Starter for.... 40 marks

It's still blogger-light for me. But with good reason. Although teaching has finished, I'm busy marking 300 legal opinions / assignments for Public Law! The assessment problem is no great secret (past exam questions and some other assessment is routinely made available). I thought some of you might be interested to see an example of how we test students' knowledge and skills. Below is the problem. And perhaps some of you might be interested in giving it a go yourself! You have 1,800 words!
Problem [Total: 40 marks]
In August 2009, the current government is a National-led government and is the same government that was constituted following the November 2008 general election. That is, the number of MPs elected for each party is as follows:
- National 58
- Labour 43
- Green 9
- ACT 5
- Māori 5
- Progressive 1
- United Future 1
- TOTAL 122
The National Party has confidence and supply arrangements with the ACT, Māori and United Future parties ([see http://www.parliament.nz/en-NZ/MPP/Parties/ for copies of the agreements]). You are a constitutional lawyer within the Department of Prime Minister and Cabinet. The Prime Minister, the Hon John Key, has asked you for various pieces of advice, at different times, on a number of the legal and constitutional issues arising from the events that follow. Provide the advice requested by the Prime Minister, giving reasons in support of your advice. You must presume that the advice you give the Prime Minister is based on the events up to the date on which the advice is requested.
Writing style and structure [5 marks] As noted above, your writing style and structure of your opinion, including compliance with the Style Guide will also be assessed.
On 4 August 2009, John Key announces that Cabinet has agreed to introduce the Land Transport (Boy Racer Eradication) Amendment Bill 2009 into Parliament and intends to pass the Bill under urgency before the end of the week. A copy of the Bill, as introduced by the Minister of Transport, the Hon Steven Joyce, on the same day, is attached. The New Zealand Law Society's Rule of Law committee immediately issues a media release indicating that it will be investigating the Bill because of concerns that the Bill is inconsistent with the Rule of Law.
Issue 1: 4 August 2009 [10 marks]
The Prime Minister seeks advice on whether or not the Land Transport (Boy Racer Eradication) Amendment Bill 2009 is consistent with the Rule of Law and, if not, the aspects of the Bill that are inconsistent with the Rule of Law.
On 5 August 2009, the Minister of Local Government, the Hon Rodney Hide (a Minister outside Cabinet), is interviewed by Mikey Havoc on his regular political show on 95bFM. In the course of the interview, Rodney Hide says the following:
 "HIDE: Oh, ACT is still working out whether we'll support the Bill or not. You know, ACT is tough on crime. We're pushing the "three strikes and you're out" Bill. We think the government has gone soft on this one. When this idea came to the Cabinet committee, I argued strongly that we should not just destroy the cars, but we should burn the cars in public. And as for the rapscallions who were driving the cars, we should put them on weeding duty along the roads where they were cruising. Put pink overalls on the rascals, like they do with the graffiti. That's what I reckon. That'll stomp out this anti-social behaviour. But this guy Joyce is a wimp and wouldn't have a bar of it. And that Finlayson chap kept spouting that human rights mumbo-jumbo. I reckon I could have turned Crusher Collins though. She's one of the few who warmed to this idea. But Sharples was concerned about the effect of the law on young Māori, particularly their economic wellbeing if these expensive cars are seized when they still owe lots to finance companies. And he was worried about their education and how they might get to school and wānanga if they lose their cars. And I'm not sure I like this idea of leaving it to the local authorities to choose which roads to designate as cruise-free zones. What a waste of time. More red tape. I've been working hard to cut rates for ratepayers and oppose any extra duties for local authorities. My idea was to cut out the local authorities and to make the offence apply to every road."
Issue 2: 5 August 2009 [5 marks]
The Prime Minister seeks advice, from a constitutional perspective, on what, if any, steps he is entitled to take or obliged to take in relation to the comments made by Rodney Hide on the 95bFM radio show.
The following day on 6 August 2009, the Bill is passed under urgency, with ACT ultimately agreeing to vote for the Bill after being given an assurance that in return the National Party would expedite ACT's Taxpayer Rights Bill. The Governor-General immediately assents to the Bill and it becomes law. Five months later, once local authorities have designated some roads as cruise-free roads, the Act starts to have an effect on boy racers. Over 100 vehicles are seized and destroyed. The Police report that nearly 40% of the vehicles destroyed are Toyota Corolla FXGT vehicles. The government then recommends to the Governor-General that a regulation be promulgated under section 9 of the new Act to prohibit the importation of Toyota Corolla FXGT vehicles.
On 7 January 2010, the Governor-General accedes to that advice and promulgates a regulation to that effect.
On 8 February 2010, a problem arises. Reports start to emerge that the Police have used the seizure and destruction power under the new Act to seize and destroy three politically branded Volkswagen cars owned by Māori Party MPs. The cars were driving repeatedly up and down Lambton Quay, covered in red and black balloons, celebrating the repeal of Foreshore and Seabed legislation.
A well-known left-wing blog alleges that the Minister of Police, the Hon Judith Collins, may have had a hand in the Police action and may have improperly directed the Police to target the Māori Party cars. As a result, Māori Party list and backbench MP, Hone Harawira, issues the following media statement:
"FESS UP OR RESIGN The illegal seizure of the cars by the Police is a scandal" says Hone Harawira. "Even if the cars were cruising down Lambton Quay, the seizure of the cars was unlawful because the cars were not owned by boy racers and did not meet the criteria for seizure and destruction under the Land Transport (Boy Racer Eradication) Amendment Act 2009." Harawira called on the Minister of Police to come clean about her involvement in the seizure. "The unlawful seizure suggests that there are rotten apples in Collins' police department. Or there is inappropriate influence coming from the Minister herself. She must resign. If she doesn't, the Prime Minister must dismiss her forthwith. If she doesn't go, the Māori Party will withdraw its support for the government."
On the same day, the Prime Minister is quizzed at his weekly press conference about the Māori Party threat to withdraw and says the threat is a hollow one:
"They'll stay on board. If they don't, we'll sue them for reneging on their contract with us."
That comment riles the Māori Party and it announces the withdrawal of its support for the government on matters of confidence and supply and the resignation of its ministerial positions.
Issue 3: 8 February 2010 [5 marks]
The Prime Minister seeks advice on whether, constitutionally, the Hon Judith Collins is obliged to resign or whether he is obliged to dismiss her. Further, he also seeks advice on the legal and/or constitutional implications of the Māori Party reneging on its confidence and supply agreement.
On 9 March 2010, on the back of a grim previous month, the government announces its Budget. Due to the recession, the Budget includes a reduction in funding for the Police. The Minister of Finance, the Hon Bill English, explains this on the radio:
"Each department needs to pull its weight and help us through the tough times. The police department is no different."
However, Rodney Hide is outraged. He says it's another example of the National Party being "all bark and no bite" on crime. In his speech on the first reading of one of the first budget Bills, the Appropriation (2010/11 Estimates) Bill, Rodney Hide announces the immediate withdraw of his party's support for the government on confidence and supply and the resignation of its ministerial positions.
A vote is then had on the first reading of the Appropriation Bill. The National and United Future parties vote for the Bill; the Labour, Green, ACT and Māori parties vote against the Bill; the Progressive party abstains from the vote.
Issue 4: 9 March 2010 [10 marks]
The Prime Minister seeks advice on the constitutional position following the vote in the House on 9 March 2010. The Prime Minister wants to know what his constitutional obligations are in this situation. Further, the Prime Minister wants to know what powers, if any, the Governor-General may exercise in these circumstances, along with advice about how the exercise of those powers or associated processes is constrained by constitutional convention.
On the next day, on 10 March 2010, the Labour leader, the Hon Phil Goff, announces that he believes the defection of the ACT party might mean he has the numbers to form an alternative government, if he can secure a deal with the ACT party. On the same day, international problems arise. The Japanese government, concerned at the regulation preventing its main car manufacturer from exporting its cars to New Zealand, announces that unless the regulation is revoked immediately, the Japanese government will impose a compulsory boycott of all dairy exports from New Zealand.
The next day, on 11 March 2010, the Labour Party leader publicly announces that he believes he has successfully garnered coalition agreements with the Green, ACT, Māori, and Progressive parties and, as a result, he is entitled to be appointed Prime Minister. He publicly releases the coalition agreements and says he will be asking the Governor-General to appoint him as Prime Minister at the first opportunity. However, as the Governor-General is conducting a ceremony conferring a knighthood on a local resident on the Chatham Islands, Phil Goff is not formally appointed and sworn in as new Prime Minister until the following day, 12 March 2010, once the Governor-General returns to Wellington.
Issue 5: 10 and 11 March 2010 [5 marks]
The Prime Minister seeks advice on whether it is lawful and/or constitutional for him to advise the Governor-General, either on 10 March 2010 or 11 March 2010, to revoke the regulations prohibiting the importation of Toyota Corolla FXGT vehicles.

