"Elephants and the Law" by Dean Knight

Seasonal Messages: Compare and Contrast

2012-01-03T01:49:00.000+13:00

Take 1:

Take 2:

Enough said.

TID-BIT: Cabinet Collective Responsibility and Ministers Outside Cabinet

2011-12-06T10:22:00.000+13:00

So, the Dominion Post reports ("Banks, Dunne strike a deal with National"):

"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."

No. Not quite.

The position on this has been settled for a number of years now,* and is more nuanced than that.

1. The general rule is that Ministers, whether full Ministers or Associate Ministers or Ministers in or outside Cabinet, are bound by collective responsibility.

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.

As the Cabinet Manual and applicable Cabinet Circular record:

"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."

The confidence and supply agreement just agreed between National and United reflects this:

"Collective responsibility
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.
In other areas "agree to disagree" provisions will be applied as necessary.
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."

In other words, selective collective responsibility applies. A subtle, but important, difference.

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.

* I have earlier suggested 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.

Sharples and Turia appointed as Tohunga Kaitohutohu – perhaps?

2011-11-29T07:18:00.001+13:00

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

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

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

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.

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).

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).

Ministerial positions, even outside Cabinet, still emphasize unity, over distinctiveness.

But what are its other options?

Traditional Westminster-style Executive positions, such as Parliamentary Under-Secretaries, seem in-apt (see http://cabinetmanual.cabinetoffice.govt.nz/2.45) So too with (the non-Executive positions of) Parliamentary Private Secretaries (http://cabinetmanual.cabinetoffice.govt.nz/2.49).

And the Greens-style memorandum of understanding seems to favour distinctiveness too much (see http://media.nzherald.co.nz/webcontent/document/pdf/National%20and%20Green's%20agreement.pdf)

One of the other options is the cooperation agreement agreed between the Greens and Labour in 2005 (see http://www.beehive.govt.nz/sites/all/files/Green.pdf). 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.)

I wonder if something closer to this type of arrangement – tweaked a little – would suit the Māori Party better?

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.

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.

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.

At the end of the day, managing the unity--distinctiveness dilemma is the key to coalition management nowadays.

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 http://www.laws179.co.nz/2011/02/revolution-of-collective-responsibility.html.)

Perhaps it's time for it to evolve even further. Just a thought.

Governments in transition – some constitutional FAQs

2011-11-25T15:50:00.000+13:00

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

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

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

Who will the Governor-General appoint as Prime Minister?
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".

That's the goal. That's the be-all and end-all for a wannabe Prime Minister.

What is meant by the phrase "command the confidence of the House"?
Confidence is the life-blood of any government. It's often expressed in negative terms:

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.

The important votes are:
- 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);
- 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);
- other votes on Bills and other matters declared by the government to raise questions of confidence.

* 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…

http://www.parliament.nz/en-NZ/AboutParl/HowPWorks/PPNZ/8/0/d/00HOOOCPPNZ_71-Chapter-7-Parties-and-Government.htm#_Toc268508515

How does the government ensure it commands the confidence of the House?
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.

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).

Under multi-party government usually seen under MMP, the way confidence is obtained and assured has become relatively settled.

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.

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.

For the current set of agreements see:
http://www.parliament.nz/en-NZ/MPP/Parties/National/b/b/b/00PlibMPPNational1-National-Party.htm

How does the Governor-General decide who should be appointed Prime Minister?
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.

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.

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.

How long does the process take and is there a time limit?
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.

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).

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.

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.

As an aside, Belgium still does not have a government after its election in June 2010 – a world record!

What happens if a government can't be formed?

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.

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.

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.

http://cabinetmanual.cabinetoffice.govt.nz/6.56

Which party gets first go at forming a government?
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.

Importantly, the highest polling party does not have any special constitutional position (unless they secure an absolute majority). As Sir Michael Hardie-Boys explained:

"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."

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.

I know this raises some eyebrows. But I think of it like a game of rugby.

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.

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.

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.

How soon can a new Prime Minister be appointed?
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.

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.

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.

What's the significance of the swearing in of the Prime Minister?
The ceremonial marks the constitutional.

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.

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.

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.

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.)

What happens to MPs after polling day?
A little quirk of our system is that, for a number of days after the election, we have no MPs!

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.

In between those dates, we don't have any MPs (although Ministers still retain their ministerial warrants (see below).

http://www.legislation.govt.nz/act/public/1993/0087/latest/whole.html#DLM308529

What's this caretaker convention?
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.

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.

The constitutional compromise is the caretaker convention.

The incumbent government remains in power with lawful executive authority to act. However, under the caretaker convention, their ability to act constrained:
- 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;
- 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.

The caretaker convention therefore ensures that any decision made during the transition period has a democratic mandate.

* 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.

http://cabinetmanual.cabinetoffice.govt.nz/6.16
http://www.legislation.govt.nz/act/public/1986/0114/latest/DLM94219.html#DLM94219

Where do we find these conventions?
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.

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.

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.

http://gg.govt.nz/resources/media/speeches/constitutional?page=1
http://cabinetmanual.cabinetoffice.govt.nz/6.36

Reading the tea leaves: the declaratory judgment application

2011-11-18T07:37:00.002+13:00

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

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

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.

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:
(a) whether the taping was intentional; and
(b) whether the "should reasonably expect eavesdroppers" exception in the definition of private communication applies.

The wise money seems to be on"it depends".

(For what it's worth, my thoughts are:
(a) Don't know. This is largely factual and a matter of credibility.
(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.

And:
(c) There may be temporal problems in matching any mens rea (intention) and actus reus (the critical act causing the interception);
(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.

But that's by-the-bye.)

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.

Let me explain.

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:

"s 3 Declaratory orders on originating summons
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…"

So, on its face, questions of legality could be settled by the Court under this power.

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:

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 Omaha Beach Residents Society v GNS Trust Ltd [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.

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 Woolworths (New Zealand) Ltd v Attorney-General [2001] 3 NZLR 123 and Auckland Area Health Board v Attorney-General [1993] 1 NZLR 235). Further, note the Supreme Court's recent decision, Mandic v The Cornwall Park Trust Board [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.

Tricky.

Hard to know what way a judge will go.

I said, though, that I think the judge probably should issue a declaration, to the extent they can on the evidence presented.

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.

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.

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.)

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.

Regardless, it will be very interesting to see how the court rules.

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).

Tinkering with the line of succession

2011-10-30T11:25:00.000+13:00

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.

The change was heralded by David Cameron in a speech at CHOGM:

“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.”

Hmmm. I think we’re meant to be excited by this.

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.

But there is still much wrong with a system that sees a British monarch automatically assuming the highest constitutional office in New Zealand.

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.

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.

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.

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.

Let’s be clear about that. Even with these changes, no Kiwi – Pakeha, Maori, Asian, Pacifika – will be our head of state.

Go back to Cameron’s speech and replay it with a Kiwi lens:

“Attitudes have changed fundamentally over the centuries and some outdated rules, like some of the rules ~~on succession~~ who can be New Zealand's Head of State, just don't make sense to us anymore: the idea that someone born to a particular British family ~~younger son~~ should become ~~monarch~~ our Head of State instead of ~~an elder daughter simply because he's a man~~ someone born in Westmere, Wairoa, or Winton, or that ~~a future monarch can marry someone of any faith, except a Catholic~~ our Head of State must be British, not someone Kiwi, not someone Maori. This way of thinking is at odds with the modern countries that we've all become.”

And, also astonishing is the fact that the government unilaterally agreed to this change, without involving Kiwis in the change process.

Sure, the accord in an agreement-in-principle 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.

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.

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.

Also, the government has said elsewhere 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".

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.

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!

Covert surveillance: post-Select Committee and pre-Hamed

2011-10-04T22:38:00.001+13:00

A quick post to close the circle, following the release of the Select Committee report on the Bill. 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.

Some thoughts:

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.

Quite an incredible response to a Select Committee process that originally wasn't going to happen.

(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.)

2. On the merits of the post-Select Committee position, see my earlier post on Labour's bottom-lines.

One additional point, I am worried about the extension of the temporary measures to numerous other agencies. Andrew Geddis has covered the issue here. He notes the Bill still enables "all the State's investigative agencies" to engage in covert video surveillance.

This doesn't worry me so much for non-trespassory "over the fence" surveillance. But for trespassory surveillance it is troubling.

Might we be concerned if local authority enforcement officers are engaging in covert filming as an adjunct to searches warranted under the Resource Management Act? Or the Standards Committee of the Law Society when searching the premises of a practitioner pursuant to a warrant under the Lawyers and Conveyancers Act? No thanks!

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.

The Select Committee said:

"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.
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."

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 here.

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.

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.

UPDATE: Lyndon Hood at Scoop has been working on this line and has an interesting article here. The PM's office seems to be referring to Fraser and Gardiner - both cases which deal with non-trespassory surveillance!

Covert surveillance: Labour’s bottom line

2011-10-01T10:00:00.000+13:00

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.

But I have mixed feelings.

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.

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.

It’s a mixture of principle and pragmatism, as Charles Chauvel had candidly admitted on Red Alert.

To recap, this is Labour’s bottom line position following the select committee hearings:

“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;
2. The legislation needs to apply for a maximum of 6 months only;.
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;
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.”

Let’s deal with each.

Prospective authority to engage in covert video surveillance, but no warranting regime
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.

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.

Temporary for 6 months only
Good.

Not applicable to current investigations and prosecutions
Excellent. This would be a significant improvement. And the sky won't fall as a result.

Past convictions not able to be challenged
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.

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?

(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.)

Anyways, three big hurdles for a convicted person:

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.

The Court of Appeal in R v Knight (1997) 15 CRNZ 332 said:

“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.”

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.

The Court of Appeal in R v P [1996] 3 NZLR 132:

“[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...
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. …
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: R v Horsfall 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 R v Pointon [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.”

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.

So, a convicted person would face some big hurdles.

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.

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:

- enactment of the Bill
- introduction of the Bill
- date of Supreme Court decision
- date of High Court decision.

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.

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.

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.

Covert surveillance: some more musings

2011-09-27T07:43:00.000+13:00

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.

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)?

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.

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?

Covert surveillance: process and principle

2011-09-27T07:20:00.001+13:00

Haste is the enemy of good law-making.

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.

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.

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.

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.

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.

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”. Professor Geddis 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.

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.

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?

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.

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.

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.

That’s where process becomes important.

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.

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.

But, what a difference a week makes, eh!

Covert surveillance: if it ain't unlawful then it's lawful?

2011-09-21T12:33:00.000+12:00

A quick comment on one point arising from the debate about covert video surveillance.

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.

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.

Baloney!

Let me explain briefly.

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.

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.

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.

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.

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."

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, Ngan v The Queen [2007] NZSC 105. But let’s be benevolent and accept that it’s a fair account.)

Hmmm. Spot the problem?

By definition, trespassory surveillance involves a breach of the common law – it is necessarily unlawful because it involves a trespass!

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.

If you don’t believe me, let’s go back to the words of Lord Camden CJ from 1975. Entick v Carrington
(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:

“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.”

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.

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 Ngan v The Queen [2007] NZSC 105.

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.

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:

“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.”

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.

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.

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.

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.

Covert video surveillance and the (c)overt erosion of the Rule of Law

2011-09-20T04:45:00.002+12:00

The 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.

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.

This move is egregious for many reasons:

- 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.

- 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.

- 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.

- 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.

The Urewera case: R v Hamed
Some brief background.

Earlier this month the Supreme Court determined appeals relating to the admissibility of covert video surveillance in the Urewera18 prosecutions (R v Hamed [2011] NZSC 101). 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”.

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.

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.

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.

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:

"(2) The Judge must—
(a) find, on the balance of probabilities, whether or not the evidence was improperly obtained; and
(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.
(3) For the purposes of subsection (2), the court may, among any other matters, have regard to the following:
(a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it:
(b) the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:
(c) the nature and quality of the improperly obtained evidence:
(d) the seriousness of the offence with which the defendant is charged:
(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:
(f) whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:
(g) whether the impropriety was necessary to avoid apprehended physical danger to the Police or others:
(h) whether there was any urgency in obtaining the improperly obtained evidence.
(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."

It’s on this point that the Supreme Court judges differed.

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.)

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.

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).

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.

The Chief Justice said (para 73):

“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.”

Blanchard J said (para 194):

“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.”

Tipping J said (paras 233 and 235):

"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.”

(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.)

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.

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.

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).

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.

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.

The legal position following the Urewera case
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.

The urgent (and retrospective) legislative fix
So, this is where the government steps in.

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.

Hence, the intention to next week pass legislation under urgency to authorise such surveillance and to retrospectively validate such surveillance already undertaken.

We haven’t yet seen the draft legislation. Nor has the advice been released. But the gist of move is apparent. (See http://www.radionz.co.nz/news/national/85615/govt-to-use-urgency-to-change-law-on-covert-filming)

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.

Retrospective legislation - why its egregious and unnecessary
Retrospective legislation is generally seen to be contrary to the Rule of Law. As the Legislative Advisory Guidelines say (LAC Guidelines):

“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.”

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:

“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.”

The question here is whether it is justified. For a number of reasons, I think resort to retrospective legislation is unnecessary and egregious.

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.

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.

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 (Law Commission, “Search and Surveillance Powers”, ch 11):

“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.”

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.

But even in relation to non-trespassory surveillance the Law Commission noted the risk of findings of unlawfulness:

"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.”

Indeed, it echoed the Court of Appeal’s recommendation that the matter be addressed by legislation:

"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.’”

The Search and Surveillance Bill currently before Parliament explicitly addresses this (Search and Surveillance Bill 2009). The Explanatory Note explains:

“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.”

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.

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.

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.

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.

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.

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.

And doubly bad when passed under urgency
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.

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.

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.

A footnote - the Rule of Law as a vulnerable constitutional norm
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:

"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."

We, as a country, should be embarrassed by this.

Nationalisation of RWC party central?

2011-09-15T07:47:00.001+12:00

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.

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.

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.

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.

First, let’s be clear about what the RWC Act allows and what it doesn’t.

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.

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.

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.

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).

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.

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.

(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.)

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.

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.

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.

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.)

The RWC Authority is considering both applications following a very brief period for public submissions and is holding a public hearing today.

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

egress.

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.)

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.

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.

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.

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.

- Rugby World Cup 2011 (Empowering) Act 2010
- Application to the RWC Authority (Captain Cook Wharf)

- Local Government Act 1974

Freedom... from unnecessary legislation?

2011-07-08T09:10:00.002+12:00

The Local Government and Environment Select Committee is currently hearing submissions on the Freedom Camping Bill, 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.

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.

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:

145 General bylaw-making power for territorial authorities
A territorial authority may make bylaws for its district for 1 or more of the following purposes:
(a) protecting the public from nuisance:
b) protecting, promoting, and maintaining public health and safety:
(c) minimising the potential for offensive behaviour in public places.

Indeed, many local authorities have already passed such bylaws.

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."

Well, yes and no. Yes, ordinary prosecutions are expensive. No, because the government can quite easily pass regulations designating those offences as infringement offences:

259 Regulations(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:
(a) prescribing breaches of bylaws that are infringement offences under this Act:
(b) prescribing infringement fees (not exceeding $1,000) for infringement offences:
(c) prescribing infringement notice forms:

Again, a number of bylaw offences have been designated infringement offences. See for example Local Government (Infringement Fees for Offences: Wellington Regional Navigation and Safety Bylaws) Regulations 2006. So, no real problem with enforcement either under the existing legal regime, if the government uses the tools presently available to it.

To be fair, the Regulatory Impact Statement 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.

Option 2 - Use the LGA02 to designate bylaw breaches as infringement offence
19. This option considered making regulations under section 259 of the LGA02 to designate specific bylaw breaches as infringement offences.
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.
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.
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.
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.

Well, let's deal with those "drawbacks".

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.

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 or the registered owner of the vehicle or 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.)

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?

Hmmm. All in all, this is a pretty weak claim for a need for immediate legislative action.

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.

But most of all this type of policy approach is rather odd coming from a government that has proclaimed a crusade on "unneeded rules and laws"...

Same-sex prom kings, cornrows and school rules

2011-06-19T01:36:00.000+12:00

I'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:

- DomPost: "School denies pupil bringing boy to ball"

The School's position was invidious, mean-spirited, unjustified and - I think - unlawful.

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:
- Is the exclusion discriminatory (particularly in the light of the Court of Appeal's plainly erroneous, but binding, position in Quilter on same-sex couples and discrimination on the basis of sexual orientation)?
- 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?
- If it's indirect discrimination under the HRA, or discrimination under s 19 of the Bill of Rights, is such discrimination justified?
- 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?
- Could the rule be justified on other grounds, such as religious beliefs (esp in relation to an integrated school)?
- To what extent should a court or supervising body respect the judgement of a governing school board on such matters?
- Is the rule unlawful on common law grounds as the rigid application of a policy?

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...

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:

- Guardian: "School's refusal to let boy wear cornrow braids is ruled racial discrimination"
- SG v St Gregory's Catholic Science College [2011] EWHC 1452 (Admin) (17 June 2010)

There's some analogy - I think - between the well-intentioned, but indirectly discriminatory, rules in both cases.

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: M & R v Syms and the Board of Trustees of Palmerston North Boys High School [2003] NZAR 705...

TELEGRAM FROM LONDON: I love voting but...

2011-05-06T03:41:00.000+12:00

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.

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. It's therefore a choice for locals, not interlopers like me.

Anyways, for those interested in the referendum itself, I did find this pod-cast by Johann Hari interesting and amusing:
- http://www.mixcloud.com/TheIndependent/the-johann-hari-podcast-episode-13-the-avs-vs-the-av-nots/

A kiwi republican stranded behind enemy lines

2011-04-30T05:50:00.001+12:00

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

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

Following discussions with loved ones, I left my republican placard at home in the window. The message was pithy and courteous, while also Kiwi and forthright: “Hei aha! We want a Kiwi Head of State. Not Kings, Queens, & a fancy wedding.” However, there were lingering doubts about the appropriateness of protesting at someone else’s wedding (and, also, outrageous uncertainty about whether the Metropolitan Police were going to tolerate Her Majesty’s subjects exercising their democratic right to free expression and protest on this “day of celebration, joy and pageantry for Great Britain”).

I have nothing against the couple personally. I wish them all the best – they’re a sweet couple. It’s just a pity all the monarchial nonsense overshadows two folk declaring their love and commitment to each other.

Anyways, I donned my own symbol of national pride – an All Black jersey – and headed to the centre of town to taste the mood first-hand. Positioned on the edge of Whitehall, across the road from Horse Guards Arch, we joined with the many Brits catching a glimpse of diplomats, heads of state, and the royals as they drove past on the way to the Abbey. Then a dash to the over-flowing Trafalgar Square, and its huge telly screen, to spy the nuptials. With enthusiasm waning, a pit-stop for some espresso and nibbles at Peter Gordon’s Kōpāpā – teamed with a live stream of the events via an iPhone and the Royal YouTube channel. And the day wouldn’t be complete without a street party. Thankfully, I was able to share some solidarity with UK’s Republic group at their “Not the royal wedding" street party at nearby Red Lion Square.

So, did the pomp and ceremony of the big day lead to my Road-to-Damascus conversion? Well, no. More than anything it has fortified my commitment to the Kiwi republican cause.

For me, the festivities are a testament to the old-fashioned, anachronistic, and extraordinarily British nature of the Royal machine. The monarchy and Sovereign lack the Kiwiness and home-grown values that I think New Zealanders deserve in our symbolic Head of State.

Don’t get me wrong. I’m not knocking the day for Britons. The striking feature of the wedding has been the way it seemed to inspire and bring together the British people. The Union Jack flying. Local street parties. The manifestation of British nationhood. “The best of Britain”, as the television commentators put it.

But, as a Kiwi, it’s an event that left me utterly cold. That’s the truth – not just some activist spin. Some have accused me of being a Grinch. Actually, I think I’m just a proud Kiwi.

It’s just a shame the wedding had some constitutional significance for New Zealand, and the royal pair are to be our Head of State and consort, because there was very little New Zealandness on show today.

For me, the enduring memories of the day are British ones, not Kiwi ones. An institution founded on historic birth-right. A hierarchical community. Fawning, forelock-tugging subjects chasing a glimpse of their imperial emperors. Antique costumes and ceremonies. Bunting bearing the symbol of the Union Jack. Gendered practices. An uneasy sameness in the ruling elite. A traditional, almost retrospective, society. All rather quaint. (Okay, there is a little hyperbole there for effect, but you’ll get my drift.)

In contrast, the values important to me as a New Zealander are things like an egalitarian society, where the potential of each and every one is equally-valued and protected. A diverse community of Māori, Pākehā, Pacific peoples and others, with the indigenous traditions and ceremonies that generate great fervour. A relaxed, laid-back attitude. A focus on pragmatic evolution and the potential of what our Kiwi nation can be, in its own time, place and context.

(Before I’m accused of viewing New Zealand through rose-tinted glasses, I know I speak of aspirations which we don’t always achieve. I admit that. Here, I can only acknowledge our ambition and record the on-going struggle to realise those values – a path which is, at times, a rocky one.)

But what do I look for on big days – those marking our civic, national or constitutional events? How do I want to celebrate our nationhood and who we are as a community?

I yearn for the monochromatic silver fern, fluttering in verdant surrounds. I yearn for the locator beacon of the Southern Cross, whether on our standard or beaming from the heavens. I yearn for a powerful haka, and the emotion of the karanga at a pōwhiri. I yearn for the awkwardness of formality, the flattened vowels of the ceremonial narrative, the ambivalence towards officeholders of state and society. I yearn for scepticism about the role religion in our civic practices. I yearn, oddly, for a national anthem, sung with uneven gusto, in two languages drawn from our colonial and first nations respectively. I yearn for an acknowledgement of those special and unique things that make us Kiwis.

