Peter Davis - imputations of gayness

> SST: Smear against PM's husband 'despicable' > SST: PM hits out at 'smutty rumours' > DomPost: Furious Clark defends husband > NZHerald: Bitter Clark savages rumours There's been some suggestion that litigation may follow the recent allegations being made about Peter Davis being gay. However, in my view, allegations of gayness per se are not and should not be defamatory. In today's society it cannot be said that "right-thinking" people would think that an allegation of gayness tarnishes a person's reputation. My article on this was launched last week: > Dean R Knight,"'I’m Not Gay – Not That There’s Anything Wrong With That!': Are Unwanted Imputations of Gayness Defamatory?" (2006) 37 VUWLR 249 It's likely though that the courts may treat allegations of gayness "plus" as being defamatory, that is allegations of gayness (which are not defamatory) tied with allegations of infidelity, untruthness, or a "sham" marriage etc (which still might be). While I have some concerns about this approach which I touch on in my article (ie these other allegations are often used just to "reinvent" allegations of gayness), this alternative may still be available to Davis. UPDATE (27/9/2006): Steven Price discusses this issue with Kathryn Ryan on National Radio, including some of the points addressed in my article: > NatRadio: Law

Killing Miss Muggins: Officially Induced Error

There's been some discussion about whether Labour can rely on ignorance or confusion about the pledge cards, if it transpires that their spending was unlawful. See: > KiwiBlog: "New Court defences" > NoRightTurn: "Analogous defences" In terms of criminal offences: 1. It's clear that ignorance of the law is no excuse. Section 21 of the Crimes Act provides:

s25.Ignorance of law— The fact that an offender is ignorant of the law is not an excuse for any offence committed by him.

2. However, some common law courts have developed the defence of "officially induced error". In New Zealand there is the possibility that this development may be preserved by s20 of the Crimes Act, although I recall a recent case from Baragwanth J suggesting some difficulties in the NZ context. The commentary in Brooker's, Criminal Law describes the defence as follows:

CA25.05 Officially induced error In some jurisdictions Courts have accepted that there might be a defence if a defendant acted on erroneous advice on the law from an official responsible for administering the law in question, for example, People v Ferguson 134 Cal App 41 (1933); R v MacDougall (1983) 142 DLR (3d) 216 (SCC); R v Cancoil Thermal Corp and Parkinson (1986) 27 CCC (3d) 295 (Ont CA). The existence of such a defence was left open in R v Forster (1992) 70 CCC (3d) 59 (SCC). In R v Jorgensen (1995) 129 DLR (4th) 510; 102 CCC (3d) 97 (SCC), Lamer CJC favoured recognising the principle as providing a ground on which the trial Judge may order a stay of proceedings: compare CA24.33. Such a defence has yet to find favour in England. See, for example, Surrey County Council v Battersby [1965] 2 QB 124; Cambridgeshire and Isle of Ely County Council v Rust [1972] 2 QB 426; Ashworth, “Excusable mistake of law” [1974] Crim LR 652. In New Zealand, statute occasionally creates a defence of this kind in particular contexts. See, for example, Cardin Laurant Ltd v Commerce Commission [1990] 3 NZLR 563; (1989) 3 TCLR 470. A general defence has been upheld in at least one District Court case: Dept of Internal Affairs v Nicholls 20/5/86, Judge Bradford, CR5004024002025; W Brookbanks, “Recent developments in the doctrine of mistake of law” (1987) 11 Crim LJ 195, p 200. The possibility of such a defence was not adverted to in Labour Dept v Green [1973] 1 NZLR 412, and in Tipple v Police [1994] 2 NZLR 362, Holland J preferred to deal with such a case by discretionary discharge without conviction (under what is now s 106 Sentencing Act 2002) rather than by recognising a defence. For a comprehensive review of the subject, see M Briggs, “Officially induced error of law” (1995) 16 NZULR 403.

