Radio Rants: ECAN and judicial conflicts of interest

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

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

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

Sounds like us!

The context of natural justice

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A pressing question...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Saxmere v Wool Board - recall application transcript

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

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

Supreme Court - physical and virtual settings

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

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

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

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

> UKSCblog: "Supreme Court - information wish list"

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

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

B+.

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

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

E. 

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

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

B. 

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

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

A-

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

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

D.

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

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

C. 

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

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

A. 

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

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

D.

Nope.

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