RMA: National's priority consenting?

The National Party have made a big deal about "streamlining" the Resource Management Act, particularly for major projects of national importance. It's a central plank of their "reform" of the RMA. But, in my view, it looks like a big smoke and mirrors game, as the RMA presently provides mechanisms for such projects to be expedited. Quite simply, no legislative reform is needed. First, let's look at their statement of policy. > NatParty: "National's Infrastructure Plan, Building for a Brighter Future"

National will: • Introduce a Priority Consenting process to streamline resource consents for major infrastructure projects of critical national importance. o These consents will not go through the local council but will instead be called in and determined nationally. o This process will still allow for proper environmental assessment and will enable communities to have their say. o The law will require a decision on these Priority Consents within nine months. • Introduce a new category of state highway called Roads of National Significance that will be singled out as essential roads that require priority treatment. • Review and, where necessary, reform the Local Government Act and the Land Transport Management Act to reduce infrastructure delays and speed up development. • Streamline and simplify the Resource Management Act, as detailed in our previously released policy paper.

> NatParty: "Policy 2008: Environment, Resource Management"

Priority Consenting The existing process for consenting large infrastructure projects is cumbersome. In many cases, it takes longer to process consents for large projects through the RMA than it takes to build them. Such delays act as a brake on the economy and are unfair on affected communities. National’s Resource Management Amendment Bill will provide for ‘Priority Consenting’ of major infrastructure projects. Consents for these projects will be processed by the newly established Environmental Protection Authority (EPA). The EPA will be required to make decisions within nine months.

Now let's compare with the present RMA regime for the "call-in" of projects of national importance. Sections 141A and 141B presently allow the Minister of the Environment to "call in" projects of national importance.

The power itself is contained in section 141A(4)(b):

141A Minister's power to intervene (1) This section applies when the Minister— (a) ... (b) decides to apply the section. (4) The powers are— (a) ... (b) to call in the matter under section 141B: ...

The effect of calling in a matter and the threshold for a proposal of national significance are set out in section 141B:

141B Minister's power to call in matters that are or are part of proposals of national significance (1) When the Minister considers that a matter is or is part of a proposal of national significance, the Minister may call in the matter by making 1 of the following directions: (a) a direction that the matter be referred for decision to a board of inquiry under sections 146 to 149; or (b) a direction that the matter, after the receipt of any submissions that the local authority or the Minister called for, be referred for decision to the Environment Court under section 150AA (2) In deciding whether a matter is or is part of a proposal of national significance, the Minister may have regard to any relevant factor, including whether the matter— (a) has aroused widespread public concern or interest regarding its actual or likely effect on the environment, including the global environment; or (b) involves or is likely to involve significant use of natural and physical resources; or (c) affects or is likely to affect any structure, feature, place, or area of national significance; or (d) affects or is likely to affect more than one region or district; or (e) affects or is likely to affect or is relevant to New Zealand's international obligations to the global environment; or (f) involves or is likely to involve technology, processes, or methods which are new to New Zealand and which may affect the environment; or (g) results or is likely to result in or contribute to significant or irreversible changes to the environment, including the global environment; or (h) is or is likely to be significant in terms of section 8 (Treaty of Waitangi).

In essence, the RMA defines a proposal on national significance broadly, allowing the Minister to make a judgement about the effect and significance of a proposal. The short point is that "major infrastructure projects of critical national importance" already fall within the definition of proposals of national significance and can be called in by the Minister. (Section 141A(4) also contains a portfolio of other less dramatic measures that can be adopted for proposals of national significance.)

Of course, there's no obligation to call in these projects, it's a discretionary judgement. For a long time under both National and Labour governments, there was some reluctance to call in projects. However, over the last couple of years, we've see the government being more willing to exercise the power - particular in relation to sustainable electricity generation schemes (see MfE, "Call in of matters of national significance").

