesn't have a monopoly on the equality card. I suggest that rather than rushing off to revisit all policies for "need, not race", left and centre-left parties ought to be standing firm and reminding the public that "equality" is a contested concept and substantive equality (or equity) is a genuine and legitimate approach to equality under the law.

29 September 2006

Donations to political parties and "bribery"

> NZHerald: Call for police to investigate offer to Maori Party > DomPost: Cash offer to Maori Party 'not illegal' I think we need to take care before we baldly conclude that the offer to make a donation to the Maori party on the basis that they support Labour as the government amounts to bribery. Section 103(2) of the Crimes Act sets out the offence:
s103 Corruption and bribery of member of Parliament (1) ... (2) Every one is liable to imprisonment for a term not exceeding 7 years who corruptly gives or offers or agrees to give any bribe to any person with intent to influence any member of Parliament in respect of any act or omission by him in his capacity as a member of Parliament. (3) ...

"Bribe" is defined in section 99 as:

Bribe means any money, valuable consideration, office, or employment, or any benefit, whether direct or indirect:

I haven't got time to develop the argument but:

- There's a difference between concluding that such offers are politically objectionable (controls might be transparency and ultimately voter response at the ballot box) and that such offers triggers criminal liability.

- Interestingly, the home of the origins Westminister system, the UK, does not have the same criminal liability.

- There's a need to reconcile the offer with offers from groups like, say, an anti-alcohol lobby groups who might say to a party, "we'll make a donation to your party if you support raising the drinking age; but if you don't, we won't".

- There's a wee bit of literature and jurisprudence on the issue but I haven't got time to go through it. Two goods reads though:

> AG of Ceylon v de Livera (a case under a similar section) > Zellick, "Bribery of Members of Parliament and the Criminal Law" [1979] Public Law 31 (on the UK situation, remembering there is no specific offence)

22 September 2006

Rule of Law and retrospective legislation

The war of rhetoric continues about the pledge cards, with numerous suggestions that the position maintained by some parties is "corrupt", is unconstitutional, or violates the Rule of Law. I’ve previously suggested that:

- according to administrative law principle, parties which have overspent might not be required to pay back the overspending, if they were assured by an appropriate agency that the spending was legitimate, had no reasonable reason to doubt that assurance, and no reasonably available mechanism by which to otherwise confirm that expectation (see LAWS179: "Shifting Goalposts");

- legislation validating spending from the parliamentary leaders fund might not be objectionable and may be consistent with the Rule of Law, not contrary to it (see LAWS179: "Retrospective (or retroactive) legislation and pledge cards");

- if this was a criminal matter, the parties might similarly be able to rely on a defence of officially induced error (see LAWS179: Killing Miss Muggins: Officially Induced Error).

Once again, I must record that I’m not in a position to fully appreciate all the factual contentions made about whether or not the spending was in accordance with past practice and/or explicitly / implicitly “approved” by Parliamentary Services. However, from where I sit and the more I see and hear, suggests Labour’s argument that they genuinely and legitimately understood the spending was permissible has a degree of credibility. I await with interest the Auditor-General’s report and/or Darton v Clark litigation. My point of posting though is to reinforce the view I’ve previously expressed that retrospective validating legislation may not be objectionable in this situation and enhances the Rule of Law, rather than violates it. Quite frankly, the discussion about this point in the political arena and the media has been superficial and sloganistic, rather than attempting the grapple with the important legal principles that are at stake. In this regard, an Australian monograph – Charles Sampford, Retrospectivity and the Rule of Law – was on the list of new additions to the library. It deals in some detail with the issues that are stake in the present pledge cards issue and makes for instructive reading. For example, Sampford makes the following introductory comments about the legitimacy of validating legislation:

Validating Legislation Validating legislation is passed where someone, usually the executive arm of government, has acted in reliance on an erroneous view of the law, which action the retrospective statute is intended to validate. Thus, this sub-category include statutes designed to overcome more significant legislative defects than those considered in the routine revision category; often there are complicating factors such as a person's reliance on the defective scheme. However, provided that no new (that is, unexpected) obligations are imposed on anyone, there is little that can be objected to in the retrospective curing of the defects. Indeed, the reliance on existing state of the law is an argument for retrospectivity, because the executive and others relied on what turned out to be a mistaken interpretation of the law. In these instances, it would be perverse not to perfect the law given that people have been led into error by the government. The retrospective legislation is concerned with making the law conform to that which people acting in purported reliance on the law believed to be the case. Failure to cure the defects in validate those actions in the circumstances could diminish respect the law rather than support it.
I’ve posted a somewhat larger extract of the chapter in pdf form: > Charles Sampford, Retrospectivity and the Rule of Law (Chapter 4 – extract)

