7 April 2009

Dissenting views of the Minister of Māori Affairs on greater Auckland Council Māori seats - a breach of Cabinet collective responsibility?

> RadioNZ: "Government scraps Maori seats for super-city" > Stuff: "Supercity to exclude Maori representation" Speaking on Radio New Zealand National today, Minister Pita Sharples is understandably upset that the government has rejected the Royal Commission's recommendation for mandated Māori representatives on the super Auckland Council. But, he's forgotten one thing: it's his government. And, significantly, he is bound under the principles of collective responsibility expressed in the Cabinet Manual to publicly support that government's decision. Speaking out today, as a Minister of the Crown, is a breach of the Cabinet Manual and the constitutional convention of unanimity that applies to decisions of Cabinet. Importantly, the "agree to disagree" provisions of the Māori Party's confidence and supply arrangement do not excuse his dissent. Let me explain: 1. The constitutional convention of collective responsibility applies to decisions made by Cabinet (Cabinet Manual 2008):
Collective responsibility and Ministers 5.22 The principle of collective responsibility underpins the system of Cabinet government. It reflects democratic principle: the House expresses its confidence in the collective whole of government, rather than in individual Ministers. Similarly, the Governor-General, in acting on ministerial advice, needs to be confident that individual Ministers represent official government policy. In all areas of their work, therefore, Ministers represent and implement government policy. 5.23 Acceptance of ministerial office means accepting collective responsibility. Issues are often debated vigorously within the confidential setting of Cabinet meetings, although consensus is usually reached and votes are rarely taken. Once Cabinet makes a decision, Ministers must support it (except as provided in paragraphs 5.25 - 5.27), regardless of their personal views and whether or not they were at the meeting concerned

2. To avoid any doubt, collective Cabinet responsibility applies to Ministers outside Cabinet (Cabinet Manual 2008):

2.27 Ministers outside Cabinet have full legal powers as Ministers, and may be appointed to full portfolios. They have the same role, duties, and responsibilities as Ministers inside Cabinet, and are also bound by the principle of collective responsibility. (See paragraphs 5.22 - 5.28.) They do not attend Cabinet, but, with the agreement of the Prime Minister, may attend for particular items relating to their portfolio interests. They are usually members of one or more committees, attending other committees where relevant.

3. The only exception to this principle is "agree to disagree" regime implemented in the recent era of coalition government. The exception is, however, narrow and is not a blank cheque for Ministers from coalition parties to dissent at will (Cabinet Manual 2008):

5.25 Coalition governments may also decide to establish "agree to disagree" processes, which may allow Ministers within the coalition to maintain, in public, different party positions on particular issues or policies. Once the final outcome of any "agree to disagree" issue or policy has been determined (either at the Cabinet level or through some other agreed process), Ministers must implement the resulting decision or legislation, regardless of their position throughout the decision-making process. 5.26 "Agree to disagree" processes may only be used in relation to different party positions within a coalition. Any public dissociation from Cabinet decisions by individual Ministers outside the agreed processes is unacceptable. 5.27 Ministers outside Cabinet from parliamentary parties supporting the government may be bound by collective responsibility only in relation to their particular portfolios. Under these arrangements, when such Ministers speak about issues within their portfolios, they speak for the government and as part of the government. When they speak about matters outside their portfolios, however, they may speak as political party leaders or members of Parliament rather than as Ministers, and do not necessarily represent the government position. When such Ministers represent the government internationally, they speak for the government on all issues that foreign governments may raise with them in their capacity as Ministers.

4. The Maori Party and the National Party have adopted "agree to disagree" processes in their confidence and supply agreement (Relationship and Confidence and Supply Agreement between the National Party and the Māori Party):

Collective Responsibility The Māori Party agree to be bound by collective responsibility in relation to their Ministerial portfolios and their Associate Minister responsibilities. When the Māori Party Ministers speak about issues within their portfolios and Associate Minister responsibilities, they will speak for the government and as part of the government, representing the government’s position in relation to these responsibilities. When they speak about matters outside these responsibilities, however, they speak as the Co-Leaders of the Māori Party or as members of Parliament. The “agree to disagree” provisions apply as necessary. They will support the government’s position on all matters that are the subject of confidence and supply votes.

5. While the Maori Party and ministers from the Māori Party may be entitled to adopt different party positions on matters that are not matters of confidence and supply, ministerial dissent on matters within portfolios is expressly excluded. 6. In my view, the issue of Māori representation on the super Auckland Council is a matter which falls within Pita Sharples' Māori Affairs portfolio, for a number of reasons: (a) First, he said on the radio it did. He said he raised the issue in his capacity as Minister of Māori Affairs:

I have voiced my displeasure at the taking away of those seats. And I've done so as the Minister of Māori Affairs because I have a responsibility to represent the views of Māori people, and Auckland Maori including the mana whenua have made that very clear to me.

(b) Secondly, although the super Auckland Council proposal is principally being promoted by the Minister of Local Government, it's fair to say the question of Maori representation falls squarely within the rubric of "Māori Affairs". By defintion, the portfolio is panoptic (cf many commentators conceptualisation of the Foreign Affairs portfolio when agree to disagee issues arose during the term of the previous government).

