31 December 2010

New Zealand Order of Merit: Te Reo Appellations

You probably know that I previously agitated for the return of titular honours for the NZ Order of Merit. My support for the return of the old titular honours - the Knighthoods and Damehoods - was, however, teamed with the belief that we could also make the titular awards more Kiwi by formally providing for Te Reo translations or equivalent appellations.

Possible appellations could be, "Tā" (Sir) and "Kahurangi" (Dame). However, the development of these appellations probably should involve Māoridom and the Māori Language Commission to ensure they are appropriate and supported. Honorands could choose to adopt the English version or Te Reo.

17 December 2010

Constitutional review: broad cross-party support?

The constitutional review was finally announced last week:

- www.beehive.govt.nz/release/govt-begins-cross-party-constitutional-review

It's a long-term project, so forgive me if I take my time to digest it before posting more.

I shared some of my initial reactions on the Court Report this week:

- tvnz.co.nz/the-court-report/court-report-index-group-3602627

And my law buddy, Andrew Geddis, has some typically wise analysis and a set of predications over at Pundit:

- www.pundit.co.nz/content/what-the-constitutional-review-will-recommend-you-heard-it-here-first

But, one thought to set the rolling maul of constitutional navel-gazing off.

Bill English proclaimed that any significant constitutional changes would require overwhelming support:

"Significant change will not be undertaken lightly and will require either broad cross-party agreement or the majority support of voters at a referendum,"

Good call.

But, based on this principle, does that mean the government won't be amending the jury trial threshold in our Bill of Rights unless they can garner broad cross-party support for the change?


29 November 2010

TID-BIT: Provocative Provocation

I, for one, am pleased we got rid of the partial provocation defence and instead left matters of mitigation for judges in sentencing. The defence was plagued with uncertainty, complication and latent prejudice.

It's interesting therefore to see the Canadian Supreme Court response to some of these problems.  They had to consider whether the allegedly provocative act -- a woman's sexual involvement with another man after the couple had separated -- was sufficient to form a foundation for a provocation defence. It wasn't.


An excerpt:
[18] The common law defence of provocation was adopted and codified in the Canadian Criminal Code from its inception in 1892. The wording of s. 232 remains substantially unaltered. The same cannot be said of the social context in which it is embedded. The continued appropriateness of the defence has been a source of controversy, both in Canada and abroad. Some commentators and reviewing bodies have recommended that the defence be abandoned altogether, leaving provocation, when relevant, as a factor to be considered in sentencing. For a discussion of such reform proposals in Canada and elsewhere, see D. E. Ives, “Provocation, Excessive Force in Self-Defence and Diminished Responsibility”, in Law Commission of Great Britain, Partial Defences to Murder: Overseas Studies, Consultation Paper 173 (App. B) (2003), 73, at pp. 78-81; Australia, Victorian Law Reform Commission, Defences to Homicide: Final Report (2004); New Zealand Law Commission, The Partial Defence of Provocation, Report 98 (2007).

[19] Parliament has not chosen this course and the defence continues to exist in Canada. This does not mean, however, that the defence in its present articulation should not continue to evolve to reflect contemporary social norms, and in particular, Charter values. Just as at common law the notion of an “insult ... sufficient to deprive an ordinary person of the power of self-control”, now codified under s. 232, is not frozen in time. By incorporating this objective element, the defence of provocation is necessarily informed by contemporary social norms and values. These include society’s changed views regarding the nature of marital relationships and the present reality that a high percentage of them end in separation.

26 November 2010

TID-BIT: Privacy and Pike River

An excellent post from my colleague and privacy expert, Dr Nicole Moreham, on the legal implications of the media coverage of Pike River:


15 October 2010

POP QUIZ: Queen and Commonwealth

So, over the last couple of weeks we've been watching 54 Commonwealth nations battle for sporting medals.
But some constitutional questions:
Q1.  How many of the nations are monarchies with Queen Elizabeth II as Sovereign?
Q2.  How many of the nations are republics.
Q3.  How many of the nations are monarchies with a different Sovereign?
Answers in comments. 

12 October 2010

Breaking ties: drawing lots, tossing a coin, hand of poker?

The DomPost is reporting that the Wellington mayoralty might be settled by a coin toss:
Wellington's mayoral race could be decided by a coin toss.
But the pendulum may be swinging back in Kerry Prendergast's favour, with nearly 200 of the special votes that will decide the city's knife-edge election being discounted.
Election officials sorting through hundreds of special votes say that, in the event of a tie, names could be drawn from a hat or a coin could be tossed, under police supervision.
"We'd obviously get legal advice on this, but my understanding is that it would be determined by lot," electoral officer Ross Bly said. ...

A great story, but – in this case – wrong. I hope Bly seeks legal advice on the point.
Bly is partly right though. The usual practice with first-past-the-post local elections is for ties to be resolved by the drawing of lots. Regulation 58(5) of the Local Electoral Regulations 2001 provides:

(5) If, in acting under subclause (3), there is an equality of votes between candidates and the addition of 1 vote would entitle any of those candidates to be declared elected, the electoral officer must determine by lot which candidate is to be declared elected.

There is the live question of what "determine by lot" means in this context. I don't think it includes tossing a coin, although given the randomness of the method, I doubt it would be challenged. Drawing marked pieces of paper or playing cards are common methods I understand.
As an aside, I am told that in Texas the prescribed method is playing a hand of poker! (Bonus points if someone validates this and forwards the legislative provision.)
But, in the case of the Wellington mayoralty, the election is conducted under STV and there is no direct equivalent to regulation 58(5). Instead, I understand, the certified counting programme makes provision for resolution of ties through the generation of a random number. Clause 34 of Schedule 1 to the Local Electoral Regulations 2001 provides:

cl 34 This clause applies if—
(a) a candidate with the lowest number of votes is to be excluded but 2 or more candidates share the lowest number of votes; or
(b) a candidate whose votes equal or exceed the absolute majority of votes is to be elected but 2 candidates' votes equal the absolute majority of votes.
If this clause applies, in the case of (a), exclude the candidate identified by the AAFD method as the candidate to exclude. If the AAFD method does not identify a candidate to exclude, exclude the candidate with the lowest PRN. In case of (b), the candidate who is not excluded is elected.

The regulations define PRN as "the pseudo-random number generated by the PRNG method" – a method which is described in the regulations.
So, yes, a tied vote for the mayoralty might be resolved randomly. But, no, it won't be through the toss of a coin (as exciting as that would be!)

8 October 2010

ACADEMIC IDOL: Yes, thanks, and sorry for all the spam...

I think I had earlier said there would be no more spam.  So forgive this last missive.

Yes, the competition did close at 5pm, yesterday. And, no, we don't know the results yet. I'm told we won't know until the final edition of Salient hits the news stands on Monday morning.

I do want to thank you though for tolerating all the spam, personal haranguing and other nonsense over the last 12 weeks or so.

I know I told some of you at the outset that I only wanted to make sure I wasn't voted off the island in week 1.  I was wrong.  My competitive rugby streak eventually took over – when one plays, one plays to win.  Well, one plays hard, clean and fair – and then hopes that is enough...  I dunno whether it's worked, as it sounds really close! 
And thanks also to the anonymous "campaign" team, known by their nicknames of Will Bailey, Josh Lyman, Sam Seaborn, and Ainsley Hayes, to name a few.

But there's another dimension to the competition that's probably more important.  It's nice to have some interaction and friendly rivalry between the faculties and schools at Vic.   I know the Uni is working on improving the student experience.  However, a conversation this week reminded me how fragmented the collegial experience is at Vic. I know this as an alumnus and now one of the staff. The physical architecture plays against faculty-interaction, with disparate campuses.  I worry about the silo-effect this creates, especially for law students at Old Government Buildings. Pride in the law school is one thing, but a connection to the wider University community is also important.  So these opportunities for real or virtual Faculty-interaction – like Idol, the 3 Minute Thesis Comp, Law vs Geo rugger etc – are really important and I'm pleased have had the chance to support this one.