No wonder today’s great civic occasion left me cold.

Again, don’t take my desire for potent Kiwiness the wrong way. Yes, there is still a place for acknowledging our British heritage. But, in my view, as tokens of yesteryear, not our present-day reality. I’m not one demanding all Anglo-Saxon icons be stripped from the rich tapestry that reflects who were are. But I object to the way our constitutional arrangements seek to channel and prioritise the historic British values over our local modernity.

At the end of the day, the monarchy can never realise the cultural and civic values I crave as a Kiwi. A Kiwi who is ambitious for, and patriotic about, New Zealand. For the royals are fundamentally a British institution. Today’s royal wedding – a foreign fairy-tale – is a stark reminder of that.

That’s why I want New Zealand to become a republic. Our Head of State should be chosen by us, from amongst us, and be able to reflect the values of our nation. It’s time for a Kiwi Head of State.

POSTSCRIPT:
For those who have also had republican sentiments triggered by the royal wedding and are unsure about what a transition to a republic might involve for New Zealand, some quick FAQs:

1. An obvious choice for a home-grown Head of State would be the Governor-General or a person of similar ilk. The best candidate can be endorsed by a super-majority in Parliament - there is no pressing need for direct election (although that remains a plausible option.)

2. The figure-head role can be preserved and the present conventions about their powers can be rolled-over without fuss. At the end of the day, the present Governors-General, in reality, exercise those powers anyway.

3. The Treaty of Waitangi is not upset or undermined by a move to a republic. The Crown’s Treaty obligations have previously passed from Queen Victoria to various British Kings to Queen Elizabeth in right of Great Britain to Queen Elizabeth in right of New Zealand. Treaty obligations would automatically pass to the new republican state, and republican legislation would also fortify this.

4. Becoming a republic does not cast us out of the Commonwealth. Of the present 54 nations, only 16 countries have Queen Elizabeth as their head of state. Thirty three are republics. And 5 are monarchies with a sovereign other than Queen Elizabeth.

Privately Public

2011-04-27T04:58:00.000+12:00

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

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

- Dean R Knight, "Privately Public"

When are – or should – the actions of private bodies subject to the scrutiny in our public law courts? ...
In this paper, I explore the puzzle of the relevance of JAA72 to the question of amenability to judicial review, through the lens of the reviewability of incorporated societies and other private corporate entities. Conflicting decisions of the Court of Appeal on this point provide an entry point into the analysis of the proper relationship between common law review and review under the statutory recognition of judicial review in the JAA72. I argue that the JAA72 cannot be regarded as conferring jurisdiction on the courts to engage in judicial review without reference to the underlying parameters of the common law. The text and purpose of the JAA72, along with policy and constitutional considerations, all point to the JAA72 as being procedural in form and not obviating the need for courts to engage in an evaluation of the publicness of private entities before they subject them to review.

As usual, comment and feedback welcomed.

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

2011-04-19T15:32:00.000+12:00

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

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

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

On the one hand, the government has said, in the context of the constitutional review, there needs to be widespread public endorsement of any constitutional changes. Bill English said specifically:

“Of course, we will keep in mind that enduring constitutional changes generally require a broad base of support. Significant change will not be undertaken lightly and will require either broad cross-party agreement or the majority support of voters at a referendum."

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

This is all disappointing – and inconsistent.

Appointees and local democracy

2011-04-19T12:06:00.000+12:00

Brian Rudman again rails against the automatic appointment of members of the Maori Statutory Board onto Auckland Council committees:

"At the time I tried to think of any model of democracy that involved members of a committee of government appointees, not elected by the people they purport to represent, sharing voting rights on a city council with elected councillors. This system of Maori representation doesn't fit the ideal of any form of democracy that I know of this side of the old communist world."

Hmmm. Rudman appears to have overlooked that local government legislation in New Zealand has for a long-time provided for exactly that.

Clause 31(3) of Schedule 7 of the Local Government Act 2002 allows a local authority to appoint people other than councillors to council committees, as long as each committee continues to have at least one elected member:

"The members of a committee or subcommittee may, but need not be, elected members of the local authority, and a local authority or committee may appoint to a committee or subcommittee a person who is not a member of the local authority or committee if, in the opinion of the local authority, that person has the skills, attributes, or knowledge that will assist the work of the committee or subcommittee."

Such a practice was also authorised under earlier legislation. It reflects the idea that local democracy involves a blend of representation, diversity and expertise.

While non-councillors are entitled to sit on committees, the democratic principle is pure for the governing body of the local authority - elected members remain ultimately responsible for decisions made by committees, subcommittees or other people under delegations. It's also worth noting that (certain quasi-decisions aside), the governing body can generally revoke or overturn a decision made by any of its committees.

CERA Mark II: Purposes - a starter for 10?

2011-04-14T13:25:00.003+12:00

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

The important purposes are set out below:

"(a) to provide appropriate measures to ensure that greater Christchurch and the councils and their communities respond to, and recover from, the impacts of the Canterbury earthquakes:
...
(f) to facilitate, co-ordinate, and direct the planning, rebuilding, and recovery of affected communities, including the repair and rebuilding of land, infrastructure, and other property:
(g) to restore the social, economic, cultural, and environmental well-being of greater Christchurch communities:
..."

I have previously noted that these purposes would seem to capture almost any conceivable government action.

So, a "starter for 10" for Thursday afternoon, while the government continues to debate the Bill under urgency:

Q: What action, plausible or fanciful, would legitimately fall within the ambit of this purpose clause?

And, as a supplementary question, what, if any, action (other than the truly hyperbolic or fanciful) might not be capable of being justified under this purpose clause?

Some suggestions of legitimate government, some plausible and some fanciful, action to start you off:

- Suspending the obligation of Cantabrians to pay GST (economic wellbeing).
- Authorising the establishment of a nuclear power plant to supply power to Chch (economic and social wellbeing).
- Prohibiting open fires and chimneys and mandating clean air initiatives (environmental wellbeing).
- Abolishing the Christchurch City Council or amalgamating it with surrounding local authorities (all the wellbeings and coordination of recovery).
- Demolishing houses surrounding Lancaster Park and designating the area for the construction of hotels and bars (social, cultural and economic wellbeing).
- Establishing a high-tech business park in Hagely Park (economic wellbeing).

CERA Mark II: Henry VIII clauses

2011-04-13T15:00:00.004+12:00

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

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

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

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

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

By way of background, the democratic and constitutional objections to the previous Order-in-Council regime well-known and can be seen here:

- Pundit: "An open letter to New Zealand's people and their Parliament"
- Policy Quarterly: "Shaking Our Constitutional Foundations".

I don't intend repeating the arguments in any detail and want to concentrate on the differences in the rolled-over regime.

Purpose, necessity and scope
The purpose provision of the legislation has been massively enlarged. This flows directly into the scope for issuing Orders-in-Council. For present purposes the relevant purposes are as follows:

"(a) to provide appropriate measures to ensure that greater Christchurch and the councils and their communities respond to, and recover from, the impacts of the Canterbury earthquakes:
...
(f) to facilitate, co-ordinate, and direct the planning, rebuilding, and recovery of affected communities, including the repair and rebuilding of land, infrastructure, and other property:
(g) to restore the social, economic, cultural, and environmental well-being of greater Christchurch communities:
..."

First, these provisions are extraordinarily wide, especially the reference to restoring community well-being. They would capture almost any governmental action that might be possible. Effectively, they provide no legislative constraint on the Orders. Any order need only be "reasonably necessary or expedient" for any of those purposes. (I note that the legislation confirms, for the avoidance of doubt, that Orders may be issued to relax laws that may "divert resources away from" the earthquake response.)

These broadly stated purposes have the effect of negating any post-promulgation judicial review. In this context, the sole task for the courts would be to review whether the proposed executive action falls within the scope of the powers conferred by the legislation; the courts are otherwise unlikely to second-guess the judgements made by the executive in judicial review proceedings. However, as the broadly framed purpose provision controls the scope of those limits, the courts' supervision will effectively be nugatory – only the most extreme examples of abuse will step outside the scope of the powers conferred by legislation.

I note, as an aside, the government seems to have dismissed the inclusion of a requirement that any Orders be proportionate to the particular problem. This requirement – a feature in some UK legislation – would operate as meaningful constraint against misuse of such powers. It is a shame it was rejected.

Secondly, the legislation that may be suspended or amended has not diminished. All legislation, apart from 5 particular constitutional statutes, can be amended. The same legislation particularly identified has been carried over (although, oddly, the couple of other statutes which have been amended have not been included).

Thirdly, more generally, I think we need to reflect on the necessity of amending legislation without Parliament's consent in these circumstances.

I acknowledge that emergency situations may require such powers. However, the phase facing Christchurch now and over the coming 5 years is different. It's more recovery, rebuilding, and revitalisation.

While there is an understandable need to expedite this, there is a much weaker case for legislative changes without Parliament's consent. Parliament can be involved without slowing the recovery effort. There is not the same pressing imperative to change laws immediately through ministerial fiat. This point gets much stronger as more time passes from the original emergency.

Further, our knowledge and understanding about the legislation that needs to be relaxed is more sophisticated. We are not in the same period of unknown that followed the first earthquake – one of the key reasons for the previous promotion of the Orders-in-Council process has passed.

As I note below, I think there are more democratic and constitutionally-defensible ways to achieve the goals promoted by CERA – mechanisms that are speedy but still involve our sovereign Parliament in decisions about what laws need to be changed.

Pre-promulgation review panel
On the positive side, the government has rejigged the pre-promulgation review of Orders-in-Council.

Rather than the Canterbury Earthquake Recover Commission (mayors of the local authorities and 4 other appointed experts) being consulted about draft orders, there is now a formalised process for review by a 4 person Review Panel.

Review is now mandatory (previously ministers only needed to consult the Commission if it was practicable to do so). The Panel was slated to be led by a former High Court judge. However, the Bill now only refers to a panel of "4 persons with relevant expertise or appropriate skills" appointed by the Minister of Earthquake Recovery.

The Panel only has 3 working days to provide advice on the Orders. Their advice must be publicly notified and made available, which is encouraging. Ministers must have regard to the Panel's recommendations – but, once again, they can reject or refuse to follow their recommendations if they wish.

Further, any recommendations from ministers to promulgate an Order are protected by a strong privative clause, which seeks to immunise the process from judicial review. The effect of the privative clause remains a little uncertain because of the courts' scepticism towards them. However, the privative clause effectively undercuts the provision for independent review because it means a failure to receive a review or have regard to the review recommendations would not be able to be challenged in court.

In my view, the new review panel is mere window-dressing. It is a poor substitute for the more legitimate democratic processes that usually accompany law-making and law-changes. There is a disappointing lack of democratic scrutiny of the legislative changes – on one view, the replacement of an advisory forum containing the democratically elected mayors with a review panel solely comprised of technocrats makes it worse!

Post-promulgation scrutiny
Formal post-promulgation checks-and-balances are much the same as before, if diluted somewhat by the new expansive purpose provision (see above).

First, the same weak privative clause gives the Orders-in-Council force of law. While I don't think this is sufficient to oust judicial review, it is a parliamentary signal to the courts to be deferential.

Secondly, Orders will be continue to be subject to the same Regulation Review Committee and regulations disallowance processes. While I respect the work of the Committee, I think it is fair to say that they have limited ability to influence the types of Orders being made in a timely fashion. I note that they have still not be able to finalise their review of some Orders issued after the last earthquake – after they expressed concerns about a couple of Orders and sought more information about them. While their work is useful in setting principles and precedents for future Orders, they have limited ability to promptly address and cure deficient Orders.

Duration
Most dramatically, the legislation extends the time-frame for such Orders. Orders are allowed during the 5-year life of CERA. There is no other restriction on their duration. That is, laws can be changed or suspend up to and including April 2017. This long duration belies their necessity and the need to circumvent democratic processes.

Alternative solution: affirmative resolution process
One of the things many of us have been reflecting on is an alternative means to provide for the speedy – but democratic – amendment of laws to enable the recovery and reconstruction. We are conscious of not merely knocking the process and the need to provide constructive alternatives.

Ideally, I think Parliament could process many of these law changes through existing processes. The timing and pattern of Orders-in-Council issued so far could have readily be passed by Parliament, albeit with some urgency.

As an alternative, I favour the even more speedy affirmative resolution procedure. That would mean any Orders would not take effect until approved by a resolution of the House of Representatives (see for example the scheduling of drugs under the Misuse of Drugs Act). This allows the fast-tracking of changes to legislation but ensure Ministers justify such changes to Parliament and obtain the consent of Parliament to these changes. It would be prudent also for the Regulations Review Committee to scrutinise those Orders briefly prior to being approved.

I note that the United Kingdom makes provision for similar for affirmative (and super-affirmative) resolutions for orders made under some Henry VIII clauses (see ss12-18 of the Legislative and Regulatory Reform Act). There is also some provision for orders to still be made unilaterally by ministers in more benign circumstances, but there is still a special negative resolution process where Parliament can disallow those orders.

Conclusion
We are still in a twilight zone of constitutionality. I'm not convinced our country has learnt lessons about the dangers of aggregating such executive power and circumventing the democratic processes. CERA Mark II remains constitutionally dubious. I just hope that our government ultimately sees sense and charges wise folk like the Law Commission to develop standing measures to address such contingencies – measures which are more balanced, subject to meaningful checks-and-balance and constitutionally appropriate.

CERA Mark II: My Submission

2011-04-12T18:56:00.003+12:00

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

http://www.legislation.govt.nz/bill/government/2011/0286/latest/whole.html#dlm3653522

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

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

---------------------------------

12 April 2011

Local Government and Environment Select Committee

Ngā mihi

Canterbury Earthquake Recovery Bill 2011

I am grateful for the opportunity to make a submission on this Bill. The short time-frame for public submissions is preferable to the procedure adopted for the previous Act where it was passed through all readings in one day (although not ideal). The limited time available to review the Bill means my submissions are general in nature and somewhat abridged.

My submission concentrates on the following concerns about the Bill:

• general approach: bottom-up model preferable to proposed top-down model

• purpose provision is too wide

• unusual position of community forum

• development and amendment of recovery strategy and plans

• Executive and coercive powers effectively unconstrained

• appeal rights too narrow

• deliberative cost-benefit calculus should not be excluded

• Orders-in-Council regime unnecessary and still not subject to adequate safeguards.

General approach: bottom-up model preferable to proposed top-down model

I acknowledge the gravity of the task facing Christchurch and other districts. The recovery and rebuilding project is massive one, one that is probably beyond the capacity of present local authorities and other agencies. I accept therefore that central government involvement is essential. However, I question the top-down, rather than bottom-up, model that has been adopted.

All the important powers and responsibilities are located at Ministerial level. The Minister has the ultimate responsibility for setting the vision for recovery and rebuilding, and has numerous coercive powers which may be used to trump decisions and actions of local authorities and other agencies. While there is some reference to "collaboration", "coordination", and "cooperation" etc, the legislative scheme is drawn in command-and-control terms. The legislative scheme does not build in the usual elements of local democracy and community participation that is traditionally seen and expected in legislation dealing with town planning and management of local resources.

While the location of powers at a Ministerial level does not offend constitutional principle, it does raise questions about the legitimacy of the recovery and rebuilding plans and actions. The predominant thinking nowadays is that town planning or resource management decisions ought to be made at the local level, in a way that allows the affected communities to have their say in their development. It recognises that they will be best-placed to assess the propriety of the plans and generally enhances the legitimacy of the measures adopted. It is also consistent with the principle of subsidiarity, which says that decisions ought to be made at the lowest possible level within the governmental framework.

The rebuilding of Christchurch is something that the locals will need to live with for a long-time. The recovery and rebuilding plans are not merely about stabilisation following an emergency, but also the look-and-feel of their city and district for next 50 years. It follows that the recovery and rebuilding plans and actions ought to be community-centred and mandate real and meaningful public participation. The present legislation fails to provide for this.

My preferred option would be to augment the existing local government structures and processes. While local government in the region obviously needs practical assistance to operationalise the rebuilding and recovery, they are still about to take the lead and responsibility for the vision for their city and region. They are experienced in doing so, they are closer to their community, and they are better placed to capture the needs and aspirations of the local people. And they are more able to be held to account by local people for the decisions and choices they make.

In practical terms, a community-centred model would charge the local authorities themselves with developing the overarching recovery strategy – without the need for ministerial sign-off. CERA would still have a role in assisting the local authorities. It could operate as a portal through which governmental assistance could be provided to support these efforts, through cooption of staff to assist the local authorities (importantly, to work under their auspices) and to coordinate central governmental assistance necessary to convert that vision into action.

As I anticipate such reconfiguration is unlikely to be supported by the government, my comments that follow focus of matters of detail within the regime that could be improved, to provide better mechanisms for the people and communities to have input into the decisions that affect them and to better protect against the misuse of the vast power conferred on Ministers.

Purpose provision is too wide

The present purpose provision is too wide. This is of particular concern because the purpose infiltrates most of the other executive and coercive powers elsewhere in the Bill and sets the parameters on the exercise of such powers. The purpose clause and supporting provision does not operate to constrain governmental action in any meaningful way because they are framed so widely (eg, cl 3: "respond to, and recover from"; "to facilitate ... rebuilding and recovery of affected communities"; "restore social, economic, cultural and environmental wellbeing"; cl 10 "in accordance with the purposes" and "reasonably considers it necessary"). It is a blank cheque for any types of action the government decides is desirable. This is an anathema to rule of law. Almost all governmental action could be justified in the name of restoring community wellbeing.

Further, the wide purpose clause effectively negates any checks-and-balances that might be provided through judicial review. In this context, the sole task for the courts would be to review whether the proposed executive action falls within the scope of the powers conferred by the legislation; the courts are otherwise unlikely to second-guess the judgements made by the executive in judicial review proceedings. However, as the broadly framed purpose provision controls the scope of those limits, the courts' supervision will effectively be nugatory – only the most extreme examples of abuse will step outside the scope of the powers conferred by legislation.

My preferred approach which be to include a narrower purpose provision or to separately state (narrower) pre-conditions for the exercise of the executive and coercive powers. The statutory pre-conditions might build in the principle of proportionality, might better express the residual or reserve nature of the power, or might otherwise express the need for the powers to be exercise in a tailored or constrained fashion.

Unusual position of community forum

The new, Ministerial-appointed community forum is unusual. While I am in principle supportive of community engagement, this forum risks undermining the standing forum for the expression of community views: local authorities. Local authorities have a representative mandate and are ultimately accountable to their communities, in ways that the Ministerial-appointed community forum is not. If such a forum is still seen to be desirable, the forum ought to at least be selected by the local authorities, not the Minister.

Development and amendment recovery strategy and recovery plans

The Bill provides for notice-and-comment in relation to the development of the recovery strategy and the recovery plan for the CBD (but not other plans). That is desirable and could be expanded. As noted above, public participation in the development of the strategy and plans is critical to their legitimacy.

In addition, the ministerial discretion about the process for the development of other recovery plans in cl 20 should have particular regard to the desirable of the involvement of the community in the development of such plans, as well as the other factors. This could be added as a mandatory relevant consideration in subclause (2).

Further, ministerial powers to approve or change recovery plans should be constrained (cls 21 and 22). Ministerial interference with plans developed through public participation processes should not be unfettered and should be reserved for situation when the plans are directly inconsistent with the recovery strategy.

Public consultation should be mandated for amendments to the recovery strategy (cl 14) in the same way it is for its original development.

Executive and coercive powers effectively unconstrained

As mentioned earlier, many of the far-reaching executive and coercive powers are effectively unconstrained. Such aggregation of such powers, without real constraints or safeguards, is a concern. While I suspect some of these powers are intended to operate as residual or reserve powers, the legislative regime does not express them in such a limited fashion.

Some example include:

• power to suspend of plans and resource consents in cl 27;

• approval of specified local government contracts in cl 28;

• demolition and construction of works in cl 38;

• power to direct in cl 48;

• power to require performance in cl 49;

• power to call-in functions in cl 50.

As a general principle, such powers should only be exercised where actions is mandated by the recovery strategy (ie, only "where reasonably necessary to give effect to the recovery strategy"). This would ensure there is some community-based mandate for their operation – especially where they involve the suspension of policies adopted through democratic processes or the suspension of vested rights.

Secondly, the legislation should specify that those powers intended to be residual should only be exercised where the agency has failed to give effect to the strategy or is proposing to act contrary to the strategy.

Finally, for all such powers, it would be desirable to include a legislative requirement that such powers be exercised in a proportionate manner. This would provide some balance on their exercise, and ensure they are only exercised in appropriate circumstances.

Appeal rights too narrow

I acknowledge it is difficult to balance the need, on the one hand, for expedited action and, on the other hand, the rights of affected citizens to appeal decisions. It is important therefore to ensure citizens have meaningful mechanisms to have their say on matters which affect them, either before the fact through public participation or after the fact through objection and appeal rights (pressing emergencies aside).

However, the present list of preserved appeals appears too narrow. For example, the Bill excludes appeals from the decision of the Minister to cancel existing resource consents or existing right uses under cl 27(2). This is an operational decision directly affecting people, which will not have been subject to prior consultation. Appeal rights should be preserved for such decisions.

Deliberative cost-benefit calculus should not be excluded

An Order-in-Council under the previous Recovery and Response Act and a clause in this Bill seek to remove the existing requirements on the part of local authorities to assess the cost and benefits of their actions and proposed planning documents (cl 4 of the Canterbury Earthquake (Local Government Act 2002) Order 2010, exempting compliance with s 77 of the Local Government Act 2002; cl 24(4) of this Bill, exempting compliance with s 32 of the Resource Management Act 1991). It is a concern that these basic principles are being removed or exempted. The cost-benefit calculus is the essence of proper administrative decision-making and should be encouraged – not dispensed with – in this phase of recovery and rebuilding.