(c) Thirdly. the Minister's own Ministry states that such matters fall within its responsibility. In its statement of the portfolio responsibilities provided by Te Puni Kokiri to the Minister of Māori Affairs, amongst other things, it notes that "managing and advising on Crown-Māori relationships at the national and local level" as one of the Ministry's "core functions". (d) Fourthly, the Minister of Māori Affairs is charged with some express, albeit indirect, statutory responsibility in relation to the reorganisation of local authorities and governance arrangements. Under section 33(2) of the Local Government Act 2002, one member of the Local Government Commission (which is the body responsible for these matters) is appointed by the Minister of Local Government only after consultation with the Minister of Māori Affairs.

There may be other indicia that support this view. I recognise, thouhg, that some might argue the portfolio responsibilities could be drawn narrower. But I think that's gilding the lily somewhat, especially as the Minister himself has admitted that it falls within his portfolio responsibilities. The upshot of this is that Pita Sharples, as Minister of Māori Affairs, has expressed dissent on a matter within the rubric of his portfolio, in breach of the agree to disagree provisions and the Cabinet Manual. Further, the Minister was quite candid in recounting discussions he had with the Prime Minister and Minister of Local Government about the matter. Again, very problematic. Teamed with the "unanimity" limb of the principle collective responsibility is the "confidentiality" limb of the same principle. Although the Cabinet Manual provisions are aimed at confidentially about Cabinet discussions, the reality of the present arrangements probably means it extends more broadly to cover similar discussions between Ministers. In any event, this is expressly reinforced by the Māori Party's confidence and supply arrangement (Relationship and Confidence and Supply Agreement between the National Party and the Māori Party):

Confidentiality It is agreed that where briefings are provided to the Māori Party, or where the Maori Party is involved in a consultative arrangement with regard to legislation, policy or budgetary matters, all such discussions shall be confidential unless otherwise agreed.

Disclosure of those discussions would therefore seem to breach that commitment and amount to a breach of the confidence and supply agreement. Now, I have some sympathy for Pita Sharples - the summary rejection of Māori representation seems reactionary and rank. And I don't quibble with the belief that the Māori Party representatives need to champion the views of Māori on this issue. But, the role of minister comes - along with power - with responsibility and constraints; the most notable constraint is collective responsibility. The Māori Party bought into these obligations when they accepted the Ministerial warrants. If they want to operate as an opposition party and be free to criticise and condemn government initiatives as they relate to Māori, then perhaps they ought not to have accepted the responsibilities of office. And as a final note, I believe the Prime Minister has previously indicated he would hold his Ministers to a higher standard and would not tolerate breaches of the Cabinet Manual. Does this mean the Prime Minister is now obliged to ask Pita Sharples to resign as Minister of Māori Affairs?

6 April 2009

Parliament and the Bill of Rights - a blasé attitude?

Like most, I'm someone who believes in the importance of human rights. However, as will be aware from previous postings, I also believe that many rights issues - particularly questions about whether a purported breaches of a rights are "demonstrably justified in a free and democratic society" - are complex and they benefit from ventilation in the parliamentary arena. I'm sceptical of those who rush to the courts, seeking the judiciary intervene to address some purported rights violation when the issue is something on which reasonable people within free and democratic societies can differ on. In such cases, I prefer the deliberation about the definition of rights and permissible limits to be undertaken by our elected representatives. The value judgements involved in such deliberations benefit from a democratic mandate, the diversity that representatives bodies bring to the table, and the public engagement that can be brought to an issue. It follows, then, that in such cases, I think our courts should apply a strong degree of deference - a generous margin of appreciation - to the outcome of democratic deliberations on those rights issues. But. And a big but. Any deference in this area must be earned. Parliament must, I believe, genuinely engage with the rights at stake and the proportionality calculus set by section 5 of the Bill of Rights before the courts ought to exercise restraint. (As an aside, I think this is where the Attorney-General and CLO misfired on the EFA analysis. Judicial deference was automatically factored into the section 7 analysis, with the advisors noting that, on the policy issues involved, the courts were likely to accord a reasonable margin of appreciation to the judgements made. But I say that was premature. The report ought to have identified the need for Parliament to grapple with the isssues. If grappled with genuinely, then - and only then - would the courts accord deference to the product. An "orange" light. Not a "green" light!) Perfunctory analysis or unduly expedited process are examples of Parliament not taking rights seriously. And this is seemingly becoming more common. My colleague, Claudia Geiringer, has an excellent post on last week's incident - which I thoroughly commend: > 15LQ: "Urgency, Parliament and the Bill of Rights – time for a cup of tea, guys?" I fear that if the present trend continues and Parliament continues to treat rights with summary disdain, institutional comity will come under pressure. The courts will feel obliged to exercise greater vigilance about rights. More aggressive interpretations will be adopted. Less deference will be accorded to the product of the parliamentary process. In short, disparagement of rights and the adoption of a blasé attitude to rights will, I think, come and bite our elected representatives. At the end of the day, though, the destiny of the human rights endeavour in the hands of Parliament...

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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