VUWLR: "'I’m Not Gay – Not That There’s Anything Wrong With That!': Are Unwanted Imputations of Gayness Defamatory?"

As I've mentioned previously, one of the truly great delights of the academy is the publication your scholarly writing. I'm therefore very proud to have had another article published: > Dean R Knight,"'I’m Not Gay – Not That There’s Anything Wrong With That!': Are Unwanted Imputations of Gayness Defamatory?" (2006) 37 VUWLR 249 This particular issue was especially significant because it was part of a broader endeavour. Elisabeth McDonald and I (well, really, Elisabeth - with me tagging along) organised the Sexuality and Citizenship Symposium at the Faculty of Law, Victoria University of Wellington and the result of that symposium is a special issue of Victoria University of Wellington Law Review. The special issue is a collection of articles addressing contemporary issues about sexuality and citizenship within our society and legal system:

Graeme W Austin, "Family Law and Civil Union Partnerships – Status, Contract and Access to Symbols"

Edward Clark, "The Construction of Homosexuality in New Zealand Judicial Writing"

Elisabeth McDonald, "No Straight Answer: Homophobia as Both an Aggravating and Mitigating Factor in New Zealand Homicide Cases"

Dean R Knight,"'I'm Not Gay – Not That There's Anything Wrong with That!': Are Unwanted Imputations of Gayness Defamatory?"

Nan Seuffert, "Sexual Citizenship and the Civil Union Act 2004"

Paula D Baron, "In the Name of the Father: the Paternal Function, Sexuality, Law and Citizenship".

Ngaire Naffine - our guest commentor for the symposium - introduces the issue in her commentary, "The Sexual Citizen".

The issue was launched on Thursday night at a function at the Law School. Below are the remarks I made on behalf of Elisabeth and myself:

"Sexuality matters. Even in today's modern liberal society, sexuality is important. The treatment of the sexual citizen by our legal framework and institutions continues to be a crucial litmus test for the dignity of our society. Even if one maintains the view that sexuality should be irrelevant in matters of citizenship, civic participation and day-to-day living, this still presupposes equal treatment for all sexual citizens. Sexual citizenship and the treatment of sexuality arises across the legal framework. We are delighted that articles in this issue reflect that by addressing the issue of sexual citizenship in the areas of the family law, relationship recognition, crime and victims of crime, private tort law, and the language of law within our Parliament and judiciary. Critical queer legal scholarship or legal scholarship on sexuality is not easy scholarship to undertake. In New Zealand there has not been a strong tradition of this type of scholarship. Internationally we hear stories from our colleagues about the nervousness associated with this type the scholarship such as questions about the impact on tenure. Even in New Zealand's present PBRF environment, it is easy to doubt how this scholarship might be received or how it might fit into a "research platform" alongside black letter law. It takes some courage to engage in this type of scholarship. That brings me to the symposium held last year that formed the foundation for the special issue. The bringing together of legal scholars provided strength and a desire for boldness that enhanced the scholarship that forms part of the special issue. On behalf of Elizabeth and myself, thanks to Eddie, Nan, Paula, and Graeme (in absentia) for participating in the symposium. Thanks also to Ngaire, who as guest commentator managed to weave our different threads together to make a coherent whole. And on behalf of the participants, thanks to Elizabeth for making the symposium and special issue happen – the symposium and special issue have really been Elizabeth's "baby". And some other thanks. Particular thanks to Judge Ian Borrin for his financial support of the symposium and special issue through his endowment fund. And thanks also to the Victoria University of Wellington Law Review and its editorial committee for its support throughout. Thanks to Will Thomson, Student Editor-in-Chief and his team a student editors for the expertise in correcting our various typos and grammar and their patience throughout. And finally thanks to those of you that are here to share in the celebrations today. Tt is delightful to have representatives from the wider queer and sexuality-focused academic, political, social communities, as well as many others who are here today and stand with us in saying ... sexuality matters. To close, I wish to read the quotation from the front-piece of the special issue which is taken from the recent maiden speech to Parliament of Maryan Street MP: 'Only a cringing, unassertive democracy retains its power by excluding others and stripping them of their place in it. As a lesbian, I have been the subject of other people's efforts to push me to the margins, to erode my legitimacy as a citizen, and to belittle my efforts and achievements. I have never accepted marginalisation; it is a construct of others who wish me to be marginalised.'"

