6 February 2007

Waitangi Day 2007

I te rā nei, ka hākari tātou i te whānautanga o tōku tau tangata. Today, we celebrate the birth of our nation.

1 February 2007

Transit and Kara Tino Rangatiratanga

TVNZ: Maori flag banned from bridge Transit NZ: Flag Flying Policy At first blush, the decision of Transit not to allow the Tino Rangatiratanga flag to fly on the Auckland Harbour Bridge looks like a no-brainer. The flag doesn't qualify under their policy because it's not a national flag recognised by the government or the UN. End of story. But, no. From a legal perspective, it strikes me that there are a number of reasons why that decision could be impugned: 1. Transit is exercising a public function (state highways / motorways are vested in the Crown under the Transit New Zealand Act 1989 and Transit has the related power to control these for all purposes). I think the most directly relevant power is the section 78 of the Transit New Zealand Act 1989 which prohibits any person erecting any "other structure or thing" on, over, or under a motorway without the consent of Transit. 2. When exercising that power, Transit is required to conform to the principles of administrative law. There seems to be a number of problems with its decision: - First, Transit appears to be acting inconsistently in declining the request. It has allowed non-national flags to be flown on the Bridge. The TVNZ news item shows the flag supporting the America's Cup team being flown. A failure to act even-handedly is not (yet) a separate ground for reviewing a decision of a public body but may be a "touchstone" indicating that the public body is acting unreasonably and therefore unlawfully. - Secondly, Transit cannot blindly assert that the request does not conform to its policy. The policy is designed to manage the overriding discretion to grant permission. Even if a public body has an administrative policy, they are required to maintain an open mind and, for requests which fall outside the policy, they must consider the request on its merits or consider changing the policy to accommodate the request (although once it has considered that possibility, it is not obliged to change the policy). A failure to do so, would be amount to the abdication of discretion or the unlawful closing of one's mind. - Thirdly, it's not clear whether the basis for the refusal and purpose of the power are consistent. If a public body exercises a power for a purpose other than the statutory purpose or takes into account irrelevant considerations, their decision will be unlawful – even if the statutory power could otherwise still be relied on. This point is a little more uncertain, but it could be argued that the permission power is only intended to allow the regulation for road integrity / traffic safety reasons. That is, whether it's a danger to traffic to fly a flag. It could be argued that the nature of the flag being flown is irrelevant to this inquiry and therefore the decision to base the refusal on the type of flag is unlawful. - Fourthly, there is a question of whether this decision has failed to address the Crown's obligations under the Treaty. While, as far as I can see, there's no legal obligation on Transit to operate consistently with the Treaty or its principles, it's arguable that – as a minimum - it is required to consider the Crown's obligations under the Treaty. The failure to recognise the flag of the Māori "nation" or to consider whether the policy should accommodate the Crown's special relationship with Māori may not be consistent with the principles of active protection of Māori interests and the obligation partnership between Māori and the Crown. In this context though, that may not be actionable in the courts (apart from the Waitangi Tribunal), but may feed into the other grounds for reviewing the decision, eg the failure to consider any Treaty principles may be a failure to consider a mandatory relevant consideration. - Finally, the decision of Transit may simply be unreasonable and therefore unlawful. Ordinarily, overturning a decision for unreasonableness is difficult and requires a high degree of unreasonableness, akin to irrationality. There's sufficient logical in Transit's decision to avoid a challenge on that basis. However, administrative law generally adopts a lower standard for cases involving fundamental rights such the freedom of expression. Arguably, when the lower threshold is combined with the other points noted above, this ground may also provide a basis for overturning the decision. 3. Of course, even if the decision is unlawful, it may not mean the flag must be permitted to fly. It's more likely that Transit would be required to re-consider its decision. It may be able to consider the matter in accordance with administrative law and still refuse the request. That said, there's less scope for the re-confirmation of the decision if it has been overturned for being unreasonable or inconsistent – the only option in these cases may be granting permission to fly the flag.

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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