31 December 2007

New Zealand Order of Merit (Titular Titles) Bill: My New Year Honours List

> LAWS179: "New Zealand Order of Merit (Titular Titles) Bill" > LAWS179: "Queen's Birthday Honours" My New Year Honours List for 2008: Principal Companion of the Order Dame Malvina Major, PCNZM DBE Distinguished Companions of the Order Ta (Sir) Edward Durie, DCNZM Sir Peter Gluckman, DCNZM, CNZM Dame Margaret Shields, DCNZM, QSO, JP Sir Peter Siddell, DCNZM, QSO Sir Kenneth Stevens, DCNZM. For the reasons I've previously outlined, I favour the retention of titular titles under our indigenous system of honours. My draft Bill provides for the restoration of titular titles, including Te Reo equivalent appellations. > New Zealand Order of Merit (Titular Titles) Bill [pdf] Compare the list above (with titular titles) to the list in the papers today. The inclusion of the titular title is more prestigious and commensurate with the honour being awarded. Most Kiwis would have been aware that Dame Malvina Major had previously been honoured because of the appellation she is entitled to use. But the new Distinguished Companions will not get similar recognition.

20 December 2007

Boy-racers and executive road closures

> CCC: "Police identify roads for boy racer ban" > ThePress: "Approval for mayor's boy racer ban" > ThePress: "End of the road for boy racers?" > LAWS179: "Boy-racers and bylaws again" > LAWS179: "Boy-racers and bylaws banning cars on roads" No, no, no! I have serious concerns about the proposed use of mayoral executive power to close roads frequented by boy-racers. It's another attempt to use provisions intended to address one particular mischief for the purposes of addressing other problems. In my view, the ban is dubious and likely to be unlawful for a number of reasons. The relevant provision is s342 of the Local Government Act 1974 and the related Schedule 10:

s342 Stopping and closing of roads (1) The council may, in the manner provided in Schedule 10 to this Act,— (a) Stop any road or part thereof in the district: Provided that the council (not being a borough council) shall not proceed to stop any road or part thereof in a rural area unless the prior consent of the Minister of Lands has been obtained; or (b) Close any road to traffic or any specified type of traffic (including pedestrian traffic) on a temporary basis in accordance with that Schedule and impose or permit the imposition of charges as provided for in that Schedule. Schedule 10 … Temporary prohibition of traffic 11The council may, subject to such conditions as it thinks fit (including the imposition of a reasonable bond), and after consultation with the Police and the Ministry of Transport, close any road or part of a road to all traffic or any specified type of traffic (including pedestrian traffic) (a) While the road, or any drain, water race, pipe, or apparatus under, upon, or over the road, is being constructed or repaired; or (b) Where, in order to resolve problems associated with traffic operations on a road network, experimental diversions of traffic are required; or (c) During a period when public disorder exists or is anticipated; or (d) When for any reason it is considered desirable that traffic should be temporarily diverted to other roads; or (e) For a period or periods not exceeding in the aggregate 31 days in any year for any exhibition, fair, show, market, concert, film-making, race or other sporting event, or public function: Provided that no road may be closed for any purpose specified in paragraph (e) of this clause if that closure would, in the opinion of the council, be likely to impede traffic unreasonably. ... 12 The powers conferred on the council by clause 11 (except paragraph (e)) may be exercised by the Chairman on behalf of the council or by any officer of the council authorised by the council in that behalf. … 14 Where a road is closed under clause 13 of this Schedule, an appropriate notice shall be posted at every entry to the road affected, and shall also be published in a newspaper circulating in the district. 15 A copy of every resolution made under clause 13 of this Schedule shall, within 1 week after the making thereof, be sent to the Minister of Transport, who may at any time, by notice to the council, disallow the resolution, in whole or in part, and thereupon the resolution, to the extent that it has been disallowed, shall be deemed to have been revoked. 16 No person shall— (a) Use a vehicle, or permit a vehicle to be used, on any road which is for the time being closed for such vehicles pursuant to clause 11 of this Schedule; or (aa) Without the consent of the council or the promoter of any activity permitted by the council, enter or attempt to enter, or be present, on any road or part of a road that is for the time being closed to pedestrian traffic pursuant to clause 11 of this Schedule; or (b) Use a motor vehicle, or permit a motor vehicle to be used, on any road where its use has for the time being been prohibited by a resolution under clause 13 of this Schedule.

(The Police have a similar temporary closure power under s342A.)

My main concerns are as follows:

There is a real question about whether the Council or Mayor has jurisdiction to make an order in these circumstances. That is, whether "public disorder exists or is anticipated".

First, there is the legal question of what amounts to public disorder. Generalised terms such as disorder(ly) are always complex terms to interpret. For example, the Supreme Court in R v Brooker [2007] 3 NZLR 91 spend some time exploring the meaning of the phrase "disorderly behaviour" in the context of section 4 of the Summary Offences Act 1981 (the majority finding, in general terms, that "disorderly behaviour" is behaviour disruptive of public order not personal sensitivities; simply causing annoyance to someone else, even serious annoyance, is insufficient if public order is not affected, even if annoyance takes place in public"). I'm not aware of the term "public disorder" being considered in the context of section 342 though.

Secondly, there is the factual question of whether these incidents qualify. While there may be some incidents associated with boy-racers which might readily qualify as public disorder (ie the large gatherings of crowds with violent behaviour, etc), I seriously doubt that the general activities of boy-racers will qualify.

(As an aside, often these factual assessment of local authorities are according a degree of deference or latitude. However, in these circumstances, with the decision being made by unilaterally by one official and being made under an operational – not policy – provision, I'm not convinced that such deference would be accorded.)

In any event, there is a residual lawfulness question. Even if on the text of the statute this power might be available in these circumstances, the action may still be unlawful if it is used for an "improper purpose", that is, for a purpose other than that contemplated by the legislation. There's a question in my mind about whether using these provision to address the (so-called) "urban terrorism" of boy-racers is within the purpose of the regulatory provisions of this part of the Local Government Act 1974. Parliament have deliberately passed a number of initiatives dealing with the boy-racer problem, but none of them allow this type of regulation; if Parliament had intended that local authorities have the power to close roads to deal with boy-racers, one might have expected they would have expressly said so. But it didn't.

Then there is the question of compliance with the Bill of Rights, because closing roads prima facie affects people's freedom of movement under section 18. (As an aside, the closing of roads not only affects the rights of boy-racers, but also other "law abiding" citizens!) The use of this power does not circumvent the need to consider the Bill of Rights implications. The legislation confers a discretion. Administrative discretion must be exercised consistently with the Bill of Rights; if it is not, then that action is unlawful.

Earlier this week I commended the (then) analysis of the City's lawyers about the Bill of Rights implications associated with the similar regulation by way of bylaw (the lawyers suggesting that there were serious questions, particularly if major roads were closed). Regrettably, that analysis does not seem to have been applied here - no credible reason has been given by the Council about why or how that implications have been resolve. In my view, these failures create the potential for the ban to be invalidated on Bill of Rights grounds.

As an aside, the fact that they intend the police to use their discretion and judgement about who may lawfully or unlawfully use the roads throws up further Bill of Rights and Rule of Law concerns, potentially leading to the indiscriminate exercise of the power and a lack of even-handedness in its application. Against the backdrop of a common law right to pass and re-pass on roads and the codified freedom of movement in the Bill of Rights, the failure to articulate who may lawfully use the roads is quite problematic and may be an unlawful delegation of legislative power.

Notably, there is some human rights jurisprudence which suggests conferral of such discretion breaches the requirement in section 5 of the Bill of Rights that requires limits on rights be "prescribed by law". Personally I don't buy the argument that conferral of any discretion means the limit can never prescribed by law and justifiable. I tend to agree with Butler and Butler who suggest it is necessary to consider "whether the area being regulated is such that it is open to abuse and arbitrary government action if the circumstance in which the discretion should be exercise are not detailed in law". I would suggest that this problem arises here, particularly as, if this regulation was enacted by bylaw, everyone would expect the exception discretion be clearly articulated.

