tag:blogger.com,1999:blog-113408012024-03-19T17:49:17.047+13:00"Elephants and the Law" by Dean KnightDean Knighthttp://www.blogger.com/profile/03069298298745322597noreply@blogger.comBlogger319125tag:blogger.com,1999:blog-11340801.post-81449638175027637712017-09-04T10:17:00.003+12:002017-09-04T10:19:51.456+12:00Bennett, "Some have fewer human rights..."Yesterday Paula Bennett, Police Minister and Deputy PM, said the following when announcing new measures to combat gangs, including some warrantless searches:<br />
<blockquote class="tr_bq">We just feel that there are some gang members that are creating more harm and continuing to.<br />
Some have fewer human rights than others when they are creating a string of victims behind them ... there is a different standard.</blockquote>(<a href="http://www.radionz.co.nz/news/election-2017/338588/serious-criminals-have-fewer-human-rights-national">www.radionz.co.nz/news/election-2017/338588/serious-criminals-have-fewer-human-rights-national</a>)<br />
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Bill English, Prime Minister, also said:<br />
<blockquote class="tr_bq">...it's good that we don't have a written constitution it's enabled the country to deal with all sorts of issues in a practical effective way.</blockquote>(<a href="https://www.stuff.co.nz/national/politics/96442150/national-party-announces-82-million-crackdown-on-methamphetamine-use-supply">www.stuff.co.nz/national/politics/96442150/national-party-announces-82-million-crackdown-on-methamphetamine-use-supply</a>)<br />
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Below are some of my thoughts on this, reposted from a twitter thread from yesterday.<br />
<blockquote class="twitter-tweet" data-lang="en"><div dir="ltr" lang="en">I'm no absolutist or idealist when it comes to human rights, but saying some have fewer rights is unbecoming of government. /1</div>— Dean Knight (@drdeanknight) <a href="https://twitter.com/drdeanknight/status/904209735724834816">September 3, 2017</a></blockquote><blockquote class="twitter-tweet" data-conversation="none" data-lang="en"><div dir="ltr" lang="en">Our hum rtgs instrument is founded on an idea of universal rights. But rights that may be subject to demonstrable limits. /2</div>— Dean Knight (@drdeanknight) <a href="https://twitter.com/drdeanknight/status/904210268502204418">September 3, 2017</a></blockquote><blockquote class="twitter-tweet" data-conversation="none" data-lang="en"><div dir="ltr" lang="en">Thus, govt measures might limit rights such that some people don't receive their full benefit. /3</div>— Dean Knight (@drdeanknight) <a href="https://twitter.com/drdeanknight/status/904211202124816384">September 3, 2017</a></blockquote><blockquote class="twitter-tweet" data-conversation="none" data-lang="en"><div dir="ltr" lang="en">But the key lies in the govt obligation to express and justify a demonstrable reason for so limiting rights... /4</div>— Dean Knight (@drdeanknight) <a href="https://twitter.com/drdeanknight/status/904211625107898369">September 3, 2017</a></blockquote><blockquote class="twitter-tweet" data-conversation="none" data-lang="en"><div dir="ltr" lang="en">... such limit being one consistent with a free and democratic society. /5</div>— Dean Knight (@drdeanknight) <a href="https://twitter.com/drdeanknight/status/904211917996154886">September 3, 2017</a></blockquote><blockquote class="twitter-tweet" data-conversation="none" data-lang="en"><div dir="ltr" lang="en">The assertion that some have fewer rights or they should be summarily denied them repudiates that process of justification and reason. /6</div>— Dean Knight (@drdeanknight) <a href="https://twitter.com/drdeanknight/status/904212377524101120">September 3, 2017</a></blockquote><blockquote class="twitter-tweet" data-conversation="none" data-lang="en"><div dir="ltr" lang="en">What's annoying is that govt could, in principle, develop and justify measures in this field - within the field and ethos of rights. /7</div>— Dean Knight (@drdeanknight) <a href="https://twitter.com/drdeanknight/status/904213104388489216">September 3, 2017</a></blockquote><blockquote class="twitter-tweet" data-conversation="none" data-lang="en"><div dir="ltr" lang="en">* within the frame</div>— Dean Knight (@drdeanknight) <a href="https://twitter.com/drdeanknight/status/904263263302459394">September 3, 2017</a></blockquote><blockquote class="twitter-tweet" data-conversation="none" data-lang="en"><div dir="ltr" lang="en">Instead we have anti-rights rhetoric, which erroneously frames rights as an inconvenience and the enemy of society. /8</div>— Dean Knight (@drdeanknight) <a href="https://twitter.com/drdeanknight/status/904213632195616768">September 3, 2017</a></blockquote><blockquote class="twitter-tweet" data-conversation="none" data-lang="en"><div dir="ltr" lang="en">In other words, lazy governance. /9</div>— Dean Knight (@drdeanknight) <a href="https://twitter.com/drdeanknight/status/904214100175077376">September 3, 2017</a></blockquote><blockquote class="twitter-tweet" data-conversation="none" data-lang="en"><div dir="ltr" lang="en">The right to exercise the power of the state, I think, comes with a duty to grapple in good faith with the rights-pub interest calculus. /10</div>— Dean Knight (@drdeanknight) <a href="https://twitter.com/drdeanknight/status/904214725411655680">September 3, 2017</a></blockquote><script async="" charset="utf-8" src="//platform.twitter.com/widgets.js"></script><br />
Today the Prime Minister has sought to walk the comments back: see <a href="http://www.radionz.co.nz/news/political/338621/fewer-human-rights-comment-a-mistake-english">www.radionz.co.nz/news/political/338621/fewer-human-rights-comment-a-mistake-english</a>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-11340801.post-25452692067463741312017-08-02T16:41:00.000+12:002017-08-02T16:41:46.842+12:00[REPOST] Why democracy doesn’t work on its own<div style="-webkit-text-stroke-width: 0px; color: black; font-family: "Times New Roman"; font-size: medium; font-style: normal; font-variant-caps: normal; font-variant-ligatures: normal; font-weight: normal; letter-spacing: normal; margin: 0px; orphans: 2; text-indent: 0px; text-transform: none; white-space: normal; widows: 2; word-spacing: 0px;">
As New Zealanders, we regularly celebrate our commitment to democracy. It has rightly been described as the underlying principle of our system of government. We’re pretty proud of our democratic history and some of the civic innovations we’ve brought to our small democracy in the South Pacific.</div>
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And, in less than eight weeks, New Zealanders will engage in the most symbolic democratic act. Casting a vote in our general election is a profound ritual that reminds us, as citizens, of our place and influence in the affairs of the state.</div>
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Yet democracy as a civic phenomenon can’t operate by itself. The business of governance is vast, complex and never static. The operation of the state needs to be carefully supported by structures to ensure it remains faithful to its democratic pedigree.</div>
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And that’s where our constitution comes in.</div>
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Yes, contrary to some myths, we have one. And a pretty good one too.</div>
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True, unlike in most countries, our constitution is<span class="Apple-converted-space"> </span><i>unwritten</i>, in the sense that we do not have one single, sacred constitutional instrument and the courts actively policing it by striking down legislation. But that is not to say we don’t have a rich set of constitutional rules and norms that do the essential work of a constitution: empowering and constraining government.</div>
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There’s the Constitution Act 1986, which provides a basic—but incomplete—sketch of the system. Other important pieces of legislation fill many of those gaps. An instrument like the New Zealand Bill of Rights Act 1990 would elsewhere probably be found in a nation’s constitutional document. So too would key parts of the Electoral Act, State Sector Act, Public Finance Act and other legislation regulating our branches of government. In a few instances, we have to look back to our British heritage for some statutes regulating institutions we have borrowed from abroad.</div>
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And, beyond formal rules, there’s also an understanding on the part of the governors that they should do the right thing — some sort of sense of civic virtue or collective conscience.</div>
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But, like in any home or habitation, we must be vigilant about making sure it’s still fit for purpose.</div>
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Formal government-led reviews of our constitutional arrangements have sadly tended to fall flat after long-running processes. Thankfully, Sir Geoffrey Palmer and Dr Andrew Butler’s recent initiative advocating a codified, supreme written constitution has injected something fresh into the mix. And Matike Mai Aotearoa, the Independent Iwi Working Group on Constitutional Transformation, has consulted widely with iwi and hapū to generate alternative models of constitutional governance. These are important proposals that deserve our attention, engagement and response.</div>
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But it may also pay to pause and reflect before we embark on any constitutional renovation. Are we asking the right questions? Constitutions necessarily reflect the style of democratic society we want and how we think it’s best to keep our governors honest — things on which there are legitimate different viewpoints.</div>
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Do we want a lawyer’s constitution, with judges as active guardians of rightness? Or do we have more faith in the dynamics of the political—and ultimately electoral—process to ensure our governors stay on the right track? Do we want a constitution that seeks to bring substantive solutions to the problems of the day? Or do we prefer a framework that promotes dialogue, collaboration and inventiveness? Where should the locus of power be situated within our system of government — what’s the best balance between Parliament, the executive and the courts? What role for people in their communities — in neighbourhoods, on marae, in social networks?</div>
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Do we want an expressive constitution that seeks to manifest a certain set of values? Or are we content with our current understated and patchwork style of civic identity? And who is the audience(s) for our constitution and who should it speak to? Is a detailed, entrenched constitution the solution to civic literacy and public participation in society? Or is it more important that the constitutional players themselves know the rules of the game? How else might we cultivate community-mindedness?</div>
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All important questions. And questions that deserve ongoing discussion, not just among the legal and political elite. If we care about democracy, we also need to care about the structures that curate it — those structures frame how our society confronts the problems of today and tomorrow. Ongoing conservation, and sometimes renovation, is essential.</div>
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This opinion piece was first posted on Newsroom:</div>
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<a href="https://www.newsroom.co.nz/@democracy-week-victoria-university/2017/07/31/40658/why-democracy-doesnt-work-on-its-own">https://www.newsroom.co.nz/@democracy-week-victoria-university/2017/07/31/40658/why-democracy-doesnt-work-on-its-own</a> </div>
Dean Knighthttp://www.blogger.com/profile/03069298298745322597noreply@blogger.com1tag:blogger.com,1999:blog-11340801.post-29389607694854424742015-03-11T15:04:00.002+13:002015-03-11T15:09:41.119+13:00Red light - Remuneration Authority Amendment BillParliament is expected to pass the Remuneration Authority Amendment Bill under urgency today or this week.<br />
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Hmmm.<br />
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Red lights.<br />
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We should be alarmed about some of its content and effect. In particular, its retrospective effect.<br />
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This feature is helpfully foreshadowed in the <a href="http://disclosure.legislation.govt.nz/bill/government/2015/9/" target="_blank">Bill's disclosure statement</a>:<br />
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Retrospective laws are generally objectionable and should be avoided. Writing on the rule of law, for example, Lon Fuller described a retrospective law as a "monstrosity" (Fuller, <i>The Morality of Law</i>, p 53) – objectionable in terms of both morality and efficacy. This is echoed in the presumptions against retrospective laws recognised throughout our legal system (see for example s 7 of the Interpretation Act, s 10A of the Crimes Act 1961 and s 26(1) of the New Zealand Bill of Rights). And its reflected in the <a href="http://www.lac.org.nz/assets/documents/LAC-Guidelines-2014.pdf" target="_blank">Legislation Advisory Committee guidelines</a> (§ 11 and 11.1):<br />
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<blockquote class="tr_bq">
Legislation should have prospective, not retrospective effect. ...</blockquote>
<blockquote class="tr_bq">
The starting point is that legislation should not have retrospective effect. It should not
interfere with accrued rights and duties. </blockquote>
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However, there are some situations where retrospective legislation is relatively benign. Whether the retrospectivity is one of the rare cases where it is unobjectionable requires a degree of nuance in assessment, informed by the conceptual underpinnings of the virtue of prospectivity in law-making. </div>
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The LAC set out some rule-of-thumb guidance about when retrospective legislation might be unobjectionable (§ 11 and 11.1):<br />
<blockquote class="tr_bq">
Retrospective legislation might however be appropriate where it is intended to:<br />
- be entirely to the benefit of those affected;<br />
- validate matters that were generally understood and intended to be lawful, but
were in fact unlawful as a result of a technical error;<br />
- decriminalise conduct (for example, s 7 of the Homosexual Law Reform Act 198687);<br />
- address a matter that is essential to public safety;<br />
- provide certainty as a result of litigation...<br />
- (in limited circumstances) make changes to tax law or other budgetary legislation.</blockquote>
None of those circumstances apply here.<br />
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The LAC go on to focus on the need for justification (§ 11.1):<br />
<blockquote class="tr_bq">
Where direct retrospective effect is intended, this must be clearly stated in the legislation
and must be capable of justification.</blockquote>
The problem with the above Bill is that the justification for retrospectivity here is weak. It's simply about nullifying a particular decision -- an increase in remuneration for MPs) -- which has been viewed as being politically unpalatable. There's little recognition of concern that backdating the new regime interferes with accrued rights of MPs to that salary. Greater justification is expected.<br />
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Of course, the original pay increase was itself backdated, which has retrospective effect. However, that's justifiable because it's for the benefit of MPs (as per one of the exceptions above) and, arguably, due to the administrative process that requires it.<br />
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Since the announcement of the release of the Remuneration Authority's determination on 26 February 2015, that pay increase is effectively an accrued right and MPs can rightly expect that it would be paid. That might have only been a couple of weeks, but we can expect that MPs may have relied on the that increase in the meantime.<br />
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I am unsure exactly when the increase first gets paid out, but I understand it's this week. Hence the rush, I guess, to nullify the increase without having to claw back money from MPs.<br />
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The upshot is, though, this Bill is inconsistent with an important constitutional principle and rule of law virtue. In the absence of good reason (and none has been advanced, in my view), laws should not be retrospective and take away accrued rights. It would be preferable for the changes to MPs remuneration to only apply as from the date on which the new law is based.<br />
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And, finally, does it make any difference that we're talking about the retrospective effect disadvantaging MPs?<br />
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No.<br />
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They are still entitled to the protection of rule of law. Indeed, the most famous version of the rule of law specifically argues that the "governors" should be subject to the same laws as the "governed". It follows that the virtue of prospectivity in law is equally applicable to MPs and their remuneration.<br />
<br />
PS Passing this law under urgency amplifies the rule of law concerns because it means the retrospective effect and justification are not able to be subjected to the degree of scrutiny they deserve.<br />
<br />
<br />
<br />
<br />
<br />
<br />
<br />
<br />
<blockquote class="tr_bq">
</blockquote>
<blockquote class="tr_bq">
</blockquote>
</div>
</div>
</div>
Dean Knighthttp://www.blogger.com/profile/03069298298745322597noreply@blogger.com0tag:blogger.com,1999:blog-11340801.post-39853146674960304812015-03-02T09:11:00.000+13:002015-03-02T09:11:07.257+13:00Vigilance and Restraint in the Common Law of Judicial Review: Scope, Grounds, Intensity, ContextI haven't been blogging much recently - it's been rather quiet on here for a few years, sorry.<br />
<br />
But I think I have a pretty good excuse...<br />
<br />
I'm been working on my PhD at the London School of Economics and Political Science and submitted it for examination just before Xmas. The title is "Vigilance and Restraint in the Common Law of Judicial Review: Scope, Grounds, Intensity, Context". Here's the abstract:<br />
<blockquote class="tr_bq">
The mediation of the balance between vigilance and restraint is a fundamental feature of judicial review of administrative action in the Anglo-Commonwealth. This balance is realised through the modulation of the depth of scrutiny when reviewing the decisions of ministers, public bodies and officials. While variability is ubiquitous, it takes different shapes and forms. In this thesis I identify the main approaches employed in judicial review in England, Canada, Australia and New Zealand over the last 50 years or so:<br />(a) <i>scope of review,</i> based on an array of formalistic categories which determine whether judicial intervention is permissible;<br /> (b) <i>grounds of review,</i> based on a simplified and generalised set of grounds of intervention;<br /> (c) <i>intensity of review</i>, based on explicit calibration of the depth of scrutiny taking into account a series of constitutional, institutional and functional factors; and<br />(d) <i>contextual review</i>, based on an unstructured (and sometimes instinctive) overall judgement about whether to intervene according to the circumstances of the case.</blockquote>
<blockquote class="tr_bq">
This thesis has three dimensions. In the <i>doctrinal </i>dimension, I isolate the four schemata from the case law throughout the Anglo-Commonwealth. Professor Stanley de Smith’s acclaimed judicial review textbook – particularly its changing language and format – is used to provide structure for the study. In the <i>conceptual </i>dimension, I identify the conceptual foundations of the schemata, exposing their commonality and differences. I use the scholarly debate about the constitutional underpinnings of judicial review to provide insight into the justifications advanced for the different approaches. In the <i>normative </i>dimension, I evaluate the virtues of the different schemata. The qualities of the different approaches are drawn out, using Fuller’s rule-of-law-based criteria to guide the assessment of efficacy. Overall, the grounds and intensity of review schemata generally display the most virtue when measured against these criteria.</blockquote>
Today, is my first day of teaching at Vic this academic year, so it marks a return of sorts (I continued to teach during my PhD, commuting back and forth in one perpetual winter!). I still have to go back to the UK in May for my viva (oral defence) and whatever happens thereafter...<br />