And, you may not realise this, but the Idol candidates have engaged in a little bit of our own friendly rivalry and banter throughout the competition (and plan to honour the weekly pain of answering silly questions with a few drinks once the damn thing is announced...).  As competitive as it might have been, it's hard to get too wound up when the competitors aren't enemies and are all great folk - witty, cheeky and also passionate about the University/teaching mission.

And, yeah, it was kinda hard to come up with some of those answers and some of mine were a little bit naff.  There's one, though, I was pretty proud of in the end, my acrostic poem:

Daring adventures in the common law
Examining judgments for their every flaw
Abstract, though, the law is not
Ne’er the people should be forgot
King, Queen, and Guv’nor lead our realm
Nay, their ministers at the helm
In our names, they serve and reign
Good governance is our refrain
Hapu, family, plumber, and more
Tis people at the heart of law

7 October 2010


It's the Grand Final this week – in fact the final day of voting today.   I managed to squeak into the Final Two.  Me against a guy from Psych.

If you were going to commit a crime, which one would it be and how would you justify it to the public (if you get caught)?
Bonus question: Capybaras—yay or nay?

"C'mon! You can't ask a legal academic that question. We believe in the Rule of Law! Well, perhaps. Maybe. Or maybe only one or two of the different conceptions of the Rule of Law…
Anyways, the whole point about being a smarty-pants lawyer is we know what's illegal and what's not. And we know how to argue about the grey areas in order to avoid being convicted. No need to justify anything if you don't commit the crime.
- Parking in a loading zone (Land Transport (Road User) Rule 2004, r 6.4)—not a crime after 6pm, unless the sign says "At All Times".
- Urinating in a public place (Summary Offences Act 1981, s 32)—not a crime if you reasonably believe no-one can see you.
- Drinking booze in a liquor ban zone (Local Government Act 2002, s 147)—the Police first have to analyse and prove the liquor is more than 1.15% strong.
- Stealing a baby's identity to get a false passport (Tough on Crime Act 2010, s23)—you're immune if you're a member of the Sensible Sentencing Trust.
- Breaching any law of the land in the name of the earthquake recovery effort (Canterbury Earthquake Response and Recovery Act 2010, s 6)—not if you have a note excusing you written by Lord Gerry VIII…

And Capybaras? Meh. I have no opinion. I have no beef with big rodents that swim in water. But, really, is that the last word from the Island of Academic Idol? Capybaras? Sigh."

So that's it. If you reckon I have done enough to Outwit, Outplay and Outlast (or Outspam?) – or just want to support the law guy – then you can text "Dean" to 027 CUSTARD (+64-27-287-8273) or editor@salient.org.nz; by 5pm Thu (NZT). Apparently you don't need to be at Vic to vote.

4 October 2010

ChchEQ: Vast power - but for whom?

A small point which needs clarifying. 

Much has been made about the power that the Canterbury Earthquake Response and Recovery Act 2010 gives to Gerry Brownlee as Minister for Canterbury Earthquake Recovery to suspend, exempt or extend existing laws under the powerful Henry VIII clause. 

But a careful reading of the Act makes it clear that the power is in fact conferred on "any relevant minister"; that is, "the Minister who is, with the authority of the Prime Minister, for the time being responsible for the administration of the enactment [being amended]" (ss 4 and 6).  This could be any of the present Ministers, not just Gerry Brownlee.

So the Orders presently promulgated must have been recommended by the following Ministers:
  • Chris Finlayson (Canterbury Earthquake (Historic Places Act) Order 2010)
  • Nick Smith (Canterbury Earthquake (Resource Management Act) Order 2010)
  • Stephen Joyce (Canterbury Earthquake (Transport Legislation) Order 2010)
  • Rodney Hide (Canterbury Earthquake (Local Government Act 2002) Order 2010)
  • John Carter (Canterbury Earthquake (Civil Defence Emergency Management Act) Order 2010)
  • Maurice Williamson (Canterbury Earthquake (Building Act) Order 2010)

[And also:

  • Paula Bennett (Canterbury Earthquake (Social Security Act) Order 2010)
  • Rodney Hide (Canterbury Earthquake (Local Government Official Information and Meetings Act) Order 2010).]

Rather confusingly, the Act also refers to 3 responsible Ministers: the Minister for the Environment; the Minister of Finance; and the Minister for Canterbury Earthquake Recovery.  These are the ministers responsible for, amongst other things, the appointments and other administration of the Act.

One point I'm not entirely certain about is the collective process for promulgation of the Orders.  I have heard conflicting explanations of whether or not all the Orders are subject to Cabinet sign-off or not.  The usual process in the Cabinet Manual is that any such orders made in Council are signed off by Cabinet as a whole.  But I recall the Minister originally saying that proposed Orders would circumvent Cabinet itself and only be considered by the special Canterbury Earthquake Cabinet Committee.  I would be grateful if anyone could confirm the present position.

30 September 2010


I've been a touch distracted by academic "hand-wringing" and "sipping lattes", so this week's Idol update is a little late.

Anyways, it's down to the Final 3: me, someone from Psych, some guy with barefeet from CompSci.

This week's question was:
Out of flight, invisibility and telepathy, what super power would you have and what crimes would you solve with it?

My answer:
"Pfft. Such silly super-powers when it comes to solving the real crimes in our world today. Constitutional crimes. Assaults on democracy. Political felonies.
One needs special legal, forensic and constitutional super-powers to solve these crimes—not smarty-pants, cartoon-like powers. The power to sniff out a violation of the Rule of Law at 100 yards. The power to quickly parse a long, multi-judgment decision of the Supreme Court for a breach of the separation of powers. The power to bang one’s fist firmly and loudly, with Sir Geoffrey Palmer-style, hyperbolic constitutional outrage.
Actually, telepathy might be helpful—if not just to work out what “Gerry order” is being dreamt up in the mind of our now omnipotent Earthquake minister!"
Voting closes at 5pm today (Thursday).  I hear that it's me and the guy with the barefeet who are fighting it out for this week's wooden spoon...  so there's a reasonable chance this might be my last update from the Island.
If you want to vote, text"Dean" 027 CUSTARD (+64-27-287-8273) or editor@salient.org.nz.  Apparently you don't need to be at Vic to vote.

28 September 2010

Judicial Misconduct: another round in the saga

A very quick post.

A full bench of the High Court has just released its decision, directing that the Judicial Conduct Commissioner reconsider his decision to recommend a Judicial Conduct Panel be convened to consider the complaints about Justice Wilson's disclosure in the Saxmere litigation:


Let's be clear about what it says and its likely consequences.

First, it's very much a technical decision about how the Commissioner should have framed and referred the complaints for consideration for the Panel.  In a nut-shell, the Commissioner was wrong to refer the whole bundle of complaints.  He should have formed a view on each and every complaint and specified with some particularity which conduct warranted inquiry by the Panel.  As a consequence, some complaints which were trifling were wrongly added into the mix; the main complaint - while sufficient for further investigation - was not framed carefully enough when it was referred; and complaints about the judge's conduct between the two Supreme Court decision were referred without an opinion being specifically reached on whether they justified further investigation for the Panel.

Secondly, on the marquee complaint that the Commissioner relied on to recommend a Panel be convened, the High Court is clear that the Commissioner's vetting process was proper and consistent with the Act.  The Commissioner properly appreciated the standard of conduct that, as a matter of constitutional law, justified removal of a judge from office and justified further investigation. The Commissioner also properly applied this standard when reviewing the factual allegations made. The Court said (at [91]):

"The important point is that the Commissioner considered that deliberate non-disclosure was a sufficiently plausible possibility to warrant further inquiry being made.  We agree with the Commissioner’s conclusion that conduct of that type, if established, might warrant consideration of the removal of the Judge.  We also accept Mr Goddard’s submission that in reaching that view the Commissioner formed the opinion that s 15(1) required of him."

