Validating legislation - under urgency

NewstalkZB: Parliament in urgency over overspend I extremely disappointed by the decision to pass validating legislation under urgency tomorrow. You will see from previous posts, I don't consider that retrospective validating legislation is necessarily objectionable, although I'm not convinced that the validating legislation needed if the parties pay the money back. However, there's no need to rush it through the House, without the ordinary notice and select committee scrutiny. No-one has yet seen a copy of the draft legislation. Despite requesting a copy under the OIA as a matter of urgency, I have not yet been able to obtain a copy of the Treasury advice which the Minister says requries this action. Expediting this type of legislation leads to citizens distrusting our Parliament. If there are legitimate imperatives underlying the need for the legislation then the legislation will survive the democratic processes and scrutiny. The government ought to allow the country time to consider and assess these imperatives.

OAG report

> LAWS179: "Shifting Goalposts" > LAWS179: "Retrospective (or retroactive) legislation and pledge cards" > LAWS179: "Killing Miss Muggins: Officially Induced Error" > LAWS179: "Rule of Law and retrospective legislation" > OAG report > Speaker's Reply No suprises. The report came out as most people predicted. Beyond the OAG's (and SG's) view on whether the spending was authorised, it's interesting to note the view of the parties and PS that the OAG's interpretation is inconsistent with previous practice and PS was actively involved in giving "guidance" on what was permissible and not. But probably most interesting aspect is the legal advice on the interpretation of the rules. Quite frankly, I'm with Jack Hodder on this one (attached to the Speaker's reply). In my view, the former SG's advice is unduly conservative and ignores the reality of the functions of politicians and the purpose of the rules. Hodder's analysis is much more compelling. Below are my comments on another blog on the critical "tainting" point:

1. I've always taken the Court of Appeal's decision in Attorney-General v Ireland [2002] 2 NZLR 220 to represent the orthodox view of how to deal with multiple purposes, one authorised, one not. Notably, they rejected a strict unauthorised purpose taints and invalidates the legitimate purpose: "[39]The authorities show that Courts have adopted five or six different approaches to the situation where the decider has sought to achieve both authorised and other purposes. (See eg de Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th ed, 1995) at para 6-077 (they have six (“none of which is entirely satisfactory”) but (1) and (2) appear to be the same) and Taylor, Judicial Review: A New Zealand Perspective (1991) at para 14.40 who identifies five tests and says three can be seen to come to the same conclusion.) One prominent variable involves the ranking of the unauthorised purposes (true or dominant as opposed to subsidiary), the “but for that purpose” test, the materiality of that purpose and the very existence of that purpose. Allbut the last involve the difficulty for the Courts of speculating about the weight actually given to particular purposes, an even more difficult matter if the decision is made by a multi-member body (Aronson and Dyer, Judicial Review of Administrative Action (2nd ed, 2000) at pp 250 – 251). [40] A further variable which we consider to be crucial in the context of the legislation in this case is the character or quality of the additional purpose. Does the particular purpose or even more its fulfilment “run counter”, to “circumvent” or “undermine” the proper statutory purpose, to quote Cooke J in Poananga? The Crown in its written submissions relied on the more directly relevant leading authority of Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997. Lord Reid, in one of his great administrative law judgments, says this at p 1030:“Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court. So it is necessary first to construe the Act.” [41] He then reviewed the legislation and the facts and returned to the wider issues at pp 1032 – 1033:“If it is the Minister's duty not to act so as to frustrate the policy and objects of the Act, and if it were to appear from all the circumstances of the case that that has been the effect of the Minister's refusal, then it appears to me that the court must be entitled to act.” [42] That careful wording, consistently with that of Cooke J in Poananga, reminds us that purposes not within the statute are not necessarily “invalid” or “improper”; the additional pursuit of such other purposes may not thwart or frustrate the policy of the Act in question. As indicated in both those cases, we need to return to the terms of the Reserves Act. [43] Is there anything in that Act to indicate that the other purpose (or effect) in this case is prohibited so long as the statutory purpose is being pursued (and in fact achieved) and is not in any way compromised by the other purpose? No such prohibition appears in the express terms of the statutory provisions themselves. There is for instance no express language matching the word “only” in para [35] of the High Court judgment (set out in para [8] above) or identifying any purposes as “invalid” (see para [31] of the judgment in para [7] above). The fact, emphasised by Mr Mills, that the powers related to the particular reserve, simply restates the issue: if the power is exercised for that reserve and for the statutory purpose, may it also be exercised for other areas and purposes so long as the statutory purpose is not prejudiced? We can see no indication in the legislation that other non-prejudicial purposes are prohibited. The Judge referred to none, nor did Mr Mills. Nor can we see anything in the rights and interests reflected in the legislation which will be damaged by the existence of the additional purpose. There is nothing here for instance which is comparable to the natural justice protections which were circumvented in Poananga. [44] We stress again that the additional purpose and use in the circumstances of this case did not prejudice the pursuit of the statutory process. Indeed, the implementation of that additional purpose may actually have facilitated the carrying out of the statutory purpose. But for the establishment of the area office at North Head, the improvements to and preservation of the historic buildings in the reserve and the enhanced public access may not have been accomplished. (That efficient and economic exercise of the powers conferred by the Reserves Act may well gain support from the State Sector Act 1988, s 32(d) and the Public Finance Act 1989 (see para (c) of its title and related substantive provisions), but since no argument was presented along these lines we take that no further.)[45] We conclude that, because the statutory purpose is satisfied and the additional purpose and use do not in any way prejudice that purpose, the additional purpose and use do not make the departmental action unlawful." ... "If I was summarising the principle of the Ireland case, I would say: Where adminstrative action is taken based on two purposes - one authorised and one not - the administrative action will not automatically invalidated because of the presence of the unauthorised purpose. The unauthorised purpose will only invalidate the otherwise authorised purpose if it undermines, thwarts or frustrates the authorised purpose. In the context of the examples given: 1. Pamphlet with legitimate parliamentary business on one side and impermissible electioneering on the other): This would probably be okay because they are relatively separate and the authorised activity could have taken place, and was not undermined, by the inclusion of illegitimate electioneering. 2. Apportioning a "fused" advert and dividing between "parliamentary business" and overt "electioneering": Probably impermissible because the legitimate purpose and electioneering are probably indivisible and this is more directly an attempt to circumvent the prohibition."

