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.

The "right" to form a government

A lot has been said over the last few days about whether the party that wins the most votes but does not achieve a majoirty in its own right has the "right" (legal or moral) to govern. Others have chipped in on this debate from a number of angles. I'll be discussing the constitutional issues associated with the government formation process and the role of the Governor-General on Nine To Noon next Wednesday morning (5 November). In the meantime, though, one brief contribution on the topic. From a consitutional perspective, the relevant conventions about government formation are described in the authoritative speech of Sir Michael Hardie Boys given in 1997, following the first MMP election. The speech specifically addresses - and rejects - the myth that the largest party has the (first) right to form government. Rather, the Governor-General's obligation is to appoint the leader who has the "support of a majority of the House", that is, the leader of the party able to survive a confidence vote in Parliament. As others have pointed out, to date under MMP, that leader has been the leader of the largest party - but it should not be assumed that is the only option. See Sir Michael Hardie Boys, "Continuity and Change: the 1996 General Election and the Role of the Governor-General" (1997) 5 Waikato Law Review 1:
IV. THE CORE PRINCIPLES Through this public speaking and writing I tried, in essence, to make clear a few simple points: 1. The formation of a government is a political decision and must be arrived at by politicians. 2. My task as Governor-General is to ascertain where the support of the House lies. In an unclear situation, that might require me to communicate with the leaders of all of the parties represented in Parliament. 3. Once political parties have reached an adequate accommodation, and a government is able to be formed or confirmed, the parties could be expected to make that clear by appropriate public announcements of their intentions. At that point it might be necessary for me to talk with some party leaders. I would then expect to have sufficient information to be able to appoint a new Prime Minister, if that were required. 4. Throughout this period of negotiation, the incumbent Prime Minister remains in office, governing in accordance with the caretaker convention. The second of these points is the nub of the matter. 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. This principle is also the answer to those who regularly write to Government House suggesting that the Governor-General dismiss the government and call another election, based on perceived public sentiment, dissatisfaction with particular actions, or opinion polls. To repeat: in a parliamentary democracy such as ours, the exercise of the powers of my office must always be governed by the question of where the support of the House lies. If that is unclear, I am dependent on the political parties represented in the House to clarify that support, through political discussion and accommodation.

27 October 2008

RMA: National's priority consenting?

The National Party have made a big deal about "streamlining" the Resource Management Act, particularly for major projects of national importance. It's a central plank of their "reform" of the RMA. But, in my view, it looks like a big smoke and mirrors game, as the RMA presently provides mechanisms for such projects to be expedited. Quite simply, no legislative reform is needed. First, let's look at their statement of policy. > NatParty: "National's Infrastructure Plan, Building for a Brighter Future"
National will: • Introduce a Priority Consenting process to streamline resource consents for major infrastructure projects of critical national importance. o These consents will not go through the local council but will instead be called in and determined nationally. o This process will still allow for proper environmental assessment and will enable communities to have their say. o The law will require a decision on these Priority Consents within nine months. • Introduce a new category of state highway called Roads of National Significance that will be singled out as essential roads that require priority treatment. • Review and, where necessary, reform the Local Government Act and the Land Transport Management Act to reduce infrastructure delays and speed up development. • Streamline and simplify the Resource Management Act, as detailed in our previously released policy paper.

> NatParty: "Policy 2008: Environment, Resource Management"

Priority Consenting The existing process for consenting large infrastructure projects is cumbersome. In many cases, it takes longer to process consents for large projects through the RMA than it takes to build them. Such delays act as a brake on the economy and are unfair on affected communities. National’s Resource Management Amendment Bill will provide for ‘Priority Consenting’ of major infrastructure projects. Consents for these projects will be processed by the newly established Environmental Protection Authority (EPA). The EPA will be required to make decisions within nine months.

Now let's compare with the present RMA regime for the "call-in" of projects of national importance. Sections 141A and 141B presently allow the Minister of the Environment to "call in" projects of national importance.

The power itself is contained in section 141A(4)(b):

141A Minister's power to intervene (1) This section applies when the Minister— (a) ... (b) decides to apply the section. (4) The powers are— (a) ... (b) to call in the matter under section 141B: ...

The effect of calling in a matter and the threshold for a proposal of national significance are set out in section 141B:

141B Minister's power to call in matters that are or are part of proposals of national significance (1) When the Minister considers that a matter is or is part of a proposal of national significance, the Minister may call in the matter by making 1 of the following directions: (a) a direction that the matter be referred for decision to a board of inquiry under sections 146 to 149; or (b) a direction that the matter, after the receipt of any submissions that the local authority or the Minister called for, be referred for decision to the Environment Court under section 150AA (2) In deciding whether a matter is or is part of a proposal of national significance, the Minister may have regard to any relevant factor, including whether the matter— (a) has aroused widespread public concern or interest regarding its actual or likely effect on the environment, including the global environment; or (b) involves or is likely to involve significant use of natural and physical resources; or (c) affects or is likely to affect any structure, feature, place, or area of national significance; or (d) affects or is likely to affect more than one region or district; or (e) affects or is likely to affect or is relevant to New Zealand's international obligations to the global environment; or (f) involves or is likely to involve technology, processes, or methods which are new to New Zealand and which may affect the environment; or (g) results or is likely to result in or contribute to significant or irreversible changes to the environment, including the global environment; or (h) is or is likely to be significant in terms of section 8 (Treaty of Waitangi).

In essence, the RMA defines a proposal on national significance broadly, allowing the Minister to make a judgement about the effect and significance of a proposal. The short point is that "major infrastructure projects of critical national importance" already fall within the definition of proposals of national significance and can be called in by the Minister. (Section 141A(4) also contains a portfolio of other less dramatic measures that can be adopted for proposals of national significance.)

