31 December 2008

New Zealand Order of Merit: Restoring Titular Titles

> LAWS179: "New Zealand Order of Merit (Titular Titles) Bill" > LAWS179: "New Zealand Order of Merit (Titular Titles) Bill: My New Year Honours List" > LAWS179: "Queen's Birthday Honours" > LAWS179: "New Zealand Order of Merit: new Knighthoods and Damehoods" With the release of this year's honours, time to update the project to restore some form of titular titles to our indigenous honours system. First, below is a list of the most recent honorands - described as they would have been under the proposed system of titular titles: P.C.N.Z.M. Professor Tā (Sir) Ralph Herberley Ngatata LOVE, Q.S.O., J.P., of Porirua. D.C.N.Z.M. Dr Kahurangi (Dame) Claudia Josepha ORANGE, O.B.E., of Wellington. Professor Sir David Christopher Graham SKEGG, O.B.E., of Dunedin. Sir Murray John WELLS, of Auckland. The Honourable Dame Margaret Anne WILSON, of Tauranga. I note that Ngatata Love was ambivalent about the titular title Sir. I wonder if he would have been less ambivalent if the Order came with a titular title in his indigenous language? Secondly, there's been some suggestion on the radio that the new government may be interested in reverting to a system of titular honours - although I haven't yet seen any unequivocal statement or policy on the honours system. That sounds encouraging though. Thirdly, if a change is supported, a possible template is the Member's Bill I previously drafted: > New Zealand Order of Merit (Titular Titles) Bill (pdf) (A text version is also set out over the break.) If the change is supported by the new government though, it would not be necessary to give effect to the change through legislation passed by the House. As the system falls within the purview of the Sovereign's prerogative authority, the system can be varied merely by Royal Warrant. That is, the government - relying on their Executive power - can advise the Queen to vary the system. There's no need for the change to be implemented in the format of a Bill, although the nature of the provisions would basically be the same. One other thing we might want to think about is whether we want to codify the present system in the form of legislation passed by the House, rather the prerogative legislation. There may be some value in the people of New Zealand taking ownership of the system through the adoption and endorsement of the system by their elected representatives as a whole.

26 December 2008

An alternative Christmas message

> DomPost: "Queen calls for service to others"

An alternative Christmas message from the Head of State:

The Governor-General, Anand Satyanand, has urged people to learn from unsung heroes when times are tough.

Delivering his Christmas message to the New Zealand people, the first head of state of the Republic said that Christmas this year was a sombre occasion for many. "Some of those things which could once have been taken for granted suddenly seem less certain and, naturally, give rise to feelings of insecurity," he said. "People are touched by events which have their roots far across the world. Whether it is the global economy or violence in a distant land, the effects can be felt at home."

The Governor-General paid particular tribute to two Kiwis who gave their lives to save others. He spoke of the sacrifice of Elim Christian College teacher Tony McClean, who lost his life trying to save school children trapped in the swollen Mangatepopo Stream, and Austin Hemmings, stabbed while going to the aid of a stranger in Mills Lane in central Auckland. "Their bravery and instinctive behaviour in doing what was right speaks to all New Zealanders," he said.

He also noted the death of one of New Zealand's great heroes. "This year saw a mighty kauri fall, with the passing of Sir Ed. We must strive to fill the gap in the forest with new heroes."

Satyanand spoke of his delight in watching the successes of New Zealanders in many areas of endeavour over the past year. "The hearts of our community were warm with pride as we saw our athletes, writers, film-makers, scientists, comedians and others make their mark on the international stage."

He cautioned that the country continued to face many challenges in the upcoming year. "The strength of our community and the resoluteness of our nation will be tested by the economic crisis. We will have to continue to confront great issues like climate change, settlement of Treaty grievances, and increasing violence in our society."

Recounting a Maori proverb, the Governor-General urged the nation to work together to address these challenges: "Kaua e rangiruatia te hā o te hoe, e kore tō tātou waka e ū ki uta. Do not lift the paddle out of unison or our canoe will never reach the shore."

Satyanand said that over the next few days he would be spending some time relaxing at the beach with his wife Susan and their daughters and son, and he hoped that others would also find time to relax and spend with their whanau and friends.

23 December 2008

An Act of Canned Ham

> DomPost: "Kiwi spammer gets hefty fine" We should not be proud of the (first) $100,000 "fine" imposed on a spammer this week. Don't get me wrong. I hate spam. But the penalty regime within the Unsolicited Electronic Messages Act 2007 has worried me for some time. Basically it enacts a criminal penalty regime - maximum $200,000 fine (or $500,000 if a company), search warrants, infringement notices, etc - but then calls it a "civil liability" regime. Notably, the usual protections of the criminal law - including the high burden of proof - are excluded by section 49:
49 Applicable rules, procedure, and standard of proof The proceedings under sections 45 and 46 are civil proceedings to which the usual rules of the court, rules of evidence, and procedure for civil proceedings apply (including the standard of proof).

In my view, that's bad, for obvious reasons. Less obvious fish-hooks include things like different (vis reduced) entitlement to legal aid for civil proceedings.

The Bill of Rights vet touched on the problem of criminal penalties in drag but summarily concluded that any breaches of rights, including the minimum standards of criminal procedure, were justified. I'm not so convinced.

This approach is a dangerous precedent. Perhaps something worthy of Law Commission consideration.

21 December 2008

Santa, a drag queen, and the Kapiti Coast District Council

> DomPost: "KKK man shows up to council in wig and dress"
The DomPost reports:
Just six months after upsetting Kapiti councillors by dressing in a Ku Klux Klan outfit, community board member Dale Evans has struck again. He appeared at a Kapiti Coast District Council meeting in a purple wig and women's clothing, with seven Santas in tow, and was ejected from the chamber yesterday by police prompting one councillor to compare the council to a three-ring circus. ... Ms Rowan opened the meeting by saying that, if anyone was dressed disrespectfully, they should leave. Mr Evans and his Santas refused to budge and the mayor adjourned the meeting. Some councillors left the chamber and police were called. ... Council chief executive Pat Dougherty said the ejection was justified. "Asking police to eject a group dressed in Santa suits and women's clothes was totally justified following the earlier Ku Klux Klan incident from the same person. They were asked to leave under standing orders.

No! Ejecting people for what they are wearing is not justified.

Section 47 of the Local Government Official Information and Meetings Act 1987 gives the public a right to attend any public meeting of a local authority. The (sole) power of a local authority to eject a member of the public from a public meeting is found in section 50:

50 Maintenance of order (1) The person presiding at any meeting of any local authority may, if that person believes, on reasonable grounds, that the behaviour of any member of the public attending that meeting is likely to prejudice or to continue to prejudice the orderly conduct of that meeting if that member of the public is permitted to remain in that meeting, require that member of the public to leave the meeting. (2) If any member of the public who is required, pursuant to subsection (1) of this section, to leave a meeting of a local authority— (a) Refuses or fails to leave the meeting; or (b) Having left the meeting, attempts to re-enter the meeting without the permission of the person presiding at the meeting,— any constable, or any officer or employee of the local authority, may, at the request of the person presiding at the meeting, remove or, as the case may require, exclude that member of the public from the meeting.

The section poses an objective test: There must be reasonable grounds for believing that a person's behaviour is likely to prejudice the orderly conduct of the meeting.

It's clear therefore, I'm sure, that the clothes someone wears is not sufficient to trigger ejection. There must be something more in terms of behaviour that threatens the orderly conduct of the meeting. (There's nothing in reports which suggest any other disruptive behaviour.)

If there's any doubt, the protections in the Bill of Rights would further assist, in particular, the freedom of expression in section 14. To the extent that the clothes being worn amount to expressive conduct (entirely credible in this context), then the test in section 50 would need to be read down to allow such expression, as far as possible without unreasonably undermining any government imperative underlying section 50.

In short, the government imperative is enabling elected members to conduct their meeting. What people wear does not affect that. Shouting does - and people can be ejected for that. But dressing in drag or a Santa suit - or "disrespectfully" - does not.

The guy ejected sounds like a total pillock. But that's no excuse for acting unlawfully and undemocratically.

18 December 2008

The Laws of New Zealand: Local Government (Reissue 1)

A (reissue) title on Local Government, co-written by Chris Mitchell and me, has now been published as part of The Laws of New Zealand series: > Christopher Mitchell and Dean Knight, "Local Government (Reissue 1)" in The Laws of New Zealand (LexisNexis, Wellington, 1992-) One is never quite sure whether to describe this work as a "chapter" or a "book". Strictly speaking, it's called a "title" in Laws of New Zealand parlance. But at 168 pages, it might be better described as a "real mission"! To give some flavour of the publication, I've set out below the preface.

Local Government has been a feature of our social and political landscape since the earliest days of organised European settlement. After one or two false starts, including the relatively brief existence of provincial government, the basic elements of the current system were in place by the early 1870s. In that sense, the development of the local government model pre-dated both national identity and the national constitution but, unlike them, its further development was slow and fitful and for years remained anchored in British tradition.

