"I'm not gay - not that there's anything wrong with that!": Are unwanted imputations of gayness defamatory?

The perennial issue about whether it’s defamatory to state or imply that someone is gay has come up again – this time in the context of tabulating the number of queer MPs in Parliament. See David Farrar: Gay MPs I prepared a paper on this issue while I was studying at UBC a couple of years ago: "I'm not gay - not that there's anything wrong with that!": Are unwanted imputations of gayness defamatory? It’s a little dated now and needs some revision. In particular, the Rivkin case went to the High Court of Australia - John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50. While it was decided on other technical grounds, Justice Kirby (one of the few out gay judges) made the following comment:

The homosexual intercourse imputations: In most circumstances, it ought not to be the case in Australia that to publish a statement that one adult was involved in consenting, private homosexual activity with another adult involves a defamatory imputation. But whether it does or does not harm a person's reputation to publish such an imputation is related to time, personality and circumstance. Once, it was highly defamatory in many countries to allege, or suggest, that a person was a communist. Now, in most circumstances, it would be a matter of complete indifference. The day may come when, to accuse an adult of consenting homosexual activity is likewise generally a matter of indifference. However, it would ignore the reality of contemporary Australian society to say that that day has arrived for all purposes and all people. At least for people who treat their sexuality as private or secret, or people who have presented themselves as having a different sexual orientation, such an imputation could, depending on the circumstances, still sometimes be defamatory. The introduction of Mr Rivkin's postulated sexual activity with Mr Wood was not entirely innocent, given the context. Mr Rivkin was described as a married man with five children who, by implication, was leading a secret life. This hypothesis was confirmed by the reference to his "high degree of interest in good looking young men" and by his provision to Mr Wood (who arguably filled the description) of a car, clothes, furniture and apartment, by clear implication in exchange for sexual favours. In the context of an article describing two murder hypotheses for the death of the deceased, one of which postulated the engagement of a "contract killer", the suggestion of homosexual activity between Mr Rivkin and Mr Wood in SMH1 went beyond an imputation of marital dishonesty or adulterous promiscuity on Mr Rivkin's part. In the context, such a sexual liaison, inevitably introduced into the matter complained of, as it would be read by the ordinary reasonable reader, the imputation as pleaded.

I’m revising the article for a Sexuality and Citizenship Symposium that a couple of us at the Law School are organising in November this year – with a view to publishing the papers next year. Any comments therefore welcomed!