The Court said the Commissioner correctly took the view that evaluation of whether, as a matter of fact, the allegation of deliberate non-disclosure was made out was a matter for the Panel, not the Commissioner. This is important as the allegations remain only that: allegations.  Questions of proof are for the Panel.

The problem was in the way the complaint about the allegation was referred.  The Commissioner needed to "go further and identify the aspects of the Judge's conduct that constituted the matters that were to be the subject of the Panel's inquiry" (at [94]).  A blanket referral of the allegations was not enough; only those parts of the allegations that met the legal and constitutional threshold for further investigation could be referred.

Finally, this decision is undoubtedly not going to halt the process.  The Court has agreed that the marquee complaint justified further investigation by the Panel.  The Commissioner will undoubtedly frame that with the particularity the Court requires.  The trifling or peripheral allegations that do not met the legal and constitutional threshold will fall away.  The only question of substance that remains is whether the marque complaint will be augmented by a further finding and referral of complaints about the judge's conduct between the 2 Supreme Court decisions.  The judge will be called on to respond to very specific allegations about his conduct, rather than a generalised complaint about the entire saga.


24 September 2010

I ♥ Local Government

Okay.  I'm a local government geek.  I used to work in the sector.  Nowadays I teach and research in the area. 

But, more fundamentally, local democracy is important.  In many respects, it's the form of government we are most likely to interact with, more often and more directly than central government. 

In a paper recently, I tried to capture this essential feature of local government ("Local Authority Decision-Making and the Consideration of Community Views: Obligation and Observance", Paper to "We The People(s)" conference):

Local government is, at least in aspiration terms, all about "the peoples". The very raison d'être of local government is the facilitation of citizen participation and local self-government. The famous Widdicombe report – United Kingdom's parliamentary inquiry into the conduct of local authority business – marked out "participation" as one of the three valuable attributes of local government, along with pluralism and responsiveness:

"Local government offers two kinds of participation; participation in the expression of community views and participation in the actual delivery of services. It does so both through the process of electing representatives as councillors and through the opportunity to influence local government more directly through consultation, co-option, and local lobbying."

In a similar vein, an earlier inquiry emphasised the importance of the democratic feature of local government, reminding us that local authorities are a crucial element of "government" and should not be regarded as merely a provider of services:

"The importance of local government lies in the fact that it is the means by which people can provide services for themselves; can take an active and constructive part in the business of government; and can decide for themselves, within the limits of what national policies and local resources allow, what king of services they want and what kind of environment they prefer."

Nowadays the reference to "government" (the formal institutions of the state) has been replaced with the more fashionable term "governance" (the latter to the wider collaborative process of decision-making) in order to reinforce the centrality of the citizenry to the affairs of the local state. Framed in this way, local governance better captures the idea that governance is "the joint work of government and civil society" and governance "cannot be done by government alone".

The democratic essence of local government is sometimes expressed in more colloquial terms: "grassroots" or "flaxroots" decision-making. The neighbourhood is identified as a "site of democracy". Some suggest there is much greater potential for political participation by citizens at a local, rather than central, level.

Recent reforms in New Zealand's local government framework have also placed the notion of citizen participation at its heart, with a new statement of the very purpose of local government. In addition to the substantive goal of promoting community well-being, local government is charged with enabling "democratic local decision-making and action by, and on behalf of, communities". This lodestar is buttressed by a number of more specific principles, and processes which aim to facilitate interaction between the citizen and the local state. Most significantly, the regime imposes a specific obligation on local authorities to take into account community views when making decisions.

Of course, local government doesn't always deliver on this lofty aspiration as much as we would like (that's something I address further in my paper).  However, the "neighbourhood" continues to be a rich place for democracy.

That's why I always get quite excited when I receive my voting pack for the local elections in the mail.  Voting is one of great rights - and privileges - of living in a democracy.  Others are urging folk to make sure you exercise that right.  I echo that too.

But, unlike others, I'm not a disappointed by the usual voter turnout.  It's often used - unfairly, I think - to condemn the legitimacy of local government.  Some context is needed.

In 2007, the average voter turn-out for territorial authority (city and district council) elections was 52% (http://www.localcouncils.govt.nz/).  The highest turnout was 67%; the lowest 34%.  For regional councils, it is slightly lower. 

That compares with around 79% for the recent 2008 national election. But remember, central government takes around 40% of household income, while local government is closer to 4%. 

And, some figures from Local Government New Zealand ("Mythbusters: examining common perceptions about local government in New Zealand") locates our local election turnout in a broader international context:

Jurisdiction Turnout % (post 1995)GDP Share
New Zealand49.7%3.1%
United Kingdom35%13%
Western Australia34%2.9%
British Columbia30.7%7.5%

Of course, the form and functions of local government varies around the world.  So the figures note the contribution of local government to GDP as a crude proxy of its significance in the dynamics of the different countries.

I think viewed in this broader context, our voter turnout isn't that bad.  It's lazy journalism to baldly lament low voter turnout.

We can, of course, do better - but that's up to you folk, making sure you vote!

22 September 2010

Your mission... to rank or not to rank?

A conversation on a (hijacked) Facebook thread has thrown up a conundrum: to rank or not to rank candidates you don't like in STV elections.
There are differing views.I recall a presentation from an electoral officer, demonstrating the iterations of STV computations, that suggested it was better not to rank your enemy, rather than ranking them lowly.  If you rank someone, you risk transferring some of your single vote to them, hence helping them get elected.
Others, including our resident electoral boffin, Graeme Edgeler, think this is daft and disagree.  They've tried to explain in narrative form why I must be wrong.  But I'm not yet convinced.
Your mission, if you choose to accept it, is to demonstrate who is right.  And best that the proof shows some example iterations or other evidence that proves or disproves one of the views.  We're not going to resolve this debate merely through a voice vote!
This message will self-destruct in 5 seconds.  Well, perhaps once we find an answer...

21 September 2010

IDOL UPDATE: Still lurking in the final four...

It seems a fictional character was evicted from the Island of Academic Idol this week, so I'm still alive.

My frustration with the recent threats to our constitutional fabric may have come through in my answer to this week's question.  Sigh.


You have found a magical genie in a bottle. The magical genie can grant you three wishes. What would your three wishes be?

The rules outlined in the Disney animated classic Aladdin apply:
1.You can’t wish for more wishes.
2.You can’t wish to bring someone back from the dead.
3.You can’t make anyone fall in love with you.

How to vote: text 027 CUSTARD or email editor@salient.org.nz by 5pm Thursday.

Dean Knight, Law

"One wish only please.

A wish that we didn’t just wish for things, but we made things happen ourselves.
Not just wishing that the government didn’t pass Muldoon-like powers in the name of the earthquake. People actually speaking out against it.
Not just wishing our local democracy was better. People actually voting to make it better.
Not just wishing MMP wins the upcoming referendum. People educating friends and family about why it’s better than FPP.
Not just wishing the student associations were more representative and robust. People participating to make it so.

I know. An earnest response. No jokes about the Iliad, Marc’s telly show or Pondy’s bare feet. I wish I was more funny… sigh."

15 September 2010

Idol Island and Eating Cockroaches

The constitutional shenanigans at Parliament this week have distracted me from updating folk about my continuing survival on the island of Academic Idol.  Down to the final four.

But it seems this week I am truly going hungry - and I am consigned to eating cockroaches!


Q: The Vice Chancellor, your top student and your favourite movie star are around for dinner. To your HORROR you discover that your lazy chef has only cooked enough food for three. Who do you boot out onto the street hungry? And why?