Finally, I have some questions about how the ban is going to be enforced, given it is not being enacted through bylaws. I spent some time trying to find the offence the Police say arises if boy-racer drive on roads closed under the LG Act 1974. I'm not convinced there is an offence which is directly committed by drivers who do so (but with myriad of road user rules etc, I may have missed it!):

  • Clause 16 of the Schedule 10 of the LG Act 1974 prohibits people from driving on closed roads ("No person shall … [u]se a vehicle, or permit a vehicle to be used, on any road which is for the time being closed for such vehicles pursuant to clause 11 of this Schedule; or [w]ithout the consent of the council or the promoter of any activity permitted by the council, enter or attempt to enter, or be present, on any road or part of a road that is for the time being closed to pedestrian traffic pursuant to clause 11 of this Schedule…").
  • However, the legislation does not specify that breaching that prohibition amounts to an offence. Notably, the provision which converts breaches of the Act into offences, section 697, has been repealed, (Default in compliance with Act, or direction given pursuant to Act (Repealed): (1)Where by or under this Act any act is directed to be done or is forbidden to be done, … and the act so directed to be done remains undone, or the act so forbidden to be done is done, the person making default as to the direction or prohibition commits an offence against this Act."). As no penalty has been specified, a $500 maximum penalty would apply. But this does not arise if no offence has been created.
  • Section 11 of the Transport (Vehicular Traffic Road Closure) Regulations 1965 makes it an offence to drive on closed roads, but that only applies to roads closed under those regulations, not those closed under the Local Government Act 1974.
  • The Transport Act 1968, Land Transport Act 1998, and Land Transport (Road User) Rule 2007 do not appear to contain directly relevant offences.
  • Sections 13 and 52 of the Land Transport Act 1998 require people to comply with directions given by enforcement officers given under that Act and make it an offence not to do so (maximum fine of $10,000). Section 113(1) allows enforcement officers to enforce the provisions of, amongst other things, the Local Government Act 1974. Arguably, an enforcement officer (constable) can direct boy-racers on a closed road not to drive on the road and then, if they fail to comply, prosecute them for failing to comply with their direction. (I think there's another provision which makes a failure to comply with a direction an imprisonable offence, thereby giving a right to arrest.)
  • There's provision in Schedule 1 of the Land Transport Rule: Traffic Control Devices 2004 for a "road closed" sign. And from what I can discern, it looks like Rule 3.1 of the Land Transport (Road User) Rule 2007 makes it an offence to fail to comply with an instruction on a sign. However, again, it's difficult to identify a particular offence provision and penalty. Arguably, s30 of the Land Transport Act 1998 might apply, but I can't identify any applicable penalty.

Since drafting the analysis above, I spoke to a police officer in Christchurch who indicated the view was that the relevant offence provisions were ss238(1) and 242(2) of the LG Government Act 2002. I've looked at that but I think there's a fundamental flaw. Section 238 provides:

s238 Offence of failing to comply with Act(1) Every person who acts contrary to, or fails to comply with, a direction or prohibition given under this Act, or under an authority given to a local authority or to a member or officer of a local authority, commits an offence and is liable on summary conviction to the penalty specified in section 242(2).

But the problem is that the relevant prohibition is given under the LG Act 1974, not the LG Act 2002! I am also doubtful that the second "authority given" part applies generally to other Acts or, if it does, whether the power to close a road amounts to authority to prohibit (the authority to close and the legislative prohibition being separate). BTW, don't get me wrong. I have some sympathy for those experiencing any nuisance associated with boy-racers. However, in my view, it's paramount that the Rule of Law is followed when attempting to address this mischief. And if the present law just doesn't fit, the answer lies in seeking more appropriate powers from central government, laws which properly are scruntinised for their compliance with basic common law and human rights principles.

18 December 2007

NZ Centre for Public Law Public Lecture: "The United States as a Democratic Ideal?"

Public Lecture 12.30-1:30pm Wed 19 December 2007 Lecture Theatre 4 Government Buildings "The United States as a Democratic Ideal?" Professor KK DuVivier, Associate Professor, Sturm College of Law, University of Denver » More Information

TV3, opinion polls and calculating the seats

> 3News: "Poll: Labour and Greens out, National in" Below is a self-explanatory letter to TV3 about their recent public opinion poll item:
From: Dean Knight Sent: Tue 18/12/2007 7:22 p.m. To: mark.jennings@tv3.co.nz; duncan.garner@tv3.co.nz Subject: Poll: Labour and Greens out, National in Kia ora I am writing about your recent item, "Poll: Labour and Greens out, National in" broadcast on 3 News at 6pm on Sunday 16 December 2007. It reported the results of the most recent TV3 / TNS poll. The party vote figures reported in the item were as follows: - National 51.0% - Labour 36.0% - Green Party 4.8% - NZ First 2.2% - Maori Party 2.8% - ACT 0.9% - United 0.7% The item then translated the above percentages into seats the following seats in Parliament: - National 67 - Labour 47 - Maori Party 4 - United 2 - ACT 2 - Progressive 1 - TOTAL 123. Although the assumptions were not made clear, it is apparent that the computation assumed that, for minor parties, existing electorate seats would be retained (ie Maori Party 4, United 1, Progressive 1, ACT 1). The translation of those figures into seats in Parliament, however, appears inaccurate. When those same figures are inputted in Elections' MMP calculator, the results are as follows: - National 67 - Labour 47 - Maori Party 4 - United 1 - ACT 1 - Progressive 1 - TOTAL 121. Accordingly, this item appears to have an significant error, and is therefore in breach of Standard 5 of the Free-to-air Television Code. I suggest the inaccuracy be corrected at the earliest opportunity. To the extent necessary, please treat this as a complaint under Part 2 of the Broadcasting Act 1989. Regards Dean Knight

The Lobbies and Fighting in Public

> DomPost: "Mallard pleads guilty to fighting charge" > LAWS179: "Parliamentary privilege and the fracas in the lobby" I see Trevor Mallard has pleaded guilty to a charge of fighting in a public place under the Summary Offences Act 1981. Although the guilty plea is understandable to resolve the prosecution, it's interesting to look at the offence. I can't see how the charge would have been made out, because the Lobbies of the House surely don't qualify as a "public place"?
s7 Fighting in public place Every person is liable to a fine not exceeding $1,000 who fights in a public place.

2 Interpretation Public place means a place that, at any material time, is open to or is being used by the public, whether free or on payment of a charge, and whether any owner or occupier of the place is lawfully entitled to exclude or eject any person from that place; ...

As a member of the public, have you ever tried to walk into the Lobbies while Parliament is sitting? I don't think so!

> Parliament: "Ayes Lobby" (Picture)

Pōwhiri and Human Rights: A Contest of Values?

I was recently in Australia working on an address on this issue, which I presented at "Markings: sites of analysis, discipline, interrogation", the 24th Annual Law and Society Association of Australia and New Zealand conference at the University of Melbourne Law School.
Below is a link to my speaking notes:
Dean R Knight, "Pōwhiri and Human Rights: A Contest of Values?" 
It's not a fully-fledged paper, but it will give you some flavour of my present thinking. I'm presently working on completing a fully referenced paper.
And, as usual, feedback is welcomed!

Boy-racers and bylaws again

> ThePress: "Police sought ban for boy-racer hot spots" I've previously commented on Christchurch City's moves to close roads because of boy-racer concerns, largely raising jurisdictional concerns about whether it's legal possible to do so: >LAWS179: "Boy-racers and bylaws banning cars on roads" Putting those concerns aside for one moment, it's encouraging to see the City is genuinely grappling with Bill of Rights implications, namely whether a ban might unreasonably affect people's freedom of movement:
Council staff are compiling a report for councillors on ways to tackle boy racers in McLeans Island Road, but a car ban could prove difficult as it may violate the Bill of Rights Act. ... Banning cars is a problem on a main route like McLeans Island Road as it is more likely to violate the right to freedom of movement enshrined in the act than a ban on a minor road. Council solicitor David Rolls said a ban would be considered, but it had to be looked at carefully to avoid a legal challenge. "You have to consider if it is a reasonable intrusion on the freedom of movement, and the more well-used the road is, the greater the intrusion on freedom of movement," he said. "You have to weigh that against other competing factors and weigh up if the intrusion is warranted, given the mischief you are attempting to remove." Rolls would write a legal opinion on ways to deal with the McLeans Island Road problem for a February council meeting. The Manukau City Council has banned cars on 160 streets, including about five main roads. Manukau traffic engineer Bruce Conaghan said the ban could be imposed on main roads without violating the Bill of Rights Act. "We are not being restrictive on those that are carrying out something that is legal. The Christchurch council is in a good position to include those roads in their bylaw," he said.

It's always important to remember that the Bill of Rights does not provide a blanket restriction on regulation which affects people's freedom of movement. Limits are permissible if they are demonstrably justified in a free and democratic society, generally treated as insisting that the limits are proportionate to their objective.

The comments from the City's solicitor seem to be heading in the right direction and indicate they are testing carefully regulation by applying this proportionality calculus. In contrast, the comments of the Manukau City engineer demonstrate a complete lack of appreciation of the Bill of Rights.

I look forward to seeing how this issue plays out when it comes to Council in February next year.