- - - - - - - - - - - - -
Hon Steven Joyce Land Transport (Boy Racer Eradication) Amendment Bill 2009
Government Bill
The Parliament of New Zealand enacts as follows: 1 Title This Bill is the Land Transport (Boy Racer Eradication) Amendment Bill 2009. 2 Commencement This Bill comes into force on the day after the date on which it receives the Royal assent. 3 Purpose The purpose of this Bill is to: (a) authorise local authorities to designate certain roads as cruise-free roads; and (b) provide greater deterrence for anti-social boy racer behaviour by allowing vehicles driven by young boy racers to be crushed and destroyed. 4 Interpretation In this Bill, unless the context otherwise requires, cruise means driving repeatedly over the same section of a road in a vehicle in an anti-social manner designated cruise-free road means a road designated as a cruise-free zone under clause 6. 5 Offence to cruise on a designated cruise-free road (1) Every person commits an offence who cruises on a designated cruise-free road. (2) A person who commits an offence against subclause (1) is liable on summary conviction to a fine not exceeding $2,500. 6 Local authorities may designate roads as cruise-free roads (1) A local authority may, from time to time, by resolution designate any road within its district as a cruise-free road. (2) Before making a resolution under subclause (1), the local authority must: (a) give 3 month's public notice of its intention to designate the road as a cruise-free road; and (b) allow the public to make written submissions on whether the road should be designated as a cruise-free road. (3) Once a resolution is passed, the relevant road is deemed to have been designated as a cruise-free road from the date of the public notice given under subclause (2)(a). 7 Police may seize and destroy vehicles driven on a cruise-free road (1) A constable may seize and direct that a vehicle be destroyed, without further order of the Court, if the following conditions are all satisfied: (a) the vehicle is used in the commission of an offence under clause 5 (cruise on a designated cruise-free road); and (b) the car is operated by a male driver under the age of 25; and (c) the constable believes that the destruction of the vehicle may discourage the driver from engaging in cruising and other anti-social behaviour in the future. 8 Protection against certain actions Where a constable, in good faith, directs that a vehicle be destroyed under clause 7, no proceedings, civil or criminal, shall lie against the Crown, the constable, or any other person in respect of the destruction of the vehicle, or for any consequences that flow from the destruction of the vehicle. 9 Regulations (1) The Governor-General may, from time to time, by Order in Council, make regulations prohibiting the importation of any specified class or classes of vehicles if that class or those classes of vehicles are disproportionality used in the commission of offences under clause 5. (2) Any regulation made under subclause (1) may, from time to time, by Order in Council, be varied or revoked.