Of course, there's no obligation to call in these projects, it's a discretionary judgement. For a long time under both National and Labour governments, there was some reluctance to call in projects. However, over the last couple of years, we've see the government being more willing to exercise the power - particular in relation to sustainable electricity generation schemes (see MfE, "Call in of matters of national significance").

So what happens if a proposal gets called in? Presently, the proposal gets referred to either:

- a Board of Inquiry, between 3 and 5 people (one of whom is a current or former Environment Court judge) who hear the proposal and submissions;

- the Environment Court, who hears the proposal as if it was an appeal to the Environment Court.

The important point is that both these processes supersede the functions of the local authority. There is only one hearing, in each case by a panel or court of experts / commissioners. Administrative support for the proposal is provided by the Ministry for the Environment, in lieu of the local authority. And the right of appeal to the High Court is restricted to errors of law only.

So what's the difference? Without seeing the minutiae of the policy, it's difficult to see any material difference:

- The only main difference seems to be the identity of those making the decision - a permanent EPA, rather than an ad hoc expert Board of Inquiry or the Environment Court. But that seems to be bye-the-by. The main point of calling in or priority consenting is to remove the processing and determination function from local authorities, replacing the usual 2-tier hearing process with a 1-tier expert adjudication process.

- The one additional requirement in National's policy is a requirement that these proposals be processed within 9 months in total. The Board of Inquiry process does not specify a long-stop deadline for processing, but instead prescribes maximum time-limits for each step (usually 20 working days).

- It's unclear whether priority consenting will operate automatically or not. Or whether the Minister needs to make a case-by-case assessment. Reform to make it operate automatic might be a material difference. But, in reality, the same outcome would be reached by having a Minister of the Environment that exercised greater predilection for calling in proposals.

As you can see, our world-renown RMA regime already makes provision for priority consenting of proposals of national importance in appropriate cases. Any call to amend it to proposal for this is illusory.

(It might be implicit in my analysis that I don't have a philosophical objection to call-ins. That's right. I think it's an appropriate power for appropriate cases. It's part of the dynamic of national-local goverment relations. Local democracy is important. But there are some cases where it's appropriate for the matter to be considered with a national perspective. Ultimately, the issue is really a matter of emphasis: On the one hand, how much should weight should the national importance be given? On the other hand, how much weight should be given to grass-roots democracy?)

26 October 2008

Titular titles - now an election issue?

> SST: "Key suggests a return to knighthoods" (A little to my suprise) I've discovered that there's one of John Key's policies that I agree with: the reinstatement of titular titles in the honours system. For some time now I've been arguing that titular titles could and should be integrated within our indigenous system of honours, including allowing Te Reo equivalent titles. A copy of the Bill I've drafted (in the form of a Member's Bill) is set out on the post below: > LAWS179: "New Zealand Order of Merit (Titular Titles) Bill" I would be delighted if it was progressed in the next term, either as a Member's Bill or - through direct amendment of prerogative legislation on advice of the government. As an aside, I note Helen Clark's concern that some folk previously declined the honour due to the titular title. That concerns me a little - but I am thinking about the amending the Bill to allow people to take the equivalent honour sans titular title.

23 October 2008

Vote with Eyes Wide Open, Wellington City, and Phantom Billstickers

> NoRightTurn: "Wellington City Council suppresses freedom of speech" > Wellingtonian: "Council vetos political poster campaign" Idiot/Savant draws attention to Wellington City's bizarre policy of preventing political posters being posted on Council-owned poster bollards, and points to a story recently run by The Wellingtonian:
Council business performance manager Jon Visser told The Wellingtonian that it was the council's policy to remove inappropriate posters put up without permission and to pass on costs to the group behind them. The group's "When you vote, don't forget" posters are intended to remind voters about National's 1990s policies. The non-partisan group believes National still has a hidden agenda remaining from the 2005 election and isn't revealing its true intentions. The posters have been placed on council-owned bollards, which are managed by Phantom Billstickers for arts and community posters. Phantom Billstickers is the company contracted to place places on the council-designated spaces. Mr Wheeler says using Phantom's services to put up posters is too expensive for his group and means that "to be politically active in Wellington you have to have money". He likens the group's campaign to the anti-nuclear and anti-Vietnam War campaigns and says the council is deliberately obstructing the democratic process. Mr Wheeler says he received a call from Mr Visser saying the group would be fined for each poster put up and charged for their removal. Although Mr Visser says there is usually a charge involved with using Phantom's services for putting up posters, this applies only to events intended to make a profit, such as gigs with cover charges. Non-profit meetings and community groups could generally have posters put up for free but need the permission of Phantom or the council. Mr Visser says the council-operated bollards "have to remain apolitical" and Vote With Both Eyes Open would need to follow the council's rules for political party and third-party advertising. This includes the use of certain 'hoarding' sites for political advertising and payment of a bond.

[UPDATE: 28/10/2008: See further post for clarification of a point by the Council: LAWS179 "Bill-stickering and the Wellington City Council"]

Having looked at it quickly, the regime for hoardings and bill-sticking is rather complicated, made even more complicated by the fact that the Council has devolved responsibility for regulation of poster bollards to a private company, Phantom Billstickers: > Wellington City: "Guidelines for Temporary Signs in Public Places" Idiot/Savant rightly questions the lawfulness of the restrictions and Council's approach. I agree. I'm sceptical about the role of a private agency in regulating this important public activity, and am disappointed the Council's documents seem to fail to make any mention of the Bill of Rights. Although one needs to be cautious about directly borrowing human rights jurisprudence from other jurisdictions, it reminds me of a Supreme Court of Canada decision, Ramsden v Peterborough (City) [1993] 2 SCR 1084, where it struck down a bylaw that attempted to prevent people from bill-stickering on utility poles and other Council property. In short, the Court concluded:

Moreover, the benefits of the by-law are limited while the abrogation of the freedom is total, thus proportionality between the effects and the objective has not been achieved. While the legislative goals are important, they do not warrant the complete denial of access to a historically and politically significant form of expression. I would agree with the majority of the Ontario Court of Appeal, at p. 294, on this point that "[a]s between a total restriction of this important right and some litter, surely some litter must be tolerated". Therefore, the by-law cannot be justified under s. 1.