20 November 2007

Electoral Finance Bill, new media, and megaphones - Part 2

> LAWS179: "Electoral Finance Bill, new media, and megaphones" I've reflected on the wording and taken account of some comments. I now wonder whether the better approach is to amend paragraph (g) entirely:
cl 5 Meaing of election advertisement... (2) The following publications are not election advertisements: ... (g) the publication by an individual, on a non-commercial basis, of his or her personal political views via the following means: (i) a post or comment on a weblog, newsgroup, or internet forum; (ii) oral or similar symbolic communication, where the speaker and principal recipients are physically in the same place and the identity of the person making the statement is readily apparent, such as person-to-person conversations, public rallies or forums; (iii) written communication that is only published or communicated to other people while the person responsible for the words or graphics is physically present, such as the display of placard; and (iv) electronic messages (as defined in the Unsolicited Electronic Messages Act 2007) where the sender and recipient are personally known to each other.

The governing qualification is the expression of personal political views, while the means tries to convey the circumstances in which those views might be communicated without amounting to de facto campaigns.

Electoral Finance Bill, new media, and megaphones

- KiwiBlog: "Definition of third party election advertising"
KiwiBlog: "Disclosure Requirements"

David Farrar has been making a big deal about the potential of the new definition of "advertisement" in the Electoral Finance Bill and the possibility that it requires people holding placards, megaphones, or writing in chalk on the street to disclose their name and address. I'm presently in Australia and haven't had a chance to analyse the minutiae of this issue but I think his concerns are a bit of a storm in a teacup and/or can be addressed by a simply minor amendment:

1. I'm not convinced this is a sinister move by the government. I read it as simply an attempt to apply existing rules and principles to "new media". The recent Australian election has illustrated how the parties are now recognising the value of spreading their message beyond existing media, particularly with the view to capturing the youth vote. Blogs, YouTube, Facebook, viral emails and texts. Now, it seems entirely proper for the government to close this loophole to ensure an even-playing field. The existing 1993 definition just doesn't do. A broader definition of advertisement is needed. Hence the new definition.

2. Farrar is correct that, on its face, the new definition would seem to capture megaphones, chalk on the pavement, and placards. But I'm not convinced that a court would necessarily hold that such speech would be covered. Legislation needs to be interpreted "in the light of its purpose", including any other contextual indications in the legislation (s5, Interpretation Act 1999) . Any sensible purposive interpretation would hold that holding a placard or shouting through a megaphone would not be an advertisement for this purpose. The purpose of the regime is transparency. Personal advocacy where one's identity is readily apparent doesn't need the same disclosure regime as billboards, newspaper adverts, and TV ads. I would expect that the courts would interpret the provisions accordingly in the unlikely event that those policing the regime actually cared about the conduct enough to prosecute. (On chalk on the pavement, I'm not convinced that this is materially different to other adverts to require an specific exception; it's written speech similar to billboards where the identity of the advocate is not known; it's probably then a good thing that disclosure is require for this speech.)

3. That said, there is some merit in the reasonably comprehensive definition providing some certainty about this. It's possible to include further exceptions to the definition to make this clear.
5 Meaing of election advertisement ... (2) The following publications are not election advertisements: ... (h) oral communication in person or similar symbolic communication, where the identity of the person making the statement is readily apparent; (i) written communication that is only published or communicated with other people while the person responsible for the words or graphics is physically present; and (j) electronic messages (as defined in the Unsolicited Electronic Messages Act 2007) where the sender and recipient are personally known to each other.
I'm not sure how this proviso works with the balance of the Bill but it seems to exclude those extreme scenarios that some folk seem to be beating up on.

UPDATE (20/11/2007): Suggested wording now tweaked to fit within s5(2).

UPDATE (21/11/2007): I should, of course, have also mentioned in my analysis of the definition that a narrower, commonsense interpretation of the definition is also mandated by ss6 and 14 of the Bill of Rights, as well as traditional purposive interpretation. As the regulation prima facie breaches expressive rights, the courts are directed to apply the least restrictive tenable meaning that an ambiguous provision can be given, ala the Hopkinson flag-burning case.

6 November 2007

Public Lecture: "Brand G: regulating government advertising

I suspect some folk might be interested in this upcoming public lecture, to be hosted by the NZ Centre for Public Law:

"Brand G: regulating government advertising in New Zealand and Australia" Dr Graeme Orr, Associate Professor, TC Beirne School of Law, University of Queensland 12.30-1:30pm, Monday 12 November 2007 Lecture Theatre 3, Government Buildings, 15 Lambton Quay, Wellington > More Information

Pen Portrait: 16 questions from me...

I know one of the claimed benefits of blogging is the ability to be anonymous. However, I think I may have well and truly lost that opportunity by being profiled recently on GayNZ.com: > GayNZ.com: "Hall of Fame: Victoria Uni law lecturer Dean Knight" *sigh*

5 November 2007

Christchurch City, New Civic Building: Council Report

> LAWS179: "Christchurch City, Council offices, and (un)constitutionality" As a result of a LGOIMA request, I have now obtained a copy of the report to Christchurch City Council on the 11th hour decision about its new offices: > CCC: "New Civic Building - Site Selection"

Some information was blanked out, although the parts omitted appear orthodox.

I haven't yet worked through the report and how it measures up against the decision-making obligations under the LG Act 2002 (the financial and governance arrangements are quite complicated). However, a couple of points are readily apparent:
  • Apart from a desire "to meet the intent of the Council that this issue be reported back in this term of Council", there is nothing in the written report that suggests that the matter was urgent such that the decision needed to be made prior to the election.
  • In terms of the assessment of significance, the report accepts that the proposal itself is significant but relies on the previous provision for the project in the LTCCP to avoid further public consultation. In terms of whether the new proposal gave rise to an obligation to reconsult the community because it was materially different from the project in the LTCCP, the critical conclusion is that the "change to 50% ownership of Tuam 2 Ltd by the Council is not significant for the purpose of Section 80". Intuitively, this conclusion seems vulnerable - but I'm seeking more information to see the analysis.

More thoughts once I've worked through the issue.

2 November 2007

The Electoral Finance Bill, Parliamentary privilege, and the Bill of Rights

> KiwiBlog: "The battle against the Electoral Finance Bill goes legal" I've posted on comments elsewhere on prospect of a challenging the failure of the Attorney-General not to adversely report the Electoral Finance Bill under the Bill of Rights. In short, it's doomed. This type of challenge has long been rejected. In Mangawhero Enterprises Ltd v Attorney-General [1994] 2 NZLR 451, Gallen J confirmed an alleged failure to report on Bill of Rights inconsistencies could not be challenged in Court:
“In my view, the obligation imposed upon the Attorney-General and his response or lack of it to that obligation, can properly be described as a part of the proceedings in Parliament and therefore encompassed by Article 9 of the Bill of Rights 1688. … In the end it seems to me that the most significant aspect of this case is the fact that the prime safeguard upon which the plaintiffs rely, that of the obligation on the Attorney-General to report, is in my view a procedural consideration designed to ensure that Members of Parliament are fully aware of the consequences of the passing of a particular Bill as proposed. Members of Parliament are there as representatives of the community at large and in the absence of some entrenched Constitutional provision, it seems to me that the Court would be usurping the authority of the legislature if it endeavoured to substitute its own opinion of the legislation proposed.”

That said, I've always been attracted to the reform of the section 7 reporting role. I think it's one of the most important aspects of the Bill of Rights. I think we could semi-entrench the Bill of Rights by, in part, mandating the present constitutional dialogue model.

That is:

1. Legislation which is inconsistent with the Bill of Rights which has previously been reported to Parliament before it was passed is protected by section 4 and cannot be overturned.

2a. Legislation which is inconsistent with the Bill of Rights which has not previously been reported to Parliament can be subject to a declaration of inconsistency.

2b. The declaration is automatically suspended for, say, 6 months for Parliament to consider it.

2c. If Parliament subsequently endorse the inconsistency, then the legislation is protected by section 4 and cannot be overturned.

2c. If Parliament fails to endorse the inconsistency, then the legislation is not protected by section 4 and can be quashed (in the same manner as in jurisdictions with fully entrenched bills of rights).

The underlying principle is that Parliament ought to expressly consider and endorse non-compliance with the Bill of Rights. If it does though, then the legislation should prevail.

1 November 2007

Parliamentary privilege and the fracas in the lobby

I've been wondering whether the police have any jurisdiction over the fracas between Mallard and Henare in the lobby of the Chamber and also whether the private prosecution amounts to a breach of parliamentary privilege or is a contempt of Parliament. I've had a brief look at the issue and have so far reached the view that it's arguable – but by no means certain – that the incident is part of the proceedings of Parliament and therefore covered by parliamentary privilege. - The starting point is article 9 of section 1 of the Bill of Rights 1688 (along with the associated s242(1) of the Legislature Act 1908 which preserves the broader parliamentary privilege):
"That the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament."