<br />
But I'm looking forward to having some more time to devote to things like this blog and the current events in NZ civics and law.Dean Knighthttp://www.blogger.com/profile/03069298298745322597noreply@blogger.com2tag:blogger.com,1999:blog-11340801.post-80705111178486153942013-10-15T09:46:00.001+13:002013-10-15T09:48:45.713+13:00Local elections: Trifecta STV and modifying DHB representationA couple of quick thoughts on how we might improve the voting experience for local government:<br />
<br />
1. Mandate <b>Trifecta STV</b> as the universal form of voting. That is, STV/PV applies - except instruct voters to only record, and only count, their top 3 preferences: 1, 2 and 3. This Trifecta STV system would retain much of the benefits of STV/PV tabulation but be much less intimidating for voters (even though, strictly speaking, voters currently do not need to rank the entire list).<br />
<br />
2. <b>Abolish elections for DHB positions</b> and move the representation/community voice functions to local authorities. Sadly, the elected representation on DHBs is Clayton's representation, with government appointees and control of finance making it pretty ineffective. And the DHB candidates are unknown to the community. In order to retain a local community voice in DHB governance and priorities, why not instead mandate it through local authorities? A public health committee of the local authority could provide the interface with the local community and local views could be channeled through that into DHB decision-making. In addition, it would strengthen the environmental health-public health nexus - and perhaps may also open the door to different types of folk wishing to be involved in local government.<br />
<br />
Just some raw thoughts. None of the voting mode suggestions floating around are going to be a panacea to voting turnout. But we can still try and make sure the system is fit-for-purpose.Dean Knighthttp://www.blogger.com/profile/03069298298745322597noreply@blogger.com5tag:blogger.com,1999:blog-11340801.post-29499064008379936202013-06-27T01:02:00.000+12:002013-06-27T01:02:30.337+12:00Gillard, Rudd, and mid-term transitionsFor the record (if the Rudd coup d'état happened in NZ):<br />
<br />1. The change of leadership triggers a change of PM without a change of government. As incumbent PM but ousted leader, Gillard is obliged to advise the GG of her resignation and the identity of her successor (as reached in accordance with the internal political processes of the Labor party) (cl 6.51).<br /><a name='more'></a><br />2. The GG is obliged to accept the advice, as the government continues to have the confidence of the House. The government continues to command confidence unless and until there is a lost vote of confidence (or some other similar public, clear and incontrovertible evidence). It's not the job of the GG to dip into the political morass to query the various speculative statements about support for Rudd etc. It's the obligation of the political parties to clearly manifest the position - publicly and unequivocally. (cl 2.2 and ch 6.36-6.40)<br /><br />3. If Rudd subsequently loses the vote of confidence, he becomes a caretaker PM. As a consequence, he loses his mandate to request the dissolution of Parliament for an "early" election. Any decision about the dissolution of Parliament for an early election, including effectively the date of such an election, must be made in accordance with the caretaker convention. As a significant decision, the GG is only entitled and obliged to act on a request if it is made with the support of a majority within Parliament (cl 6.20 and 6.58). The reference to early election means dissolution of Parliament before the constitutionally mandated date - the GG would, of course, be obliged to dissolve Parliament for elections if that date was reached.<br /><br />4. If Rudd survives the vote of confidence, he is entitled, as usual, to request a dissolution for an election as and when he wishes (cl 6.56).<br /><ul>
</ul>
PS I'm not representing these thoughts as necessarily the operative rules in Australia - I don't know the detail of their conventions and rules (which may have some odd differences). However, our Cabinet Manual is well-founded in the constitutional first principles and is often a good guide.<br />
<ul></ul>
Dean Knighthttp://www.blogger.com/profile/03069298298745322597noreply@blogger.com0tag:blogger.com,1999:blog-11340801.post-28483343450096052302013-04-18T05:27:00.000+12:002013-04-18T05:33:17.040+12:00#MarriageEquality, Quilter and all thatToday was filled with joy, emotion and pride. But also reflection, reflection on the role of law and social reform. Marriage equality has been a long battle.<br />
<br />
<a name='more'></a>I sat in the public gallery of the Court of Appeal during argument in <i>Quilter v Attorney-General</i> in September 1997 and was puzzled and disappointed by the slam-dunk decision. A common law definition discriminated against gays and lesbians? Of course the courts must, in accordance the interpretative direction in the NZ Bill of Rights Act, rule in favour of a rights-consistent meaning? Surely? Sadly, no, the judges took a different view (including, embarrassingly nowadays, the preliminary point about whether opposite sex married discriminated against gays and lesbians).<br />
<br />
Fast forward to today. A little older and wiser, perhaps. I can't help but think that today's victory on the floor of Parliament is so much sweeter than any quick-fire result in a courtroom could have been. Not only has the law been changed, but it has been changed with resounding parliamentary and public support.<br />
<br />
Sure, that's been a struggle and has taken time and effort. The Civil Union campaign in 2004/2005 was hugely significant. As a model, civil unions were the right thing to pursue - and, for many, they continue to be the preferred model for recognising relationships. And the Relationships Bill sorted out almost all the legal benefits, protections and responsibilities for married, civil union, and de facto couples - allowing the focus to turn to ceremonies and societal recognition. As important, though, was the public debate, even with its then fire and brimstone. The discussion and deliberation about the legal recognition of all loving relationships chipped away the opposition. <br />
<br />
Less than a decade later, with the sky not having fallen, #MarriageEquality was an entirely different proposition. The reform was able to cruise on the wave of public support. Especially heartening were the vox pop; views sought from everyday folk on gay marriage only for them to reply, "Didn't we sort this out ages ago?", expressing indignation that the law still discriminated against gays and lesbians.<br />
<br />
In the end, 77 votes to 44. And the refrain of Pōkarekare Ana being sung on both sides of the House and galleries above. For me, that symbolised law and law-making at its best. Principled, passionate, cross-party, and - perhaps most importantly - enduring. The reform now has legitimacy and support which means it is most improbable it will ever be unwound.<br />
<br />
There is, no doubt, much more to reflect on in terms of this study of social law reform. Perhaps even a scholarly note or two on the these different campaigns, their different themes, their interrelationships, and their incrementalism.<br />
<br />
But, for now, it is sufficient to say the tears of joys when the Marriage Amendment (Definition of Marriage) Bill was read a third time make up for, many times over, the sense of disappointment when the original battle in <i>Quilter v Attorney-General</i> was lost.Dean Knighthttp://www.blogger.com/profile/03069298298745322597noreply@blogger.com0tag:blogger.com,1999:blog-11340801.post-57180385644282325482012-04-19T07:29:00.001+12:002012-04-19T07:29:16.459+12:00Roy Morgan poll – some odd narrative<br />
A couple of weeks ago, Roy Morgan came out with an interesting poll:<br />
<br />
<a href="http://www.roymorgan.com/news/polls/2012/4761/">http://www.roymorgan.com/news/polls/2012/4761/</a> <br />
<br />
The Nats were down (to 44%) and the Greens were up to a record level (17%) – and the centre left block of Labour-Green-NZF stood at 52.5%. <br />
<br />
But Gary Morgan’s attached narrative concluded this:<br />
<br />
<blockquote class="tr_bq">
“If a National Election were held today the National Party would likely be returned to Government, however a Labour/ Greens alliance could form Government.”</blockquote>
<br />
This puzzled me and some others. So I queried this with Roy Morgan. And the response surprised!<br />
<br />
<br />
<a name='more'></a><br />
Let’s go back a step to the poll results first.<br />
<br />
They were:<br />
<br />
- National: 44%<br />
- Labour: 30.5%<br />
- Green: 17%<br />
- NZF: 5%<br />
- Maori: 1.5%<br />
- Mana: 0.5%<br />
- ACT: 0.5%<br />
- United 0.5%<br />
<br />
Now, based on these results and assuming that ACT, Maori, Mana, and United all retain their current electorate seats, that translates to the following seats in the House:<br />
<br />
- National: 53<br />
- Labour: 36<br />
- Green: 20<br />
- ACT: 1<br />
- Maori: 3<br />
- United: 1<br />
- Mana: 1<br />
- NZF: 6<br />
- Total 121<br />
<br />
Wait. Hang on.<br />
<br />
How then did Gary Morgan conclude that “If a National Election were held today the National Party would likely be returned to Government”? (Interestingly, <a href="http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10797014" target="_blank">reported with any caveat in the NZHerald</a>.)<br />
<br />
How exactly is a National-led government able to garner the necessary 61 votes on matters of confidence and supply? The present coalition (Nat-ACT- Maori-United) only has 58 votes? <br />
<br />
Sure, technically, NZF could join the coalition. But Key has ruled out working with Winston. <br />
<br />
And, perhaps the Greens? Again, a remote prospect.<br />
<br />
Put bluntly, based on these numbers, I think there is no realistic prospect of the National government being returned to power. Instead, a Labour-Green-NZF coalition would be most realistic to report.<br />
<br />
Gary Morgan’s narrative didn’t look right. <br />
<br />
But there might be some explanation. Perhaps the 5% attributed to NZF was rounded up. If so, they failed to make the threshold and the numbers switch back to a National-led government. <br />
<br />
Or different assumptions were made about the retention of electorate seats. <br />
<br />
Or…?<br />
<br />
So, I queried Roy Morgan about the poll. <br />
<br />
Well, no. I was assured that the 5% figure accorded to NZF was sound and accurate to 1 decimal point (ie, the poll had NZF somewhere between 4.95-5.04%). Pretty much bang on 5% then.<br />
<br />
Roy Morgan’s poll manager, Julian McCrann, explained the narrative as follows:<br />
<br />
<blockquote class="tr_bq">
“If one assumes that NZ First fail to gain the threshold (which they failed to do when polling 4.5% pre the 2008 NZ Election). It is most likely with that sort of breakdown that National would again form Government with the support of the Maori Party, ACT NZ and United Future.<br />…<br />If NZ First did gain the threshold convincingly (as they did in 2011 when our final pre-election poll showed NZ First on 6.5%), they would likely be a part of a possible left-leaning alliance Government.<br />The simple fact is that results like these would create a close election, although at 44% we believe the National vote is high enough for it to be returned to Government. As the party with clearly the highest primary vote it would have first call on trying to form Government under convention.”</blockquote>
<br />
Hang on again. This seems even more confusing:<br />
<br />
First, the narrative is apparently not based on the translation of the poll results into seats in the House. It’s based on the possibility of different results being achieved. Sure, polls always have a margin of error (here, for example, Julian indicated the margin of error for NZF support was around 1.4%). <br />
<br />
However, I thought it was pretty standard for polls to be interpreted, in the first instance, based on the snap-shot of support at the time. <br />
<br />
Of course, that might not translate into outcomes at an actual election. But we appreciate that.<br />
<br />
Secondly, the reference to some convention that “the party with clearly the highest primary vote it would have first call on trying to form Government” is just plain wrong. The highest polling party does not have any suggest right or first call.<br />
<br />
The point has been clarified a number of times in the MMP era, even though to-date the highest polling party has so far been in a position to garner majority support for a governing coalition. <br />
<br />
For example, the Governor-General Sir Michael Hardie-Boys said in 1997:<br />
<br />
<blockquote class="tr_bq">
"In a parliamentary democracy, the exercise of my powers must always be governed by the question of where the support of the House lies. It is this simple principle which provides the answer to those who sometimes suggest that in situations like that encountered by New Zealand after the last election, the head of state should simply call on the leader of the largest party to form a government. Size alone provides no reason to prefer a party if its leader does not appear to have the support of a majority of the House. It is better to wait for negotiation among the parties to produce a majority." </blockquote>
<blockquote class="tr_bq">
(Harkness Henry address; <a href="http://gg.govt.nz/node/471">http://gg.govt.nz/node/471</a>)</blockquote>
So, in my view, the narrative just doesn’t stack up.<br />
<br />
<br />
<br />
<br />Dean Knighthttp://www.blogger.com/profile/03069298298745322597noreply@blogger.com1tag:blogger.com,1999:blog-11340801.post-4265754846684020282012-02-09T11:12:00.002+13:002012-02-09T11:12:59.020+13:00Tid-bits from New Zealand: an election, a referendum, and a multi-party government policy programme<br />
<div class="MsoNormal">
<i>[This post first appeared on the <a href="http://ukconstitutionallaw.org/2012/02/08/dean-knight-tid-bits-from-new-zealand-an-election-a-referendum-and-a-multi-party-government-policy-programme/" target="_blank">UK Constitutional Law Group's Blog</a>]</i></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span lang="EN-GB">The new parliamentary year kicked off in New Zealand
this week, following an election held late last year in the shadow of the Rugby
World Cup. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span lang="EN-GB">A National-led, multi-party government was returned to
power, with John Key continuing as Prime Minister. The National party won a record
share of the party vote (47.3%, which translates into 59 MPs of the 121 MPs in
Parliament). However, the coalition government’s overall majority in Parliament
fell slightly as support for the minor parties in the coalition dropped (64
government MPs vs 57 opposition MPs, down from 69 vs 53 MPs following the last election).<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span lang="EN-GB">After the election and the formation of government,
there was little time for parliamentary business before the summer holiday. MPs
return to serious business this week, under </span><a href="http://www.parliament.nz/en-NZ/Features/d/d/6/47NZPHomeNews201112081-2011-Standing-Orders-available.htm"><span lang="EN-GB">slightly revised Standing Orders</span></a><span lang="EN-GB"> (most
notably, with new provisions regulating urgency and extended sitting hours,
following growing concerns about the increasing amount of law-making being
fast-tracked; see </span><a href="http://www.victoria.ac.nz/vup/2011titleinformation/hurry.aspx"><span lang="EN-GB">Geiringer et al, <i>What's the Hurry?</i>
(2011)</span></a><span lang="EN-GB">).<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span lang="EN-GB">Three matters from the election and new term of
government are of some constitutional interest:<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span lang="EN-GB">- the voting system referendum and subsequent review;<o:p></o:p></span></div>
<div class="MsoNormal">
<span lang="EN-GB">- the multi-party coalition/governance arrangements
and collective responsibility;<o:p></o:p></span></div>
<div class="MsoNormal">
<span lang="EN-GB">- particular policy commitments (constitutional
review, regulatory standards, part-privatisation of State-Owned Enterprises).<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span lang="EN-GB">Each of these matters has an on-going constitutional
dimension, which will be played out in this 50th term of New Zealand’s
Parliament. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<b><span lang="EN-GB">Voting
System Referendum and Review<o:p></o:p></span></b></div>
<div class="MsoNormal">
As well as choosing their government, voters were also given
the opportunity on election day to express their views on the current voting
system. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The referendum process was a mirror image of the original
referendum process adopted in 1992-1993 when New Zealand changed from the First
Past the Post system (FPP) to the Mixed Member Proportional system (MMP). <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Voters were presented with two questions:<o:p></o:p></div>
<div class="MsoNormal" style="margin-left: 36.0pt; text-indent: -36.0pt;">
A: Should New Zealand keep the Mixed Member
Proportional (MMP) voting system?<br />
Yes / No<o:p></o:p></div>
<div class="MsoNormal" style="margin-left: 36.0pt; text-indent: -36.0pt;">
B: If New Zealand were to change to another
voting system, which voting system would you choose? <br />
First Past the Post (FPP) / Preferential Voting (PV) / Single Transferable Vote
(STV) / Supplementary Member (SM)<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Like the original referendum, if there was a mood for change
in the first part of the referendum, then the status quo would be run-off
against the most popular alternative system in a subsequent binding referendum.
<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
On election day, voters overwhelmingly endorsed MMP in first
part of the referendum, securing 57.8% of valid votes -- up from 53.9% in the 1993
referendum which originally saw MMP adopted. A significant endorsement for
proportional representation. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In the second part, the old FPP voting system was the most
supported alternative (46.7% of valid
votes), with nearly double the support of the SM system endorsed by the
Prime Minister and the main lobby group promoting change (24.1%). But, still,
more people spoilt their vote in the second part of the referendum than
supported FPP. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
MMP’s victory in the first part of the referendum obviates
the need for a subsequent binding referendum. However, the victory
automatically triggered a review of aspects of the MMP voting system. A public
consultative review must now be undertaken by the Electoral Commission, with a
report due in October 2012 (see <a href="http://www.elections.org.nz/elections/2011-general-election-and-referendum/mmp-review.html">Electoral
Commission review process</a>). <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The terms of reference include:<br />
- the thresholds for a proportionate share of the party votes (presently 5% of
the party vote or one electorate seat),<br />
- the ratio of electorate seats to list seats,<br />
- dual candidacy in an electorate and on a party list, and <br />
- the ranking of party lists. <o:p></o:p></div>
<div class="MsoNormal">
The number of MPs in Parliament and seats reserved for Māori
are specifically excluded from review. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The Electoral Commission is set to release its discussion
paper this month, with a couple of issues expected to be at the forefront. The
thresholds for entitlement to party list seats (particularly the one electorate
seat rule which sees an MP bring in other list MPs on their coat-tails even
though their party fails to meet the otherwise applicable 5% threshold) have
been subject to a lot of criticism from both the public and experts. There is
also significant public disquiet about so-called “zombie” MPs – those MPs
rejected in electorate seats but who return to Parliament via the party list. This
will provide some impetus to change the rules presently allowing dual
candidacy, although the views of experts on such a change are more equivocal.
(For some literature assessing the operation of MMP and multi-party government
in New Zealand, see <a href="http://www.victoria.ac.nz/nzcpl/NZJPIL/7-1/index.aspx">(2009) 7(1) NZJPIL
(Special Issue: MMP and the Constitution)</a> and <a href="http://pnz.sagepub.com/content/63/1.toc">(2011) 63(1) Political Science
(Special Issue: Coalitions).)</a><o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The Electoral Referendum Act 2010 does not address any
change process following the report of the Electoral Commission, with any
decision about what to do with the recommendations being left for Parliament.