The long version, ie the relevant parts of the Court's Charter analysis, is as follows:

Under Irwin Toy, supra, there are two basic steps in the s. 2(b) analysis. First, one must determine whether the activity at issue falls within the scope of s. 2(b). This first step is itself a two-part inquiry. Does postering constitute expression? If so, is postering on public property protected by s. 2(b)? Under the second step of the s. 2(b) analysis, one must determine whether the purpose or effect of the by-law is to restrict freedom of expression. 1. Does Postering Constitute Expression? Under Irwin Toy, supra at pp. 968-69, the first question to be asked in a case involving s. 2(b) is whether the activity conveys or attempts to convey a meaning. This is an easy inquiry in the present case, and indeed the appellant city of Peterborough has properly conceded that the respondent was engaging in expressive activity through the use of posters to convey a message. In the Court of Appeal, Krever J.A. held at pp. 291-92 that "[i]n informing the public, or those members of the public who read the [respondent's] posters, of a coming musical performance the posters conveyed a meaning". Postering has historically been an effective and relatively inexpensive means of communication. Posters have communicated political, cultural and social information for centuries. In Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, this Court held that a law requiring public signs and posters to be printed only in French violated s. 2(b). Implicitly, this decision held that public signs and posters are a form of expression protected by s. 2(b). Regardless of whether the posters concerned constitute advertising, political speech or art, it is clear that they convey a meaning. Therefore, the first part of the s. 2(b) test is satisfied. 2. Is Postering on Public Property Protected by s. 2(b)? The second question in the s. 2(b) inquiry is whether postering on public property falls within the scope of s. 2(b). In Committee for the Commonwealth of Canada there were three separate approaches articulated as to the appropriate standard to be applied to determine whether expressive activity falling prima facie within s. 2(b) and occurring on public property is constitutionally protected. While these approaches have been subject to some criticism, (see, for example, Michael Kanter, "Balancing Rights Under Section 2(b) of the Charter: Case Comment on Committee for the Commonwealth of Canada v. Canada" (1992), 17 Queen's L. J. 489; B. Jamie Cameron, "A Bumpy Landing: The Supreme Court of Canada and Access to Public Airports under Section 2(b) of the Charter" (1992), 2 Media & Communications L. Rev. 91), in my view it is neither necessary nor desirable to revisit Committee for the Commonwealth of Canada in the present case. ... ...Regardless of the approach chosen, it is clear from Committee for the Commonwealth of Canada that postering on some public property is protected by s. 2(b). A brief discussion of each approach in the context of this case makes this conclusion self-evident. Under the approach proposed by L'Heureux-Dubé J., all restrictions on expressive activity on public property violate s. 2(b). Place restrictions must be justified under s. 1 which will be discussed below. In my view, an application of the factors enumerated by L'Heureux-Dubé J. clearly leads to the conclusion that this by-law could not be justified under s. 1. Using Lamer C.J.'s approach, we must balance the interest of the respondent in publicizing the performances of his band, against the state interest in ensuring effective and safe operation of services. In this case, the public property used by the respondent to convey his message was utility poles. The question to be asked is therefore whether attaching posters to public utility poles is incompatible with the poles' use of carrying utility transmission lines. In my opinion, it is not. In this regard, I would adopt the words of McFadyen J. in Re Forget, supra at p. 557: "Generally speaking, a poster does not interfere with the use of the utility pole as a utility pole. It does not deprive the public of the use of such a pole." Without considering other types of public property, it is clear that postering on some public property, including utility poles, is compatible with the primary function of that property. Finally, under McLachlin J.'s approach, the question to be asked is whether postering on public property, and in particular on utility poles, furthers any of the values or purposes underlying s. 2(b). In Irwin Toy, this Court articulated the values underlying freedom of expression at p. 976: "... (1) seeking and attaining the truth is an inherently good activity; (2) participation in social and political decision making is to be fostered and encouraged; and (3) the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed." In this case, one does not have to go further than the second value articulated in Irwin Toy, namely participation in social and political decision-making. As I noted above, posters have communicated political, cultural and social information for centuries. Postering on public property including utility poles increases the availability of these messages, and thereby fosters social and political decision-making. In Re Forget, supra, at pp. 557-58, McFadyen J. observed that "after the invention of modern printing technology, posters have come to be generally used as an effective, inexpensive means of communication. Posters have been used by governments to publish notices dealing with health, immigration, voters' lists, recruitment of armies, etc. Posters have been used by political parties, private and charitable organizations and by individuals. They convey messages, give notice of meetings and fairs.... [I]n societies where the government tends to repress opposition ideas, posters are the only means of communicating opposition ideas to a large number of people." In Fink v. Saskatoon (City of) (1986), 7 C.H.R.R. D/3431, at p. D/3440, a Saskatchewan Board of Inquiry found that a prohibition of postering in Saskatoon violated freedom of expression under the Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1. In its decision, the Board referred to the evidence of the art historian Robert Stacey, author of The Canadian Poster Book: 100 Years of the Poster in Canada (at p. D/3440): "[Mr Stacey] testified it was early recognized that posters were an effective and inexpensive way of reaching a large number of persons. In order to be effective, posters of course must be affixed to a surface and publicly displayed. Posters are traditionally used by minority groups to publicize new ideas or causes. Posters are both a political weapon and an educational device. According to Mr. Stacey, one measure of the openness of a democratic society has been the willingness of the authorities to allow postering. . . . Posters are an economic way of spreading a message. Utility poles have become the preferred postering place since the inception of the telephone system. . . . Posters have always been a medium of communication of revolutionary and unpopular ideas. They have been called "the circulating libraries of the poor." They have been not only a political weapon but also a means of communicating artistic, cultural and commercial messages. Their modern day use for effectively and economically conveying a message testifies to their venerability through the ages." [Emphasis added.] I would adopt this characterization of the relationship between the message and the forum in the present case. In my view, it is clear that postering on public property, including utility poles, fosters political and social decision-making and thereby furthers at least one of the values underlying s. 2(b). Before leaving this branch of the analysis, I must address the concerns raised by Galligan J.A., dissenting in the Court of Appeal, who came to a different conclusion on this issue. He distinguished between using a public forum as an instrument of expression and conduct at a public forum. In his view, this Court's decisions in Committee for the Commonwealth of Canada allow for the use of public property in the sense of expressing oneself in a particular location, rather than allowing for the use of public property as a means of expression. I repeat his views at p. 298: "My reading of Dorval Airport [Committee for the Commonwealth of Canada] leads me to conclude that the issue decided by the Supreme Court of Canada was that if a person is at a location on public property to which the public has a general right of access, freedom of expression permits the direct communication of views to others by discussion, by distribution of written material or by carrying placards. The attaching of posters to public property is a very different use of public property because it is using that property as part of one's means of expression. The Supreme Court of Canada did not say that freedom of