- As McGee says, this protects "'proceedings in Parliament' from external review" (McGee, p620) and means that "[c]onduct in parliamentary proceedings cannot be the foundation of legal liability, either criminal or civil…" (McGee, p 626). - It is arguable that the incident falls within the rubric of proceedings in Parliament. This terms is not defined in NZ. In Australia, it has been defined as "all words spoken and acts done in the course of, or for the purposes of or incidental to, the transacting of the business of a House or of a committee…" (McGee, p621). In any event, it is clear it include "words or deeds" (Joseph, p400) and is not restricted to the proceedings within the Chamber itself. Joseph suggests that privilege "will protect communications between members, or between members and Ministers of the Crown, if they relate to the proceedings in Parliament" (Joseph, p403). Accordingly, there's a strong case for arguing that the fracas in the lobby relating to words expressed in the Chamber would be treated a part of the proceedings of Parliament. But this is the critical issue in this analysis.- I should note that McGee says that the "principle of exemption from legal liability from parliamentary conduct does not mean that criminal acts are exempt from prosecution merely because they are committed in a parliamentary environment" (McGee, p619) and gives a number of examples of where criminal conduct by people in the galleries or in the grounds may be subject to criminal sanction. However, the assumption underlying that statement is that the conduct in question is not part of the proceedings of Parliament, which – as noted above – is arguably not the case here. - Assuming the acts are part of the proceedings of Parliament, then the filing of charges based on them would involve the questioning of parliamentary proceedings and would be a breach of privilege. There are various possible consequences. The prosecution may fail due to a lack of jurisdiction (and/or the Speaker may intervene in the proceedings to protect the privilege). The Parliament may elect to waive the privilege in this case. The prosecution may amount to contempt of Parliament. - Of course, that does not mean the members are exempt from responsibility. It's just that Parliament itself is responsible for dealing with the behaviour. But the processes surrounding that have been covered by other commentators. As an aside, I should note that Standing Order 42 makes it clear that the Speaker has authority over admission to, and conduct in, the lobbies generally (McGee, 129). It will be interesting to see how this case plays out. As usual, comments and feedback welcomed.

UPDATE (2.11.2007):

A colleague of mine has referred me to the English "Bible" on parliamentary privilege, Erskine May's Treatise on the Law Privileges, Proceedings and Usage of Parliament. It makes the point - one that I accept - that simply because the act occurs within Parliament does not mean it is privileged:

There [is] no precedent for the House's affording Members any privilege on the sole ground that their activities were within the Palace...

However, as they note, the question remains open:

[T]hough the Bill of Rights will adequately protect a Member as regards criminal law in respect of anything said as part of proceedings in Parliament, there is more doubt whether criminal acts committed in Parliament remain within the exclusive cognizance of the House in which they are committed. In the judgement of the House of Lords in Eliot's case [[1883-84] 12 QBD 283], it was deliberately left an oepn question about whether the assault on the Speaker might have been properly heard and determined in the King's Bench. .... In Bradlaugh v Gosset, Stephen J said that he 'knew of no authority for the proposition that an ordinary crime committed in the House of Commons would be withdrawn from the ordinary course of criminal justice'. ... Apart from Eliot's case over 350 years ago, no charge against a Member in respect of an allegedly criminal act in Parliament has been brought before the courts. Were such a situation to arise, it is possible that the House in which the act was committed might claim the right to decide whether to exercise its own jurisdiction.

I think this is consistent with my analysis above.

Improving our local democracy

> KiwiBlog: Improving Local Body Election Turnout One of the things I have been reflecting on is how we might be able to improve public consciousness of, and participation in, local democracy. Some people have made some suggestions and I thought I should outline some of my thoughts. 1. Local body amalgamations I'm not convinced that our present local authorities reflect our present communities of interest, eg, I suspect that some folk on the North Shore identify more with Auckland City than they do with their home city. And, the fragmentation leads a lot of unnecessary duplication and reinvention of the wheel, particularly on the administrative – rather than political – side. I suspect too that bigger local authorities would attract a different calibre of politicians and officers. I've previously suggested a model which proposes amalgamation of some territorial authorities and regional councils, while still preserving local level representation through statutorily mandated community boards: > LAWS179: "Structure of Local Government" It's also possible that the local authorities and DHBs could be merged until this model. If the sub-national entity model is retained, there's a good case for removing the duplication once again. And the purposes of each are not inconsistent: "promot[ing] the social, economic, environmental, and cultural well-being of communities" and "improvement, promotion, and protection of [New Zealander's] health". Under my proposed model, citizens would have then vote for the following: - Mayor; - Local authority councillors in their "ward" / community board area (eg, say, 2 each for southern Wgtn, central Wgth, northern Wgtn, Porirua, Lower Hutt, Upper Hutt, and Kapiti); - Community board members (eg, say, 6 or 8 members for the community board / ward, with the 2 councillors automatically sitting on the community board). That's it – nice and simple! 2. Prescribed "trifecta" STV electoral system The plurality of electoral systems concerns me. In my area the delineation of both was poor (why couldn't they put them on dramatically different paper, ie pink and green, rather than "off-white" and "off-cream"…?!?) and there seems to be confusion arising from different methods being adopted. The benefits of STV in this area are reasonably well-known so I won't go into them – apart from hypothesizing that Banks would not have been elected in Auckland if they had had STV (it avoids the problem of two strong alternative candidates splitting the vote). As an aside, I think the claims made that the purported problem of STV taking longer to count – made I think by Mayor Prendergast – are spurious. Of course, STV does not allow early progress reports because it requires that all votes be counted before the computation is made. If that means that results aren't known until 10pm on polling day, then so be it. That's hardly a serious delay. And, even if it was a couple of days, so what – the system is fairer than FPP. I would make STV compulsory for all local authorities. The only variation I would suggest is trifecta voting, that is, you only rank up to 3 candidates. There's no need to rank anymore. I think people have been put off by the thought of ranking a long list of people. There's probably some marginal loss of precision, but I suspect that people's preferences are strongest in relation to their first few rankings. 3. Voting method I fully support a move to internet voting, although I think that a combination of voting methods is needed to ensure that non-internet savvy folk are not disenfranchised. That is, internet voting along with booth voting. Recent experience with the census demonstrates that the system is attractive to the public and sufficiently robust to be reliable. It's interesting to see that the Local Electoral Act 2001 presently allows for different voting methods, including internet voting:
s 5 Interpretation voting method means any of the following methods of voting that are prescribed for use at an election or poll: (a) the method of voting commonly known as booth voting: (b) the method of voting commonly known as postal voting: (c) any form of electronic voting: (d) any method of voting involving a combination of more than 1 of the methods of voting referred to in paragraphs (a) to (c): (e) any other method of voting (however described)
s36 Voting method for elections and polls (1) Every election or poll conducted for a local authority must be conducted using 1 or more methods of voting adopted by resolution of the local authority— (a) for the purposes of a particular election or poll; or (b) for the purposes of more than 1 election or more than 1 poll, or both, that are to be conducted at the same time. (2) If an election or poll is to be conducted and there is no applicable resolution under subsection (1), that election or poll must be conducted by postal voting. …

However, although the Act allows electronic voting, the Minister has presently only prescribed posting and booth voting in the Local Electoral Regulations 2001:

reg 9 Authorised voting methods The voting methods that may be used at an election or poll are— (a) postal voting; or (b) booth voting; or (c) a combination of booth voting and postal voting.

The upshot is that electronic voting does not require any law change by Parliament but would need the Department of Internal Affairs to do some work about the mechanics of the system and the Minister to amend the regulations accordingly. 4. Shorter election period I'm concerned that local elections lack the necessary crescendo to inspire the interest of the public. This arises, in part, from the reliance on posting voting which has a 22 day voting period. I think there's some value in substantially reducing the period, by adopting a combination of internet and booth voting. My suggestion is for 2 or 3 day voting period, say, 9am Thursday to 5pm Saturday. As an aside, this would also avoid the egregious actions of Christchurch City making significant decision on the eve of the close of the voting period. See: > LAWS179: "Christchurch City, Council offices, and (un)constitutionality" Some thoughts there. As usual, comment and feedback welcomed.

25 October 2007

Local authority decision-making, community views, and Stadium Aotearoa

An article of mine has just been published in the New Zealand Law Journal:

Dean Knight, "Local authority decision-making, community views, and Stadium Aotearoa" [2007] NZLJ 354

Public participation in local authority decision-making has undergone somewhat of a renaissance, with the 2002 reform of local government legislation placing greater emphasis on "grass-roots" decision-making. There now seems to be greater understanding of the importance of community views to the decisions made by local authorities. And the range of participation processes employed by local authorities has grown: from traditional submission processes, to mechanisms such as public referenda, focus groups, and the like.

