20 November 2007

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

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

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

Electoral Finance Bill, new media, and megaphones

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

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

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

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

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

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

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

6 November 2007

Public Lecture: "Brand G: regulating government advertising

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

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

Pen Portrait: 16 questions from me...

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

5 November 2007

Christchurch City, New Civic Building: Council Report

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

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

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

More thoughts once I've worked through the issue.

2 November 2007

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

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

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

That is:

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

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

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

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

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

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

1 November 2007

Parliamentary privilege and the fracas in the lobby

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

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

UPDATE (2.11.2007):

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

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

However, as they note, the question remains open:

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

I think this is consistent with my analysis above.

Improving our local democracy

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

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

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

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

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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