"Dean Knight, Law

Beware—it’s a trap! Students would rejoice if I showed Uncle Pat the door. The establishment turning on itself. Our VC being forced to eat bread and water, like the impecunious students burdened by his escalating fees and levies. But, no. I’ve engaged in such career-limiting behaviour before. And have learnt my lesson.

Oust my top student(s)? Unfair. And Idol suicide. They deserve praise. And lattes. Not loneliness.

And spurn Colin Farrell? Never…!
Finally, I could never deny my Samoan husband a delicious home-cooked meal. We have a pact. I cook. He plays piano. Perfect harmony.

No. It’s me who must be sacrificed… Hungry, for the greater good!"

To vote:
- Text "Dean Knight" to 027 CUSTARD (+64-27-287-8273) or email editor@salient.org.nz

For updates, there's a facebook page:
- http://www.facebook.com/pages/Dean-Knight-for-Academic-Idol/136733993026908?ref=ts

Naked self-promotion I know, but it's now the business end of the competition...

14 September 2010

Patriating Our Head of State: A Simpler Path?

The archived webcast from the Reconstituting the Constitution conference is now available:


Below is my address in the republican "debate":

Canterbury Earthquake Response and Recovery Bill: The Law Commission's blueprint on emergency powers

In 1991 the Law Commission produced its Final Report on Emergencies (NZLC R22):


It makes for interesting reading and I think demonstrates how this Bill is inconsistent with the basic principles and safeguards relating to emergency powers and legislation.  This includes clear warnings against, amongst other things, broad delegation of power and exclusion of review by the courts.

[Hat-tip Geoff McLay for recalling its existence.]

Canterbury Earthquake Response and Recovery Bill: some examples

Example 1:
The Minister is worried about disaster tourism.  An Order-in-Council is promulgated banning non-residents from entering the affected districts without permission from recovery commission. 

Example 2:
The Minister decides that the upcoming local election is a distraction to the recovery process.  The Local Electoral Act 2001 is suspended in Christchurch and surrounding districts, deferring local elections until June 2011, allowing Bob Parker to remain as Mayor until then.

Example 3:
The Minister decides that the residents of Christchurch deserves a break due to the stress they've been under.  An Order-in-Council is passed exempting them from paying income tax.  The income tax for non-Chch residents is increased in a corresponding fashion to ensure that the govt's books still balance.

Example 4:
The Minister decides more utility vehicles for the recovery process.  An Order-in-Council passed to appropriate any such vehicle in the North Island.  Farmers are outraged because of the effect on their livelihood and because they are sure that the Minister has misstated the need for utility vehicles.  Clause 6(3) prevents any challenge to recommendation to promulgate an Order-in-Council on the basis that the appropriation of such vehicles is not reasonably necessary for the recovery.  Clause 19 means no compensation is payable for the appropriation.  The Regs Review Committee eventually considers the matter, but 3 months after the vehicles are seized and after farmers have suffered significant loss.

Feel free to add other examples.

Canterbury Earthquake Response and Recovery Bill: a democratically consistent alternative

Much has been made in debates about the need to act urgently and the time it would be take to tailor more specific legislative amendments. 

But why? 

If the Bill can be passed in one day, why can't the Parliament adopt a "rolling maul" approach? 

Set up a skeletal structure and process.  Identify the most pressing laws that need to be relaxed (eg RMA and Building Act). Relax them immediately.

Then as and when specific problems are identified, Parliament can add them through the parliamentary process. 

It's not like there is an emergency situation where Parliament cannot meet.  Below is the sitting programme for the rest of the year, that shows plenty of regular meetings of Parliament:

Canterbury Earthquake Response and Recovery Bill: Constitutionally Outrageous

It may not be politic to say this, but the Canterbury Earthquake Response and Recovery Bill is a constitutional outrage. A quick read show that it grants extreme Executive power – unbridled and effectively unchecked – in a way that has the potential to undermine our very democratic foundations.

The Bill contains a massive Henry VIII's clause, allowing the Minister to re-write any legislation that is "reasonably necessary or expedient for the purpose of the Act". The power to direct the Governor-General to issue an Order-in-Council to "grant an exemption from, or modify, or extend any provision of any enactment" (including 22 specifically listed enactments - but thankfully not the Bill of Rights 1688, the Constitution Act 1986, the Electoral Act 1993, the Judicature Amendment Act 1972, or the New Zealand Bill of Rights Act 1990). That's incredible power!

There are no substantive restrictions on the power to grant an Order-in-Council, only the procedural requirement to take in account the Act's purpose and consultation with an appointed recovery commission (cl 6(2)).

And there is a privative clause which prevents the courts from reviewing the legality of any recommendation made to issue an Order-in-Council (cl 6(3)). So even if the Order-in-Council is not done for the purpose of the Act, it can't be challenged in the court. Or the legislation says it can't – I suspect the courts would see it as part of their constitutional job to review the Orders anyway to make sure they are issued for proper purposes. The only "check" is the standard ex-post-facto process set out in the Regulations (Disallowance) Act 1989 (cl 8) – hardly an adequate check on such an extreme power.

Not only can Orders-in-Council re-write legislation, they can also substitute "a discretionary power for the provision" (cl 6(5)(b)(ii)), ie, more ad hoc power for Ministers and officials.

No-one quibbles with the fact that there might be some legislative provisions that need to be relaxed or amended to allow for the speedy and orderly recovery and rebuilding in Canterbury. But this Bill is extreme. It confers powers that are more extreme than found in the Civil Defence legislation applicable to the original emergency itself.

There are other ways for the response to be managed and the rebuilding expedited in a way that is more consistent with basic democratic principles and the Rule of Law.  (As an aside, I expect the NZLS Rule of Law committee to be concerned about this.)

Our experience in the past (with such matters as terrorism response legislation) has demonstrated that we must respect our important constitutional and democratic principles when addressing matters of urgency and emergency. Any government and legislative response must be proportionate to the mischief. This is not.

6 September 2010

Academic Idol - Final Five

In lieu of a serious post (largely due to a flurry of other academic deadlines and addresses), I can report that I am still alive on Academic Idol and have made it to the final 5! 

This is the contest run by Salient, and has a number of lecturers from across the University answering quirky questions, with the lowest polling being evicted each week.  (See earlier post: http://www.laws179.co.nz/2010/08/ode-to-public-law.html)

This week's question is:

Name your favourite book/musician/film/television show and briefly explain why they’re your favourites.

My response:

Favourite book: Uncle’s Story by Witi Ihimaera. In the summer of 2000/01 it had me and all of my friends blubbing. A moving story blending Maoriness, gayness, sign language, masculinity—all told through a search for an uncle’s long-lost, war-time lover. Superb.

Favourite musician: Does Kathryn Ryan count? I confess my radio is usually glued to National Radio… But otherwise, Everything But the Girl. Or, for something upbeat, anything playing on GeorgeFM.

Favourite TV show: No question. West Wing. All 7 series. End of story. [FN: For the long list of favourite quotations and scenes from West Wing, see facebook status thread.]

Favourite film: I know as the law guy I should mention A Few Good Men. A 1992 classic law movie. Stunning cross examination of Jack Nicolson by Tom Cruise:
Col Jessep: You want answers?
Kaffee: I think I’m entitled to them.
Col Jessep: You want answers?
Kaffee: I want the truth!
Col Jessep: You can’t handle the truth!
But, being truthful myself: J’ai tué ma mère / I Killed My Mother from Toronto and New Zealand film fests. Stylish, quirky film about a young gay boy’s love-hate relationship with his mother—written, directed and starred in by a really talented Quebec kid.

And, over the last couple of weeks some strange posters have appeared around law school and online: 

2 September 2010

Patriating Our Head of State: A Simpler Path?

