31 December 2008

New Zealand Order of Merit: Restoring Titular Titles

> LAWS179: "New Zealand Order of Merit (Titular Titles) Bill" > LAWS179: "New Zealand Order of Merit (Titular Titles) Bill: My New Year Honours List" > LAWS179: "Queen's Birthday Honours" > LAWS179: "New Zealand Order of Merit: new Knighthoods and Damehoods" With the release of this year's honours, time to update the project to restore some form of titular titles to our indigenous honours system. First, below is a list of the most recent honorands - described as they would have been under the proposed system of titular titles: P.C.N.Z.M. Professor Tā (Sir) Ralph Herberley Ngatata LOVE, Q.S.O., J.P., of Porirua. D.C.N.Z.M. Dr Kahurangi (Dame) Claudia Josepha ORANGE, O.B.E., of Wellington. Professor Sir David Christopher Graham SKEGG, O.B.E., of Dunedin. Sir Murray John WELLS, of Auckland. The Honourable Dame Margaret Anne WILSON, of Tauranga. I note that Ngatata Love was ambivalent about the titular title Sir. I wonder if he would have been less ambivalent if the Order came with a titular title in his indigenous language? Secondly, there's been some suggestion on the radio that the new government may be interested in reverting to a system of titular honours - although I haven't yet seen any unequivocal statement or policy on the honours system. That sounds encouraging though. Thirdly, if a change is supported, a possible template is the Member's Bill I previously drafted: > New Zealand Order of Merit (Titular Titles) Bill (pdf) (A text version is also set out over the break.) If the change is supported by the new government though, it would not be necessary to give effect to the change through legislation passed by the House. As the system falls within the purview of the Sovereign's prerogative authority, the system can be varied merely by Royal Warrant. That is, the government - relying on their Executive power - can advise the Queen to vary the system. There's no need for the change to be implemented in the format of a Bill, although the nature of the provisions would basically be the same. One other thing we might want to think about is whether we want to codify the present system in the form of legislation passed by the House, rather the prerogative legislation. There may be some value in the people of New Zealand taking ownership of the system through the adoption and endorsement of the system by their elected representatives as a whole.

26 December 2008

An alternative Christmas message

> DomPost: "Queen calls for service to others"

An alternative Christmas message from the Head of State:

The Governor-General, Anand Satyanand, has urged people to learn from unsung heroes when times are tough.

Delivering his Christmas message to the New Zealand people, the first head of state of the Republic said that Christmas this year was a sombre occasion for many. "Some of those things which could once have been taken for granted suddenly seem less certain and, naturally, give rise to feelings of insecurity," he said. "People are touched by events which have their roots far across the world. Whether it is the global economy or violence in a distant land, the effects can be felt at home."

The Governor-General paid particular tribute to two Kiwis who gave their lives to save others. He spoke of the sacrifice of Elim Christian College teacher Tony McClean, who lost his life trying to save school children trapped in the swollen Mangatepopo Stream, and Austin Hemmings, stabbed while going to the aid of a stranger in Mills Lane in central Auckland. "Their bravery and instinctive behaviour in doing what was right speaks to all New Zealanders," he said.

He also noted the death of one of New Zealand's great heroes. "This year saw a mighty kauri fall, with the passing of Sir Ed. We must strive to fill the gap in the forest with new heroes."

Satyanand spoke of his delight in watching the successes of New Zealanders in many areas of endeavour over the past year. "The hearts of our community were warm with pride as we saw our athletes, writers, film-makers, scientists, comedians and others make their mark on the international stage."

He cautioned that the country continued to face many challenges in the upcoming year. "The strength of our community and the resoluteness of our nation will be tested by the economic crisis. We will have to continue to confront great issues like climate change, settlement of Treaty grievances, and increasing violence in our society."

Recounting a Maori proverb, the Governor-General urged the nation to work together to address these challenges: "Kaua e rangiruatia te hā o te hoe, e kore tō tātou waka e ū ki uta. Do not lift the paddle out of unison or our canoe will never reach the shore."

Satyanand said that over the next few days he would be spending some time relaxing at the beach with his wife Susan and their daughters and son, and he hoped that others would also find time to relax and spend with their whanau and friends.

23 December 2008

An Act of Canned Ham

> DomPost: "Kiwi spammer gets hefty fine" We should not be proud of the (first) $100,000 "fine" imposed on a spammer this week. Don't get me wrong. I hate spam. But the penalty regime within the Unsolicited Electronic Messages Act 2007 has worried me for some time. Basically it enacts a criminal penalty regime - maximum $200,000 fine (or $500,000 if a company), search warrants, infringement notices, etc - but then calls it a "civil liability" regime. Notably, the usual protections of the criminal law - including the high burden of proof - are excluded by section 49:
49 Applicable rules, procedure, and standard of proof The proceedings under sections 45 and 46 are civil proceedings to which the usual rules of the court, rules of evidence, and procedure for civil proceedings apply (including the standard of proof).