This may provide an avenue for raising these issues (although as I understand the appropriations aspect of the pledge card raises criminal law issues). 3. The conceptual basis for this defence is strong and grounded in the Rule of Law, particularly where the law itself is undertain or ambiguous (which in itself violates the Rule of Law). I won't bore people with the references on this point now. 4. Regardless, the courts treat genuine ignorance of the law or confusion about the law more sympathetically because it goes to the degree of an offender's culpability or "wickedness". As noted in the commentary, in some cases, the mistake or lack of knowledge of an offence may lead to a discharge without conviction. As you'd expect the position on civil proceedings is usually more accomodating of such errors. I haven't got the resources to review it yet, suffice to say that in administrative law and judicial review, it would be one of the key considerations for the High Court when deciding whether to grant any relief even if illegality was established, that is, confusion and ignorance may legitimately form the basis for a court refusing to require the paying back of money. See my earlier posts for more commentary on this point: > LAWS179: "Shifting Goalposts" > LAWS179: "Retrospective (or retroactive) legislation and pledge cards" UPDATE (13/9/2005): Some people have asked what the elements of the defence might be and who bears the onus of proof. 1. The elements for officially induced error are pretty self-evident. The Supreme Court of Canada described it in R v Jorgenson [1995] 4 SCR 55 in the following terms:

In order for an accused to rely on an officially induced error of law as anexcuse, he must show, after establishing he made an error of law (or of mixed law and fact), that he considered his legal position, consulted anappropriate official, obtained reasonable advice and relied on that advicein his actions. When considering the legal consequences of his actions, itis insufficient for an accused who wishes to benefit from this excuse to simply have assumed that his conduct was permissible. The advice camefrom an appropriate official if that official was one whom a reasonable individual in the position of the accused would normally considerresponsible for advice about the particular law in question. If an appropriate official is consulted, the advice obtained will generally be presumed to be reasonable unless it appears on its face to be utterly unreasonable. The advice relied on by the accused must also have been erroneous, but this fact does not need to be demonstrated by the accused. Reliance on the official advice can be shown by proving that the advice was obtained before the actions in question were commenced and by showing that the questions posed to the official were specifically tailored to the accused's situation.

2. The position of the onus of proof is a little more complex. It depends on whether the criminal proceedings are bought as indictable or summary offences: - If bought indictably, the orthodox burden of proof applies, that is, the defendant need only make the defence a live issue by pointing to evidence in support of it; the prosecution then bears the onus to prove beyond reasonable doubt that the defence is not made out. - If bought as a summary proceeding, section 67(8) of the Summary Proceedings Act applies and the defendant bears the onus of establishing the defence on the balance of probabilities.

VUWLR: "'I’m Not Gay – Not That There’s Anything Wrong With That!': Are Unwanted Imputations of Gayness Defamatory?"

As I've mentioned previously, one of the truly great delights of the academy is the publication your scholarly writing. I'm therefore very proud to have had another article published: > Dean R Knight,"'I’m Not Gay – Not That There’s Anything Wrong With That!': Are Unwanted Imputations of Gayness Defamatory?" (2006) 37 VUWLR 249 This particular issue was especially significant because it was part of a broader endeavour. Elisabeth McDonald and I (well, really, Elisabeth - with me tagging along) organised the Sexuality and Citizenship Symposium at the Faculty of Law, Victoria University of Wellington and the result of that symposium is a special issue of Victoria University of Wellington Law Review. The special issue is a collection of articles addressing contemporary issues about sexuality and citizenship within our society and legal system:

Graeme W Austin, "Family Law and Civil Union Partnerships – Status, Contract and Access to Symbols"

Edward Clark, "The Construction of Homosexuality in New Zealand Judicial Writing"

Elisabeth McDonald, "No Straight Answer: Homophobia as Both an Aggravating and Mitigating Factor in New Zealand Homicide Cases"

Dean R Knight,"'I'm Not Gay – Not That There's Anything Wrong with That!': Are Unwanted Imputations of Gayness Defamatory?"

Nan Seuffert, "Sexual Citizenship and the Civil Union Act 2004"

Paula D Baron, "In the Name of the Father: the Paternal Function, Sexuality, Law and Citizenship".

Ngaire Naffine - our guest commentor for the symposium - introduces the issue in her commentary, "The Sexual Citizen".

