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.


Graeme Edgeler said...

I've skimmed the reports, and will probably read them in greater detain soon, but my first thought is to wonder what you consider of this statement of Michael Cullen's to the House this afternoon:

"I emphasise that if Mr Brownlee cares to read the reports, he will discover what I have already been advised by Treasury and Crown Law. That is, that repayment—whether or not it occurs—is irrelevant to the issue of the expenditure being unlawful in the first place, and validation has to occur; it is the only means of remedying the unlawfulness."

A couple of points:
1. I hadn't realised that Treasury or Crown Law could require Parliament to do anything.
2. Given that they can't, what happens if Parliament doesn't pass validating legislation?
[I suspect if validating legislation fails - i.e. is voted down then we have a new election, but the Government would have lost a vote on an appropriation - but what happens if none is introduced? The spending will be unlawful, repaid or not, what what does this mean?

Anonymous said...

I too am very interested in the issues Graeme raises. A post of point two in particular would be very interesting.

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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