This change of culture brings with it greater frustration from the community when it feels shut out of decisions. A failure to consult may also present a new and more direct mechanism to attack a decision of the local authority. An example is last year's (ultimately aborted) proposal to construct a national sports stadium on Auckland's waterfront. The decisions – and the process by which the decisions were made – led to vociferous debate and polarised the city. The decisions also led to the one of the first direct challenges to a decision of a local authority under the decision-making processes and principles under the Local Government Act 2002 (LG Act 2002).

In this article, I describe and discuss the salient decision-making and consultation obligations that apply to decisions of local authorities and use the recent stadium selection decision to illustrate how they work. The purpose of the discussion is two-fold: first, to identify and navigate the complex decision-making framework for local authorities imposed in the recent reforms, and, secondly, to make some observations about the special circumstances which arose in the stadium selection decisions.


Much of the article is based on previous analysis on this blog:

Stadium Aotearoa: the injunction > Stadium Aotearoa: the long-term council community ... > Stadium Aotearoa - letter to Minister and the Mayo... > Stadium Aotearoa

As usual, feedback and comment welcomed.

24 October 2007

"Please step out of your vehicle so I can snap a photo..."

> CampbellLive: "Police defend Ruatoki roadblocks" The question of whether the Police had any power to photograph people stopped at road blocks in the big "terrorism" raid is interesting. My intuitive response was like many commentators: first, there is no express power to do so and therefore the action is unlawful; secondly, although consent would authorise the action, factually it's unlikely that real consent was present (the actions are generally tacitly coercive). However, I now wonder if it's more complicated than that. The relevant section is section 314C of the Crimes Act 1961:
s314C Powers incidental to stopping vehicles under section 314B (1) This section applies whenever a vehicle is stopped under section (2) Any member of the Police may do either or both of the following: (a) Require any person in or on the vehicle to state his or her name, address, and date of birth, or such of those particulars as the member of the Police may specify: (b) Require that the vehicle remain stopped for as long as is reasonably necessary to enable a statutory search power to be exercised. (3) This section does not limit or affect the exercise of any other power, whether express or implied, that is incidental to the applicable statutory search power.

(Section 314B provides a power to stop vehicles for the purpose of an authorise search.) Now, it's clear that there is no express authorisation to photograph in this context. But that might not be the end of the matter. There is High Court authority that has held that officers can rely on implied ancillary powers to authorise coercive action. In Jaffe v Bradshaw (1998) 16 CRNZ 122 the High Court ruled that the Serious Fraud Office was entitled to require interviews with interviewees to be videotaped, even though there was no express legislative power authorising the action. I must say I have some difficulties with the decision in Jaffe (a research student I am supervising is presently writing a paper on these issues) but it presently stands as a precedent for this approach. Adopting this approach though, it is arguable that the statutory scheme is capable of being read so as to implicitly authorise the taking of photographs for identification purposes. Section 314C is directed at identification of people stopped and photographing is related to this purpose. Further, section 314C(3) specifically addresses implied powers - expressly leaving them open to implication. (The counter argument might be that s314C addresses ancillary powers to s314B powers and it's contrary to the scheme of the legislation to imply further ancillary powers from the ancillary powers in s314C. That is, s314C(3) is directed at the implication of ancillary powers from the primary search power in s34B.) On the basis of the Jaffe case, an implied power to photograph appears open to argument (but I'm not saying that that necessarily means that the power will necessarily be found - the interpretative outcome is not clear). Of course, even if the power exists, it would be subject to limits - most obviously the requirement that it be exercised reasonably; but that's a different point.

12 October 2007

Christchurch City, Council offices, and (un)constitutionality

> ThePress: "Council and iwi in last-minute HQ deal" > ThePress: "New civic HQ good news for ratepayers" > ThePress: "Voters opposed to civic 'palace'" > CCC: "Christchurch City Council Agenda, Thursday 11 October 2007" At its final meeting of the year the Christchurch City Council voted to enter a $52M contract for new Council premises. The item was added to the Council agenda as a supplementary item at the 11th hour, without notice, and was discussed as a public-excluded item. In my view, this type of decision-making is egregious, arguably "unconstitutional", and may provide grounds for invalidating the election. Given the rapidness of this issue arising, I have not been able to undertake a complete review of the background to this decision. However, my understanding is as follows: - The issue of new premises for the Council has been a long-standing issue for Christchurch. - The Council has been searching for suitable premises for some time and has made some provision for funding this in its long-term council community plan (although, from a quick glance at the long term council community plan, the organisational arrangements for the funding of the premises seems rather complicated and involve other Council controlled organisations). Most recently, in June it widened the scope of its search, asking for the CEO to "report back" in September. - At yesterday's meeting, the Council resolved to enter into an agreement with Ngai Tahu in relation to the new premises, with a cost to the Council of around $52M. - The question of the new premises and the associated decision-making process have been major issues on the hustings. The upshot is that the Council has determined a matter of significant expenditure and public interest – without notice in a public-excluded meeting – less than 48 hours before the close of polling, some 19 days into the voting period. My initial thoughts are as follows: 1. The decision must be a breach of the principle in s14(1)(a) of the LG Act 2002 "(1)In performing its role, a local authority must act in accordance with the following principles ... a local authority should ... conduct its business in an open, transparent, and democratically accountable manner". Taking the decision at the end of the voting period removes any prospect of democratic accountability for the decision. Ratepayers have no ability to express their disapproval at the ballot box in the ordinary way. My concern is not principally directed at the lack of advance notice or public-excluded meetings (such measures are routine and often justifiable). That said, in this case, these measures exacerbate the lack of democratic accountability, particularly the lack of advance notice. Further, the grounds for invoking these measures are doing so appear dubious and weak. In particular, no explanation is provided for the late addition of the supplementary report apart from an assertion that it is "urgent" and cannot wait until the next meeting. The purported reason given by the Mayor on the radio – that is, it would take more time for new members to get up to speed on the issue –appears irrelevant and disingenuous. 2. Whether a breach of this principle gives rise to ground for legally challenging the decision is complicated and unclear. While compliance with the principle is mandatory, the principle is "high level" and the courts may have some reluctance in invalidating the decision because of such a breach. 3. There may also be more direct administrative law grounds under the general decision-making provisions to challenge the decision but I haven't yet had an opportunity to run the ruler over them. Initiatively, the nature of the decision-making would at least raise suspicions about non-compliance with those requirements. 4. In any event, the last minute decision may provide a ground for challenging the outcome of the election itself: a. Section 99 of the Local Electoral Act allows the District Court to void any election if there has been "any irregularity in any proceedings preliminary to the voting" and that irregularity has materially affected the result. The District Court in Aukuso v Hutt City Council [2004] DCR 322 gave a broad interpretation to the term "irregularity". It potentially includes improper conduct by the local authority which could influence the election or a breach of the principles in s 4 of the Local Electoral Act. b. In my view, the conduct of the Council is improper and arguably unconstitutional, largely for the reasons noted above. Although the existence of constitutional conventions in relation to local government is unclear, there is a strong case for arguing that there is (or, alternatively, should be) a convention that significant decisions should not be made by the local authority during the voting period. Otherwise, it undermines ratepayers voting rights. This is exacerbated by the fact that, I understand, people who have sought to change their vote today have not been allowed to do so. As central government has a specified polling day, and Parliament is formally prorogued, there is no direct comparator to the situation. However, there's some analogy to the caretaker government convention that says an outgoing government should not undertake any new policy initiatives. c. Further, a more direct challenge may be available, based on a breach of the principles in s 4 of the Local Electoral Act. Amongst other things, section 4(1)(b) sets out the principle that "all qualified persons have a reasonable and equal opportunity to… cast an informed vote". In my view, taking a significant decision such as this 90% of the way through a voting period undermines the ability of ratepayers to make an informed assessment about candidates. I think any reasonable person, stepping back from this issue and viewing it in the round, would be extremely concerned about the effect of such last-minute decision-making on the democratic process. That initiative assessment is often the best guide on its constitutional propriety. I doubt we've seen the last of this issue.

