17 October 2006

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 ]

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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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