The recommendations and process which follows will be watched with great
interest, particularly whether any changes to MMP will be taken back to the
people for endorsement. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<b>Governance
Arrangements and Collective Responsibility<o:p></o:p></b></div>
<div class="MsoNormal">
As mentioned, a National-led government was formed soon
after the election, with support from the single MP United Future and ACT
parties, along with the three-member Maori party. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The coalition – or, rather, “confidence and supply” – arrangements
took the same form as those adopted by recent administrations. In return for a
commitment to support the government on confidence and supply, support parties
negotiated ministerial positions (outside Cabinet) and a number of policy
concessions (see the separate but largely similar agreements agreed with <a href="http://www.parliament.nz/NR/rdonlyres/5E74E888-B2FF-4663-906D-C551BE4E252D/207945/United_Future_Confidence_and_Supply_Agreement05122.pdf">United
Future</a>, <a href="http://www.parliament.nz/NR/rdonlyres/5634F13B-7744-4D03-A9F9-EBB0E4F83621/207925/NationalACT_Confidence_and_Supply_Agreement0512201.pdf">ACT</a>
and <a href="http://www.parliament.nz/NR/rdonlyres/22CACF7A-2530-45E6-9569-518E53CF0056/207937/RelationshipAccordandConfidenceandSupplyAgreementw.pdf">Maori</a>
parties). Otherwise, the principal focus of the agreements is operational and
relationship arrangements.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
From a constitutional perspective, the most notable aspect
of the governance arrangements is the approach to the tricky “unity-distinctiveness”
conundrum that underlies coalition politics (see Boston and Bullock, “Experiments
in Executive Government under MMP in New Zealand” (2009) 7 NZJPIL 1). In
particular, collective Cabinet responsibility has been deliberately eroded
under MMP to allow greater ability for support parties to express disagreement
with governmental policies and decisions. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Loose – and progressively looser – solidarity rules have
been adopted in governance arrangements to ensure support parties can distance
themselves from some decisions of government so that they can maintain their distinctiveness
(see <a href="http://www.laws179.co.nz/2011/02/revolution-of-collective-responsibility.html">LAWS179:
“The (r)evolution of collective responsibility”</a>). <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The first departure saw the inclusion of “agree to disagree”
provisions, where a support party could seek permission not to support a particular
governmental policy. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Subsequently, a form of “selective collective
responsibility” has been adopted, where collective responsibility only applies
to ministers from support parties in relation to matters <i>within their ministerial portfolios</i>. Outside their portfolio
responsibilities, they are entitled to wear their party – rather than
ministerial – hat and may refuse to support decisions made by Cabinet (except,
of course, on matters of confidence and supply, which they must still support
in parliamentary votes). This circumscribed form of collective responsibility –
for ministers from support parties, restricted to portfolio responsibilities – is
now seen as routine and is recorded in confidence and supply agreements, along
with the Cabinet Manual (see <a href="http://www.cabinetmanual.cabinetoffice.govt.nz/node/64#5.22">Cabinet
Manual, cls 5.22-5.28</a>).<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
But the practice appears to be still evolving further. There
have been <a href="http://www.parliament.nz/en-NZ/PB/Debates/Debates/1/5/c/49HansD_20110216_00000062-Questions-for-Oral-Answer-Questions-to-Ministers.htm">some
instances in the last term of government</a> where ministers from support
parties expressed disagreement in relation to decisions made <i>within</i> their portfolio responsibilities
– with such dissent being condoned by the Prime Minister. This hints at further
loosening of cabinet collective responsibility. However, any evolution has not
yet been reflected in the Cabinet Manual (which lags behind practice, like a
dictionary: see <a href="http://www.dpmc.govt.nz/sites/all/files/reports/the-cabinet-manual-evolution-with-time.pdf">Kitteridge,
“The Cabinet Manual : Evolution with Time”)</a> or the newly agreed confidence
and supply agreements, which merely restate the principle of selective
collective responsibility within portfolio responsibilities. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Prime Minister John Key generally adopts a relaxed attitude
to dissent within his government, no doubt reflective of the fact that his
coalition brings together minor parties with very different ideological
leanings. It will be interesting to see whether this further modified approach
is fortified under the present government’s tenure. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
(As an aside, the loosening of the demands of collective
responsibility has led some to again question whether collective Cabinet
responsibility continues to have any constitutional character: see Joseph, <i>Constitutional and Administrative Law in New
Zealand </i>(2007), p 750 (“it is a rule of pragmatic politics, not a
constitutional convention”) and <a href="http://pundit.co.nz/content/decisions-dissent-and-the-myths-of-collective-cabinet-responsibility">Geddis,
“Decisions, dissent and the myths of collective cabinet responsibility”</a>.) <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<b>Particular Policy
Commitments (Constitutional Review, Regulatory Reform and Part-Privatisation of
SOEs)<o:p></o:p></b></div>
<div class="MsoNormal">
Three particular policy commitments within the confidence
and supply agreements have some constitutional interest.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
First, the commitment to a wide-ranging review of
Constitutional Arrangements has been renewed in the confidence and supply
agreement with the Maori Party. Originally included in last term’s agreement, a
review was belatedly instigated last year under the co-chairship of Emeritus
Professor John Burrows QC and Sir Tipene O’Regan (see <a href="http://www.justice.govt.nz/policy/constitutional-law-and-human-rights/consideration-of-constitutional-issues-1/consideration-of-constitutional-issues">Department
of Justice, “Consideration of Constitutional Issues”).</a> While little
progress was made before the election, the Review’s mandate is confirmed and a
reporting date of September 2013 has now been set.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The Review’s terms of reference are wide. Various electoral
and parliamentary matters are slated for review (size of Parliament,
parliamentary term - including the possibility of fixed terms, number and size
electorates, and party-switching consequences for MPs). A number of contentious
issues relating to the Crown-Māori relationship are included (such as Māori
representation in Parliament and local government, and the place of the Treaty
of Waitangi in New Zealand’s constitutional arrangements). These agenda items reflect
key policy differences between the governing National party and supporting
Maori party and the genesis of the review process – depending on one’s
perspective, either to genuinely explore some compromise or to remove these
issues from the political crucible. The Bill of Rights is also targeted for appraisal
(particular entrenchment and the possibility of including property rights), as
is the perennial question of a written constitution.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Rather oddly, the terms of reference avoid issues relating
to the Head of State and republicanism (especially as <a href="http://www.telegraph.co.uk/news/uknews/theroyalfamily/8961368/Hark-what-discord-follows-when-you-meddle-with-the-monarchy.html">officials
in New Zealand’s Cabinet Office</a> are coordinating the multi-realm efforts to
<a href="http://www.chogm2011.org/Resources/Latest_News/agreement-principle-among-realms">amend
the line of succession</a>). This apparently stems from a governmental concern
that republican issues might distract people from more important constitutional
issues. However, the government has
acknowledged the republican question might still find its way into the Review,
if there is a public appetite for discussion.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Earlier <a href="http://www.parliament.nz/en-NZ/PB/SC/Documents/Reports/e/9/b/e9b156d30c1840eb8ffa20c6b28277de.htm">grand
attempts to review constitutional arrangements</a> petered out, partly due to a
lack of cross-party support. Again it will be interesting to see if this review
gathers greater momentum. <b><o:p></o:p></b></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Secondly, the confidence and supply agreement with the ACT
party breathes life into the <a href="http://www.legislation.govt.nz/bill/government/2011/0277/latest/DLM3601205.html">Regulatory
Standards Bill</a>, albeit in a much diluted form. Earlier efforts by the ACT
party in the last two terms of Parliament to advance a Bill insisting that new
laws conform to “principles of responsible regulation” were widely condemned –
including by Treasury, as the department responsible for such reform – and ultimately
stalled (see <a href="http://ukconstitutionallaw.org/2011/05/24/richard-ekins-regulatory-responsibility-in-new-zealand/">Ekins,
“Regulatory responsibility in New Zealand”</a>.) <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The ACT and National parties have agreed, however, to revise
the Bill for enactment within the next 12 months. This Mark III version is to
be based on the <a href="http://www.treasury.govt.nz/publications/informationreleases/ris/pdfs/ris-tsy-rbr-mar11.pdf">Treasury’s
preferred alternative for regulatory reform (Option 5)</a>: strengthening
Parliament’s own legislative quality and impact assessment processes. This
shift in focus is welcomed, especially because the original Bill would have
fundamentally reconfigured key constitutional relationships and placed the
courts in an awkward position of adjudicating on the quality or merits of
legislation. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
But much work is still to be done to settle the suite of
principles against which legislative quality is to be assessed (for example, the
present suite is labelled by Ekins as “heterodox”). It seems strange to attempt
to reinvent the wheel by generating controversial and loaded principles of
regulation, when New Zealand has for many years had an excellent – more
detailed, nuanced and respected – bible on legislative quality in the <a href="http://www2.justice.govt.nz/lac/index.html">Legislative Advisory
Committee’s Guidelines on the Process and Content of Legislation</a>.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Thirdly, one of the central planks of the National party’s
electoral platform was the part-privatisation of some State-Owned Enterprises.
The National party negotiated on-going support from the ACT and United Future
parties (but not the Maori party, which recorded its specific opposition) for
the extension of a mixed-ownership model to three state utility companies and
the government-owned coal mining company; that is, sale of 49% of the shares in
these companies to the public, with retention of a 51% majority shareholding by
the government.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Those plans took an interesting turn last week when it was
revealed that the government was considering not carrying over the present
Treaty of Waitangi clause into the new legal regime governing mixed-ownership. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The existing clause in the State-Owned Enterprises Act
prevents the Crown from acting inconsistently with its obligations to Maori under
the Treaty of Waitangi (and is supported by other provisions ensuring SOE land
is preserved for return as part of the settlement of Treaty grievances). The incorporation
of this Treaty obligation was a catalyst for the development of much of New
Zealand’s modern Treaty jurisprudence and the rise in the Treaty’s
constitutional gravitas (see <a href="http://www.waikato.ac.nz/law/research/waikato_law_review/volume_2_1994/2">Cooke,
“The Challenge of Treaty of Waitangi Jurisprudence”</a>, <a href="http://www.google.co.uk/url?sa=t&rct=j&q=baragwanath%20in%20good%20faith&source=web&cd=6&ved=0CEYQFjAF&url=http%3A%2F%2Fwww.otago.ac.nz%2Flaw%2Ftreatysymposium07%2FBaragwanath.doc&ei=YV4yT61o09fxA8LzyeQG&usg=AFQjCNFYN4SuIi1cYxZOWW8bK2w1ApJz8Q"> Baragwanath, “<i>NZMC v AG”</i></a>, and <a href="http://www.otago.ac.nz/law/treatysymposium07/index.html">Ruru (ed), <i>In Good Faith</i></a>). The Treaty clause therefore
has great legal and symbolic significance, especially for Maori.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Unsurprisingly, <a href="http://www.treasury.govt.nz/publications/reviews-consultation/mixed-ownership/mom-cons-maori-v2.pdf">the
government’s proposal not to roll over the Treaty clause</a> (or to otherwise
tinker with it) has sparked outrage amongst many Maori and others. Protests
took place at the Waitangi Day celebrations over the weekend. Claim were
quickly lodged with the Waitangi Tribunal, alleging the proposed
part-privatisation breached the Treaty.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
While the government has the parliamentary numbers to
proceed with part-privatisation, the question of how it navigates through the
Treaty implications and tensions with its Maori party coalition partner will be
interesting. It is early days at this point. But the issue will no doubt occupy
the political and legal domains in New Zealand for much of the year. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<i>Dean Knight is a
Senior Lecturer at Victoria University of Wellington’s Faculty of Law, an
Associate of the New Zealand Centre for Public Law, and a PhD candidate at LSE. <o:p></o:p></i></div>Dean Knighthttp://www.blogger.com/profile/03069298298745322597noreply@blogger.com0tag:blogger.com,1999:blog-11340801.post-59804261239547242252012-01-03T01:49:00.000+13:002012-01-03T01:49:08.171+13:00Seasonal Messages: Compare and ContrastTake 1:<br />
<iframe allowfullscreen="" frameborder="0" height="315" src="http://www.youtube.com/embed/olEp_3Spc1g" width="560"></iframe>
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Take 2:<br />
<iframe allowfullscreen="" frameborder="0" height="315" src="http://www.youtube.com/embed/uiZJ9wbPh-4" width="560"></iframe><br />
<br />
Enough said.Dean Knighthttp://www.blogger.com/profile/03069298298745322597noreply@blogger.com2tag:blogger.com,1999:blog-11340801.post-3119206138737061102011-12-06T10:22:00.000+13:002012-02-06T23:55:04.958+13:00TID-BIT: Cabinet Collective Responsibility and Ministers Outside Cabinet<br />
So, the Dominion Post reports (<a href="http://www.stuff.co.nz/national/politics/6088040/Dunne-strikes-a-deal-with-National">"Banks, Dunne strike a deal with National"</a>):<br />
<br />
<blockquote class="tr_bq">
"Dunne - a strong 1080 opponent - will also keep his Associate Minister of Health post. He will be a minister outside cabinet, which means he is not bound by collective responsibility."</blockquote>
<br />
No. Not quite.<br />
<br />
The position on this has been settled for a number of years now,* and is more nuanced than that.<br />
<br />
<br />
<a name='more'></a>1. The general rule is that Ministers, whether full Ministers or Associate Ministers or Ministers in or outside Cabinet, are bound by collective responsibility.<br />
<br />
2. However, Ministers from support parties (usually outside Cabinet) may only be bound by collective responsibility in relation to their assigned portfolios, if the relevant governance agreement so provides. <br />
<br />
As the <a href="http://www.cabinetmanual.cabinetoffice.govt.nz/node/64#5.22">Cabinet Manual</a> and <a href="http://www.dpmc.govt.nz/cabinet/circulars/co09/7.html">applicable Cabinet Circular</a> record:<br />
<br />
<blockquote class="tr_bq">
"Ministers outside Cabinet from parliamentary parties supporting the government may be bound by collective responsibility only in relation to their particular portfolios. Under these arrangements, when such Ministers speak about issues within their portfolios, they speak for the government and as part of the government. When they speak about matters outside their portfolios, however, they may speak as political party leaders or members of Parliament rather than as Ministers, and do not necessarily represent the government position. When such Ministers represent the government internationally, they speak for the government on all issues that foreign governments may raise with them in their capacity as Ministers."</blockquote>
<br />
The <a href="http://national.org.nz/PDF_Government/United_Future_Confidence_and_Supply_Agreement.pdf">confidence and supply agreement</a> just agreed between National and United reflects this:<br />
<br />
<blockquote class="tr_bq">
"<i>Collective responsibility</i><br />
United Future agrees to fully represent the government's position and be bound by Cabinet Manual provisions in respect of any areas within the portfolio responsibility of the Leader of United Future, and to support all areas which are matters of confidence and supply.<br />
In other areas "agree to disagree" provisions will be applied as necessary.<br />
Where there has been full participation in the development of a policy initiative outside of any portfolio responsibility held by the Leader of United Future, and that participation has led to an agreed position, it is expected that all parties to this agreement will publicly support the process and the outcome."</blockquote>
<br />
In other words, <i><b>selective </b></i>collective responsibility applies. A subtle, but important, difference.<br />
<br />
More thoughts on the confidence and supply agreements in due course, once any agreement with the Māori Party is settled. From a public law perspective, there are some other tid-bits to note.<br />
<br />
*<a href="http://www.laws179.co.nz/2011/02/revolution-of-collective-responsibility.html"> I have earlier suggested</a> that the convention regarding collective responsibility might be evolving further, as Ministers from support parties may, in practice, be given some greater flexibility to "agree to disagree" in respect of their own portfolios. But, if this is the case, it is (a) rare; and (b) not yet reflected in the governing Cabinet protocols.<br />
<br />
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<br />Dean Knighthttp://www.blogger.com/profile/03069298298745322597noreply@blogger.com9tag:blogger.com,1999:blog-11340801.post-27298577365003697992011-11-29T07:18:00.001+13:002011-11-29T08:19:07.060+13:00Sharples and Turia appointed as Tohunga Kaitohutohu – perhaps?<br />
After Saturday's election, it looks like we're now heading down a well-tread path as we settle our Executive arrangements. <br />
<br />
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.<br />
<br />
But I wonder whether one particular party needs to think outside the box a little more?<br />
<br />
<a name='more'></a>The Māori Party finds itself in a fragile position. It knows that "being at the table" enables it to secure outcomes for its people. But it is also punished for unpopular decisions of the government, even if it takes positions against them. <br />
<br />
This is the "unity--distinctiveness dilemma" that Boston and Bullock talk about (Boston and Bullock, "Experiments in Executive Government Under MMP in New Zealand: Contrasting Approaches to Multiparty Governance" (2009) 7 New Zealand Journal of Public and International Law 39).<br />
<br />
It strikes me that the Māori Party might think about Executive arrangements which leave more light between it (as a support party) and National (as the lead party in government).<br />
<br />
Ministerial positions, even outside Cabinet, still emphasize <i>unity</i>, over <i>distinctiveness</i>.<br />
<br />
But what are its other options?<br />
<br />
Traditional Westminster-style Executive positions, such as Parliamentary Under-Secretaries, seem in-apt (see <a href="http://cabinetmanual.cabinetoffice.govt.nz/2.45">http://cabinetmanual.cabinetoffice.govt.nz/2.45</a>) So too with (the non-Executive positions of) Parliamentary Private Secretaries (<a href="http://cabinetmanual.cabinetoffice.govt.nz/2.49">http://cabinetmanual.cabinetoffice.govt.nz/2.49</a>).<br />
<br />
And the Greens-style memorandum of understanding seems to favour distinctiveness too much (see <a href="http://media.nzherald.co.nz/webcontent/document/pdf/National%20and%20Green's%20agreement.pdf">http://media.nzherald.co.nz/webcontent/document/pdf/National%20and%20Green's%20agreement.pdf</a>)<br />
<br />
One of the other options is the cooperation agreement agreed between the Greens and Labour in 2005 (see <a href="http://www.beehive.govt.nz/sites/all/files/Green.pdf">http://www.beehive.govt.nz/sites/all/files/Green.pdf</a>). This saw the Greens taking a lead role on policy development on particular issues, recognition as Government spokespeople on those issues, and collective responsibility in respect of agreed positions reached in those areas, etc. Provision was also made for other on-going relationship matters like briefings, information provision, etc. (We has some robust discussions in public law classes about whether or not this meant the Greens were "in government" or not.) <br />
<br />