As the country grew, so too did the numbers of both territorial authorities and the many special purpose authorities such as harbour boards, drainage, river and catchment boards, and transport and energy boards. All of them were elected and locally funded bodies with specific and tightly prescribed powers of governance. By the late 20th century there were well over 600 local bodies exercising some form of governmental powers. In addition to the range of statutes under which each variety of local body was constituted, there well over 1000 local statutes empowering specific aspects of their activities. The only significant change to the legislation governing territorial authorities was the union of the counties and municipal corporations legislation to create the first Local Government Act in 1974.

In his preface to the original version of this title the author, Jonathan Field, noted that “local government is where the structures of democracy touch most directly on the lives and circumstances of the citizen; where responsiveness to changing needs, transparency in meeting them, and accountability for the management of public resources, are at their highest premium”. As the 20th century came to a close, these implicit objectives and values were seen to be compromised by laws and structures which were highly complex and not always consistent or coherent. The first wave of change came in 1989 with a major restructuring of the sector under which more than 600 bodies were reduced to fewer than 100, and amendments to the 1974 legislation which required a completely new approach to planning, funding and accountability.

Surprisingly however it was not until 2002 that legislation was enacted to define the role, purpose and principles of local government, and to give local authorities broad general powers to achieve the many obligations and expectations imposed on them. While this package of statutory reform was extensive (and included electoral and rating law) it remains incomplete, and parts of the 1974 legislation remain in force as do the fragmented statutes relating to drainage, water and transport – all traditional core areas of local government activity. Further legislation can be expected to affect these aspects of local government within the next few years, and amendments to give effect to the Local Government Commission’s review and recommendations on the 2002 legislation will also no doubt appear.

So the law on local government remains in a state of necessary but slow moving change. It should be emphasised that while this title deals with many of the core areas of local government, reference must be made to other important chapters (especially ENVIRONMENT and RATING) for a more complete understanding of the topic.

It remains for the authors to gratefully acknowledge those that have helped in the production of this title. First, we acknowledge the author of the original version of this title covering the earlier legislative regime, Jonathan Field. Our version incorporates some aspects of the previous commentary and the original version also helped us settle our own approach to this topic. Secondly, thanks to Tim Miller, Research Assistant at Victoria University of Wellington for some research assistance with the project. Thirdly, we are grateful to those close to us that countenanced the demands on our time required to complete such a project. Finally, we recognise the energy and assistance of the publisher’s editor, John Lulich, in bringing together our work into a format which we hope readers will continue to find useful.

Christopher Mitchell Dean Knight November 2008

And the short-form table of contents is set out below also:

PART I. STRUCTURE AND CONTEXT (1) History (2) Structure of Local Government (3) Related Persons and Bodies (4) Reorganisation Proposals PART II. PURPOSE, STATUS, AND PRINCIPLES (5) Purpose (6) Role, Status, and Principles (7) Treaty ofWaitangi PART III. APPOINTMENT OF LOCAL AUTHORITIES (8) General Overview (9) Local Elections (10) Initial Meeting of Local Authority PART IV. GOVERNANCE AND MANAGEMENT (11) Governing Body (12) Elected Members (13) Other Governance and Management Bodies and Staff (14) Meetings (15) Decision-Making Framework and Principles (16) Public Participation (17) Planning and Reporting PART V. LOCAL AUTHORITY SERVICES (18) General Overview (19) Roads (20) Water and Sanitary Services (21) Waste Management and Disposal (22) Community Facilities (23) Emergency Management (24) Reserves (25) Land Ownership, Acquisition, and Disposal PART VI. REGULATORY, ENFORCEMENT, AND COERCIVE POWERS (26) Introduction (27) Bylaws (28) Other Regulatory Regimes (29) Enforcement Powers (30) Legal Proceedings PART VII. FUNDING AND REVENUE (31) Overview on Funding (32) Funding Mechanisms PART VIII. PUBLIC ACCOUNTABILITY (33) Official Information and Transparency Mechanisms (34) Supervisory Bodies

An Urgent Submission #2

> NoRightTurn: "This bill needs a select committee" > LAWS179: "An Urgent Submission" > FrogBlog: "New domestic violence bill kept secret from public"

The government's plans about the passing of new measures to allow on-the-spot protection orders remains unclear. Early Monday morning, reports were that the Bill would be passed through all stages under urgency. Later, reports appear to have been amended to suggest the urgency would be for the First Reading only, with the Bill likely to be referred to a Select Committee. But the most recent urgency motion still suggests the Bill will be passed through all stages under urgency.

Since then, the Greens have posted a version of the government's Bill. It's largely based on parts of a previous Bill (one that had not yet been reported on by a Select Committee).

One of my colleagues, Professor Bill Atkin - a renowned family law expert, has expressed a number of technical, practical, and constitutional concerns about the Bill. His concerns were based on the previous version of the Bill, where the orders were to last only for 3 days (and were to be called something different). His concerns are now exascerbated because - under the Bill just released - the orders will now last for 5 days.

Because it's unclear whether he will have an opportunity to put his concerns to a Select Committee, he's agreed to allow me to post a (quickly prepared) version of his concerns on this blog.

In my view, it speaks volumes about the value of Select Committee process. Circumventing the public participation process avoids important concerns - including concerns from those who are experts in the field - being considered and addressed. Bad process leads to bad laws.

UPDATE 18/12/2008: I understand the Bill has just now been referred to a Select Committee for consideration. A sensible course.

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Professor W R Atkin Faculty of Law Victoria University of Wellington 15 December 2008

Safety orders for domestic violence

The new Minister of Justice, the Honourable Simon Power MP, is reported as saying that he plans to see new police powers go through Parliament under urgency before Christmas (NZ Herald, 15 December 2008). The proposal is to allow the police to hand out safety orders in domestic violence situations on-the-spot. Such orders are very similar to the protection orders that the Family Court can grant under the Domestic Violence Act 1995. The idea appears in a Bill introduced before the election by the previous Labour Minister of Justice and is therefore likely to have cross-party support. Advice to the Attorney-General stated that “the effect of an order engages numerous rights under the Bill of Rights Act” but because of “the relatively short duration of safety orders and the requirement of seniority of authorised officers” the limitations on civil rights were “on balance” justified. However, getting a proper balance in this area of the law is fraught: it is an area that exercises the energies of interest groups, including women’s groups and men’s groups. It is the very kind of legislation that ought to be thoroughly tested through the select committee process but urgency means that select committee scrutiny is by-passed. What of the two justifications in the advice to the Attorney-General? With respect to the second justification, the original Bill allows an ordinary constable to issue an order. A senior officer must have given the constable authority but the Bill does not provide that this authority has to be given specifically on each occasion. As it stands, there is nothing to stop a general authorisation being given to ordinary constables. With respect to the first justification, a police-issued safety order lasts only 72 hours. That sounds fine. Home violence is a very serious issue, one of the reasons surely that swayed the vast majority of politicians to vote for the repeal of the old section 59 of the Crimes Act 1961. However, this should not deny a careful assessment of the proposal. The short-term effect of an order is that the respondent is evicted from home and cut off from children. The long-term effect is that the respondent has an order against his or her name, something that may, among other things, affect the outcome of litigation involving the children. There is no mechanism in the Bill at all for challenging the issue of a safety order. Probably the only mechanism for doing so is a cumbersome judicial review application in the High Court or perhaps a civil action if it is claimed that the police acted without reasonable care or with a lack of bona fides. So, the consequences of a safety order, despite its short duration, are serious. We should also ask questions about the granting of these orders. First, no one needs to ask for them: the police act on their own initiative. The test for their granting is that they are “necessary to ensure the immediate safety of [the other person]”. What does “safety mean? It is undefined and is not limited to physical safety. So, a constable may act because of a fear that a person’s psychological safety is at risk. This broadens the scope of the orders enormously. Next, an order can be issued only where an arrest is not made. In other words, we are not dealing with the really serious instances of domestic violence, the ones where the police can use their familiar powers of arrest. By definition we are talking about less serious situations. One might actually wonder whether the new powers might not be more valuable where an arrest is made and the arrested person may be released within 72 hours. Finally, for the purposes of this brief comment, there is no provision at all for the respondent to put forward a different side of the story or advance an explanation and, if any such explanation happens to be given, there is no provision for it to be taken into account. It is fair enough to treat domestic violence as a top priority. While one may have constitutional qualms about these new police powers, it looks as though they will be enacted very soon. There remain however important aspects of the form of the legislation that really need to be carefully scrutinised.

16 December 2008

GUEST POST: Andrew Geddis - An extraordinary rush

Concern about the present government's use of urgency is shared by other colleagues of mine. Below is a guest post - originally submitted as a comment on my previous thread - from Associate Professor Andrew Geddis, Faculty of Law, University of Otago.
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Associate Professor Andrew Geddis Faculty of Law, University of Otago

In just its first week in office, the new National Government has pushed five enactments through Parliament. This is a quite extraordinary rush of legislation, one that raises important questions about Parliament’s status as a lawmaking institution.

I acknowledge at the outset that most, if not all, of these new laws relate to policies that National telegraphed during the election campaign. Therefore, the problem is not that National is foisting a secret or surprise legislative programme on the country.