In my view, that's bad, for obvious reasons. Less obvious fish-hooks include things like different (vis reduced) entitlement to legal aid for civil proceedings.

The Bill of Rights vet touched on the problem of criminal penalties in drag but summarily concluded that any breaches of rights, including the minimum standards of criminal procedure, were justified. I'm not so convinced.

This approach is a dangerous precedent. Perhaps something worthy of Law Commission consideration.

21 December 2008

Santa, a drag queen, and the Kapiti Coast District Council

> DomPost: "KKK man shows up to council in wig and dress"
The DomPost reports:
Just six months after upsetting Kapiti councillors by dressing in a Ku Klux Klan outfit, community board member Dale Evans has struck again. He appeared at a Kapiti Coast District Council meeting in a purple wig and women's clothing, with seven Santas in tow, and was ejected from the chamber yesterday by police prompting one councillor to compare the council to a three-ring circus. ... Ms Rowan opened the meeting by saying that, if anyone was dressed disrespectfully, they should leave. Mr Evans and his Santas refused to budge and the mayor adjourned the meeting. Some councillors left the chamber and police were called. ... Council chief executive Pat Dougherty said the ejection was justified. "Asking police to eject a group dressed in Santa suits and women's clothes was totally justified following the earlier Ku Klux Klan incident from the same person. They were asked to leave under standing orders.

No! Ejecting people for what they are wearing is not justified.

Section 47 of the Local Government Official Information and Meetings Act 1987 gives the public a right to attend any public meeting of a local authority. The (sole) power of a local authority to eject a member of the public from a public meeting is found in section 50:

50 Maintenance of order (1) The person presiding at any meeting of any local authority may, if that person believes, on reasonable grounds, that the behaviour of any member of the public attending that meeting is likely to prejudice or to continue to prejudice the orderly conduct of that meeting if that member of the public is permitted to remain in that meeting, require that member of the public to leave the meeting. (2) If any member of the public who is required, pursuant to subsection (1) of this section, to leave a meeting of a local authority— (a) Refuses or fails to leave the meeting; or (b) Having left the meeting, attempts to re-enter the meeting without the permission of the person presiding at the meeting,— any constable, or any officer or employee of the local authority, may, at the request of the person presiding at the meeting, remove or, as the case may require, exclude that member of the public from the meeting.

The section poses an objective test: There must be reasonable grounds for believing that a person's behaviour is likely to prejudice the orderly conduct of the meeting.

It's clear therefore, I'm sure, that the clothes someone wears is not sufficient to trigger ejection. There must be something more in terms of behaviour that threatens the orderly conduct of the meeting. (There's nothing in reports which suggest any other disruptive behaviour.)

If there's any doubt, the protections in the Bill of Rights would further assist, in particular, the freedom of expression in section 14. To the extent that the clothes being worn amount to expressive conduct (entirely credible in this context), then the test in section 50 would need to be read down to allow such expression, as far as possible without unreasonably undermining any government imperative underlying section 50.

In short, the government imperative is enabling elected members to conduct their meeting. What people wear does not affect that. Shouting does - and people can be ejected for that. But dressing in drag or a Santa suit - or "disrespectfully" - does not.

The guy ejected sounds like a total pillock. But that's no excuse for acting unlawfully and undemocratically.

18 December 2008

The Laws of New Zealand: Local Government (Reissue 1)

A (reissue) title on Local Government, co-written by Chris Mitchell and me, has now been published as part of The Laws of New Zealand series: > Christopher Mitchell and Dean Knight, "Local Government (Reissue 1)" in The Laws of New Zealand (LexisNexis, Wellington, 1992-) One is never quite sure whether to describe this work as a "chapter" or a "book". Strictly speaking, it's called a "title" in Laws of New Zealand parlance. But at 168 pages, it might be better described as a "real mission"! To give some flavour of the publication, I've set out below the preface.

Local Government has been a feature of our social and political landscape since the earliest days of organised European settlement. After one or two false starts, including the relatively brief existence of provincial government, the basic elements of the current system were in place by the early 1870s. In that sense, the development of the local government model pre-dated both national identity and the national constitution but, unlike them, its further development was slow and fitful and for years remained anchored in British tradition.