19 September 2006

Lord Cooke - some reflections: Simplicity and Fairness in Adminstrative Law

Below are my remarks for a panel address today hosted by the NZ Centre for Public Law and the Faculty of Law on Lord Cooke of Thorndon: "Lord Cooke – Some Reflections: Simplicity and Fairness in Adminstrative Law" Dean Knight Lecturer, Faculty of Law (Acting) Co-Director, New Zealand Centre for Public Law Victoria University of Wellington Lord Cooke was one of New Zealand's pre-eminent administrative law scholars and jurists, if not our finest. Sir Robin had a great passion for administrative law. His award winning PhD in Cambridge in 1954 – "Jurisdiction: An Essay in Constitutional, Administrative and Procedural Law", in which he examined and critiqued the adoption of "jurisdiction" as an organising principle in administrative law – signalled his passion and expertise in this area. Around that time he lamented the fact that "Administrative Law" was not found as a title in Halsbury's Laws of England or in the index to the Law Reports. Nowadays those oversights have been corrected. Notably, Halsbury's chapter on administrative law now contains numerous citations to Lord Cooke's contribution to administrative law jurisprudence. And the introduction to the equivalent chapter in our Laws of New Zealand honours that way in which Lord Cooke "charted the direction" for administrative law in New Zealand over the last 30 years, particularly his rejection of legal formalism in the area. Sir Robin himself estimated that around 40% of reported appellate court decisions concerned administrative law or had some administrative law element. And if one undertook that same analysis today in our New Zealand law reports, Sir Robin's name would appear at the top of many of those decisions. It is therefore no easy task to reflect on Sir Robin's contribution in this area, both in his adjudicative role and his extra-judicial writings. Professor Taggart recently said administrative law was "one of the areas – arguably the area" Sir Robin had "made his own". A recital of his significant contributions would seem like a verbatim recital of many chapters from Professor Joseph's text on constitutional and administrative law or GDS Taylor's commentary on judicial review. Sir Robin's contribution has been interwoven throughout our country's development of its unique jurisprudence in this area. And, of course, also on the international stage. One could point to many of the significance administrative law cases in which he adjudicated or in which he helped shape the development of administrative law principle, such as: • his treatment of mandatory relevant considerations in CREEDNZ; • Finnigan, the Springbok tour case, and his discussion of the justiciability of private decisions with a significant public impact; • the seminal decision on the disclosure of official information, Commissioner of Police v Ombudsman; • Tavita, Ashby and the relevance of international law to domestic administrative law; • the manifestation of the Treaty in administrative law through the NZ Maori Council series of cases; • the Casino Control Authority and the test for bias. However, rather than adopting a blow-by-blow account of Lord Cooke's contribution, I wish to focus on a few of themes which, in my view, underscored his philosophy in this area: • first, a desire for simplicity; • secondly, the pursuit of fairness; and • thirdly, his acceptance of discretion. The desire for simplicity was one of Lord Cooke’s hallmarks. In his 1980s article – “The Struggle for Simplicity in Administrative Law”, he championed “clarity and simplicity” over the “superfluous complications of principle” and use of “phrases of somewhat arcane concepts, in the nature of catchwords or half truths [or] shibboleths”. This critique was not intended to be mere window-dressing. In Bulk Gas, for example, he rejected the concept of jurisdiction and jurisdictional error in favour of the simpler "error of law" formulation. Similarly, his own formulation of the tripartite cardinal principles of administrative law – that decision-makers “must act in accordance with the law, fairly and reasonably” – represented a more straight-forward articulation than Lord Diplock's famous "illegality, irrationality, and procedural impropriety" formulation from the CCSU case. Indeed, Sir Robin commented on their similarity, although took some pleasure in noting that his initial expression of these principles in his address to the Auckland District Law Society came some 5 years before the CCSU case. In this theme, Sir Robin was also a staunch critic of the expression of so-called Wednesbury principles. He described the "irrationality" test for substantive review of decision as "tautologous and exaggerated” and advocated a simpler, and less extreme, formulation of the test of reasonableness:
