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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