4 October 2007

"Gagging" of member by the Real Estate Institute

> NZHerald: "Real estate body's move 'bizarre'" The action of the Real Estate Institute of New Zealand to discipline The Joneses under its Code of Ethics for publicly criticising other agents publicly is not only bizarre, but - assuming the complaint is upheld - it's potentially unlawful. The complaint appears to be brought under rules 13.1 and 13.5 of REINZ's Code of Ethics:
13.1 Members shall always act in accordance with good agency practices, and conduct themselves in a manner that reflects well on the Institute, its members, and the real estate profession. … 3.5 Members shall never publicly criticise fellow members.
Now, if REINZ was simply a private organisation, it would be entirely capable of maintaining such a rule and disciplining members for breaching it – it would be a contractual term agreed to by private parties. However… REINZ is not entirely a private organisation. REINZ is a body recognised in Part 5 the Real Estate Agents Act 1976. All licensed real estate agents are required under the Act to belong to the institute. There is specific provision for the Institute to prescribe a Code of Ethics (s 70(1)(m)) and for the discipline of members for breaching the Code (s (70(1)(ma)-(o)). Interestingly, the Code of Ethics does not come into force until approved by the Minister of Justice (s 70(4)); I presume this means the government has previously approved the rule in the Code of Ethics being relied on in this case (which probably makes Clayton Cosgrove's complaints about "Keystone Kops stuff" a bit rich). In this capacity, it seems clear that REINZ is caught by section 3(b) of the NZ Bill of Rights, that is, its actions are "actions done by… any body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law". And, of course, orthodox administrative law principles as well, under the Datafin principle. For present purposes, the important consequence is that the rule in the Code of Ethics and actions in disciplining the member must, as a matter of law, be consistent with the Bill of Rights. Prima facie, the REINZ rules and actions would breach the freedom of expression in section 14:
"Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form."
Of course, the limitation of expressive rights may be justified under section 5:
"[T]he rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
That requires an assessment of whether, in general terms, the limitation of the right is "proportionate", namely whether the limitation is necessary, suitable, and appropriate. As the Court of Appeal in Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 said:
"In determining whether an abrogation or limitation of a right or freedom can be justified in terms of s 5, it is desirable first to identify the objective which the legislature was endeavouring to achieve by the provision in question. The importance and significance of that objective must then be assessed. The way in which the objective is statutorily achieved must be in reasonable proportion to the importance of the objective. A sledgehammer should not be used to crack a nut. The means used must also have a rational relationship with the objective, and in achieving the objective there must be as little interference as possible with the right or freedom affected. Furthermore, the limitation involved must be justifiable in the light of the objective. Of necessity value judgments will be involved."
While it is arguable there might be a legitimate governmental or public interest in preventing real estate agents from criticising each other, it is an extremely weak governmental imperative. Even if it could be argued that the rule might be seeking to advance a legitimate governmental objective, it seems clear that an absolute ban on any criticism goes well beyond what is necessary to achieve this objective and/or any productive benefits are far outweighed by its negative effects. The negative effect on the individual is obvious; further, there seems to be a broader public interest in allowing discussion about the propriety of practices within the real estate profession. Accordingly, in my view, the rule in the Code of Ethics is ultra vires or invalid. Even if the rule is valid, then the action of disciplining a member in these circumstances is likely to be invalid. First, there's a simple argument that the comments fall outside the rule, ie the comments were not publicly criticising fellow members; the comments were made about the industry as a whole. Secondly, for similar reasons as discussed above, disciplining members in these circumstances would seem to breach the Bill of Rights.

"Going missing" and wasting police resources

> DomPost: "'Missing' man may face police charges" I was interested to see this charge being used by the Police against Dormer(although I am still reflecting on its propriety in these circumstances). The offence is found in section 24 of the Summary Offences Act:

s 24 False allegation or report to Police Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who,— (a) Contrary to the fact and without a belief in the truth of the statement, makes or causes to be made to any constable any written or verbal statement alleging that an offence has been committed; o (b) With the intention of causing wasteful deployment, or of diverting deployment, of Police personnel or resources, or being reckless as to that result,— (i) Makes a statement to any person that gives rise to serious apprehension for his own safety or the safety of any person or property, knowing that the statement is false; or (ii) Behaves in a manner that is likely to give rise to such apprehension, knowing that such apprehension would be groundless.

The interesting thing about the offence is that it is one of "ulterior intent", that is, the behaviour in question ("going missing") is only unlawful if it is done with a particular state of mind (intending or being reckless as to causing wasteful deployment of Police resource). Proving this in these circumstances would require proof of one of the following: - Dormer's goal, purpose or desire was to cause the wasteful deployment of Police resources (unlikely); - Dormer can otherwise be treated as having intended to cause the wasteful deployment of Police resources, which as a minimum would require that he was aware or foresaw that it was "virtually certain" that going missing in those circumstances would cause the wasteful deployment of Police resources (possible; arguably this was virtually certain and would probably been foreseen by Dormer); - Dormer foresaw that that there was a risk that going missing in those circumstances would cause the wasteful deployment of Police resources and that risk was an unreasonable one to take, ie he was (subjectively) reckless (most probable). The important thing here is that he can only be convicted if he was, as a minimum, aware that there was a risk that Police resources would be wasted. If he didn't turn his mind to that or was honestly ignorant that the Police were seeking him (or the risk that they would be seeking him), he can't be convicted.

29 September 2007

Wellington City Council, IntensCITY and electoral influence

[Updated 1/10/2007] The present "IntensCITY" celebration being run by the Wellington City Council is a great idea and showcases our city's urban environment really well. The IntensCITY week "celebrates the vibrancy and cosmopolitan nature of life in Wellington, and how the City's investment in quality urban design contributes to that vibrancy." As Mayor Prendergast says:
"Wellington – it's the greatest little Capital in the world, and arguably the most advanced city for urban design in New Zealand. The vibrancy, diversity and buzz of Wellington are partly a result of our amazing geography of harbour and hills. The city's buzz is a result of good urban design – the network of quality public spaces the city enjoys as well as the buildings that front them and the way they are used.Good urban design allows our stunning city to sparkle and shine – and that's something worth celebrating!..."
But... the timing of the celebration is outrageous and, in my view, potentially unlawful. It falls right in the middle of the voting period, two weeks before the close of the local election. I am particularly concerned that, although the initiative is a Council campaign, it has the potential to influence the election or give the perception of Council expenditure being used to influence the election. It might not change the ultimate outcome – at least not in the contest for Mayor, which seems like a "one horse" race. But that's not the point. Local authority resources and initiatives – particularly such a major initiative – should not be used in ways that might influence the democratic process. First, the "celebration" of the city environment and its urban design has the potential to favour the incumbent Mayor and councillors. It is akin to a Council-sponsored publication of councillor accomplishments. Secondly, it deals with a political matter which is a live issue within the campaign, that is, the merits of "urbanisation". The positive vibe associated with urbanisation has the potential to influence voter support in favour of candidates supporting urban development of this kind. Thirdly, and probably the most objectionable element, the celebration is prefaced and commended by the Mayor. Now, this is entirely orthodox. But in the pre-election period, has the potential to give the impression of improper bias. This is exacerbated by the Mayor's use of her campaign slogan "The greatest little Capital in the world" in her introductory remarks in the celebration booklet. Improper activity like this has the theoretical potential to amount to an election irregularity that could invalidate the election. (The District Court in Aukuso v Hutt City Council [2004] DCR 322 gave a broad interpretation to the term "irregularity" and ruled that, amongst other things, the use of public funds by the council to mount a publicity campaign that was non-neutral and advocated one particular poll answer (in a local poll about STV) amounted to an irregularity; however, it did not invalidate the poll because, on the evidence before it, it was not satisfied that the irregularities materially affected the poll result.) There's also an argument - albeit a weak one - that the use of those words mean the remarks should not be treated as being given in her role as Mayor, should be treated as being remarks given as a candidate for Mayor, and therefore the (apportioned) value of the costs associated with the remarks in the booklet should be reported by the Mayor as her election expenses under s 109 of the Local Electoral Act 2002. The celebration appears to breach the Controller and Auditor-General guidelines on local authority communications during pre-election periods:

Good Practice for Managing Public Communications by Local Authorities (Controller and Auditor-General, April 2004)

