18 October 2006

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.

1 comment:

Anonymous said...

It's catch all over-kill and it is clearly to be superceded by new legislation introduced and enacted before the end of 2007.

The reason for the backdating before 2000, is possibly an attempt to secure government from any legal consequence from the Darnton court case, something to which a Speakers' ruling could not speak.

I wonder if the Maori Party spots a similarity here to F and S?

Clearly the right wing print media has added blanket opposition to tax funding of political parties as a new right wing bottom line alongside their to their universal support for tax cuts.

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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