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.

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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