expression encompasses the right to use public property as a means or instrument of one's expression." With respect, I do not find this distinction between using public space for leaflet distribution and using public property for the display of posters persuasive. Surely the appellants in Committee for the Commonwealth of Canada were "using" the public property in question to convey their message, just as the respondent in this case was "using" the utility poles to convey his. One could "use" a utility pole to express oneself in many different ways: by sticking a poster to it by attaching a speaker to it to amplify a speech or even by climbing on it to gain a speaking platform. The question should not be whether or how the speaker uses the forum, but rather whether that use of the forum either furthers the values underlying the constitutional protection of freedom of expression (the McLachlin J. approach) or is compatible with the primary function of the property (the Lamer C.J. approach). Therefore, I would conclude that, under any of the approaches proposed in Committee for the Commonwealth of Canada, the first step in the Irwin Toy analysis is satisfied. Postering on some public property, including the public property at issue in the present case, is protected under s. 2(b). The focus then moves to the question of whether the purpose or effect of the by-law is to restrict freedom of expression. 3. The Purpose of the By-law It seems evident that the by-law is aimed at the consequences of the particular conduct in question, and is not tied to content. On its face the by-law is content-neutral and prohibits all messages from being conveyed in a certain manner and at certain places. The by-law is directed at avoiding the consequences associated with postering, namely litter, aesthetic blight, traffic hazards and hazards to persons engaged in repair and maintenance. In Irwin Toy Ltd., supra, at p. 975, Dickson C.J. noted that a rule against littering is not a restriction "tied to content". Rather, "[i]t aims to control the physical consequences of certain conduct regardless of whether that conduct attempts to convey meaning". The court below held that the purpose of the by-law is "meritorious" and not to restrict expression. I would agree. 4. The Effect of the By-law In Irwin Toy, supra at pp. 976-77, Dickson C.J. discussed the burden on the individual seeking to establish that the effect of governmental action violates s. 2(b). After repeating the three principles and values underlying the protection of free expression in our society, he stated: "In showing that the effect of the government's action was to restrict her free expression, a plaintiff must demonstrate that her activity promotes at least one of these principles. It is not enough that shouting, for example, has an expressive element. If the plaintiff challenges the effect of government action to control noise, presuming that action to have a purpose neutral as to expression, she must show that her aim was to convey a meaning reflective of the principles underlying freedom of expression." It is clear that the effect of the by-law is to limit expression. The absolute prohibition of postering on public property prevents the communication of political, cultural and artistic messages. The appellant did not dispute that the effect of the by-law is to restrict expression, but rather argued that postering on public property does not further any of the values underlying s. 2(b). As I have already concluded, the expression in question promotes political and social discourse, one of the underlying purposes of s. 2(b). Therefore, the respondent has established a violation of s. 2(b), and the analysis now proceeds to s. 1. B. Section 1 The objective of the by-law is pressing and substantial. The by-law seeks to avoid littering, aesthetic blight, traffic hazards, and hazards to persons engaged in the repair and maintenance of utility poles. Similarly, the total ban is rationally connected to these objectives. By prohibiting posters entirely, litter, aesthetic blight and associated hazards are avoided. The question therefore becomes whether the by-law restricts expression as little as is reasonably possible. The limitation at issue in the present case is a complete ban on postering on public property. In Ford, supra, at p. 772, the Court discussed the "distinction between the negation of a right or freedom and a limit on it". While the negation of a right or freedom does not necessarily require that such an infringement not be upheld under s. 1, "the distinction between a limit that permits no exercise of a guaranteed right or freedom in a limited area of its potential exercise and one that permits a qualified exercise of it may be relevant to the application of the test of proportionality under s. 1" (at p. 773). In Ford, the Court held that a complete prohibition on the use of languages other than French on commercial signs could not meet the requirements of the proportionality test, particularly the rational connection and minimal impairment branches. In contrast, in Irwin Toy, supra, the Court upheld substantial content-based restrictions (as opposed to a total ban) on advertising directed at children. It will therefore be more difficult to justify a complete ban on a form of expression than time, place or manner restrictions. The U.S. Supreme Court considered a similar prohibition in Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984). Stevens J. for the majority of the court (Burger C.J. and White, Powell, Rehnquist and O'Connor JJ. concurring) accepted that the city's interest in avoiding visual clutter was sufficient to justify the complete prohibition on postering and that the ban curtailed speech no more than was necessary to accomplish its purpose. The majority rejected the argument that the public property concerned was a "public forum" protected by the First Amendment, or should be treated as a "public forum". However, I find more helpful the dissent of Brennan J. (Marshall and Blackmun JJ. concurring) which discussed, at p. 830, less restrictive alternatives than a complete ban on postering: "... [the City] might actively create a particular type of environment; it might be especially vigilant in keeping the area clean; it might regulate the size and location of permanent signs; or it might reserve particular locations, such as kiosks, for the posting of temporary signs. Similarly, Los Angeles might be able to attack its visual clutter problem in more areas of the City by reducing the stringency of the ban, perhaps by regulating the density of temporary signs, and coupling that approach with additional measures designed to reduce other forms of visual clutter." With regard to the objectives identified by the appellant in the present case, worker safety is only affected with respect to posters attached to wooden utility poles. The by-law extends to trees, all types of poles, and all other public property. Traffic safety is only affected where posters are displayed facing roadways. The application of the by-law is not so restricted. In Re Forget, supra, at p. 561, McFadyen J. suggested some alternatives to a total ban: "... such values might equally be preserved by regulating the use of the poles for such purposes by specifying or regulating the location, size of posters, the length of time that a poster might remain in any location, the type of substance used to affix posters, and requiring that the posters be removed after a certain specified time. If necessary, a reasonable fee could be imposed to defray costs of administering such a system." These kinds of alternatives could control the concerns of litter and aesthetic blight in a manner which is far less restrictive than the by-law. In my view, the total ban on postering on public property does not impair the right as little as is reasonably possible, given the many alternatives available to the appellant. Moreover, the benefits of the by-law are limited while the abrogation of the freedom is total, thus proportionality between the effects and the objective has not been achieved. While the legislative goals are important, they do not warrant the complete denial of access to a historically and politically significant form of expression. I would agree with the majority of the Ontario Court of Appeal, at p. 294, on this point that "[a]s between a total restriction of this important right and some litter, surely some litter must be tolerated". Therefore, the by-law cannot be justified under s. 1. VI. Conclusion and Disposition I would conclude, therefore, that under any of the approaches proposed in Committee for the Commonwealth of Canada, postering on some public property, including the public property at issue in the present case, is protected under s. 2(b). Therefore the by-law is a limit on s. 2(b). This limit cannot be justified under s. 1 as it is overly broad and its impact on freedom of expression is disproportionate to its objectives.