I wonder if something closer to this type of arrangement – tweaked a little – would suit the Māori Party better?<br />
<br />
This type of cooperation agreement could be modified to also include a commitment on confidence and supply (I presume National will want to get some sort of comfort on this, although it may not prove necessary) and greater provision for administrative support.<br />
<br />
The other important thing is the look and feel of the arrangements. The existing Westminster terminology seems clunky. The terminology of the Greens arrangements is probably too understated – lacking in mana and gravitas.<br />
<br />
One option might be for the Māori Party to tailor something to capture the essence of any relationship better. Perhaps through the use of Te Reo. Something like (based on my crude translation) Tohunga Kaitohutohu (Expert Advisor). No doubt those within Māoridom will be able to suggest a more suitable term. But the use of Te Reo might allow them to better convey the nature of the arrangements to its consistency. <br />
<br />
At the end of the day, managing the unity--distinctiveness dilemma is the key to coalition management nowadays.<br />
<br />
The great thing about our customary constitution is it is capable of evolving. We've seen the Executive arrangements evolve a lot under MMP. Twenty years ago, who would have thought about having Ministers outside Cabinet from support parties? Or having selective collective Cabinet Responsibility? (See generally <a href="http://www.laws179.co.nz/2011/02/revolution-of-collective-responsibility.html">http://www.laws179.co.nz/2011/02/revolution-of-collective-responsibility.html</a>.)<br />
<br />
Perhaps it's time for it to evolve even further. Just a thought.<br />
<br />Dean Knighthttp://www.blogger.com/profile/03069298298745322597noreply@blogger.com1tag:blogger.com,1999:blog-11340801.post-42675651004394594872011-11-25T15:50:00.000+13:002012-02-06T23:55:42.042+13:00Governments in transition – some constitutional FAQs<br />
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.<br />
<br />
<b>Who decides who is appointed Prime Minister?</b><br />
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.<br />
<br />
(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.)<br />
<br />
<b></b><br />
<a name='more'></a><b>Who will the Governor-General appoint as Prime Minister?</b><br />
The question of who to appoint is strictly controlled by constitutional convention and is grounded in democratic principle: "the Governor-General will appoint, as Prime Minister, the person who has been identified through the government formation process as the person who will lead the party, or group of parties, that appears to be able to command the confidence of the House of Representatives".<br />
<br />
That's the goal. That's the be-all and end-all for a wannabe Prime Minister.<br />
<br />
<b>What is meant by the phrase "command the confidence of the House"?</b><br />
Confidence is the life-blood of any government. It's often expressed in negative terms:<br />
<br />
In practical terms, it means having a majority of votes on important votes in parliament:* at least 61 votes out of a House of 120 MPs. Or more if there is any overhang.<br />
<br />
The important votes are:<br />
- express motions of confidence or no confidence (such as is usually moved in the Address-in-Reply debate, ie the first debate of each Parliament);<br />
- votes on Bills needed to obtain the authority of Parliament to expend money (ie budget Bills, because without approval to spend money, the government can't function);<br />
- other votes on Bills and other matters declared by the government to raise questions of confidence.<br />
<br />
* If it's really close, it might depend on whether the question of confidence is framed in a negative or positive way. For example, if the votes are split 60-60, a government will avoid a defeat on a motion of no-confidence, but will not have enough votes to pass a budget. Let's just say it gets a little tricky then…<br />
<br />
<a href="http://www.parliament.nz/en-NZ/AboutParl/HowPWorks/PPNZ/8/0/d/00HOOOCPPNZ_71-Chapter-7-Parties-and-Government.htm#_Toc268508515">http://www.parliament.nz/en-NZ/AboutParl/HowPWorks/PPNZ/8/0/d/00HOOOCPPNZ_71-Chapter-7-Parties-and-Government.htm#_Toc268508515 </a><br />
<br />
<b>How does the government ensure it commands the confidence of the House?</b><br />
If one party has a majority of MPs in the House, they will automatically command the confidence of the House. Party processes and discipline mean they will always win an important confidence vote.<br />
<br />
But we haven't had a single party majority government under MMP yet (although there is a reasonable prospect we might have one this following this election).<br />
<br />
Under multi-party government usually seen under MMP, the way confidence is obtained and assured has become relatively settled.<br />
<br />
One lead party, usually Labour or National, will negotiate coalition or confidence and supply agreements with other parties to ensure they have the necessary votes on matters of confidence.<br />
<br />
From a constitutional perspective, the important term of those agreements is the one confirming the minor party's support for the lead party on matters of confidence and supply. Policy concessions and ministerial posts are nowadays provided in return for that important confirmation of support on matters of confidence.<br />
<br />
For the current set of agreements see:<br />
<a href="http://www.parliament.nz/en-NZ/MPP/Parties/National/b/b/b/00PlibMPPNational1-National-Party.htm">http://www.parliament.nz/en-NZ/MPP/Parties/National/b/b/b/00PlibMPPNational1-National-Party.htm</a><br />
<br />
<b>How does the Governor-General decide who should be appointed Prime Minister?</b><br />
The Governor-General stays clear of post-election negotiations about the shape of government. The process is inherently political and is left to the politicians – the Governor-General does not anoint anyone or participate in the discussions. Involvement in those negotiations would undermine the Governor-General's independence and neutrality.<br />
<br />
Once a political consensus is reached, the constitutional expectation is that the politicians will publicly announce the fact that arrangements have been settled which will see a set of parties commanding the confidence of the House. Clear evidence of such arrangements are also expectated, with signed confidence and supply agreements being the norm nowadays.<br />
<br />
The announcements speak to both the public and the Governor-General, ensuring transparency. At this point, if the Governor-General needs to clarify any of the arrangements or to ensure that adequate evidence is provided, there may be some need to communicate with the parties involved – but this is usually done via the Clerk of the Executive Council.<br />
<br />
<b>How long does the process take and is there a time limit?</b><br />
There's no formal time-frame for the government formation process. The time it takes very much depends on the cards dealt to the parties on election night.<br />
<br />
But the sky won't fall if it takes a while. The caretaker convention means there is still an incumbent Prime Minister and government, albeit operating on a limited basis (see below).<br />
<br />
The compulsory first sitting of Parliament (under s 19 of the Constitution Act 1986, 6 weeks after the day fixed for the return of the writs or, according to my maths, by 26 January 2012 at the latest) is somewhat of a milestone, but only a practical or symbolic one. The first sitting day tends to encourage the parties to ensure a deal is stitched up.<br />
<br />
But it's not a constitutional deadline and it's not the end of world if a deal isn’t reached by then. MPs are sworn in and assume their seats (in alphabetical order, I understand), a Speaker is elected, truncated formalities undertaken, and then the House would most likely adjourn for the government negotiations to be completed. <br />
<br />
As an aside, Belgium still does not have a government after its election in June 2010 – a world record!<br />
<br />
<b>What happens if a government can't be formed?</b><br />
<br />
As mentioned above, there is no prescribed time-limit and the caretaker convention will ensure that a government operates in the meantime, albeit on a constrained basis.<br />
<br />
If the position is intractable, the ultimate recourse is the dissolution of Parliament for fresh elections. The re-dealing of the cards would hopefully ensure a new political settlement and a government able to command the confidence of the House.<br />
<br />
However, an important caveat. The incumbent Prime Minister's ability to request a new election is significantly constrained because they, by definition, will not command the confidence of the House. Any decision to advise the Governor-General to dissolve Parliament for a new election, in these circumstances is subject to the caretaker convention - therefore needing majority support of MPs in the House.<br />
<br />
<a href="http://cabinetmanual.cabinetoffice.govt.nz/6.56">http://cabinetmanual.cabinetoffice.govt.nz/6.56</a><br />
<br />
<b>Which party gets first go at forming a government?</b><br />
No party gets first shot at forming the government. With multi-party government, the ultimate goal is garnering enough parliamentary votes to be able to command the confidence of the House.<br />
<br />
Importantly, the highest polling party does not have any special constitutional position (unless they secure an absolute majority). As Sir Michael Hardie-Boys explained:<br />
<blockquote class="tr_bq">
"In a parliamentary democracy, the exercise of my powers must always be governed by the question of where the support of the House lies. It is this simple principle which provides the answer to those who sometimes suggest that in situations like that encountered by New Zealand after the last election, the head of state should simply call on the leader of the largest party to form a government. Size alone provides no reason to prefer a party if its leader does not appear to have the support of a majority of the House. It is better to wait for negotiation among the parties to produce a majority. … To repeat: in a parliamentary democracy such as ours, the exercise of the powers of my office must always be governed by the question of where the support of the House lies."</blockquote>
So, there is no constitutional impediment to a Prime Minister being drawn from the second highest polling party, if that party is better about to secure agreements on confidence and supply from other parties.<br />
<br />
I know this raises some eyebrows. But I think of it like a game of rugby.<br />
<br />
In any game, the ultimate goal is to score more points than the other team. If you do, you win. If you don't, you lose.<br />
<br />
You might have a team scoring several tries being beaten by a team which scores none but gets more points through penalties and drop goals. But the way the points are scored, doesn't matter.<br />
<br />
The team scoring the tries might say they're a better team and claim a moral victory. But they don't get to raise the trophy at the end of the match. <br />
<br />
<b>How soon can a new Prime Minister be appointed?</b><br />
It depends. It depends on how confident the Governor-General can be that a party or a group political parties can command the confidence of the House.<br />
<br />
Government formation negotiations have usually taken a little bit of time. Sometimes special votes might influence those negotiations and the agreements have often not been signed and confirmed under after the formal declaration of the election result.<br />
<br />
However, there's no reason to wait for the formal declaration of election results (as was the case in 2008). For example, if it's clear that a single party has more than 50% of the seats, regardless of specials, or an coalition deal means that the outcome of specials are immaterial, then a new Prime Minister can be sworn in forthwith.<br />
<br />
<b>What's the significance of the swearing in of the Prime Minister?</b><br />
The ceremonial marks the constitutional.<br />
<br />
The act of swearing in a new Prime Minister signals the commencement of the new government. Once the Prime Minister is sworn in, the cardinal constitutional convention that the Governor-General acts on the advice of his or her responsible advisors (ie Ministers of the Crown) re-commences.<br />
<br />
The Prime Minister is then able to advise the Governor-General who should be sworn in as Ministers and the Governor-General duly obliges. The caretaker convention lapses at this point as well, as the warranted Ministers then have the democratic foundation to act because they, as a government, are able to command the confidence of the House.<br />
<br />
Strictly speaking, if the incumbent Prime Minister is able to form another government that is able to command the confidence of the House, then no ceremony is needed because they are already warranted as Prime Minister. Instead, the caretaker convention would magically lift when the Governor-General is satisfied that the Prime Minister has the continuing right to govern. However, previous governments have – properly, in my view – taken the view that the ceremonial marker is important and a returning Prime Minister has been re-sworn into office, even though it's not legally necessary.<br />
<br />
One last thought. The last government was sworn in at Parliament, due to renovations taking place at Government House. I hope this tradition continues. The ceremony where the new government is installed seems more appropriate in the setting of the place of people. (At least, thank goodness, we don't engage in the ridiculous "Kissing Hands" ceremony that takes place in the UK.)<br />
<br />
<b>What happens to MPs after polling day?</b><br />
A little quirk of our system is that, for a number of days after the election, we have no MPs!<br />
<br />
Under s 54 of the Electoral Act, MPs reign until the "close of polling day". However, new MPs don't come into office until the day after the return of the writ (the formal advice to Parliament of the outcome of the election by the Electoral Commission). That's not scheduled to take place until 15 December.<br />
<br />
In between those dates, we don't have any MPs (although Ministers still retain their ministerial warrants (see below).<br />
<br />
<a href="http://www.legislation.govt.nz/act/public/1993/0087/latest/whole.html#DLM308529 ">http://www.legislation.govt.nz/act/public/1993/0087/latest/whole.html#DLM308529 </a><br />
<br />
<b>What's this caretaker convention?</b><br />
After an election, an incumbent government loses the democratic mandate to govern, unless and until they can satisfy the Governor-General that they can command the confidence of the House.<br />
<br />
However, they can't just vacate the Beehive while a new government is formed.* The figure-head Governor-General can't be left without responsible advisors – Ministers are still required to ensure the business of government keeps ticking over.<br />
<br />
The constitutional compromise is the caretaker convention.<br />
<br />
The incumbent government remains in power with lawful executive authority to act. However, under the caretaker convention, their ability to act constrained:<br />
- if we know who will take over as next government, the government will only act on advice of the incoming government even though that incoming government has not been formally sworn into office;<br />
- if we don't know who will take over, the government will avoid making significant decisions – and, if one must be taken, they will only act after consultation with other political parties to ensure that the course of action has majority support.<br />
<br />
The caretaker convention therefore ensures that any decision made during the transition period has a democratic mandate.<br />
<br />
* Section 6 of the Constitution Act deals with the situation where an existing minister does not stand or is not re-elected (and the appointment of successful candidates as ministers before they are formally declared elected). Again, a point of detail for the geeks and public law students.<br />
<br />
<a href="http://cabinetmanual.cabinetoffice.govt.nz/6.16">http://cabinetmanual.cabinetoffice.govt.nz/6.16</a><br />
<a href="http://www.legislation.govt.nz/act/public/1986/0114/latest/DLM94219.html#DLM94219">http://www.legislation.govt.nz/act/public/1986/0114/latest/DLM94219.html#DLM94219</a><br />
<br />
<b>Where do we find these conventions?</b><br />
These conventions have evolved and been amplified over time. The arise from existing practice and the belief that they're important to continue to follow.<br />
<br />
There was a big stock-take about the protocols for the formation of government in anticipation of MMP coming into force and the expectation of minority and coalition governments.<br />
<br />
The conventions or protocols about government formation and transition are recorded in important constitutional speeches of the Governor-General (there are now a number of them) and also in the provisions of Cabinet Manual.<br />
<br />
<a href="http://gg.govt.nz/resources/media/speeches/constitutional?page=1">http://gg.govt.nz/resources/media/speeches/constitutional?page=1</a><br />
<a href="http://cabinetmanual.cabinetoffice.govt.nz/6.36">http://cabinetmanual.cabinetoffice.govt.nz/6.36</a><br />
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<br />Dean Knighthttp://www.blogger.com/profile/03069298298745322597noreply@blogger.com5tag:blogger.com,1999:blog-11340801.post-12410593276400897302011-11-18T07:37:00.002+13:002011-11-26T00:42:24.512+13:00Reading the tea leaves: the declaratory judgment applicationThe Teapot Tapes camera-man, Bradley Ambrose, <a href="http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10766703">has applied to the High Court</a> 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:<br />
<br />
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. <br />
<br />
<a name='more'></a><br /><br />
We are currently in a strange twilight zone where there is lots of chatter about the recording, but still the recording and transcript have not yet been published. Some media have justified their restraint in terms of ethics – but no doubt legality also features heavily.<br />
<br />
The question of legality of the taping has been thrashed already – both by those knowing something about law and others. The key criminal offence centres on s 216A of the Crimes Act. Legality or criminality turns on turns on:<br />
(a) whether the taping was intentional; and<br />
(b) whether the "should reasonably expect eavesdroppers" exception in the definition of private communication applies.<br />
<br />
The wise money seems to be on"it depends". <br />
<br />
(For what it's worth, my thoughts are:<br />
(a) Don't know. This is largely factual and a matter of credibility.<br />
(b) The exception applies. I doubt that, on an objective view, a person can reasonably expect that a conversation in a café (with journalists through the window watching and staff in the café working) is private and will not be overheard.<br />
<br />
And:<br />
(c) There may be temporal problems in matching any mens rea (intention) and actus reus (the critical act causing the interception);<br />
(d) I'm not convinced the offence – in the light of its history/purpose and the freedom of expression (right to receive information) in the Bill of Rights) – was designed to catch this type of thing.<br />
<br />
But that's by-the-bye.)<br />
<br />
The interesting thing will be whether the High Court gives a ruling or not. There's no guarantee it will. But I think it probably should.<br />
<br />
Let me explain.<br />
<br />
The Declaratory Judgments Act 1908 allows people to go to the High Court for clarification about the legality of a wide range of acts and situations:<br />
<br />
<blockquote class="tr_bq">
"s 3 Declaratory orders on originating summons<br />
Where any person has done or desires to do any act the validity, legality, or effect of which depends on the construction or validity of any statute….such person may apply to the High Court by originating summons for a declaratory order determining any question as to the construction or validity of such statute…"</blockquote>
<br />
So, on its face, questions of legality could be settled by the Court under this power.<br />
<br />
But. The jurisdiction to issue a declaration is discretionary (see s 10). In ordinary circumstances, someone seeking a declaratory judgment like this would face formidable hurdles:<br />
<br />
1. Here, questions of legality involve critical factual matters, not merely the interpretation of the wording of the legislation (although the two are intertwined). The courts are reluctant to issue declaratory judgments where factual matters are in dispute (see <i>Omaha Beach Residents Society v GNS Trust Ltd </i>[2010] NZCA 413). The procedure for declaratory judgments is "on the papers", ie based on affidavit evidence, not based on witness testimony (although in rare cases this might be possible). It's not designed to resolve factual disputes. <br />
<br />
2. The courts sometimes discourage the use of declaratory judgments where clarification of the legal position can be obtained in, or would pre-empt, more appropriate proceedings, especially criminal proceedings. It may be more desirable to prosecute and let the criminal process take its course - although the authorities are a little mixed on this (see for example <i>Woolworths (New Zealand) Ltd v Attorney-General</i> [2001] 3 NZLR 123 and <i>Auckland Area Health Board v Attorney-General</i> [1993] 1 NZLR 235). Further, note the Supreme Court's recent decision, <i>Mandic v The Cornwall Park Trust Board</i> [2011] NZSC 135, seems to suggest (in obiter comments) that the declaratory judgment should not be treated as a residual remedy and its availability should not be unduly narrowed.<br />