Citation of Wikipedia

I thought people might be interested in a Faculty email thread discussing the appropriateness of citing Wikipedia in Law School essays and research papers. POSTSCRIPT: I should add, the issue has not yet been formally resolved by the adoption of a policy and remains an issue of individual academic judgment. (And, of course, I should also add that the views expressed below on the propriety or otherwise of citing Wikipedia are not necessarily to views of the Faculty as a whole!) -----Original Message----- From: [Colleague 1] Sent: Tuesday, 6 September 2005 10:16 a.m. To: _All Law Faculty Staff Subject: Law school policy issue... Do we have a position on the citation of Wikipedia in research papers? [Colleague 1] -----Original Message----- From: [Colleague 2] Sent: Tue 9/6/2005 10:26 AM To: _All Law Faculty Staff Cc: Subject: RE: Law school policy issue... It should be utterly forbidden [Colleague 2] -----Original Message----- From: [Colleague 3] Sent: Tuesday, 6 September 2005 10:43 am To: _All Law Faculty Staff Subject: RE: Law school policy issue... I have had a long conversation with a student who cited it in a property opinion about the complete inappropriateness of it. I told him to consider the "Supreme Court of New Zealand test". If you can cite it to them, you can cite it to me. So other things you can't cite to me are my lectures!! -----Original Message----- From: Dean Knight Sent: Tuesday, 6 September 2005 2:07 pm To: _All Law Faculty Staff Subject: RE: Law school policy issue... If you receive any citations, I would simply refer the students to this page on Wikipedia: http://en.wikipedia.org/wiki/Citation_of_Wikipedia #Citation_of_Wikipedia_in_Law_School_essays_and_research_papers Dean -----Original Message----- From: [Colleague 4] Sent: Tuesday, 6 September 2005 4:20 pm To: Dean Knight Cc: _All Law Faculty Staff Subject: Re: Law school policy issue... Dean, When did the faculty approve this sentence from the wikipedia page" "For example, the Victoria University of Wellington, Faculty of Law does not permit the citation of Wikipedia in student essays or research papers." In my ... seminar, I let students refer their readers to the wikipedia for background information. Suppose the student is working on security issues and wants to refer to the Diffie Hellman key exchange, I see no reason why they shouldn't be able to use and quote the material in the wikipedia. I haven't seen any comparable explanation in a journal article or court decision. I doubt whether our library's hardcopy collection provides any sources. What do you think? [Colleague 4] -----Original Message----- From: Dean Knight Sent: Tuesday, 6 September 2005 5:01 pm To: _All Law Faculty Staff Subject: RE: Law school policy issue... [Colleague 4] and others... The Wikipedia page and reference to it was primarily intended for amusement. However, it does illustrate some of the issues regarding reliance on Wikipedia as reference material. For those of you for whom the penny hasn't yet dropped, I created the page [en.wikipedia.org/wiki/Citation_of_Wikipedia #Citation_of_Wikipedia_in_Law_School_essays_and_research_papers] about half an hour before I circulated the link to it. Wikipedia is an open-source encyclopaedia in which anyone can create or edit pages. The community self-moderates its content. For example, the page I created is presented being commented on and voted on for deletion for differing reasons, namely: - it's "original research" (ie, I made it all up) - "redirect", ie, there's already a more appropriate article elsewhere on Wikipedia. If you want to see or contribute to the discussion, see http://en.wikipedia.org/wiki/Wikipedia:Articles_for_deletion /Citation_of_Wikipedia. Yes, the page is inaccurate because it presently asserts we have a policy on the citation of Wikipedia, which we do not. Hopefully, the Wikipedia processes will ensure this "error" is corrected in the page, amongst other ways, by someone editing this sentence out (note my recent subtle amendment too…). If it doesn't I will remove the offending sentence in a day or so… Personally, like [Colleague 4], I think it’s a great resource and it does seem to fill the gap in some existing resources, particularly with very current events or developments. But there are some obvious problems with its reliability; many of these are recorded by Wikipedia itself: http://en.wikipedia.org/wiki/Wikipedia:Why_Wikipedia_is_not_so_great. If we need to develop some guidance on its citation though (assuming it can't be deal with under the rubric of general reliability and judgement), I think as a rule of thumb it presently would fail the reliability test in s42 of the Evidence Act for use in Court proceedings and accordingly is inappropriate to be cited in legal essays and research papers in substitution for other authoritative works. But, I guess, there may be some (very?) rare cases in which it might still be appropriate to be relied on for citation purposes (although generally the articles will disclose more reliable primary sources anyways?). Dean PS As an aside, there are some interesting and useful legal articles being created. See, for example, notable cases decided Canadian Supreme Court (http://en.wikipedia.org/wiki/Supreme_court_of_canada_cases), US Supreme Court (http://en.wikipedia.org/wiki/US_Supreme_Court_cases) and House of Lords (http://en.wikipedia.org/wiki/House_of_lords_cases) - some of the US and Canadian ones have extensive summaries, see http://en.wikipedia.org/wiki/Chaoulli_v._Quebec_(Attorney_General) PPS Might contributions to a page count towards the PBRF?!!? -----Original Message----- From: Dean Knight Sent: Wednesday, 7 September 2005 12:57 pm To: _All Law Faculty Staff Subject: RE: Law school policy issue... A couple of more points to add (sorry to the non-“coneheads”): 1. I have presently (temporarily?) lost my battle with the Wiki community to maintain the page (but I am still fighting to have it restored: http://en.wikipedia.org/wiki/Wikipedia:Votes_for_undeletion #Citation_of_Wikipedia.23Citation_of_Wikipedia_in_ Law_School_essays_and_research_papers) If you still want to see the original page, you can see it in the page history (scroll down below the marked up changes): http://en.wikipedia.org/w/index.php?title=Citation_of_Wikipedia&diff=22673606&oldid=22665573 2. I have now discovered at least a few cases in which Wikipedia was referred to in the Court’s decision; see, for example: - Bryant v. Oakpointe Villa Nursing Ctr., 471 Mich. 411 (2004) (Supreme Court of Michigan) Hunt had no control over her locomotive skills and was prone to sliding about uncontrollably and, therefore, she was at risk for suffocation by "positional asphyxia." [n2] … [n2] HN1"Positional asphyxia refers" to suffocation that results when someone's position prevents them from breathing properly. See <> (accessed July 27, 2004). - Bourgeois v Peters 387 F.3d 1303 (2004) (United States Court Of Appeals) We also reject the notion that the Department of Homeland Security's threat advisory level somehow justifies these searches. Although the threat level was "elevated" at the time of the protest, "to date, the threat level has stood at yellow (elevated) for the majority of its time in existence. It has been raised to orange (high) six times." Wikipedia, Homeland Security Advisory System, available at http://en.wikipedia.org/wiki/Department_of_Homeland_Security_Advisory_System (last referenced Aug. 16, 2004). Given that we have been on "yellow alert" for over two and a half years now, we cannot consider this a particularly exceptional condition that warrants curtailment of constitutional rights. We cannot simply suspend or restrict civil liberties until the War on Terror is over, because the War on Terror is unlikely ever to be truly over. September 11, 2001, already a day of immeasurable tragedy, cannot be the day liberty perished in this country. Furthermore, a system that gave the federal government the power to determine the range of constitutionally permissible searches simply by raising or lowering the nation's threat advisory system would allow the restrictions of the Fourth Amendment to be circumvented too easily. Consequently, the "elevated" alert status does not aid the City's case.” - Harrisson v Alan [2005] 2 SLR 387 (Singapore High Court): 37 As briefly adverted to earlier (see [32] above), the defendants' reliance on the mandate for Option 3 purportedly sanctioned by the March 2004 SGM is flawed. The 93 votes in favour of Option 3 cannot constitute a simple majority of members present and voting. Shackleton on the Law and Practice of Meetings (Sweet & Maxwell, 9th Ed, 1997) at para 7-27 defines "simple majority" as a situation where "a motion is carried by the mere fact that more votes are cast for than against". I find the following illustration of this definition in an online encyclopaedia (at (accessed 3 March 2005)) illuminating: A simple majority is the most common requirement in voting for a measure to pass, especially in deliberative bodies and small organizations. It means that, of those who cast a vote for or against a proposition or candidate, more than half of the votes is necessary for election. As an example, let's consider three propositions: A, B, and C, that are proposed in a club of 100 members. In order for a proposition to be successful, a simple majority must agree to it. The results of the election are: [middot] 20 votes for proposition A [middot] 40 votes for proposition B [middot] 10 votes for proposition C [middot] 10 votes are blank Since there are more votes for B than there are votes for both A and C combined, B has the simple majority and so wins. Notice that the abstentions and non-voters do not affect a simple majority process, since they neither support nor oppose. They only affect an absolute majority. In an election for president in the same club having candidates Jim, Bob, Sally, and Bridget, the results are as follows: [middot] 20 votes for Jim [middot] 20 votes for Bob [middot] 40 votes for Sally [middot] 2 votes for Bridget In this election, no one has more votes than the combined votes of the opponents, so no one wins. In a case like this, most systems would either adopt a plurality rule or would have a second runoff election. Tie votes do not meet simple majority and are classified as failures. [emphasis added] (see also Black's Law Dictionary (8th Ed, 2004) at p 975). - There’s also another couple of cases of Canadian cases in which it was referred to: Bajraktaraj v. Canada (Minister of Citizenship and Immigration) [2005] F.C.J. No. 293 “the quality of the sources relied upon by the applicant, including … a downloaded extract from an on-line encyclopaedia, "Wikipedia," that provided no references for its content, did not impress”; and Almrei v. Canada (Minister of Citizenship and Immigration) [2005] F.C.J. No. 437 where an article was included in the bundle of material relied on by an immigration minister delegate when determining a person was a terrorist and a danger to the security of Canada! Interesting to see judicial reference to it, although I suspect it still does not undermine the “generally discouraged as a substitute for reliable sources” theme which seemed to come through in our threads. Dean