So what happens if a proposal gets called in? Presently, the proposal gets referred to either:

- a Board of Inquiry, between 3 and 5 people (one of whom is a current or former Environment Court judge) who hear the proposal and submissions;

- the Environment Court, who hears the proposal as if it was an appeal to the Environment Court.

The important point is that both these processes supersede the functions of the local authority. There is only one hearing, in each case by a panel or court of experts / commissioners. Administrative support for the proposal is provided by the Ministry for the Environment, in lieu of the local authority. And the right of appeal to the High Court is restricted to errors of law only.

So what's the difference? Without seeing the minutiae of the policy, it's difficult to see any material difference:

- The only main difference seems to be the identity of those making the decision - a permanent EPA, rather than an ad hoc expert Board of Inquiry or the Environment Court. But that seems to be bye-the-by. The main point of calling in or priority consenting is to remove the processing and determination function from local authorities, replacing the usual 2-tier hearing process with a 1-tier expert adjudication process.

- The one additional requirement in National's policy is a requirement that these proposals be processed within 9 months in total. The Board of Inquiry process does not specify a long-stop deadline for processing, but instead prescribes maximum time-limits for each step (usually 20 working days).

- It's unclear whether priority consenting will operate automatically or not. Or whether the Minister needs to make a case-by-case assessment. Reform to make it operate automatic might be a material difference. But, in reality, the same outcome would be reached by having a Minister of the Environment that exercised greater predilection for calling in proposals.

As you can see, our world-renown RMA regime already makes provision for priority consenting of proposals of national importance in appropriate cases. Any call to amend it to proposal for this is illusory.

(It might be implicit in my analysis that I don't have a philosophical objection to call-ins. That's right. I think it's an appropriate power for appropriate cases. It's part of the dynamic of national-local goverment relations. Local democracy is important. But there are some cases where it's appropriate for the matter to be considered with a national perspective. Ultimately, the issue is really a matter of emphasis: On the one hand, how much should weight should the national importance be given? On the other hand, how much weight should be given to grass-roots democracy?)

Titular titles - now an election issue?

> SST: "Key suggests a return to knighthoods" (A little to my suprise) I've discovered that there's one of John Key's policies that I agree with: the reinstatement of titular titles in the honours system. For some time now I've been arguing that titular titles could and should be integrated within our indigenous system of honours, including allowing Te Reo equivalent titles. A copy of the Bill I've drafted (in the form of a Member's Bill) is set out on the post below: > LAWS179: "New Zealand Order of Merit (Titular Titles) Bill" I would be delighted if it was progressed in the next term, either as a Member's Bill or - through direct amendment of prerogative legislation on advice of the government. As an aside, I note Helen Clark's concern that some folk previously declined the honour due to the titular title. That concerns me a little - but I am thinking about the amending the Bill to allow people to take the equivalent honour sans titular title.

Vote with Eyes Wide Open, Wellington City, and Phantom Billstickers

> NoRightTurn: "Wellington City Council suppresses freedom of speech" > Wellingtonian: "Council vetos political poster campaign" Idiot/Savant draws attention to Wellington City's bizarre policy of preventing political posters being posted on Council-owned poster bollards, and points to a story recently run by The Wellingtonian:

Council business performance manager Jon Visser told The Wellingtonian that it was the council's policy to remove inappropriate posters put up without permission and to pass on costs to the group behind them. The group's "When you vote, don't forget" posters are intended to remind voters about National's 1990s policies. The non-partisan group believes National still has a hidden agenda remaining from the 2005 election and isn't revealing its true intentions. The posters have been placed on council-owned bollards, which are managed by Phantom Billstickers for arts and community posters. Phantom Billstickers is the company contracted to place places on the council-designated spaces. Mr Wheeler says using Phantom's services to put up posters is too expensive for his group and means that "to be politically active in Wellington you have to have money". He likens the group's campaign to the anti-nuclear and anti-Vietnam War campaigns and says the council is deliberately obstructing the democratic process. Mr Wheeler says he received a call from Mr Visser saying the group would be fined for each poster put up and charged for their removal. Although Mr Visser says there is usually a charge involved with using Phantom's services for putting up posters, this applies only to events intended to make a profit, such as gigs with cover charges. Non-profit meetings and community groups could generally have posters put up for free but need the permission of Phantom or the council. Mr Visser says the council-operated bollards "have to remain apolitical" and Vote With Both Eyes Open would need to follow the council's rules for political party and third-party advertising. This includes the use of certain 'hoarding' sites for political advertising and payment of a bond.