I find myself engaged in a "debate" today with Dr Michael Cullen at the Reconstituting the Constitution conference at Parliament - made somewhat awkward by his apparent concession in the weekend papers.

You can watch from the comfort of you own home, as the conference is being streamed:


Our debate kicks off at 11am today, and I'll post our papers here later today.

- Dean R Knight "Patriating Our Head of State: A Simpler Path?"
- Dr Michael Cullen "A Republic for New Zealand? A Modest Approach"

22 August 2010

Note To Our Australian Friends: Don't Panic Mr Mainwaring!

So, it looks like a hung Parliament.  The first time for a long time for the Australian Federal Parliament.

But a quick note of advice to our Australian brethren.  Don't panic!

It's not actually unchartered territory.  While the constitutional history and context might differ slightly, you might consider glancing over to New Zealand to see the heavily developed and carefully framed constitutional conventions surrounding the appointment of the Prime Minister by the Governor-General in such situations.
One of the best guides is Sir Michael Hardie-Boys' 1997 Harkness Henry Lecture "Continuity and Change":

- http://www.gov-gen.govt.nz/node/471

Actually, there are a range of other speeches which also speak to the conventions surrounding appointment:

- http://www.gov-gen.govt.nz/resources/media/speeches/constitutional

If I can highlight the key passage:

The core principles
Through this public speaking and writing I tried, in essence, to make clear a few simple points:
- The formation of a government is a political decision and must be arrived at by politicians.
- 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.
- 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.
- 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.

And from a later speech (http://www.gov-gen.govt.nz/node/403):
Politicians may assist during a time of political uncertainty by indicating publicly where they stand in terms of their support for the Government. A vote of confidence is nonetheless the more critical indicator.

Good luck!

9 August 2010

An Ode to (Public) Law

For my sins, I am one of a group of lecturers nominated for the Academic Idol competition being run at Vic by the student magazine, Salient.

The competition involves the candidates submitting a short response to a quirky question each week.  Each week, people vote and the lowest polling candidate gets voted off the island.

So far I've survived the first 3 rounds:

This week was a difficult task, but quite fun: "Write an acrostic poem using your name that explains why students should study your subject."

And I was pretty pleased with the result - despite my severe lack of poetry-writing skills.  I thought folk might be interested in reading it:


Daring adventures in the common law
Examining judgments for their every flaw
Abstract, though, the law is not
Ne’er the people should be forgot
King, Queen, and Guv’nor lead our realm
Nay, their ministers at the helm
In our names, they serve and reign
Good governance is our refrain
Hapu, family, plumber, and more
Tis people at the heart of law

[PS: To vote, text the name of your favourite lecturer to 027 CUSTARD (027 287 8273) or email editor@salient.org.nz.  Just saying.]

5 July 2010

Judicial Review: Practical Lessons, Insights and Forecasts

Earlier this year, I presented a paper to a conference of government lawyers.  It is now available as a working paper:

- Dean R Knight "Judicial Review: Practical Lessons, Insights and Forecasts" (Working Paper VUW-NZCPL-002, Wellington, April 2010)
It contains - like, I think, any good sermon - three key points:
1. The discipline of judicial review is confusing and uncertain, particularly in some key areas, such as substantive review, review involving human rights or review in areas where the state has departed from the classic model of undertaking public functions.
2. Recognising that the courts are grappling with competing tensions of vigilance and restraint is a better way of understanding the great morass of judicial review cases.
3. Across all grounds of review, there is a reasonably common set of contextual factors which feed into the balance between vigilance and restraint.
As usual, comments, feedback, or rotten tomatoes welcomed!

1 July 2010

BIG SNAPS: Courts (Remote Participation) Bill

It was pleasing to hear reports of some mature law-making last night.

Labour, Green, and Maori MPs had been arguing against the use of remote video links for substantive criminal trials without the consent of the accused.  Although the government had the numbers to pass the Bill (we assume, although the voting patterns of the ACT party are never predictable), reports are that the Minister, Hon Simon Power, was "persuaded" by the strength of the debate and proposed a handwritten SOP to amend the Bill to address this.

On its face, it looks like mature and responsive law-making, where the merits of the case are at the forefront.  An examplar for our MMP multi-party legislature.  "Big snaps" to all involved.

24 June 2010

Adopting a modern day interpretation

A timely and significant judgment issue today by a full bench of the High Court on the legal question of who can adopt:

Re AMM and KJO

Until now, the term "spouse" in section 3 of the Adoption Act 1955 has been taken to mean only men and women who are married.  This excluded opposite sex civil and de facto couples, as well as gay couples wanting to adopt as couples.  Oddly, though gays (and unmarried straights) could adopt as individuals.

But in an appeal from a decision involving an opposite sex de facto couple in the Family Court, the High Court has ruled that the term "spouse" nowadays must be taken to include "a man and a woman who are unmarried but in a stable and committed relationship".

The result is driven by the anti-discrimination provisions in the Bill of Rights Act. The difficult issue was whether the legislative history demonstrated an inconsistent interpretation that prevented the term spouse being given a rights-consistent meaning.  The two judges together ruled it did not.

The Court was careful to note that its ruling did not deal with the question of whether the term spouse should be taken to include same-sex couples:

What it is not about is whether “spouses” can be interpreted to cover any other type of relationship such as a same sex couple. A favourable decision for these appellants might open the door for people in other forms of relationship to apply. That possible consequence is a factor the Court must take into account. But, in the end, if the decision in this case were to open that door, what the answer will be for those other couples will have to await another day.

It will be no surprise that I think it's manifestly wrong to continue to prevent gay couples from adopting.  Whether or not the courts will be prepared to make this further extension in a case involving same-sex couples, time will tell.

Regardless, the issue needs to be sorted, if not by the courts, then by legislative amendment.  There are numerous reports and calls for it to be sorted.  And it should be expedited too.

PS Congratulations to my colleague Claudia Geiringer, who acted as counsel for the couple.  I have no doubt that the success is in part due to her thorough and compelling Bill of Rights arguments.

23 June 2010

Constables, local councils, and the constitution

It seems like the government is intent on passing the Policing (Involvement in Local Authority Elections) Amendment Bill through all stages under urgency. A shame really, as I was intending to make a submission opposing the Bill. 

The Bill looks like a technical one, removing a prohibition on police officers from standing for local authorities, in order that "all employees of the New Zealand Police are treated in the same way as other State servants". 

But that's the problem, they're not.  Part of their responsibilities, as constables, is to enforce bylaws passed by local authorities.  It's a basic violation of the constitutional principle of the separation of powers to have a person passing laws also enforcing them.

The Policing Act 2008 recognised this problem and included the current prohibition (a prohibition which basically replicates the prohibition at central government).  But now the restriction is being removed at a local level.

The Police's regulatory impact statement acknowledges the potential for some such "conflicts of interest" to arise, but suggests they will be addressed through "internal policies", amongst other things, clarifying that Police officers should not be involved in drafting or approving bylaws". 

That's not good enough, in my view.  This is a serious constitutional matter, with the potential to lead to the abuse of the coercive power of the state.

And it's not good enough that legislation which is constitutionally dubious to be rushed through under urgency, without the opportunity for public submissions and proper scrutiny.

12 May 2010

Government formation UK-style: a constitutional hiccup?

- TheGuardian: "David Cameron is new prime minister"
- BuckinghamPalace: "Appointment of new Prime Minister"

David Cameron is the new PM.

But some questions remain:

1.  Did Gordon Brown potentially embarrass the Queen by resigning as caretaker Prime Minister before a formal deal had been settled between the Tories and the Lib-Dems?
2.  As newly appointed Prime Minister, is David Cameron merely acting in a caretaker capacity - until a formal coalition agreement or arrangement on confidence is settled with the Lib-Dems?