Furthermore, the previous Labour-led Government was not above using urgency and other parliamentary tricks to rush through law changes when it suited. Therefore, the problem is not that National is behaving worse than its Labour predecessor did.

The concern instead is that National appears to be behaving no better. Its first week in control of the new Parliament indicates it also intends treating this institution’s lawmaking power as nothing more than a convenient means of getting the outcomes it wants.

Why should we care about this fact? After all, political parties campaign for office on a wide range of policy promises. When the voters give a party the reigns of government, they expect it to deliver on those promises. Indeed, there would be good grounds to complain if it did not do so.

However, the government and Parliament is not the same thing. Parliament’s enactments form our nation’s highest laws, not the policies of the governing political party. Moreover, the way Parliament turns those policies into enactments through considered deliberation and scrutiny is critical to its status as our highest lawmaker.

Where Parliament is reduced to a rubber-stamp that transforms the wishes of the governing parties into law as quickly as possible, its basic purpose is undermined.

This concern is not an abstract one. In a lecture delivered earlier this year, Professor Jeremy Waldron of New York University damned our Parliament as "a unicameral legislature, which has evolved procedures for fast-track legislation which are quite disgraceful by world standards, and which is by and large the plaything of the executive."

To put these words in context, Professor Waldron arguably is New Zealand’s finest living legal theorist. And the conservative think tank, the Maxim Institute, has just published his lecture under the title Parliamentary Recklessness: Why we need to legislate more carefully, so his hardly are the views of some dewy-eyed left-winger.

Professor Waldron’s basic critique is that New Zealand’s parliamentary lawmaking process has sacrificed its fundamental dignity to a purported need for streamlined efficiency. The critical qualities of deliberation, care and reflection have given way to speed and expediency.

I think Professor Waldron has a good point to make. I also think that this trade-off has produced at least three negative consequences.

First, legislation passed in haste often is repented of at leisure. While no one can foresee every consequence of proposed legislation, laws rushed through Parliament are far more likely to contain unexpected fishhooks that catch the public.

Remember, whatever Parliament puts into its enactments becomes our nation’s highest law. It cannot be argued after the fact, "yes, that is what Parliament said, but it did not really mean that to be law!"

Second, viewing legislation simply as an immediate solution to a particular problem erodes its overall quality. As the Law Commission recently reported, New Zealand’s statute books are a confusing mélange of multiply revised enactments, often confusingly worded, and extremely difficult to access.

This basic impenetrability of law made by Parliament is a disgrace in a democratic society. Yet, as long as legislation is considered little more than a vehicle to deliver the government what it wants, there will be no concern to remedy this problem.

Finally, the further Parliament moves away from good – that is, deliberative, careful and reflective – legislative practice, the more its basic authority is undermined. As a society, we entrust Parliament with supreme lawmaking power not only because we elect it, but also because of how it then uses that power.

An institution that produces rushed, ill-considered enactments to satisfy the ruling party’s policy desires deserves little respect. There hardly can be complaints when other institutions, such as the courts, begin to question whether Parliament’s enactments really should be followed in every case.I reiterate that I am not accusing the present National Government of being the sole villain in this piece. I also note that there will be some situations where Parliament really must move with speed to resolve a pressing matter.

However, there always will be an apparently good reason to set aside long-term values of good lawmaking in the name of "getting the job done". In addition, as Professor Waldron notes, "We have to get away from a situation where those who support a bill support rushing it through the legislature, and only those who oppose the measure express any concern about the process."

What is needed is greater recognition that deliberative, careful and reflective lawmaking is an independent good. This point is one that our representatives in Parliament appear to have forgotten.

15 December 2008

An Urgent Submission

It's like the cricket. You're watching it on the telly, then you have to leave the room for whatever reason. Undoubtedly, when you return, there have been 2 or 3 wickets lost in your absence. So I was in Sydney last week at the 25th annual conference: W(h)ither Human Rights? And when I returned, I found that the government had passed a number of Bills under urgency. The circumvention of the public submission process through Select Committees is particularly egregious. The value of public examination of legislative proposals is self-evident. Palmer and Palmer refer to this step as "one of the most important features" of our legislative process (Bridled Power, 2005, 4th ed, p 194). Some commentators suggest an essential element of the Rule of Law is the ability for the public to participate in its development. As Brian Tamanaha says: "Law obtains its authority from the consent of the governed. ... Rational democratic mechanisms must accord everyone affected by the law an equal opportunity to participate, and must secure everyone's consent." (On the Rule of Law, 2004, p 99) The mere fact that the proposal has been foreshadowed in an election manifest (to whatever degree) does not obviate the need for this scrutiny. While, at best, the broad policy may have some implied mandate (which is arguable here), there are matters of detail and implementation that are worthy of scrutiny. And, the process of participation in the development has some intrinsic value in itself. It's disappointing to see that there are plans to pass further proposals through all stages under urgency this week.

Seeing the World Whole: Essays in Honour of Sir Kenneth Keith

On Wednesday night the Chief Justice launched the book of essays written in honour of Sir Kenneth Keith, edited by Claudia Geringer and me: Claudia Geiringer and Dean R Knight (eds) Seeing the World Whole: Essays in Honour of Sir Kenneth Keith (Victoria University Press, Wellington, 2008).

Below is an extract from the foreword which records the purpose and nature of the collection:
The title of this collection — Seeing the World Whole — is appropriated (with thanks) from Ben Keith’s essay for the collection: "Seeing the World Whole: Understanding the Citation of External Sources in Judicial Reasoning". Ben Keith draws the title from Sir Kenneth’s extra-judicial writings in which Sir Kenneth drew on Richard Maclaurin who, in turn, drew on Matthew Arnold’s poem, "To a Friend": "who saw life steadily and saw it whole". It is apt that Ben Keith should have derived his title from a series of successive borrowings as the theme of his essay is borrowing of a sort — by judges, from external sources (that is, sources external to the legal resources of the particular legal system), in order to support the judicial reasoning process. It is doubly apt because Sir Kenneth, as Ben Keith points out, has been a consistent advocate of "a wide and flexible approach to legal method" and, as a judge himself, has drawn freely on a wide range of sources in his decisions. The use of external sources in judicial reasoning is, however, only one of the many ways in which Sir Kenneth has encouraged those of us engaged in the enterprise of law in its many manifestations to "see the world whole". As the contributors to this collection note time and time again, if there is one distinguishing feature of Sir Kenneth’s contribution to the law it is his ability to see connections and to encourage others to do likewise. Thus, for example, the Chief Justice remarks in her Opening Address that, "one of the gifts Sir Kenneth has is to see connections where others see divisions." This ability to see connections is also captured in Bill Sewell’s poem, "The Net-Maker", written for Sir Kenneth in 1996 — the year he took up judicial appointment on the Court of Appeal — and included in this collection with the permission of his wife, Amanda Powell. The unifying theme to this collection, therefore, is the interconnectivity of the enterprise of law. The essays contained in it reflect Sir Kenneth’s preoccupation with the connections that underlie the legal universe — between the local and the international, the past and the present, the practical and the theoretical; between law and policy, law and history, law and literature; between the varying sources that underlie the law and legal reasoning, and between the varying professional roles that may constitute a legal career. The essays in this collection were initially prepared for the conference, "From Professing to Advising to Judging: A Conference in Honour of Sir Kenneth Keith", held at the Victoria University of Wellington in August 2007. Jointly organised by the Faculty of Law and the New Zealand Centre for Public Law, the conference marked Sir Kenneth’s retirement from the New Zealand judiciary, celebrated his ascension to the giddy heights of the International Court of Justice and honoured his distinguished career as academic, law reformer, legal advisor, international advocate and judge.

The back cover, with the list of contributors, is below.

The book can be purchased from good book stores for $60. Or $54 from the following Vic sites: > VicBooks: "Seeing the World Whole: Essays in Honour of Sir Kenneth Keith" > VUP: "Seeing the World Whole: Essays in Honour of Sir Kenneth Keith"

9 December 2008

A stuck record?

> NZHerald: "Council sets out rules for buskers " > AuckCity: "Performers take to the street with licence to entertain" The NZ Herald reports:
Buskers who repeat their songs too often within an hour on Auckland City streets can be muzzled under a new council policy. From Monday, street performers in the city must obtain an annual licence, which is free if they agree to comply with the council's new code of conduct. The policy acknowledges the important contribution of street performance to the "vitality of our city" and aims to direct "the right activity to the right location at the right time". It says street performers should develop sufficient repertoire for however long they choose to perform - the maximum is one hour of playing time - without repetition. "If a performer continues to repeat items they may be asked to cease performing. Performers must immediately comply with this request." The policy allows licensed performers to operate on city streets - but not parks - at any time if they are quiet acts, such as mime or statue artists. Acts involving musical instruments, amplification or loud voices are restricted to 7am to 9pm in most areas. The time limit is extended to 2am outside Tourism Auckland and the Starmart on the central-city waterfront, and until midnight at Aotea Square and until midnight on Friday and Saturday nights on Karangahape Rd. Noise levels must not disturb customers or staff of nearby businesses, or be greater than the usual background noise when heard from 30m away. Performers are mostly limited to one hour a day at a location, but can then move to another site. The council says the policy sets a fair way to use the most popular sites and directs performers to appropriate locations in the central city, such as four places for pavement art and eight for acts that attract large audiences. "Street performance plays an important role in the vitality of Auckland City and offers entertainers the chance to gain experience and develop a public profile," said the chairman of the council's arts, culture and recreation committee, Greg Moyle. "Clarifying expectations and directing the right activity to the right location, at the right time will encourage and enable a range of street level activity in our city."

