30 July 2008

EPMU, Electoral Commission, and jurisdictional facts

> Electoral Commission: "meeting summary" > DomPost: "Unions able to register as third parties" > KiwiBlog: "EPMU allowed to register - again" The Electoral Commission has registered the EPMU as a third party, after reconsidering its eligibility after the High Court ruled it had misinterpreted the provision allowing registration. The critical provision is section 13 of the Electoral Finance Act:
13 Persons eligible to be third party (1) A person is eligible to be listed as a third party if the person is— (a) a New Zealand citizen or ordinarily resident in New Zealand; or (b) a body corporate that is not an overseas person within the meaning of the Overseas Investment Act 2005; or (c) an unincorporated body of which the majority of its members are persons described in paragraph (a). (2) The following are ineligible to be a third party: ... (f) a person involved in the administration of— (i) the affairs of a party; or (ii) the affairs of a candidate in relation to his or her election campaign.

The Electoral Commission has obviously made the judgement that the EPMU is not "involved in the administration of the affairs of a party". A number of people have expressed surprise at this conclusion, with the EPMU being affiliated in various ways to the Labour Party.

Now, I don't have a particular view either way whether that's correct or not. What I'm interested in is how a supervising court might review that decision, if a judicial review of the decision is taken in the High Court. The appropriate methodology is, I think, surprisingly unclear.

First, though, dealing with a matter which is clear. If the Electoral Commission has made an error of law and has misinterpreted the meaning of words or phrases like "involved in the administration" or "affairs of a party", then the High Court will intervene to correct the error (Peters v Davison). A "correctness" standard applies, that is, the court will focus on whether the Electoral Commission has applied the correct meaning. The courts consider it is "in fulfilment of their constitutional role as interpreters of the written law" to determine what the law means - no latitude or deference is given to an administrative body's interpretation of a statute (Bulk Gas).

Secondly, assuming the Electoral Commission has properly directed itself on the meaning of the section, the factual assessment or judgement of whether the EPMU satisfies the statutory standard is different.

On the one hand, there is an argument that that factual assessment circumscribes the jurisdiction of the Electoral Commission to act and register the body as a third party. Any error made in that (factual) assessment leads to the Electoral Commission exceeding the jurisdiction conferred by Parliament, meaning it has acted unlawfully; this mandates the High Court to intervene and overturn the decision (Zerek, White and Collins, and Khawaja; also (arguably) Discount Brands). Sometimes this approach is described as the doctrine of jurisdictional fact (or precedent fact). It represents a gloss on the usual principle that courts will be reluctant to intervene and overturn an administrative body's fact-finding, judgement, and - in general terms, the "merits" of the decision; such matters having been delegated by Parliament to the administrative body to determine, not the courts.

On the other hand, some of our courts have been sceptical about framing the approach in terms of jurisdictional terms. Instead, the courts have examined whether it is constitutional appropriate for the courts to intervene and substitute its view on a factual conclusion for that of the administrative body, based on a contextual assessment of the appropriate degree of deference to be accorded to decisions of the body (Hawkins). Relevant factors include the constitutional allocation of the function (and discretion) to the body by the legislature, the (comparative) expertise of the courts and body in making that assessment, the other (legal and non-legal) checks and balances that apply to that assessment within the existing legal regime, etc. The upshot of this more deferential approach is that the courts may determine that it is constitutionally appropriate for them not to second-guess the assessment of the Electoral Commission except if it is unreasonable in the traditional administrative law sense (usually, equivalent to "irrationality" but, in some cases, sometimes unreasonableness in its simple and ordinary sense).

For my own part, I think the better approach is to regard the supervision of "jurisdictional" fact-finding as being subject to a variable intensity of review, depending on the context. Elsewhere I've argued that a continuum of standards of review should apply:

(a) non-justiciable; (b) flagrant impropriety; (c) manifest unreasonableness; (d) simple unreasonableness; (e) incorrectness.

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

Based on the particular context, any one of these standards might apply.

In this context, I suspect a contextual assessment of the nature, function, expertise and accountability of Electoral Commission suggests that it should be accorded some deference in relation to the factual assessment has been made, that is, the incorrectness standard (allowing the court to intervene simply because it disagrees with the factual assessment) should not apply. Most likely is that one of the reasonableness standards should apply. Given the significance of the factual conclusion in the overall regime, there might be an argument that it should be subject to the simple unreasonableness standard - that is, the Electoral Commission would be given some latitude, but not a lot, in making this assessment (or, in other words, the factual assessment need not trigger the stringent standard of "the defiance of logic" for the court to intervene).