<br />
Tricky.<br />
<br />
Hard to know what way a judge will go.<br />
<br />
I said, though, that I think the judge probably should issue a declaration, to the extent they can on the evidence presented.<br />
<br />
Why? It's often said that in law, context is everything. Here, the issue of legality arises on the hustings, with election day fast-approaching. <br />
<br />
The uncertainty about legality is, I think, inhibiting political and electoral discourse. Yes, there's a lot of chatter about the circumstances of the teapot tapes. But the recording itself and transcript have still not been disclosed (even though hints and hearsay accounts are rife). Doubts about legality – and associated police action – have a chilling and gagging effect.<br />
<br />
The courts have in the past adopted a more vigilant role in protecting the institution of the election. The constitutional context has demanded a more active role to ensure propriety and to protect the democratic process. (There's a very good article written by one of my former students, David Bullock, forthcoming in the VUWLR where he makes this type of argument. His analysis is rather convincing.) <br />
<br />
A similar argument can be made here. Ordinarily, a request for clarification of this kind might be met with judicial restraint and reluctance. However, the electoral context here favours a more courageous approach by the courts – especially as the temporal horizon means criminal proceedings can't bring any resolution of the uncertainty before the election. <br />
<br />
Regardless, it will be very interesting to see how the court rules.<br />
<br />
UPDATE: The citation for David Bullock's article is "Electoral Expression With Institutional Bounds: Framing Judicial Treatment of Elections in New Zealand" (2011) 42 VUWLR 459 (forthcoming).Dean Knighthttp://www.blogger.com/profile/03069298298745322597noreply@blogger.com1tag:blogger.com,1999:blog-11340801.post-69386024636180931462011-10-30T11:25:00.000+13:002011-10-30T11:25:32.580+13:00Tinkering with the line of succession<br />
So, we find (oddly, from overseas sources) that our government has agreed to a change in the line of succession. The male primogeniture (boys before girls) and prohibition on marriage to someone Catholic are to be removed.<br />
<br />
The change was heralded by <a href="http://www.chogm2011.org/Resources/Latest_News/pm-united-kingdom-david-cameron-pm-australia-julia-gillard-joint-press-confere">David Cameron in a speech at CHOGM</a>:<br />
<blockquote class="tr_bq">
“Attitudes have changed fundamentally over the centuries and some outdated rules, like some of the rules on succession, just don't make sense to us anymore: the idea that a younger son should become monarch instead of an elder daughter simply because he's a man, or that a future monarch can marry someone of any faith, except a Catholic. This way of thinking is at odds with the modern countries that we've all become. People have been talking about changing the rules for some time, but when there are 16 countries sharing the same head of state and each have their own constitutional, legal and political concerns, it's absolutely right that we should all discuss this together. That's why I asked Prime Minister Gillard for the opportunity to chair this meeting today with the heads of government from all 16 nations. I'm very pleased to say that we've reached a unanimous agreement on two changes to the rules of succession. First, we will end the male primogenitor rule so that in future the order of succession should be determined simply by the order of birth. We've agreed to introduce this for all descendents from the Prince of Wales. Put simply, if the Duke and Duchess of Cambridge were to have a little girl, that girl would one day be our Queen. Second, we've agreed to scrap the rule which says that no one who marries a Roman Catholic can become monarch. Let me be clear, the monarch must be in communion with the Church of England, because he or she is the head of that church. But it is simply wrong that they should be denied the chance to marry a Catholic if they wish to do so. After all, they're already quite free to marry someone of any other faith. We agreed today that this has to change.”</blockquote>
Hmmm. I think we’re meant to be excited by this.<br />
<br />
Don’t get me wrong. The changes are some improvement. Republicans like me have been pointing out the daftness of these rules for years and years.<br />
<br />
But there is still much wrong with a system that sees a British monarch automatically assuming the highest constitutional office in New Zealand. <br />
<br />
The line of succession is not just a set of arcane rules about which of the Windsor off-spring next assume the British throne. They’re also our own constitutional statement of the qualifications for the position of Head of State for New Zealand. <br />
<br />
The changes announced do make some difference: in 60-70 years, assuming the Duke and Duchess’ first born is a girl, she will be able to be Queen before any younger brothers.<br />
<br />
But limited modernisation of this senior constitutional office in three or four generations leaves me cold. The office needs modernisation in this generation, now, in anticipation of the end of the present Queen’s reign. <br />
<br />
For Kiwis, the main defects with the monarchy remain. The essential qualification – being born a foreigner of “special” blood – basically prevents any Kiwi from acting as our Head of State. <br />
<br />
Let’s be clear about that. Even with these changes, no Kiwi – Pakeha, Maori, Asian, Pacifika – will be our head of state. <br />
<br />
Go back to Cameron’s speech and replay it with a Kiwi lens:<br />
<blockquote class="tr_bq">
“Attitudes have changed fundamentally over the centuries and some outdated rules, like some of the rules<strike> on succession</strike> <i><b>who can be New Zealand's Head of State</b></i>, just don't make sense to us anymore: the idea that someone born to a <b><i>particular British family</i></b> <strike>younger son</strike> should become <strike>monarch</strike><b><i> our Head of State</i></b> instead of <strike>an elder daughter simply because he's a man </strike><b><i>someone born in Westmere, Wairoa, or Winton</i></b>, or that <strike>a future monarch can marry someone of any faith, except a Catholic </strike><b><i>our Head of State must be British, not someone Kiwi, not someone Maori</i></b>. This way of thinking is at odds with the modern countries that we've all become.”</blockquote>
And, also astonishing is the fact that the government unilaterally agreed to this change, without involving Kiwis in the change process. <br />
<br />
Sure, the accord in <a href="http://www.chogm2011.org/Resources/Latest_News/first-draft-agreement-principle-among-realms">an agreement-in-principle</a> and legislation will still need to passed. But the die has already been cast. It's theoretically possible for some of the Realms to adopt a different course – but unlikely and impractical.<br />
<br />
And we know that New Zealand isn't just a passive participant in the initiative. Earlier reports from the UK indicated New Zealand was leading a behind-the-scenes working party on the issue. And the CHOGM news indicates New Zealand will continue that role for the implementation phase.<br />
<br />
Set this against the government's domestic position on any changes relating to our Head of State. They opposed the Head of State (Referendum) Bill, opposed any updating of the appointment process for Governor-General, and deliberately omitted the Head of State question from the constitutional review. <br />
<br />
Also, the government has <a href="http://www.beehive.govt.nz/release/govt-begins-cross-party-constitutional-review">said elsewhere</a> it will not be making major constitutional changes without "a broad base of support", either "broad cross-party agreement or the majority support of voters at a referendum".<br />
<br />
The government is desperate to suppress any debate amongst Kiwis about whether we should have a home-grown Head of State. Yet it is happy to tinker with the line of succession, without any public involvement or discussion.<br />
<br />
The sooner we have a genuine discussion between government and the people about whether a Kiwi should hold our most senior constitutional office, the better!<br />
<br />
<br />
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<br />Dean Knighthttp://www.blogger.com/profile/03069298298745322597noreply@blogger.com3tag:blogger.com,1999:blog-11340801.post-57111617953267873012011-10-04T22:38:00.001+13:002011-10-05T10:40:13.435+13:00Covert surveillance: post-Select Committee and pre-HamedA quick post to close the circle, following the release of the <a href="http://www.legislation.govt.nz/bill/government/2011/0333/latest/DLM4068800.html#DLM4068800">Select Committee report on the Bill</a>. Labour's bottom lines have effectively been endorsed by the Select Committee and the passage of a watered-down Bill now looks to be assured.<br />
<div>
<br /></div>
<div>
Some thoughts:</div>
<div>
<br /></div>
<div>
1. It is quite extraordinary that the Select Committee received 438 submissions in less than 24 hours. While a number of these are form submissions, others are tailored and substantive. I haven't done the analysis myself but someone suggested that all bar one were opposed to the Bill. <br />
<br />
Quite an incredible response to a Select Committee process that originally wasn't going to happen. </div>
<div>
<br /></div>
<div>
(As an aside, I am especially heartened by the number of law students who took the time out of their studies to make personal submissions. One of the things I've been trying to encourage and cultivate at Vic over the last few years is a culture of participation and engagement - we need "good citizens" contributing to our civic process, just as they did here.)</div>
<div>
<br /></div>
<div>
2. On the merits of the post-Select Committee position, see my earlier post on Labour's bottom-lines.<br />
<br />
One additional point, I am worried about the extension of the temporary measures to numerous other agencies. Andrew Geddis has covered the issue <a href="http://www.pundit.co.nz/content/some-praise-for-parliament-rare-though-that-may-be">here.</a> He notes the Bill still enables "all the State's investigative agencies" to engage in covert video surveillance.<br />
<br />
This doesn't worry me so much for non-trespassory "over the fence" surveillance. But for trespassory surveillance it is troubling.<br />
<br />
Might we be concerned if local authority enforcement officers are engaging in covert filming as an adjunct to searches warranted under the <a href="http://www.legislation.govt.nz/act/public/1991/0069/latest/DLM239029.html#DLM239029">Resource Management Act</a>? Or the Standards Committee of the Law Society when searching the premises of a practitioner pursuant to a warrant under <a href="http://www.legislation.govt.nz/act/public/2006/0001/latest/DLM366715.html#DLM366715">the Lawyers and Conveyancers Act</a>? No thanks!<br />
<br />
3. The Select Committee report and ministerial interviews that followed still seem to perpetuating the view that covert video surveillance had sanctioned by the Court of Appeal for the last 15 years, justifying the police action and the quick fix.<br />
<br />
The Select Committee said:
<br />
<blockquote>
"Before the Hamed decision, the use of covert video camera surveillance by State agents had been considered by New Zealand courts, and was found to be permissible under common law whether the surveillance was conducted on private property entered pursuant to a search warrant, or from a place not requiring a warrant to enter.<br />
We note the Law Commission’s 2007 report questioned the legal basis of trespassory video camera surveillance. We note that this report was issued prior to three Court of Appeal decisions that we are advised affirmed the lawful use of such surveillance."</blockquote>
I still don't get it. That doesn't accord with my reading of the cases. Or the reading by others. Steven Price has explained things well <a href="http://www.medialawjournal.co.nz/?p=505">here</a>. <br />
<br />
Last week I asked the Attorney-General's office for clarification of what cases were being referred to, after the Attorney made a similar claim. I'm still waiting for a response. <br />
<br />
Given the centrality of this point to the government's position, it would be helpful if the advice they have received was released (in some appropriate form) - rather than being advanced by oblique and unsubstantiated assertion.<br />
<br />
UPDATE: Lyndon Hood at Scoop has been working on this line and has an interesting article <a href="http://www.scoop.co.nz/stories/HL1110/S00011/crown-vs-gown-pm-on-police-surveillance.htm">here</a>. The PM's office seems to be referring to <i>Fraser</i> and <i>Gardiner - </i>both cases which deal with non-trespassory surveillance! <i> </i></div>Dean Knighthttp://www.blogger.com/profile/03069298298745322597noreply@blogger.com2tag:blogger.com,1999:blog-11340801.post-60786973660608191752011-10-01T10:00:00.000+13:002011-10-01T10:00:57.393+13:00Covert surveillance: Labour’s bottom line<br />
Labour have announced their position, following Select Committee hearings, on the covert video surveillance Bill. Given the numbers in Parliament, it’s an influential position – and will represent the position adopted, unless the National Party can win some other votes for a more restrictive position.<br />
<br />
But I have mixed feelings. <br />
<br />
On the one hand, it’s a vast improvement on the government’s original position. The temporary legislation will apply for a shorter period. And it will not apply to current investigations and prosecutions. Both would be significant improvements. <br />
<br />
On the other hand, I’m disappointed by a couple elements. It’s too late, apparently, to draft and implement a regime of judicial warrants for surveillance. And convictions already obtained won’t be able to be challenged on the basis of unlawfulness – that is, some retrospective validations will apply.<br />
<br />
It’s a mixture of principle and pragmatism, as Charles Chauvel had candidly admitted on Red Alert.<br />
<br />
<a name='more'></a>To recap, this is Labour’s bottom line position following the select committee hearings:<br />
<blockquote>
“1. In order to allow the Police to resume covert video surveillance from the date of the Bill’s assent, their powers to do so must be affirmed, but only on the basis of the law as it was understood prior to the Hamed decision, no more broadly than that, and only on the basis of the most serious offending. Labour would have liked the Bill to go further, and provide a warranting procedure, but accepts that the Government left the drafting exercise needed too late to make this happen;<br />2. The legislation needs to apply for a maximum of 6 months only;.<br />3. Cases currently under investigation, whether or not yet before the courts, must not be interfered with by Parliament. The Courts must be left free to determine under existing law whether evidence gathered in support of any such prosecutions is admissible. The overwhelming evidence before the committee is that s30 Evidence Act and s21 NZ Bill of Rights Act give the courts this power, and that there is no justification for Parliament to try to intervene. Claims that serious crime will go unpunished have been shown to be misguided. We are satisfied that serious crime will not go unpunished because appropriate safeguards already exist to prevent this;<br />4. It must be made clear that persons convicted in cases where covert video surveillance was used in the past cannot now seek to overturn their convictions, or seek compensation from the Crown for wrongful conviction or imprisonment, only by reason of the use of covert video surveillance. In other words, the law that applied at the time of conviction must clearly continue to apply, rather than the conviction being measured against a later standard.”</blockquote>
Let’s deal with each.<br />
<br />
<b>Prospective authority to engage in covert video surveillance, but no warranting regime</b><br />
No issue with Parliament providing this power, especially for serious cases. I’m disappointed, though, that the wheels of government couldn’t draft a warranting regime in time before Parliament rises. Quite frankly I’m surprised. But I admit time is pressed.<br />
<br />
One alternative option might have been to consider whether the warranting regime could have been dealt with by regulation. Ordinarily this would be objectionable, as important policy-based matters like this should be addressed in primary legislation. However, here it would be the better of two bad things. That would give some breathing space for drafting purposes. Checks and balances would apply: in-principle direction in legislation; mandatory consultation with opposition parties and courts; temporary application. We’re talking a couple of weeks I guess. In the interim, if considered necessary, the proposed blanket power could apply to allow the cameras to be switched back on.<br />
<br />
<b>Temporary for 6 months only</b><br />
Good.<br />
<br />
<b>Not applicable to current investigations and prosecutions</b><br />
Excellent. This would be a significant improvement. And the sky won't fall as a result. <br />
<br />
<b>Past convictions not able to be challenged</b><br />
I’m disappointed by this concession. I understand the concern about not wanting to open up the floodgates, to free criminals already convicted. But this caveat means the legislation would still have some retrospective effect, deeming lawful what has been found to be unlawful.<br />
<br />
But it’s also important to assess the counterfactual. Absent any validation of past convictions, what chances would a convicted person have in successfully appealing based on an argument that their conviction was based on unlawful covert video surveillance?<br />
<br />
(A brief caveat first. I’m straying outside my comfort area. Criminal procedure isn’t my bread and butter. So I welcome quibbles or corroboration.)<br />
<br />
Anyways, three big hurdles for a convicted person:<br />
<br />
First, in most cases, any appeal will be out of time. An appeal out of time is an indulgence, not automatic. Even in cases where a later court ruling effectively changes the law on which the previous conviction was based, “special circumstances” must be advanced in order to be allowed to argue for the benefit of that ruling. <br />
<br />
The Court of Appeal in <i>R v Knight</i> (1997) 15 CRNZ 332 said:<br />
<blockquote>
“Reflecting the policy underlying s 388, the starting point must be the principle that a conviction obtained according to law as it was then understood and applied should stand. Leave to appeal out of time on the ground that there has been a restatement of the applicable law should be granted only where special circumstances can be shown to justify a departure from the principle of finality. The applicant must demonstrate some special feature or features particular to the case that lead to the conclusion that in all the circumstances justice requires that leave be given. Amongst the considerations which will also be relevant in that overall assessment are the strength of the proposed appeal and the practical utility of the remedy sought, the length of the delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.”</blockquote>
Secondly, any failure to have objected to the evidence at the trial makes it much harder to argue on appeal the evidence ought to have been excluded. The objection must have a decisive effect on conviction. And the failure to object must have arisen through gross negligence on the part of counsel, rather than as a result of some plausible tactical decision.<br />
<br />
The Court of Appeal in <i>R v P</i> [1996] 3 NZLR 132:<br />
<blockquote>
“[There are] problems inherent in a challenge to the admissibility of evidence to which no objection was taken at trial. By itself the failure to raise an evidential objection at trial of itself does not preclude taking the point on appeal, see eg R v Horsfall [1981] 1 NZLR 116, 123. … [But this] Court has emphasised that in such situations it will be unsympathetic to subsequent attempts to found an appeal on the contention that the evidence was inadmissible...<br />As to the principles applicable at the appellate stage, it is necessary for the appellant to show that if objection had been properly taken the Judge would not have admitted the evidence: R v Mason [1988] 2 NZLR 61, 63. If there was a tenable basis for admitting the evidence the appellant will fail. …<br />If the appellant is able to overcome that first-hurdle, there is another. The evidence in question must be such as to have had a significant prejudicial effect on the outcome of the trial. This is necessary to bring the situation within the concept of miscarriage of justice in terms of s 385(1)(c) of the Crimes Act 1961: <i>R v Horsfall </i>at p 123. Finally, an overarching requirement is that counsel's failure to take the objection at trial was a mistake of the radical kind needed to invoke the principle in<i> R v Pointon</i> [1985] 1 NZLR 109. That requirement necessarily must be a precondition for an appellant not only to take a new objection on appeal to the admission of evidence at the trial but to then also seek to adduce evidence directed to the objection at the appeal hearing.”</blockquote>