[UPDATE: 28/10/2008: See further post for clarification of a point by the Council: LAWS179 "Bill-stickering and the Wellington City Council"]

Having looked at it quickly, the regime for hoardings and bill-sticking is rather complicated, made even more complicated by the fact that the Council has devolved responsibility for regulation of poster bollards to a private company, Phantom Billstickers: > Wellington City: "Guidelines for Temporary Signs in Public Places" Idiot/Savant rightly questions the lawfulness of the restrictions and Council's approach. I agree. I'm sceptical about the role of a private agency in regulating this important public activity, and am disappointed the Council's documents seem to fail to make any mention of the Bill of Rights. Although one needs to be cautious about directly borrowing human rights jurisprudence from other jurisdictions, it reminds me of a Supreme Court of Canada decision, Ramsden v Peterborough (City) [1993] 2 SCR 1084, where it struck down a bylaw that attempted to prevent people from bill-stickering on utility poles and other Council property. In short, the Court concluded:

Moreover, the benefits of the by-law are limited while the abrogation of the freedom is total, thus proportionality between the effects and the objective has not been achieved. While the legislative goals are important, they do not warrant the complete denial of access to a historically and politically significant form of expression. I would agree with the majority of the Ontario Court of Appeal, at p. 294, on this point that "[a]s between a total restriction of this important right and some litter, surely some litter must be tolerated". Therefore, the by-law cannot be justified under s. 1.

The long version, ie the relevant parts of the Court's Charter analysis, is as follows:

