30 April 2011

A kiwi republican stranded behind enemy lines

Through accident, not design, I found myself in London at the time of the Royal wedding.  As you might expect, torture for a card-carrying republican.  Wall-to-wall coverage. The dissection of every minutiae of Will and Kate’s big day.  Royalistic wallowing at every turn.

But it’s a big civic and tourist occasion , so I had to go and have a look.  The lack of a personal connection or animosity towards the institution was no excuse – after, all I’ve followed other big international civic events like such as Obama’s inauguration and the papal conclave.

27 April 2011

Privately Public

I presented a paper at the Legal Research Foundation's recent conference "Judicial Review in the Commercial Context: The Ongoing Struggle for Simplicity".

The paper examines the amenability of private incorporated bodies to judicial review, focussing particularly on the impact of the Judicature Amendment Act 1972:

19 April 2011

Constitutional change, the Crown, and the voices of citizens?

John Key has said that New Zealand will support moves to change the line of succession for the monarchy, removing the present discrimination against women and Catholics:
http://www.youtube.com/watch?v=QnOCwdpM5pw

Of course, I think the old rules are daft and should be changed (but I think the whole idea of hereditary succession based on a family in a foreign land is stupid anyways).

What's most striking, though, is John Key's unilateral commitment of New Zealand to such constitutional change without any involvement of the public.  But this government has been all over the place on the question of whether New Zealanders should have a say on who our Head of State should be.

On the one hand, the government has said, in the context of the constitutional review, there needs to be widespread public endorsement of any constitutional changes.  Bill English said specifically:
 “Of course, we will keep in mind that enduring constitutional changes generally require a broad base of 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."
On the other hand, the government shuts the people out of discussions about the Head of State.  First, government MPs blocked Keith Locke's Member's Bill on the Head of State at its first reading – preventing the public from having their say on whether or not they wanted to retain or ditch the monarchy. Secondly, the government failed to expressly include the republic issue in the terms of reference for the constitutional review, even though they noted there was some support for this.  It seems they didn't want "popular" changes overshadowing their – arguably, less popular – other ideas for constitutional reform.  And now, this week, John Key unilaterally announces New Zealand's support for changes to the line of succession – changes that are being negotiated behind closed doors amongst the British Monarchy's various realms.

This is all disappointing – and inconsistent.

Appointees and local democracy

Brian Rudman again rails against the automatic appointment of members of the Maori Statutory Board onto Auckland Council committees:
"At the time I tried to think of any model of democracy that involved members of a committee of government appointees, not elected by the people they purport to represent, sharing voting rights on a city council with elected councillors. This system of Maori representation doesn't fit the ideal of any form of democracy that I know of this side of the old communist world."
Hmmm.  Rudman appears to have overlooked that local government legislation in New Zealand has for a long-time provided for exactly that.

14 April 2011

CERA Mark II: Purposes - a starter for 10?

One of the most egregious features of the new CERA legislation is the wildly expansive purpose clause and the pretense - perpetuated by many - that the requirement to act consistently with the legislative purpose operates as a constraint or check-and-balance on executive action.  It does not - it constrains executive action as much as a sieve holds water.

13 April 2011

CERA Mark II: Henry VIII clauses

The new CERA rolls over, with minimal changes, the Order-in-Council regime which allows ministers to amend or suspend existing laws by executive decree:

http://www.legislation.govt.nz/bill/government/2011/0286/latest/DLM3653522.html

My previous objections – objections shared by many of my colleagues, the Law Society and other folk – to the Henry VIII regime are well-known.  I had hoped that the government had more time to reflect on the democratic and constitutional issues and to develop a more robust and legitimate regime.  Unfortunately, they have not.

There is some improvement with provision for some independent review (but there remains problems with that).  But the regime is now worse because: (a) the pressing need for such executive law-changes has diminished; (b) the horizon for Orders has been extended for up to 5 years; and (c) the purpose for which they may be issued has been enlarged.

It is a shame that the government has seen fit to unnecessarily roll-over these excessive and largely unconstrained executive powers, especially when there are more democratic and more legitimate processes available.

12 April 2011

CERA Mark II: My Submission

The new Canterbury Earthquake Recovery Bill passed its first reading late this afternoon and has been referred to the Select Committee for less than 48 hours for consideration:


I understand key stakeholders have been invited to address the Committee: tonight in Wellington and Christchurch tomorrow.  As one of the scholars who actively expressed concerns about CERRA Mark I and  one who has already publicly commented on the proposals for CERA Mark II, I have been dutifully awaiting an invitation to address the Committee - I fear I have not yet received one.  However, below is the submission I would have made to the Committee.

[UPDATE 13/4/2011: Unbeknown to me, I understand a helpful member of the public printed my blog post/submission below and at the conclusion of hearings late last night presented it to the Committee, who received it.  I have been advised, though, that the Committee is not generally accepting other unsolicited submissions on the Bill.]

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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