As the country grew, so too did the numbers of both territorial authorities and the many special purpose authorities such as harbour boards, drainage, river and catchment boards, and transport and energy boards. All of them were elected and locally funded bodies with specific and tightly prescribed powers of governance. By the late 20th century there were well over 600 local bodies exercising some form of governmental powers. In addition to the range of statutes under which each variety of local body was constituted, there well over 1000 local statutes empowering specific aspects of their activities. The only significant change to the legislation governing territorial authorities was the union of the counties and municipal corporations legislation to create the first Local Government Act in 1974.

In his preface to the original version of this title the author, Jonathan Field, noted that “local government is where the structures of democracy touch most directly on the lives and circumstances of the citizen; where responsiveness to changing needs, transparency in meeting them, and accountability for the management of public resources, are at their highest premium”. As the 20th century came to a close, these implicit objectives and values were seen to be compromised by laws and structures which were highly complex and not always consistent or coherent. The first wave of change came in 1989 with a major restructuring of the sector under which more than 600 bodies were reduced to fewer than 100, and amendments to the 1974 legislation which required a completely new approach to planning, funding and accountability.

Surprisingly however it was not until 2002 that legislation was enacted to define the role, purpose and principles of local government, and to give local authorities broad general powers to achieve the many obligations and expectations imposed on them. While this package of statutory reform was extensive (and included electoral and rating law) it remains incomplete, and parts of the 1974 legislation remain in force as do the fragmented statutes relating to drainage, water and transport – all traditional core areas of local government activity. Further legislation can be expected to affect these aspects of local government within the next few years, and amendments to give effect to the Local Government Commission’s review and recommendations on the 2002 legislation will also no doubt appear.

So the law on local government remains in a state of necessary but slow moving change. It should be emphasised that while this title deals with many of the core areas of local government, reference must be made to other important chapters (especially ENVIRONMENT and RATING) for a more complete understanding of the topic.

It remains for the authors to gratefully acknowledge those that have helped in the production of this title. First, we acknowledge the author of the original version of this title covering the earlier legislative regime, Jonathan Field. Our version incorporates some aspects of the previous commentary and the original version also helped us settle our own approach to this topic. Secondly, thanks to Tim Miller, Research Assistant at Victoria University of Wellington for some research assistance with the project. Thirdly, we are grateful to those close to us that countenanced the demands on our time required to complete such a project. Finally, we recognise the energy and assistance of the publisher’s editor, John Lulich, in bringing together our work into a format which we hope readers will continue to find useful.

Christopher Mitchell Dean Knight November 2008

And the short-form table of contents is set out below also:

PART I. STRUCTURE AND CONTEXT (1) History (2) Structure of Local Government (3) Related Persons and Bodies (4) Reorganisation Proposals PART II. PURPOSE, STATUS, AND PRINCIPLES (5) Purpose (6) Role, Status, and Principles (7) Treaty ofWaitangi PART III. APPOINTMENT OF LOCAL AUTHORITIES (8) General Overview (9) Local Elections (10) Initial Meeting of Local Authority PART IV. GOVERNANCE AND MANAGEMENT (11) Governing Body (12) Elected Members (13) Other Governance and Management Bodies and Staff (14) Meetings (15) Decision-Making Framework and Principles (16) Public Participation (17) Planning and Reporting PART V. LOCAL AUTHORITY SERVICES (18) General Overview (19) Roads (20) Water and Sanitary Services (21) Waste Management and Disposal (22) Community Facilities (23) Emergency Management (24) Reserves (25) Land Ownership, Acquisition, and Disposal PART VI. REGULATORY, ENFORCEMENT, AND COERCIVE POWERS (26) Introduction (27) Bylaws (28) Other Regulatory Regimes (29) Enforcement Powers (30) Legal Proceedings PART VII. FUNDING AND REVENUE (31) Overview on Funding (32) Funding Mechanisms PART VIII. PUBLIC ACCOUNTABILITY (33) Official Information and Transparency Mechanisms (34) Supervisory Bodies

An Urgent Submission #2

> NoRightTurn: "This bill needs a select committee" > LAWS179: "An Urgent Submission" > FrogBlog: "New domestic violence bill kept secret from public"

The government's plans about the passing of new measures to allow on-the-spot protection orders remains unclear. Early Monday morning, reports were that the Bill would be passed through all stages under urgency. Later, reports appear to have been amended to suggest the urgency would be for the First Reading only, with the Bill likely to be referred to a Select Committee. But the most recent urgency motion still suggests the Bill will be passed through all stages under urgency.

Since then, the Greens have posted a version of the government's Bill. It's largely based on parts of a previous Bill (one that had not yet been reported on by a Select Committee).

One of my colleagues, Professor Bill Atkin - a renowned family law expert, has expressed a number of technical, practical, and constitutional concerns about the Bill. His concerns were based on the previous version of the Bill, where the orders were to last only for 3 days (and were to be called something different). His concerns are now exascerbated because - under the Bill just released - the orders will now last for 5 days.