21 October 2008

"Pledgegate 08": the law of common sense

> LAWS179: ""Pledgegate 08": a reply to Matthew Hooton" > policy.net.nz: "Pledgegate 08: Dean Knight misses the point" > LAWS179: "'Pledgegate 08': a storm in a pamphlet?" > policy.net.nz: "Pledgegate 08: Labour stealing from taxpayer again

At the risk of extending the debate and discussion, Matthew Hooton has replied to my reply. See his comments to his second post. The relevant two bits are hear:

1) I am sure that great care was taken to ensure the document complies with the absolute letter of the law. This is exactly what the Exclusive Brethren did. We were told that their actions were so evil that the law needed to be changed - and that the “law of common sense” would have to apply. By any common sense test, this document is blatant electioneering, especially given who developed it, and the timing of it being issued, and to whom. It is therefore an effort to “rort” the system, using the definition of “rort” Labour and its Axis partners used during the EFA debate - an attempt to get around the spirit and intend of the law by complying exactly with its letter. ... 3) Sure. I disagree and side with the vast majority on this point. It seems to me the law was written to ban everything and then for the authorities to have discretion not to prosecute. That’s bad law in my view. Parliament should speak clearly, especially when democratic and free-speech rights are involved

For what it's worth, my reply - I think - picks up on some the generic issue of the "law of common sense" and more importantly the way in which we regulate behaviour. See below.