COMMUNICATIONS IN A PRE-ELECTION PERIOD Principle 12 A local authority must not promote, nor be perceived to promote, the re-election prospects of a sitting member. Therefore, the use of Council resources for re-election purposes is unacceptable and possibly unlawful. 4.45 Promoting the re-election prospects of a sitting Member, directly or indirectly, wittingly or unwittingly, is not part of the proper role of a local authority. 4.46 A Council would be directly promoting a Member’s re-election prospects if it allowed the member to use Council communications facilities (such as stationery, postage, internet, e-mail, or telephones) explicitly for campaign purposes. 4.47 Other uses of Council communications facilities during a pre-election period may also be unacceptable. For example, allowing Members access to Council resources to communicate with constituents, even in their official capacities as members, could create a perception that the Council is helping sitting Members to promote their re-election prospects over other candidates. 4.48 For this reason, we recommend that mass communications facilities such as- Council-funded newsletters to constituents; and - Mayoral or Members’ columns in Council publications –be suspended during a pre-election period. 4.49 Promoting the re-election prospects of a sitting Member could also raise issues under the Local Electoral Act 2001. For example: - Local elections must be conducted in accordance with the principles set out in section 4 of the Local Electoral Act – see Appendix 1 on page 27. The principles apply to any decision made by a Council under that Act or any other Act, subject only to the limits of practicality. A breach of the principles can give rise to an “irregularity” which could result in an election result being overturned.14 - The publication, issue, or distribution of information, and the use of electronic communications (including web site and e-mail communication), by a candidate are “electoral activities” to which the rules concerning disclosure of electoral expenses apply. 4.50 “Electoral expenses”15 include:- the reasonable market value of any materials applied in respect of any electoral activity that are given to the candidate or that are provided to the candidate free of charge or below reasonable market value; and - the cost of any printing or postage in respect of any electoral activity. 4.51 A Member’s use of Council resources for electoral purposes could therefore be an “electoral expense” which the Member would have to declare – unless it could be shown that the communication also related to Council business and was made in the candidate’s capacity as a Member. Principle 13 A Council’s communications policy should also recognise the risk that communications by or about Members, in their capacities as spokespersons for Council, during a pre-election period could result in the Member achieving electoral advantage at ratepayers’ expense. The chief executive officer (or his or her delegate) should actively manage the risk in accordance with the relevant electoral law. 4.52 Curtailing all Council communications during a pre-election period is neither practicable nor (as far as mandatory communications, such as those required under the LGA, are concerned) possible. Routine Council business must continue. In particular:- Some Councils publish their annual reports during the months leading up to an October election, which would include information (including photographs) about sitting Members.- Council leaders and spokespersons need to continue to communicate matters of Council business to the public. 4.53 However, care must be taken to avoid the perception, and the consequent risk of electoral irregularity, referred to in the commentary to principle 12. Two examples are: - journalistic use of photographic material or information (see paragraph 4.42 on page 21) that may raise the profile of a Member in the electorate should be discontinued during the pre-election period; and - access to Council resources for Members to issue media releases, in their capacities as official spokespersons, should be limited to what is strictly necessary to communicate Council business. 4.54 Even if the Council’s Communications Policy does not vest the power to authorise Council communications solely in management at normal times, it should do so exclusively during the pre-election period.

The State Services Commission guidance of communication campaigns and programme launches also serves as a useful comparison:
State Servants, Political Parties and Elections: Guidance for the 2005 Election Period (State Services Commission, March 2005): Communication Campaigns In the run-up to an election, agencies should consider whether communication campaigns generally, and advertising specifically, could be seen as 'party political', even if they might be unexceptionable at other times. This does not mean that communication campaigns that inform people of their rights and obligations should stop. If there are any doubts about how an advertising or public information campaign might be perceived, consideration should be given to waiting until the new Government is formed ... Programme Launches Similarly, the launch of a new programme or initiative may take on a 'party political' character in an election period. State servants should work with Ministers as usual, but take care to avoid association with the political aspects of any such event, or with the preparation of supporting material which has a political character.

28 September 2007

The MP's son, Bebo, and homophobic abuse - Part 4

More thoughts. A contributor elsewhere has queried, rhetorically, whether as a result of my analysis we should simply ask politicans "What do you think of people calling other people faggots?" and suggested that the responses would unlikely to be suprising. My response and further comments were as follows: ... I would welcome that question being put to those leaders. That's really my main point, I think that's exactly the line of questioning the media should be directing at both Bill English and John Key. And - given their public comments so far on this issue - I would not assume that the answer would be straightforward. If a patsy response was received, I suggest there are a number of follow up questions that could also be put: 1. How do you reconcile that with your party's statement that it stands for "Speaking honestly, not political correctness"? (What National Stands for, Principle 5). 2. How do you reconcile that with the views of your party's then Spokesperson for the Eradication of Political Correctness comments in June 2005: "[H]ate speech proposals have their source in the bastions of the politically correct. … There are New Zealanders who want to be able to express their views on homosexuality, not just privately, but through the public media. … Under the guise of protecting minorities, we lose one of the most important values in a free society; the right to freely express one’s opinion. The whole point of freedom of speech is that it protects opinions that one sector of society might be deeply opposed to."(Dr Wayne Mapp, 22 June 2005, " The Problem with Political Correctness"). 3. Do you [English] still believe that "diversity" and "respect and care" should not be one of the values identified in school curriculum? (19 August 2005, Evening Standard interview: "National would be very concerned if Labour tries to use values education to impose its own political correctness and social engineering on our kids.") I'm not trying to politicise the present discussion or to make take a partisan approach. Instead, I'm suggesting that the issue raises fundamental questions about political philosophy and policy. In that light, it makes the reluctance to pursue the issue surprising. It makes me wonder whether politicians can avoid tough questions on a fundamental issue simply by playing the "privacy" or "family" card? Or, despite the existence of the Lange-style political figure qualified privilege, by threatening to call in the lawyers?

The MP's son, Bebo, and homophobic abuse - Part 3

> LAWS179: "The MP's son, Bebo, and homophobic abuse" > LAWS179: "The MP's son, Bebo, and homophobic abuse - Part 2" Further thoughts on this issue (again, taken from conversations elsewhere): I think [online discussions elsewhere] disclose the most newsworthy story of all. And it's not particularly related to the identify of the youth or his father (although, as I've said elsewhere, I think the implicit condonation of the postings by his father and the leader of the political party – that is, their refusal to condemn the language and behaviour – is extremely newsworthy and should be pursued further, as Nicole Moreham suggests [in comments posted earlier on this blog]). Rather, it's the attitude of the community to this type of language by youth. As many folk have noted, terms such as "gay", "f*ggot", "queer", are being used by youth routinely, but largely as terms synonymous with terms like "lame" or "stupid" or "undesirable". According to some of the views expressed on the incident, that's fine according to many people. It's part of the expression of growing up; "rugged" but not inappropriate. Not only does this view appear prevalent amongst the public, it has also crept into the broadcasting standards rulings: (a) the rejection of complaint by our BSA about a comment that "playing the recorder was “gay"": http://www.bsa.govt.nz/decisions/2006/2006-069.htm; and (b) the rejection by the BBC Governors of complaint about the use of the term "gay" – meaning "rubbish" – by Chris Moyles; http://www.bbcgovernorsarchive.co.uk/docs/complaints/apps_janmar2006.pdf). As someone who is gay myself – and someone who is aware of the grave effect this language has on gay and lesbian youth – I find this attitude extraordinary. Notably, I think, the response suggests a double-standard. I doubt the response would be the same if other terms were used as substitutes for lame or stupid. "Emos are n*ggers." "That rugby team is a bunch of wogs." "The school dance was coon." "Johnny is a sl*t or a slapper." "Bill was a tight as a Jew.". It's interesting to note how high these words rank on the BSA's 2005 study on unacceptable words in its "Freedoms and Fetters" report (http://www.bsa.govt.nz/pdfs/bsa-freedomsandfetters.pdf). No doubt, similar arguments have been made in the past about how the use of these words was not intended to denigrate the minority and other groups – but these arguments have rightly been rejected. Why is it different for pejorative language about gay people? Given the present media outrage about various incidents of "internet bullying" and the like, I'm particularly surprised that the media haven't been more interested in this angle. And, of course, also the point mentioned earlier: the question of whether leaders of our political parties think this type of behaviour is appropriate (regardless of whether it arises within their family or otherwise). To be fair to GayNZ.com too, it is in this context that the story arises, although undoubtedly it only became so newsworthy because of the political connection. They have been running stories on these issues for some time including, for example, an article today on the connections between bullying of gay and lesbian youth and suicide rates ("Direct link between GLBT bullying & suicide" http://www.gaynz.com/articles/publish/3/article_5007.php). Is homophobic language now so mainstream that no-one cares?

27 September 2007

The MP's son, Bebo, and homophobic abuse - Part 2

One of my colleagues - Dr Nicole Moreham, an acknowledged expert on privacy law - has made some good points on another email group about this issue. With her permission, I've reproduced her post here:
From: Nicole Moreham Subject: Politicians and privacy I was wondering if I could re-visit the issue of Bill English’s son’s Bebo posting with my privacy hat on. It has been suggested by Key, English and some media commentators that reporting on the matter would be an unwarranted intrusion into a politician’s family life. Legally speaking, there is no question that any privacy action would fail. I agree that it should fail for the following reasons: 1. At the heart of this controversy is a posting on a publicly accessible webpage. No-one has denied that the youth in question elected to publish his views on the site. The language is provocative, abusive and designed to attract attention. He has not been staked out while speeding in his car or smoking dope with his friends. He has chosen to put his opinions into the public domain. 2. It is clear from Hosking that an individual’s reasonable expectation of privacy will be reduced if he or she is a public figure. That privacy reduction also extends to the families of public figures (see paras [123]-[124]). While it might be questionable how far this extends where the families of celebrities are concerned, there is no question that it applies to the immediate family of politicians. Every jurisdiction of which I am aware accepts that some incursion into family life comes with the political territory. (See Dean Knight’s blog LAWS179 for examples of stories on the families of other New Zealand politicians.) 3. The reaction of English and Key to GayNZ’s story has emerged as a separate story to the original Bebo posting. GayNZ maintain in their editorial that they contacted English about the content of his son’s webpage some time before the story was published, that English did not respond in any way and, once the story was published, English declined to censure the remarks but threatened to sue GayNZ. Key described the remarks as typical of the kind of ‘rugged’ exchange one should expect when youths express themselves. There seems to be a public interest in these responses. This is particularly the case if they could be seen to be at odds with National’s public support for the protection of homosexuals and of homosexual youth in particular. 4. On a more polemic note, I am surprised that the matter has dropped out of the media so quickly. Perhaps the matter is not judged to be important or interesting or perhaps journalists believe that it would indeed be an unwarranted intrusion into privacy to pursue it further. If it is the latter, then what has happened to those journalists who defend freedom of expression so vociferously when someone suggests that they refrain from publishing photographs of injured accident victims or cartoons which are offensive to a vulnerable religious minority or details which could lead to identification of a rape victim. Do only the powerful enjoy privacy protection in this country? The deferential silence is deafening.