Orders-in-Council regime unnecessary and still not subject to adequate safeguards

This Bill continues the previous regime for the issue of Orders-in-Council amending primary legislation, with some changes. The previous concerns about this regime are well-known. Such wide Henry VIII clauses are contrary to the democratic imperative. Particular concern was expressed about the lack of, or weaknesses in, checks-and-balances on the exercise of such powers.

Regrettably, the new regime does not adequately respond to the concerns previously raised. The Ministerial fiat to change laws is retained. The only new feature is a new Review Panel to scrutinise the recommended Orders-in-Council within 3 working days. However, the Minister need only have regard to their recommendations and can ultimately decline to follow them if he or she wishes. In any event, steps prior to recommendation to the Governor-General continue to be protected by a privative clause which seeks to immunise such steps from review by the courts.

Once again, the Bill gives Orders-in-Council force of law, which tends to operate as a weak privative clause. While it is unlikely this would immunise such orders from review by the courts, the nature of any review continues to be diluted by the widely-framed purpose clause.

I remain concerned about the lack of the checks-and-balances, especially as the horizon for Orders-in-Council has been extended to 5 years. While expediting recovery and rebuilding is important, it is doubtful whether there remains the same urgency for law changes that justifies the powers being exercised without reference to Parliament. There is not the same emergency situation – the Bill is largely directed at rebuilding. There is not the same degree of the unknown. The experiences following the last earthquake mean there is better understanding of the laws that need to be relaxed or amended.

My preferred approach would be, as a minimum, for any Orders-in-Council to be subject to the affirmative resolution procedure. That would mean any Orders would not take effect until approved by a resolution of the House of Representatives (see for example the scheduling of drugs under the Misuse of Drugs Act). This allows the fast-tracking of changes to legislation but ensure Ministers justify such changes to Parliament and obtain the consent of Parliament to these changes. It would be prudent also for the Regulations Review Committee to scrutinise those Orders briefly prior to being approved. The privative clauses ought to be removed. And the (expanded) purpose provision – which casts a large immunising cloak over the Orders – should be more tailored and constrained.

One other subsidiary concern about the Orders. The protected legislation in cl 70(6)(c) does not the Local Electoral Act. As this legislation provides for the election of democratic local government in Canterbury and Christchurch, this should be protected from amendment by Orders-in-Council. (As noted above, I would also protect from amendment the deliberative principles governing local authority decision-making in ss 76 to 81 of the Local Government Act 2002.)

Regards

Dean Knight

Senior Lecturer, Faculty of Law

Associate, New Zealand Centre for Public Law

The (r)evolution of collective responsibility

2011-02-18T10:14:00.001+13:00

Collective responsibility is dead! Long live collective responsibility!

I've been wittering on about for this time (see, for example, here). But I think this week's Question Time confirms (finally) that the conventions around collective responsibility have evolved again.

We have new operating arrangements governing the expression of dissent by Ministers of the Crown. Under MMP we have seen the incremental loosening on the unanimity element of the convention of collective responsibility. But, responding to questions about public remarks from Ministers Hide and Sharples about the independent Māori statutory board for the Auckland Council, Prime Minister indicated – whether consciously or not – that the present government is operating under even looser arrangements than before. The Prime Minister condoned deviations from the existing "rules" about collective responsibility recorded in the Cabinet Manual. That probably means that the underlying convention has evolved and that the Cabinet Manual rules will need to be re-written to reflect the new operating arrangements.

Let me explain.

But before I do, though, let me record the nature of my interest.

My interest is in the evolution of constitutional conventions. In this case, I am rather agnostic about the content of the convention. I acknowledge, as others have noted previously, that the sky has not fallen as the convention has evolved and loosened. I am not suggesting we should revert to the old, much tighter, rules about Cabinet unanimity. I have no strong view really. I lean towards the present trajectory of allowing dissent to be publicly expressed. It is more real and consistent with transparent government.

But, more importantly, I think we must clearly mark changes in the rules – and the possible death of the unanimity element of Cabinet collective responsibility.*

Okay, that's done. Don't call me an old stick in the mud now for being a pedant about this thing.

A very short history first.

In the pre-MMP days, Cabinet collective responsibility was strict. Basically, all Cabinet ministers (and other MPs holding Executive posts) had to tow the party line. Even if they disagreed with a decision of Cabinet, they had to publicly support it. Any dissent risked some sanction, most severely dismissal at the hands of the Prime Minister on behalf of Cabinet colleagues.

Then we moved to era of coalition government. Parties – or, rather, junior coalition parties – wanted to maintain their own distinctive party identity on some matters. Strict application of Cabinet collective responsibility would have seen them subsumed into the wake of the larger, lead party – and ultimately paying the price at the next election.

So parties negotiated "agree-to-disagree" processes to allow them to speak contrary to the government position on certain matters, as and when agreement was reached with the lead party about the expression of dissent. These processes were still quite tight. The principle was collectively agreed as part of coalition negotiations, but the ad hoc expression of dissent still involved pre-approval by Cabinet (or some other collective process). This still ensured the dissent was cloaked by the shroud of collective responsibility.

More recently, parties negotiated an approach which has been described as "selective collective responsibility". That is, the previous principle of unanimity governing Cabinet decisions was circumscribed – quite dramatically. Cabinet Ministers from coalition or support parties were only bound to support the agreed Cabinet position for matters falling within their portfolios, but otherwise were not bound to support the Cabinet position. (These exceptions did not apply to Ministers from the lead party of government; strict Cabinet collective responsibility continued to apply to them.)

In other words, when wearing the hat of Minister responsible for the relevant portfolio, Ministers spoke for the government and had to tow the government line. But when wearing the hat of leader or member of a coalition party, they were free to criticise the government position. The critical distinction was whether the matter fell within a Minister's portfolio or not.

I should note at this point that there has been some uncertainty and debate about the relationship between "agree-to-disagree" processes and "selective collective responsibility" – in particular, whether a Minister from a support party could engage agree-to-disagree processes for matters within their own portfolio. I think the better view, as least under the Labour administration, was that selective collective responsibility overtook agree-to-disagree processes. That is, selective collective responsibility effectively operated as a carte blanche pre-approval of dissent.

Notably, while there were many instances of Ministers from support parties criticising government positions, there was no record of that occurring in relation to their own portfolios. I need to note here that there was much debate about the demarcation of portfolios, especially as between the Foreign Affairs portfolio and Trade portfolio. However, in my view, the critical point is that under the previous administrations, the Prime Minister and Ministers expressing dissent all took the view, rightly or wrongly, that dissent only related to portfolios other than their own.

Fast-forward to the current National administration. Understandably we have seen the expression of more dissent as the coalition brings together parties with some quite disparate ideological positions. For some time I have suspected that the rules about unanimity and dissent have been much looser. In particular, I think we are seeing that Ministers from support parties are now entitled to dissent about matters within their own portfolio with impunity.

I tried to make this point some time ago. However, it got lost in debates about the demarcation of portfolios (particularly "panoptic" portfolios that might potentially cover a wide range of government policy, such as Foreign Affairs or Māori Affairs).

But, the exchanges in the House this week confirm my suspicion. The Prime Minister confirmed, without hesitation, that under his leadership Ministers from support parties are now authorised to dissent about matters within their own portfolio, as long as they do so as leader of their party not as Minister.

Look at the Prime Minister's responses to these questions in the House this week:

"Hon Shane Jones: When the Hon Pita Sharples called on the Minister of Local Government to resign if he could not accept the decision to set up the Auckland Council’s Māori Statutory Board, was he correctly reflecting the requirement of paragraph 5.26 of the Cabinet Manual, which reads: “Any public disassociation from Cabinet decisions by individual Ministers outside the agreed processes is unacceptable.”?

Rt Hon JOHN KEY: No. We have made it clear to Mr Sharples’ office that when he makes comments of those regards, he should not be doing them as the Minister of Māori Affairs. That is exactly the point he was making, but he incorrectly put it on his ministerial letterhead.

Phil Twyford: Did the Hon Rodney Hide satisfactorily apply paragraph 5.30 of the Cabinet Manual, which states: “Once a decision is reached by Cabinet, … [Ministers’] statements should reflect the fact that a collective government decision has been made,” when he said that the Auckland Council’s Māori Statutory Board should never have been included in the legislation and that he always assumed National would stick to its principle of one law for all, and in the event it decided to go against his advice?

Rt Hon JOHN KEY: Yes, because he made those comments in this position as leader of the ACT Party."

Just to reiterate, the Prime Minister is condoning the Minister for Local Government, Hon Rodney Hide, dissenting from a matter agreed by Cabinet which is central to his portfolio, as long as his dissent is expressed when wearing his hat as the leader of the ACT party, rather than as Minister.

Now this is a big deal and, importantly, the position is a departure from the rules governing unanimity and dissent in the Cabinet Manual. The Cabinet Manual records the rule operated by the previous Labour administration, as I explained them previously:

"5.23 Acceptance of ministerial office means accepting collective responsibility. Issues are often debated vigorously within the confidential setting of Cabinet meetings, although consensus is usually reached and votes are rarely taken. Once Cabinet makes a decision, Ministers must support it (except as provided in paragraphs 5.25 - 5.27), regardless of their personal views and whether or not they were at the meeting concerned.

5.24 In a coalition government, Ministers are expected to show careful judgement when referring to party policy that differs from government policy. Subject to paragraphs 5.25 - 5.27, a Minister's support and responsibility for the collective government position must always be clear.

5.25 Coalition governments may also decide to establish "agree to disagree" processes, which may allow Ministers within the coalition to maintain, in public, different party positions on particular issues or policies. Once the final outcome of any "agree to disagree" issue or policy has been determined (either at the Cabinet level or through some other agreed process), Ministers must implement the resulting decision or legislation, regardless of their position throughout the decision-making process.

5.26 "Agree to disagree" processes may only be used in relation to different party positions within a coalition. Any public dissociation from Cabinet decisions by individual Ministers outside the agreed processes is unacceptable.

5.27 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."

The fact that the Prime Minister is "relaxed" about dissent by a Minister within their portfolio means one of three things:

(a) The Prime Minister has authorised dissent in this case, engaging the agree-to-disagree processes for matters within a Minister's portfolio. (Whether or not this is a departure from existing rules is a little uncertain as noted above.)

(b) The Minister has breached Cabinet collective responsibility, but the Prime Minister has decided not to sanction the Minister for the breach or decided not to enforce the convention – as the Prime Minister is entitled to do.

(c) The Prime Minister and Cabinet has effectively agreed to change the rules governing collective responsibility. The convention has evolved through practice. And, presumably, the Cabinet Manual will be amended at some point in the future to reflect this change.

The remarks of the Prime Minister all point towards (c), namely, the convention has evolved.

Regardless, I think it is incumbent on the Prime Minister to make it plain one way or other. If the convention has been evolved, he should signal this change and signal the intention to amend the Cabinet Manual accordingly. Or he should explain that he has otherwise condoned departures from collective Cabinet responsibility.

* As much as some will say that collective responsibility is dead, never existed or is not a constitutional convention, I think collective responsibility – at least in a limited form – is a constitutional imperative.

Ostensible unanimity (or public expressions of collective Cabinet views without dissent) is now so circumscribed that is there probably no constitutional rational that justifies it. Constitutional government has survived the public expression of dissent.

However, operational collectivism still remains the glue which binds the Westminster system of government. That is, when individual ministers advise the Governor-General or their respective ministries, they must express the view of Cabinet, not their personal view. This is recognised in cl 5.22 of the Cabinet Manual:

"The principle of collective responsibility underpins the system of Cabinet government. It reflects democratic principle: the House expresses its confidence in the collective whole of government, rather than in individual Ministers. Similarly, the Governor-General, in acting on ministerial advice, needs to be confident that individual Ministers represent official government policy. In all areas of their work, therefore, Ministers represent and implement government policy."

To that extent, collective Cabinet responsibility remains alive and must, I think, still be regarded as an important constitutional convention.

UPDATE (24/2/2011):
I should also add that the wording in the Cabinet Manual about collective responsibility was confirmed by this administration in a Cabinet circular on 16 November 2009:

- http://www.dpmc.govt.nz/cabinet/circulars/co09/COC-09-07.pdf

The inconsistency between stated protocol and actual practice is therefore of quite some concern,

Republic can be a simple matter

2011-02-11T06:54:00.000+13:00

[This OpEd appeared in the DominionPost on 2 February 2011]

New Zealand could and should easily become a republic, says Dean Knight.

MOVING to a republic involves changing our head of state from a hereditary monarch based abroad to a local, chosen by us. The easiest path is to simply promote the governor-general from being our de facto head of state to a real head of state.

Same powers, same functions, same duties, some Treaty obligations, same House - even the same name if we wish.

And the "Crown" and the "Realm" of New Zealand are then rebranded, to the Government and the Republic of New Zealand respectively or something similar. This approach is sometimes called "soft republicanism" - only making the minimum change to our constitutional structures in order to become a republic.

Why?
Nationhood and community identity demand we have a Kiwi head of state. A head of state should represent and reflect the values of the nation. Kiwi-ness is important.

The monarchy's British anchor sits uncomfortably with our present-day vision of ourselves as a nation.

We are a community with different demographics, different cultural mixes, and different aspirations from the community where the Queen resides. Also, under present arrangements, we will never see someone Maori fill the role of head of state.

We have already been described as a "de facto republic". In reality, the governor-general nowadays discharges the functions of the head of state. And when we speak of the Crown, by and large, we mean our executive government or the state.

But it's now time we reflect that reality. While the office of governor- general has evolved to exhibit many of these Kiwi values, their subordinate role - as a substitute for the royals in London - limits the extent to which it can truly be made an indigenous institution.

Who?
This is the key change. No longer should selection of our head of state be hereditary, discriminatory and foreign as is the case with the sovereign. It should be one of us instead.

The easy answer is to elevate the now- de facto head of state. The governor- general becomes the real head of state. No need even to change the name, nor for popular election either. That would risk changing the type of people who fill the office too much - and, perhaps, encourage a popular mandate they can never deliver on in a figurehead role.

But a small tweak would be needed to the current practice of nomination by the government of the day.

Best practice suggests the nominee should have the full confidence of Parliament, on behalf of the people. Any appointment should be ratified by a resolution of Parliament, and passed by a super-majority.

What?
No need to angst about the powers and responsibilities of a new head of state. Legislation would ensure the powers and responsibilities remain the same.

No need for a supreme constitution, nor to codify constitutional conventions around the head of state's obligation to act on the advice of the government or the reserve powers regulating the formation of government. The lodestar of continuity and minimal change will ensure the head of state's operating mandate won't change.

Some say the "thorn" in the transfer of duties from the Crown to the republic is the Treaty of Waitangi. But these concerns are misplaced. As the Treaty obligations have already been transferred, so too can they be transferred to the new republic.

The reality is that, nowadays, it is New Zealand's executive government that is responsible for discharging Queen Victoria's original compact with iwi and hapu. That would continue. The symbolic status of the Treaty - and associated honour of the Crown - must be preserved too. This is important to Maoridom. The minimalism and continuity of soft republicanism helps preserve the extra-legal status of the Treaty.

This can fortified in republican legislation. Treaty obligations will be expressly transferred to the new republic, without promoting or diminishing its present legal status - or preventing its continual evolution. The Treaty's special significance can also be acknowledged in the background preamble.

When?
The pragmatic approach is to defer any change till the Queen dies. This an acknowledgement of the some public fondness toward the present sovereign. But the Queen's longevity is not reason to rest on our laurels. Time is needed to get our constitutional ducks in a row.

How?
The change requires popular support: a referendum. The ultimate power of the people trumps the theoretical arguments sometimes rolled out questioning our nation's power to make this change.

Polls show support for a republic is growing and is strongest among our younger generations.

Naysayers wrongly paint the move to a republic as a complicated mare's nest.

But, if we quell the excitement of constitutional reformers to tinker with every constitutional nut and bolt, it is not. Becoming a republic is quite simple.

No need for a Rolls-Royce. A Toyota Corolla, a minimalist's republic, will be fine.

Dean Knight is a senior lecturer at Victoria University's law faculty, an associate of the New Zealand Centre for Public Law and also the constitutional adviser to the Republican Movement of Aotearoa/New Zealand.

Despatches from a new HQ

2011-02-09T09:56:00.001+13:00

Oh. I should mention that, for a while, blog posts will be despatched from new headquarters - from London.

I'm presently on sabbatical from Vic and have commenced working on a PhD at the London School of Economics and Political Science (http://www.lse.ac.uk/collections/law/
subjects/phd_students/dean-knight.htm).

They have elephants here too, including one in the main street of the university (see photo).

For my PhD I'm thinking about (and writing 100,000 words on!) the different ways the courts calibrate - or should calibrate - how closely they scrutinise the decisions of public bodies and officials when determining applications for judicial review. More on that later, once I get some words on paper...

Anyways, blog posts will continue sporadically on whatever I deem interesting - whether from here or there...

Constructing and deconstructing the EPA?

2011-02-09T06:37:00.003+13:00

I was interested to hear of the government's proposal to merge and reconfigure the government departments to reduce the size of the public service.

The announcement prompted me to recall a tender advert from the new Environmental Protection Agency I noticed in newspapers just before Christmas. I'll get to that in second.

By way of the background, the EPA is primed to take over a number of environmental processing and protection functions of the Ministry for the Environment, the Environmental Risk Management Authority, the Ministry of Economic Development, and the Ministry of Foreign Affairs and Trade.

The Minister, Nick Smith, described the reforms in the following way, when legislation facilitating the changes was introduced to the House late last year:

This bill is an important part of the Government’s programme to strengthen New Zealand’s environment management systems. It is about central government providing stronger leadership on environmental regulation. It is about a balanced approach of growing the economy, but underpinned by sound environmental systems. It is about an efficient Public Service, where we group like activities together under one roof, and it is about ensuring integrity, independence, and consistency in the way we organise our environmental institutions.

I should say at this point, I don't have a strong view either way on the desireability of the new EPA. I'm leaning towards the view that it's probably a reasonably sensible move - especially if it enables central government to better express the national interest in environment matters. But that's by-the-bye.

What was interesting, though, was the EPA's advertisement seeking registrations of interest for the supply of service to it:

We [invite] registration from parties interested in providing professional services for the following service categories:

- RMA national consenting process services
- A range of environmental, economic, social and cultural technical expert services
- Legal services for boards of inquiry
- Dispute resolution and facilitation services
- Voice recording and transcription services
- Interpretation and translation services

(The ROI documents themselves aren't available online now, as tenders closed last month.)

Hmmm. Some of the functions being outsourced, such as transcription and translation services, are standard and expected. However, I was surprised by some of the others: consent processing, dispute resolution and (to a lesser degree) legal services, etc.

I would have thought that these types of services are core services that one would expect an EPA to undertake in-house. They are very much "front-line" services for a consent processing agency. I'd be very interested in seeing more detail about the nature of the functions being undertaken in-house and those being outsourced.

It makes me wonder whether this is a genuine attempt to improve environmental protection and national consent processing? Or whether the merger/reform is simply a covert vehicle for outsourcing government functions - a magical illusion to look like the state sector is being downsized?

Or both?

Pimping Proscriptions

2011-01-29T11:56:00.006+13:00

The new Auckland Council has announced that it will be supporting a local Bill which proposes to give it the power to prohibit street prostitution in specified places throughout the city.

This is a bad Bill. It is unnecessary law-making and lazy regulation.

Local authorities already have the power to address adverse instances of street prostitution, but must do so consistently with the decriminalisation purpose of Prostitution Reform Act 2003.

The effect of the local Bill is to:
- attempt (unnecessarily, in my view) to enlarge the circumstances where the prohibition can be made,
- exempt the local authority from strict scrutiny of its justification for passing such prohibitions, and
- introduce disproportionate penalties for breaching the prohibition.

Let me explain.

The original local bill, the Manukau City Council (Regulation of Prostitution in Specified Places) Bill 2010, was promoted by the Manukau City Council and therefore only addresses Manukau City. However, the new Auckland Council was given the opportunity to make a submission expressing its position following amalgamation. The new Auckland Council supports the Bill and seeks to have to apply to its wider district.

In a nut-shell, the Bill proposes to do the following:

1. It will give the local authority the power to make bylaws designating any public place as "a specified place" where street prostitution is prohibited. A bylaw will only be able to be passed where the local authority is satisfied that such a prohibition is "reasonably necessary" to prevent "nuisance or serious offence to ordinary members of the public using the area" or is behaviour is "incompatible with the existing character or use of that area".

2. An offence, punishable by a $2,000 fine, will be created – criminalising the conduct of the "business of prostitution" or supply or receipt of "commercial sexual services" within the designated place, other than in a brothel.

3. The Police will be given the power to arrest any person where they have good cause to suspect them of committing an offence (and a related power to stop and search any car).

Well, my view is this is totally unnecessary, because local authorities already have the power to address adverse instances of street prostitution. I've very briefly pointed to this argument in a chapter elsewhere dealing with the regulation of prostitution by local authorities (Dean R Knight "The (Continuing) Regulation of Prostitution by Local Authorities" in Gillian Abel and others Taking the crime out of sex work: New Zealand sex workers' fight for decriminalisation (Policy Press, Bristol, 2010) 141-1), but let me expand on it here.

Before a local authority can pass a bylaw, they must have been given authority by Parliament to do so. Lawyers sometimes describe this as having the "jurisdiction" to make a bylaw. But it might be easier to think of it as a gateway. Local authorities can pass through certain gates for the purposes signposted on the front of the gate.

The reforms of local authority law-making powers in 2002 replaced numerous, specific, narrow gates with three wide and generic gates. Nowadays local authorities can make bylaw for the following purposes (s 145 LG Act 2002):
(a) to protect the public from nuisance (s 145(a));
(b) to protect, promote, and maintain public health and safety (s 145(b));
(c) to minimise the potential for offensive behaviour in public places (s 145(c)).