The policy of course is a prima facie breach of the freedom of expression in the Bill of Rights, but may be justifiable as a "reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society" under section 5.

I don't have time for an extended analysis - but maybe we could have a straw poll on whether folk think this policy might pass muster under section 5?

8 December 2008

Opening of Parliament Ceremonies

> Parliament: "Opening of parliament ceremonies on 8 and 9 December 2008" The Parliament website has an excellent explanation of the detail and history of the two opening of Parliament ceremonies (Commission and State) that will take place today and tomorrow:
Commission Opening of Parliament Monday, 8 December 2008 at 2 pm Opening This is the day on which Parliament is formally opened. The Governor-General sends Commissioners to the House to declare Parliament open on his behalf. The Commissioners are usually senior Judges. The Clerk of the House will read the document from the Governor-General that authorises the Commissioners to act for the Governor-General. The Commissioners will then declare Parliament open and leave the Chamber. Swearing-in The first essential activity for members once Parliament has been opened is for them to be sworn in. By law, no member may sit or vote in the House before taking the Oath of Allegiance or making an Affirmation of Allegiance to the Crown. The Clerk of the House is authorised by the Governor-General to administer the oath or the affirmation to members on the opening day. The Clerk will read this authority to the House and will then invite members to come to the left of the Speaker’s Chair, in alphabetical order, to take the oath or affirmation. The terms of the oath and the affirmation are prescribed in the Oaths and Declarations Act 1957. Members may swear or affirm in English or in Māori. After each member has taken the oath or made the affirmation, the member goes to the other side of the Chamber and signs an official register that provides evidence that they are entitled to sit and vote in the House. Election of Speaker Once members have been sworn in, they must elect someone to chair the meetings of the House. This person is known as the Speaker of the House of Representatives. The Clerk presides over the House for the election of a Speaker and calls for nominations. Members nominate themselves. There is no debate on the election of a Speaker. If only one member is nominated, that member is automatically elected. If two members are nominated the matter is decided by a personal vote. For this purpose the bells are rung for seven minutes and members vote in the voting lobbies for each candidate. Abstentions are permitted, but not proxy votes. If three or more members are nominated the Clerk asks each member (in alphabetical order) to declare for whom the member votes. Abstentions are permitted, but not proxy votes. If a candidate for election obtains more than half the votes cast, that person is elected. Otherwise, the lowest polling candidate drops out until there are only two candidates remaining. At that point the matter is decided by a personal vote. Confirmation of Speaker Monday, 8 December 2008 Governor-General’s confirmation of Speaker Although the House has elected a Speaker, by law that election only takes effect when the new Speaker is confirmed in office by the Governor-General. Until then the Speaker is known as the Speaker-Elect. The purpose of this ceremony is for that confirmation to be obtained. The Speaker-Elect will march in a procession led by the Serjeant-at-Arms and followed by the Clerk of the House and the Deputy Clerk. At this time the Serjeant-at-Arms carries the Mace (the symbol of the House) in the crook of his arm to demonstrate that the Speaker has not yet been confirmed in office. When the Governor-General enters, the Speaker-Elect will present himself or herself to the Governor-General and ask for His Excellency’s confirmation as Speaker. When His Excellency confirms the House’s choice as Speaker, the Serjeant-at-Arms will raise the Mace to his shoulder, as, from that moment on the Speaker is fully in office. House’s privileges The first thing that the Speaker does after being confirmed in office is to ask His Excellency, on behalf of the House, for confirmation of the privileges enjoyed by the House. The House’s privileges are the legal powers that the members have to protect the good name of Parliament and to enable them to carry out their duties properly. His Excellency will reply to the Speaker’s request for confirmation of these powers. Authority to swear in Members Although the Clerk of the House administered the oath or affirmation at the Commission Opening to all members who were present in the House, there may be some members who were unable to attend. In addition there may be new members elected during the life of the Parliament. All of these members will have to take the Oath of Allegiance or make an Affirmation of Allegiance before they can take their seats. Before the ceremony concludes, therefore, the Governor-General gives authority to the Speaker to administer the oath or affirmation to members who may need to take it in the future. State Opening of Parliament Tuesday, 9 December 2008 at 2 pm On this occasion the Governor-General comes to Parliament House to tell the members of Parliament the Government’s reasons for bringing Parliament together to meet. By custom, the Governor-General does not enter the House’s own Chamber (a tradition followed for over 300 years as a reaction to an occasion when a King of England entered the Chamber of the House of Commons in an attempt to arrest some members of Parliament). The ceremony is therefore held in the Legislative Council Chamber, the chamber in which the upper house used to meet until its abolition on 1 January 1951. The Governor-General will (after taking his seat on the Throne) send a messenger, known as Black Rod (so called because of the staff which he carries) to the House to summon members to the Council Chamber. On reaching the House’s Chamber, the door is shut so that Black Rod must knock on the Chamber door. When he has been admitted he gives the House His Excellency’s message and the House, led by the Serjeant-at-Arms (with the Mace) and the Speaker, march in procession to the Council Chamber. When the members have assembled in the Council Chamber, the Governor-General informs them of the Government’s reasons for calling Parliament to meet at this time. This is known as the Speech from the Throne. The Speech is a statement of the issues that the Government wishes members to consider. It usually contains a reference to important bills that the Government intends to introduce. At the conclusion of the Speech, His Excellency presents a copy of it to the Speaker and departs. When the Vice-Regal party has left, the members follow the Speaker back to their Chamber in procession to carry on with their business. When the House resumes, the Speaker reports the Speech from the Throne to the House. Over subsequent days the House will debate the issues set out in the Speech, in the Address in Reply debate.

5 December 2008

O' Canada! What happened to Constitutional Law 101?

> GlobeAndMail: "Parliament shut down till Jan. 26" > CBC: "GG agrees to suspend Parliament until January" > Kiwiblog: "The crisis in Canada" > Pundit: "Canada crashes towards crisis as PM panics

Astonishing.

Our friends in Canada are having a bit of a constitutional skirmish.

Following the recent election, the 3rd in 5 years, the tenure of the Tory minority government was fragile. For various reasons, the opposition parties who had supported the government on confidence (based on a unique Canadian custom), withdrew their support. See the other articles for the political background.

But. And this is the interesting thing. Today, matters come to a head. The Governor-General - acting on the advice of the Prime Minister - prorogued (temporarily suspended) Parliament until late January, thereby avoiding a formal no-confidence vote set for Monday. Based on the present numbers and state of play, this was a vote the Government would have inevitably lost. We know that because the opposition parties had jointly written to the Governor-General advising her that the Government no longer had the command of the House and intimating that the opposition parties were capable of forming a coalition that would secure the confidence of the House.

A rudimentary Constitutional Law 101 suggests the decision to prorgue is dodgy:

1. Her Majesty's responsible advisers are only entitled to tender advice to her as long as they command the confidence of the House. Confidence is the "life-blood" of any government.

2. If a Prime Minister does not have the confidence of the House they are obliged to resign.* If they do not honour their constitutional obligation to resign, the Governor-General is entitled to dismiss them. (*Any resignation is "contingent and deferred", in that the Prime Minister continues in the role in a caretaker capacity until elections or confidence is otherwise restored.)

3. If a Prime Minister does not have confidence, the Governor-General must exercise his or her reserve powers to restore constitutionality, consistent with the democratic imperative. This can be achieved in two ways: (a) appointing an alternative Prime Minister who commands the confidence of the House; or (b) dissolving Parliament for a fresh election.

4. The request to prorogue Parliament appears to be tendered in circumstances where the Prime Minister does not command the confidence of the House. Therefore the Governor-General is not required, and indeed is obliged not to, follow that advice.

The only wriggle-room seems to be about the crystallisation of the lost of confidence. On the one hand, the opposition parties have demonstrated in a manner consistent with the principles of government formation that the incumbent does not command the confidence of the House. They have publicly advised the Governor-General that they have the necessary numbers to command the confidence of the House. On the other hand, any lack of confidence has not yet crystallised through the formal Parliamentary process for determining no-confidence. That is, the confidence vote has not yet been lost. The loss of this vote would be determinative of a loss of confidence but this has not yet taken place.

My sense on this point - and consistent with discussions of other local folk with expertise in this area - is that if this scenario arose in the New Zealand context, it is probable that the formal advice to the Governor-General from the Opposition parties about the loss of confidence would be sufficient to trigger the obligation to resign - that is, a lost vote of confidence would not in itself be required.

Of course, it's not always possible to translate these principles directly to other jurisdictions with slightly different constitutional and political contexts and mentalities. I suspect our more intense familiarity with coalition governments and therefore our heightened understanding of the role of the Governor-General means a clear, more orthodox path might be followed here. I was struck by the extremely equivocal and contradictory advice being tendered by the various constitutional experts on the news items in Canada about the scenario.

