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.

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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