UPDATE: One surprise - kind of. Labour announced they would pay the funds back. As I've previously suggested, I'm not convinced that they should be required to - if ordinary administrative law principles were applied. However, I can understand the political imperative which has lead to them doing so.

Election expenses - prosecution under the Electoral Act

> Scoop: National asks cops to explain on pledge card probe > NZHerald: Police dragged into election spending row > NoRightTurn: Cause for complaint > KiwiBlog: Brash complains to Police over Electoral Act investigation I've previously written a bit about the legitimacy of the spending on the pledge cards, concluding that it might be credible spending under the Leaders' Fund and may not need to be repaid (retrospective legislation on this point might not be objectionable). However, I take a different view on the question of whether it should have been recorded as an electoral expense under the Electoral Act and whether, consequentially, Labour exceeded the cap. I'm concerned about the robustness of the Police's analysis of the charges and evidence when they decided not to prosecute (I won't detail the concerns here - others have addressed this elsewhere). There is some speculation that the real reason was the time for a prosecution expired (or a prosecution could never have been bought in time after the election). It's the question of the timing of a prosecution that I want to address. Section 226 of the Electoral Act sets a 6 month time limit for any prosecution:

s226. Time limit for prosecutions A prosecution against any person for a corrupt practice or an illegal practice shall be commenced within 6 months after the offence was committed: Provided that where the person charged has been reported by the High Court in its report on the trial of an election petition to have been proved guilty of the offence, a prosecution shall be commenced within 6 months after the offence was committed or within 3 months after the date of the report, whichever period is the later to expire.

There's some question mark about when any offence was committed, assuming there was one. A lot of people have adopted the 6 months from the election date or the date of the electoral return. However, I suspect it's at an earlier point in time. The offence in section s214B(3) is as follows:

(3) Every person who directly or indirectly pays or knowingly aids or abets any person in paying for or on account of any election expenses any sum in excess of the maximum amount prescribed by this section is, (a) If the act is done with knowledge that the payment is in excess of the maximum amount prescribed by this section, guilty of a corrupt practice; and (b) In any other case, guilty of an illegal practice unless the person proves that he or she took all reasonable steps to ensure that the election expenses did not exceed the maximum amount prescribed by this section.

The critical elements are "pays" and "in excess of the maximum amount". This means, I think, the time of any offence was when Labour paid the first invoice that took them over any limit (assuming the pledge cards are attributable spending under the Electoral Act - there's seems to be no doubt that if it was, they were over the limit). As an aside, there is some dissonance between the reference in the offence section to "pays" when the definition of election expenses refers to "incurs". Now, factually, I have no idea when this took place - it may have been rather early in the election process. Alternatively, it might have been months after, particularly if an actual payment approach is adopted. (Actually, I was once involved in litigation which raised the issue of whether a cause of action arose when expenses were "incurred" or "paid": see Watercare Services Ltd v Affco New Zealand Ltd.) I suspect therefore that any prosecution was always going to face limitation problems. The question has been raised about whether retrospective legislation could be used to amend the limitation provision to allow a prosecution. However, if a desire to allow a prosecution is to be pursued, I'm not convinced it is necessary. There is a possible solution within the Electoral Act itself, albeit somewhat of a "hail mary". Section 266 of the Electoral Act empowers the Governor-General extend the time for doing anything which could not have been done in the time required:

s266. Validation of irregularities Where anything is omitted to be done or cannot be done at the time required by or under this Act, or is done before or after that time, or is otherwise irregularly done in matter of form, or sufficient provision is not made by or under this Act, the Governor-General may, by Order in Council gazetted, at any time before or after the time within which the thing is required to be done, extend that time, or validate anything so done before or after the time required or so irregularly done in matter of form, or make other provision for the case as he or she thinks fit: Provided that this section shall not apply with respect to the presentation of an election petition or to the giving of security for costs in relation to an election petition.