Anyways, a skirmish worth following - I suspect the parliamentary time out might not prove enough to save the Tory government. But we'll see what happens in late January...

17 November 2008

Weir House 75th Reunion

> VicUni: "75 Years of Weir House 1933–2008"

I was asked to give some brief remarks at the International Night diner at the Weir House reunion on Saturday. I've reproduced them below:

- - - - - - - - - - - - - - - - - Weir House 75th Reunion, 15 November 2008

Ngā mihi o te po, talofa lava and good evening.

I understand it is customary at these events to give a brief whakapapa recounting one's connections with the institution being honoured and celebrated tonight.

I happily admit to being one of Jane and Leon Fulcher's cohort, like many here today. I arrived at Weir House in 1992, a skinny, spotty youth from the Manawatu (one of the "country boys" Tim Beaglehole spoke of) and spent my first year resident in room A20 in the Old – now known as William Weir – Wing.

After a year elsewhere, for my sins, I returned in 1994 as Deputy Warden, attending to administrative duties and discharging pastoral care from Room C25.

More recently, I continue to keep an eye on Weir House. As a lecturer in the Law School, I am invited and attend the Faculty dinners, a tradition I am delighted to see continues. And from the groups of students I teach, one occasionally hears words – usually warm words – said about the Weir House experience from those of the current generations of residents.

For the purposes of tonight's event, I have been asked to give a short "resident's perspective" – more a "relatively recent resident's perspective" – on my time at Weir House.

But I fear any anecdotes I might offer may prove to be rather dull. While at the time of being resident in the 1990s we thought we were renegade rascals who got up to much mischief, I must confess the tales of misadventure I overheard today from residents before my time sounded much more exciting and scandalous. (We rarely made Salient, let along the NZ Truth!)

And I suspect many of my anecdotes, such as: - the crusade for cooked Sunday brunch and the revolt against the Burmese Chicken (a dish I am now rather fond of) - the keg and other parties; - the sights one saw as a DW while checking rooms during fire alarms; are all best shared as they have been today amongst close friends and colleagues of that generation.

Instead, I just want to reflect briefly on two basic questions: - What did Weir House represent to me at the time I was a resident, and - What does Weir House represent to me now as an alumnus?

First, what did Weir House represent to me as the time I was a resident?

Two words: stability and discovery.

For me and many others, Weir House represented an anchor or mainstay in a time of great transition.

Relocating from the provinces, we as first year university residents were faced with many new challenges and things to discover. The discovery of an exciting cosmopolitan city, with the new experiences associated with the diversity we were unaccustomed. University education and higher learning – the discovery of new concepts and ideas. The discovery of ourselves, as we transitioned into adult-hood; our identity, our values; what's important to us.

Weir House facilitated these journeys of discovery. But, importantly, Weir House also provided routine, dependable home comforts and certainty during the vicissitudes of early university life.

Secondly, what does Weir represent to me as an alumnus?

Without doubt, it is friendship and rich ongoing relationship.

As solid and charming as the physical structures of Weir House were and are, the buildings are empty shells without the warmth and humanity manifest by the people that occupied them.

As I toured the building this afternoon, it was the holographic faces of my fellow residents generated by my memory that bought the real smile to my face. My friends and neighbours. And it's those relationships that were the greatest gift Weir gave to us. Relationships we continue to enjoy.

Friendships that continue on a daily basis. More distant friendships that get renewed in taverns in London, winebars in Toronto or cafes in Melbourne. Friendships that exists virtually, in the form of an occasional poke on social networking sites like Facebook.

Or friendships that exist as that warm glow when one hears of the different paths people have walked down. Senior partner in a law firm. Mother and homemaker. Professional athlete. Comedian. Old English Scholar. Civil servant. That glows as one thinks, we shared a couple of steps on that journey together.

It was a pleasure to share my time of discovery with such delightful and dependable friends. And it's been a pleasure today renewing and refreshing those acquaintances.

I look forward to doing so again in 25 years at the Centenary!

12 November 2008

A Murky Methodology: Standards of Review in Administrative Law

Below is one of my articles that has just been published in the New Zealand Journal of Public and International Law:

> Dean R Knight, "A Murky Methodology: Standards of Review in Administrative Law" (2008) 6 NZJPIL 117

(Well, it's imprinted with a June 2008 date but, for various reasons - both within and beyond our control, the hard copy just turned up this month!)

Abstract:

The approach the courts should adopt when reviewing the "merits" of an administrative decision continues to be a vexed issue. For many years Wednesbury unreasonableness was regarded as the appropriate monolithic standard for this task. However, dissatisfaction with this standard has led to the development of alternative approaches, most notably the concept of variegated standards of reasonableness. This article explores the methodology adopted by New Zealand courts on this point and concludes that, while the courts have been prepared to adopt a sliding-scale of unreasonableness, the approach is under-developed and inadequate in a number of respects. From the existing experience, a refined five-standard framework is proposed to guide the degree of intensity the courts should adopt in their supervisory judicial review role.

11 November 2008

Election 08: MP free zone

I've been reminded of a little quirk within our constitutional system: for about 19 days, we have no MPs! Let me explain. The term of members of Parliament is set out in section 54 of the Electoral Act 1993:
54 Term of office of member of Parliament
(1) Where an election is held for any electoral district, the person whose name is endorsed on the writ issued for the election as the person declared to be elected shall, subject to this Act,—
(a) come into office as the member of Parliament for that electoral district on the day after the day of the return of that writ; and
(b) vacate that office at the close of polling day at the next general election.
(2) Where any person whose name is entered on a party list submitted pursuant to section 127, is declared by the Chief Electoral Officer to be elected as a member of Parliament, the person shall, subject to this Act,
(a) come into office on the date after the date of the return made by the Chief Electoral Officer pursuant to section 193; and
(b) vacate that office at the close of polling day at the next general election.
MPs reign until the close of polling. But new electorate MPs don't come into office until the day after the writ (the formal advice to Parliament of the outcome of the election by the Chief Electoral Officer) is returned under section 285 of the Electoral Act 1993. That's not scheduled to take place until 27 November (Chief Electoral Officer: "Election date announcement puts Chief Electoral Office in top gear"). And new list MPs don't come into office until the following day, after the Chief Electoral Officer has declared those elected pursuant to the list.
The other consequence of the quirk is that our constitution needs to provide for the temporary tenure of ministers who are not MPs. The most basic feature of our system is that one needs to be an MP in order to be a minister. (In principle, it's not entirely incontrovertible, as some have suggested we could allow non-MP appointments of ministers. But that would require a constitutional change.) The MP-lacuna during the electoral transition period would ordinarily undermine that feature. But the answer - and smooth constitutional transition - is found in section 6(2) of the Constitution Act 1986:
6 Ministers of Crown to be members of Parliament
(1) A person may be appointed and may hold office as a member of the Executive Council or as a Minister of the Crown only if that person is a member of Parliament.
(2) Notwithstanding subsection (1) of this section,—
(a) A person who is not a member of Parliament may be appointed and may hold office as a member of the Executive Council or as a Minister of the Crown if that person was a candidate for election at the general election of members of the House of Representatives held immediately preceding that person's appointment as a member of the Executive Council or as a Minister of the Crown but shall vacate office at the expiration of the period of 40 days beginning with the date of the appointment unless, within that period, that person becomes a member of Parliament; and
(b) Where a person who holds office both as a member of Parliament and as a member of the Executive Council or as a Minister of the Crown ceases to be a member of Parliament, that person may continue to hold office as a member of the Executive Council or as a Minister of the Crown until the expiration of the 28th day after the day on which that person ceases to be a member of Parliament.
Existing ministers can continue as ministers for 28 days after election day. People can be appointed ministers and continue to hold tenure for up to 40 days, if they were a candidate in the election but have not yet formally come into office.
In previous government transitions under MMP, the determination of Prime Minister and new ministerial positions was settled after MPs came into office. However, with the rush to get John Key to APEC, these arrangements are being expedited and he will be appointed before then - perhaps even on the weekend. In a formal sense, that means he will be representing New Zealand as the most senior member of our Executive, but not yet as a member of our Parliament!

10 November 2008

Election 08: executive roles for the Maori Party

There's some talk about Ministerial roles outside Cabinet for the Maori Party. I wonder, though, whether the wiser solution might be to appoint Turia and Sharples as Parliamentary Under-Secretaries. See paras 2.45 - 2.48 of the Cabinet Manual:
Parliamentary Under-Secretaries 2.45 The Governor-General, under section 8 of the Constitution Act 1986, may appoint any member of Parliament to be a Parliamentary Under-Secretary in relation to the ministerial office or offices specified in the warrant of appointment. The Governor-General appoints Parliamentary Under-Secretaries on the advice of the Prime Minister. Although they form part of executive government, Parliamentary Under-Secretaries are not members of the Executive Council, so they are not empowered to act for Ministers under section 7 of the Constitution Act 1986. 2.46 Parliamentary Under-Secretaries are appointed to assist Ministers, and their authority derives solely from the Minister they are assisting. (See section 9 of the Constitution Act 1986.) 2.47 The relevant Minister must provide to the Parliamentary Under-Secretary a formal letter clearly setting out the role of the Parliamentary Under-Secretary in the portfolio, any delegated responsibilities, and relevant working arrangements. The draft letter must be approved by the Prime Minister through the Secretary of the Cabinet, and the Minister should provide copies of the final letter to the Secretary of the Cabinet and the chief executive of the department concerned. As with Associate Ministers, the letter should set out clearly the Parliamentary Under-Secretary's area of responsibility, including any limits on authority, on the ability to make public statements, and on the relationship with the department. Details of delegations to Parliamentary Under-Secretaries may be included in the Schedule of Responsibilities Delegated to Associate Ministers. (See paragraphs 2.32(c) and 2.35.) 2.48 As members of the Executive, Parliamentary Under-Secretaries are bound by the principle of collective responsibility. (See paragraphs 5.22 - 5.28.)