In addition, local authorities are given an additional suite of narrow and specific gateways. These includes the power to "regulate … trading in public places" (s 146(a)(vi) LG Act 2002) and the power to regulate the location of brothels (s 14 Prostitution Reform Act).

Hmmm. This is where it gets interesting.

Go back and look at the circumstances set out in the proposed local bill where bylaws will be able to be passed:
- reasonably necessary to prevent nuisance -> already addressed by s 145(a);
- reasonably necessary to prevent serious offence to ordinary members of the public using the area -> already covered by s 145(b);
- behaviour is "incompatible with the existing character or use of that area" -> this is not covered in the generic gateways.

But then there is the more specific power to regulate "trading in public places", without any express limitation. This would readily cover concerns that trading – which must include the provision of commercial sexual services – is incompatible with the existing character and use of the area. That power has been used to address a wide range of problems and issues arising from street trading and there's no reason to suspect it can't address trading of sex services when part of that trading occurs in public.

So, when viewed in the round, three of the new gateways sought are already provided for in existing local government legislation. Unnecessary law-making.

What then does the Auckland Council (and formerly Manukau City) want? Why isn't it prepared to rely on its pre-existing powers?

In my view, it is eager to get a more specific gateway to pass a bylaw because it is easier for it to justify its use to the courts.

Unlike Parliament, laws made by local authorities can be invalidated by the courts. Typically the courts will do so where a local authority tries to make a bylaw:
(a) where it has no power to do so (ie, a local authority passes a bylaw without passing through a gate or passes through a gateway for the wrong purpose),
(b) where the bylaw is unreasonable, or
(c) where the bylaw is irreconcilably inconsistent ("repugnant") with other laws.

I've set out earlier why I don't think ground (a) is a problem. In my view, local authorities have the power or jurisdiction to make such bylaws.

Any trickiness arises from grounds (b) and (c). And it gets little trickier as these two grounds tend to merge.

These two grounds allow the courts to assess the purpose, merits and effect of the bylaw and to scrutinise, in the round, whether the local authority has a sound justification for the bylaw. I've argued elsewhere that this effectively involves assessing the "proportionality" of the bylaw – a fancy lawyer's term for a cost-benefit calculus. Law-making must be objectively demonstrated to be justified.

Now, because local authorities are elected bodies subject to the checks-and-balances implicit in the governance and electoral processes, courts nowadays cut them some slack. Usually, they're unlikely to second-guess the judgements made by local authorities about whether something is justified – unless those judgements are really crazy or there has been no attempt to provide such a justification (see, for example, Conley v Hamilton City).

But in some circumstances the courts scrutinise the justification more closely, particularly where the bylaws may have serious adverse consequences or may undermine other legislation.

The regulation of street prostitution is one of those circumstances, I think. If a bylaw passed under existing powers was challenged, the courts would be anxious to ensure that the bylaw did not undermine the purpose and spirit of the Prostitution Reform Act. This Act decriminalised prostitution for a number of reasons. Implicit in the multi-faceted purpose of the Act is the notion that criminalisation of prostitution marginalised sex-workers, sending them underground. This made it difficult to provide them health and safety support and welfare measures they needed. The Prostitution Reform Act ushered in a new regime supportive of sex workers.

So, the courts would be concerned if the banning of street prostitution might undermine that objective. But the nature and context of the bylaw would be critical. For example, a modest and targeted prohibition of street prostitution might be okay, where there are serious adverse effects on the public. But a ban throughout much of the district or realistic areas where sex workers operate probably might not. The courts would be likely to insist any measure was carefully tailored and narrowly circumscribed.

The courts' view might also depend on the liberalism of (related) brothel bylaws. If a local authority makes a conscious decision to encourage the transition of sex workers from the street into brothels and had limited regulation of the local brothels, then that might mean a street prostitution bylaw might be justified. But if the combined effect of a brothel bylaw and street prostitution bylaw was to try and snuff out prostitution, then the court would most likely intervene.

Similarly, the courts are likely to insist that the mischief that a street prostitution bylaw seeks to address is robustly proven and evidenced. That's part of the care to make sure it doesn't unduly impact on the decriminalisation regime. Anecdote and bald assumptions are not enough.

That's really a long way of saying that I think, under existing law, the courts will allow local authorities to ban street prostitution, as long as any bylaw is carefully constructed and robustly justified. And the courts will scrutinise this quite closely.

But, under the proposed local Bill, things would be turned on their head. Presented with a more specific gateway, the courts are likely to revert to light-handed review. The courts will take the view that Parliament has spoken and given a express mandate for street prostitution to be regulated, without any concern about its impact on the previous decriminalisation agenda. Under the new regime, the local authority would not need to present the same degree of justification and evidence. Its assessment of the need for a bylaw would be more benevolently accepted by the courts. A case would still need to be made, but the threshold of justification would be much lower.

I think that's bad in principle. Lazy regulation, though a limited need to justify the course of action.

At the end of the day, the regulation of street prostitution would amount to the repudiation of the decriminalisation solution. Local authorities would, through the back door, be able to recriminalise prostitution. This would undo the positive effects of decriminalisation (if you're uncertain about this, see the evidence in the Prostitution Law Review Committee's report and the book on the reforms: Gillian Abel and others Taking the crime out of sex work: New Zealand sex workers' fight for decriminalisation (Policy Press, Bristol, 2010)).

One final point. The local bill seeks to augment the recriminalisation by including the power of arrest for suspected offences, even though the offence is fine only ($2,000 max) and falls in the class of minor environmental or regulatory offences. Usually, the arrest power is reserved for offences punishable by imprisonment – otherwise the sanctions are disproportionate to the seriousness of the offending (or lack thereafter). Here, the proposed arrest power adds a coercive element that means the sanctions are disproportionate to the mischief caused.

This Bill is unnecessary and bad in principle. Let's hope the Select Committee sees sense and votes it down.

Alcohol, driving and the precautionary principle

2011-01-05T13:16:00.002+13:00

- RadioNZ: "Joyce still not convinced about lower alcohol limit"

RadioNZ reports that Minister of Transport, Steven Joyce, says "more evidence is needed before the Government will consider lowering the general drink-driving limit". Others such have David Farrar have echoed the claim that specific evidence is needed that lowering the drink drive limit will have an instrumental effect on the number of road deaths and accidents.

Baloney.

Yes, changes to laws should be justified. But, no, the justification need not be specific evidence.

Both Joyce and Farrar are ignoring the precautionary principle.  In general terms, this principle says that, in relation to risky activities where there is scientific or empirical doubt about the nature and extent of the risk, policy- and law-makers should favour the course of action which avoids the risk. That is, in the face of uncertainty, the burden shifts to those undertaking the risky activity to demonstrate it is not harmful. This principle is especially common-place in areas such as public health and environmental law; for example, it is specifically recognised in s 32(4)(b) of the Resource Management Act 1991.

So, we know that drink driving is a risky activity. That's why we prohibit driving above the current blood-alcohol level (80mg).  If there's doubt about whether driving while above a reduced limit of 50mg (which I not sure there is doubt about when looking at international practice), then the precautionary principle would favour lowering the limit anyway and collecting data to demonstrate it is not risky or has no instrumental influence on road accidents and deaths - not the other way around!

Ultimately, these things involve a cost-benefit calculus. There are seldom king-hits in law- and policy-making. A balance must be drawn.

Joyce and Farrar et al are, however, underplaying the benefit (risks avoided) of lowering the limit by proclaiming uncertainty about their nature and extent.  In this context, though, we're entitled to assume there is a risk associated with driving with a blood-alcohol of over 50mg, unless evidence shows otherwise. This means, for the purpose of the cost-benefit calculus, we can assume lowering the limit is beneficial

Of course, on the other side of the ledger, we can also say there is negligible cost associated with lowering the blood-alcohol limit. First, there is no social utility associated with driving having drunk that amount of alcohol. Secondly, a limit of 50mg still allows a buffer. It avoids criminalisation of behaviour which is not risky. Officials have confirmed that it will still allow folk to have a drink or two before driving without risking being over the limit.

This is a no-brainer. Our intuition tells us lowering the limit to 50mg is a sensible measure. It's supported by sound principle.

A Kiwi New Year message - from our de facto Head of State

2011-01-01T19:01:00.001+13:00

Sir Anand Satyanand has released his regular New Year message:

- http://www.gg.govt.nz/node/3488

The New Year is a time when we look ahead, and also a time to consider the year that has passed. Any year inevitably has its highs and lows but 2010 is one that New Zealanders will remember for its tragedies and natural disasters, including the deaths of members of the New Zealand Defence Force and, most recently, the terrible loss of 29 miners at the Pike River coal mine.

Despite such adversity, however, my wife Susan and I have also observed the strength and resilience that characterises the people of New Zealand and the fundamental values that we all share. The Canterbury earthquake in September, for example, caused massive damage that will take a long time to repair. It was a miracle that no-one was killed, and for that we can be grateful and, as well, for the timing of the earthquake and for the high standards of New Zealand’s building code.

While the fabric of homes, buildings, and roads was damaged, the fabric of the community remained strong. Rescue, emergency and civil defence services responded promptly, and the government and local councils began quickly the difficult and complex task of planning for rebuilding and restoration.

On two visits to Canterbury since the earthquake we have observed the response of the community to those most in need—neighbours helping neighbours, volunteers lining up to provide assistance of every kind, and support in donations flooding in from throughout New Zealand.

Alongside these challenges, New Zealanders also shared some highlights. For example, New Zealanders continued to shine in the world’s sporting arenas, with achievements at the Commonwealth Games in India, the FIFA World Cup in South Africa, the Rowing World Championships at Lake Karapiro, and the Kiwis clinching the Rugby League Four Nations competition. Although the inaugural Constellation Cup for netball was won by Australia, it was a pleasure to be in Delhi and see the Silver Ferns win the final. The All Blacks’ performance in the Bledisloe Cup, Tri-Nations Championships and another Grand Slam, are all good signs for the Rugby World Cup in a few months.

In January, HRH Prince William New Zealand opened the new home of New Zealand’s Supreme Court by on behalf of Her Majesty The Queen. In October, Government House in Wellington, which has been closed for two years for a major conservation project, marked its centenary and Susan and I both look forward to welcoming New Zealanders back into the restored House in a short while.

This year will also see the end of our five year public journey in the role of Governor-General. It has been a privilege to acknowledge the efforts of a great many New Zealanders, both young and old, who are working to make our country a better place. The optimism, positive spirit and determination of people we have met in this way will be among our most treasured memories.

Susan and I have observed many times the extent to which fundamental values remain embedded in our national culture. Qualities such as tolerance, good-hearted concern for others and a practical can-do attitude, provide optimism for New Zealand’s prospects. As we join family and friends to enjoy the summer holidays, let us renew a commitment to these values, to ensure that they remain at the core of what makes us New Zealanders.

Rt Hon Sir Anand Satyanand, GNZM, QSO
Governor-General of New Zealand

Some thoughts.

First, it's a shame this message isn't broadcast on the telly or radio. A printed release tends to get lost, despite it being intended as an address for the nation.

Secondly, compare the Governor-General's message to the Queen's Christmas Broadcast:
- http://www.royal.gov.uk/ImagesandBroadcasts/TheQueensChristmasBroadcasts/
ChristmasBroadcasts/ChristmasBroadcast2010.aspx

The Queen's message is generic, bland and foreign (and - surprisingly and uncomfortably - very biblical). The message shows thatcNew Zealand is not really on the radar of the British Monarchy, with no specific mention or acknowledgement of the matters of concern to Kiwis. In my view, the message stands as a strong reminder of the irrelevance of the Royals to Kiwis.

In contrast, Sir Anand's message touches on the events that have been central to the lives of Kiwis over the last year. Our tragedies. Our triumphs. A message that is more germane to our community.
If we're serious about having our Head of State fulfil their role as a community leader, reflecting the aspirations and agonies of a nation, then it seems plain to me that the Queen has done her dash. It's time our de facto Head of State, the Governor-General, be given that responsibility in their own right. Let's cut ties with the Monarchy and promote the Governor-General to Head of State.

New Zealand Order of Merit: Te Reo Appellations

2010-12-31T08:17:00.001+13:00

You probably know that I previously agitated for the return of titular honours for the NZ Order of Merit. My support for the return of the old titular honours - the Knighthoods and Damehoods - was, however, teamed with the belief that we could also make the titular awards more Kiwi by formally providing for Te Reo translations or equivalent appellations.

Possible appellations could be, "Tā" (Sir) and "Kahurangi" (Dame). However, the development of these appellations probably should involve Māoridom and the Māori Language Commission to ensure they are appropriate and supported. Honorands could choose to adopt the English version or Te Reo.

Imagine this year's honours:

- Sir Raymond John Avery, Auckland, for services to philanthropy.
- Dame Alison Margaret Holst, CBE, QSM, Orewa, for services to the food industry.
- Tā (Sir) William David Baragwanath, for services as a judge of the Court of Appeal.
- Sir William Murray Gallagher, CNZM, MBE, Hamilton, for services to business.
- Sir Richard Michael Hill, CNZM, Arrowtown, for services to business and the arts.
- Sir James Henry Peter McNeish, Wellington, for services to literature.
- Tā (Sir) Tamati Muturangi Reedy, Wellington, for services to education.

I suspect, in the first instance, interest in the Te Reo appellations would come from Māori honorands or those Pākehā with strong connections to Māoridom. However, that might change over time as the appellations gain greater recognition.

I know each time this possibility has been raised, there seems to be general support for a change like this. It's also consistent with our practice of incremental evolution and patriation of our customs and traditions.

There are also a couple of other reforms needed to the titular awards to remove some old gremlins:

1. The accolade of Knighthood (the dubbing of shoulders with the ceremonial sword) is only conferred on men. This can and should be changed to also allow women to be so dubbed.

2. The courtesy title "Lady" is customarily only used for wives of Knights who take their husband's name (http://www.dpmc.govt.nz/honours/overview/titles-and-styles.html). The courtesy title does not apply to unmarried or civil union couples. There is no provision for same-sex couples. There is also no equivalent courtesy title for males spouses. We can and should abolish courtesy titles for new awards. That is, we can provide in the NZOM statutes that, for new honorands, their wives are not entitled to the courtesy title of Lady.

LINKS
- LAWS179: "New Zealand Order of Merit: Restoring Titular Titles"
- LAWS179: "New Zealand Order of Merit (Titular Titles) Bill"
- LAWS179: "New Zealand Order of Merit (Titular Titles) Bill: My New Year Honours List"
- LAWS179: "Queen's Birthday Honours"
- LAWS179: "New Zealand Order of Merit: new Knighthoods and Damehoods"

Constitutional review: broad cross-party support?

2010-12-17T08:15:00.000+13:00

The constitutional review was finally announced last week:

- www.beehive.govt.nz/release/govt-begins-cross-party-constitutional-review

It's a long-term project, so forgive me if I take my time to digest it before posting more.

I shared some of my initial reactions on the Court Report this week:

- tvnz.co.nz/the-court-report/court-report-index-group-3602627

And my law buddy, Andrew Geddis, has some typically wise analysis and a set of predications over at Pundit:

- www.pundit.co.nz/content/what-the-constitutional-review-will-recommend-you-heard-it-here-first

But, one thought to set the rolling maul of constitutional navel-gazing off.

Bill English proclaimed that any significant constitutional changes would require overwhelming support:

"Significant change will not be undertaken lightly and will require either broad cross-party agreement or the majority support of voters at a referendum,"

Good call.

But, based on this principle, does that mean the government won't be amending the jury trial threshold in our Bill of Rights unless they can garner broad cross-party support for the change?

- www.legislation.govt.nz/bill/government/2010/0243/latest/DLM3360694.html

TID-BIT: Provocative Provocation

2010-11-29T09:41:00.000+13:00

I, for one, am pleased we got rid of the partial provocation defence and instead left matters of mitigation for judges in sentencing. The defence was plagued with uncertainty, complication and latent prejudice.

It's interesting therefore to see the Canadian Supreme Court response to some of these problems. They had to consider whether the allegedly provocative act -- a woman's sexual involvement with another man after the couple had separated -- was sufficient to form a foundation for a provocation defence. It wasn't.

http://scc.lexum.umontreal.ca/en/2010/2010scc58/2010scc58.html

An excerpt:

[18] The common law defence of provocation was adopted and codified in the Canadian Criminal Code from its inception in 1892. The wording of s. 232 remains substantially unaltered. The same cannot be said of the social context in which it is embedded. The continued appropriateness of the defence has been a source of controversy, both in Canada and abroad. Some commentators and reviewing bodies have recommended that the defence be abandoned altogether, leaving provocation, when relevant, as a factor to be considered in sentencing. For a discussion of such reform proposals in Canada and elsewhere, see D. E. Ives, “Provocation, Excessive Force in Self-Defence and Diminished Responsibility”, in Law Commission of Great Britain, Partial Defences to Murder: Overseas Studies, Consultation Paper 173 (App. B) (2003), 73, at pp. 78-81; Australia, Victorian Law Reform Commission, Defences to Homicide: Final Report (2004); New Zealand Law Commission, The Partial Defence of Provocation, Report 98 (2007).

[19] Parliament has not chosen this course and the defence continues to exist in Canada. This does not mean, however, that the defence in its present articulation should not continue to evolve to reflect contemporary social norms, and in particular, Charter values. Just as at common law the notion of an “insult ... sufficient to deprive an ordinary person of the power of self-control”, now codified under s. 232, is not frozen in time. By incorporating this objective element, the defence of provocation is necessarily informed by contemporary social norms and values. These include society’s changed views regarding the nature of marital relationships and the present reality that a high percentage of them end in separation.

TID-BIT: Privacy and Pike River

2010-11-26T16:11:00.000+13:00

An excellent post from my colleague and privacy expert, Dr Nicole Moreham, on the legal implications of the media coverage of Pike River:

http://15lambtonquay.blogspot.com/2010/11/privacy-and-pike-river.html

POP QUIZ: Queen and Commonwealth

2010-10-15T09:45:00.007+13:00

So, over the last couple of weeks we've been watching 54 Commonwealth nations battle for sporting medals.
But some constitutional questions:
Q1. How many of the nations are monarchies with Queen Elizabeth II as Sovereign?
Q2. How many of the nations are republics.
Q3. How many of the nations are monarchies with a different Sovereign?
Answers in comments.

Breaking ties: drawing lots, tossing a coin, hand of poker?

2010-10-12T12:17:00.007+13:00

The DomPost is reporting that the Wellington mayoralty might be settled by a coin toss:

COIN TOSS COULD SETTLE WELLINGTON MAYORALTY
Wellington's mayoral race could be decided by a coin toss.
But the pendulum may be swinging back in Kerry Prendergast's favour, with nearly 200 of the special votes that will decide the city's knife-edge election being discounted.
Election officials sorting through hundreds of special votes say that, in the event of a tie, names could be drawn from a hat or a coin could be tossed, under police supervision.
"We'd obviously get legal advice on this, but my understanding is that it would be determined by lot," electoral officer Ross Bly said. ...

A great story, but – in this case – wrong. I hope Bly seeks legal advice on the point.
Bly is partly right though. The usual practice with first-past-the-post local elections is for ties to be resolved by the drawing of lots. Regulation 58(5) of the Local Electoral Regulations 2001 provides:

(5) If, in acting under subclause (3), there is an equality of votes between candidates and the addition of 1 vote would entitle any of those candidates to be declared elected, the electoral officer must determine by lot which candidate is to be declared elected.

There is the live question of what "determine by lot" means in this context. I don't think it includes tossing a coin, although given the randomness of the method, I doubt it would be challenged. Drawing marked pieces of paper or playing cards are common methods I understand.
As an aside, I am told that in Texas the prescribed method is playing a hand of poker! (Bonus points if someone validates this and forwards the legislative provision.)
But, in the case of the Wellington mayoralty, the election is conducted under STV and there is no direct equivalent to regulation 58(5). Instead, I understand, the certified counting programme makes provision for resolution of ties through the generation of a random number. Clause 34 of Schedule 1 to the Local Electoral Regulations 2001 provides:

Ties
cl 34 This clause applies if—
(a) a candidate with the lowest number of votes is to be excluded but 2 or more candidates share the lowest number of votes; or
(b) a candidate whose votes equal or exceed the absolute majority of votes is to be elected but 2 candidates' votes equal the absolute majority of votes.
If this clause applies, in the case of (a), exclude the candidate identified by the AAFD method as the candidate to exclude. If the AAFD method does not identify a candidate to exclude, exclude the candidate with the lowest PRN. In case of (b), the candidate who is not excluded is elected.

The regulations define PRN as "the pseudo-random number generated by the PRNG method" – a method which is described in the regulations.
So, yes, a tied vote for the mayoralty might be resolved randomly. But, no, it won't be through the toss of a coin (as exciting as that would be!)

ACADEMIC IDOL: Yes, thanks, and sorry for all the spam...

2010-10-08T18:12:00.001+13:00

I think I had earlier said there would be no more spam. So forgive this last missive.

Yes, the competition did close at 5pm, yesterday. And, no, we don't know the results yet. I'm told we won't know until the final edition of Salient hits the news stands on Monday morning.

I do want to thank you though for tolerating all the spam, personal haranguing and other nonsense over the last 12 weeks or so.

I know I told some of you at the outset that I only wanted to make sure I wasn't voted off the island in week 1. I was wrong. My competitive rugby streak eventually took over – when one plays, one plays to win. Well, one plays hard, clean and fair – and then hopes that is enough... I dunno whether it's worked, as it sounds really close!
And thanks also to the anonymous "campaign" team, known by their nicknames of Will Bailey, Josh Lyman, Sam Seaborn, and Ainsley Hayes, to name a few.