Based on New Zealand's precedents and experience, the resignation and appointment seems somewhat premature.  The Governor-General has made it clear that in order to appoint a new PM and government, "political parties [must] have reached an adequate accommodation, and a government is able to be formed or confirmed".  In New Zealand, it is expected that parties will make that clear "by appropriate public announcements" and to provide the Governor-General with "sufficient information to be able to appoint a new Prime Minister".   By custom, or perhaps even constitutional convention, the public announcement expected from political parties in New Zealand is either a joint statement confirming a coalition or confidence and supply agreement has been settled or public disclosure of those agreements.  It is from these political compacts that the Governor-General is then able to ascertain which political groupings are able to "command the confidence of the House".

But do we have that in the UK now?  No deal appears to have yet been settled, although a general outline of the type of arrangement has been foreshadowed.   Is that enough for the Queen to be ascertain where the support of the House lies, with the requisite certainty?  I'm not so sure.  There's still a chance that negotiations about the form of the arrangement may break down. 

However, Gordon Brown's immediate resignation forces the Queen's hand.  The Monarch cannot be left without government advisors.  A Prime Minister is needed.  Hence the swift moves to appoint David Cameron.  But, if - as I suggest - he has not yet demonstrated with certainty that he commands the confidence of the House, then he must only be (in NZ parlance) a caretaker Prime Minister.  That is, legally installed in office, but subject to the constraints of the constitutional caretaker convention. 

These subtleties make be lost on a UK audience, but I think it's fair to say that the New Zealand experience, customs and conventions would probably avoid such hiccups.  The expectations in terms of signed political compacts, public statements, and public ceremonial appointment of the Prime Minister, along with acceptance of the caretaker convention mean we would be unlikely to get such a premature transfer of power.

3 May 2010

Shadow boxing with brothels

The first punch from Tau Henare:

Henare calls for Prostitution Reform Act amendment
Press Release: New Zealand National Party

Tau Henare
National List MP
30 April 2010

West Auckland National MP Tau Henare is calling for an urgent amendment to the Prostitution Reform Act 2003.

“It is appalling and totally unacceptable that a brothel can go up opposite a school’s gate and nothing can be done to stop it. The Act as it stands allows this to happen. It needs to be amended” said Mr Henare.

“The previous Labour led government legalised prostitution in 2003 to protect sex workers, but clearly not enough consideration was given to protecting children from the unwanted influences of the sex industry outside their schools” says Mr Henare. “We now have a situation where there are very few restrictions on where a brothel can be sited. As long as a small owner operated brothel meets the definition of a “home occupation” as set out in the Resource Management Act a resource consent is not required and there’s nothing a local authority can do to stop it.

“The law urgently requires a commonsense clause that enables local authorities to manage the location of brothels. I will be working with my colleagues in Wellington to bring about this change,” says Mr Henare


The actual legal position at the moment:
Prostitution Reform Act 2003:
s 14 Bylaws regulating location of brothels
Without limiting section 145 of the Local Government Act 2002, a territorial authority may make bylaws for its district under section 146 of that Act for the purpose of regulating the location of brothels.

2 May 2010

Schools, brothels and bylaws

Below are some media comments about the (inaccurate) claims of a loop-hole in the Prostitution Reform Act and the inability to impose proximity controls on brothels in bylaws:

NZ Herald:

Brothel could be removed lawfully - expert
By Michael Dickison 2:26 PM Thursday Apr 29, 2010

A council could regulate the location of brothels as long as it did not take unreasonably aggressive action, a law expert has said. A law expert says Waitakere local politicians are wrong to think they cannot lawfully help a school that wants removed a brothel set up across the street.

Henderson Intermediate School is up in arms after a four-person brothel opened nearby, with its board of trustees chairman urging "leadership" and "common sense" from the Waitakere City Council.

But Deputy Mayor Penny Hulse said yesterday the council could not remove the brothel because she had been advised that such a bylaw would be found unlawful in court and end up costing ratepayers in legal fees.

Victoria University senior law lecturer Dean Knight has written "The (continuing) regulation of prostitution by local authorities" in Taking the crime out of sex work, to be published next month.

Mr Knight told nzherald.co.nz that Ms Hulse's position was not accurate.

There would be no problem preventing brothels from opening near sensitive sites like a school unless the council was being so restrictive as to effectively outlaw prostitution, Mr Knight said.

A council could regulate the location of brothels, even small owner-operated ones, as long as it was "not so aggressive as to be unreasonable", he said. In his book chapter, Mr Knight says that to date there have been three challenges to such bylaws, with two court rulings invalidating restrictions for being "too severe".

The latest court ruling, however, made by the Court of Appeal in 2008, upheld a Hamilton bylaw prohibiting brothels within 100m of a school, church or marae.

The ruling in favour of the restrictions came after a 12-person brothel challenged them.

The legal situation remained "uncertain", even after a review of legislation in 2008, because how restrictive a council could be depended on specific local conditions, Mr Knight said.

The school's board of trustees chairman, Ron Crawford, said yesterday he had been contacted by many people disgusted at the situation and was confused to be told nothing could be done - especially since Rodney District Council has a bylaw preventing a brothel from opening near a school.

Rodney's bylaw prohibits a brothel from operating within 200m of a school, pre-school or church.

It also disallows neon signs and "sexually explicit" or "lewd" imagery outside brothels.

A spokesman for Rodney District Council said the council had amended the bylaw in December last year to comply with legislation and was confident it would stand up in court.

Radio NZ National (Morning Report):

- Legal expert says brothels can be kept away from schools
A legal expert says an Auckland school's anger at a brothel being set up across the road could have been avoided had an appropriate by-law been in place. (duration: 4′55″)

27 April 2010

TID-BIT: Banning Old Boys

Did no-one consider section 19 of the Bill of Rights Act (or Part 1A, ss 21, 42 and 44 of the Human Rights Act)?!?

The Press: "Principals ban some old boys from annual clash"
Recent school-leavers have been banned from the annual rugby showdown between two Christchurch secondary schools.
No-one under the age of 22, except for current pupils, will be admitted to the Christ's College-Christchurch Boys' High School match on June 22, the schools' principals say.
The ban comes after old boys from both schools got into a brawl involving up to 250 people at last year's game. Police drew batons and said many spectators were drunk.
Christ's College headmaster Simon Leese said it was regrettable the schools had to introduce a ban affecting many because of the actions of a few.
"Most of them [old boys] turn up to support the game as we wish and we have absolutely no problem with them. It's a small minority that have caused problems in recent years," he said. "Neither school wants to be associated with the sort of behaviour we've been experiencing. It has absolutely nothing to do with sport."
Boys' High principal Trevor McIntyre said 22 was an appropriate age as it meant the boys had been out of school for at least three years.
The ban had the approval of both schools' old boys' associations, he said.
Former Christ's College pupil Jack Ensor and flatmate Tom Latty, a former Boys' High pupil, said they were unhappy with the ban.
The 19-year-olds said current pupils were the problem because they got "a bit carried away" and incited others as they "didn't know when to stop".
Leese said neither school had difficulties with current pupils.
This year's ban was a trial and would be reviewed after the match, to be played at Christ's College, he said. Security staff would check identification at the gate, Leese said.

25 April 2010

Radio Rants: ECAN and judicial conflicts of interest

In lieu of some text posts, you can hear my views on these issues in podcasts of the legal commentary slot on NineToNoon:

- 7 April 2010: Dean Knight is a senior lecturer at Victoria University's Faculty of Law, and today he discusses issues surrounding the sacking of ECan and appointing commissioners in its place. (duration: 11′05″) [MP3]

- 21 April 2010: Dean Knight discusses the Justice Bill Wilson conflict of interest saga. (duration: 15′42″) [MP3]

Sounds like us!