Finally, in any appeal, any convicted person will face the hurdle of s 30 of the Evidence Act 2006. Or its common law equivalent, Shaheed (I’m not sure here about the transitional treatment for the Evidence Act). The discretion in s 30 will be amplified. Not only is there a prospect that the unlawfully obtained evidence will still be admitted (for the reasons explained in previous posts), the prospect of its admission weighs against any finding that the evidential point is decisive for the purposes of a late appeal or excusing the fact objection was not taken at trial.<br />
<br />
So, a convicted person would face some big hurdles. <br />
<br />
As with the current investigations and prosecutions, I would prefer that each case be able to be addressed on its own merits. The courts already balance the need for fairness and finality. I don’t think the sky would have fallen if they were left to do their business. Hence, probably no need to retrospective legislative validation.<br />
<br />
Assuming, though, some validation results, perhaps the more significant question is what the “cut-off” date is. The Labour proposal doesn’t speak to this. And there are various possible dates:<br />
<br />
- enactment of the Bill<br />
- introduction of the Bill<br />
- date of Supreme Court decision<br />
- date of High Court decision.<br />
<br />
My preference would be the latter. Any argument that the Crown acted in good faith advancing the covert video surveillance evidence based their understanding of the law evaporated at the point of Winkelmann J’s ruling in the High Court. (As you know, I don’t necessarily agree with the police account, but let’s assume that’s the case for now). The Crown were on notice of the problem. There was, undoubtedly, a clear finding of illegality about covert video surveillance, albeit the evidence was allowed in under s 30 of the Evidence Act. There’s a strong case therefore, I think, for arguing that any cases that followed be dealt with on the same basis as current cases. At that point it could no longer be claimed that the police were acting in good faith in promoting conviction based on covert video evidence.<br />
<br />
And I still would like some form of inquiry into the systemic cause of this illegality. It is extraordinary that the police have been acting unlawfully for so long and so widely. I want to know why. And I want to be assured it won’t happen again.<br />
<br />
Regardless of my reservations about some elements of Labour’s position, the fact the Bill went through the Select Committee and the detail is being subjected to reflective parliamentary negotiation is significant. That wasn’t an option less than a fortnight ago. Some points will be won. Some will be lost. But, at least, the process has allowed us to engage in that contest.<br />
<br />
<br />
<br />
<br />Dean Knighthttp://www.blogger.com/profile/03069298298745322597noreply@blogger.com0tag:blogger.com,1999:blog-11340801.post-47944865771686485472011-09-27T07:43:00.000+13:002011-09-27T07:43:12.240+13:00Covert surveillance: some more musings<br />
1. When the Video Camera Surveillance (Temporary Measures) Bill is introduced into Parliament today, will it be accompanied by the report by the Attorney-General that it is inconsistent with the NZ Bill of Rights Act? It difficult to see how the Bill, as it has been foreshadowed, can be consistent when: (a) it removes remedies (both tort compensation and evidence exclusion) for breaches of rights that have already crystallised; and (b) overturns the Supreme Court’s Bill of Rights-informed ruling about the existing legal position.<br />
<br />
2. If the government is so keen to “restore the common law” by reverting to the previous position before the Supreme Court ruling -- purportedly on the basis that this was the position as understood by all involved, then why does the legislation not unwind the court decisions to preserve the first-instance position set out by Winkelmann J? Or is that problematic because, like the Supreme Court, she ruled the actions of the police were unlawful (even though she would have admitted more unlawfully obtained evidence)?<br />
<br />
3. Is the elephant in the room the government’s exposure to claims for compensation as a result of the illegal searches? The validation of past illegal actions will absolve the government for any liability for trespass, breach of privacy and NZ Bill of Rights Act claims. But how exposed is it? Certainly it is a live issue. But I doubt the exposure is great. The NZ courts have been very modest in awarding compensation for Bill of Rights breaches, particularly to those who do not have clean hands themselves. And trespass claims might be tricky – for example, a claim in the Urewera case is unlikely because those filmed were not legal occupiers of the land. Exemplary damages might, though, be a problem, especially in the light of the Supreme Court findings about the deliberateness or recklessness of the police’s resort to unlawfulness.<br />
<br />
4. Given the widespread engagement in unlawful covert surveillance by the police, where is the inquiry in the systemic cause of this problem? Is an investigation by the Independent Police Complaints Authority inevitable? Has a complaint already been lodged? Or is one in the pipeline?<br />Dean Knighthttp://www.blogger.com/profile/03069298298745322597noreply@blogger.com0tag:blogger.com,1999:blog-11340801.post-49522104669194304322011-09-27T07:20:00.001+13:002011-09-27T07:50:15.615+13:00Covert surveillance: process and principle<br />
Haste is the enemy of good law-making.<br />
<br />
Too often in recent memory we have seen controversial legislation passed under urgency, often in one day. It is pleasing therefore to see yesterday’s announcement that the Video Camera Surveillance (Temporary Measures) Bill would be referred to a Select Committee for public submission and scrutiny, albeit for less than a week. Of course, that was inevitable given the government did not have the numbers to push ahead with urgency without some form of select committee scrutiny. <br />
<br />
Kudos to those parties -- particularly ACT and Labour, whose votes proved crucial -- who saw sense and insisted that the government take a breath before pushing ahead with this egregious legislation.<br />
<br />
As an aside, we might have been lucky last week was a recess week. If Parliament had been sitting, there was a real prospect that the legislation might have been progressed through all stages under urgency on Tuesday or Wednesday, as has been the case in the past. Parties would have been called on to make snap-judgements about whether to support the Bill or not. There would have been little, if any, time for critical analysis in the media. <br />
<br />
Thankfully, we have seen (largely) informed debate in the media about the proposed law. Over the week, politicians, media and commentators have been discussing the intricacies of s 30 of the Evidence Act, the differences between trespassory and non-trespassory searches, the power to grant search warrants in Summary Proceedings Act, and numerous paragraphs from one of the longer Supreme Court judgments.<br />
<br />
The government’s assertions about urgency and necessity have largely been debunked. The mischievous rhetoric originally deployed – “You’re either with us or you’re with the crims” – has been side-lined in favour of genuine analysis and debate. <br />
<br />
And, it’s notable that following this public discussion, almost all major newspapers have come out with editorials against the Bill, along with numerous opinion writers. Leading practitioners have also lined up against the Bill. The academy has been vocal -- and this time couldn’t be dismissed pejoratively as “latte-sipping Aucklanders”. <a href="http://www.pundit.co.nz/blogs/andrew-geddis">Professor Geddis</a> gets a particular mention, as he’s been doing much of the running on this one. But others have been chipping in with helpful analysis: some public, some behind the scenes.<br />
<br />
But a reminder that this public discourse takes time to percolate. If we prefer informed debate over meaningless rhetoric, time and effort is needed. As an example, my initial blog post took some 6 hours to construct (luckily, the UK daytime gave me a head-start while NZ was sleeping!) I know others also dropped things to devote time to researching, analysing and commenting on the issue. Political parties were presented with similar challenges – needing time to digest the Bill and its implications.<br />
<br />
That bring me to my final point. A few have attempted to cast the ACT and Labour Party positions as quibbles about process. Where do they stand, they say, on the principle? At the end of the day, will they support the Bill or not? Are they trying to have it both ways?<br />
<br />
Well, I think this line of attack misses the point. It is in cases like this that process and principle intersect. Robust and reflective process ensures that principle is preserved.<br />
<br />
These issues are rarely open-and-shut issues. Not all instances of retrospective legislation can be condemned. Validation of state unlawfulness is not always bad. Bills abridging rights are not automatically objectionable. <br />
<br />
But we need to be vigilant against such measures and ensure they are vigorously scrutinised. The government must justify – to Parliament and the people – its resort to these measures. Assertion and executive say-so is not enough.<br />
<br />
That’s where process becomes important. <br />
<br />
Considered scrutiny of a proposal, through select committee processes and public discourse, tests the justification advanced by the government. It may be that a genuine case can be made for the use of what otherwise would be malignant measures. It may be that the claimed justification is weak and the legislation is truly objectionable. And the process allows alternatives – less harmful alternatives that still achieve the important objective – to be promoted.<br />
<br />
Here, of course, we see the government’s claim about urgency and necessity unravelling as it has been exposed to scrutiny over the past week. And credible alternatives have been feed into the mix. It will be interesting to what comes out of the select committee process next week and how the parliamentary votes shake down. <br />
<br />
But, what a difference a week makes, eh! Dean Knighthttp://www.blogger.com/profile/03069298298745322597noreply@blogger.com0tag:blogger.com,1999:blog-11340801.post-44316051806554745002011-09-21T12:33:00.000+12:002011-09-21T12:33:11.901+12:00Covert surveillance: if it ain't unlawful then it's lawful?<br />
A quick comment on one point arising from the debate about covert video surveillance.<br />
<br />
The Police, Police Union and some others are peddling a line that the retrospective validating legislation is justified because of previous uncertainty about whether covert video surveillance was authorised or not. <br />
<br />
They admit covert surveillance wasn’t expressly authorised but argue they could rely on the fact it wasn’t illegal . If it wasn’t unlawful then, they say, like ordinary people, the Police were entitled to engage in the activity. But this was turned on its head, they say, by the Supreme Court decision in the Urewera case.<br />
<br />
Baloney!<br />
<br />
Let me explain briefly.<br />
<a name='more'></a><br />
First, we need to differentiate between the two modes of video surveillance: trespassory and non trespassory. It’s a distinction drawn in the Law Commission report on surveillance and is usually understood to raise different legal issues.<br />
<br />
Trespassory surveillance involves entering private property, without permission from the occupier, to undertake covert filming. Think breaking into your house and installing a hidden camera in your lounge. <br />
<br />
Non-trespassory surveillance involves engaging in covert filming from public property or, with consent of the occupier, from private property. Think a stake-out with telescopic cameras peering into the house opposite or a hidden camera installed on a power pole tracking movements into and out of a house.<br />
<br />
And let’s acknowledge here that the surveillance in the Urewera case was all trespassory. The surveillance in question all involved the Police entering private property without permission of the occupier.<br />
<br />
So, for trespassory surveillance, let’s test the Police’s proposition -- as put by Assistant Commissioner Malcolm Burgess in the NZ Herald today -- that "Police acted on the common law assumption that if our actions were not forbidden by the law, they were therefore lawful." <br />
<br />
Now, let’s assume this common law presumption has some legal foundation. (It’s actually quite controversial, and a point judges disagreed about in the Urewera case and an earlier case, <i>Ngan v The Queen</i> [2007] NZSC 105. But let’s be benevolent and accept that it’s a fair account.)<br />
<br />
Hmmm. Spot the problem?<br />
<br />
By definition, trespassory surveillance involves a breach of the common law – it is necessarily unlawful because it involves a trespass!<br />
<br />
To avoid trespassing and breaching the law, the Police need to either obtain the consent of the occupier (unlikely here) or be authorised by law to enter that property. Hence, the usual need to obtain a search warrant – this provides the legal trump which negates the trespass.<br />
<br />
If you don’t believe me, let’s go back to the words of Lord Camden CJ from 1975. <i> Entick v Carrington </i><br />
(1765) 19 St Tr 1030 is one of the most famous legal cases – one of the first cases taught each year in both Public Law and Tort Law. He said:<br />
<blockquote>
“By the laws of England, every invasion of private property, be it ever so minute is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing. … If he admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books; and see if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no such excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment. According to this reasoning, it is now incumbent upon the defendants to shew the law, by which this seizure is warranted. If that cannot be done, it is a trespass.”</blockquote>
In other words, if agents of the state enter private property, they must demonstrate that their entry was authorised by statute law or the common law. If it is not, it is a trespass and therefore unlawful. <br />
<br />
Really quite simple and straight-forward. And known and understood for years. Centuries, in fact. And, indeed, this passage was recently adopted and re-endorsed by the Supreme Court in <i>Ngan v The Queen</i> [2007] NZSC 105.<br />
<br />
Just to recap. All the covert video surveillance in the Urewera case involved trespassory surveillance. In the absence of any legal authorisation (because Parliament had not provided any power or mechanisms to authorise such entry and conduct), it was inevitable that covert video surveillance would be found to be unlawful. Hence the key focus in the case about whether the illegally obtained evidence should be admitted regardless.<br />
<br />
Now, non-trespassory surveillance is a different kettle of fish – it isn’t inherently unlawful because there is no trespass at common law. Here, a claim about uncertainty or lack of clarity gets some traction. As the Law Commission explained:<br />
<blockquote>
“11.25 There has been little case law to date on the impact of section 21 of the Bill of Rights Act on non-trespassory surveillance. The Court of Appeal has even refrained from expressing a definitive view on whether or not non-trespassory audio and visual surveillance amount to searches or seizures for section 21 purposes. Moreover, the Court has resisted calls from defence counsel (based on European and Canadian precedents) to use section 21 as the source of a principle that non-trespassory surveillance that is not specifically authorised by statute must necessarily be unlawful. Rather, in the absence of statutory regulation, the Court has preferred to adopt a case‑by‑case assessment of reasonableness under section 21.”</blockquote>
Covert surveillance was ruled lawful in two cases: Gardiner (visual surveillance, using a long lens video camera positioned in a neighbouring property and trained on a room of the target premises) and Fraser (placing the external door of a house under video surveillance, when the area could be observed by the naked eye, from neighbouring properties). But, notably, both cases were non-trespassory.<br />
<br />
Now, to repeat, the ruling in the Urewera case related to trespassory surveillance only. Any implications for other cases will similarly be restricted to cases involving trespasssory surveillance. But there’s been no doubt, I think, about the legal position on that point. Certainly, the Police – when trespassing -- can’t just claim that if it ain’t prohibited, then it’s lawful for us to do it.<br />
<br />
Whether or not the Urewera case has any implications for non-trespassory surveillance is less clear. At best, any implications can only arise by way of obiter (tentative expression of opinion, rather than a definitive ruling). At least one judge seemed to suggest the distinction between trespassory and non-trespassory should be collapsed, and a higher standard imposed for non-trespassory surveillance. But I’m not sure that that obiter comment received majority support. <br />
<br />
And, in any event, for non-trespassory surveillance, it’s fair to say the value-judgement about whether any unlawfully obtained evidence should still be admitted will usually be different. If the actions of criminals were readily observable from public spaces or neighbouring property, then the extent of the violation of their privacy interests and other rights will be much less – meaning it is usually less likely the evidence will be excluded.<br />
<br />
<div>
<br /></div>Dean Knighthttp://www.blogger.com/profile/03069298298745322597noreply@blogger.com0tag:blogger.com,1999:blog-11340801.post-1034693102433776302011-09-20T04:45:00.002+12:002011-09-28T21:21:30.376+13:00Covert video surveillance and the (c)overt erosion of the Rule of LawThe government has just announced that, following the Supreme Court’s ruling in the Urewera case that unlawful covert video surveillance is inadmissible in criminal cases (at least in relation to some charges), it intends to pass legislation under urgency to authorise covert video surveillance by the police.<br />
<br />
<div>
The legislation is slated to authorise future surveillance -- temporarily, until comprehensive legislation addressing this and other search issues is passed next year. But it will also apply retrospectively, making unlawfully obtained evidence already obtained admissible in court, except in the Urewera case itself. In other words, the government is seeking to overturn the effect of the Supreme Court ruling by legislative decree, for both past and future cases.<br />
<br />
This move is egregious for many reasons:</div>
<div>
<br /></div>
<div>
- First, retrospective validation of unlawfulness here undermines the Rule of Law. It does not fall within the narrow range of situations where this type of validation is benign. Indeed, it is particularly pernicious because it interferes in the criminal domain, leading to people being convicted in circumstances in which they otherwise wouldn’t be found guilty.</div>
<div>
<br />
- Secondly, the basis for retrospective validation is feeble. This is not a situation of tweaking the law to reflect Parliament’s original intent or to ensure the law conforms with people’s reasonable understanding of the law. There was no legal basis for covert video surveillance, the Police were aware that covert video surveillance was not legally authorised, but they proceeded anyway. Most of the discussion in the Supreme Court case concerned whether the unlawfully obtained evidence should be admitted regardless, with little or no doubt about the fact that covert video surveillance itself was not authorised. This is not a surprise ruling which has been sprung on an unaware police force.</div>
<div>
<br />
- Thirdly, claims about the implications about the ruling on other cases are, I think, overstated. While the government claims there may be around 40 current cases which will be prejudiced by the ruling, the Supreme Court’s decision is relatively nuanced and will allow for the admission of the unlawfully obtained evidence in serious cases. Whether unlawfully obtained evidence is excluded turns of a number of factors, which, amongst other things, includes an assessment of the proportionality between the nature and extent of police impropriety and the seriousness of the alleged offences. Indeed, the Supreme Court in the Urewera case ruled that the illegally obtained covert evidence could be admitted in relation to the more serious charges of “participation in an organised criminal group” – just not in relation to the lesser Arms Act charges.</div>
<div>
<br />
- Finally, the legislation is set to be passed via a bad process – urgency once again. Retrospective legislation affecting fundamental rights and the criminal process is being passed without a public submission process. The public and learned groups should be able to carefully scrutinise and directly challenge the move while it passes through the parliamentary process.<br />
<br />
<b>The Urewera case: <i>R v Hamed</i></b><br />
Some brief background.