- - - - - - - - - - - - - - - - -

Matthew: I won't continue online with points 2-4; that's not to concede them but we won't persuade each other on them. But I do have a brief response on point 1, and the "law of common sense". What's actually being referred to there is enforcement discretion. And it only works down, not up. Let me explain. It's a generic point about the connection between law--discretion. When one draft rules, they are typically drafted broadly to set the outer limits of proscription. Eg. Don't jay-walk across a road. But we know that absolute enforcement of that rule is sometimes daft. There are two ways to try and address that: (1) delineate exceptions to exclude the conduct we're not concerned about; or (2) leave the over-broad rules to be dealt with by enforcement discretion or judicial discretion based on the case-by-case wickedness or mischief the prohibition seeks to address. Eg, (1), an exception could be drafted to say that it's not illegal to jay-walk if there are no cars within 25m. Or (2), we could leave it to police officers / courts to decide when the jay-walking is dangerous. Option (1) is theoretically preferable but usually difficult to achieve effectively and efficiently. Option (2) is more consistent with individual justice, but looks like over-kill and risks the inconsistent or malicious application of discretion. (On the latter point, see my critique of zero-tolerance, which demonstrates the absurdity of the rules being enforced all the time in every case: http://www.laws179.co.nz/2008/10/zero-tolerance.html) That's the law of common sense I believe was being suggested; the rules get interpreted and narrowed down in the light of their purpose. The difficulty with trying to read laws "up" to extend the prohibition beyond the text is that it offends the Rule of Law. Namely, people should be able to plan their lives in the light of the legal consequences that flow from the laws. Making illegal by extending the prohibition means people can't make informed decisions about whether or not they should engage in conduct. It's the same theoretical justification for opposing again retrospective criminalisation of conduct. Eg, it would be objectionable to prescribe a rule that says "don't jay-walk on roads", and to then say, well the purpose and mischief is similar when it comes to crossing railway lines, so we can prosecute a person for doing that under the same provision. It just isn't fair. The point, though, is that while reading laws "up" and extending them by reference to purpose is unfair, reading them "down" to exclude some innocuous conduct is not. That's consistent with existing practice, is down to the benefit of citizens, and is subject to other public law constraints which try to ensure consistency and fairness. I should add that this reading down is, of course, consistent with the practice of the courts under section 6 of the NZ Bill of Rights. The point is, as a matter of legislative drafting, Parliament knows that the courts will interpret legislation affecting freedom of speech, such as the EFA, as consistently with the freedom of expression as they can. They know it's not a case of the text being applied in the abstract; the text will be interpreted in the light of the NZ Bill of Rights, which - to the extent possible - will produce rights-consistent interpretations. This is why some legal technicians such as myself thinking many folk have been bringing an unrealistic, hyperbolic, doomsayer attitude to the EFA - the truth is the sky won't fall.

"Pledgegate 08": a reply to Matthew Hooton

> policy.net.nz: "Pledgegate 08: Dean Knight misses the point" > LAWS179: "'Pledgegate 08': a storm in a pamphlet?" > policy.net.nz: "Pledgegate 08: Labour stealing from taxpayer again Matthew Hooton's thinks I've missed the point on the purported "Pledgegate 08" and has posted an explanation of why I think I'm wrong to focus on the legality of the spending/publicity. I've responded in a comment to his post, but have reproduced that response below.
- - - - - - - - - - - - - - - - -

MH: Thanks for a robust response. A few thoughts in reply: 1. You think I've missed the point by focusing on the legality or otherwise of the publicity material. (I presume your absence of discussion of those aspects, you agree with the analysis of whether it is lawful or not.) But that's really my point. In your original post you make rather bold statements about "[mis-]use of public funds", "theft", "stealing from the taxpayer". They're legal terms that are founded on illegality. Hence my analysis of the legal position. What prompted me to analyse things in those terms is my concern that you were – either directly or implicitly – making an erroneous claim about the legality of that spending/publicity. My analysis demonstrates you were wrong on that point. 2. I am – and I'm sure other are too – happy to engage with a discussion of about the merits or morality of the use of public funds in this way. But personally I think it's better done without the use of loaded terms such as "theft", "corruption" and "rort". And you might also recognise that reasonable people can differ on such issues. On the one hand, you say the practice undermines the democratic imperative because it privileges incumbent parties (at least in terms of parliamentary services, both main political parties received significant amounts for party and member support – I believe for 2008/2009, the National party receives $6.9M, about $1.5M more than the Labour party, although that will exclude ministerial funding). On the other hand, some might argue that the very essence of representation is the ability to engage in dialogue with one's representative and to hold them responsible for their performance. That is, as was argued during the last pledge card saga, "parliamentary purposes" are indivisible from "electioneering purposes". Matthew, in this light, can I reframe your rhetorical question: Is *anything* an MP does ultimately not about winning votes? 3. I know you and others are convinced that the EFA is a conspiracy and a grave breach of the Bill of Rights. Again, I genuinely believe that this is a question on which reasonable people can differ and there is a credible argument that the EFA process is a good example of rights-deliberation and protection. See my post: http://www.laws179.co.nz/2008/07/electoral-finance-act-and-clo-advice.html 4. As an aside, no-one claimed the Auditor-General signed off on the pledge card; rather it was claimed the card was consistent with previous practice approved (explicitly or tacitly) by Parliamentary Services. What they took issue with was the Auditor-General's claim he had "warned" against the practice in one of his earlier report. Having read the reports, I incline to accept the point that if any warning was given, it was pretty oblique. In relation to Bryce's comments, the Auditor-General does not have their own "rules" about public spending; it's their job to interpret the rules that have been promulgated by Parliament and, in this case, as coloured by delegated authority. That's the essence of the Controller role: to ensure that "expenses and capital expenditure of government departments and officers of Parliament have been incurred for purposes that are lawful and within the scope, amount, and period of the appropriation or other authority". It's not a case of different rules being in conflict, it's a difference of opinion about how the rules are to be interpreted. That takes us back to and reinforces my original point. Central to this question is the question of the interpretation of the rules and whether the spending is lawful or not. I hoped my analysis might add that missing perspective.

"Pledgegate 08": a storm in a pamphlet?

> policy.net.nz: "Pledgegate 08: Labour stealing from taxpayer again Matthew Hooton has dug up a parliamentary funded "information kit" which provides information on services available to the over 60s in their area and from the government. As he note, the local Labour MP’s photo and contact details appear on the cover:

Referring to the previous pledge card findings arising from the 2005 election, he makes the following, rather bold, claim:

The Labour Party has learned nothing from the 2005 pledge card debacle when the public reacted with justified displeasure at its use (theft) of public funds for its election campaign. It appears it is doing the same in 2008 but on a larger scale.

He goes on to say:

It is impossible that in the context of an election being just 18 days away that the distribution of such an “information kit” cannot be considered to be blatant electioneering and, as such, the cost should be counted against the candidate’s $20,000 limit - although I am told that Labour plans not to do this.

Ok. I can see how someone might think it raises similarities with the pledge card, although of course that involved publicity that was rather more bold in its electioneering purpose.