Because it's unclear whether he will have an opportunity to put his concerns to a Select Committee, he's agreed to allow me to post a (quickly prepared) version of his concerns on this blog.

In my view, it speaks volumes about the value of Select Committee process. Circumventing the public participation process avoids important concerns - including concerns from those who are experts in the field - being considered and addressed. Bad process leads to bad laws.

UPDATE 18/12/2008: I understand the Bill has just now been referred to a Select Committee for consideration. A sensible course.

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Professor W R Atkin Faculty of Law Victoria University of Wellington 15 December 2008

Safety orders for domestic violence

The new Minister of Justice, the Honourable Simon Power MP, is reported as saying that he plans to see new police powers go through Parliament under urgency before Christmas (NZ Herald, 15 December 2008). The proposal is to allow the police to hand out safety orders in domestic violence situations on-the-spot. Such orders are very similar to the protection orders that the Family Court can grant under the Domestic Violence Act 1995. The idea appears in a Bill introduced before the election by the previous Labour Minister of Justice and is therefore likely to have cross-party support. Advice to the Attorney-General stated that “the effect of an order engages numerous rights under the Bill of Rights Act” but because of “the relatively short duration of safety orders and the requirement of seniority of authorised officers” the limitations on civil rights were “on balance” justified. However, getting a proper balance in this area of the law is fraught: it is an area that exercises the energies of interest groups, including women’s groups and men’s groups. It is the very kind of legislation that ought to be thoroughly tested through the select committee process but urgency means that select committee scrutiny is by-passed. What of the two justifications in the advice to the Attorney-General? With respect to the second justification, the original Bill allows an ordinary constable to issue an order. A senior officer must have given the constable authority but the Bill does not provide that this authority has to be given specifically on each occasion. As it stands, there is nothing to stop a general authorisation being given to ordinary constables. With respect to the first justification, a police-issued safety order lasts only 72 hours. That sounds fine. Home violence is a very serious issue, one of the reasons surely that swayed the vast majority of politicians to vote for the repeal of the old section 59 of the Crimes Act 1961. However, this should not deny a careful assessment of the proposal. The short-term effect of an order is that the respondent is evicted from home and cut off from children. The long-term effect is that the respondent has an order against his or her name, something that may, among other things, affect the outcome of litigation involving the children. There is no mechanism in the Bill at all for challenging the issue of a safety order. Probably the only mechanism for doing so is a cumbersome judicial review application in the High Court or perhaps a civil action if it is claimed that the police acted without reasonable care or with a lack of bona fides. So, the consequences of a safety order, despite its short duration, are serious. We should also ask questions about the granting of these orders. First, no one needs to ask for them: the police act on their own initiative. The test for their granting is that they are “necessary to ensure the immediate safety of [the other person]”. What does “safety mean? It is undefined and is not limited to physical safety. So, a constable may act because of a fear that a person’s psychological safety is at risk. This broadens the scope of the orders enormously. Next, an order can be issued only where an arrest is not made. In other words, we are not dealing with the really serious instances of domestic violence, the ones where the police can use their familiar powers of arrest. By definition we are talking about less serious situations. One might actually wonder whether the new powers might not be more valuable where an arrest is made and the arrested person may be released within 72 hours. Finally, for the purposes of this brief comment, there is no provision at all for the respondent to put forward a different side of the story or advance an explanation and, if any such explanation happens to be given, there is no provision for it to be taken into account. It is fair enough to treat domestic violence as a top priority. While one may have constitutional qualms about these new police powers, it looks as though they will be enacted very soon. There remain however important aspects of the form of the legislation that really need to be carefully scrutinised.

16 December 2008

GUEST POST: Andrew Geddis - An extraordinary rush

Concern about the present government's use of urgency is shared by other colleagues of mine. Below is a guest post - originally submitted as a comment on my previous thread - from Associate Professor Andrew Geddis, Faculty of Law, University of Otago.
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Associate Professor Andrew Geddis Faculty of Law, University of Otago

In just its first week in office, the new National Government has pushed five enactments through Parliament. This is a quite extraordinary rush of legislation, one that raises important questions about Parliament’s status as a lawmaking institution.

I acknowledge at the outset that most, if not all, of these new laws relate to policies that National telegraphed during the election campaign. Therefore, the problem is not that National is foisting a secret or surprise legislative programme on the country.

Furthermore, the previous Labour-led Government was not above using urgency and other parliamentary tricks to rush through law changes when it suited. Therefore, the problem is not that National is behaving worse than its Labour predecessor did.