<br />
<br />
Earlier this month the Supreme Court determined appeals relating to the admissibility of covert video surveillance in the Urewera18 prosecutions (<a href="http://www.courtsofnz.govt.nz/cases/hamed-v-r/at_download/fileDecision"><i>R v Hamed</i> [2011] NZSC 101</a>). Rather dramatically, the Supreme Court ruled that such evidence was inadmissible in relation to 14 of the accused (those facing the less serious Arms Act charges), leading to the charges being withdrawn. However, the evidence was ruled admissible in relation to the four accused facing the more serious charges of “participation in an organised criminal group”. The key evidence in dispute was “film obtained from motion-activated hidden cameras placed by the police over a number of months on the Tuhoe-owned lands in the areas where the [military-style] exercises were expected to be held”.<br />
<br />
The Supreme Court decision is rather long, with five separate judgments which agree and disagree on various technical points and the overall evaluative judgement about admissibility. But for present purposes the gist of the decision is clear.<br />
<br />
Covert video surveillance was not and is not authorised by legislation. Search warrants obtained by the police under s 198 of the Summary Proceedings Act 1957 only authorised other types of search and seizure, not covert video surveillance. Indeed, although the police alerted the issuing judge to their intention to engage in such video surveillance, they did not seek search warrants for that purpose. The officer in charge of the case gave evidence that at the time they were aware that s 198 did not provide legislative authority to engage in covert video surveillance. <br />
<br />
All members of the Supreme Court agreed the covert video surveillance was unlawful and was not authorised by any search warrants. On the latter point, the Supreme Court disagreed with the Court of Appeal (the Court of Appeal had assumed that search warrants couldn’t be obtained for covert video surveillance but took the view that video surveillance was incidental to search warrants obtained for other investigative steps and therefore was lawful). As a consequence the video evidence was obtained unlawfully because it was obtained via trespass without any legal authorisation and also amounted to an unreasonable search and seizure under s 21 of the NZ Bill of Rights Act.<br />
<br />
The balance of decision turned on whether the unlawfully obtained evidence ought to be admitted in the criminal cases anyway. Section 30 of the Evidence Act requires judges to engage in a balancing process to decide whether improperly obtained evidence can be admitted:<br />
<blockquote>
"(2) The Judge must—<br />
(a) find, on the balance of probabilities, whether or not the evidence was improperly obtained; and <br />
(b) if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice. <br />
(3) For the purposes of subsection (2), the court may, among any other matters, have regard to the following: <br />
(a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it: <br />
(b) the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith: <br />
(c) the nature and quality of the improperly obtained evidence: <br />
(d) the seriousness of the offence with which the defendant is charged: <br />
(e) whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used: <br />
(f) whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant: <br />
(g) whether the impropriety was necessary to avoid apprehended physical danger to the Police or others: <br />
(h) whether there was any urgency in obtaining the improperly obtained evidence. <br />
(4) The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety."</blockquote>
It’s on this point that the Supreme Court judges differed.<br />
<br />
The upshot was that (by a 3-2 majority) most of the covert video surveillance evidence that was unlawfully obtained was ruled inadmissible against those only facing the lesser Arms Act charges. But (by a different 3-2 majority) this evidence was still admissible against those facing the more serious participation in a criminal group charges under the Crimes Act. (Other rulings were made about the admissibility of other video evidence (footage of vehicles travelling down a road and video evidence of the scene filming contemporaneously with physical searches), but that’s not as relevant here.)<br />
<br />
Admissibility under s 30 is ultimately a value-laden judgement depending on a number of factors. In this case, the most central factors were as follows.<br />
<br />
First, rights to property, privacy and dignity are fundamental values, enshrined in the protection against unreasonable search and seizure in s 21 of the NZ Bill of Rights Act. The unlawful trespass and associated surveillance amounted to a serious breach of these rights. The breaches were numerous (some seven occasions over 10 months).<br />
<br />
Secondly, the police impropriety was significant. While the Supreme Court did not rule they acted with bad faith, the majority indicated that the police’s attitude to the unlawfulness of the covert surveillance was at best reckless and perhaps deliberate.<br />
<br />
The Chief Justice said (para 73):<br />
<blockquote>
“In circumstances where the police officer in charge of the inquiry knew that there was no authority to be obtained for such filmed surveillance, the deliberate unlawfulness of the police conduct in the covert filming, maintained over many entries and over a period of some 10 months, is destructive of an effective and credible system of justice.”</blockquote>
Blanchard J said (para 194):<br />
<blockquote>
“But the police understood that the warrants did not authorise the video surveillance and that their conduct in relation to the video surveillance might well be legally questionable. Winkelmann J made a finding that ‘the police continued to use surveillance cameras with the knowledge, at a senior level at least, that they had no lawful authority to do so’. Despite being aware that they lacked statutory authority for the surveillance, they proceeded without taking legal advice, which they had plenty of time to obtain. Having failed to get advice, the police cannot rely on the fact that they were operating in circumstances of legal uncertainty and argue that they should be ‘cut some slack’. Their conduct was reckless in the sense that they took the risk that it might be found to be unlawful.”</blockquote>
Tipping J said (paras 233 and 235):<br />
<blockquote>
"I do not consider there is any escape from the view that the police deliberately breached the appellants’ rights. Detective Sergeant Pascoe acknowledged that he knew there was no legislative authority to install surveillance cameras. This, no doubt, is why he did not seek a warrant to do so. The Detective Sergeant did not profess to have authority from any other source. … If the breach was not deliberate it was undoubtedly reckless because, at best, the position in law was decidedly unclear and, in the very difficult and unusual circumstances facing them, the police, extraordinary as it may seem, did not obtain any legal advice. It is difficult to resist the inference that formal legal advice was not sought because the police knew or strongly suspected what the advice would be and that it would make it more difficult for them to proceed as they intended. … In view of the conclusion I have reached, it is not necessary to determine whether this state of affairs amounted to bad faith. It is enough to say that I find it impossible to hold that the police honestly believed that the video surveillance was lawfully undertaken. The various aspects of this feature point powerfully to the exclusion of the improperly obtained evidence.”</blockquote>
(McGrath J was more sympathetic towards the police about the lack of authority, a treated it as a neutral factor; Gault J expressed no view on it.)<br />
<br />
Thirdly, there was no other way for the breach of rights to be adequately remedied or for the court to formally hold the police to account for their unlawful behaviour.<br />
<br />
Fourthly, the seriousness of the situation and charges ultimately laid, along with the absence of alternative practicable investigatory techniques, supported admission of the unlawful evidence.<br />
<br />
Finally, the need to maintain an effective and credible system of justice was added to the mix. This encapsulated both “that offenders be brought to justice” and “impropriety on the part of the police should not readily be condoned by allowing evidence thereby obtained to be admitted as proof of offending” (para 187). <br />
<br />
Ultimately, it came down to the sense of proportion between these conflicting factors. Two judges said that evidence should be admitted for all charges (McGrath and Gault JJ). Two judges (Elias CJ and Tipping J) ruled the evidence should not be admitted for any charges. One judge (Blanchard J) ruled the evidence should be admitted for the more serious criminal group charges but not the lesser Arms Act charges. Hence, in the end, the charges being dropped for some charges, but not others.<br />
<br />
The important thing, though, is the nuanced approaches from all judges, assessing the proportionality between the serious of police impropriety and the serious of the criminal offending. The judges that differed took slightly different views on the assessment of seriousness and overall balance. It is the basic methodology, particularly the seriousness thresholds, that might have implications beyond this particular case because each case will generally turn on its own circumstances. <br />
<br />
<b>The legal position following the Urewera case</b><br />
Let’s recap now. As a consequence of the Supreme Court ruling, the police do not have any legal power to engage in covert video surveillance – but they knew that anyway. For investigations already undertaken, whether or not unlawfully obtained video evidence can be admitted in court depends on the context. For serious charges, it will probably still be admissible. For less serious charges, it will not be admissible. It might also turn on how significant or insignificant the degree of intrusion was and rogueness of police actions or attitudes.<br />
<br />
<b>The urgent (and retrospective) legislative fix</b><br />
So, this is where the government steps in.<br />
<br />
Cabinet has received advice that covert video surveillance – although unlawful – is systemic. The police have deployed this investigative technique widely. There are around 40 cases presently before the courts where such evidence is to be relied on, and another 50 active investigations that might be compromised without being able to engage in covert video surveillance.<br />
<br />
Hence, the intention to next week pass legislation under urgency to authorise such surveillance and to retrospectively validate such surveillance already undertaken.<br />
<br />
We haven’t yet seen the draft legislation. Nor has the advice been released. But the gist of move is apparent. (See <a href="http://www.radionz.co.nz/news/national/85615/govt-to-use-urgency-to-change-law-on-covert-filming">http://www.radionz.co.nz/news/national/85615/govt-to-use-urgency-to-change-law-on-covert-filming</a>)<br />
<br />
Now, for present purposes, I don’t quibble with legislative authorisation of covert video surveillance in future investigations (well, I have no view on whether that wise or not – but will assume that it’s wise to fill the gap). My beef is with the retrospective validation of previous unlawful actions and its effect on criminal proceedings.<br />
<br />
<b>Retrospective legislation - why its egregious and unnecessary</b><br />
Retrospective legislation is generally seen to be contrary to the Rule of Law. As the Legislative Advisory Guidelines say (<a href="http://www2.justice.govt.nz/lac/pubs/2001/legislative_guide_2000/chapter_3.html">LAC Guidelines</a>):<br />
<blockquote>
“The general principle is that statutes and regulations operate prospectively, that is, they do not affect existing situations. This principle is set out in s.7 of the Interpretation Act 1999 which provides that enactments do not have retrospective effect. … The general principle is strongest in the case of criminal liability and this is seen in particular provisions in the criminal law area, namely, s 10A of the Crimes Act 1961 and s 4 of the Criminal Justice Act 1985. Section 26 of the New Zealand Bill of Rights Act 1990 is to similar effect. Section 26 repeats New Zealand's international obligations in this area which are found in Article 15 of the International Covenant on Civil and Political Rights. At common law, there are general presumptions of interpretation which also have the effect of applying the law prospectively. Clear legislation is needed to displace these presumptions.”</blockquote>
As I’ve mentioned in the past, it is not an absolute principle though. Even the LAC Guidelines refer to situations where retrospective legislation is not objectionable:<br />
<blockquote>
“However, while the general principle is that legislation is prospective, not all examples of legislation which impacts on existing situations will be unfair (see Burrows, Statute Law in New Zealand, 1999, page 358). Examples of retrospective provisions which are seen as having only a benign effect include those which validate appointments, or provide for backdated salary and benefit payments and new superannuation arrangements. The impact of the legislation on those affected can be assessed by considering a range of factors including the purpose of the legislation and the hardship of the result on those affected. For example, individuals may have a reasonable expectation based on entering into legal obligations, such as contracts, on the basis that the law will have a certain impact.”</blockquote>
The question here is whether it is justified. For a number of reasons, I think resort to retrospective legislation is unnecessary and egregious.<br />
<br />
First, retrospective validation here does not fall within the narrow range of situations where this type of validation is benign. Indeed, it is particularly pernicious because it interferes in the criminal domain, leading to people being convicted in circumstances in which they otherwise wouldn’t be found guilty.<br />
<br />
Secondly, the basis for retrospective validation is feeble. This is not a situation of tweaking the law to reflect Parliament’s original intent or to ensure the law conforms with people’s reasonable understanding of the law. As we can see from the Supreme Court case, there was no legal basis for covert video surveillance, the Police were aware that covert video surveillance was not legally authorised, but they proceeded anyway.<br />
<br />
Further, the lack of any legal foundation for covert video surveillance was addressed by the Law Commission in its comprehensive report on search and seizure powers in 2007 (<a href="http://www.lawcom.govt.nz/project/search-and-surveillance-powers?quicktabs_23=report">Law Commission, “Search and Surveillance Powers”, ch 11</a>):<br />
<blockquote>
“11.9 Other than the general prohibition on unreasonable search and seizure in section 21 of the Bill of Rights Act, New Zealand statute law has not sought to deal with the field on any comprehensive basis. In particular, there is virtually no statutory regulation of visual or video surveillance or other non-auditory forms of surveillance.”</blockquote>
Most of the detailed discussion focuses on the “non-trespassory surveillance”, that is, video surveillance that does not involve entry onto some other person’s land without their consent. You will recall that all the covert video surveillance in the Urewera case was worse – it took place on private land not visible from any public land, that is, it was trespassory.<br />
<br />
But even in relation to non-trespassory surveillance the Law Commission noted the risk of findings of unlawfulness:<br />
<blockquote>
"11.25 There has been little case law to date on the impact of section 21 of the Bill of Rights Act on non-trespassory surveillance. The Court of Appeal has even refrained from expressing a definitive view on whether or not non-trespassory audio and visual surveillance amount to searches or seizures for section 21 purposes. Moreover, the Court has resisted calls from defence counsel (based on European and Canadian precedents) to use section 21 as the source of a principle that non-trespassory surveillance that is not specifically authorised by statute must necessarily be unlawful. Rather, in the absence of statutory regulation, the Court has preferred to adopt a case‑by‑case assessment of reasonableness under section 21.”</blockquote>
Indeed, it echoed the Court of Appeal’s recommendation that the matter be addressed by legislation:<br />
<blockquote>
"11.41 From cases such as Gardiner it can be inferred that the Court of Appeal is of the view that the whole field of audio and visual surveillance could usefully be the subject of statutory regulation. Gardiner involved visual surveillance, using a long lens video camera positioned in a neighbouring property and trained on a room of the target premises. While the Court of Appeal held that in the particular circumstances of that case the surveillance was not unreasonable for Bill of Rights Act purposes, it nonetheless took the opportunity to state: 'Parliament has not yet chosen to legislate on the subject of video surveillance as it has done for the use of devices enabling interception of private communications: … The situation may be thought to be unsatisfactory for the police as well as the citizen. The police may invest substantial time and resources in such a surveillance operation, unable to obtain authorisation because there is no power for anyone to grant it, but exposed to the risk that afterwards a Judge may hold their actions, in a relatively untested field, to be an unreasonable search.’”</blockquote>
The Search and Surveillance Bill currently before Parliament explicitly addresses this (<a href="http://www.parliament.nz/en-NZ/PB/Legislation/Bills/8/9/a/00DBHOH_BILL9281_1-Search-and-Surveillance-Bill.htm">Search and Surveillance Bill 2009</a>). The Explanatory Note explains:<br />
<blockquote>
“The law has also failed to keep pace with technology. Criminals have increasingly been able to use computers and other electronic devices to commit or facilitate illegal activity. The Bill provides for the appropriate legislative powers to enable law enforcement and regulatory agencies to extract electronic information and use surveillance devices in order to investigate and combat criminal activity.”</blockquote>
Part 3 of the Bill proposes an explicit regime authorising “surveillance device warrants”, including covert video surveillance. This issue was also at the forefront of the mind of the Select Committee considering the Bill – the proposed regime was specifically mentioned and varied in its reports issued in August and November 2010.<br />
<br />
So, the ruling in the Urewera case is not a surprise ruling which has been sprung on an unaware police force. It’s a lacuna which has been identified previously. And Parliament has been working on fixing any gap over the last two years.<br />
<br />
Thirdly, claims about the implications about the ruling on other cases are, I think, overstated. While the government claims there may be around 40 current cases which will be prejudiced by the ruling, the Supreme Court’s decision is relatively nuanced and will allow for the admission of the unlawfully obtained evidence in serious cases.<br />
<br />
As explained earlier, whether unlawfully obtained evidence is excluded turns of a number of factors, which, amongst other things, includes an assessment at the proportionality between the nature and extent of police impropriety and the seriousness of the alleged offences.<br />
<br />
This contextual approach to admissible means the decision is not the opening of the gates to allow criminals to avoid prosecution. In all likelihood, the unlawfully obtained evidence will still be able to be used against criminals facing serious charges – or the “serious criminal offending” that the Prime Minister is worried about. Proportionality is the key.<br />
<br />
Notably, I think, the Supreme Court ruling admitted the unlawful evidence for charges in relation to the offence of participation in an organised criminal group. I suspect this is one of the key charges used against gang drug cartels and the like, where, again I suspect, covert video surveillance is probably deployed . It seems unlikely therefore that the Supreme Court ruling will undermine those types of investigations.<br />
<br />
<b>And doubly bad when passed under urgency</b><br />
Finally, the legislation is set to be passed via a bad process – urgency once again. The objections to this are well-known and have been canvassed here before.<br />
<br />
In this case were are talking about retrospective legislation affecting fundamental rights and the criminal process is being passed without a public submission process. The public and learned groups should be able to carefully scrutinise and directly challenge the move while it passes through the parliamentary process.<br />
<br />
As a minimum, the government ought to open up the move to a week’s public submission, allowing people like the Legislation Advisory Committee, the NZ Law Society and others who are expert in the area to advise MPs on the necessity or otherwise for retrospective legislation and any other problems that may arise from this rushed move. The sky won’t fall in the meantime; rulings in the other cases are unlikely to be rushed through before legislation is passed. And if a case is made for retrospective legislation, then it will trump anyways.<br />
<br />
<b>A footnote - the Rule of Law as a vulnerable constitutional norm</b><br />
In closing, it is worry how often these Rule of Law issues need to be raised nowadays. And equally worrying is how often they are dismissed by the government and largely ignored by the general populous. Each time I am reminded of the remarks from one of our leading constitutional scholars about the vulnerability of the Rule of Law in New Zealand’s constitutional culture (M Palmer, “New Zealand’s Constitutional Culture” (2007) 22 NZULR 565:<br />
<blockquote>
"To the extent that [the rule of law] requires valuing the role and voice of the judiciary compared to elected politicians then ... it is not well entrenched in New Zealand constitutional culture. It is not clear to me that the norm of the rule of law and judicial independence is reinforced by New Zealand constitutional culture. ... There are regular examples of behaviour by governments that could be characterised as breaches of elements of the rule of law. ... While the legal and judicial establishment is a forceful source of support for the constitutional principle of the rule of law, to a realist, its power is ultimately dependent on popular understanding and support. In my view the rule of law, supported by the principle of judicial independence, is and should be a cornerstone of New Zealand’s constitution. In terms of my formulation of the notion, it is a key constitutional instrument by which the coercive powers of the state can be contained. But I sound a word of warning to the legal establishment. I am not confident that New Zealanders currently understand the rule of law or, in a crunch, would necessarily stand by it as a fundamental constitutional norm. ... The rule of law and judicial independence is not reinforced by a New Zealand cultural value. Neither is this surprising given its lack of academic and legal articulation. Without academic and judicial clarification of the meaning and importance of the concept of the rule of law and judicial independence, and some concrete event or debate that generates public appreciation and regard for it, I believe the rule of law is a vulnerable constitutional norm in New Zealand."</blockquote>
We, as a country, should be embarrassed by this.</div>Dean Knighthttp://www.blogger.com/profile/03069298298745322597noreply@blogger.com5tag:blogger.com,1999:blog-11340801.post-2715363405377891412011-09-15T07:47:00.001+12:002011-09-15T10:37:44.223+12:00Nationalisation of RWC party central?<br />
<div class="MsoNormal">
<span lang="EN-NZ">Much has been made of Murray McCully’s
so-called “nationalisation” of the waterfront for RWC party central, through
the exercise of reserve powers under the special legislation for the Rugby
World Cup. <o:p></o:p></span></div>
<div class="MsoNormal">
<span lang="EN-NZ"><br /></span></div>
<div class="MsoNormal">
<span lang="EN-NZ">The legal position is, however, very different. While some regulatory approvals for standard
event-based activities may be fast-tracked through a special process under the
RWC 2011 (Empowering) Act, the RWC Act does not give the Minister the ability
to “take control” of the waterfront. The
Minister’s statutory role is reactive only, namely, considering applications
made to and assessed by the independent RWC Authority. Any ability for the
government to “take the lead” on the party central activities must have been
garnered collaboratively, and does not come from the exercise of power under
the RWC Act.<o:p></o:p></span></div>
<div class="MsoNormal">
<span lang="EN-NZ"><br /></span></div>
<div class="MsoNormal">
<span lang="EN-NZ">In any event, the applications presently being
made urgently are conjoint applications from the Ministry of Economic
Development and the Auckland Council’s events team. These applications were, I understand, in the
process of being prepared collaboratively before the Minister’s announcement. And
the fast-tracked approvals currently being sought are largely mundane.<o:p></o:p></span></div>
<div class="MsoNormal">
<span lang="EN-NZ"><br /></span></div>
<div class="MsoNormal">
<span lang="EN-NZ">Finally, I think McCully may well be forced
to relinquish that power to sign-off the applications to some other minister,
because his actions may have predetermined the outcome and created a disqualifying
conflict of interest.<o:p></o:p></span></div>
<div class="MsoNormal">
</div>
<div class="MsoNormal">
</div>
<a name='more'></a>First, let’s be clear about what the RWC
Act allows and what it doesn’t.<br />
<div class="MsoNormal">
<span lang="EN-NZ"><br /></span></div>
<div class="MsoNormal">
<span lang="EN-NZ">The RWC was passed late last year to
provide for special procedures for regulatory approvals for RWC activities and
liquor licences. An independent RWC Authority (chaired by former judge, Sir
Bruce Robertson and joined by a number of experts) was constituted to consider
applications.<o:p></o:p></span></div>
<div class="MsoNormal">
<span lang="EN-NZ"><br /></span></div>
<div class="MsoNormal">
<span lang="EN-NZ">For some time, anyone seeking approval or
consent (or declaration of permitted activity status) for a RWC activity that
could not reasonably be obtained in time under the usual processes could apply
through the special fast-tracked process. <o:p></o:p></span></div>
<div class="MsoNormal">
<span lang="EN-NZ"><br /></span></div>
<div class="MsoNormal">
<span lang="EN-NZ">Such applications were still subject to a
formal, but expedited, participatory processes.
They were determined by the RWC Authority, rather than the local
authority or agency usually responsible.
Numerous such applications have been granted by the RWC Authority.<o:p></o:p></span></div>
<div class="MsoNormal">
<span lang="EN-NZ"><br /></span></div>
<div class="MsoNormal">
<span lang="EN-NZ">The legislation also provided for an even
more expedited process “in circumstances of urgency that, for good reason, were
not foreseen”. A higher threshold was required
(necessary to “secure public safety”, to “avoid seriously compromising” the
RWC, or to “provide support for” RWC organisers). <o:p></o:p></span></div>
<div class="MsoNormal">
<span lang="EN-NZ"><br /></span></div>
<div class="MsoNormal">
<span lang="EN-NZ">A different, and more expedited, process
was provided for. Rather than being determined by the RWC Authority, the RWC
Authority only assesses the application and makes an recommendation to the
Minister for the RWC. There is no
obligation to subject the application to a participatory process.<o:p></o:p></span></div>
<div class="MsoNormal">
<span lang="EN-NZ"><br /></span></div>
<div class="MsoNormal">
<span lang="EN-NZ">The decision about whether the approval
should be granted then falls to the Minister for the RWC. He must consult the Minister for Economic
Development and other relevant Ministers.