The context of natural justice

The Supreme Court doesn't get many pure administrative law cases.  So it was a pleasure to read the recent decision in Wyeth (NZ) Limited v Ancare New Zealand Limited and Environmental Risk Management Authority [2010] NZSC 46.

And it was also nice to see a robust attitude taken to the question of the content of natural justice.  Too often, in my view, people try to blindly apply court-based features of natural justice to other administrative situations, without taking into account the nature and context of the different setting. 

But the Supreme Court's decision contains some useful statements to reinforce the contextual nature of the natural justice (the case was about a competitor's request for access to confidential information in a contested approval process under the Hazardous Substances and New Organisms Act 1996):

[40] The argument raises the question of what the Act and common law principles of natural justice together require in relation to the Authority’s hearing and process. Natural justice is a common law principle and what it requires will reflect any relevant statutory provisions. As Cooke J said in Daganayasi v Minister of Immigration, it has become “fairly elementary” that:

"The requirements of natural justice vary with the power which is exercised and the circumstances. In their broadest sense they are not limited to occasions which might be labelled judicial or quasi-judicial. Their applicability and extent depend either on what is to be inferred or presumed in interpreting the particular Act ... or on judicial supplementation of the Act when this is necessary to achieve justice without frustrating the apparent purpose of the legislation ..."

[41] Appropriate and fair proceedings for a statutory tribunal, such as the Authority, will not always equate to those of a court. Such bodies are often established for administrative reasons to provide a less formal decision-making mechanism with an emphasis on greater accessibility, less cost and greater speed in decision-making. Often, as with the Authority, they are structured to include members with expertise in relation to their special area of jurisdiction. Legislation establishing tribunals sometimes also recognises that in reaching administrative decisions they often must take into account conflicting interests in a pragmatic way. Parliament’s purpose in establishing a tribunal is often not necessarily to provide the highest standard of process but a standard that is consistent with efficient administration of matters over which they are given jurisdiction. These features of the statutory process are all relevant to the requirements for participants to enjoy an appropriate and fair hearing.

[42] Also of relevance to the requirements of natural justice under the Act is the nature of the public submitter’s interest in the proceeding before the Authority. Public powers exercised on a large scale must be distinguished from those relating solely to the treatment of an individual. In Public Disclosure Commission v Isaacs, members of the public were entitled to make submissions to the Commission. The Privy Council observed that such persons were not personally affected by the Commission’s decision:

"[T]he complainant is not liable to be subjected to any pains or penalties or exposed to prosecution. He is not seeking to enforce any private right, so there is no question of depriving him of any remedies or redress to which he may be entitled. He is acting as a public spirited citizen in giving information to the commission to assist them in the performance of their public duty. Any personal or political interest he may have in the outcome is irrelevant. He cannot be “told the case made against him and be afforded a fair opportunity of answering it” because no case is made against him; it is he who makes a case against the declarant."

[43] Wyeth was entitled to make a submission on Ancare’s application and to be heard in support of it at a public hearing where it could make representations and call evidence. That did not, of course, mean that the Authority would become concerned with any effect on Wyeth of granting or refusing Ancare’s application. Wyeth was confined in putting its perspective to matters that were relevant to and might assist the Authority in performance of its functions under the Act. That was also a relevant consideration for the Authority in assessing what procedure would ensure Wyeth had an appropriate and fair hearing in the circumstances. This is not to diminish the importance of the right Wyeth had, in common with other members of the public, to make submissions. The statutory scheme recognises that public participation in hearings is an important means by which the Authority becomes informed of relevant matters to the standard required by the Act for its decision-making. It is not, however, the only, nor in any case necessarily the principal, means by which it does so.

[44] The Act expressly contemplates that the Authority will have access to more complete information than the public. The Authority must, where appropriate, engage expert bodies to provide additional information, or to review and verify information or submissions received “so that the Authority may be expertly informed for the purposes of decision-making”. If further information is required, the Authority may notify the applicant that this is required or obtain information itself, including commissioning expert reports and reviewing information from any source. Confidential information that is withheld from the public may be considered by the Authority.

[45] The Act incorporates aspects of the regime under the Official Information Act in relation to confidential information. Under s 9(2)(b) of that Act, there is good reason for withholding official information if making it available would disclose a trade secret or unreasonably prejudice the commercial position of the person (applying to the Authority) or the subject of the information. This is subject to the overriding provision in s 9(1) that good reason for withholding the information will not exist if in the circumstances of the particular case the reasons for withholding are outweighed by other considerations which make it desirable in the public interest to make the information available. The purpose of the Hazardous Substances and New Organisms Act is relevant in determining what that public interest entails.

[46] There is a procedure in the Hazardous Substances and New Organisms Act for dealing with requests for release of information held by the Authority which has been classified as commercially sensitive by the person providing it, or which in the Authority’s opinion is able to be withheld under s 57(2)(b). The person who provided the information is to be given the opportunity to say why it should be withheld. The Authority then has power to release the information in accordance with the Official Information Act’s provisions. As previously indicated, the Authority’s decision is subject to review by the Ombudsman.

[47] There is, of course, a conflict between allowing participants in the Authority’s hearings sufficient information to fairly present their case and respecting the confidentiality of some of the material supplied to the Authority for the purposes of the application. The mechanism in the Act for resolving this conflict when it arises is to require the Authority to weigh the claims for confidentiality against the public interest considerations that make release of information desirable. This, of course, is the test specified in the Official Information Act. It is supplemented in the Hazardous Substances and New Organisms Act with special provisions giving the persons providing the information to the Authority, or who are the subject of it, the right to make submissions on whether the information should be withheld. As well, information held on behalf of an applicant must be returned if it decides not to proceed to make an application. These provisions indicate the significance the Act attaches to due protection of confidential information in achieving its purpose.

[48] It is by this means that the Authority determines what a fair and appropriate hearing that is consistent with natural justice requires in the particular circumstances. Matters weighed will include the relevance and importance of the information that is sought to the fair determination of the issues before the Authority on the one hand and the nature and degree of confidentiality that is involved on the other. Where withholding relevant information may impact on effective participation, the likely degree of intrusion on that right should be assessed by the Authority along with measures it may take to minimise the effects of that intrusion. As already indicated, the nature of the interests of the participants involved will also often be relevant, including whether or not the decision may affect a participant’s own interests.

[49] The Act states that information withheld from a party may be considered by the Authority in reaching a decision on an application. This recognises that the Authority will at times be able to accord participants a fair and appropriate hearing in the circumstances, despite withholding information from them that it takes into account. The Authority is not required to follow any specific procedures just because a court might apply them in litigation. In particular, it was not required in this case to release information on the basis of counsel’s undertakings as to confidentiality being provided to the Authority.

Also, the other pleasing thing about the judgment is that it's broadly consistent with the schematic approach to I've suggested in my teaching. Phew.   

3 March 2010

A pressing question...

Andrew Geddis is trying to provoke a reaction from me about whether some local authority spending might be unlawful:
- Pundit: "Our liberty cannot be guarded but by the freedom of the press"

The background is another scrap in Wanganui.  As I understand it, the Council has proposed to:
1. pull $100,000 of its advertising from the Wanganui Chronicle;
2. transfer it's advertising to the rival River City Press; and
3. subsidise the operations of the Press, in order that it can increase its circulation, thereby ensuring greater currency of the Council's adverts throughout the district (particularly rural areas).

Apparently the Chronicle has a legal opinion which suggests this might be unlawful:
- WanganuiChronicle: "Council may face legal challenge over plan"

Geddis (understandably) dodges this question.  Or rather, despatches a hospital pass!
"(As an aside, I just haven’t had the time to look into the legal niceties around this particular issue. Graeme Edgler/Dean Knight/anyone else out there got any thoughts on this? That’s what the comments box is for!)"

So, unlawful?  I doubt it.  Unwise? Well, something for the voters, not the courts.