R v Lavender: interpretation of criminal statutes

R v Lavender Interesting dissent from Kirby J where he discusses some of the interpretative issues arising in relation to criminal statutes.

Dunne v Canwest - Enhancing or vandalising the Constitution and democracy?

Dunne and Anderton v Canwest TVWorks Limited (PDF 58KB)

A few random points.

First, there is the question of jurisdiction. I think the basis of jurisdiction has been mischaracterised as “public function” when, in reality, the telling factor was the “significant public consequences” (cf Finnegan). The public function approach is fundamentally flawed because, unlike the other examples of a “public function” giving rise to review, the nature of the function is inherently private. Datafin, Phipps, and Cameron were all cases in which the function was one which could be regarded as having a regulatory or controlling function. And, of course, they are examples where we might have expected the government to have been involved but-for the recognition and acceptance that the private groups were satisfactory controlling the area. In contrast, in this context, Parliament had recognised private freedom not control – the surrounding legal contours indicate a move away from regulation; other methods were adopted to ensure political balance. The argument that the Broadcasting Act needed to have an *express* ouster clause to prevent the court’s supervisory jurisdiction ignores the difference between ousting established review of public bodies exercising orthodox public functions and the “pulling one up by one’s bootstraps” at the very margins by relying on the absence of the express ouster of *public* law supervision in a case dealing with a *private* body. I think it’s fair to assume Parliament didn’t include an ouster clause because previously there was a constitutional principle that such private bodies were beyond the reach of such supervision anyways! However, if characterised as arising from “public impact” (which factually is hard to refute),

I have less complaint about the finding jurisdiction to review – although having found jurisdiction then, I do not think it should have been forgotten that the body being reviewed was as the extreme boundary of what was capable of being reviewed.

