23 February 2009

Section 92A: Shades of Grey

Given the state of my brethren blogs, I am reluctantly forced to state my views on this debate. And I do so saying that my views are somewhat raw and ambivalent. First, I'm someone who supports the protection of human rights and due process being observed. I therefore have some sympathy for a cause which is opposing a measure on the basis that it is "guilt by accusation". But, secondly, I'm not convinced the section is nearly as grave as is being claimed and am worried that this campaign is a faux protest. As part of a broader package addressing (removing?) ISP liability for copyright, section 92A requires ISPs to terminate connections of repeat copyright infringers:
92A Internet service provider must have policy for terminating accounts of repeat infringers (1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.

Ok. That makes sense. We have a copyright regime, which makes illegal to infringe copyright in some circumstances. Section 92A requires those who are partly complicit in breaches to honour and enforce those rules. Some might argue the Rule of Law requires the enforcement of the law. Does section 92A amount to guilt by accusation? Not really. It's not the most elegant drafting but it seems to me that the power to terminate can only properly be exercised where repeat infringement has been estalished. First, there is only the jurisdiction to terminate where copyright has been infringed unlawfully - if ISPs terminate where that is not the case, then they are exercising ultra vires this power. (And, it's likel that that relatively "hard-edged" judgement will be scrutinised carefully by any reviewing court or authority, if it got to that point.) Secondly, the section makes it clear that termination is only permissible "in appropriate circumstances". There's no flesh on that but it seems reasonable to expect that: (a) terminating where there is a genuinely disputed infringement clearly wouldn't be appropriate; (b) even if there has been repeat infringement, some compelling circumstances mean termination won't be the proper approach. (Those of us working in the state sector are used to terms like "appropriate" and "reasonable"; these terms allow for the flexible, case-by-case evaluation of circumstances, rather than the rigid application of fixed rules which often bring injustice.) And, a draft industry Code has been prepared. Amongst other things, it explicitly states that disputed breaches cannot form the basis of any of the 3 strikes (within 18 months) and you're out regime. It's legitimate, I think, to have regard to this when assessing the impact of the regime. Remember, we have regimes which are entirely self-regulatory (eg Press Council). Let's judge the regime holistically. As a drafting approach, I might have preferred that the Code be adopted in the form of binding regulations or that the Act itself provide some guiding principles about the reach and application of section 92A. But is the present law, as it is likely to be applied, a breach of people's human rights or due process rights? I'm not convinced it is. We're not dealing with the imposition of criminal sanctions. And the operation of the regime looks likely to be more circumscribed than the opponents suggest. Hence, I'm not blacked out. I reiterate my views are still in a state of genesis - and I'm open to persuasion. But from the research and thinking I'm done so far, I need some compelling arguments provided the other way. Oh. "Faux" protest? Why do I think that? It don't think this is really about the section 92A enforcement mechanism. I think the real cause for the complaint from the opponents is a fundamental atheism about copyright. They don't believe in copyright. I'm not a copyright guru. I'm happy to have the debate about whether those copyright concepts continue to be appropriate. But that's not the marquee message of this campaign. It's complaint is the about the method of enforcing those rules.

10 February 2009

Judges' salaries and pay freezes

> TV3: "MPs pass motion asking for no pay rise" I was surprised, once again, to see the Prime Minister advocating that judges be subject to a pay freeze:
"Mr Key has already written to the Remuneration Authority, which sets MPs' pay, asking it not to award a pay rise this year. He also said he understood Governor-General Anand Satyanand was writing to the authority requesting no pay rise, "so I'm sure judges and the like will also take a similar view"."

I think the move borders on being unconstitutional, either by failing to accord judges a pay increase they are entitled to or for a member of the Executive to publicly champion that course of action.

Financial security of the judiciary is important element of the fundamental principle of judicial independence. As Joseph explains (Constitutional and Administrative Law, 2007, page 779):

"Judges' remuneration must not fall beneath a minimum level that could be perceived as exposing them to political pressure through economic manipulation."

Former Chief Justice Eichelbaum once noted that "guaranteed tenure of office for Judges, and adequate remuneration" was one of the essentials to support judicial independence ((1997) 6 Canterbury LR 421). To a certain extent, this principle or convention has been expressly reflected in our constitution. Section 24 of the Constitution Act 1986 specifically directs that judges' salaries not be reduced:

24 Salaries of Judges not to be reduced The salary of a Judge of the High Court shall not be reduced during the continuance of the Judge's commission.

(This provision has its origins in the Act of Settlement 1700 and which, as Palmer and Palmer put it (page 296), "was designed to protect the judges by removing the Crown's unfettered discretion to dismiss them".)

Whether this express protection would be breached by failing to increase salaries in line with inflation etc is unclear.

Authority from the United States suggests that such indirect, non-discriminatory reduction in salaries do not breach a similar protection (Joseph, 779). However, previously analysis in the New Zealand context has raised constitutional concerns about interference with judicial salaries:

- When previous attempts where made to voluntarily ask judges to request their salaries be reduced (1921) or for a request to be made for judges to voluntarily refund of their salaries (1932), such proposals were described as being "constitutionally improper" (Scott, The New Zealand Constitution, 1962, page 162).

- When changes were proposed to be made to the Government Superannuation Act, which would have seen a reduction in benefit entitlements for MPs and judge (1991), the then Solicitor-General - now Supreme Court judge - John McGrath, concluded that such specific changes directed at judges would be improper:

Such reductions would in effect diminish the security of judges in their office, which turns not only on their secure tenure as such but on undiminished remuneration during their tenure. As such the changes would be a measure detrimental to the independence of the judiciary, contrary to s 24 of the Constitution Act and in breach of the constitutional convention it articulates.

I'm not prepared, without more research and reflection, to definitively conclude that a wage freeze (effectively a reduction in salary in real terms) is unconstitutional per se. But it's fair to say that it is looks pretty dodgy at least, particularly as there seems to have been no explicit acknowledgement of the constitutional concerns it might raise.

And the public comments made by the Prime Minister championing such an approach might also be objectionable in their own right. Judicial independence and the separation of powers also requires constitutional actors to respect the underlying constitutional principles and sphere of responsibility. Ordinarily this manifests itself in the principle that Ministers should not express any views that could be regarded as reflecting adversely on the impartiality, personal views, or ability of any judge (Cabinet Manual, para 4.13). But it's not hard to see how the same principle would apply by analogy to encouraging approaches to judicial remuneration that might undermine judicial independence.

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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