But there's another dimension to the competition that's probably more important. It's nice to have some interaction and friendly rivalry between the faculties and schools at Vic. I know the Uni is working on improving the student experience. However, a conversation this week reminded me how fragmented the collegial experience is at Vic. I know this as an alumnus and now one of the staff. The physical architecture plays against faculty-interaction, with disparate campuses. I worry about the silo-effect this creates, especially for law students at Old Government Buildings. Pride in the law school is one thing, but a connection to the wider University community is also important. So these opportunities for real or virtual Faculty-interaction – like Idol, the 3 Minute Thesis Comp, Law vs Geo rugger etc – are really important and I'm pleased have had the chance to support this one.

And, you may not realise this, but the Idol candidates have engaged in a little bit of our own friendly rivalry and banter throughout the competition (and plan to honour the weekly pain of answering silly questions with a few drinks once the damn thing is announced...). As competitive as it might have been, it's hard to get too wound up when the competitors aren't enemies and are all great folk - witty, cheeky and also passionate about the University/teaching mission.

And, yeah, it was kinda hard to come up with some of those answers and some of mine were a little bit naff. There's one, though, I was pretty proud of in the end, my acrostic poem:

AN ODE TO (PUBLIC) LAW
Daring adventures in the common law
Examining judgments for their every flaw
Abstract, though, the law is not
Ne’er the people should be forgot
King, Queen, and Guv’nor lead our realm
Nay, their ministers at the helm
In our names, they serve and reign
Good governance is our refrain
Hapu, family, plumber, and more
Tis people at the heart of law

ACADEMIC IDOL UPDATE: Grand Final week

2010-10-07T08:43:00.000+13:00

It's the Grand Final this week – in fact the final day of voting today. I managed to squeak into the Final Two. Me against a guy from Psych.

THIS WEEK'S QUESTION
If you were going to commit a crime, which one would it be and how would you justify it to the public (if you get caught)?
Bonus question: Capybaras—yay or nay?

DEAN KNIGHT, LAW
"C'mon! You can't ask a legal academic that question. We believe in the Rule of Law! Well, perhaps. Maybe. Or maybe only one or two of the different conceptions of the Rule of Law…
Anyways, the whole point about being a smarty-pants lawyer is we know what's illegal and what's not. And we know how to argue about the grey areas in order to avoid being convicted. No need to justify anything if you don't commit the crime.
- Parking in a loading zone (Land Transport (Road User) Rule 2004, r 6.4)—not a crime after 6pm, unless the sign says "At All Times".
- Urinating in a public place (Summary Offences Act 1981, s 32)—not a crime if you reasonably believe no-one can see you.
- Drinking booze in a liquor ban zone (Local Government Act 2002, s 147)—the Police first have to analyse and prove the liquor is more than 1.15% strong.
- Stealing a baby's identity to get a false passport (Tough on Crime Act 2010, s23)—you're immune if you're a member of the Sensible Sentencing Trust.
- Breaching any law of the land in the name of the earthquake recovery effort (Canterbury Earthquake Response and Recovery Act 2010, s 6)—not if you have a note excusing you written by Lord Gerry VIII…

And Capybaras? Meh. I have no opinion. I have no beef with big rodents that swim in water. But, really, is that the last word from the Island of Academic Idol? Capybaras? Sigh."

So that's it. If you reckon I have done enough to Outwit, Outplay and Outlast (or Outspam?) – or just want to support the law guy – then you can text "Dean" to 027 CUSTARD (+64-27-287-8273) or editor@salient.org.nz; by 5pm Thu (NZT). Apparently you don't need to be at Vic to vote.

ChchEQ: Vast power - but for whom?

2010-10-04T22:32:00.002+13:00

A small point which needs clarifying.

Much has been made about the power that the Canterbury Earthquake Response and Recovery Act 2010 gives to Gerry Brownlee as Minister for Canterbury Earthquake Recovery to suspend, exempt or extend existing laws under the powerful Henry VIII clause.

But a careful reading of the Act makes it clear that the power is in fact conferred on "any relevant minister"; that is, "the Minister who is, with the authority of the Prime Minister, for the time being responsible for the administration of the enactment [being amended]" (ss 4 and 6). This could be any of the present Ministers, not just Gerry Brownlee.

So the Orders presently promulgated must have been recommended by the following Ministers:

Chris Finlayson (Canterbury Earthquake (Historic Places Act) Order 2010)
Nick Smith (Canterbury Earthquake (Resource Management Act) Order 2010)
Stephen Joyce (Canterbury Earthquake (Transport Legislation) Order 2010)
Rodney Hide (Canterbury Earthquake (Local Government Act 2002) Order 2010)
John Carter (Canterbury Earthquake (Civil Defence Emergency Management Act) Order 2010)
Maurice Williamson (Canterbury Earthquake (Building Act) Order 2010)

[And also:

Paula Bennett (Canterbury Earthquake (Social Security Act) Order 2010)
Rodney Hide (Canterbury Earthquake (Local Government Official Information and Meetings Act) Order 2010).]

Rather confusingly, the Act also refers to 3 responsible Ministers: the Minister for the Environment; the Minister of Finance; and the Minister for Canterbury Earthquake Recovery. These are the ministers responsible for, amongst other things, the appointments and other administration of the Act.

One point I'm not entirely certain about is the collective process for promulgation of the Orders. I have heard conflicting explanations of whether or not all the Orders are subject to Cabinet sign-off or not. The usual process in the Cabinet Manual is that any such orders made in Council are signed off by Cabinet as a whole. But I recall the Minister originally saying that proposed Orders would circumvent Cabinet itself and only be considered by the special Canterbury Earthquake Cabinet Committee. I would be grateful if anyone could confirm the present position.

ACADEMIC IDOL UPDATE: Final 3

2010-09-30T10:15:00.000+13:00

I've been a touch distracted by academic "hand-wringing" and "sipping lattes", so this week's Idol update is a little late.

Anyways, it's down to the Final 3: me, someone from Psych, some guy with barefeet from CompSci.

This week's question was:
Out of flight, invisibility and telepathy, what super power would you have and what crimes would you solve with it?

My answer:
"Pfft. Such silly super-powers when it comes to solving the real crimes in our world today. Constitutional crimes. Assaults on democracy. Political felonies.

One needs special legal, forensic and constitutional super-powers to solve these crimes—not smarty-pants, cartoon-like powers. The power to sniff out a violation of the Rule of Law at 100 yards. The power to quickly parse a long, multi-judgment decision of the Supreme Court for a breach of the separation of powers. The power to bang one’s fist firmly and loudly, with Sir Geoffrey Palmer-style, hyperbolic constitutional outrage.

Actually, telepathy might be helpful—if not just to work out what “Gerry order” is being dreamt up in the mind of our now omnipotent Earthquake minister!"

Voting closes at 5pm today (Thursday). I hear that it's me and the guy with the barefeet who are fighting it out for this week's wooden spoon... so there's a reasonable chance this might be my last update from the Island.

If you want to vote, text"Dean" 027 CUSTARD (+64-27-287-8273) or editor@salient.org.nz. Apparently you don't need to be at Vic to vote.

Judicial Misconduct: another round in the saga

2010-09-28T16:19:00.000+13:00

A very quick post.

A full bench of the High Court has just released its decision, directing that the Judicial Conduct Commissioner reconsider his decision to recommend a Judicial Conduct Panel be convened to consider the complaints about Justice Wilson's disclosure in the Saxmere litigation:

http://www.courtsofnz.govt.nz/cases/wilson-v-attorney-general-3/at_download/fileDecision

Let's be clear about what it says and its likely consequences.

First, it's very much a technical decision about how the Commissioner should have framed and referred the complaints for consideration for the Panel. In a nut-shell, the Commissioner was wrong to refer the whole bundle of complaints. He should have formed a view on each and every complaint and specified with some particularity which conduct warranted inquiry by the Panel. As a consequence, some complaints which were trifling were wrongly added into the mix; the main complaint - while sufficient for further investigation - was not framed carefully enough when it was referred; and complaints about the judge's conduct between the two Supreme Court decision were referred without an opinion being specifically reached on whether they justified further investigation for the Panel.

Secondly, on the marquee complaint that the Commissioner relied on to recommend a Panel be convened, the High Court is clear that the Commissioner's vetting process was proper and consistent with the Act. The Commissioner properly appreciated the standard of conduct that, as a matter of constitutional law, justified removal of a judge from office and justified further investigation. The Commissioner also properly applied this standard when reviewing the factual allegations made. The Court said (at [91]):

"The important point is that the Commissioner considered that deliberate non-disclosure was a sufficiently plausible possibility to warrant further inquiry being made. We agree with the Commissioner’s conclusion that conduct of that type, if established, might warrant consideration of the removal of the Judge. We also accept Mr Goddard’s submission that in reaching that view the Commissioner formed the opinion that s 15(1) required of him."

The Court said the Commissioner correctly took the view that evaluation of whether, as a matter of fact, the allegation of deliberate non-disclosure was made out was a matter for the Panel, not the Commissioner. This is important as the allegations remain only that: allegations. Questions of proof are for the Panel.

The problem was in the way the complaint about the allegation was referred. The Commissioner needed to "go further and identify the aspects of the Judge's conduct that constituted the matters that were to be the subject of the Panel's inquiry" (at [94]). A blanket referral of the allegations was not enough; only those parts of the allegations that met the legal and constitutional threshold for further investigation could be referred.

Finally, this decision is undoubtedly not going to halt the process. The Court has agreed that the marquee complaint justified further investigation by the Panel. The Commissioner will undoubtedly frame that with the particularity the Court requires. The trifling or peripheral allegations that do not met the legal and constitutional threshold will fall away. The only question of substance that remains is whether the marque complaint will be augmented by a further finding and referral of complaints about the judge's conduct between the 2 Supreme Court decisions. The judge will be called on to respond to very specific allegations about his conduct, rather than a generalised complaint about the entire saga.

I ♥ Local Government

2010-09-24T09:31:00.003+12:00

Okay. I'm a local government geek. I used to work in the sector. Nowadays I teach and research in the area.

But, more fundamentally, local democracy is important. In many respects, it's the form of government we are most likely to interact with, more often and more directly than central government.

In a paper recently, I tried to capture this essential feature of local government ("Local Authority Decision-Making and the Consideration of Community Views: Obligation and Observance", Paper to "We The People(s)" conference):

Local government is, at least in aspiration terms, all about "the peoples". The very raison d'être of local government is the facilitation of citizen participation and local self-government. The famous Widdicombe report – United Kingdom's parliamentary inquiry into the conduct of local authority business – marked out "participation" as one of the three valuable attributes of local government, along with pluralism and responsiveness:

"Local government offers two kinds of participation; participation in the expression of community views and participation in the actual delivery of services. It does so both through the process of electing representatives as councillors and through the opportunity to influence local government more directly through consultation, co-option, and local lobbying."

In a similar vein, an earlier inquiry emphasised the importance of the democratic feature of local government, reminding us that local authorities are a crucial element of "government" and should not be regarded as merely a provider of services:

"The importance of local government lies in the fact that it is the means by which people can provide services for themselves; can take an active and constructive part in the business of government; and can decide for themselves, within the limits of what national policies and local resources allow, what king of services they want and what kind of environment they prefer."

Nowadays the reference to "government" (the formal institutions of the state) has been replaced with the more fashionable term "governance" (the latter to the wider collaborative process of decision-making) in order to reinforce the centrality of the citizenry to the affairs of the local state. Framed in this way, local governance better captures the idea that governance is "the joint work of government and civil society" and governance "cannot be done by government alone".

The democratic essence of local government is sometimes expressed in more colloquial terms: "grassroots" or "flaxroots" decision-making. The neighbourhood is identified as a "site of democracy". Some suggest there is much greater potential for political participation by citizens at a local, rather than central, level.

Recent reforms in New Zealand's local government framework have also placed the notion of citizen participation at its heart, with a new statement of the very purpose of local government. In addition to the substantive goal of promoting community well-being, local government is charged with enabling "democratic local decision-making and action by, and on behalf of, communities". This lodestar is buttressed by a number of more specific principles, and processes which aim to facilitate interaction between the citizen and the local state. Most significantly, the regime imposes a specific obligation on local authorities to take into account community views when making decisions.

Of course, local government doesn't always deliver on this lofty aspiration as much as we would like (that's something I address further in my paper). However, the "neighbourhood" continues to be a rich place for democracy.

That's why I always get quite excited when I receive my voting pack for the local elections in the mail. Voting is one of great rights - and privileges - of living in a democracy. Others are urging folk to make sure you exercise that right. I echo that too.

But, unlike others, I'm not a disappointed by the usual voter turnout. It's often used - unfairly, I think - to condemn the legitimacy of local government. Some context is needed.

In 2007, the average voter turn-out for territorial authority (city and district council) elections was 52% (http://www.localcouncils.govt.nz/). The highest turnout was 67%; the lowest 34%. For regional councils, it is slightly lower.

That compares with around 79% for the recent 2008 national election. But remember, central government takes around 40% of household income, while local government is closer to 4%.

And, some figures from Local Government New Zealand ("Mythbusters: examining common perceptions about local government in New Zealand") locates our local election turnout in a broader international context:

Jurisdiction	Turnout % (post 1995)	GDP Share
Denmark	72%	33%
Ireland	50%	6.8%
New Zealand	49.7%	3.1%
Netherlands	47%	15%
United Kingdom	35%	13%
Western Australia	34%	2.9%
British Columbia	30.7%	7.5%

Of course, the form and functions of local government varies around the world. So the figures note the contribution of local government to GDP as a crude proxy of its significance in the dynamics of the different countries.

I think viewed in this broader context, our voter turnout isn't that bad. It's lazy journalism to baldly lament low voter turnout.

We can, of course, do better - but that's up to you folk, making sure you vote!

Your mission... to rank or not to rank?

2010-09-22T20:35:00.002+12:00

Help!
A conversation on a (hijacked) Facebook thread has thrown up a conundrum: to rank or not to rank candidates you don't like in STV elections.
There are differing views.I recall a presentation from an electoral officer, demonstrating the iterations of STV computations, that suggested it was better not to rank your enemy, rather than ranking them lowly. If you rank someone, you risk transferring some of your single vote to them, hence helping them get elected.
Others, including our resident electoral boffin, Graeme Edgeler, think this is daft and disagree. They've tried to explain in narrative form why I must be wrong. But I'm not yet convinced.
Your mission, if you choose to accept it, is to demonstrate who is right. And best that the proof shows some example iterations or other evidence that proves or disproves one of the views. We're not going to resolve this debate merely through a voice vote!
This message will self-destruct in 5 seconds. Well, perhaps once we find an answer...

IDOL UPDATE: Still lurking in the final four...

2010-09-21T21:48:00.000+12:00

It seems a fictional character was evicted from the Island of Academic Idol this week, so I'm still alive.

My frustration with the recent threats to our constitutional fabric may have come through in my answer to this week's question. Sigh.

http://www.salient.org.nz/blog/academic-idol-round-eight-2

You have found a magical genie in a bottle. The magical genie can grant you three wishes. What would your three wishes be?

The rules outlined in the Disney animated classic Aladdin apply:
1.You can’t wish for more wishes.
2.You can’t wish to bring someone back from the dead.
3.You can’t make anyone fall in love with you.

How to vote: text 027 CUSTARD or email editor@salient.org.nz by 5pm Thursday.

Dean Knight, Law

"One wish only please.

A wish that we didn’t just wish for things, but we made things happen ourselves.
Not just wishing that the government didn’t pass Muldoon-like powers in the name of the earthquake. People actually speaking out against it.
Not just wishing our local democracy was better. People actually voting to make it better.
Not just wishing MMP wins the upcoming referendum. People educating friends and family about why it’s better than FPP.
Not just wishing the student associations were more representative and robust. People participating to make it so.

I know. An earnest response. No jokes about the Iliad, Marc’s telly show or Pondy’s bare feet. I wish I was more funny… sigh."

Idol Island and Eating Cockroaches

2010-09-15T21:38:00.000+12:00

The constitutional shenanigans at Parliament this week have distracted me from updating folk about my continuing survival on the island of Academic Idol. Down to the final four.

But it seems this week I am truly going hungry - and I am consigned to eating cockroaches!

http://www.salient.org.nz/blog/academic-idol-round-seven-2

Q: The Vice Chancellor, your top student and your favourite movie star are around for dinner. To your HORROR you discover that your lazy chef has only cooked enough food for three. Who do you boot out onto the street hungry? And why?

"Dean Knight, Law

Beware—it’s a trap! Students would rejoice if I showed Uncle Pat the door. The establishment turning on itself. Our VC being forced to eat bread and water, like the impecunious students burdened by his escalating fees and levies. But, no. I’ve engaged in such career-limiting behaviour before. And have learnt my lesson.

Oust my top student(s)? Unfair. And Idol suicide. They deserve praise. And lattes. Not loneliness.

And spurn Colin Farrell? Never…!
Finally, I could never deny my Samoan husband a delicious home-cooked meal. We have a pact. I cook. He plays piano. Perfect harmony.

No. It’s me who must be sacrificed… Hungry, for the greater good!"

To vote:
- Text "Dean Knight" to 027 CUSTARD (+64-27-287-8273) or email editor@salient.org.nz

For updates, there's a facebook page:
- http://www.facebook.com/pages/Dean-Knight-for-Academic-Idol/136733993026908?ref=ts

Naked self-promotion I know, but it's now the business end of the competition...

Patriating Our Head of State: A Simpler Path?

2010-09-14T22:28:00.000+12:00

The archived webcast from the Reconstituting the Constitution conference is now available:

http://www.r2.co.nz/20100902/

Below is my address in the republican "debate":

Canterbury Earthquake Response and Recovery Bill: The Law Commission's blueprint on emergency powers

2010-09-14T22:13:00.000+12:00

In 1991 the Law Commission produced its Final Report on Emergencies (NZLC R22):

http://www.lawcom.govt.nz/UploadFiles/Publications/Publication_30_71_R22.pdf

It makes for interesting reading and I think demonstrates how this Bill is inconsistent with the basic principles and safeguards relating to emergency powers and legislation. This includes clear warnings against, amongst other things, broad delegation of power and exclusion of review by the courts.

[Hat-tip Geoff McLay for recalling its existence.]

Canterbury Earthquake Response and Recovery Bill: some examples

2010-09-14T21:13:00.001+12:00

Example 1:
The Minister is worried about disaster tourism. An Order-in-Council is promulgated banning non-residents from entering the affected districts without permission from recovery commission.

Example 2:
The Minister decides that the upcoming local election is a distraction to the recovery process. The Local Electoral Act 2001 is suspended in Christchurch and surrounding districts, deferring local elections until June 2011, allowing Bob Parker to remain as Mayor until then.

Example 3:
The Minister decides that the residents of Christchurch deserves a break due to the stress they've been under. An Order-in-Council is passed exempting them from paying income tax. The income tax for non-Chch residents is increased in a corresponding fashion to ensure that the govt's books still balance.

Example 4:
The Minister decides more utility vehicles for the recovery process. An Order-in-Council passed to appropriate any such vehicle in the North Island. Farmers are outraged because of the effect on their livelihood and because they are sure that the Minister has misstated the need for utility vehicles. Clause 6(3) prevents any challenge to recommendation to promulgate an Order-in-Council on the basis that the appropriation of such vehicles is not reasonably necessary for the recovery. Clause 19 means no compensation is payable for the appropriation. The Regs Review Committee eventually considers the matter, but 3 months after the vehicles are seized and after farmers have suffered significant loss.

Feel free to add other examples.

Canterbury Earthquake Response and Recovery Bill: a democratically consistent alternative

2010-09-14T19:56:00.000+12:00

Much has been made in debates about the need to act urgently and the time it would be take to tailor more specific legislative amendments.

But why?

If the Bill can be passed in one day, why can't the Parliament adopt a "rolling maul" approach?

Set up a skeletal structure and process. Identify the most pressing laws that need to be relaxed (eg RMA and Building Act). Relax them immediately.

Then as and when specific problems are identified, Parliament can add them through the parliamentary process.

It's not like there is an emergency situation where Parliament cannot meet. Below is the sitting programme for the rest of the year, that shows plenty of regular meetings of Parliament:

Canterbury Earthquake Response and Recovery Bill: Constitutionally Outrageous

2010-09-14T16:59:00.002+12:00

It may not be politic to say this, but the Canterbury Earthquake Response and Recovery Bill is a constitutional outrage. A quick read show that it grants extreme Executive power – unbridled and effectively unchecked – in a way that has the potential to undermine our very democratic foundations.

The Bill contains a massive Henry VIII's clause, allowing the Minister to re-write any legislation that is "reasonably necessary or expedient for the purpose of the Act". The power to direct the Governor-General to issue an Order-in-Council to "grant an exemption from, or modify, or extend any provision of any enactment" (including 22 specifically listed enactments - but thankfully not the Bill of Rights 1688, the Constitution Act 1986, the Electoral Act 1993, the Judicature Amendment Act 1972, or the New Zealand Bill of Rights Act 1990). That's incredible power!

There are no substantive restrictions on the power to grant an Order-in-Council, only the procedural requirement to take in account the Act's purpose and consultation with an appointed recovery commission (cl 6(2)).

And there is a privative clause which prevents the courts from reviewing the legality of any recommendation made to issue an Order-in-Council (cl 6(3)). So even if the Order-in-Council is not done for the purpose of the Act, it can't be challenged in the court. Or the legislation says it can't – I suspect the courts would see it as part of their constitutional job to review the Orders anyway to make sure they are issued for proper purposes. The only "check" is the standard ex-post-facto process set out in the Regulations (Disallowance) Act 1989 (cl 8) – hardly an adequate check on such an extreme power.

