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.

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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