Dominion Day Centenary: celebrating history; designing for the future

Today - 26 September 2007 - is the centenary of our country becoming a Dominion. Below is a copy of the Proclamation declaring the change in status:
While it's important to celebrate our history and heritage, it's also important that we ensure our status and traditions remain appropriate for our people and community as we grow as a nation. In my view, the arguments in favour of becoming a Republic are irresistible (I won't rehearse them here). And, not inevitably, but forthwith.
To that end, wouldn't it be sensible for the Queen to make the following Proclamation on the centenary of Dominion Day?
(To avoid any doubt, the above proclamation is not real and, in terms of s13 of the Flags, Emblems, and Names Protection Act 1981, the display or exhibition of the Coat of Arms in the mock proclamation is not done with purported approval of the government or the Crown!)

26 September 2007

The MP's son, Bebo, and homophobic abuse

> GayNZ.com: "Anti-gay webpage linked to Nat MP's son" > NZ Herald: "English: Attack on my son disgusting" > The Press: "English to see lawyers over gay website's attack on son > Kiwiblog: "Gaynz and English" The homophobic comments on a bebo site (purportedly) from Bill English's son has hit the news through an article from GayNZ.com. The decision to run with the story has been criticised by some. I'm not convinced that the issue - or, rather, Bill English's response to the issue, isn't a legitimate matter for concern and discussion; notably, English has so far refused to condemn these type of comments. I've collected some of my comments I've posted on KiwiBlog which convey some of my thinking: - - - - - - deanknight Says: September 26th, 2007 at 8:38 am A couple of things: 1. Having viewed the site myself, the characterisation of the comments on the Bebo site as “abusive statements which carried homophobic overtones” probably understates them somewhat. 2. While the inappropriate comments of an MPs son do not directly impugn an MP’s credibility themselves, in my view, it is fair to judge the MP by their response to the incident. Notably, at least from reported comments, Bill English does not condemn the comments on the website. That, I believe, speaks volumes about Bill English himself - and, on any view, is related to his political position and is fair comment. - - - - - deanknight Says: September 26th, 2007 at 9:50 am Some more thoughts: 1. It’s certainly not the first case where the actions of MPs’ or Ministers’ children or family have been raised and where they have been asked to respond to. Eg:- Annette King’s daughter crashed a car;- Robyn McDonald’s daughter’s joy-riding;- Mark Gosche’s son crashed a car;- Tuariki Delamere’s son drug possession.As I said, while these incidents do not directly reflect on the MPs / Ministers themselves, the MPs / Ministers are legitimately judged by their reaction to the incident. 2. The issue of homophobia - particularly amongst youth - and internet bullying and misconduct is a public issue at the moment. It’s no wonder gay and lesbian youth organisations are so outraged by the incident. It’s legitimate to put questions about that to a MP - particularly when the issue arising close to home. 3. On whether it is proper to target one youth in particular because of his father’s position, you will see from the editorial on gaynz.com that they thought long and hard about that. Personally, I’m not saying their decision to go ahead was proper - as Virginia Woolf once said, the line between public and private is sometimes very difficult to draw. 4. However, as it is now in the public arena, I think it is proper to judge Bill English by his failure to condemn homophobic activity such as this. I’m not saying he should discipline his son in public but we might have expected him to make it clear that he disapproves of the behaviour (if indeed he does) rather than reacting by calling in the defamation lawyers! 5. I’m not trying to pigeon-hole this incident in a partisan-way. I’ve previously expressed my disappointment about Helen Clark’s reaction to allegations of homosexuality about her husband. While the allegations about her husband seemed absurd (and would seem to fall within the same familial exemption that others contend applies), I thought her reaction reflected poorly on her - particularly her expression of disgust and suggestion of that it was a smear (in my view, it may have been inaccurate but it’s not denigratory to say someone is gay). - - - - - deanknight Says: September 26th, 2007 at 9:55 am PS: I think it is entirely proper to also judge John Key (adversely that is) for his comments on the propriety of the comments on the site: http://www.stuff.co.nz/4214799a10.html “Mr Key said social networking sites and some of the conversation on them could be “pretty rugged”. “But the reality is this has gone on since kids started talking behind the bike sheds. Part of growing up is expressing yourself. I’m not defending it, I’m just simply saying these sites are out there.”" Personally, I’m looking for leaders who condemn, rather than try and excuse, this behaviour. - - - - - - And, as an aside, the suggestion that English or his son might have a claim in defamation or privacy against GayNZ.com seem far-fetched. A claim in defamation would only get off the ground if the allegations are misattributed, that is, the Bebo site and comments are not made by English's son.

21 September 2007

Bill of Rights - application to private disputes?

A colleague of mine recently expressed some concern that the freedom of expression in section 14 of the Bill of Rights did not get mentioned in the recent High Court decision resolving the copyright dispute between TV3 and Sky about the screening of RWC footage: > Mediaworks NZ Ltd v Sky Television Network Ltd (18.09.2007, Auckland High Court, Winkelmann J, CIV-2007-404-5674) Here's my response: I think whether or how the Bill of Rights applies – and therefore whether s14 ought to have been addressed – is probably a bit more complex than it appears on first blush. In particular, there is a question of whether this litigation involved a state actor/act such that, under section 3, the Bill of Rights applies. In essence, the dispute is a dispute between two private parties. The only purported "state" involvement is either (a) the judiciary adjudicating on the dispute or (b) Parliament passing legislation regulating private disputes of this kind. It's some time since I looked at the point, but I recall the question of whether the Bill of Rights applied directly to the common law (and, by analogy, interpretative tasks under legislation regulating private disputes) was somewhat controversial. The argument advanced was the courts were mentioned in s3(a) – therefore their actions in developing the common law were caught and the common law had to be Bill of Rights consistent. That approach was rejected in Canada, where the Supreme Court said the Charter did not directly regulate the common law (Dolphin Delivery, Hill v Church of Scientology). However, the application of human rights instruments to the common law has been accepted in other jurisdictions, including, I understand, the UK under the HRA. Now, apparently, this issue seems to have been "definitively resolved" without any fanfare, at least some of the texts suggest it has been resolved. A quick look at the jurisprudence points to the following cases:
  • Elias J ruled the Bill of Rights directly applied to the common law in Lange v Atkinson [1997] 2 NZLR 22 (HC) (and that point was not questioned by the Court of Appeal).
  • The application of the Bill of Rights to the development of the law by judges was asserted in (dissenting) judgments in R v Pora [2001] 2 NZLR 37 and R v Shaheed [2002] 2 NZLR 377.
  • The need for common law developments to comply with the Bill of Rights was taken as a given in Hosking v Runting [2005] 1 NZLR 1.

Without undertaking an in-depth analysis of these cases, it's clear that the issue has not been subject to extensive consideration by the courts. I think the question deserves greater reflection. And, I'm not convinced either that the courts have actually grappled with the implications of the idea that s3(a) binds the courts to develop the common law consistently with the Bill of Rights. Expression cases might be easy ones, where the common law has always grappled with the balance to be struck between freedom of expression and other interests. However, does this mean that other common law principles (and statutory provisions regulating private relationships) similarly need to be Bill of Rights consistent? Section 21 might require the common law doctrine of distress damage feasant – that, amongst other things, allows private property owners to tow illegally parked cars – be revisited? And s19 might require the revision of the principle that admission to a private club or society is entirely discretionary and the courts will not force a club to admit an unwanted member, if the reason for refusal triggers a prohibited ground of discrimination? Of course, the fact that the Bill of Rights might not directly apply does not stop the values in the Bill of Rights forming a backdrop for the common law or interpretative questions. Or those values – or fundamental rights generally – being considered in each of those tasks. But there are important differences between direct and indirect application of the Bill of Rights. It's a pity our courts haven't been more clear about this point.

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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