29 November 2011

Sharples and Turia appointed as Tohunga Kaitohutohu – perhaps?

After Saturday's election, it looks like we're now heading down a well-tread path as we settle our Executive arrangements.

Leaders from support parties – ACT, United, Māori Party – will be awarded ministerial positions outside Cabinet as part of confidence and supply arrangements.  The Greens might also be able to secure some policy initiatives on a case-by-case basis, recorded in some form of memorandum of understanding.

But I wonder whether one particular party needs to think outside the box a little more?

25 November 2011

Governments in transition – some constitutional FAQs

Some FAQs about the process of post-election government transition. If other questions arise, I'll add to the list as far as I can.

Who decides who is appointed Prime Minister?
This tasks falls to the Governor-General. It's one of the so-called "reserve powers", that is, those powers where the Governor-General is required to exercise an independent judgement, rather than merely acting on advice of the incumbent government.

(As an aside, there used to be a view – apparently still held in the UK – that it is the responsibility of the outgoing Prime Minister to advise the Queen of his or her successor. But the view properly taken in New Zealand nowadays is that, following polling day, a caretaker Prime Minister does not have the constitutional mandate, by themselves, to tender advice on who should be appointed.)

18 November 2011

Reading the tea leaves: the declaratory judgment application

The Teapot Tapes camera-man, Bradley Ambrose, has applied to the High Court to seek clarification on the legality or otherwise of his taping of the now famous conversation between John Key and John Banks over a cup of tea in Newmarket:

The legality of its creation affects not only any liability – criminal and civil – he may face, but also further dissemination of the tapes and transcript.  The stakes have been raised by the Police issuing search warrants for four media outlets, after initially issuing a strong warning about illegal publishing of the conversation.

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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