In my view, a better deal to the "unity-distinctiveness" dilemma for both side of the equation.

Election 08: constitutional tid-bits

"Prime Minister Elect" This is an awkward term that sits awkwardly with our traditions and constitutional process for determining the head of our Executive. In a formal sense, the Prime Minister is appointed by the Governor-General under his or her reserve prerogative powers (see LAWS179: "NineToNoon: The election and government formation"). In a substantive sense, voters do not "elect" a Prime Minister. They do not vote for a Prime Minister, like they do with the President in the United States. Nor do they actually "elect" a government under MMP. Nowadays our system contemplates the indirect election of governments, that is, voters elect parliamentarians who are then charged with the function of determining a government through a process of coalition and confidence-and-supply negotiations (see Joseph, ""MMP and the Constitution: Future Constitutional Challenges"). Perhaps a better term might be "Prime Minister Designate"? Cabinet Collective Responsibility There was a comment made over the weekend that Sir Roger Douglas might not want to sit around the Cabinet table and may prefer to be a Minister Outside Cabinet, because then he would not be bound by Cabinet collective responsibility. This is incorrect. Para 2.27 of the Cabinet Manual provides:
Cabinet Ministers, Ministers outside Cabinet, and Ministers of State 2.26 ... 2.27 Ministers outside Cabinet have full legal powers as Ministers, and may be appointed to full portfolios. They have the same role, duties, and responsibilities as Ministers inside Cabinet, and are also bound by the principle of collective responsibility. (See paragraphs 5.22 - 5.28.) They do not attend Cabinet, but, with the agreement of the Prime Minister, may attend for particular items relating to their portfolio interests. They are usually members of one or more committees, attending other committees where relevant.

And, of course, both Winston Peters and Peter Dunne have been bound by Cabinet collective responsibility during their tenure as ministers outside cabinet, subject only to the "agree to disagree" provisions that their parties have been able to negotiate in confidence and supply agreements.

Constitutional transition I've addressed the timetable for transition and operative caretaker convention in an earlier post: > LAWS179: "Election 08 - the constitutional transition"

9 November 2008

Election 08 - the constitutional transition

In the light of last night's results, the transition process - from a constitutional perspective - will be as follows. First, even though the electoral process has delivered a clear verdict, those parties that will form the government will need to complete their (political) coalition negotiations. Secondly, the constitutional role of the Governor-General regarding the appointment of the Prime Minister remains the same: to ascertain where the support of the House lies (see LAWS179: "NineToNoon: The election and government formation"). While it is clear that John Key will lead the next government, the precise nature of the coalition or government arrangements - and parties in any coalition or support arrangements - is yet to be settled. The Governor-General needs to be satisfied that that grouping will be able to survive confidence and supply votes in Parliament. As a guide, the Governor-General has traditionally looked for signed coalition or confidence-and-supply agreements, or similar joint public statements confirming arrangements have been settled to provide that support. Again, it's important to note that this process and its timing will be driven by the political parties. Their obligation is to publicly declare the position once it is reached; once that is done, the Governor-General will execute the constitutional process of appointing and swearing in the Prime Minister and new government. When that formal constitutional transition will take place is not known. From a constitutional perspective, it need not await the final results following the counting of special votes (22 November 2008). Given the relatively clear electoral verdict for the potential coalition government, the Governor-General might be able to be satisfied that this grouping can command the confidence of the House regardless of any possible changes from special votes. (In previous rounds of government formation under MMP, coalition negotiations weren't finalised - and the governments weren't appointed - until after the final confirmation of the various results, in some cases, the outcome of the special votes being material to the garnering of a coalition.) However, the parties or the Governor-General may take a prudent course and the constitutional transfer of power might not be sought or applied until after the official results are known. Thirdly, in the meantime, Helen Clark remains Prime Minister with lawful executive authority, along with her ministers. But their power is entirely circumscribed by the caretaker convention until the new government is sworn in. Before the election, we expected that one particular version of caretaker convention would apply during the period of coalition negotiations, that is, the relatively complex set of provisions in para 6.20 of the Cabinet Manual regulating decision-making where the identity of the incoming government is unclear. However, in this case where there is a clear verdict, the alternative version of the caretaker convention in para 6.24 of the Cabinet Manual applies:
Principles of the caretaker convention Two arms of the convention 6.19 There are two arms to the caretaker convention: a. where it is not clear who will form the next government (see paragraphs 6.20 - 6.23); b. where it is clear who will form the next government, but they have not yet taken office (see paragraphs 6.24 - 6.25). ... Clear outcome 6.24 Where it is clear which party or parties will form the next government but Ministers have not yet been sworn in, the outgoing government should: a. undertake no new policy initiatives; and b. act on the advice of the incoming government on any matter of such constitutional, economic or other significance that it cannot be delayed until the new government formally takes office - even if the outgoing government disagrees with the course of action proposed. 6.25 Situations of this kind are likely to be relatively short-lived, as the Constitution Act 1986 enables a swift transition between administrations once the composition of the new government has been confirmed.

That is, the Prime Minister and her ministers are required to act on the advice of John Key if any matters of significance need to be addressed before his government is sworn in.

5 November 2008

NineToNoon: The election and government formation

> RadioNZ: "NineToNoon - Legal Commentator - Dean Knight (5/11/2008) [or mp3] The post below is an expanded version of some of the things discussed with Kathryn Ryan on NineToNoon.
-------------------

Background As at Saturday approaches, there's really one important matter from a constitutional perspective: the formation of the government following the election. There are four important questions we need to address: - Who is responsible for determining who the next Prime Minister and government is? - How do they determine that? - What process do they undertake when determining that? - What happens after it has been resolved (or not resolved)? The Cabinet Office has helpfully collated lots of useful information about this process, and has made it publicly available on its website: http://www.cabinetoffice.govt.nz/

Who is responsible for selecting the next Prime Minister? It may surprise some people to realise that it is the Queen herself who is ultimately responsible for selecting or appointing the Prime Minister: her most senior responsible adviser. It's one of the (Royal) prerogative powers or powers of the Sovereign.

However, unsurprisingly, the Queen steers well clear of New Zealand during election time!

That responsibility has been formally delegated to the Governor-General, Anand Satyanand, under clause 10 of the Letters Patent (one of the formal legal instruments of the Monarch). But usually the Governor-General simply acts on advice of the government? How does it work in the context where there is no government? Although the Governor-General formally makes many of our most important decisions (signing new laws and regulations, dissolving Parliament, etc), the most important constitutional convention says he must act on the advice on his responsible advisors, that is, the Prime Minister and other Ministers. That ensures decisions made have democratic legitimacy.

But when it comes to forming a new government, the Governor-General must act independently and makes his own judgement – there are no "responsible advisors" with a democratic mandate to advise him. This is what we describe as one of the reserve powers, decisions that are "reserved" to the Sovereign or their local representative to make themselves.

We didn't always think the decision about who is entitled to be Prime Minister was made by the Governor-General themselves. Historically there was some suggestion that the outgoing Prime Minister advised the Governor-General of their replacements. But this view has been properly debunked - an outgoing Prime Minister does not have the confidence necessary to advise the Governor-General on such matter.

If it's the Governor-General who decides who should be appointed Prime Minister, how do they decide who to appoint? As with many decisions in constitutional law, although the Governor-General has the power to appoint the Prime Minister and government, that power is not unfettered. There are important limitations on the exercise of that power.

Here it is fettered by constitutional convention – those fuzzy customs that are so important within our constitutional convention.

What is this the convention? And where do we find it? There's a couple of places where we can find a description of the conventions that apply and must be honoured. - First, there's the handy Cabinet Manual. It describes in summary form the basic nature of the conventions. - Secondly, there's also another quite important constitutional source: notable speeches from former Governors-General. We can add those to our taxonomy or list of sources within our "unwritten" or "customary" convention.

In particular, our first Governor-General to operate in an MMP environment – Sir Michael Hardie Boys – gave a number of speeches on the topic. There speeches are treated as being authoritative on the convention. They're thoroughly researched and carefully worded.

What does the convention say? The central point of the convention is that the selection and appointment of the Prime Minister and government needs to be done consistently with the democratic imperative.