Under Irwin Toy, supra, there are two basic steps in the s. 2(b) analysis. First, one must determine whether the activity at issue falls within the scope of s. 2(b). This first step is itself a two-part inquiry. Does postering constitute expression? If so, is postering on public property protected by s. 2(b)? Under the second step of the s. 2(b) analysis, one must determine whether the purpose or effect of the by-law is to restrict freedom of expression. 1. Does Postering Constitute Expression? Under Irwin Toy, supra at pp. 968-69, the first question to be asked in a case involving s. 2(b) is whether the activity conveys or attempts to convey a meaning. This is an easy inquiry in the present case, and indeed the appellant city of Peterborough has properly conceded that the respondent was engaging in expressive activity through the use of posters to convey a message. In the Court of Appeal, Krever J.A. held at pp. 291-92 that "[i]n informing the public, or those members of the public who read the [respondent's] posters, of a coming musical performance the posters conveyed a meaning". Postering has historically been an effective and relatively inexpensive means of communication. Posters have communicated political, cultural and social information for centuries. In Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, this Court held that a law requiring public signs and posters to be printed only in French violated s. 2(b). Implicitly, this decision held that public signs and posters are a form of expression protected by s. 2(b). Regardless of whether the posters concerned constitute advertising, political speech or art, it is clear that they convey a meaning. Therefore, the first part of the s. 2(b) test is satisfied. 2. Is Postering on Public Property Protected by s. 2(b)? The second question in the s. 2(b) inquiry is whether postering on public property falls within the scope of s. 2(b). In Committee for the Commonwealth of Canada there were three separate approaches articulated as to the appropriate standard to be applied to determine whether expressive activity falling prima facie within s. 2(b) and occurring on public property is constitutionally protected. While these approaches have been subject to some criticism, (see, for example, Michael Kanter, "Balancing Rights Under Section 2(b) of the Charter: Case Comment on Committee for the Commonwealth of Canada v. Canada" (1992), 17 Queen's L. J. 489; B. Jamie Cameron, "A Bumpy Landing: The Supreme Court of Canada and Access to Public Airports under Section 2(b) of the Charter" (1992), 2 Media & Communications L. Rev. 91), in my view it is neither necessary nor desirable to revisit Committee for the Commonwealth of Canada in the present case. ... ...Regardless of the approach chosen, it is clear from Committee for the Commonwealth of Canada that postering on some public property is protected by s. 2(b). A brief discussion of each approach in the context of this case makes this conclusion self-evident. Under the approach proposed by L'Heureux-Dubé J., all restrictions on expressive activity on public property violate s. 2(b). Place restrictions must be justified under s. 1 which will be discussed below. In my view, an application of the factors enumerated by L'Heureux-Dubé J. clearly leads to the conclusion that this by-law could not be justified under s. 1. Using Lamer C.J.'s approach, we must balance the interest of the respondent in publicizing the performances of his band, against the state interest in ensuring effective and safe operation of services. In this case, the public property used by the respondent to convey his message was utility poles. The question to be asked is therefore whether attaching posters to public utility poles is incompatible with the poles' use of carrying utility transmission lines. In my opinion, it is not. In this regard, I would adopt the words of McFadyen J. in Re Forget, supra at p. 557: "Generally speaking, a poster does not interfere with the use of the utility pole as a utility pole. It does not deprive the public of the use of such a pole." Without considering other types of public property, it is clear that postering on some public property, including utility poles, is compatible with the primary function of that property. Finally, under McLachlin J.'s approach, the question to be asked is whether postering on public property, and in particular on utility poles, furthers any of the values or purposes underlying s. 2(b). In Irwin Toy, this Court articulated the values underlying freedom of expression at p. 976: "... (1) seeking and attaining the truth is an inherently good activity; (2) participation in social and political decision making is to be fostered and encouraged; and (3) the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed." In this case, one does not have to go further than the second value articulated in Irwin Toy, namely participation in social and political decision-making. As I noted above, posters have communicated political, cultural and social information for centuries. Postering on public property including utility poles increases the availability of these messages, and thereby fosters social and political decision-making. In Re Forget, supra, at pp. 557-58, McFadyen J. observed that "after the invention of modern printing technology, posters have come to be generally used as an effective, inexpensive means of communication. Posters have been used by governments to publish notices dealing with health, immigration, voters' lists, recruitment of armies, etc. Posters have been used by political parties, private and charitable organizations and by individuals. They convey messages, give notice of meetings and fairs.... [I]n societies where the government tends to repress opposition ideas, posters are the only means of communicating opposition ideas to a large number of people." In Fink v. Saskatoon (City of) (1986), 7 C.H.R.R. D/3431, at p. D/3440, a Saskatchewan