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.

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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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