Now, it's not straight-forward for a number of reasons: - Although, on its face, the section is wide enough to cover this scenario, it's clearly not the purpose of the section (and could be "read down" according). - It would need to be established that a prosecution within the time limit was never a possibility; I'm not sure that was the case. - Applying the section might have retrospective effect, which is problematic in the criminal context. On the other hand, it's only the limitation period not the substantive criminal offence (the Court of Appeal in R v Hibberd [2001] 2 NZLR 211 seemed less concerned with retrospectivity in limitation provisions: "Any failure to provide in the reforms for what would amount to an amnesty is not ... the equivalent of the retrospective imposition of a penalty.") and conceptually a prosecution now would not violate the offender's decision-making functions - merely remove an amnesty. - Limitation periods generally arise because of a desire for a fair trial and, in this context, the legal certainty related to the election. In this case, neither is really an issue: the provisions already recognise an extended limitation period if the offence is reported in an electoral petition (which is not a possibility for party spending). - Realistically, the prospect of the Governor-General gazetting an Order in Council is remote because these are gazetted on advice of the Executive Council, ie the government. Anyways, food for thought!

NZ Centre for Public Law: Dr Judit Bayer, "ISPs' liability for third party content: Ways of Regulation"

I meant to post this earlier. The NZ Centre for Public Law is today hosting a public lecture on the regulation of the internet by one of our senior research fellows: Dr Judit Bayer Cyber Research Fellow, Victoria University School of Law and InternetNZ "ISPs' liability for third party content: Ways of Regulation" 12:30-1:30pm, 3 October 2006 Rutherford House Lecture Theatre 3 Lambton Quay, Wellington > NZCPL: Lecture flyer

"Equality" and "equality"?

> NZHerald: Peters' claim Brash comments 'evil' wins backing > NZHerald: Brash stirs up Maori 'storm' The "one law for all" mantra has once again hit the headlines. I think one of the most disappointing aspects of public dialogue on this issue is the failure of the left and social democratic parties to meaning engage. Unfortunately, the discussion of equality is framed on "formal equality", that is, consistent or equal treatment. However, that is not the only conception of equality. For example, increasingly prevalent is a focus on "substantive equality" where the focus is on achieving equality of results, or a more limited form, where the focus is on equality of opportunity. Sandra Fredman explains the differences in Discrimination Law (2002, OUP):

How do we explain then how equal treatment can in effect lead to inequality, while unequal treatment might be necessary in order to achieve equality? The apparent paradox can be understood if we accept that equality can be formulated in different ways, depending on which underlying conception is chosen. Equality of treatment is predicated on the principle that justice inheres in consistency; hence likes should be treated alike. But this in turn is based on a purely abstract view of justice, which does not take into account existing distributions of wealth and power. Consistency in treatment of two individuals who appear alike but in fact differ in terms of access to power, opportunities or material benefits, results in unequal outcomes. An alternative conception of equality, therefore, is based on a more substantive view of justice, which concentrates on correcting maldistribution. Such a principle would lead to a focus on equality of results, requiring unequal treatment if necessary to achieve an equal impact. Alternatively, the focus could lie on facilitating personal self-fulfillment, by equalizing opportunities. This differs from both the above conceptions, in that a notion of equality which stresses equal opportunities is consistent with inequality of treatment and inequality of results. Unequal treatment might be necessary to equalize the opportunities of individuals, but once opportunities are equal, different choices and capacities might lead to inequality of results. The choice between different conceptions of equality is not one of logic but of values and policy. Equality could aim to achieve the redistributive goal of alleviating disadvantage, the liberal goal of market or contractual equality and the political goal of access to decision-making processes. It is striking that, despite the widespread adherence to the ideal of equality, there is so little agreement on its meaning and aims

I've uploaded the chapter from which the extract is drawn: > Fredman, Discrimination Law

I know it's harder to sell "substantive equality" to the general populace because it requires a deeper analysis and doesn't fit short sound-bites. However, if the social democratic vision of substantive equality - which underpins much of the equality jurisprudence in our legal system and our comparator nations - is to be maintained, we need to do a better job at engaging in the discussion and reminding the public that Brash doesn't have a monopoly on the equality card. I suggest that rather than rushing off to revisit all policies for "need, not race", left and centre-left parties ought to be standing firm and reminding the public that "equality" is a contested concept and substantive equality (or equity) is a genuine and legitimate approach to equality under the law.