Judges and penal policy

QUESTION: If the Minister of Justice and government think that judges' singular role is to apply the law enacted by Parliament and they should not contribute to the debate on appropriate penal policy and the criminal justice system, why then did the government invite 6 judges (Judge Becroft, Judge Bidois, Judge Carruthers, Judge Clark, Judge Johnson, Judge Rota) to participate in the government's "Drivers of Crime" ministerial summit? > MinJust "Drivers of Crime: Ministerial Meeting"

"Blameless Babes"

I'm not suprised the Chief Justice's Shirley Smith address from last week is attracting quite some media attention: > NZHerald: "Govt rules out prison amnesties to ease overcrowding " > Stuff: "Top-judge-suggests-prison-amnesty" Having attended the lecture, I must say it the address was, as you would expect, carefully crafted and robust. It did contain some provocative comments and ideas (particularly from the most senior member of the judiciary). But I - and, it seems, many of the audience - were generally supportive of those comments and ideas. I think the remarks were also quite timely and a counter-balance to monopolisation of this topic by the Sensible ST etc. But assess the remarks yourself. They're now available online: > Chief Justice Dame Sian Elias, "Blameless Babes"

"Intensity of anxiety"

Some folk will know that I'm presently working on a project proposing the adoption of different standards of review in judicial review. That is, a framework for the courts to calibrate the balance drawn between the counterveiling values of vigilance and restraint in any particular case. (See for example Dean R Knight "A Murky Methodology: Standards of Review in Administrative Law" in Claudia Geiringer and Dean R Knight (eds) Seeing the World Whole: Essays in Honour of Sir Kenneth Keith (Victoria University Press, Wellington, 2008) 180) In my project, I noted that our highest court has been reluctant to express a firm view on the intensity question, even though some of the lower courts have adopted it. And there were some hints that they weren't that excited by the idea anyway. Well, have a look at this exchange earlier this year in the Supreme Court. It perhaps suggests that many of the Court do not agree there is any need for structuring judicial discretion in this area: > Ye v Minister of Immigration SC 53/2008 (Transcript, 21-23 April 2009)