The Governor-General is an unelected official who needs remain neutral and apolitical. The process of forming a government is political and the decision to form a government must be arrived at by politicians, in accordance with the chips dealt to them in the election. Borrowing words from elsewhere, they are "political decisions, politically arrive at".

The Governor-General's sole task is to ascertain the will of Parliament. That is, as Sir Michael Hardie Boys repeatedly put it, "to ascertain where the support of the House lies". That's the crucial phrase, and what gives the process its democratic foundation because it links the appointment of the Prime Minister to the product of the electoral system.

When acting in accordance with that test, a Governor-General can take comfort that they are acting consistently with the democratic imperative. If they deviate from it, we move into the zone of constitution crisis.

What's meant by the phrase "support of the House"? This means the government needs to enjoy the confidence of the House. That's the target for any prospective Prime Minister. With it they are entitled to govern. Without it they're obliged to resign and act in a caretaker capacity until a new government is appointed. It's the lifeblood of a government.

As our parliamentary guru, David McGee, says "strictly speaking, confidence is a negative and somewhat circular concept". A government retains the confidence of the House "for so long as it can avoid defeat on important parliamentary votes – those votes that involve confidence".

What votes involve confidence then? The basic point is that it's not every vote that the government needs to win. They can, and occasionally do, lose some votes on some bills and procedural matters.

Again, the question of what votes are confidence votes involves a degree of political judgement, but we basically know what we're looking for.

First, there might be an express vote of confidence or no confidence in the government or Prime Minister. That is, where the motion says something like "the House has no confidence in the government".

Secondly, there are implied votes of confidence. Those votes which relate to the "supply" of money to fund the operation of government. The Budget and the granting of imprest supply. Without parliamentary authorisation of expenditure, the machinery of government cannot operate. Hence we hear the term "confidence and supply".

Finally, the government can "declare" any vote on any Bill or issue effectively a vote on confidence.

In this context, an express vote of confidence or no-confidence will be one of the first hurdles of any new government.

Historically, no confidence votes were more common. No confidence votes are usually moved as an amendment to another motion before the House. But nowadays, under MMP, its been more common to see a positive motion of confidence in a government being put. There's no real difference between the two (apart from when the vote is tied where the effect of the vote can be a bit more tricky to work out).

Under the standing orders, there are only a few debates which are broad enough to allow for a motion of no confidence: the Address in Reply (the first debate of the Parliament), the debate on the Prime Minister's Statement (the first debate of each year) and the Budget date etc. But the Prime Minister is usually appointed before the House is reconvened? Essentially the Governor-General's task is to ascertain, as conclusively as he can, which parliamentary grouping will survive that vote of confidence. And he will probably be called on to do so before that House reconvenes and the vote actually happens. Subsequently, that first confidence will act as the "check or balance" on the Governor-General's judgement – it should confirm his assessment of where the support of the House lies.

He will be looking for statements from the political parties confirming that they can command the support of the House. Things like signed coalition or confidence and supply agreements. Clear and unequivocal public statements of support, etc.

There are a range of coalition or governance arrangements which can ensure that a grouping can maintain the support of the House. You might think of them in terms of a spectrum: - a formal coalition agreement, like Progressive has, where the support party has a Minister at the Cabinet table; - a confidence and supply agreement, like NZF and United have, with or without Ministerial positions, where the support parties agree to support the government on confidence and supply; - co-operation agreements, like the Greens have now, where the support party agrees to abstain on votes of confidence; - other more innovative arrangements (there's been some speculation that the Maori Party might seek governance arrangements we have not yet seen before).

As we've heard recently, government formation is much more complicated that one main party getting more seats than the other. Being able to construct or garner a coalition that commands the support of the House is more important.

What about this claims circulating that there is a "convention" that the largest party in the House gets first chance to form a government or is legally or morally more legitimate as a government? From a constitutional or legal sense, there's no basis for such claims. This suggestion was specifically rejected in one of the Sir Michael Hardie Boys' early speeches on government formation under MMP (1997 Harkness Henry lecture):

"In a parliamentary democracy, the exercise of my powers must always be governed by the question of where the support of the House lies. It is this simple principle which provides the answer to those who sometimes suggest that in situations like that encountered by New Zealand after the last election, the head of state should simply call on the leader of the largest party to form a government. Size alone provides no reason to prefer a party if its leader does not appear to have the support of a majority of the House. It is better to wait for negotiation among the parties to produce a majority."

Quite simply, there is no such constitutional convention. Quite the opposite. The potential arrangements being queried are consistent with the democratic imperative; they ensure the government reflects the majority of votes expressed in terms of MPs. And, in my view, this claim has no more foundation when expressed in terms of "moral" legitimacy. We know what the ultimate target is: commanding the support of the House. That's just an attempt to influence the nature of government formation by trying to change the terminology.

I sometimes make an analogy between the race for PM and a Ranfurly Shield match. My team, Wellington, would play Canterbury and would often score lots of tries. But in the way they often do, the Canterbury team would convert their pressue into points through lots of penalties, and occasionally a drop-goal or two. And much to my disappointment, they'd get more points on the board at the end of the day.

I know my team, Wellington, was the more enterprising and scored many more tries. But the other team scored more points. A "moral victory" for my team? Not really. And, in any event, that's not going to be enough to bring the Shield home.

Returning to the question of how the Governor-General determines who has the support of House, practically how does this happen? Again, this is governed by the need for the Governor-General to be neutral and apolitical. At least in the first instance, the Governor-General will leave the parties engage in their negotiations. Importantly, the Governor-General does not actively facilitate negotiations. (Unlike, say, Denmark where there's a "Queen's Round" where the parties have an immediate audience before the Queen and negotiations facilitated by a Royal Investigator.)

If the Governor-General does anything on Sunday, it will simply be to reiterate these principles.

Once a party considers they have the necessary support, it is expected that the parties will announce that fact and provide the necessary confirmation. Again, the need to avoid perceptions of bias or interference means the Governor-General has decreed that such announcements should be done publicly.

Following any announcement, there may be a need to the Governor-General to communicate with the party leaders to ensure that he has sufficient information to satisfy himself that he can appoint the Prime Minister. If there is any need for communication, this will be undertaken through the Clerk of the Executive Council (who is also the Secretary of Cabinet), who provides official, independent support for the Governor-General during this time.

If the situation continues to be unclear after negotiations, the Governor-General may need to communicate with the leaders of all political parties; at this point, there may be some need for more active facilitation of negotiations by the Governor-General - but to date this has not been needed.

If it's still not clear, the support of the House may be tested on the floor of the House in votes of confidence. There's no constitutional need for the position to be settled before the Parliament must be reconvene, although it sets an incentive or informal deadline (in 1999, the government wasn't formed until the eve of the opening of Parliament).

And, of course, if the Parliament remains hung and no-one can command support, the House may need to be dissolved by the Governor-General and fresh elections called. What are the key dates? 9 November 2008: Election 22 November 2008: Official results declared 27 November 2008: Return of the writ (Chief Electoral Officer reports the election results back to Parliament) 28 November 2008: Declaration of list members elected 8 January 2009: Parliament must be summonsed (Commission opening of Parliament, followed by state opening of Parliament and Speech from the Throne the following day).

Who is in charge while this all takes place? During this period of government formation, Helen Clark will continue as Prime Minister, along with her Ministers, but subject to the caretaker convention which prevents any significant decision-making without cross-party consultation.

So what happens when the Governor-General has determined who has the support of the House? An announcement will be made by the Governor-General. A formal swearing-in ceremony will follow quite quickly, even if the government is the same as before.

Once the Prime Minister is appointed, the Governor-General once again has a responsible advisor and we revert to the convention where the Governor-General acts on his or her advice. This allows the Prime Minister to then advise the Governor-General about what other Ministers ought to be appointed and to what portfolio.

Can the decision to appoint a Prime Minister be challenged in the courts? The Governor-General's decision is what we describe as being "non-justiciable" and not able to be challenged in the courts.

Here we have some recent authority from the courts. Although the circumstances were a little different, the Fiji High Court considered this very question in a legal challenge to their President's decision to dismiss and appoint a new Prime Minister following the 2006 coup (Qarase v Bainimarama). It ruled that the courts were not entitled to review the decision.

REFERENCES: - Cabinet Office, "Election 2008" - Geoffrey Palmer and Matthew Palmer, Bridled Power: New Zealand's Constitution and Government (2004, OUP, Oxford) - Philip A Joseph, Constitutional and Administrative Law in New Zealand (3 ed, 2007, Brookers, Wellington) - David McGee, Parliamentary Practice in New Zealand (3ed, Dunmore Press, Wellington, 2005) - Sir Michael Hardie Boys, "The Role of the Governor-General under MMP" - Sir Michael Hardie Boys, "The 1997 Harkness Henry Lecture: Continuity and Change" - Sir Michael Hardie Boys, "Governing under MMP: the Constitutional and Policy Challenges"

28 October 2008

Honorary Consul to Monaco - Cabinet Papers

> OneNews: "Email trail relinks Peters to Glenn" > KiwiBlog: "The corruption of the Clark/Peters Government"

Peters role in the purportedly recommending that Owen Glenn be appointed the Honorary Counsul to Monaco has once again hit the wires. Some time ago I made an OIA request to obtain any Cabinet papers on such an appointment since the beginning of 2006 or alternatively to obtain confirmation that none exist. Below is the response I received, confirming that no such paper was put to Cabinet (it was also clarified that the response also applied to Cabinet Committees as well as Cabinet itself):

Of course, one would have expected such an appointment to be approved by Cabinet. As the Cabinet Guide records:

Which appointments should be considered by Cabinet? The collective interest of the government is best served if the whole of Cabinet participates in the making of appointments. In general, all but the most minor appointments made by Ministers, or by the Governor-General on the advice of a Minister, should first be considered by APH. Even where an appointment is the responsibility of a particular Minister, it is important that it is raised with colleagues to ensure the widest possible input into the appointment process.