The concern instead is that National appears to be behaving no better. Its first week in control of the new Parliament indicates it also intends treating this institution’s lawmaking power as nothing more than a convenient means of getting the outcomes it wants.

Why should we care about this fact? After all, political parties campaign for office on a wide range of policy promises. When the voters give a party the reigns of government, they expect it to deliver on those promises. Indeed, there would be good grounds to complain if it did not do so.

However, the government and Parliament is not the same thing. Parliament’s enactments form our nation’s highest laws, not the policies of the governing political party. Moreover, the way Parliament turns those policies into enactments through considered deliberation and scrutiny is critical to its status as our highest lawmaker.

Where Parliament is reduced to a rubber-stamp that transforms the wishes of the governing parties into law as quickly as possible, its basic purpose is undermined.

This concern is not an abstract one. In a lecture delivered earlier this year, Professor Jeremy Waldron of New York University damned our Parliament as "a unicameral legislature, which has evolved procedures for fast-track legislation which are quite disgraceful by world standards, and which is by and large the plaything of the executive."

To put these words in context, Professor Waldron arguably is New Zealand’s finest living legal theorist. And the conservative think tank, the Maxim Institute, has just published his lecture under the title Parliamentary Recklessness: Why we need to legislate more carefully, so his hardly are the views of some dewy-eyed left-winger.

Professor Waldron’s basic critique is that New Zealand’s parliamentary lawmaking process has sacrificed its fundamental dignity to a purported need for streamlined efficiency. The critical qualities of deliberation, care and reflection have given way to speed and expediency.

I think Professor Waldron has a good point to make. I also think that this trade-off has produced at least three negative consequences.

First, legislation passed in haste often is repented of at leisure. While no one can foresee every consequence of proposed legislation, laws rushed through Parliament are far more likely to contain unexpected fishhooks that catch the public.

Remember, whatever Parliament puts into its enactments becomes our nation’s highest law. It cannot be argued after the fact, "yes, that is what Parliament said, but it did not really mean that to be law!"

Second, viewing legislation simply as an immediate solution to a particular problem erodes its overall quality. As the Law Commission recently reported, New Zealand’s statute books are a confusing mélange of multiply revised enactments, often confusingly worded, and extremely difficult to access.

This basic impenetrability of law made by Parliament is a disgrace in a democratic society. Yet, as long as legislation is considered little more than a vehicle to deliver the government what it wants, there will be no concern to remedy this problem.

Finally, the further Parliament moves away from good – that is, deliberative, careful and reflective – legislative practice, the more its basic authority is undermined. As a society, we entrust Parliament with supreme lawmaking power not only because we elect it, but also because of how it then uses that power.

An institution that produces rushed, ill-considered enactments to satisfy the ruling party’s policy desires deserves little respect. There hardly can be complaints when other institutions, such as the courts, begin to question whether Parliament’s enactments really should be followed in every case.I reiterate that I am not accusing the present National Government of being the sole villain in this piece. I also note that there will be some situations where Parliament really must move with speed to resolve a pressing matter.

However, there always will be an apparently good reason to set aside long-term values of good lawmaking in the name of "getting the job done". In addition, as Professor Waldron notes, "We have to get away from a situation where those who support a bill support rushing it through the legislature, and only those who oppose the measure express any concern about the process."

What is needed is greater recognition that deliberative, careful and reflective lawmaking is an independent good. This point is one that our representatives in Parliament appear to have forgotten.

15 December 2008

An Urgent Submission

It's like the cricket. You're watching it on the telly, then you have to leave the room for whatever reason. Undoubtedly, when you return, there have been 2 or 3 wickets lost in your absence. So I was in Sydney last week at the 25th annual conference: W(h)ither Human Rights? And when I returned, I found that the government had passed a number of Bills under urgency. The circumvention of the public submission process through Select Committees is particularly egregious. The value of public examination of legislative proposals is self-evident. Palmer and Palmer refer to this step as "one of the most important features" of our legislative process (Bridled Power, 2005, 4th ed, p 194). Some commentators suggest an essential element of the Rule of Law is the ability for the public to participate in its development. As Brian Tamanaha says: "Law obtains its authority from the consent of the governed. ... Rational democratic mechanisms must accord everyone affected by the law an equal opportunity to participate, and must secure everyone's consent." (On the Rule of Law, 2004, p 99) The mere fact that the proposal has been foreshadowed in an election manifest (to whatever degree) does not obviate the need for this scrutiny. While, at best, the broad policy may have some implied mandate (which is arguable here), there are matters of detail and implementation that are worthy of scrutiny. And, the process of participation in the development has some intrinsic value in itself. It's disappointing to see that there are plans to pass further proposals through all stages under urgency this week.