The decision-making framework for local authorities is complex, so there are potentially many legal quibbles folks might have with the proposal.  See my analysis of the decision-making framework at a recent conference:
- Knight "Local Authority Decision-making and the Consideration of Community View: Content and Compliance"

But I'll give it a quick go (without having seen the legal opinion):

1. The starting point is that local authorities have what's called a "power of general competence". Basically it means they can do whatever a natural person can do, except where something is otherwise prohibited.  This broad empowering provision is found in section 12 of the Local Government Act 2002:

"12 Status and powers...
(2) For the purposes of performing its role, a local authority has—
(a) full capacity to carry on or undertake any activity or business, do any act, or enter into any transaction; and
(b) for the purposes of paragraph (a), full rights, powers, and privileges."

No problems there - unlike the old days, particularly in the UK, where local authorities couldn't do things such as building a town clock, unless legislation explicitly empowered them to do so.

2.  The reference to "its role" in section 12 links back to sections 10 and 11 of the LG Act 2002.  Essentially, local authorities overarching mandate (or their jurisdiction to do things) is two-fold:
- to "enable democratic local decision-making and action by, and on behalf of, communities" and
- to "promote the social, economic, environmental, and cultural well-being of communities, in the present and for the future" within their districts.
Again, no problem here.  This is a broad statement of the role of a local authority.

3.  Local authorities must also act in accordance with a number of high-level principles set out in section 14 of the LG Act 2002.  Now, thede include things like democratic decision-making, taking account of community views, and – relevantly here – making "efficient use of resources" and "the efficient and effective use of its resources in the interests of its district or region".  Some arguments here.  But, importantly, I don't think any purported non-compliance with these high-level principles would result in findings of illegality by a court.  In other words, there principles are "non-justiciable".  Elsewhere our courts have held that they not going to entertain arguments about illegality based on such high-level principles, except in the case of bad faith, corruption and fraud (Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385).  Also, section 14(2) specifically directs that any conflicts about the high-level principles or aspects of the well-beings should be resolved in accordance with principle that local authorities must conduct their business in "an open, transparent, and democratically accountable manner". Again, indications that the courts should steer clear.  Any arguments are to be ventilated through the democratic processes.  And  ultimately accountability for judgements about the principles lies with the ballot box.  

4.  There might be a question about whether, as a matter of process, any decision was made in accordance with the individual decision-making principles in Part 6 of the LG Act 2002 or the other strategic planning processes.  But the devil's in the detail on this, and I don't have the information or the time to express a view on this.  But I think it's probably hard to be tripped up on this (see my conference paper above).

In short, I'm sceptical about any arguments that suggest the proposal might be unlawful.  But people closer to the dispute may help pinpoint the arguments that are being deployed.

2 February 2010

Supreme Court - physical and virtual settings

For what it's worth, can I go on record saying I quite like the new Supreme Court building.  And as one of the few that regularly attended the basement sitting in the High Court, it will be quite nice to hang out in slighly more functional and grand environs.

But a post on the new Supreme Court blog reminded me that the success of a final appellate court is much more than its physical setting - virtual interaction with the community is also important.

In the blog post reproduced below, the editors of a UK blog on their new Supreme Court focus on provision of information from the Court.  A wish list for virtual access to justice.

Generally our Court does okay - we have access to some of the information. But it would be nice to see some of the other information provided as well.

UKSCblog: "Supreme Court - information wish list"
As the Supreme Court opens its doors for business for the first time, we put forward our "wish list" of information that we would like to see from the Court.   We don't expect everything to be available all at once but everything on our list is already available from one or more Supreme Courts round the world.  If it was all available it would greatly increase transparency and public understanding of the cases being argued in the Court.   It appears that some of this information will be available once the Court starts sitting.   In her recent speech - discussed on this blog - Chief Executive Jenny Rowe mentioned that when everything is working fully key information from the case management system will be publicly available via the website.  We will keep our readers up to date with what comes out.

The "wishlist" is as follows:First, a "Judicial Sittings" list which includes full information about the appeal - the unique cite of the decision appealed against, a brief description of the subject matter of the appeal, the identity of the solicitors acting for the parties.  The Canadian Supreme Court has a list of all cases ready for hearing with their "docket" number.  A search against this number gives all the information about the case including the information mentioned in our next point.


Available online (http://www.courtsofnz.govt.nz/about/supreme/case-summaries/supreme-court-case-summaries/case-summaries-2009). Basic information only.  But not easily searchable. And no longer are embedded links provided to the judgment under appeal.

Second, the statements of facts and issues and the parties written cases.  For example, the Canadian Supreme Court provides, as part of the case information for each case, the written cases ("the factums") filed by each party, see for example, those in the pending case of Queen v Cunningham.  Similarly, the US Supreme Court directs users of its site to publicly available "merits briefs".  These can also be found on the wonderful ScotUSblog.  "Heads of Argument" are available for pending cases in the South African Constitutional Court (by clicking on "forthcoming hearings" on the home page and following the links, see for example, heads of argument in Poverty Alleviation v President of the Republic)


We're still reliant on the grace of counsel - or a formal application to the registry to inspect the files - to obtain submissions and the like.

Third, listing of applications for leave, interim orders and all the other activity of the Court.  Such a list could be found (with difficulty) for the House of Lords (in the "House of Lords business" section of their website).  The High Court of Australia, for example, publishes "Business Lists" dealing with all leave applications and other matters being dealt with by the Court.


Some information in the case summaries (http://www.courtsofnz.govt.nz/about/supreme/case-summaries) and daily lists (http://www.courtsofnz.govt.nz/business/calendar/daily-lists) but otherwise hard to locate.

Fourth, a transcript of the hearings.  If the High Court of Australia can do it, so can we.  See, for example. the transcript of the hearing on 27 and 28 August 2009 in the case of Arnold v Minister Administering the Water Management Act 2006.


The real gem of the Court's online repository (http://www.courtsofnz.govt.nz/from/transcripts//from/transcripts/supreme-court-transcripts-2010).  These have proved incredibly valuable.  But there is a long lag in their production.  Presently, only up-to-date up to the middle of October 2009 meaning, for example, the fascinating oral argument in Saxmere (No 2) is still not yet available.

Fifth, a webcast of the hearing.  The Canadian Supreme Court does it (see, here) and so does the Court of Human Rights, see, for example, the webcast of the recent hearing in Carson v United Kingdom


This tops my wish list.  There must be the capacity to provide this.  Those folk who have attended the Court in the basement will be aware that the hearing is piped through via video into large screens in the foyer.  Separate cameras are locked on the full bench, each individual judge, and counsel.  A number of times I've sat in the foyer with work or marking while watching a hearing unfold.  But this really should be an option for those outside Wellington.  Please!

Sixth, as much notice as possible of the handing down of judgments.  The House of Lords used to give 6 days notice.  In contrast, the Supreme Court of Canada gives 2 to 3 weeks.


Daily lists only (http://www.courtsofnz.govt.nz/business/calendar/daily-lists), available only from 5pm the day prior, with no formal advance notice.  And the Decisions page (http://www.courtsofnz.govt.nz/from/decisions/judgments) is often slow to update.

Seventh, a "media summary" of the Judgment when it comes out - shortly stating the issues and the decision.  This is common practice in Courts such as the High Court of Australia, the South African Constitutional Court (see the Recent Judgments list on their website).   These have been promised by the Supreme Court.


Routinely available on the Decisions page (http://www.courtsofnz.govt.nz/from/decisions/judgments).

Eighth, regular "Court Bulletins", telling us what the Court has done and will be doing, including lists of all the pending cases.  This is done in many countries such as  Canada  (weekly) and Australia (monthly)



Something to watch.  Hopefully our Court can build on these basic building blocks to ensure its virtual environment is as grand and transparent as its physical one.

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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