Not only can Orders-in-Council re-write legislation, they can also substitute "a discretionary power for the provision" (cl 6(5)(b)(ii)), ie, more ad hoc power for Ministers and officials.

No-one quibbles with the fact that there might be some legislative provisions that need to be relaxed or amended to allow for the speedy and orderly recovery and rebuilding in Canterbury. But this Bill is extreme. It confers powers that are more extreme than found in the Civil Defence legislation applicable to the original emergency itself.

There are other ways for the response to be managed and the rebuilding expedited in a way that is more consistent with basic democratic principles and the Rule of Law. (As an aside, I expect the NZLS Rule of Law committee to be concerned about this.)

Our experience in the past (with such matters as terrorism response legislation) has demonstrated that we must respect our important constitutional and democratic principles when addressing matters of urgency and emergency. Any government and legislative response must be proportionate to the mischief. This is not.

Academic Idol - Final Five

2010-09-06T14:01:00.000+12:00

In lieu of a serious post (largely due to a flurry of other academic deadlines and addresses), I can report that I am still alive on Academic Idol and have made it to the final 5!

This is the contest run by Salient, and has a number of lecturers from across the University answering quirky questions, with the lowest polling being evicted each week. (See earlier post: http://www.laws179.co.nz/2010/08/ode-to-public-law.html)

This week's question is:
http://www.salient.org.nz/blog/academic-idol-round-6

Name your favourite book/musician/film/television show and briefly explain why they’re your favourites.

My response:

Favourite book: Uncle’s Story by Witi Ihimaera. In the summer of 2000/01 it had me and all of my friends blubbing. A moving story blending Maoriness, gayness, sign language, masculinity—all told through a search for an uncle’s long-lost, war-time lover. Superb.

Favourite musician: Does Kathryn Ryan count? I confess my radio is usually glued to National Radio… But otherwise, Everything But the Girl. Or, for something upbeat, anything playing on GeorgeFM.

Favourite TV show: No question. West Wing. All 7 series. End of story. [FN: For the long list of favourite quotations and scenes from West Wing, see facebook status thread.]

Favourite film: I know as the law guy I should mention A Few Good Men. A 1992 classic law movie. Stunning cross examination of Jack Nicolson by Tom Cruise:
Col Jessep: You want answers?
Kaffee: I think I’m entitled to them.
Col Jessep: You want answers?
Kaffee: I want the truth!
Col Jessep: You can’t handle the truth!
But, being truthful myself: J’ai tué ma mère / I Killed My Mother from Toronto and New Zealand film fests. Stylish, quirky film about a young gay boy’s love-hate relationship with his mother—written, directed and starred in by a really talented Quebec kid.

And, over the last couple of weeks some strange posters have appeared around law school and online:

Sigh.

Patriating Our Head of State: A Simpler Path?

2010-09-02T08:36:00.001+12:00

I find myself engaged in a "debate" today with Dr Michael Cullen at the Reconstituting the Constitution conference at Parliament - made somewhat awkward by his apparent concession in the weekend papers.

You can watch from the comfort of you own home, as the conference is being streamed:

http://www.r2.co.nz/20100902/

Our debate kicks off at 11am today, and I'll post our papers here later today.

UPDATE:
- Dean R Knight "Patriating Our Head of State: A Simpler Path?"
- Dr Michael Cullen "A Republic for New Zealand? A Modest Approach"

Constitution Cube

2010-08-25T10:07:00.001+12:00

http://www.vuw.ac.nz/staff/dean_knight/Constitution_Cube.pdf

Note To Our Australian Friends: Don't Panic Mr Mainwaring!

2010-08-22T18:08:00.002+12:00

So, it looks like a hung Parliament. The first time for a long time for the Australian Federal Parliament.

But a quick note of advice to our Australian brethren. Don't panic!

It's not actually unchartered territory. While the constitutional history and context might differ slightly, you might consider glancing over to New Zealand to see the heavily developed and carefully framed constitutional conventions surrounding the appointment of the Prime Minister by the Governor-General in such situations.
One of the best guides is Sir Michael Hardie-Boys' 1997 Harkness Henry Lecture "Continuity and Change":

- http://www.gov-gen.govt.nz/node/471

Actually, there are a range of other speeches which also speak to the conventions surrounding appointment:

- http://www.gov-gen.govt.nz/resources/media/speeches/constitutional

If I can highlight the key passage:

The core principles
Through this public speaking and writing I tried, in essence, to make clear a few simple points:
- The formation of a government is a political decision and must be arrived at by politicians.
- My task as Governor-General is to ascertain where the support of the House lies. In an unclear situation, that might require me to communicate with the leaders of all of the parties represented in Parliament.
- Once political parties have reached an adequate accommodation, and a government is able to be formed or confirmed, the parties could be expected to make that clear by appropriate public announcements of their intentions. At that point it might be necessary for me to talk with some party leaders. I would then expect to have sufficient information to be able to appoint a new Prime Minister, if that were required.
- Throughout this period of negotiation, the incumbent Prime Minister remains in office, governing in accordance with the caretaker convention.
The second of these points is the nub of the matter. 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. This principle is also the answer to those who regularly write to Government House suggesting that the Governor-General dismiss the government and call another election, based on perceived public sentiment, dissatisfaction with particular actions, or opinion polls. 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. If that is unclear, I am dependent on the political parties represented in the House to clarify that support, through political discussion and accommodation.

And from a later speech (http://www.gov-gen.govt.nz/node/403):

Politicians may assist during a time of political uncertainty by indicating publicly where they stand in terms of their support for the Government. A vote of confidence is nonetheless the more critical indicator.

Good luck!

An Ode to (Public) Law

2010-08-09T11:17:00.001+12:00

For my sins, I am one of a group of lecturers nominated for the Academic Idol competition being run at Vic by the student magazine, Salient.

The competition involves the candidates submitting a short response to a quirky question each week. Each week, people vote and the lowest polling candidate gets voted off the island.

So far I've survived the first 3 rounds:
http://www.salient.org.nz/blog/academic-idol-round-one-2
http://www.salient.org.nz/blog/academic-idol-round-two-2
http://www.salient.org.nz/blog/academic-idol-round-three-2

This week was a difficult task, but quite fun: "Write an acrostic poem using your name that explains why students should study your subject."

And I was pretty pleased with the result - despite my severe lack of poetry-writing skills. I thought folk might be interested in reading it:

http://www.salient.org.nz/blog/academic-idol-round-four-2

AN ODE TO (PUBLIC) LAW
Daring adventures in the common law
Examining judgments for their every flaw
Abstract, though, the law is not
Ne’er the people should be forgot
King, Queen, and Guv’nor lead our realm
Nay, their ministers at the helm
In our names, they serve and reign
Good governance is our refrain
Hapu, family, plumber, and more
Tis people at the heart of law

[PS: To vote, text the name of your favourite lecturer to 027 CUSTARD (027 287 8273) or email editor@salient.org.nz. Just saying.]

Judicial Review: Practical Lessons, Insights and Forecasts

2010-07-05T15:32:00.000+12:00

Earlier this year, I presented a paper to a conference of government lawyers. It is now available as a working paper:

- Dean R Knight "Judicial Review: Practical Lessons, Insights and Forecasts" (Working Paper VUW-NZCPL-002, Wellington, April 2010)
It contains - like, I think, any good sermon - three key points:
1. The discipline of judicial review is confusing and uncertain, particularly in some key areas, such as substantive review, review involving human rights or review in areas where the state has departed from the classic model of undertaking public functions.
2. Recognising that the courts are grappling with competing tensions of vigilance and restraint is a better way of understanding the great morass of judicial review cases.
3. Across all grounds of review, there is a reasonably common set of contextual factors which feed into the balance between vigilance and restraint.
As usual, comments, feedback, or rotten tomatoes welcomed!

BIG SNAPS: Courts (Remote Participation) Bill

2010-07-01T09:48:00.000+12:00

It was pleasing to hear reports of some mature law-making last night.

Labour, Green, and Maori MPs had been arguing against the use of remote video links for substantive criminal trials without the consent of the accused. Although the government had the numbers to pass the Bill (we assume, although the voting patterns of the ACT party are never predictable), reports are that the Minister, Hon Simon Power, was "persuaded" by the strength of the debate and proposed a handwritten SOP to amend the Bill to address this.

On its face, it looks like mature and responsive law-making, where the merits of the case are at the forefront. An examplar for our MMP multi-party legislature. "Big snaps" to all involved.

Adopting a modern day interpretation

2010-06-24T14:45:00.001+12:00

A timely and significant judgment issue today by a full bench of the High Court on the legal question of who can adopt:

Re AMM and KJO

Until now, the term "spouse" in section 3 of the Adoption Act 1955 has been taken to mean only men and women who are married. This excluded opposite sex civil and de facto couples, as well as gay couples wanting to adopt as couples. Oddly, though gays (and unmarried straights) could adopt as individuals.

But in an appeal from a decision involving an opposite sex de facto couple in the Family Court, the High Court has ruled that the term "spouse" nowadays must be taken to include "a man and a woman who are unmarried but in a stable and committed relationship".

The result is driven by the anti-discrimination provisions in the Bill of Rights Act. The difficult issue was whether the legislative history demonstrated an inconsistent interpretation that prevented the term spouse being given a rights-consistent meaning. The two judges together ruled it did not.

The Court was careful to note that its ruling did not deal with the question of whether the term spouse should be taken to include same-sex couples:

What it is not about is whether “spouses” can be interpreted to cover any other type of relationship such as a same sex couple. A favourable decision for these appellants might open the door for people in other forms of relationship to apply. That possible consequence is a factor the Court must take into account. But, in the end, if the decision in this case were to open that door, what the answer will be for those other couples will have to await another day.

It will be no surprise that I think it's manifestly wrong to continue to prevent gay couples from adopting. Whether or not the courts will be prepared to make this further extension in a case involving same-sex couples, time will tell.

Regardless, the issue needs to be sorted, if not by the courts, then by legislative amendment. There are numerous reports and calls for it to be sorted. And it should be expedited too.

PS Congratulations to my colleague Claudia Geiringer, who acted as counsel for the couple. I have no doubt that the success is in part due to her thorough and compelling Bill of Rights arguments.

Constables, local councils, and the constitution

2010-06-23T15:35:00.000+12:00

It seems like the government is intent on passing the Policing (Involvement in Local Authority Elections) Amendment Bill through all stages under urgency. A shame really, as I was intending to make a submission opposing the Bill.

The Bill looks like a technical one, removing a prohibition on police officers from standing for local authorities, in order that "all employees of the New Zealand Police are treated in the same way as other State servants".

But that's the problem, they're not. Part of their responsibilities, as constables, is to enforce bylaws passed by local authorities. It's a basic violation of the constitutional principle of the separation of powers to have a person passing laws also enforcing them.

The Policing Act 2008 recognised this problem and included the current prohibition (a prohibition which basically replicates the prohibition at central government). But now the restriction is being removed at a local level.

The Police's regulatory impact statement acknowledges the potential for some such "conflicts of interest" to arise, but suggests they will be addressed through "internal policies", amongst other things, clarifying that Police officers should not be involved in drafting or approving bylaws".

That's not good enough, in my view. This is a serious constitutional matter, with the potential to lead to the abuse of the coercive power of the state.

And it's not good enough that legislation which is constitutionally dubious to be rushed through under urgency, without the opportunity for public submissions and proper scrutiny.

STARTER FOR 10: Breath-testing of spectators at Christ College rugby match

2010-06-22T18:35:00.000+12:00

http://www.stuff.co.nz/the-press/sport/3838932/Breath-testing-for-college-match/

Where do the police get the legal authority from to breath-test spectators and refuse entry for those that have been drinking?!?

Government formation UK-style: a constitutional hiccup?

2010-05-12T09:51:00.001+12:00

- TheGuardian: "David Cameron is new prime minister"
- BuckinghamPalace: "Appointment of new Prime Minister"

David Cameron is the new PM.

But some questions remain:

1. Did Gordon Brown potentially embarrass the Queen by resigning as caretaker Prime Minister before a formal deal had been settled between the Tories and the Lib-Dems?
2. As newly appointed Prime Minister, is David Cameron merely acting in a caretaker capacity - until a formal coalition agreement or arrangement on confidence is settled with the Lib-Dems?

Based on New Zealand's precedents and experience, the resignation and appointment seems somewhat premature. The Governor-General has made it clear that in order to appoint a new PM and government, "political parties [must] have reached an adequate accommodation, and a government is able to be formed or confirmed". In New Zealand, it is expected that parties will make that clear "by appropriate public announcements" and to provide the Governor-General with "sufficient information to be able to appoint a new Prime Minister".   By custom, or perhaps even constitutional convention, the public announcement expected from political parties in New Zealand is either a joint statement confirming a coalition or confidence and supply agreement has been settled or public disclosure of those agreements. It is from these political compacts that the Governor-General is then able to ascertain which political groupings are able to "command the confidence of the House".

But do we have that in the UK now? No deal appears to have yet been settled, although a general outline of the type of arrangement has been foreshadowed.   Is that enough for the Queen to be ascertain where the support of the House lies, with the requisite certainty? I'm not so sure. There's still a chance that negotiations about the form of the arrangement may break down.

However, Gordon Brown's immediate resignation forces the Queen's hand. The Monarch cannot be left without government advisors.  A Prime Minister is needed. Hence the swift moves to appoint David Cameron. But, if - as I suggest - he has not yet demonstrated with certainty that he commands the confidence of the House, then he must only be (in NZ parlance) a caretaker Prime Minister. That is, legally installed in office, but subject to the constraints of the constitutional caretaker convention.

These subtleties make be lost on a UK audience, but I think it's fair to say that the New Zealand experience, customs and conventions would probably avoid such hiccups. The expectations in terms of signed political compacts, public statements, and public ceremonial appointment of the Prime Minister, along with acceptance of the caretaker convention mean we would be unlikely to get such a premature transfer of power.

Shadow boxing with brothels

2010-05-03T22:43:00.000+12:00

The first punch from Tau Henare:

Henare calls for Prostitution Reform Act amendment
Press Release: New Zealand National Party

Tau Henare
National List MP
30 April 2010
MEDIA RELEASE

West Auckland National MP Tau Henare is calling for an urgent amendment to the Prostitution Reform Act 2003.

“It is appalling and totally unacceptable that a brothel can go up opposite a school’s gate and nothing can be done to stop it. The Act as it stands allows this to happen. It needs to be amended” said Mr Henare.

“The previous Labour led government legalised prostitution in 2003 to protect sex workers, but clearly not enough consideration was given to protecting children from the unwanted influences of the sex industry outside their schools” says Mr Henare. “We now have a situation where there are very few restrictions on where a brothel can be sited. As long as a small owner operated brothel meets the definition of a “home occupation” as set out in the Resource Management Act a resource consent is not required and there’s nothing a local authority can do to stop it.

“The law urgently requires a commonsense clause that enables local authorities to manage the location of brothels. I will be working with my colleagues in Wellington to bring about this change,” says Mr Henare

ENDS

The actual legal position at the moment:

Prostitution Reform Act 2003:
s 14 Bylaws regulating location of brothels
Without limiting section 145 of the Local Government Act 2002, a territorial authority may make bylaws for its district under section 146 of that Act for the purpose of regulating the location of brothels.

Schools, brothels and bylaws

2010-05-02T21:55:00.003+12:00

Below are some media comments about the (inaccurate) claims of a loop-hole in the Prostitution Reform Act and the inability to impose proximity controls on brothels in bylaws:

NZ Herald:

Brothel could be removed lawfully - expert
By Michael Dickison 2:26 PM Thursday Apr 29, 2010

A council could regulate the location of brothels as long as it did not take unreasonably aggressive action, a law expert has said. A law expert says Waitakere local politicians are wrong to think they cannot lawfully help a school that wants removed a brothel set up across the street.

Henderson Intermediate School is up in arms after a four-person brothel opened nearby, with its board of trustees chairman urging "leadership" and "common sense" from the Waitakere City Council.

But Deputy Mayor Penny Hulse said yesterday the council could not remove the brothel because she had been advised that such a bylaw would be found unlawful in court and end up costing ratepayers in legal fees.

Victoria University senior law lecturer Dean Knight has written "The (continuing) regulation of prostitution by local authorities" in Taking the crime out of sex work, to be published next month.

Mr Knight told nzherald.co.nz that Ms Hulse's position was not accurate.

There would be no problem preventing brothels from opening near sensitive sites like a school unless the council was being so restrictive as to effectively outlaw prostitution, Mr Knight said.

A council could regulate the location of brothels, even small owner-operated ones, as long as it was "not so aggressive as to be unreasonable", he said. In his book chapter, Mr Knight says that to date there have been three challenges to such bylaws, with two court rulings invalidating restrictions for being "too severe".

The latest court ruling, however, made by the Court of Appeal in 2008, upheld a Hamilton bylaw prohibiting brothels within 100m of a school, church or marae.

The ruling in favour of the restrictions came after a 12-person brothel challenged them.

The legal situation remained "uncertain", even after a review of legislation in 2008, because how restrictive a council could be depended on specific local conditions, Mr Knight said.

The school's board of trustees chairman, Ron Crawford, said yesterday he had been contacted by many people disgusted at the situation and was confused to be told nothing could be done - especially since Rodney District Council has a bylaw preventing a brothel from opening near a school.

Rodney's bylaw prohibits a brothel from operating within 200m of a school, pre-school or church.

It also disallows neon signs and "sexually explicit" or "lewd" imagery outside brothels.

A spokesman for Rodney District Council said the council had amended the bylaw in December last year to comply with legislation and was confident it would stand up in court.

Radio NZ National (Morning Report):

- Legal expert says brothels can be kept away from schools
A legal expert says an Auckland school's anger at a brothel being set up across the road could have been avoided had an appropriate by-law been in place. (duration: 4′55″)

TID-BIT: Banning Old Boys

2010-04-27T09:32:00.001+12:00

Did no-one consider section 19 of the Bill of Rights Act (or Part 1A, ss 21, 42 and 44 of the Human Rights Act)?!?

- The Press: "Principals ban some old boys from annual clash"

Recent school-leavers have been banned from the annual rugby showdown between two Christchurch secondary schools.
No-one under the age of 22, except for current pupils, will be admitted to the Christ's College-Christchurch Boys' High School match on June 22, the schools' principals say.
The ban comes after old boys from both schools got into a brawl involving up to 250 people at last year's game. Police drew batons and said many spectators were drunk.
Christ's College headmaster Simon Leese said it was regrettable the schools had to introduce a ban affecting many because of the actions of a few.
"Most of them [old boys] turn up to support the game as we wish and we have absolutely no problem with them. It's a small minority that have caused problems in recent years," he said. "Neither school wants to be associated with the sort of behaviour we've been experiencing. It has absolutely nothing to do with sport."
Boys' High principal Trevor McIntyre said 22 was an appropriate age as it meant the boys had been out of school for at least three years.
The ban had the approval of both schools' old boys' associations, he said.
Former Christ's College pupil Jack Ensor and flatmate Tom Latty, a former Boys' High pupil, said they were unhappy with the ban.
The 19-year-olds said current pupils were the problem because they got "a bit carried away" and incited others as they "didn't know when to stop".
Leese said neither school had difficulties with current pupils.
This year's ban was a trial and would be reviewed after the match, to be played at Christ's College, he said. Security staff would check identification at the gate, Leese said.

Radio Rants: ECAN and judicial conflicts of interest

2010-04-25T21:06:00.001+12:00

In lieu of some text posts, you can hear my views on these issues in podcasts of the legal commentary slot on NineToNoon:

- 7 April 2010: Dean Knight is a senior lecturer at Victoria University's Faculty of Law, and today he discusses issues surrounding the sacking of ECan and appointing commissioners in its place. (duration: 11′05″) [MP3]

- 21 April 2010: Dean Knight discusses the Justice Bill Wilson conflict of interest saga. (duration: 15′42″) [MP3]

Sounds like us!

The context of natural justice

2010-04-25T20:47:00.002+12:00

The Supreme Court doesn't get many pure administrative law cases. So it was a pleasure to read the recent decision in Wyeth (NZ) Limited v Ancare New Zealand Limited and Environmental Risk Management Authority [2010] NZSC 46.

And it was also nice to see a robust attitude taken to the question of the content of natural justice. Too often, in my view, people try to blindly apply court-based features of natural justice to other administrative situations, without taking into account the nature and context of the different setting.

But the Supreme Court's decision contains some useful statements to reinforce the contextual nature of the natural justice (the case was about a competitor's request for access to confidential information in a contested approval process under the Hazardous Substances and New Organisms Act 1996):

[40] The argument raises the question of what the Act and common law principles of natural justice together require in relation to the Authority’s hearing and process. Natural justice is a common law principle and what it requires will reflect any relevant statutory provisions. As Cooke J said in Daganayasi v Minister of Immigration, it has become “fairly elementary” that:

"The requirements of natural justice vary with the power which is exercised and the circumstances. In their broadest sense they are not limited to occasions which might be labelled judicial or quasi-judicial. Their applicability and extent depend either on what is to be inferred or presumed in interpreting the particular Act ... or on judicial supplementation of the Act when this is necessary to achieve justice without frustrating the apparent purpose of the legislation ..."

[41] Appropriate and fair proceedings for a statutory tribunal, such as the Authority, will not always equate to those of a court. Such bodies are often established for administrative reasons to provide a less formal decision-making mechanism with an emphasis on greater accessibility, less cost and greater speed in decision-making. Often, as with the Authority, they are structured to include members with expertise in relation to their special area of jurisdiction. Legislation establishing tribunals sometimes also recognises that in reaching administrative decisions they often must take into account conflicting interests in a pragmatic way. Parliament’s purpose in establishing a tribunal is often not necessarily to provide the highest standard of process but a standard that is consistent with efficient administration of matters over which they are given jurisdiction. These features of the statutory process are all relevant to the requirements for participants to enjoy an appropriate and fair hearing.

