11 June 2007

"Codes of conduct" - threats to democracy

WanganuiChronicle: "DHB censures Solomon" RNZ Nat: "Whanganui Hospital" I've been concerned for some while that Codes of Conduct adopted by sub-national governmental bodies like local authorities and district health boards are proving problematic and are really an affront to democracy. Don't get me wrong: I'm all for prophylactic measures which endeavour to achieve better governance outcomes. But - and it's a big but - they should not be used to suppress genuine political dissent. It's one thing to say that elected members should be not swear at each other in meetings. It's another thing to say they shouldn't express views because they undermine the work of the Board when they are trying to achieve "solutions". This gags an elected member from undertaking their own governance responsibilities - for which they are accountable to the public at the ballot box. While there are some instances where there is a pressing objective that codes of conduct seek to address (for example, directly criticising an individual officer and bringing them into the public debate), these need to be balanced against the democratic imperative. In my view, Good Health Whanganui has got clearly got the balance wrong and is acting disproportionally to their purported objective (which seems, as best, to be that all children should play nice with each other while in the sand-pit). Local democracy is being eroded as a consequence. I am in the process of researching this issue. Anecdotal evidence suggests there are numerous examples of where codes of conduct are being misused, as tools to suppress or attack other members with different views - rather than genuine failings in governance responsibilities. As far as I'm aware, only one case has made it to Court so far: > Goulden v Wellington City Council [2006] 3 NZLR 244 (Disclosure: I provided some assistance to the Council's lawyers in this case.)

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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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