Seeing the World Whole: Essays in Honour of Sir Kenneth Keith

On Wednesday night the Chief Justice launched the book of essays written in honour of Sir Kenneth Keith, edited by Claudia Geringer and me: Claudia Geiringer and Dean R Knight (eds) Seeing the World Whole: Essays in Honour of Sir Kenneth Keith (Victoria University Press, Wellington, 2008).

Below is an extract from the foreword which records the purpose and nature of the collection:
The title of this collection — Seeing the World Whole — is appropriated (with thanks) from Ben Keith’s essay for the collection: "Seeing the World Whole: Understanding the Citation of External Sources in Judicial Reasoning". Ben Keith draws the title from Sir Kenneth’s extra-judicial writings in which Sir Kenneth drew on Richard Maclaurin who, in turn, drew on Matthew Arnold’s poem, "To a Friend": "who saw life steadily and saw it whole". It is apt that Ben Keith should have derived his title from a series of successive borrowings as the theme of his essay is borrowing of a sort — by judges, from external sources (that is, sources external to the legal resources of the particular legal system), in order to support the judicial reasoning process. It is doubly apt because Sir Kenneth, as Ben Keith points out, has been a consistent advocate of "a wide and flexible approach to legal method" and, as a judge himself, has drawn freely on a wide range of sources in his decisions. The use of external sources in judicial reasoning is, however, only one of the many ways in which Sir Kenneth has encouraged those of us engaged in the enterprise of law in its many manifestations to "see the world whole". As the contributors to this collection note time and time again, if there is one distinguishing feature of Sir Kenneth’s contribution to the law it is his ability to see connections and to encourage others to do likewise. Thus, for example, the Chief Justice remarks in her Opening Address that, "one of the gifts Sir Kenneth has is to see connections where others see divisions." This ability to see connections is also captured in Bill Sewell’s poem, "The Net-Maker", written for Sir Kenneth in 1996 — the year he took up judicial appointment on the Court of Appeal — and included in this collection with the permission of his wife, Amanda Powell. The unifying theme to this collection, therefore, is the interconnectivity of the enterprise of law. The essays contained in it reflect Sir Kenneth’s preoccupation with the connections that underlie the legal universe — between the local and the international, the past and the present, the practical and the theoretical; between law and policy, law and history, law and literature; between the varying sources that underlie the law and legal reasoning, and between the varying professional roles that may constitute a legal career. The essays in this collection were initially prepared for the conference, "From Professing to Advising to Judging: A Conference in Honour of Sir Kenneth Keith", held at the Victoria University of Wellington in August 2007. Jointly organised by the Faculty of Law and the New Zealand Centre for Public Law, the conference marked Sir Kenneth’s retirement from the New Zealand judiciary, celebrated his ascension to the giddy heights of the International Court of Justice and honoured his distinguished career as academic, law reformer, legal advisor, international advocate and judge.

The back cover, with the list of contributors, is below.

The book can be purchased from good book stores for $60. Or $54 from the following Vic sites: > VicBooks: "Seeing the World Whole: Essays in Honour of Sir Kenneth Keith" > VUP: "Seeing the World Whole: Essays in Honour of Sir Kenneth Keith"

9 December 2008

A stuck record?

> NZHerald: "Council sets out rules for buskers " > AuckCity: "Performers take to the street with licence to entertain" The NZ Herald reports:
Buskers who repeat their songs too often within an hour on Auckland City streets can be muzzled under a new council policy. From Monday, street performers in the city must obtain an annual licence, which is free if they agree to comply with the council's new code of conduct. The policy acknowledges the important contribution of street performance to the "vitality of our city" and aims to direct "the right activity to the right location at the right time". It says street performers should develop sufficient repertoire for however long they choose to perform - the maximum is one hour of playing time - without repetition. "If a performer continues to repeat items they may be asked to cease performing. Performers must immediately comply with this request." The policy allows licensed performers to operate on city streets - but not parks - at any time if they are quiet acts, such as mime or statue artists. Acts involving musical instruments, amplification or loud voices are restricted to 7am to 9pm in most areas. The time limit is extended to 2am outside Tourism Auckland and the Starmart on the central-city waterfront, and until midnight at Aotea Square and until midnight on Friday and Saturday nights on Karangahape Rd. Noise levels must not disturb customers or staff of nearby businesses, or be greater than the usual background noise when heard from 30m away. Performers are mostly limited to one hour a day at a location, but can then move to another site. The council says the policy sets a fair way to use the most popular sites and directs performers to appropriate locations in the central city, such as four places for pavement art and eight for acts that attract large audiences. "Street performance plays an important role in the vitality of Auckland City and offers entertainers the chance to gain experience and develop a public profile," said the chairman of the council's arts, culture and recreation committee, Greg Moyle. "Clarifying expectations and directing the right activity to the right location, at the right time will encourage and enable a range of street level activity in our city."