The issue was launched on Thursday night at a function at the Law School. Below are the remarks I made on behalf of Elisabeth and myself:

"Sexuality matters. Even in today's modern liberal society, sexuality is important. The treatment of the sexual citizen by our legal framework and institutions continues to be a crucial litmus test for the dignity of our society. Even if one maintains the view that sexuality should be irrelevant in matters of citizenship, civic participation and day-to-day living, this still presupposes equal treatment for all sexual citizens. Sexual citizenship and the treatment of sexuality arises across the legal framework. We are delighted that articles in this issue reflect that by addressing the issue of sexual citizenship in the areas of the family law, relationship recognition, crime and victims of crime, private tort law, and the language of law within our Parliament and judiciary. Critical queer legal scholarship or legal scholarship on sexuality is not easy scholarship to undertake. In New Zealand there has not been a strong tradition of this type of scholarship. Internationally we hear stories from our colleagues about the nervousness associated with this type the scholarship such as questions about the impact on tenure. Even in New Zealand's present PBRF environment, it is easy to doubt how this scholarship might be received or how it might fit into a "research platform" alongside black letter law. It takes some courage to engage in this type of scholarship. That brings me to the symposium held last year that formed the foundation for the special issue. The bringing together of legal scholars provided strength and a desire for boldness that enhanced the scholarship that forms part of the special issue. On behalf of Elizabeth and myself, thanks to Eddie, Nan, Paula, and Graeme (in absentia) for participating in the symposium. Thanks also to Ngaire, who as guest commentator managed to weave our different threads together to make a coherent whole. And on behalf of the participants, thanks to Elizabeth for making the symposium and special issue happen – the symposium and special issue have really been Elizabeth's "baby". And some other thanks. Particular thanks to Judge Ian Borrin for his financial support of the symposium and special issue through his endowment fund. And thanks also to the Victoria University of Wellington Law Review and its editorial committee for its support throughout. Thanks to Will Thomson, Student Editor-in-Chief and his team a student editors for the expertise in correcting our various typos and grammar and their patience throughout. And finally thanks to those of you that are here to share in the celebrations today. Tt is delightful to have representatives from the wider queer and sexuality-focused academic, political, social communities, as well as many others who are here today and stand with us in saying ... sexuality matters. To close, I wish to read the quotation from the front-piece of the special issue which is taken from the recent maiden speech to Parliament of Maryan Street MP: 'Only a cringing, unassertive democracy retains its power by excluding others and stripping them of their place in it. As a lesbian, I have been the subject of other people's efforts to push me to the margins, to erode my legitimacy as a citizen, and to belittle my efforts and achievements. I have never accepted marginalisation; it is a construct of others who wish me to be marginalised.'"

RIP: Robin Brunskill Cooke

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A truly great man, scholar, jurist, and champion of justice. As his personal coat of arms says: "To speak in favour of fairness".

Koha and lofa

There's been some public discussion about the appropriateness of MPs accepting koha and lofa. It's worthwhile looking at the Cabinet Office Manual to see the present articulation of propriety on this (the Manual only applies to Ministers but in this case is a useful guide for the appropriateness for MPs as well):

PUBLIC DUTY 2.48 Ministers of the Crown are expected to devote their time and talent to carrying out their official business, both as members of the executive and as Members of Parliament representing their constituents. Holding office is regarded as a full-time occupation and is remunerated as such. Therefore: - accepting additional payment for doing anything that could be regarded as part of a Minister's normal portfolio responsibility is not permissible; - accepting payment for any other activities will require the prior approval of the Prime Minister, and any payment received must be declared in the Register of Ministers' Assets and Interests. ... GIFTS 2.68 The exchange of gifts during official government visits is an accepted practice; a refusal to accept is likely to cause offence. Such gifts are, however, more in the nature of gifts to the office than to the incumbent. A Minister may relinquish any gift to the Secretary of the Cabinet to arrange for appropriate display of the item. If Ministers wish to retain gifts received in New Zealand or overseas, they may do so if the estimated value is under NZ$500. If the estimated value is NZ$500 or more, the gift may be retained while in office but must be declared on the individual's schedule of interests. Gifts with an estimated value of over NZ$500 must be relinquished on giving up office, unless the express permission of the Prime Minister to retain them is obtained. 2.69 To avoid the creation or appearance of an obligation, gifts in cash or kind are not to be solicited or accepted from a commercial enterprise or any other organisation. An exception to this would be the acceptance of some small unsolicited token, for example, a presentation made during a visit to a marae or a factory. 2.70 From time to time, airlines invite Ministers to participate in inaugural flights. It is not improper for a Minister to take part in an inaugural flight, but the government should meet the full cost of the airfare.

The question of lafo was raised but left open by Noel Ingram QC in his report (see paras 445 to 453). It's worthy of further consideration. Obviously, principles of integrity and accountability cannot be undermined. However, it's also important to ensure these genuine cultural practices are, to the extent possible, respected. I suspect this means the answer lies somewhere between two extremes, that is, it's not an absolute yes or no to the practice.