See also para 5.12(l) of the Cabinet Manual.

Bill-stickering and the Wellington City Council

> LAWS179: "Vote with Eyes Wide Open, Wellington City, and Phantom Billstickers" Following my previous post on this issue, I was contacted by the relevant manager at Wellington City about my post. He suggested the assumption underlying the article and my post was that the Council has banned posters on Council assets (other than those poster bollards managed commercially by Phantom Billstickers). He pointed out that the relevant bylaw only requires prior approval be obtained from the Council before placing the posters (Wellington City Consolidated Bylaw 2008, part 5):
9.5 With the exception of approved hoardings under this clause, no one shall affix or place a poster or notice to any Council ornament, statue, structure, building, or facilities in a public place without the Council's prior approval.

I'm happy for that to be clarified. But, in my view, it still misses the point. First, in this context, requiring prior approval (which may include conditions restricting locations, sizes of posters, recovery of the cost of damage - including pre-paid bonds, duration, etc) is tantamount to banning this important expressive outlet. Compliance with these types of conditions is basically incompatible with the nature of bill-stickering involved, especially given the renegade nature of such campaigns. Secondly, prior approval risks the unprincipled and arbitrary exercise of discretion - especially where, as is the case here, no criteria exists to govern the exercise of such discretion. The folk at Both Eyes Open have told me that Wellington City has taken the position that political postering is only appropriate for the designated hoarding sites - those road-side grass verges where the usual political party hoardings are erected. That is, approval will not be granted to post political posters on utility poles and other assets around the central city (a point confirmed by the Council manager); nor, as the original article reports, are political posters permitted on the official poster bollards. Again, such (content-specific) restrictions effectively amount to, as the Supreme Court of Canada put it, the "denial of access to a historically and politically significant form of expression". Thirdly, to clarify a point made by Idiot/Savant (NoRightTurn: "Dean Knight on WCC's suppression of free speech"), I'm not suggesting the delegation of the regulation function to Phantom Billstickers means the problem escapes the reach of the Bill of Rights. As Idiot/Savant correctly points out, Phantom Billstickers would probably be caught under the "public function" part of the section 3(b) of the Bill of Rights meaning they would be bound to act consistently with it. Alternatively: (a) as an agent of a body exercising a public function (Wellington City) it might be caught; and (b) Wellington City itself could be pursued for its own breaches by delegating the function (either in an unfettered way or in a way that requires apoliticality of posters) to Phantom Billstickers. On the latter point, the folk at Both Eyes Open have told me that the prohibition of political billstickers on official bollards is a position of the City itself; that is, the Council has told Phatom Billstickers not to allow them. But I need to note that I haven't had that point confirmed either way by the City itself - again, one of the problems arising from the criteria for postering not being explicitly set. Of course, these issues aren't easy. A lot is at stake. There are conflicting rights and government imperatives that must be accommodated or balanced. As time permits, I'm exploring some of the North American literature which has explored some of these issues and I'll try and report back. That said, my intuition and initial analysis still suggests that Wellington City is completely off the mark on this one. Time perhaps for the Mayor to take a lead on this one, and for her to direct the Council administration stop restricting this important part of the democracy. One might direct her to the Council's own "Sense of Place" planning document which contains the following core statement:

Wellington’s essence is its integration . . . • Hills-harbour-buildings-greenery in balance • Work-play-living in proximity • Nationhood-mana-creativity in synergy • Symbols-character-energy-places in concert • All types of people in there together ...and the key to protecting this is to keep it all accessible.

It is also specifically requires the Council to "work to ensure that all new growth preserves and enhances" the following, amongst others, characteristic:

5. The role as centre of the nation – a successful host of the government and Treaty of Waitangi negotiation and management

In my view, Wellington City is failing to live up to its commitment by suppressing this core activity of the political and democratic process.

Offender levy for victims of crime and the Law Commission

A comment on National Radio's law and order debate this morning prompted me again on the issue of an offender levy for victims of crime. First, some of the merits of the proposal are discussed in a Law Commission Discussion paper recently released, with it concluding that "there are a number of significant issues and potential problems with a levy system". > Law Commission, Compensating Crime Victims (17 Oct 2008) The full extract on this point is below.

Imposing an Offender Levy 4.73 Imposing a levy on offenders at sentencing would be a way of raising revenue that could be ring-fenced for victims’ services. It would provide some guarantee that funding would be available, although it is not clear how much. It may also be seen by some as an appropriate way of bringing home to an offender the consequences of his or her actions by imposing an additional punishment that has a direct link to the victims of crime. Those who see a levy as having a benefit of this kind have contrasted it with other sanctions such as fines and imprisonment, which generally have no apparent connection with the consequences of the offending for the victim. 4.74 Notwithstanding these possible benefits, there are a number of significant issues and potential problems with a levy system. 4.75 There is an issue about which category of offenders it should apply to. For example, should it apply to everyone regardless of penalty or should it be confined to offenders who receive particular kinds of penalty such as fines? On the one hand, it would be odd to confine it to offenders who receive fines, since whether or not a levy was imposed would then depend upon decisions unrelated to the purpose of the levy. On the other hand, if everyone, including those sentenced to imprisonment, was subject to the levy this would increase the inevitable problems with collection. 4.76 Whatever the range of offences to which it is applied, the financial circumstances of many offenders already impact on the making, amount and payment of sentences of reparation, as well as fine collection, and introducing a levy would exacerbate this. It would be possible to set the amount of the levy at such a low rate that it would not make any, or would only make a small discernible, difference to the offender’s financial situation. However, that would clearly reduce the amount of revenue that could be raised. There would be particular difficulties with imposing levies on persons who have been sentenced to long-term imprisonment. Moreover, the non-payment rate of small levies imposed on all offenders would probably be so high that the administration costs of enforcement would exceed the amount collected. 4.77 If levies of the same amount were imposed on all offenders, that would raise proportionality issues: why should an offender convicted of a very minor offence without any direct victim at all pay the same amount as an offender convicted of rape or wounding with intent to commit grievous bodily harm? 4.78 There would also be issues about whether the levy should have priority over reparation and fines or vice versa. If the levy had to be paid before a sentence of reparation, victims may feel aggrieved that their particular harm or loss was not being addressed first. In addition, if it applied to prisoners and other offenders against whom reparation was not ordered, the victim might feel aggrieved the state was paid while he or she was not. On the other hand, if priority were given to the payment of reparation sentences, the prospects of the offender paying the levy would be further reduced. Similar arguments can be advanced in relation to the payment of fines; if the levy had to be paid before a fine, it could detrimentally impact on fine collection and, if the fine had to be paid before the levy, it would be more difficult to ensure payment of the levy. 4.79 More generally, there are two core problems with using levies on offenders to fund victim services. First, it is relatively unpredictable. The level of funds would fluctuate from year to year based on decisions that are unrelated to the question of what funding should be available. While this could be adjusted by changes in government funding to make up any shortfall, any adjustment would be after the event, creating uncertainty for victims’ services which need to be able to plan their activities. 4.80 Secondly, there is an argument that earmarked funds of this sort are inherently undesirable because they bypass the normal process of government priority setting. Ordinarily, funding for core government activities and initiatives, such as policing, crime prevention, health and education, are matters for government determination. The level of funding for victim support services should equally be a matter for government determination. Earmarked funds mean that the level of funding is not decided by elected representatives but instead driven by unrelated factors. In this sense, they can be said to bypass the ordinary democratic process. 4.81 In the Commission’s view, therefore, if an offender levy were to be introduced, the proceeds from it should be paid into the consolidated fund as a contribution to the funding of victim services. Government decisions about the level of funding should not be dependent on the size of that contribution.

Q18 Should a levy be imposed on offenders? Why? Q19 If so, on what categories of offenders should it be imposed? For example, should it be imposed on traffic offenders, including those who commit infringement offences? Should it be imposed on offenders sentenced to imprisonment? Q20 Should a levy take priority over reparation and/or fines? Why? Q21 What should the money raised be used for? Do you agree with the Commission’s view that it should be paid into the consolidated fund rather than an earmarked pool?

Secondly, and the point that originally raised my eyebrows, was the fact that the Law Commission released a paper (albeit an issues paper) during the election campaign that commented on a policy held by a major political party (see National, "Policy on Victims of Crime"). I would have thought the nature and role of the Law Commission and the conventions about the neutrality of the public service agencies would have militated against releasing such a document in the pre-election period, especially when it could have readily been deferred until after the election.

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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