 Secondly – and, in my view, more problematic – there is the standard of review that was applied. TV3 set parameters for the number of leaders based on logistical and “good television” factors. They relied on an objective mechanism to determine the 6 – an upcoming poll. To describe this decision as arbitrary or irrational is ludicrous. I know reference to authority is somewhat unfashionable but recall the test for unreasonableness from Woolworths:

“[I]f the outcome of the exercise of discretion is irrational or such that no reasonable body of persons could have arrived at the decision, the only proper inference is that the power itself has been misused. To prove a case of that kind requires "something overwhelming" (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 230 per Lord Greene MR). In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410 Lord Diplock said in respect of unreasonableness, or "irrationality" as he preferred to call it: "It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it." Similarly, in Nottinghamshire County Council v Secretary of State for the Environment [1986] AC 240, 247, 248 Lord Scarman used expressions such as "so absurd that he must have taken leave of his senses" and "a pattern of perversity" as setting the standard; and in Webster v Auckland Harbour Board [1987] 2 NZLR 129, 131 Cooke P spoke of an unreasonable decision as "one outside the limits of reason". Clearly, the test is a stringent one.”

Likewise, ‘arbitrary’ must have a similarly a high threshold. Lord Cooke said the term "has a connotation of the despotic[;] [c]aprice rather than a reasoned preference and balancing”. Neither would seem applicable in this case. There is a clear methodology for selecting the leaders and reference to objective standards. The complaint seems to be better characterised as a complaint about the outcome: inconsistency, rather than arbitrariness. That is, the argument that at the lower threshold, the leaders are statistically indistinguishable (although this should not be overstated because apparently the margin of error – upon which there was some reliance – reduces somewhat at the extremes).

Alternatively, Justice Ronald Young seems to have also sowed the seeds of proportionality (albeit in the discussion of relief):

“In a practical sense it is likely to cause no more than inconvenience to TV3. For the plaintiffs, if I refuse to grant the order they will, based on expert evidence, potentially suffer significant electoral disadvantage, irrecoverable which has the capacity to effect the makeup of the next Parliament and therefore the Government of New Zealand. The potential effect in my view therefore falls far more heavily on the plaintiffs."

Of course, both of these “novel” standards of review remain somewhat controversial – even in the context of reviewing public bodies exercising orthodox public functions. There was also some suggestion that these circumstances justify a greater degree of scrutiny under an unreasonableness standard: Courts have made it clear that where fundamental rights are affected the levels of arbitrariness or in another context, irrationality required by a plaintiff to establish their case will not be high. Courts are anxious to protect fundamental rights. And here this Court is anxious to protect what I see as a fundamental right of citizens in a democracy to be as well informed as possible before exercising their right to vote and to ensure the electoral outcome is as far as possible not subject to the arbitrary provision of information. One might ask in response: what of the fundamental right – the freedom of expression of TV3? And, in selecting the standard of review, where was the consideration of the nature of the body that is being reviewed?

The authorities which have considered the extension of the court's supervisory jurisdiction into the private sphere have continually commented that the nature of the review may need to be different than the traditional grounds of review that would apply to public bodies and bureaucrats. Notably, the Privy Council in Mercury Energy indicated that, in a cases similarly dealing with the question of the amenability to review in a reasonably unorthodox context, the“[i]t does not seem likely that a decision by a state-owned enterprise to enter into or determine a commercial contract to supply goods or services will ever be the subject of judicial review in the absence of fraud, corruption or bad faith". In my view, these indications are not an invitation for a more rigorous or stringent review of the decision; the indications are in favour of a more deferential standard. After all, although the decision may have a significant public impact, the type of the “decision-maker” is not a public body or bureaucrat – imbued with public law values and methodology – where traditional standards of "good administration" are easily measured. The “decision-maker” is making operational and editorial choices where it seems incongruous to insist on administrative law principles of relevant considerations, proportionality assessments, or other methodology that might be expected of decision-makers of a public law character. Surely, the review being exercised should have been more deferential - intervention reserved for the worst excesses of such as a bad faith or some other, say, if TV3 declined to have Helen Clark at the debate because she was a woman all had previously criticised John Campbell because of the Corngate interview. Or if they declined to have Rodney Hide because the TV lights shone brightly off his bald head! It is almost irresistible to conclude that the judge determined the matter not according to the orthodox approach of considering whether the decision was *open* to the decision maker, but rather by reference to where that he thought the decision was the *correct* one or not.

