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.)"

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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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