The policy of course is a prima facie breach of the freedom of expression in the Bill of Rights, but may be justifiable as a "reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society" under section 5.

I don't have time for an extended analysis - but maybe we could have a straw poll on whether folk think this policy might pass muster under section 5?

8 December 2008

Opening of Parliament Ceremonies

> Parliament: "Opening of parliament ceremonies on 8 and 9 December 2008" The Parliament website has an excellent explanation of the detail and history of the two opening of Parliament ceremonies (Commission and State) that will take place today and tomorrow:
Commission Opening of Parliament Monday, 8 December 2008 at 2 pm Opening This is the day on which Parliament is formally opened. The Governor-General sends Commissioners to the House to declare Parliament open on his behalf. The Commissioners are usually senior Judges. The Clerk of the House will read the document from the Governor-General that authorises the Commissioners to act for the Governor-General. The Commissioners will then declare Parliament open and leave the Chamber. Swearing-in The first essential activity for members once Parliament has been opened is for them to be sworn in. By law, no member may sit or vote in the House before taking the Oath of Allegiance or making an Affirmation of Allegiance to the Crown. The Clerk of the House is authorised by the Governor-General to administer the oath or the affirmation to members on the opening day. The Clerk will read this authority to the House and will then invite members to come to the left of the Speaker’s Chair, in alphabetical order, to take the oath or affirmation. The terms of the oath and the affirmation are prescribed in the Oaths and Declarations Act 1957. Members may swear or affirm in English or in Māori. After each member has taken the oath or made the affirmation, the member goes to the other side of the Chamber and signs an official register that provides evidence that they are entitled to sit and vote in the House. Election of Speaker Once members have been sworn in, they must elect someone to chair the meetings of the House. This person is known as the Speaker of the House of Representatives. The Clerk presides over the House for the election of a Speaker and calls for nominations. Members nominate themselves. There is no debate on the election of a Speaker. If only one member is nominated, that member is automatically elected. If two members are nominated the matter is decided by a personal vote. For this purpose the bells are rung for seven minutes and members vote in the voting lobbies for each candidate. Abstentions are permitted, but not proxy votes. If three or more members are nominated the Clerk asks each member (in alphabetical order) to declare for whom the member votes. Abstentions are permitted, but not proxy votes. If a candidate for election obtains more than half the votes cast, that person is elected. Otherwise, the lowest polling candidate drops out until there are only two candidates remaining. At that point the matter is decided by a personal vote. Confirmation of Speaker Monday, 8 December 2008 Governor-General’s confirmation of Speaker Although the House has elected a Speaker, by law that election only takes effect when the new Speaker is confirmed in office by the Governor-General. Until then the Speaker is known as the Speaker-Elect. The purpose of this ceremony is for that confirmation to be obtained. The Speaker-Elect will march in a procession led by the Serjeant-at-Arms and followed by the Clerk of the House and the Deputy Clerk. At this time the Serjeant-at-Arms carries the Mace (the symbol of the House) in the crook of his arm to demonstrate that the Speaker has not yet been confirmed in office. When the Governor-General enters, the Speaker-Elect will present himself or herself to the Governor-General and ask for His Excellency’s confirmation as Speaker. When His Excellency confirms the House’s choice as Speaker, the Serjeant-at-Arms will raise the Mace to his shoulder, as, from that moment on the Speaker is fully in office. House’s privileges The first thing that the Speaker does after being confirmed in office is to ask His Excellency, on behalf of the House, for confirmation of the privileges enjoyed by the House. The House’s privileges are the legal powers that the members have to protect the good name of Parliament and to enable them to carry out their duties properly. His Excellency will reply to the Speaker’s request for confirmation of these powers. Authority to swear in Members Although the Clerk of the House administered the oath or affirmation at the Commission Opening to all members who were present in the House, there may be some members who were unable to attend. In addition there may be new members elected during the life of the Parliament. All of these members will have to take the Oath of Allegiance or make an Affirmation of Allegiance before they can take their seats. Before the ceremony concludes, therefore, the Governor-General gives authority to the Speaker to administer the oath or affirmation to members who may need to take it in the future. State Opening of Parliament Tuesday, 9 December 2008 at 2 pm On this occasion the Governor-General comes to Parliament House to tell the members of Parliament the Government’s reasons for bringing Parliament together to meet. By custom, the Governor-General does not enter the House’s own Chamber (a tradition followed for over 300 years as a reaction to an occasion when a King of England entered the Chamber of the House of Commons in an attempt to arrest some members of Parliament). The ceremony is therefore held in the Legislative Council Chamber, the chamber in which the upper house used to meet until its abolition on 1 January 1951. The Governor-General will (after taking his seat on the Throne) send a messenger, known as Black Rod (so called because of the staff which he carries) to the House to summon members to the Council Chamber. On reaching the House’s Chamber, the door is shut so that Black Rod must knock on the Chamber door. When he has been admitted he gives the House His Excellency’s message and the House, led by the Serjeant-at-Arms (with the Mace) and the Speaker, march in procession to the Council Chamber. When the members have assembled in the Council Chamber, the Governor-General informs them of the Government’s reasons for calling Parliament to meet at this time. This is known as the Speech from the Throne. The Speech is a statement of the issues that the Government wishes members to consider. It usually contains a reference to important bills that the Government intends to introduce. At the conclusion of the Speech, His Excellency presents a copy of it to the Speaker and departs. When the Vice-Regal party has left, the members follow the Speaker back to their Chamber in procession to carry on with their business. When the House resumes, the Speaker reports the Speech from the Throne to the House. Over subsequent days the House will debate the issues set out in the Speech, in the Address in Reply debate.