 Finally, even if it is expected that the decision could be characterised as arbitrary, it is quite simply constitutionally unsound for a judge to have determined that the 2 particular leaders be added to the debate. (As an aside, Richard Lewis of Destiny must be incredibly gutted – after all, he was polling higher than Anderton!) Even if the lowest standards of deference are accorded to TV3’s editorial decisions, there still remains an infinite number of approaches which remained open to TV3, including justifying the original 6 on different grounds, reducing the debate to 5 (but then ACT be able to rely on Coughlan style unfairness if TV3 reneged on its invitation – after all TV3 is subject to "public law obligations"), arranging a supplementary debate for the minor parties, etc. This approach to relief – disingenuously justified due to the pressures of time (surely, if the judge himself is capable of making such a decision after two in half hours of oral argument and a 10 minute adjournment, TV3 might be entitled to reconsider its decision in the 8 hours remaining before the debate; and, of course, TV3 had indicated in its evidence that it had reviewed its decision on alternative bases and considered that it could still justify the selection of the original 6 leaders!) – fails to demonstrate any recognition of the supervisory, rather than merits, bases of judicial review and further compounds the concerns that the judge overreached his constitutional position by failing to accord any degree of deference to the choices available to TV3. If TV3’s so called “ex post facto justification” was rejected as not being made in good faith, why wasn’t the matter stood down for 2 hours to allow for the decision-maker to exercise *their* discretion in the Court’s ruling? If the basis for impugning the decision is arbitrariness in methodology, rather than ultimate outcome, surely it was not a fait accompli that a proper, considered, rational methodology would have concluded that the 2 leaders should participate in the debate?

 *sigh*

[UPDATE: My later NZULR article on this is here.]

Discount Brands - a C+ for the Supreme Court

Westfield (New Zealand) Limited v North Shore City Council I've reflected more on the Supreme Court's decision. I give them a C+: - The idea of more scrutiny for notification decisions is okay because it is a gate-keeper decision otherwise not subject to checks and balances. The decision is essentially operational and doesn’t involve any policy content. However, it still needs some deference because it is question of judgment for an “expert” decision‑maker/tribunal. - However, justifying a high degree of “correctness” on the use of the phase “if the consent authority is satisfied” is spurious. Rather than “satisfied” being the “strongest decisional verb”, its history in administrative law has been based on it being one of the more “subjective”, not objective”, types of decisions (cf “in the opinion of the Minister”). - It is artificial and unhelpful to separate the notification into 2 decisions – first on sufficiency of evidence and secondly the actual decision itself. - The “test” of adequacy or sufficiency is largely unhelpful and extends beyond established grounds for reviewing factual errors (no evidence to support factual conclusion or (genuine) mistake of fact). The test simply restates a truism that the decision-maker have sufficient evidence but, in my view, the decision fails to go on how the supervising court should approach (non-)compliance with this standard. Only Blanchard J suggests the idea that the Court might consider whether the Council “could reasonably be satisfied” that the information was adequate. Others seems to implicitly suggest that judicial intervention could be justified whenever there is insufficient evidence. - In particular, the Court fails to consider functional consequences of reviewing adequacy; effectively confers right of appeal against the merits of non-notification. Any time an aggrieved person considers the Council got it wrong, they can ex post facto find (or create?) evidence which casts into doubt the Council’s factual conclusion – thereby arguing the Council didn’t have sufficient or adequate evidence before them. There is no finality for such decisions. In any event, most of the relevant considerations are better characterised as factual assessments, rather than factual findings, where the decision maker exercise their expert judgment about these matters. - The nub of the case (and, incidentally, the Videbeck case which started this sufficiency of evidence approach) seems to be more defects in logic or reason. That is, the relevant decision-makers make to demonstrate the basis on which they made their decision, including rejecting the views of officers or other experts. In my view, a more workable approach would be to simply examine whether the decision-maker’s decision (ie, the substantive decision not to notify) was reasonable (in a simpliciter sense, not the more deferential Wednesbury/Woolworths test). This would capture the – I think, generally accepted – deficiencies in this case but provide a better and more predictable standard for other cases as well.