But. There's an important difference that Hooton fails to appreciate that means his claims of "(mis)use of public funds" or "theft" are somewhat fallacious. The rules have changed.

The rules in 2005, in general terms, allowed the use of parliamentary funding for communications related to "parliamentary business" but excluded the use of such funds for "electioneering" (effectively defined as "communication for the purpose of supporting the election of any person or the casting of a party vote for any political party"). See the Speaker's Directions, Travel, Accommodation, Attendance, and Communications Services Available to Members of Parliament, 1 November 2003.

We know, there was the big investigation by the Auditor-General. He took the view, based on advice from the Solicitor-General, that for something to be counted as electioneering "[i]t was not necessary for there to be an express soliciting of votes"; as he put it, "the question is whether the advertisement as a whole would be likely to persuade a voter to vote in a particular way". And he also took the view that any electioneering purpose, however large or small, effectively tainted entire publication, that is, it was a simply "in or out" test.

Now, let's look at the present rules. The relevant Speaker's Directions are the Directions and Specifications for Services and Funding Entitlements for the House of Representatives, its Members, and Former Members, 18 October 2007 (promulgated by the Parliamentary Travel, Accommodation, Attendance, and Communications Services Determination 2007).

The main requirement is found in cl 5.15:

5.15 Requirements to be met for cost of publicity to be paid from Vote: Parliamentary Service (1) Publicity must— (a) have a parliamentary purpose; and (b) not contain electioneering; and (c) be identified at the time of communication as having been paid for by the Parliamentary Service; and (d) contain contact details of the member or party responsible for the publicity. (2) A list member must describe himself or herself as “List Member” in publicity where a place name or geographic area is used. (3) Publicity must not associate a list member with the name of an electorate. (4) Policies and procedures for ensuring compliance with the requirements of subclauses (1) to (3) are set out in the policies and procedures prescribed by the Speaker for publicity.

"Parliamentary purpose" is cast very widely in cl 2.4 and includes "a member of Parliament performing his or her role and functions as a member of Parliament". Most importantly though - and unlike 2005 - the definition of electioneering is expressly defined in cl 2.4 and is cast much more narrowly:

electioneering means any communication that explicitly— (a) seeks support for the election of a particular person or persons; or (b) seeks support for the casting of a party vote for a particular political party or political parties; or(c) encourages a person to become a member of a particular political party or political parties; or (d) solicits subscriptions or other financial support

There material injunction is the reference to "explicitly". It means it's not possible to simply try to connect the dots to the Auditor-General's previous report. A different regime applies with different standards.

Running the ruler over the "information pack" just quickly, it's a reasonable conclusion that the publication is entirely legitimate parliamentary spending: - it has a parliamentary purpose, namely communication with constituents about services available from government (cl 5.15(1)(a)); - it does not contain electioneering, that is, it does note explicitly seek support for the election of Hughes or the Labour party (cl 5.15(1)(b) - we can quibble about whether it implicitly does so, but that's not the test; - it is identified as being funded by Parliamentary Services, at least through the Parliamentary crest (cl 5.15(1)(c); - it contains the contact details of the member responsible for the publicity, namely Darren Hughes (cl 5.15(1)(d)).

And, of course, there's also the likelihood it has been subjected to the formal pre-publication scrutinisation process that now exists - I don't know either way, but would suspect that a prudent MP would have done so.

Hooton also raises the question of the attribution of the expenses to the candidate under the Electoral Finance Act. Those rules are a touch more complicated to work through. But, to make a long story short, the rules exclude from the definition of "candidate activity" and "candidate's electoral expenses" anything done in "his or her capacity as a member of Parliament". Although there might be some argument about this, that would seem to exclude this type of publicity.

UPDATE (21-10-2008):

A brief story, focused largely on the EFA implications, was run on this issue by the NZ Herald a few weeks ago:

> NZHerald: "Labour kit has National crying foul"

16 October 2008

The unfairness of FPP (or perhaps why MMP aint so bad after all)

Below are the results from Canada's latest federal election yesterday (from The Globe and Mail). I've added the percentage figures for the number of seats in red). Really, it speaks for itself. (Of course, as an aside, this is the third federal election in Canada in four years. So much more the (relative) greater certainty and longevity of government under FPP as compared with MMP...)

14 October 2008

Hide and the kingmakers

> DomPost: "Hide: Unfair for Maori to be kingmakers" Rodney Hide complains that some of us might not be able to vote in electorates where the potential "kingmakers" are standing:

ACT Party leader Rodney Hide says it will be damaging to the New Zealand political system if the Maori Party finds itself in the role of kingmaker after the election. Mr Hide told Waatea News this morning he was opposed in principle to ethnically-based politically parties exercising undue influence on the political system. "If the Maori Party is in the position to play kingmaker (after the election), that could be very damaging for the Maori Party and MMP politics," he said. "People will think hang on, how come these people in these (seven) Maori seats where I cannot vote are getting to decide whether it is going to be Helen Clark or John Key who is going to be Prime Minister. "That does not seem on the face of it fair. "It is no disrespect to the Maori Party but I think that would be a hard one to explain." ...

Three words: Pot. Kettle. Black.

I presume he'll be recusing himself from forming a government, if the only reason his party is in Parliament is because he won the Epsom electorate seat? And, presumably he'll be similarly protesting Dunne or Anderton adding their electorate based seats to any coalition?