Board of Inquiry found that a prohibition of postering in Saskatoon violated freedom of expression under the Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1. In its decision, the Board referred to the evidence of the art historian Robert Stacey, author of The Canadian Poster Book: 100 Years of the Poster in Canada (at p. D/3440): "[Mr Stacey] testified it was early recognized that posters were an effective and inexpensive way of reaching a large number of persons. In order to be effective, posters of course must be affixed to a surface and publicly displayed. Posters are traditionally used by minority groups to publicize new ideas or causes. Posters are both a political weapon and an educational device. According to Mr. Stacey, one measure of the openness of a democratic society has been the willingness of the authorities to allow postering. . . . Posters are an economic way of spreading a message. Utility poles have become the preferred postering place since the inception of the telephone system. . . . Posters have always been a medium of communication of revolutionary and unpopular ideas. They have been called "the circulating libraries of the poor." They have been not only a political weapon but also a means of communicating artistic, cultural and commercial messages. Their modern day use for effectively and economically conveying a message testifies to their venerability through the ages." [Emphasis added.] I would adopt this characterization of the relationship between the message and the forum in the present case. In my view, it is clear that postering on public property, including utility poles, fosters political and social decision-making and thereby furthers at least one of the values underlying s. 2(b). Before leaving this branch of the analysis, I must address the concerns raised by Galligan J.A., dissenting in the Court of Appeal, who came to a different conclusion on this issue. He distinguished between using a public forum as an instrument of expression and conduct at a public forum. In his view, this Court's decisions in Committee for the Commonwealth of Canada allow for the use of public property in the sense of expressing oneself in a particular location, rather than allowing for the use of public property as a means of expression. I repeat his views at p. 298: "My reading of Dorval Airport [Committee for the Commonwealth of Canada] leads me to conclude that the issue decided by the Supreme Court of Canada was that if a person is at a location on public property to which the public has a general right of access, freedom of expression permits the direct communication of views to others by discussion, by distribution of written material or by carrying placards. The attaching of posters to public property is a very different use of public property because it is using that property as part of one's means of expression. The Supreme Court of Canada did not say that freedom of expression encompasses the right to use public property as a means or instrument of one's expression." With respect, I do not find this distinction between using public space for leaflet distribution and using public property for the display of posters persuasive. Surely the appellants in Committee for the Commonwealth of Canada were "using" the public property in question to convey their message, just as the respondent in this case was "using" the utility poles to convey his. One could "use" a utility pole to express oneself in many different ways: by sticking a poster to it by attaching a speaker to it to amplify a speech or even by climbing on it to gain a speaking platform. The question should not be whether or how the speaker uses the forum, but rather whether that use of the forum either furthers the values underlying the constitutional protection of freedom of expression (the McLachlin J. approach) or is compatible with the primary function of the property (the Lamer C.J. approach). Therefore, I would conclude that, under any of the approaches proposed in Committee for the Commonwealth of Canada, the first step in the Irwin Toy analysis is satisfied. Postering on some public property, including the public property at issue in the present case, is protected under s. 2(b). The focus then moves to the question of whether the purpose or effect of the by-law is to restrict freedom of expression. 3. The Purpose of the By-law It seems evident that the by-law is aimed at the consequences of the particular conduct in question, and is not tied to content. On its face the by-law is content-neutral and prohibits all messages from being conveyed in a certain manner and at certain places. The by-law is directed at avoiding the consequences associated with postering, namely litter, aesthetic blight, traffic hazards and hazards to persons engaged in repair and maintenance. In Irwin Toy Ltd., supra, at p. 975, Dickson C.J. noted that a rule against littering is not a restriction "tied to content". Rather, "[i]t aims to control the physical consequences of certain conduct regardless of whether that conduct attempts to convey meaning". The court below held that the purpose of the by-law is "meritorious" and not to restrict expression. I would agree. 