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"

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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