[42] Also of relevance to the requirements of natural justice under the Act is the nature of the public submitter’s interest in the proceeding before the Authority. Public powers exercised on a large scale must be distinguished from those relating solely to the treatment of an individual. In Public Disclosure Commission v Isaacs, members of the public were entitled to make submissions to the Commission. The Privy Council observed that such persons were not personally affected by the Commission’s decision:

"[T]he complainant is not liable to be subjected to any pains or penalties or exposed to prosecution. He is not seeking to enforce any private right, so there is no question of depriving him of any remedies or redress to which he may be entitled. He is acting as a public spirited citizen in giving information to the commission to assist them in the performance of their public duty. Any personal or political interest he may have in the outcome is irrelevant. He cannot be “told the case made against him and be afforded a fair opportunity of answering it” because no case is made against him; it is he who makes a case against the declarant."

[43] Wyeth was entitled to make a submission on Ancare’s application and to be heard in support of it at a public hearing where it could make representations and call evidence. That did not, of course, mean that the Authority would become concerned with any effect on Wyeth of granting or refusing Ancare’s application. Wyeth was confined in putting its perspective to matters that were relevant to and might assist the Authority in performance of its functions under the Act. That was also a relevant consideration for the Authority in assessing what procedure would ensure Wyeth had an appropriate and fair hearing in the circumstances. This is not to diminish the importance of the right Wyeth had, in common with other members of the public, to make submissions. The statutory scheme recognises that public participation in hearings is an important means by which the Authority becomes informed of relevant matters to the standard required by the Act for its decision-making. It is not, however, the only, nor in any case necessarily the principal, means by which it does so.

[44] The Act expressly contemplates that the Authority will have access to more complete information than the public. The Authority must, where appropriate, engage expert bodies to provide additional information, or to review and verify information or submissions received “so that the Authority may be expertly informed for the purposes of decision-making”. If further information is required, the Authority may notify the applicant that this is required or obtain information itself, including commissioning expert reports and reviewing information from any source. Confidential information that is withheld from the public may be considered by the Authority.

[45] The Act incorporates aspects of the regime under the Official Information Act in relation to confidential information. Under s 9(2)(b) of that Act, there is good reason for withholding official information if making it available would disclose a trade secret or unreasonably prejudice the commercial position of the person (applying to the Authority) or the subject of the information. This is subject to the overriding provision in s 9(1) that good reason for withholding the information will not exist if in the circumstances of the particular case the reasons for withholding are outweighed by other considerations which make it desirable in the public interest to make the information available. The purpose of the Hazardous Substances and New Organisms Act is relevant in determining what that public interest entails.

[46] There is a procedure in the Hazardous Substances and New Organisms Act for dealing with requests for release of information held by the Authority which has been classified as commercially sensitive by the person providing it, or which in the Authority’s opinion is able to be withheld under s 57(2)(b). The person who provided the information is to be given the opportunity to say why it should be withheld. The Authority then has power to release the information in accordance with the Official Information Act’s provisions. As previously indicated, the Authority’s decision is subject to review by the Ombudsman.

[47] There is, of course, a conflict between allowing participants in the Authority’s hearings sufficient information to fairly present their case and respecting the confidentiality of some of the material supplied to the Authority for the purposes of the application. The mechanism in the Act for resolving this conflict when it arises is to require the Authority to weigh the claims for confidentiality against the public interest considerations that make release of information desirable. This, of course, is the test specified in the Official Information Act. It is supplemented in the Hazardous Substances and New Organisms Act with special provisions giving the persons providing the information to the Authority, or who are the subject of it, the right to make submissions on whether the information should be withheld. As well, information held on behalf of an applicant must be returned if it decides not to proceed to make an application. These provisions indicate the significance the Act attaches to due protection of confidential information in achieving its purpose.

[48] It is by this means that the Authority determines what a fair and appropriate hearing that is consistent with natural justice requires in the particular circumstances. Matters weighed will include the relevance and importance of the information that is sought to the fair determination of the issues before the Authority on the one hand and the nature and degree of confidentiality that is involved on the other. Where withholding relevant information may impact on effective participation, the likely degree of intrusion on that right should be assessed by the Authority along with measures it may take to minimise the effects of that intrusion. As already indicated, the nature of the interests of the participants involved will also often be relevant, including whether or not the decision may affect a participant’s own interests.

[49] The Act states that information withheld from a party may be considered by the Authority in reaching a decision on an application. This recognises that the Authority will at times be able to accord participants a fair and appropriate hearing in the circumstances, despite withholding information from them that it takes into account. The Authority is not required to follow any specific procedures just because a court might apply them in litigation. In particular, it was not required in this case to release information on the basis of counsel’s undertakings as to confidentiality being provided to the Authority.

Also, the other pleasing thing about the judgment is that it's broadly consistent with the schematic approach to I've suggested in my teaching. Phew.

A pressing question...

2010-03-03T18:59:00.004+13:00

Andrew Geddis is trying to provoke a reaction from me about whether some local authority spending might be unlawful:
- Pundit: "Our liberty cannot be guarded but by the freedom of the press"

The background is another scrap in Wanganui. As I understand it, the Council has proposed to:
1. pull $100,000 of its advertising from the Wanganui Chronicle;
2. transfer it's advertising to the rival River City Press; and
3. subsidise the operations of the Press, in order that it can increase its circulation, thereby ensuring greater currency of the Council's adverts throughout the district (particularly rural areas).

Apparently the Chronicle has a legal opinion which suggests this might be unlawful:
- WanganuiChronicle: "Council may face legal challenge over plan"

Geddis (understandably) dodges this question. Or rather, despatches a hospital pass!

"(As an aside, I just haven’t had the time to look into the legal niceties around this particular issue. Graeme Edgler/Dean Knight/anyone else out there got any thoughts on this? That’s what the comments box is for!)"

So, unlawful? I doubt it. Unwise? Well, something for the voters, not the courts.

The decision-making framework for local authorities is complex, so there are potentially many legal quibbles folks might have with the proposal. See my analysis of the decision-making framework at a recent conference:
- Knight "Local Authority Decision-making and the Consideration of Community View: Content and Compliance"

But I'll give it a quick go (without having seen the legal opinion):

1. The starting point is that local authorities have what's called a "power of general competence". Basically it means they can do whatever a natural person can do, except where something is otherwise prohibited. This broad empowering provision is found in section 12 of the Local Government Act 2002:

"12 Status and powers...
(2) For the purposes of performing its role, a local authority has—
(a) full capacity to carry on or undertake any activity or business, do any act, or enter into any transaction; and
(b) for the purposes of paragraph (a), full rights, powers, and privileges."

No problems there - unlike the old days, particularly in the UK, where local authorities couldn't do things such as building a town clock, unless legislation explicitly empowered them to do so.

2. The reference to "its role" in section 12 links back to sections 10 and 11 of the LG Act 2002. Essentially, local authorities overarching mandate (or their jurisdiction to do things) is two-fold:
- to "enable democratic local decision-making and action by, and on behalf of, communities" and
- to "promote the social, economic, environmental, and cultural well-being of communities, in the present and for the future" within their districts.
Again, no problem here. This is a broad statement of the role of a local authority.

3. Local authorities must also act in accordance with a number of high-level principles set out in section 14 of the LG Act 2002. Now, thede include things like democratic decision-making, taking account of community views, and – relevantly here – making "efficient use of resources" and "the efficient and effective use of its resources in the interests of its district or region". Some arguments here. But, importantly, I don't think any purported non-compliance with these high-level principles would result in findings of illegality by a court. In other words, there principles are "non-justiciable". Elsewhere our courts have held that they not going to entertain arguments about illegality based on such high-level principles, except in the case of bad faith, corruption and fraud (Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385). Also, section 14(2) specifically directs that any conflicts about the high-level principles or aspects of the well-beings should be resolved in accordance with principle that local authorities must conduct their business in "an open, transparent, and democratically accountable manner". Again, indications that the courts should steer clear. Any arguments are to be ventilated through the democratic processes. And ultimately accountability for judgements about the principles lies with the ballot box.

4. There might be a question about whether, as a matter of process, any decision was made in accordance with the individual decision-making principles in Part 6 of the LG Act 2002 or the other strategic planning processes. But the devil's in the detail on this, and I don't have the information or the time to express a view on this. But I think it's probably hard to be tripped up on this (see my conference paper above).

In short, I'm sceptical about any arguments that suggest the proposal might be unlawful. But people closer to the dispute may help pinpoint the arguments that are being deployed.

Saxmere v Wool Board - recall application transcript

2010-03-02T10:28:00.000+13:00

I see the transcript of argument from the recall application is now available online:

- NZSC: "Saxmere v Wool Board (SC64/2007 Transcript 24 Nov 2009")

Supreme Court - physical and virtual settings

2010-02-02T10:51:00.002+13:00

For what it's worth, can I go on record saying I quite like the new Supreme Court building. And as one of the few that regularly attended the basement sitting in the High Court, it will be quite nice to hang out in slighly more functional and grand environs.

But a post on the new Supreme Court blog reminded me that the success of a final appellate court is much more than its physical setting - virtual interaction with the community is also important.

In the blog post reproduced below, the editors of a UK blog on their new Supreme Court focus on provision of information from the Court. A wish list for virtual access to justice.

Generally our Court does okay - we have access to some of the information. But it would be nice to see some of the other information provided as well.

> UKSCblog: "Supreme Court - information wish list"

As the Supreme Court opens its doors for business for the first time, we put forward our "wish list" of information that we would like to see from the Court. We don't expect everything to be available all at once but everything on our list is already available from one or more Supreme Courts round the world. If it was all available it would greatly increase transparency and public understanding of the cases being argued in the Court. It appears that some of this information will be available once the Court starts sitting. In her recent speech - discussed on this blog - Chief Executive Jenny Rowe mentioned that when everything is working fully key information from the case management system will be publicly available via the website. We will keep our readers up to date with what comes out.

The "wishlist" is as follows:First, a "Judicial Sittings" list which includes full information about the appeal - the unique cite of the decision appealed against, a brief description of the subject matter of the appeal, the identity of the solicitors acting for the parties. The Canadian Supreme Court has a list of all cases ready for hearing with their "docket" number. A search against this number gives all the information about the case including the information mentioned in our next point.

B+.

Available online (http://www.courtsofnz.govt.nz/about/supreme/case-summaries/supreme-court-case-summaries/case-summaries-2009). Basic information only. But not easily searchable. And no longer are embedded links provided to the judgment under appeal.

Second, the statements of facts and issues and the parties written cases. For example, the Canadian Supreme Court provides, as part of the case information for each case, the written cases ("the factums") filed by each party, see for example, those in the pending case of Queen v Cunningham. Similarly, the US Supreme Court directs users of its site to publicly available "merits briefs". These can also be found on the wonderful ScotUSblog. "Heads of Argument" are available for pending cases in the South African Constitutional Court (by clicking on "forthcoming hearings" on the home page and following the links, see for example, heads of argument in Poverty Alleviation v President of the Republic)

E.

We're still reliant on the grace of counsel - or a formal application to the registry to inspect the files - to obtain submissions and the like.

Third, listing of applications for leave, interim orders and all the other activity of the Court. Such a list could be found (with difficulty) for the House of Lords (in the "House of Lords business" section of their website). The High Court of Australia, for example, publishes "Business Lists" dealing with all leave applications and other matters being dealt with by the Court.

B.

Some information in the case summaries (http://www.courtsofnz.govt.nz/about/supreme/case-summaries) and daily lists (http://www.courtsofnz.govt.nz/business/calendar/daily-lists) but otherwise hard to locate.

Fourth, a transcript of the hearings. If the High Court of Australia can do it, so can we. See, for example. the transcript of the hearing on 27 and 28 August 2009 in the case of Arnold v Minister Administering the Water Management Act 2006.

A-

The real gem of the Court's online repository (http://www.courtsofnz.govt.nz/from/transcripts//from/transcripts/supreme-court-transcripts-2010). These have proved incredibly valuable. But there is a long lag in their production. Presently, only up-to-date up to the middle of October 2009 meaning, for example, the fascinating oral argument in Saxmere (No 2) is still not yet available.

Fifth, a webcast of the hearing. The Canadian Supreme Court does it (see, here) and so does the Court of Human Rights, see, for example, the webcast of the recent hearing in Carson v United Kingdom

D.

This tops my wish list. There must be the capacity to provide this. Those folk who have attended the Court in the basement will be aware that the hearing is piped through via video into large screens in the foyer. Separate cameras are locked on the full bench, each individual judge, and counsel. A number of times I've sat in the foyer with work or marking while watching a hearing unfold. But this really should be an option for those outside Wellington. Please!

Sixth, as much notice as possible of the handing down of judgments. The House of Lords used to give 6 days notice. In contrast, the Supreme Court of Canada gives 2 to 3 weeks.

C.

Daily lists only (http://www.courtsofnz.govt.nz/business/calendar/daily-lists), available only from 5pm the day prior, with no formal advance notice. And the Decisions page (http://www.courtsofnz.govt.nz/from/decisions/judgments) is often slow to update.

Seventh, a "media summary" of the Judgment when it comes out - shortly stating the issues and the decision. This is common practice in Courts such as the High Court of Australia, the South African Constitutional Court (see the Recent Judgments list on their website). These have been promised by the Supreme Court.

A.

Routinely available on the Decisions page (http://www.courtsofnz.govt.nz/from/decisions/judgments).

Eighth, regular "Court Bulletins", telling us what the Court has done and will be doing, including lists of all the pending cases. This is done in many countries such as Canada (weekly) and Australia (monthly)

D.

Nope.

Something to watch. Hopefully our Court can build on these basic building blocks to ensure its virtual environment is as grand and transparent as its physical one.

We The People(s): Participation and Engagement in Government

2010-01-14T15:37:00.000+13:00

The NZ Centre for Public Law is running a conference in early February (11th & 12th), exploring the public's engagement and participation in government.

I'm one of the folk organising it (and speaking at it too) but it fair to say - I hope - that the line up looks really interesting. I'd encourage people to consider attending.

> NZCPL: "We The People(s)" [brochure and registration form]

TID-BIT: The uber-Supreme Court?

2010-01-11T16:04:00.000+13:00

I noticed this in the Weekend Post. I figure the government must have secretly set up an uber-Supreme Court...

Convicted double rapist Maka Renata in Wellington - police
Police believe convicted double rapist Maka Renata, who allegedly breached his parole conditions in Christchurch, may now be in Wellington.

Renata, 24, last month completed jail terms for the two rapes - one when he was just 14 years-old.

He was released from prison under several conditions, determined by the Parole Board.

However, on December 23 he left the Christchurch address the board had ordered him to live at and a warrant was issued for his arrest.

Detective Senior Sergeant Virginia Le Bas said police had received some good information which was being followed up.

"The most positive information suggests that Maka is in the Wellington area," she said.

Members of the public had called in with information about Renata being seen in other parts of New Zealand, however these sightings have been ruled out, she said.

Police are calling for Maka Renata to turn himself in, amid fears he may reoffend while on the run.

Anyone who might have seen Maka or who was perhaps providing him with assistance should contact their nearest police station immediately, Ms Le Bas said.

Renata, a medium build Maori, 166cm tall, was jailed for seven-and-half years after being convicted of rape committed in June 1999 when he was 14.

He and his foster father Dean Hiroki dragged a 26-year-old Wellington woman into an alley where they held a knife to her throat and took turns raping her.

He was sentenced to an extra three years in jail after sodomising his 15-year-old cellmate about 16 months later.

He was due to be freed more than two years ago but the Department of Corrections applied for a special Parole Act order to keep him in jail until his final release date.

RELEASE QUESTIONED

Sensible Sentencing Trust spokesman Garth McVicar said yesterday that Renata's action proved he was not ready for release.

A law change was needed to make it possible to extend prison sentences, he said.

"Everyone seems to think it was in the too-hard basket."

If Renata did reoffend, legal action would be taken against those who had failed to protect the public, he said.

"We need to accept the fact that there are some people who can't be rehabilitated."

The Supreme Court has ruled that Susan Couch – the sole survivor of the Panmure RSA killings in 2001 – can sue Corrections for failing to give her duty of care, because her attacker was on parole when he offended.

That ruling is the subject of an appeal at present.

Christmas and New Year messages: compare and contrast

2010-01-01T16:24:00.004+13:00

As a Kiwi, I know which message speaks to me. The words from our "de facto" head of state are much more relevant.

A salient reminder that it's time to promote one of our own to the role of head of state.

Take 1: New Year Message, Hon Sir Anand Satyanand, Governor-General
> GG: "New Year Message"

After the bustle of Christmas, the New Year is a time for everyone to treasure their family and friends. In the southern hemisphere, we are blessed with a festive season that falls in the summer months, allowing us to enjoy days on the beach, at the bach, at New Zealand's many parks or being at home with friends and family.

The New Year is also a time for making resolutions-to complete tasks, to break habits or generally to live up to our aspirations. While 1 January is technically no different from other days of the year, the fact that we make resolutions speaks of hopes that we all hold for the future.

2010 will be a significant year for New Zealand. It marks the 170th anniversary of the signing of the Treaty of Waitangi, which established New Zealand as a modern nation, and the 65th anniversary of the end of the Second World War. These are two very contrasting anniversaries-one that speaks of partnership and togetherness and the other of a conflict that claimed the lives of more than 50 million people including many New Zealanders.

Ironically, the response of people after the War was not despair but a resounding vote of faith in the future. People established families and built stronger communities. As grandparents blessed twice in that regard last year, Susan and I are particularly conscious of the sense of optimism and hope that comes with the birth of a child. While people born after the War continue to contribute as leaders, this 2010 anniversary year is a reminder that new leaders are constantly emerging and that we need to nurture them.

The last year has been difficult, as New Zealand has been buffeted by parts of the economic crisis that has enveloped much of the world. Initially centred on the global financial sector, this crisis has caused business failures and job losses. In such an environment one might expect people to be despondent and downcast.

However in the ongoing journey as representative of the Queen, we have been continually impressed by our meetings with New Zealanders of many walks of life. Visiting regions as diverse as Westland, Otago and Taranaki, from the smallest settlements to the main centres throughout the country, opening new hospitals and school facilities, and in presenting a wide array of awards, we have sensed a firm feeling of nationhood and of optimism that extends beyond individual hopes, for our communities and our country. In particular we have observed the contribution of younger New Zealanders. Despite establishing families and paying off mortgages many are making a significant contribution to New Zealand's economy and society.

Undoubtedly individuals, families and communities have been hurt by the crisis, but New Zealanders' best qualities - ingenuity, tenacity and humour- have enabled them to rebound. Community groups and volunteers have responded to those in need, while businesses continue to create and market innovative products and services. New Zealanders have called on their tight connections to friends and family and proved that these are vitally important in times of adversity.

The New Year break is therefore not just a time to relax and take time off from the challenge of the economic crisis-it is a time to cement the bonds between those we care about and to invest time and thought into our relationships with young New Zealanders.

It seems fitting to suggest, 170 years after the signing of the Treaty of Waitangi and 65 years after the end of the Second World War, that a challenge should go out to renew the spirit of partnership and hope that came out of both events. Tomorrow's leaders need the skills, confidence and support to take on the mantle of community leadership. We should all focus on identifying and encouraging these leaders whether they emerge in public positions, through voluntary service to others, in sport, education or business. I believe this is a New Year resolution proposal that we can all build on.

Take 2: Christmas Message, HM Queen Elizabeth II
> Royal: "Christmas Broadcast 2009"

Each year that passes seems to have its own character. Some leave us with a feeling of satisfaction, others are best forgotten. 2009 was a difficult year for many, in particular those facing the continuing effects of the economic downturn.

I am sure that we have all been affected by events in Afghanistan and saddened by the casualties suffered by our forces serving there. Our thoughts go out to their relations and friends who have shown immense dignity in the face of great personal loss. But, we can be proud of the positive contribution that our servicemen and women are making, in conjunction with our allies.

Well over 13,000 soldiers from the United Kingdom, and across the Commonwealth - Canada, Australia, New Zealand and Singapore - are currently serving in Afghanistan. The debt of gratitude owed to these young men and women, and to their predecessors, is indeed profound.

It is sixty years since the Commonwealth was created and today, with more than a billion of its members under the age of 25, the organisation remains a strong and practical force for good. Recently I attended the Commonwealth Heads of Government Meeting in Trinidad and Tobago and heard how important the Commonwealth is to young people.

New communication technologies allow them to reach out to the wider world and share their experiences and viewpoints. For many, the practical assistance and networks of the Commonwealth can give skills, lend advice and encourage enterprise.

It is inspiring to learn of some of the work being done by these young people, who bring creativity and innovation to the challenges they face.
It is important to keep discussing issues that concern us all – there can be no more valuable role for our family of nations.

I have been closely associated with the Commonwealth through most of its existence. The personal and living bond I have enjoyed with leaders, and with people the world over, has always been more important in promoting our unity than symbolism alone. The Commonwealth is not an organisation with a mission. It is rather an opportunity for its people to work together to achieve practical solutions to problems.

In many aspects of our lives, whether in sport, the environment, business or culture, the Commonwealth connection remains vivid and enriching. It is, in lots of ways, the face of the future. And with continuing support and dedication, I am confident that this diverse Commonwealth of nations can strengthen the common bond that transcends politics, religion, race and economic circumstances.

We know that Christmas is a time for celebration and family reunions; but it is also a time to reflect on what confronts those less fortunate than ourselves, at home and throughout the world.

Christians are taught to love their neighbours, having compassion and concern, and being ready to undertake charity and voluntary work to ease the burden of deprivation and disadvantage. We may ourselves be confronted by a bewildering array of difficulties and challenges, but we must never cease to work for a better future for ourselves and for others.