4. The Effect of the By-law In Irwin Toy, supra at pp. 976-77, Dickson C.J. discussed the burden on the individual seeking to establish that the effect of governmental action violates s. 2(b). After repeating the three principles and values underlying the protection of free expression in our society, he stated: "In showing that the effect of the government's action was to restrict her free expression, a plaintiff must demonstrate that her activity promotes at least one of these principles. It is not enough that shouting, for example, has an expressive element. If the plaintiff challenges the effect of government action to control noise, presuming that action to have a purpose neutral as to expression, she must show that her aim was to convey a meaning reflective of the principles underlying freedom of expression." It is clear that the effect of the by-law is to limit expression. The absolute prohibition of postering on public property prevents the communication of political, cultural and artistic messages. The appellant did not dispute that the effect of the by-law is to restrict expression, but rather argued that postering on public property does not further any of the values underlying s. 2(b). As I have already concluded, the expression in question promotes political and social discourse, one of the underlying purposes of s. 2(b). Therefore, the respondent has established a violation of s. 2(b), and the analysis now proceeds to s. 1. B. Section 1 The objective of the by-law is pressing and substantial. The by-law seeks to avoid littering, aesthetic blight, traffic hazards, and hazards to persons engaged in the repair and maintenance of utility poles. Similarly, the total ban is rationally connected to these objectives. By prohibiting posters entirely, litter, aesthetic blight and associated hazards are avoided. The question therefore becomes whether the by-law restricts expression as little as is reasonably possible. The limitation at issue in the present case is a complete ban on postering on public property. In Ford, supra, at p. 772, the Court discussed the "distinction between the negation of a right or freedom and a limit on it". While the negation of a right or freedom does not necessarily require that such an infringement not be upheld under s. 1, "the distinction between a limit that permits no exercise of a guaranteed right or freedom in a limited area of its potential exercise and one that permits a qualified exercise of it may be relevant to the application of the test of proportionality under s. 1" (at p. 773). In Ford, the Court held that a complete prohibition on the use of languages other than French on commercial signs could not meet the requirements of the proportionality test, particularly the rational connection and minimal impairment branches. In contrast, in Irwin Toy, supra, the Court upheld substantial content-based restrictions (as opposed to a total ban) on advertising directed at children. It will therefore be more difficult to justify a complete ban on a form of expression than time, place or manner restrictions. The U.S. Supreme Court considered a similar prohibition in Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984). Stevens J. for the majority of the court (Burger C.J. and White, Powell, Rehnquist and O'Connor JJ. concurring) accepted that the city's interest in avoiding visual clutter was sufficient to justify the complete prohibition on postering and that the ban curtailed speech no more than was necessary to accomplish its purpose. The majority rejected the argument that the public property concerned was a "public forum" protected by the First Amendment, or should be treated as a "public forum". However, I find more helpful the dissent of Brennan J. (Marshall and Blackmun JJ. concurring) which discussed, at p. 830, less restrictive alternatives than a complete ban on postering: "... [the City] might actively create a particular type of environment; it might be especially vigilant in keeping the area clean; it might regulate the size and location of permanent signs; or it might reserve particular locations, such as kiosks, for the posting of temporary signs. Similarly, Los Angeles might be able to attack its visual clutter problem in more areas of the City by reducing the stringency of the ban, perhaps by regulating the density of temporary signs, and coupling that approach with additional measures designed to reduce other forms of visual clutter." With regard to the objectives identified by the appellant in the present case, worker safety is only affected with respect to posters attached to wooden utility poles. The by-law extends to trees, all types of poles, and all other public property. Traffic safety is only affected where posters are displayed facing roadways. The application of the by-law is not so restricted. In Re Forget, supra, at p. 561, McFadyen J. suggested some alternatives to a total ban: "... such values might equally be preserved by regulating the use of the poles for such purposes by specifying or regulating the location, size of posters, the length of time that a poster might remain in any location, the type of substance used to affix posters, and requiring that the posters be removed after a certain specified time. If necessary, a reasonable fee could be imposed to defray costs of administering such a system." These kinds of alternatives could control the concerns of litter and aesthetic blight in a manner which is far less restrictive than the by-law. In my view, the total ban on postering on public property does not impair the right as little as is reasonably possible, given the many alternatives available to the appellant. Moreover, the benefits of the by-law are limited while the abrogation of the freedom is total, thus proportionality between the effects and the objective has not been achieved. While the legislative goals are important, they do not warrant the complete denial of access to a historically and politically significant form of expression. I would agree with the majority of the Ontario Court of Appeal, at p. 294, on this point that "[a]s between a total restriction of this important right and some litter, surely some litter must be tolerated". Therefore, the by-law cannot be justified under s. 1. VI. Conclusion and Disposition I would conclude, therefore, that under any of the approaches proposed in Committee for the Commonwealth of Canada, postering on some public property, including the public property at issue in the present case, is protected under s. 2(b). Therefore the by-law is a limit on s. 2(b). This limit cannot be justified under s. 1 as it is overly broad and its impact on freedom of expression is disproportionate to its objectives.