I watch for any judicial review application with interest.


Nigel Kearney said...

Does the Electoral Commission really have any "nature, function, expertise and accountability" that gives it an advantage over the High Court in assessing the issue of whether the EPMU is or is not involved in the administration of the Labour Party?

Especially given that the Electoral Commission has not been called on to decide this sort of thing in the past.

I don't believe there are major disputes over the facts. It is just a question of interpreting and applying the law, which the Commission revealed itself to not be very good at in its first decision on this matter.

If there is ever a situation where de novo review is justified, this is surely it.

Dean Knight said...

1. Specialist tribunal applying its home statute.
2. Comprised of people with particular expertise / positions.
3. Generally charged with regulating electoral affairs, hence expected to have better relative expertise on such matters than the HC.

Fundamentally, though, the constitutional imperative is the starting point. Parliament has delegated the judgement on the question to the EC, not the HC.

The ultimate answer is a combination of both legal and factual inputs - its more than a question of law.

If we have de novo appeals on questions such as this, then there's no point having the EC. Instead, we should send everyone to the HC in the first instance (then the CA, then the SC)...

Anonymous said...

The Commission itself says whether a union affiliated to the Labour Party is or is not involved in the administration of the affairs of the Labour Party is a matter of law.

Can’t see anything in the Electoral Act 1993 that should result in the High Court deferring to the Electoral Commission on matters of law.

Indeed cl 14 of the first schedule of the Electoral Act 1993 would tend to lend weight to the idea that there should be no deference. Parliament has provided the Commission itself with a mechanism to get questions of law before the High Court.

Also the nature of the Electoral Commission which is arguably not a tribunal acting in a judicial capacity (no powers of a Commission of Inquiry for example); the judges not acting judicially and its entire reliance on legal advice from the Ministry of Justice/Crown law would tend to suggest that no real deference in the manner argued for should be given to its decisions.

Dean Knight said...


Um, no.

As my post notes. there are two questions: one of law; one of fact.

As Joseph notes (Constitutional and Administrative Law, 3 ed, page 923:

"Errors of fact and law may be difficult to distinguish. Where an authority is authorised to fix rent for dwelling houses and it fixes rent for business premises, it may have committed an error of law (the authority may misinterpret its powers) or of fact (the authority may wrongly classify the buildings as dwelling houses). A court's willingness (or unwillingness) to intervene will, in part, determine the nature of the error."

The Commission's reservation the materially of influence relate to a point of law, separate from the factual judgement.

Anonymous said...

To quote from the decision itself: “If the possibility of influence from the EPMU maybe relevant (a question of law which the Commission leaves open) the Commission finds no evidence of such influence…”

Thus they concede that whether this affiliated union has the requisite influence to reach the “involved in the administration of the affairs of the Party” level is matter of law - which they happen to leave open. However they go on to make a finding of fact that it’s not, if influence is relevant.

More broadly, the decision discloses a very poor understanding of the constitutional position of affiliate unions within the NZ Labour Party and more importantly the real power they exercise at LEC, Labour Regional Council and Conference level not to mention the determinative affect their votes have on the results of the elections NZ Council of the Party and at some selections. Not to mention the organisers sent in a paid capacity to assist some MP’s in their election campaigns. Heavens the Courts have considered the status of affiliate members of the Labour Party and found them to be members.

In commercial terms the Party is their franchise. It’s factually bizarre to come to the conclusion that they are not “involved” in administering the affairs of the Party, when often their influence is determinative of the affairs of the Party.

In my view the Commission erred by focusing on the persona of Andrew Little. The issue isn’t whether Mr Little is “involved” but rather whether the incorporated entity is.

That is really a structural question.

Using the Electoral Commision’s poor reasoning, a National Party Branch should be able to register given that they too are not involved in the administration of the affairs of National either as the level of “influence” of any one branch is very small. The only inquiry that would need to be made would be in a Branch Officer were also an officer of the Party regionally or nationally.

Dean Knight said...

Indeed. I don't quibble with the quote. But, as I explain, it's directed at another point (whether, as a matter of law, "involved in the administration" requires an assessment of "influence").

As you note, there is clearly a factual enquiry or evaluation. That is not a matter of law. On such matters the courts (generally) defer to the primary decision-maker where the factual enquiry is challenged.

My point is that if they've mis-judged the constitutional position of the Union within the party (as you seem to say so), this is a factual matter, where some deference is accorded to the EC. That is, judicial review is not an appeal on the merits of the case.

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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