“[Is] the decision in question … one which a reasonable authority could reach[?]”
In his view, such a formulation would still “give the administrator ample and rightful rein, consistently with the constitutional separation of powers”. Similarly he was a fan of the so-called "innominate" ground of review expressed by Lord Donaldson in the Guinness case: the standard being "whether something had gone wrong of a nature and degree which required the intervention of the court". Lord Donaldson's formulation mirrored his own expression of the concept of substantive fairness in the Thames Valley case, which he described as “a legitimate ground of judicial review, shading into but not identical with unreasonableness”. Sir Robin welcomed this as a "refreshing and healthy move away ... from the more formalistic constraints once orthodox" and suggested that:
[J]udges are accepting that they have a responsibility to do practical justice in administrative law as in other fields. Ample room for respect for administrative discretion remains.
And he was a strong champion of fairness. The translation of the motto found on his personal coat of arms says: "To speak in favour of fairness". His judgments expressed the need for the courts to ensure both procedural and substantive fairness when exercising their supervisory jurisdiction. I have already mentioned to his adoption of the principle of substantive fairness and the closely aligned simple expression of the reasonableness standard. To this one can add his strengthening of the principle of procedural fairness in Daganaysi, along with the genesis of the mistake of fact doctrine in the same case. He also often indicated the importance of consultation in ensuring the delivery of natural justice and procedural fairness, notably in administrative decisions relating to Maori and more generally with the populace at large. Again, Lord Cooke was not one to be tied down by legal niceties or formalistic definitions of fairness. He commended the word of Lord Justice Lawton in the Maxwell case:
"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."
His scholarship and adjudication endeavoured to achieve real justice in individual cases. He was no doubt pleased to see the rejection of legal formalism by our courts continue beyond his retirement from the Court of Appeal. The desire for individual justice also came with an acceptance of discretion in administrative law. Sir Robin once noted that when he was writing his PhD he was "quite well-deposed towards discretion" – in contradistinction to famous administrative law names such as Dicey and Sir William Wade. He went on to say that almost a quarter of a century on the bench had "warmed [his] feelings to something approaching affection for it". He understood the need for both administrative and judicial discretion in this area. However, he accepted that both were subject to limits, but limits which varied according to the subject-matter and surrounding statutory context. He queried whether administrative law might be better renamed "the law of public discretions". His acceptance of the role of discretion and rejection of rigid rules imbued his adjudication and scholarship. His formulation of the grounds of review provided for appropriate discretion. He embraced the discretionary approach to remedies in judicial review, rejecting the strait-jacket presented by the previous "void" – "voidable" distinction. He championed a discretionary approach to procedural matters, such as the question of standing. Discretion was a paramount vehicle to achieving individual justice. Lord Cooke's contribution to New Zealand – and Commonwealth – administrative law was massive. It is marked particularly by its pursuit of simplicity and fairness. We have lost one of our greatest figures in administrative law. Ka hinga te totara o te wao nui a tane. But he will not be forgotten. His legacy in this area will endure.