5 December 2008

O' Canada! What happened to Constitutional Law 101?

> GlobeAndMail: "Parliament shut down till Jan. 26" > CBC: "GG agrees to suspend Parliament until January" > Kiwiblog: "The crisis in Canada" > Pundit: "Canada crashes towards crisis as PM panics

Astonishing.

Our friends in Canada are having a bit of a constitutional skirmish.

Following the recent election, the 3rd in 5 years, the tenure of the Tory minority government was fragile. For various reasons, the opposition parties who had supported the government on confidence (based on a unique Canadian custom), withdrew their support. See the other articles for the political background.

But. And this is the interesting thing. Today, matters come to a head. The Governor-General - acting on the advice of the Prime Minister - prorogued (temporarily suspended) Parliament until late January, thereby avoiding a formal no-confidence vote set for Monday. Based on the present numbers and state of play, this was a vote the Government would have inevitably lost. We know that because the opposition parties had jointly written to the Governor-General advising her that the Government no longer had the command of the House and intimating that the opposition parties were capable of forming a coalition that would secure the confidence of the House.

A rudimentary Constitutional Law 101 suggests the decision to prorgue is dodgy:

1. Her Majesty's responsible advisers are only entitled to tender advice to her as long as they command the confidence of the House. Confidence is the "life-blood" of any government.

2. If a Prime Minister does not have the confidence of the House they are obliged to resign.* If they do not honour their constitutional obligation to resign, the Governor-General is entitled to dismiss them. (*Any resignation is "contingent and deferred", in that the Prime Minister continues in the role in a caretaker capacity until elections or confidence is otherwise restored.)

3. If a Prime Minister does not have confidence, the Governor-General must exercise his or her reserve powers to restore constitutionality, consistent with the democratic imperative. This can be achieved in two ways: (a) appointing an alternative Prime Minister who commands the confidence of the House; or (b) dissolving Parliament for a fresh election.

4. The request to prorogue Parliament appears to be tendered in circumstances where the Prime Minister does not command the confidence of the House. Therefore the Governor-General is not required, and indeed is obliged not to, follow that advice.

The only wriggle-room seems to be about the crystallisation of the lost of confidence. On the one hand, the opposition parties have demonstrated in a manner consistent with the principles of government formation that the incumbent does not command the confidence of the House. They have publicly advised the Governor-General that they have the necessary numbers to command the confidence of the House. On the other hand, any lack of confidence has not yet crystallised through the formal Parliamentary process for determining no-confidence. That is, the confidence vote has not yet been lost. The loss of this vote would be determinative of a loss of confidence but this has not yet taken place.

My sense on this point - and consistent with discussions of other local folk with expertise in this area - is that if this scenario arose in the New Zealand context, it is probable that the formal advice to the Governor-General from the Opposition parties about the loss of confidence would be sufficient to trigger the obligation to resign - that is, a lost vote of confidence would not in itself be required.

Of course, it's not always possible to translate these principles directly to other jurisdictions with slightly different constitutional and political contexts and mentalities. I suspect our more intense familiarity with coalition governments and therefore our heightened understanding of the role of the Governor-General means a clear, more orthodox path might be followed here. I was struck by the extremely equivocal and contradictory advice being tendered by the various constitutional experts on the news items in Canada about the scenario.

Anyways, a skirmish worth following - I suspect the parliamentary time out might not prove enough to save the Tory government. But we'll see what happens in late January...

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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