15 April 2008

Electoral Finance Act - litigation

> NZHerald: "Labour backs National bid to seek Electoral Act ruling" > KiwiBlog: "Electoral Finance Act editorial and law suit I made some comments on another blog about the judicial review / declaratory judgment proceedings that have been filed by National in relation to the "rulings" issued by the Electoral Commission. I thought I'd repost them here. "Judicial review proceedings (and I think declaratory judgment proceedings) are fast track proceedings and should expedited. It’s possible, because of their significance, that the parties might seek a full Bench (ie 2 or 3 judges). These matters can be appealed to the Court of Appeal (as of right) and Supreme Court (with leave, based on the case’s public importance). There may still be a question of whether the questions are ripe for review: - Usually the courts are reluctant to give advisory opinions based on hypothetical matters or to review the advisory actions of other bodies that don’t affect legal rights. It is possible to argue that the EC’s expressions of opinions might fall in this class. - Also, the courts have often declined to give declarations where the issue is capable of being tested in criminal proceedings. - On the enforcement question, decisions not to prosecute are normally not justiciable (amendable to review) except in extreme cases. There’s an issue about whether the qualfied duty of the EC to refer matters to the follow falls within that rubric or not. However, the supervisory jurisdiction of the High Court is pretty discretionary; whether these points are significant will depend on the judges and how they read the context. (As an aside, there’s also a theoretical question about whose view should prevail. In England and New Zealand, the courts have taken the view that, as a matter of constitutional principle, it is their duty to determine the meaning of legal questions. However, in Canada and the US, in some circumstances, the courts gives some “deference” to specialist tribunals like the Electoral Commission, only intervening if the legal interpretation adopted is unreasonable (as opposed to being incorrect). Lord Cooke left this door open in judgements in the 1990s but never came to readdress this before his passing. It will be interesting to see if this is pursued in the hearing.)"

7 April 2008

Rugby and the Rule of Law

> DomPost: "Ref in firing line after Hurricanes debacle" As a staunch 'Canes supporter, I was deeply aggrieved by the outcome of the match on Saturday and the referee's dodgy call / non-call in the last play. But. There's a but. Although I think he made an blunderous error, I think he was probably correct in not going to the TMO. There is limited scope for a referee to consult the TMO:
THE LAWS OF THE GAME OF RUGBY 6.A.7 REFEREE CONSULTING WITH OTHERS (a) The referee may consult with touch judges in regard to matters relating to their duties, the Law relating to foul play, or timekeeping. (b) A match organiser may appoint an official who uses technological devices. If the referee is unsure when making a decision in in-goal involving a try being scored or a touch down, that official may be consulted. (c) The official may be consulted if the referee is unsure when making a decision in in-goal with regard to the scoring of a try or a touchdown when foul play in in-goal may have been involved. (d) The official may be consulted in relation to the success or otherwise of kicks at goal. (e) The official may be consulted if the referee or touch judge is unsure if a player was or was not in touch when attempting to ground the ball to score a try. (f) The official may be consulted if the referee or touch judges are unsure when making a decision relating to touch-in-goal and the ball being made dead if a score may have occurred. (g) A match organiser may appoint a timekeeper who will signify the end of each half. (h) The referee must not consult with any other persons.

As I understand it, the referee ruled (erroneously) that the Hurricanes had knocked the ball on prior to entering the in-goal. This is an infringement which falls outside the scope of TMO review. The knock-on call was clearly wrong but, as the first infringement, this infringement was called first and prevented the following matters from being referred to the TMO.

However, if the referee had not ruled that there was a knock-on, the issues that followed clearly could have been referred to the TMO: - Waldron arguably scoring the try (6.A.7(b)); - Smith being tackled without the ball in-goal (6.A.7(c): tackling without the ball is foul-play under 10.4(f)).

Some might argue for greater scope to refer matters to the TMO, especially as (say) the NRL gives these officials greater review powers. But limits need to be drawn somewhere. On the one hand, we want the laws to be complied with and enforced accurately. On the other hand, allowing review of every decision creates logistical nightmares and disempowers the referees.

There's some analogy to be made to the law of judicial review where Parliament enacted privative clauses - ousting the jurisdiction of the High Court to review errors made by officials - to provide legal certainty (although our courts have largely read these down to make them nugatory). Similarly, the courts themselves have recognised that, in some cases, some issues are simply non-justiciable (ie not properly subject to judicial determination) because, amongst other reasons, review by the courts would usurp the constitutional allocation of functions and the courts processes are not suitable to reviewing such challenges.

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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