"Pledgegate 08": the law of common sense

> LAWS179: ""Pledgegate 08": a reply to Matthew Hooton" > policy.net.nz: "Pledgegate 08: Dean Knight misses the point" > LAWS179: "'Pledgegate 08': a storm in a pamphlet?" > policy.net.nz: "Pledgegate 08: Labour stealing from taxpayer again

At the risk of extending the debate and discussion, Matthew Hooton has replied to my reply. See his comments to his second post. The relevant two bits are hear:

1) I am sure that great care was taken to ensure the document complies with the absolute letter of the law. This is exactly what the Exclusive Brethren did. We were told that their actions were so evil that the law needed to be changed - and that the “law of common sense” would have to apply. By any common sense test, this document is blatant electioneering, especially given who developed it, and the timing of it being issued, and to whom. It is therefore an effort to “rort” the system, using the definition of “rort” Labour and its Axis partners used during the EFA debate - an attempt to get around the spirit and intend of the law by complying exactly with its letter. ... 3) Sure. I disagree and side with the vast majority on this point. It seems to me the law was written to ban everything and then for the authorities to have discretion not to prosecute. That’s bad law in my view. Parliament should speak clearly, especially when democratic and free-speech rights are involved

For what it's worth, my reply - I think - picks up on some the generic issue of the "law of common sense" and more importantly the way in which we regulate behaviour. See below.

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

Matthew: I won't continue online with points 2-4; that's not to concede them but we won't persuade each other on them. But I do have a brief response on point 1, and the "law of common sense". What's actually being referred to there is enforcement discretion. And it only works down, not up. Let me explain. It's a generic point about the connection between law--discretion. When one draft rules, they are typically drafted broadly to set the outer limits of proscription. Eg. Don't jay-walk across a road. But we know that absolute enforcement of that rule is sometimes daft. There are two ways to try and address that: (1) delineate exceptions to exclude the conduct we're not concerned about; or (2) leave the over-broad rules to be dealt with by enforcement discretion or judicial discretion based on the case-by-case wickedness or mischief the prohibition seeks to address. Eg, (1), an exception could be drafted to say that it's not illegal to jay-walk if there are no cars within 25m. Or (2), we could leave it to police officers / courts to decide when the jay-walking is dangerous. Option (1) is theoretically preferable but usually difficult to achieve effectively and efficiently. Option (2) is more consistent with individual justice, but looks like over-kill and risks the inconsistent or malicious application of discretion. (On the latter point, see my critique of zero-tolerance, which demonstrates the absurdity of the rules being enforced all the time in every case: http://www.laws179.co.nz/2008/10/zero-tolerance.html) That's the law of common sense I believe was being suggested; the rules get interpreted and narrowed down in the light of their purpose. The difficulty with trying to read laws "up" to extend the prohibition beyond the text is that it offends the Rule of Law. Namely, people should be able to plan their lives in the light of the legal consequences that flow from the laws. Making illegal by extending the prohibition means people can't make informed decisions about whether or not they should engage in conduct. It's the same theoretical justification for opposing again retrospective criminalisation of conduct. Eg, it would be objectionable to prescribe a rule that says "don't jay-walk on roads", and to then say, well the purpose and mischief is similar when it comes to crossing railway lines, so we can prosecute a person for doing that under the same provision. It just isn't fair. The point, though, is that while reading laws "up" and extending them by reference to purpose is unfair, reading them "down" to exclude some innocuous conduct is not. That's consistent with existing practice, is down to the benefit of citizens, and is subject to other public law constraints which try to ensure consistency and fairness. I should add that this reading down is, of course, consistent with the practice of the courts under section 6 of the NZ Bill of Rights. The point is, as a matter of legislative drafting, Parliament knows that the courts will interpret legislation affecting freedom of speech, such as the EFA, as consistently with the freedom of expression as they can. They know it's not a case of the text being applied in the abstract; the text will be interpreted in the light of the NZ Bill of Rights, which - to the extent possible - will produce rights-consistent interpretations. This is why some legal technicians such as myself thinking many folk have been bringing an unrealistic, hyperbolic, doomsayer attitude to the EFA - the truth is the sky won't fall.

