31 December 2007
20 December 2007
(The Police have a similar temporary closure power under s342A.)
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.
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  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
From: Dean Knight Sent: Tue 18/12/2007 7:22 p.m. To: firstname.lastname@example.org; email@example.com 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
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!
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!
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
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.
- 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
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
5 November 2007
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
“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.
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
"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.
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.
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
An article of mine has just been published in the New Zealand Law Journal:
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:
As usual, feedback and comment welcomed.
24 October 2007
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
9 October 2007
4 October 2007
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  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.
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.
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.
29 September 2007
"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  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:
The State Services Commission guidance of communication campaigns and programme launches also serves as a useful comparison:
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.
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
27 September 2007
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 -). 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.
26 September 2007
21 September 2007
- Elias J ruled the Bill of Rights directly applied to the common law in Lange v Atkinson  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  2 NZLR 37 and R v Shaheed  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  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.