He must take account of (but is not bound by) the recommendation of the
RWC Authority. His decision is final. <o:p></o:p></span></div>
<div class="MsoNormal">
<span lang="EN-NZ"><br /></span></div>
<div class="MsoNormal">
<span lang="EN-NZ">(If the application is for a declaration
that something is a permitted activity, the Minister formally recommends to the
Governor-General that regulations be promulgated confirming the activity is
permitted. But otherwise the application
for consent is merely approved by the Minister.) <o:p></o:p></span></div>
<div class="MsoNormal">
<span lang="EN-NZ"><br /></span></div>
<div class="MsoNormal">
<span lang="EN-NZ">That’s all.
They are the only “special” powers under the RWC Act. The Act does not provide any power to assume
control over or nationalise events. The
Minister’s role is reactive, as ultimate decision-maker, once an urgent application
is made. And then only after the independent RWC Authority has scrutinised it.<o:p></o:p></span></div>
<div class="MsoNormal">
<span lang="EN-NZ"><br /></span></div>
<div class="MsoNormal">
<span lang="EN-NZ">Secondly, we can see these powers in action
by looking at what has been applied for in the most recent application. The application is a joint one, between the Ministry
of Economic Development and Auckland Council’s events unit. MED is seeking permission to use Captain Cook
Wharf for fanzone events and Auckland Council are seeking to extend the existing
liquor licence over the Wharf. <o:p></o:p></span></div>
<div class="MsoNormal">
<span lang="EN-NZ"><br /></span></div>
<div class="MsoNormal">
<span lang="EN-NZ">The MED application is totally
mundane. As the Coastal Plan limits the
activities that can be undertaken on port land, permission is needed under the
Resource Management Act to engage in non-port activities, to install temporary
structures like viewing screens, small stage facility, food and beverage
kiosks, toilet facilities and temporary fencing, and (only by way of caution)
to exceed noise controls. This is
standard event stuff. But the usual RMA
process wouldn’t enable it to be considered in time, hence the resort to the
special expedited process under the RWC Act.
<o:p></o:p></span></div>
<div class="MsoNormal">
<span lang="EN-NZ"><br /></span></div>
<div class="MsoNormal">
<span lang="EN-NZ">The same goes for the Auckland Council’s
application to extend its existing liquor licence. (As an aside, I don’t see any special power
to expedite liquor licence applications or for an applicant to apply to vary
the condition of the licence. But I
stand corrected.)<o:p></o:p></span></div>
<div class="MsoNormal">
<span lang="EN-NZ"><br /></span></div>
<div class="MsoNormal">
<span lang="EN-NZ">The RWC Authority is considering both
applications following a very brief period for public submissions and is holding
a public hearing today.<o:p></o:p></span></div>
<div class="MsoNormal">
<span lang="EN-NZ"><br /></span></div>
<div class="MsoNormal">
<span lang="EN-NZ">Thirdly, it’s clear from the application to
the RWC Authority that an application is being made to Auckland Transport /
Auckland Council to also temporarily close Quay Street to provide access and </span></div>
<div class="MsoNormal">
<span lang="EN-NZ">egress. <o:p></o:p></span></div>
<div class="MsoNormal">
<span lang="EN-NZ"><br /></span></div>
<div class="MsoNormal">
<span lang="EN-NZ">The Council has the power to temporarily
close roads under s 342 and Schedule 10 of the Local Government Act 1974. (I
think, given the Auckland Council reforms, these powers have been vested in
Auckland Transport, but I haven’t traced it through the legislation.) <o:p></o:p></span></div>
<div class="MsoNormal">
<span lang="EN-NZ"><br /></span></div>
<div class="MsoNormal">
<span lang="EN-NZ">If closure is needed for an event, public
notice of intention to close the road is needed. If closure is “during a period when public
disorder exists or is anticipated”, no notice is needed. Again, standard stuff.
And no need to resort to the special RWC Act.<o:p></o:p></span></div>
<div class="MsoNormal">
<span lang="EN-NZ"><br /></span></div>
<div class="MsoNormal">
<span lang="EN-NZ">Finally, returning to the Minister’s
special power to approve urgent applications under the RWC Act. It’s a basic principle of administrative law
that decision-makers exercising statutory powers must keep an open mind and
must not predetermine the outcome of applications (especially where the
legislation directs them to consider certain matters and consult other
people). That ensures applications are
properly considered and there is no conflict of interest. In rare cases, the legislation might
implicitly authorise or contemplate a certain decision-maker making a decision
even when they have a conflict of interest, but I don’t think that applies
here. <o:p></o:p></span></div>
<div class="MsoNormal">
<span lang="EN-NZ"><br /></span></div>
<div class="MsoNormal">
<span lang="EN-NZ">Now, there’s a live question about whether
McCully’s directives and public statements mean he has compromised his ability
to personally consider the urgent applications.
It’s fair to say, I think, his conduct and statements mean he is now
incapable of independently and dispassionately considering the very
applications he has directed and championed.
<o:p></o:p></span></div>
<div class="MsoNormal">
<span lang="EN-NZ"><br /></span></div>
<div class="MsoNormal">
<span lang="EN-NZ">In such circumstances, s 7 of the
Constitution Act 1986 allows another Minister to exercise that power (see also
cl 2.70(c) of the Cabinet Manual). It
will be interesting to see if this happens.</span></div>
<div class="MsoNormal" style="line-height: normal; margin-bottom: .0001pt; margin-bottom: 0cm; mso-layout-grid-align: none; text-autospace: none;">
<br /></div>
<div class="MsoNormal">
<span lang="EN-NZ">- <a href="http://www.legislation.govt.nz/act/public/2010/0123/latest/whole.html#DLM3027812">Rugby
World Cup 2011 (Empowering) Act 2010</a><br />
- <a href="http://www.rwcauthority.govt.nz/?p=1621">Application to the RWC
Authority (Captain Cook Wharf)</a><o:p></o:p></span></div>
<div class="MsoNormal">
<span lang="EN-NZ">- <a href="http://www.legislation.govt.nz/act/public/1974/0066/latest/DLM415532.html">Local
Government Act 1974</a> <o:p></o:p></span></div>Dean Knighthttp://www.blogger.com/profile/03069298298745322597noreply@blogger.com0tag:blogger.com,1999:blog-11340801.post-62341576882244334072011-07-08T09:10:00.002+12:002011-07-08T09:11:46.654+12:00Freedom... from unnecessary legislation?The Local Government and Environment Select Committee is currently hearing submissions on the <a href="http://www.legislation.govt.nz/bill/government/2011/0306/latest/whole.html#dlm3742815">Freedom Camping Bill,</a> a Bill which will enable local authorities to pass bylaws to prohibit freedom camping in designated areas and to issue infringement notices to people who breach the prohibition. Others have criticised Bill for a number of reasons. <br />
<br />
But my beef with the Bill is that it is, I think, unnecessary and another instance of ad-hocery creeping into the local government legal framework. First, local authorities already have an existing power that enables them to pass such bylaws. Secondly, there is an existing power in the Local Government Act 2002 that allows specific bylaw offences to be designated infringement offences. The claimed mischief that has been advanced to justify the Bill just isn't there.<br />
<br />
<a name='more'></a>To explain, local authorities presently have the power to pass bylaws prohibiting freedom camping under the generic bylaw-making power in the LG Act 2002, s 145:<br />
<blockquote>
<b>145 General bylaw-making power for territorial authorities</b><br />
A territorial authority may make bylaws for its district for 1 or more of the following purposes:<br />
(a) protecting the public from nuisance:<br />
b) protecting, promoting, and maintaining public health and safety:<br />
(c) minimising the potential for offensive behaviour in public places.</blockquote>
Indeed, many local authorities have already passed such bylaws.<br />
<br />
So it's really a problem of enforcement? "[A]ny breaches of local authority camping bylaws ... can only be proceeded against through the courts", they say. "Pursuing offenders through the courts is not a cost effective response to the problems experienced, and is rarely used by local authorities."<br />
<br />
Well, yes and no. Yes, ordinary prosecutions are expensive. No, because the government can quite easily pass regulations designating those offences as infringement offences:<br />
<blockquote>
<b>259 Regulations</b>(1) The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for 1 or more of the following purposes:<br />
(a) prescribing breaches of bylaws that are infringement offences under this Act:<br />
(b) prescribing infringement fees (not exceeding $1,000) for infringement offences:<br />
(c) prescribing infringement notice forms:
</blockquote>
Again, a number of bylaw offences have been designated infringement offences. See for example <a href="http://www.legislation.govt.nz/regulation/public/2006/0069/latest/DLM374268.html">Local Government (Infringement Fees for Offences: Wellington Regional Navigation and Safety Bylaws) Regulations 2006</a>. So, no real problem with enforcement either under the existing legal regime, if the government uses the tools presently available to it.<br />
<br />
To be fair, the <a href="http://www.doc.govt.nz/upload/documents/about-doc/role/legislation/freedom-camping-ris.pdf">Regulatory Impact Statement </a>for the Bill acknowledges these options. But it is, in my view, too quick to dismiss the existing legal regime as providing a viable solution.<br />
<b></b><br />
<blockquote>
<b>Option 2 - Use the LGA02 to designate bylaw breaches as infringement offence</b>
<br />
19. This option considered making regulations under section 259 of the LGA02 to designate specific bylaw breaches as infringement offences.<br />
20. Section 259 of the LGA02 provides that regulations can be made to designate specific bylaw breaches as infringement offences. Regulations would prescribe the level of infringement fee (not exceeding $1,000), and the form of the prescribed infringement notice. Local authority bylaws would need to meet the legislative requirements.
<br />
21. There are three drawbacks to this approach. First, regulations made under section 259 would require ongoing maintenance to allow for the inclusion of new and amended council bylaws. Sections 158 and 159 of the LGA02 require bylaws to be reviewed five years after they are made and then every ten years. The infringement offence would not be available during any time-lag between a new bylaw taking effect and amending the regulation.
<br />
22. Second, infringement notices issued under regulations made under section 259 of the LGA02 cannot be issued to a vehicle. Instead, infringement notices must be issued to the offender in person. This will hamper the ability to issue infringement notices where vehicles are not attended and the offenders are not present.
<br />
23. Finally, regulations made under section 259 would only apply to local authority land, and not to conservation land. Therefore, this option does not offer national consistency.</blockquote>
Well, let's deal with those "drawbacks".<br />
<br />
First, "ongoing maintenance" is hardly a burden. It involves promulgating a regulation now, and passing further regulations as and when any new bylaws are passed or reviewed. Indeed, Schedule 3 of the Bill lists existing (and future) bylaws in the same way the regulation would. Further, the time-lag problem is overstated. This only arises every 5 or 10 years, and then can be addressed with some simple forward planning and coordination - or designating future bylaws generically.<br />
<br />
Secondly, the RIS fudges the problem about needing to issue an infringement notice to an offender in person. Actually, the Bill doesn't even enable the infringement notice to be "issued to a vehicle". The Bill does allow an infringement notice to be issue to the person breaching the prohibition <i>or</i> the registered owner of the vehicle <i>or </i>the person legally entitled to possession of the vehicle. But, local authority bylaws could provide for the same type of liability, by providing that the owner or person in possession commit bylaw offences in similar circumstances. And, there's no practical enforcement problems because there is no legal requirement an offender be caught in the act (LG Act 2002, s 245(1)) and need to be personally serve an offender (LG Act 2002, s 245(2)). (By the way, if even greater flexibility on service of notices is needed, then that might be a useful generic amendment to the LG Act 2002.)<br />
<br />
Finally, "national consistency" would be undermined as the regime would not apply to DOC land? Well, the RIS acknowledges that DOC already has the power to pass similar bylaws (but no infringement offence power). DOC acknowledges, though, that "most camping on conservation lands is by backcountry users who follow accepted practice and do not create problems." So, what's the problem then?<br />
<br />
Hmmm. All in all, this is a pretty weak claim for a need for immediate legislative action. <br />
<br />
Existing legal tools are, in fact, pretty well placed to address the claimed mischief. There's no need to develop and promulgate an entirely new - and complicated - legal regime. It undermines the attempts to consolidate and harmonise such matters in local government reforms in the early 2000s.<br />
<br />
But most of all this type of policy approach is rather odd coming from a government that has <a href="http://www.beehive.govt.nz/release/outdated-regulations-binned">proclaimed a crusade on "unneeded rules and laws"</a>...Dean Knighthttp://www.blogger.com/profile/03069298298745322597noreply@blogger.com0tag:blogger.com,1999:blog-11340801.post-58382125589047675912011-06-19T01:36:00.000+12:002011-06-19T01:36:12.781+12:00Same-sex prom kings, cornrows and school rulesI've been following with interest, and some dismay, the coverage of St Pat's decision to prevent boys from taking other boys to the school ball:<br />
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<a href="http://www.stuff.co.nz/national/education/5141547/School-denies-pupil-bringing-boy-to-ball">- DomPost: "School denies pupil bringing boy to ball"</a><br />
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The School's position was invidious, mean-spirited, unjustified and - I think - unlawful.<br />
<br />
<a name='more'></a>Other commitments mean I haven't had the time to analyse the legal position (other than via some short exchanges on the Facebook). But it's fair to say the question is actually quite tricky for a number of reasons:<br />
- Is the exclusion discriminatory (particularly in the light of the Court of Appeal's plainly erroneous, but binding, position in <i>Quilter</i> on same-sex couples and discrimination on the basis of sexual orientation)?<br />
- Which discrimination norms cover the situation: the Bill of Rights or the Human Rights? What is the status of an integrated school under there instruments? To what extent does running a school ball a public function? Do any the HRA exceptions apply?<br />
- If it's indirect discrimination under the HRA, or discrimination under s 19 of the Bill of Rights, is such discrimination justified?<br />
- Does the rule have a legitimate objective (preventing incidents between current boys and old boys or boys from other schools)? Is the discriminatory rule the best (or a reasonable) way of addressing the problem?<br />
- Could the rule be justified on other grounds, such as religious beliefs (esp in relation to an integrated school)? <br />
- To what extent should a court or supervising body respect the judgement of a governing school board on such matters?<br />
- Is the rule unlawful on common law grounds as the rigid application of a policy? <br />
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Anyway, even with these tricky hurdles to navigate, I think the position probably ends up being unlawful. You just have to trust me on that...<br />
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But, in lieu of detailed analysis, can I offer up a decision of the High Court of England and Wales from late this week: a case ruling that a school policy preventing boys from wearing cornrows was unlawful:<br />
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- <a href="http://www.guardian.co.uk/uk/2011/jun/17/school-ban-cornrow-braids-discrimination">Guardian: "School's refusal to let boy wear cornrow braids is ruled racial discrimination"</a><br />
- <a href="http://www.bailii.org/ew/cases/EWHC/Admin/2011/1452.html"><i>SG v St Gregory's Catholic Science College</i> [2011] EWHC 1452 (Admin) (17 June 2010)</a><br />
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There's some analogy - I think - between the well-intentioned, but indirectly discriminatory, rules in both cases. <br />
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PS I probably should confess that it was a case involving the unlawful application of school rules (not involving me!) that in part led to me being at law school and developing my passion for law: <i>M & R v Syms and the Board of Trustees of Palmerston North Boys High School</i> [2003] NZAR 705...Dean Knighthttp://www.blogger.com/profile/03069298298745322597noreply@blogger.com0tag:blogger.com,1999:blog-11340801.post-50253185713098549262011-05-06T03:41:00.000+12:002011-05-06T03:41:29.693+12:00TELEGRAM FROM LONDON: I love voting but...<br />
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhXV2o5Kji2GNk4B5FC7JDMI_S8zQ_2q1uxCOACFKHsSVdQYw9EHHltSl2JZwZ-RAtTjL1pa0KLK6PhSrns0VTqqmy9ObIfTkdKv0SqJwTBPQFxFRWFoFz6XffSnoOfNwqezy2aAg/s1600/IMG_0197.JPG" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="148" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhXV2o5Kji2GNk4B5FC7JDMI_S8zQ_2q1uxCOACFKHsSVdQYw9EHHltSl2JZwZ-RAtTjL1pa0KLK6PhSrns0VTqqmy9ObIfTkdKv0SqJwTBPQFxFRWFoFz6XffSnoOfNwqezy2aAg/s200/IMG_0197.JPG" width="200" /></a><span class="messageBody">Today, I wandered down the road with the intentions of casting a Yes vote for AV in UK's referendum on electoral systems. However, I ended up only have a flat white in a local cafe instead. Sigh.</span><br />
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<span class="messageBody"></span><span class="messageBody">While I am entitled and registered to vote, I couldn't, in good conscience, express my preference. The choice in this referendum is about the long-term political and constitutional affairs of a country and community in which I am an alien. </span>It's therefore a choice for locals, not interlopers like me.<br />
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiTpQMg74pQgLAazgE2dO2pen_PW8BNtng2BtatkiouTzu279w1COj2QaR3mgoBneWpSBHVvQGKZXNw7unvQSz_sFfjKnlj_rmaLIBPBwhyEgAfA3C1DRNHu3v37zmVurJhMA7TAg/s1600/IMG_0201A.jpg" imageanchor="1" style="clear: right; display: inline !important; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="200" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiTpQMg74pQgLAazgE2dO2pen_PW8BNtng2BtatkiouTzu279w1COj2QaR3mgoBneWpSBHVvQGKZXNw7unvQSz_sFfjKnlj_rmaLIBPBwhyEgAfA3C1DRNHu3v37zmVurJhMA7TAg/s200/IMG_0201A.jpg" width="149" /></a>Anyways, for those interested in the referendum itself, I did find this pod-cast by Johann Hari interesting and amusing:<br />
- <a href="http://www.mixcloud.com/TheIndependent/the-johann-hari-podcast-episode-13-the-avs-vs-the-av-nots">http://www.mixcloud.com/TheIndependent/the-johann-hari-podcast-episode-13-the-avs-vs-the-av-nots</a>/Dean Knighthttp://www.blogger.com/profile/03069298298745322597noreply@blogger.com0