18 September 2006

Peter Davis - imputations of gayness

> SST: Smear against PM's husband 'despicable' > SST: PM hits out at 'smutty rumours' > DomPost: Furious Clark defends husband > NZHerald: Bitter Clark savages rumours There's been some suggestion that litigation may follow the recent allegations being made about Peter Davis being gay. However, in my view, allegations of gayness per se are not and should not be defamatory. In today's society it cannot be said that "right-thinking" people would think that an allegation of gayness tarnishes a person's reputation. My article on this was launched last week: > Dean R Knight,"'I’m Not Gay – Not That There’s Anything Wrong With That!': Are Unwanted Imputations of Gayness Defamatory?" (2006) 37 VUWLR 249 It's likely though that the courts may treat allegations of gayness "plus" as being defamatory, that is allegations of gayness (which are not defamatory) tied with allegations of infidelity, untruthness, or a "sham" marriage etc (which still might be). While I have some concerns about this approach which I touch on in my article (ie these other allegations are often used just to "reinvent" allegations of gayness), this alternative may still be available to Davis. UPDATE (27/9/2006): Steven Price discusses this issue with Kathryn Ryan on National Radio, including some of the points addressed in my article: > NatRadio: Law

13 September 2006

Killing Miss Muggins: Officially Induced Error

There's been some discussion about whether Labour can rely on ignorance or confusion about the pledge cards, if it transpires that their spending was unlawful. See: > KiwiBlog: "New Court defences" > NoRightTurn: "Analogous defences" In terms of criminal offences: 1. It's clear that ignorance of the law is no excuse. Section 21 of the Crimes Act provides:
s25.Ignorance of law— The fact that an offender is ignorant of the law is not an excuse for any offence committed by him.
2. However, some common law courts have developed the defence of "officially induced error". In New Zealand there is the possibility that this development may be preserved by s20 of the Crimes Act, although I recall a recent case from Baragwanth J suggesting some difficulties in the NZ context. The commentary in Brooker's, Criminal Law describes the defence as follows:
CA25.05 Officially induced error In some jurisdictions Courts have accepted that there might be a defence if a defendant acted on erroneous advice on the law from an official responsible for administering the law in question, for example, People v Ferguson 134 Cal App 41 (1933); R v MacDougall (1983) 142 DLR (3d) 216 (SCC); R v Cancoil Thermal Corp and Parkinson (1986) 27 CCC (3d) 295 (Ont CA). The existence of such a defence was left open in R v Forster (1992) 70 CCC (3d) 59 (SCC). In R v Jorgensen (1995) 129 DLR (4th) 510; 102 CCC (3d) 97 (SCC), Lamer CJC favoured recognising the principle as providing a ground on which the trial Judge may order a stay of proceedings: compare CA24.33. Such a defence has yet to find favour in England. See, for example, Surrey County Council v Battersby [1965] 2 QB 124; Cambridgeshire and Isle of Ely County Council v Rust [1972] 2 QB 426; Ashworth, “Excusable mistake of law” [1974] Crim LR 652. In New Zealand, statute occasionally creates a defence of this kind in particular contexts. See, for example, Cardin Laurant Ltd v Commerce Commission [1990] 3 NZLR 563; (1989) 3 TCLR 470. A general defence has been upheld in at least one District Court case: Dept of Internal Affairs v Nicholls 20/5/86, Judge Bradford, CR5004024002025; W Brookbanks, “Recent developments in the doctrine of mistake of law” (1987) 11 Crim LJ 195, p 200. The possibility of such a defence was not adverted to in Labour Dept v Green [1973] 1 NZLR 412, and in Tipple v Police [1994] 2 NZLR 362, Holland J preferred to deal with such a case by discretionary discharge without conviction (under what is now s 106 Sentencing Act 2002) rather than by recognising a defence. For a comprehensive review of the subject, see M Briggs, “Officially induced error of law” (1995) 16 NZULR 403.
This may provide an avenue for raising these issues (although as I understand the appropriations aspect of the pledge card raises criminal law issues). 3. The conceptual basis for this defence is strong and grounded in the Rule of Law, particularly where the law itself is undertain or ambiguous (which in itself violates the Rule of Law). I won't bore people with the references on this point now. 4. Regardless, the courts treat genuine ignorance of the law or confusion about the law more sympathetically because it goes to the degree of an offender's culpability or "wickedness". As noted in the commentary, in some cases, the mistake or lack of knowledge of an offence may lead to a discharge without conviction. As you'd expect the position on civil proceedings is usually more accomodating of such errors. I haven't got the resources to review it yet, suffice to say that in administrative law and judicial review, it would be one of the key considerations for the High Court when deciding whether to grant any relief even if illegality was established, that is, confusion and ignorance may legitimately form the basis for a court refusing to require the paying back of money. See my earlier posts for more commentary on this point: > LAWS179: "Shifting Goalposts" > LAWS179: "Retrospective (or retroactive) legislation and pledge cards" UPDATE (13/9/2005): Some people have asked what the elements of the defence might be and who bears the onus of proof. 1. The elements for officially induced error are pretty self-evident. The Supreme Court of Canada described it in R v Jorgenson [1995] 4 SCR 55 in the following terms:
In order for an accused to rely on an officially induced error of law as anexcuse, he must show, after establishing he made an error of law (or of mixed law and fact), that he considered his legal position, consulted anappropriate official, obtained reasonable advice and relied on that advicein his actions. When considering the legal consequences of his actions, itis insufficient for an accused who wishes to benefit from this excuse to simply have assumed that his conduct was permissible. The advice camefrom an appropriate official if that official was one whom a reasonable individual in the position of the accused would normally considerresponsible for advice about the particular law in question. If an appropriate official is consulted, the advice obtained will generally be presumed to be reasonable unless it appears on its face to be utterly unreasonable. The advice relied on by the accused must also have been erroneous, but this fact does not need to be demonstrated by the accused. Reliance on the official advice can be shown by proving that the advice was obtained before the actions in question were commenced and by showing that the questions posed to the official were specifically tailored to the accused's situation.
2. The position of the onus of proof is a little more complex. It depends on whether the criminal proceedings are bought as indictable or summary offences: - If bought indictably, the orthodox burden of proof applies, that is, the defendant need only make the defence a live issue by pointing to evidence in support of it; the prosecution then bears the onus to prove beyond reasonable doubt that the defence is not made out. - If bought as a summary proceeding, section 67(8) of the Summary Proceedings Act applies and the defendant bears the onus of establishing the defence on the balance of probabilities.

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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