13 October 2008

Pre-election period and the bank deposit plan

> NZHerald: "ANZ-National joins deposit plan, BNZ plans to" There's been some suggestion that Labour ought to have consulted the Nats and other parties before it made the announcement about deposit plans. I think those complaints are political, not constitutional. But, for what it's worth, below is the extract from the Cabinet Manual 2008 that captures the present conventions about decision-making during the pre-election period. Notably, the "caretake convention" per se does not apply:
Pre-election period 6.9 In the period immediately before a general election, the government is not bound by the caretaker convention unless the election has resulted from the government losing the confidence of the House. (See paragraphs 6.16 - 6.35 for information about the caretaker convention.) Successive governments, however, have chosen to restrict their actions to some extent at this time, in recognition of the fact that an election, and therefore potentially a change of government, is imminent. For example, significant appointments have been deferred, and some otherwise unexceptionable government advertising has been considered inappropriate during the election campaign, due to the heightened risk of perception that public funds are being used to finance publicity for party political purposes. (See the Guidelines for Government Advertising in appendix B for general guidance.) In practice, restraints have tended to be applied from about three months before the general election is due or from the announcement of the election (if the period between the announcement of the election and polling day is less than three months). 6.10 The Secretary of the Cabinet is available to provide advice on decision making during the pre-election period.

8 October 2008

Zero Tolerance?

> NZHerald: "Brian Rudman: Tough talk won't solve jails issue " > ACT: "Law and Order Policy"

I see ACT has proposed "zero tolerance for crime" and will ensure "[t]he law ... be enforced at all levels and penalties awarded enforced".

Calls for "zero tolerance" demonstrate a profound lack of understanding about how our laws are structured and work. Our laws are drafted on the basis that public actors will apply discretion about when they are enforced, ie our laws contemplate prosecutorial discretion. We can always seek to improve the application of that discretion, but there's no doubt that its existence is essential.

To illustrate with a simple example that most people will be able to personally relate to.

The Land Transport (Road User) Rule 2004 contains the following rules:

rule 3.1 General requirements about places controlled by traffic control devices (1) Subject to subclauses (2) and (3), if traffic at any place is controlled by a traffic control device, a person (including a pedestrian) using the road at that place must comply with the instructions given by that traffic control device that apply to them. ... rule 3.5 Traffic signals in form of standing or walking human figure (1) While a special signal for pedestrians indicates a flashing or steady red standing human figure symbol, pedestrians, riders of mobility devices, and riders of wheeled recreational devices who are using the footpath and facing the signal must not enter the roadway. (2) While a special signal for pedestrians indicates a green walking human figure symbol, pedestrians, riders of mobility devices, and riders of wheeled recreational devices may,— (a) if facing the signal, enter the roadway to cross towards the signal; and (b) if a “Pedestrians May Cross Diagonally During Cross” sign is installed, enter the roadway to cross towards the signal or to the diagonally opposite corner of the controlled area.

The Rule also contains the following rules:

rule 11.3 Using crossings, underpasses, or footbridges (1) A pedestrian or rider of a mobility device must not cross a roadway otherwise than on a pedestrian crossing or at a school crossing point, at an underpass, or on a footbridge when a pedestrian crossing or school crossing point, an underpass, or a footbridge is reasonably available to the pedestrian for that purpose within a distance of 20 m. (2) If pedestrian traffic on any part of any roadway is controlled by traffic signals, a pedestrian must not cross any other part of that roadway that is within 20 m of the part controlled by traffic signals. (3) This clause is subject to clause 11.4. rule 11.4 Crossing roadway (1) A pedestrian or rider of a mobility device or wheeled recreational device who crosses a roadway elsewhere than on a pedestrian crossing or at a school crossing point must, whenever possible, cross at right angles to the kerb or side of the roadway. (2) This clause does not apply at an intersection controlled by traffic signals if the pedestrian or rider is complying with a notice, sign, or marking maintained by the road controlling authority and indicating that such persons may or should cross otherwise than at right angles.

Section 10 of the Land Transport Act 1998 requires people to comply with the rules:

s 10 Road users and others to comply with ordinary rules and emergency rules A person must comply with the rules.

It is a criminal offence to contravene a rule:

s 40 Contravention of ordinary rules (1) A person commits an offence if the person contravenes a provision of an ordinary rule and the contravention of that provision is for the time being prescribed as an offence by regulations made under section 167. (2) If a person is convicted of an offence referred to in subsection (1), the person is liable to the applicable penalty set out in the regulations.

The maximum penalty for breaching the rules are set out in s 3 and Schedule 1 of the Land Transport (Offences and Penalties) Regulations 1999:

reg 3 Summary offences and penalties (1) A breach of a provision specified in the first column of Schedule 1 is an offence against the Act. (2) A person who commits an offence referred to in subclause (1) is liable on summary conviction,— (a) in the case of an individual,— (i) to a fine not exceeding the amount specified in relation to that offence in the third column of Schedule1; or (ii) to a fine of the amount determined by the relevant scale set out in Schedule 1A (as referenced in the third column of Schedule 1). Schedule 1 ... Land Transport (Road User) Rule 2004 Provision; Brief description; Maximum penalty on summary conviction for individual ($) 3.5(1); Pedestrian, rider of mobility device, or rider of wheeled recreational device enters roadway when red human figure displayed; $10 11.3; Pedestrian/rider of mobility device fails to use pedestrian crossing, etc, within 20m; $35 11.4(1); Pedestrian/rider of mobility device/wheeled recreational device fails to cross road at right angle to roadway; $35

The effect of "zero tolerance" in the enforcement of crime is: - any person who dashes across the road at the lights on the corner of Willis Street and Lambton Quay while the red man (human figure) is showing must prosecuted and fined up $10 each and every time they do so. - any person who jay-walks on an angle across Lambton Quay must prosecuted and fined to $35 each and every time they do so; - any person who dashes across Lambton Quay beside, but not at, the lights across the road from Astoria must prosecuted and fined to $35 each and every time they do so.


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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