"Pledgegate 08": a reply to Matthew Hooton

> policy.net.nz: "Pledgegate 08: Dean Knight misses the point" > LAWS179: "'Pledgegate 08': a storm in a pamphlet?" > policy.net.nz: "Pledgegate 08: Labour stealing from taxpayer again Matthew Hooton's thinks I've missed the point on the purported "Pledgegate 08" and has posted an explanation of why I think I'm wrong to focus on the legality of the spending/publicity. I've responded in a comment to his post, but have reproduced that response below.

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

MH: Thanks for a robust response. A few thoughts in reply: 1. You think I've missed the point by focusing on the legality or otherwise of the publicity material. (I presume your absence of discussion of those aspects, you agree with the analysis of whether it is lawful or not.) But that's really my point. In your original post you make rather bold statements about "[mis-]use of public funds", "theft", "stealing from the taxpayer". They're legal terms that are founded on illegality. Hence my analysis of the legal position. What prompted me to analyse things in those terms is my concern that you were – either directly or implicitly – making an erroneous claim about the legality of that spending/publicity. My analysis demonstrates you were wrong on that point. 2. I am – and I'm sure other are too – happy to engage with a discussion of about the merits or morality of the use of public funds in this way. But personally I think it's better done without the use of loaded terms such as "theft", "corruption" and "rort". And you might also recognise that reasonable people can differ on such issues. On the one hand, you say the practice undermines the democratic imperative because it privileges incumbent parties (at least in terms of parliamentary services, both main political parties received significant amounts for party and member support – I believe for 2008/2009, the National party receives $6.9M, about $1.5M more than the Labour party, although that will exclude ministerial funding). On the other hand, some might argue that the very essence of representation is the ability to engage in dialogue with one's representative and to hold them responsible for their performance. That is, as was argued during the last pledge card saga, "parliamentary purposes" are indivisible from "electioneering purposes". Matthew, in this light, can I reframe your rhetorical question: Is *anything* an MP does ultimately not about winning votes? 3. I know you and others are convinced that the EFA is a conspiracy and a grave breach of the Bill of Rights. Again, I genuinely believe that this is a question on which reasonable people can differ and there is a credible argument that the EFA process is a good example of rights-deliberation and protection. See my post: http://www.laws179.co.nz/2008/07/electoral-finance-act-and-clo-advice.html 4. As an aside, no-one claimed the Auditor-General signed off on the pledge card; rather it was claimed the card was consistent with previous practice approved (explicitly or tacitly) by Parliamentary Services. What they took issue with was the Auditor-General's claim he had "warned" against the practice in one of his earlier report. Having read the reports, I incline to accept the point that if any warning was given, it was pretty oblique. In relation to Bryce's comments, the Auditor-General does not have their own "rules" about public spending; it's their job to interpret the rules that have been promulgated by Parliament and, in this case, as coloured by delegated authority. That's the essence of the Controller role: to ensure that "expenses and capital expenditure of government departments and officers of Parliament have been incurred for purposes that are lawful and within the scope, amount, and period of the appropriation or other authority". It's not a case of different rules being in conflict, it's a difference of opinion about how the rules are to be interpreted. That takes us back to and reinforces my original point. Central to this question is the question of the interpretation of the rules and whether the spending is lawful or not. I hoped my analysis might add that missing perspective.