I wish you all, wherever you may be, a very happy Christmas.

TID-BIT: Prison Privatisation Unlawful

2009-11-25T08:12:00.000+13:00

From the wires, a very interesting decision from the High Court of Justice in Israel, ruling that the privatisation of prisons "severely violate[s] the prisoners' basic human rights to dignity and freedom".

As far as I can see, the English version of the decision is not yet available on the Court's website, but there is a useful synposis and analysis on Yale's Comparative Administrative Law blog:

> CompAdminLaw: "Prison Privatization Judged Unconstitutional by the Supreme Court of Israel"

TID-BIT: Parliamentary Due Process

2009-11-13T10:51:00.001+13:00

I'm presently attending ANU's Public Law Week-end entitled "Change":

http://law.anu.edu.au/CIPL/Conferences&SawerLecture/2009/2009_PLW_Program_Registration.pdf

It's always interesting to catch up on developments abroad and to see how other jurisdictions deal with common constitutional and administrative law problems.

In the keynote Geoffrey Sawer Lecture delivered by Professor Hugh Corder from the University of Cape Town (http://law.anu.edu.au/CIPL/Conferences&SawerLecture/2009/Sawer_Lecture09.pdf), there was an interesting discussion of a South African case from their Constitutional Court touching on parliamentary due process:

Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11 (http://www.saflii.org/za/cases/ZACC/2006/11.html)

In short. There's a provision in the constitution that one of the houses of Parliament, the National Council of Provinces, must be ensure that there is adequate public deliberation on Bills that it is considering. In relation to some abortion reform legislation, the public hearings were patchy and inadequate. As a result the Constitutional Court declared the legislation unconstitutional and invalidated it (on a deferred basis). It's a touch more complex than that, but you get the basic gist!

An interesting contrast, I think, to New Zealand's frenzy of unbridled urgency and its deleterious effect on public participation and engagement in the law-making. The litigation does have its foundation in South Africa's very comprehensive constitution though. Personally, I'm not convinced about the courts having power like this to intervene in the parliamentary process - I'd prefer that Parliament itself took more responsibility to ensure process deliberative democracy. But food for thought at least.

Gangs, houses and rights

2009-10-21T08:21:00.006+13:00

The High Court recently dismissed appeals by tenants of Housing NZ arising out of the termination (by notice) of their tenancies, in essence, because their partners were anti-social Mongrel Mob members.

> Winther & Ors v House New Zealand Corporation (09.10.2009, High Court, Wellington, Wild J, CIV-2009-485-1954)

The appellants tried to argue before the Tenancy Tribunal that the termination of their tenancies amounted to unlawful discrimination under the Bill of Rights and breached their right to free association. They said the notices to terminate should be quashed. They wanted to stay put.

But the High Court, in agreement with the Tenancy Tribunal and District Court below, ruled the Tribunal could not consider such a claim. In simple terms, they all said Housing NZ was to be treated no differently from a private landlord. Private landlords could terminate on 90 days notice without given reasons - the state agency was no different, even if it was subject to the Bill of Rights. Any complaints about unlawful discrimination were to be pursued through standard processes under the Residential Tenancies Act, which might led to (only) an award of damages. Justice Wild effectively said to consider the lawfulness of the (alleged discriminatory) reasons for the termination would be to engage in an irrelevant enquiry not mandated by the Act. He relied on pointers in the Act that suggested the ability to raise such concerns, and the ability of the Tribunal to consider them, was relatively circumscribed. Those other processes should be pursued. Or the actions of Housing NZ should be judicially reviewed.

I'm not convinced.

First, it is axiomatic that Housing NZ is in a different to a private landlord. It is a manifestation of the state and therefore is subject to additional obligations founded in public law and the Bill of Rights. This applies even when engaged in the assertion of private property rights. This was made clear in the Police v Beggs [1999] 3 NZLR 615, where a full bench of the High Court (including Wild J) ruled the Speaker's ability to issue trespass notices in relation to Parliament was circumscribed by their obligations under the Bill of Rights. That basic proposition was recently endorsed by the Court of Appeal in Bright v Police [2009] 3 NZLR 132 (leave to Supreme Court refused), where the ejection took place at a local authority meeting.

Secondly, in reality, the appellants were mounting a public law collateral challenge to the termination notice. For better or worse, our courts have generally been receptive to such challenges. The Rule of Law requires public bodies to act lawfully and the courts have been reticent to see people's ability to point to unlawfulness clouded by technical arguments about the proper place or process to raise these concerns. See Knight, "Ameliorating the Collateral Damage Caused by Collateral Attack in Administrative Law (2006) 4 NZJPIL"

Thirdly, against this backdrop, I think a more aggressive interpretation of whether the Residential Tenancies Act allowed the ventilation of breaches of this important public law obligation is required. Section 6 of the Bill of Rights demands this. I've not convinced that the Residential Tenancies Act processes and jurisdictions necessarily exclude the consideration of such a claim. Sure, there are indications in the Act that such claims are not the norm - but that's because the bulk of landlords will be private. Those provisions are, I think, capable of being read subject to a public law gloss in the case of state landlords, without violating the injunction in section 4 of the Bill of Rights. That's orthodox Bill of Rights interpretative methodology. But, regrettably, we don't see explicit reference to that methodology.

Anyways, a fascinating case that crosses the public--private divide. And worthy of further consideration by the Court of Appeal, even though I fear the appellants may have run out of steam by now...

Vetting of Bills - whose responsibility?

2009-09-16T05:04:00.003+12:00

I was disappointed to read the follow passage in the Transport and Industrial Relations Committee's report on the Land Transport (Enforcement Powers) Amendment Bill:

New Zealand Bill of Rights issues Standing Order 261 (1) requires that whenever a bill contains any provision which appears to the Attorney-General to be inconsistent with any of the rights and freedoms contained in the New Zealand Bill of Rights Act 1990, the Attorney-General must indicate to the House what that provision is and how it appears to be inconsistent with the New Zealand Bill of Rights Act. We are aware of concern regarding property issues about vehicle impoundment; the reverse onus of proof in clause 6; and freedom of association, peaceful assembly,and movement. However, Crown Counsel advised the Attorney-General that there were no inconsistencies with the Act.

It's is regrettable that the member of the Select Committee have eschewed their own responsibility to vet the bill for Bill of Rights compliance. The summary adoption of Crown Counsel / Attorney advice is, in my view, inappropriate. It is for the Committee to deliberate on the potential rights breaches and the justification of any limitations on rights. It is notable that in the legal advice to the Attorney-General, Crown Counsel noted that particular aspects of their advice was "not wholly beyond dispute" and "not beyond argument". Especially in these cases, one might expect that the Committee to address the point and to provide reasoned analysis of their position - rather than simply adopting a lawyer's view as being determinative. Human rights judgement calls are as much a responsibility of politicians as they are for lawyers.

I am reminded of the remarks of the Court of Appeal in Boscawen v Attorney-General [2009] NZCA 12 about the contestability of the vetting process and the importance of transparent debate on Bill of Rights consistency:

Additionally, the public availability of the advice given to the Attorney-General means that both members of the public and Members of Parliament are able to challenge or support that advice in submissions made to the select committee considering the relevant Bill. This allows further contribution to and participation in the NZBORA debate during the legislative process. Where there are differing views on possible inconsistency with NZBORA rights and as to whether any limitations on any NZBORA right is justified in a free and democratic society, it is appropriate that those issues should be debated in Parliament. ... [O]pinions can legitimately vary on human rights issues, particularly on the issue of whether any limitations on rights are justified in a free and democratic society and on assessing the appropriate balance between rights and between rights and other values (such as privacy) where these may be apparently in conflict. We refer to one well known case, discussed in Rishworth and others The New Zealand Bill of Rights (2003) at 200 – 201, where Parliament effectively rejected the Attorney-General’s view. The Attorney-General reported to the House that a Bill providing for random breath-testing of motorists conflicted with the NZBORA. However Parliament took a different view, based on independent legal advice the select committee received from the President of the Legislation Advisory Committee, and passed the Bill on the basis that Attorney-General’s view was incorrect.

Perhaps it is time for New Zealand to consider adopting a specialist Bill of Rights vetting Select Committee, like the United Kingdom (see their Joint Committee on Human Rights). This would empower MPs to form their own judgements on Bill of Rights consistency, develop greater expertise in Bill of Rights matters generally, and better encourage MPs to challenge the singular view of the Executive about Bill of Rights consistency.

Standards of Review: Canadian-Style Deference and Lessons For The Antipodes

2009-08-18T23:01:00.003+12:00

Tomorrow I depart for a 6 week trip abroad, courtesy of the Canadian Government (in particular, their Canadian Studies programme), to think about, chew the fat about, and write about some Canadian administrative law. Below is the project summary. More about the substance and progress when I'm over there and I've got my head around it...

- - - - - - - -

"Standards of Review: Canadian-Style Deference and Lessons For The Antipodes"

Judicial review is the main formal mechanism within Anglo-Commonwealth constitutional systems for providing "checks and balances" on administrative decision-making. Central to the operation and effectiveness of this accountability mechanism is notion of the "intensity" adopted – or in inverse Canadian parlance, "deference" applied – by the courts when reviewing or scrutinising the decisions of public bodies and officials. The question of the appropriate degree of intensity or deference is coloured by two equally important competing values. On the one hand, the courts strive to be vigilant, in order to protect the rights and interest of citizens and to uphold the Rule of Law. On the other hand, the courts also recognise the need to exercise restraint, in order to respect the constitutional allocation of power by the legislature to public bodies and officials, and to acknowledge the limits of the judicial function and procedure when reviewing the decisions and judgements made by those public bodies and officials.1 Judicial methodology or the common law doctrines applied by the courts therefore represent a mediated equilibrium or compromise between those two competing tensions.

English, New Zealand and Australian courts have traditionally given effect to this vigilance–restraint equilibrium by applying developed grounds of review which contain prescribed degrees of intensity or deference. For example, when reviewing a legality of administration under the "lawfulness" or "illegality" ground of review, the courts apply absolute vigilance and are entitled to intervene if any legal error is found.2 In contrast, when reviewing the "merits" of a decision (that is, the overall robustness of the decision, any factual findings made, the weight given to different factors, or the reasoning on which it is based), the courts are only entitled to intervene in cases where the decision is manifestly unreasonable.

In contrast, Canadian courts have for many years applied a framework where the vigilance–restraint equilibrium is settled on a case-by-case basis based on the circumstances of particular cases. Initially adopted under the "pragmatic and functional" framework3 – more recently, re-branded a "standards of review" analysis4 – the Canadian courts calibrate the degree of deference or intensity of review under a universal system based on different standards (not grounds) of review.5

The difference between the competing approaches has begun to narrow as the English, New Zealand and Australian courts have become to question the propriety of rigid grounds of review with defined degrees of deference. For example, in England and New Zealand, the courts now accept that, when reviewing the merits of a decision, the degree of unreasonableness required to justify judicial intervention may vary in the circumstances (although the precise methodology to be adopted has yet to be definitely settled).6

This year, however, the Canadian courts modified their standards of review approach,7 in the light of many years of experience and following some criticism of the regime.8 Although the basic framework was retained, the Supreme Court of Canada directed a new approach to the assessment of the reasonableness of the administrative decision under review (that is, collapsing the distinction between patent unreasonableness and reasonableness simpliciter and replacing it with a unified, but context-specific, reasonableness standard).

The purpose of the proposed project is to analyse and critique the unique features of the Canadian regime and recent developments, particularly the concerns that led to the recent change to the regime and the practical experience under the modified regime. It is proposed to undertake this analysis from a comparative perspective, that is, relating the Canadian practice and experience to the more fledgling New Zealand approach to intensity and standards of review. This comparative study will contribute to a broader project assessing whether New Zealand should adopt a formal standards of review framework and, if so, what type of standards should be adopted.9

1 See for example Michael Fordham "Surveying the Grounds: Key Themes in Judicial Intervention" in Peter Leyland and Terry Woods (eds) Administrative Law Facing the Future: Old Constraints and New Horizons (Blackstone Press, London, 1997).
2 Dean R Knight "Simple, Fair, Discretionary Administrative Law" (2007) VUWLR 91 and Michael Taggart "Administrative Law" [2006] NZ Law Rev 75.
3 CUPE, Local 963 v New Brunswick Liquor Corporation [1979] 2 SCR 227 and Canada (Director of Investigation & Research) v Southam Inc [1997] 1 SCR 748. 4 Dunsmuir v New Brunswick (2008) SCC 9.
5 See for example David Phillips Jones and Anne S de Villars Principles of Administrative Law (4 ed, Thomson Carswell, Scarborough, 2004); David J Mullan "Establishing the Standard of Review: The Struggle for Complexity?" (2004) 17 Canadian Journal of Administrative Law and Practice 59; Philip Bryden "Understanding the Standard of Review in Administrative Law" (2005) 54 Uni New Brun LJ 75; Audrey Macklin "Standard of Review: The Pragmatic and Functional Test" in Colleen M Flood and Lorne Sossin (eds) Administrative Law in Context (Edmond Montgomery Publications, Toronto, 2008) 197.
6 See for example Dean R Knight "A Murky Methodology: Standards of Review In Administrative Law" [2008] 6 NZJPIL 117 and Michael Taggart "Proportionality, Deference, Wednesbury" in Judicial Review (New Zealand Law Society, Wellington, 2007) (New Zealand); Andrew Le Sueur, "The Rise and Ruin of Unreasonableness?" [2005] 10 JR 32 (United Kingdom); Lisa Busch "Standards of Review of Administrative Decision-Making in Australian Public Law" [2006] JR 363 (Australia); 7 Dunsmuir v New Brunswick (2008) SCC 9.
8 Guy Régimbald "Correctness, Reasonableness, and Proportionality: A New Standard of Judicial Review" (2005) 31 Man LJ 239; and Toronto (City) v CUPE, Local 79 [2003] SCC 63.
9 For my initial work on this broader project, see Dean R Knight, "Dunne v Canwest TVWorks Ltd: Enhancing or Undermining the Democratic and Constitutional Balance?" (2005) 21 NZULR 711, Dean R Knight "A Murky Methodology: Standards of Review In Administrative Law" [2008] 6 NZJPIL 117, and Dean R Knight, "Standards of Review in Administrative Law" (Seminar for Crown Law Office, Wellington, September 2008).

Loss of a great scholar and friend

2009-08-14T14:31:00.006+12:00

Ka hinga te totara o te wao nui a tane.

With the passing of Mike Taggart due to illness yesterday, the NZ legal academy has lost one of its finest and most generous legal scholars.

Below is a copy of a painting (by Richard Taggart) presented to Mike to mark his retirement from Auckland Law School last year. It epitomises Mike: a truly fine common lawyer, with incredible enthuthiasm and passion for what he did.

We will all very much miss him.

See also: > 15 Lambton Quay: "The death of a friend - Professor Mike Taggart" > Hart Publishing: "A Simple Common Lawyer"

New Zealand Order of Merit (Modernisation of Titular Titles) Bill

2009-08-13T17:45:00.007+12:00

> New Zealand Order of Merit (Modernisation of Titular Titles) Bill Most folk reading this will know that, for quite some time, I have been lobbying publicly and on this blog for the reinstatement of titulars titles as part of the NZ Order of Merit. With this month's announcement of the re-designated Knights and Dames, part of that campaign has finally come to fruition. I understand there is soon to be a redesignation ceremony, from which point honorands will be able to use the appellations of Sir and Dame. But... my campaign was not merely about reinstating the titular titles of British origin. I also proposed that we allow equivalent Māori / Te Reo appellations, "Tā" and "Kahurangi" (or such other appellations as Māoridom support). It would, I think, have been a nice compromise in the polemic debate: a nod to our British heritage and a nod to our indigenous heritage. Anyway, I've now drafted a Member's Bill which would effect such a change. Also included in the proposed Bill are changes to a couple of the discriminatory elements of the Knightshoods and Damehoods. Honorands of both genders and their spouses should be treated the same - this Bill would ensure they are. This Bill is free to a good home - I'm happy for any MPs to pick it up and seek to have it progressed in the House. - - - - - - -

New Zealand Order of Merit (Modernisation of Titular Titles) Bill

Member's Bill

Explanatory Note

In March 2009, the New Zealand Order of Merit was changed to restore titular titles. That is, the recipients of the highest honours were redesignated Knights and Dames and are entitled to use the appellations of "Sir" and "Dame" before their names.

This Bill further amends the honours system to allow Knights and Dames to use a Te Reo Māori form of appellation, "Tā" and "Kahurangi", if they wish. This reinforces the indigenous nature of the Order and acknowledges that the honours system may evolve to reflect New Zealand's present-day culture. Further, the adoption of an explicitly indigenous appellation may mean some people may be more willing to accept the highest honours.

In addition, the Bill removes the following discriminatory elements of the titular titles and highest honours: - First, only men are entitled to be conferred with the Accolade of Knighthood (that is, the "dubbing" of shoulders with the ceremonial sword). - Secondly, only wives of Knights are entitled to the courtesy title "Lady". Husbands of Dames do not receive a courtesy title, nor do (opposite-sex or same-sex) civil union or de facto partners.

These elements are inconsistent with the prohibitions on gender, martial status and sexual orientation discrimination in the New Zealand Bill of Rights Act 1990. This Bill allows women to also receive the Accolade and to be "dubbed". It also removes courtesy titles for wives of any Knights, honoured after the date the Bill is passed (existing courtesy titles may continue to be used), so the spouses, civil union partners and de facto partners of Knights and Dames are all treated in the same manner.

____________________

[Member of Parliament]

New Zealand Order of Merit (Modernisation of Titular Titles) Bill Member's Bill

Contents 1 Title 2 Commencement 3 Purpose 4 Act to bind Crown 5 Te Reo Māori Titular Titles 6 Accolade of Knighthood 7 Removal of Courtesy Titles ____________________

The Parliament of New Zealand enacts as follows:

1 Title This Act is the New Zealand Order of Merit (Modernisation of Titular Titles) Bill 2009.

2 Commencement This Act comes into force on the day after the date on which it receives the Royal assent.

3 Purpose The purpose of this Act is: (a) to amend the Statutes of the New Zealand Order of Merit to provide for titular titles in Te Reo Māori, namely "Tā" and "Kahurangi"; (b) to remove discriminatory elements of the titular titles and highest honours.

4 Act to bind Crown This Act binds the Crown.

5 Te Reo Māori Titular Titles (1) Clause 20 of the Statutes of the New Zealand Order of Merit (SR 1996/205) is revoked and the following clause is substituted: "20. Ordinary and Additional members of the first and second levels of this Order may use the following appellations before their forenames from the date of their appointment:(a) in the case of a man of, "Sir" or "Tā"; and (b) in the case of a woman, "Dame" or "Kahurangi"." (2) Clauses 3(2)(c) and 4(2)(c) of the Additional Statutes of The New Zealand Order of Merit (2009/90) are amended by inserting after the word "Sir" wherever it appears, the words "or "Tā"". (3) Clauses 3(3)(b) and 4(3)(b) of the Additional Statutes of The New Zealand Order of Merit (2009/90) are amended by inserting after the word "Dame" wherever it appears, the words "or "Kahurangi"".

6 Accolade of Knighthood Clause 16 of the Statutes of the New Zealand Order of Merit (SR 1996/205) is revoked and the following clause is substituted: "16. It shall be competent for Our Chancellor of this Order to perform in Our Name, and on Our behalf, the ceremony of investing persons admitted to this Order with the insignia of their dignity and confer the Accolade of Knighthood on Knights Grand Companions, Dames Grand Companions, Knights Companions and Dames Companions if such Knights or Dames have not previously received the Accolade."

7 Removal of Courtesy Titles (1) Wives of Ordinary and Additional members admitted to the first and second levels of the New Zealand Order of Merit after the commencement of this Act are not entitled to used the courtesy title of "Lady" before their surname. (2) For the avoidance of doubt, wives of Ordinary and Additional members admitted to the first and second levels of the New Zealand Order of Merit before the commencement of this Act may continue to use before their surname (while it remains the same as that of their husband) the courtesy title of "Lady".

Ambach - is it really a provocation defence case?

2009-08-06T16:56:00.003+12:00

> R v Ambach (10.07.2009, CRI-2007-004-027374) I see the High Court ruling on whether the defences of automatism (based on drunkeness) and provocation should be put to the jury is now available. I must say it is only a partial piece of the jigsaw. As I note in some comments I made on another website, reproduced below, we still can't be confident about the reason for the manslaughter verdict. The ruling corroborates this uncertainty. As automatism was in issue (albeit ruled out as being caused by a drug), it suggests the possibility of a lack of intent due to drunkeness was a very real issue. Although provocation was allowed, reading between the lines, there is some suggestion it was a weak case without a strong foundation. It will be interesting and important to consider the judge's reasons when she sentences Ambach soon. That might shed some light on whether it is another tragic provocation defence case. However, whether or not this case ultimately turned on provocation, the great dark clouds that hangs over these types of case may be a reason itself to support its abolition anyways. - - - - - I think we might need to take some care at this point about what we read into the Ambach-Brown. I share the concerns about the egregious way the provocation defence is deployed by the killers of gay men. And I am similarly frustrated that it's taken a high-profile case involving a heterosexual woman to trigger the abolition of a defence when gay groups have been lobbying for abolition for years. However, I'm not sure we can confidentally assume that Ambach's acquittal turned on provocation. As I read the reports, the case for provocation was quite tenuous and the judge instructed the jury accordingly. A manslaughter verdict may also have arisen from a lack on intent (due, I understand, to claims of intoxication). In some respects we won't know because a jury does not need to provide reasons for it's verdict. But it might be that some light is provided by the judge when she sentences Ambach shortly. That's not to take away from awfulness of the case or the provocation defence - but categorising is as a successful provocation case might be premature at this point.