31 December 2007

New Zealand Order of Merit (Titular Titles) Bill: My New Year Honours List

> LAWS179: "New Zealand Order of Merit (Titular Titles) Bill" > LAWS179: "Queen's Birthday Honours" My New Year Honours List for 2008: Principal Companion of the Order Dame Malvina Major, PCNZM DBE Distinguished Companions of the Order Ta (Sir) Edward Durie, DCNZM Sir Peter Gluckman, DCNZM, CNZM Dame Margaret Shields, DCNZM, QSO, JP Sir Peter Siddell, DCNZM, QSO Sir Kenneth Stevens, DCNZM. For the reasons I've previously outlined, I favour the retention of titular titles under our indigenous system of honours. My draft Bill provides for the restoration of titular titles, including Te Reo equivalent appellations. > New Zealand Order of Merit (Titular Titles) Bill [pdf] Compare the list above (with titular titles) to the list in the papers today. The inclusion of the titular title is more prestigious and commensurate with the honour being awarded. Most Kiwis would have been aware that Dame Malvina Major had previously been honoured because of the appellation she is entitled to use. But the new Distinguished Companions will not get similar recognition.

20 December 2007

Boy-racers and executive road closures

> CCC: "Police identify roads for boy racer ban" > ThePress: "Approval for mayor's boy racer ban" > ThePress: "End of the road for boy racers?" > LAWS179: "Boy-racers and bylaws again" > LAWS179: "Boy-racers and bylaws banning cars on roads" No, no, no! I have serious concerns about the proposed use of mayoral executive power to close roads frequented by boy-racers. It's another attempt to use provisions intended to address one particular mischief for the purposes of addressing other problems. In my view, the ban is dubious and likely to be unlawful for a number of reasons. The relevant provision is s342 of the Local Government Act 1974 and the related Schedule 10:

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.

(The Police have a similar temporary closure power under s342A.)

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 [2007] 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

NZ Centre for Public Law Public Lecture: "The United States as a Democratic Ideal?"

Public Lecture 12.30-1:30pm Wed 19 December 2007 Lecture Theatre 4 Government Buildings "The United States as a Democratic Ideal?" Professor KK DuVivier, Associate Professor, Sturm College of Law, University of Denver » More Information

TV3, opinion polls and calculating the seats

> 3News: "Poll: Labour and Greens out, National in" Below is a self-explanatory letter to TV3 about their recent public opinion poll item:
From: Dean Knight Sent: Tue 18/12/2007 7:22 p.m. To: mark.jennings@tv3.co.nz; duncan.garner@tv3.co.nz 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

The Lobbies and Fighting in Public

> DomPost: "Mallard pleads guilty to fighting charge" > LAWS179: "Parliamentary privilege and the fracas in the lobby" I see Trevor Mallard has pleaded guilty to a charge of fighting in a public place under the Summary Offences Act 1981. Although the guilty plea is understandable to resolve the prosecution, it's interesting to look at the offence. I can't see how the charge would have been made out, because the Lobbies of the House surely don't qualify as a "public place"?
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!

> Parliament: "Ayes Lobby" (Picture)

Pōwhiri and Human Rights: A Contest of Values?

I was recently in Australia working on an address on this issue, which I presented at "Markings: sites of analysis, discipline, interrogation", the 24th Annual Law and Society Association of Australia and New Zealand conference at the University of Melbourne Law School.
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!

Boy-racers and bylaws again

> ThePress: "Police sought ban for boy-racer hot spots" I've previously commented on Christchurch City's moves to close roads because of boy-racer concerns, largely raising jurisdictional concerns about whether it's legal possible to do so: >LAWS179: "Boy-racers and bylaws banning cars on roads" Putting those concerns aside for one moment, it's encouraging to see the City is genuinely grappling with Bill of Rights implications, namely whether a ban might unreasonably affect people's freedom of movement:
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.

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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