MR BASSETT: Through no fault of the children obviously, the same point. If I now can move just to the question of intensity of review, my submission is that this case could have been, and still can be, decided on the application of orthodox judicial review principles, however it is my submission that a hard look approach or a heightened level of intensity of review is nevertheless appropriate in a case such as this, notwithstanding that on a straightforward Wednesbury analysis, Mr Zhou’s actions are unreasonable and irrational in the administrative law sense. Justice Glazebrook at paragraph 303 referred to this case as being one which involved fundamental human rights of children and accordingly, she was of the view that this is a case where the Court should apply a standard of anxious scrutiny. I’d just like to make one or two brief comments about intensity of review which Your Honours will all be familiar with, but the basic proposition is that the level of intensity depends upon the nature of the right being interfered with by the decision making process and that the more fundamental the right, the higher the intensity of review and in this case, the right at issue is the right of a child to be looked after by its natural parents which, in my submission, is an important right and just a matter of basic humanity, even though it’s not a right protected by the New Zealand Bill of Rights Act 1990. TIPPING J: I would hope I would always have a hard look, the question is more, isn’t it, to the standard to which you hold the decision making? I don’t think it’s going to matter much in this case, but honestly, I can’t resist the temptation because you obviously have a good grip of this Mr Bassett, to put it to you that the degree of hardness of the look, I wouldn’t have thought was the point, it was the degree of the standard to which, in other words, it’s almost like degrees of reasonableness, the more fundamental the right, the more reasonable the decision must be. The idea that you look at it more closely, I’ve never found very helpful. ELIAS CJ: I don’t know that degrees of reasonableness help either. TIPPING J: No. ELIAS CJ: It’s just, it’s got to be contextual. What is reasonable takes its colour from the context. Really, there’s so much dancing around on the heads of pins in this area. MR BASSETT: I think the lingo, if you like, Your Honour, is a question of deference, less deference where the rights are more fundamental and more deference where it’s – ELIAS CJ: That’s a dreadful word. TIPPING J: It’s a controversial word. I understand the concept, you’re more exacting, if you like, the more fundamental – it’s a more exacting test, or – ANDERSON J: It connotes the extent to which a Court’s prepared to interfere. TIPPING J: Yes. ANDERSON J: However you describe it. TIPPING J: And the Court must interfere where it must. TIPPING J: You either feel driven to interfere or you don’t, and that will depend on what sort of a right it is and what the whole shebang is, I think this is a – ANDERSON J: It’s really intensity of anxiety. MR BASSETT: As has just been commented, the reason it’s being raised Your Honours is because Justice Chambers and Justice Robertson in the Court of Appeal said that, and indeed Justice Chambers in Huang said that the intensity would be light, to use that adjective, and I think that that – the lightness of review or the lightness of intensity is to some extent bound up with the fact that they, in Huang, let section 47(3) occupy the field, if you like. As I understand it, the Court appears to be taking a different view. TIPPING J: Please don’t think I’m personally being critical of you at all, I think it’s very important that you’ve raised it, but I’m just saying, I, together with I think the Chief Justice, I think there’s a lot of nonsense talked in this area and it’s unhelpful to start trying these adjectival or adverbial adornments of the sort of review you’re undertaking. MR BASSETT: Well perhaps, if you ask me the reason why I’m raising it – ANDERSON J: We can see why you’re raising it. TIPPING J: We can understand it, I can understand why. McGRATH J: It was a ground, it was specified in the grounds, and no one’s blaming you for it. TIPPING J: Yes, no one’s blaming you for one moment, we’re just – if you can shed some further light on this, but it really does seem to be a more semantic issue that in the end, you interfere if you think you should.

I know the last of remark of Tipping J has some pedigree ("whether something had gone wrong of a nature and degree which required the intervention of the court"; see R v Panel on Take-overs and Mergers, ex parte Guinness plc [1989] 1 All ER 509, 513 (CA) Lord Donaldson, endorsed on a couple of occasions by Lord Cooke).

But try teaching that to public law students at law school: judges overturn administrative decisions when they think they should! Well, at least, if that is the test, we can probably then dispense with the remaining 11 weeks of the 12 week judicial review course...

TID-BIT: Political adverts, expressive modes and the freedom of expression

An interesting - and, I think, robust - decision from the Supreme Court of Canada over the weekend. A successful challenge to a ban on political advertising (incl a students association "Rock the Vote" campaign) on public buses. > Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31 It's particularly interesting to see the Court's analysis of whether private expression on governmental location was protected. In concluding it was, the Court asked whether the public place was one where it was expected free expression would be constitutionally protected; in doing so, it looked at "the historical or actual function of the place" and "whether other aspects of the place suggest that expression within it would undermine the values underlying free expression". Unsurprisingly, they found expression of buses should be protected, particularly as "expression on the sides of buses could enhance them by furthering democratic discourse, and perhaps even truth finding and self‑fulfillment". They also ruled a total ban on political and other advocacy advertising was unreasonable and disproportionate with the desire to create a safe, welcoming public transit system ("Citizens, including bus riders, are expected to put up with some controversy in a free and democratic society"). As the Court put it, "the policies amount to a blanket exclusion of a highly valued form of expression in a public location that serves as an important place for public discourse." But, most importantly, I think the case is a salient reminder to local authorities here, such as the Wellington City Council who last year banned political bill-stickering on the Council assets and poster bollards within the CBD during the election campaign: > LAWS179: "Bill-stickering and the Wellington City Council > LAWS179: "Vote with Eyes Wide Open, Wellington City, and Phantom Billstickers"