RIP: Robin Brunskill Cooke

.

A truly great man, scholar, jurist, and champion of justice. As his personal coat of arms says: "To speak in favour of fairness".

Koha and lofa

There's been some public discussion about the appropriateness of MPs accepting koha and lofa. It's worthwhile looking at the Cabinet Office Manual to see the present articulation of propriety on this (the Manual only applies to Ministers but in this case is a useful guide for the appropriateness for MPs as well):

PUBLIC DUTY 2.48 Ministers of the Crown are expected to devote their time and talent to carrying out their official business, both as members of the executive and as Members of Parliament representing their constituents. Holding office is regarded as a full-time occupation and is remunerated as such. Therefore: - accepting additional payment for doing anything that could be regarded as part of a Minister's normal portfolio responsibility is not permissible; - accepting payment for any other activities will require the prior approval of the Prime Minister, and any payment received must be declared in the Register of Ministers' Assets and Interests. ... GIFTS 2.68 The exchange of gifts during official government visits is an accepted practice; a refusal to accept is likely to cause offence. Such gifts are, however, more in the nature of gifts to the office than to the incumbent. A Minister may relinquish any gift to the Secretary of the Cabinet to arrange for appropriate display of the item. If Ministers wish to retain gifts received in New Zealand or overseas, they may do so if the estimated value is under NZ$500. If the estimated value is NZ$500 or more, the gift may be retained while in office but must be declared on the individual's schedule of interests. Gifts with an estimated value of over NZ$500 must be relinquished on giving up office, unless the express permission of the Prime Minister to retain them is obtained. 2.69 To avoid the creation or appearance of an obligation, gifts in cash or kind are not to be solicited or accepted from a commercial enterprise or any other organisation. An exception to this would be the acceptance of some small unsolicited token, for example, a presentation made during a visit to a marae or a factory. 2.70 From time to time, airlines invite Ministers to participate in inaugural flights. It is not improper for a Minister to take part in an inaugural flight, but the government should meet the full cost of the airfare.

The question of lafo was raised but left open by Noel Ingram QC in his report (see paras 445 to 453). It's worthy of further consideration. Obviously, principles of integrity and accountability cannot be undermined. However, it's also important to ensure these genuine cultural practices are, to the extent possible, respected. I suspect this means the answer lies somewhere between two extremes, that is, it's not an absolute yes or no to the practice.

Broadcasting of Parliament

> NZHerald (29.08.2006): "TV3 calls parliamentary rules on filming of MPs 'arcane'" > DomPost (29.08.2006): "TV3 calls for change to Parliament's rules" I think the recent punishment of TV3 illustrates how the present rules regulating what can be filmed in the House are objectionable. Off the top of my head, I suspect the rule preventing filming of anything other than the member speaking is inconsistent with the Bill of Rights.

First, the Bill of Rights applies to Parliament under section 3(a):

This Bill of Rights applies only to acts done— (a)By the legislative, executive, or judicial branches of the government of New Zealand[.]

Of course, any breach cannot be raised in the courts because of parliamentary privilege under the Bill of Rights 1688:

Freedom of speech—That the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament.

In my view, this means Parliament has the obligation to act in a Bill of Rights-consistent manner but is accountable only to itself for breaches of it. (As an aside, there is an interesting question about whether complaints can be made to international human rights bodies. There's others better placed to explore this and it's not really a realistic option here.)

Secondly, there is the question of whether the present rules breach the Bill of Rights. Prima facie the rules infringe section 14:

s14.Freedom of expression— Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

However, the prima facies infringement may be permissible if it is a justified limit under section 5:

s5. Justified limitations— Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

This involves an evaluation of whether the limitation is necessary, suitable, and appropriate. As the Court of Appeal in Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 said:

In determining whether an abrogation or limitation of a right or freedom can be justified in terms of s 5, it is desirable first to identify the objective which the legislature was endeavouring to achieve by the provision in question. The importance and significance of that objective must then be assessed. The way in which the objective is statutorily achieved must be in reasonable proportion to the importance of the objective. A sledgehammer should not be used to crack a nut. The means used must also have a rational relationship with the objective, and in achieving the objective there must be as little interference as possible with the right or freedom affected. Furthermore, the limitation involved must be justifiable in the light of the objective. Of necessity value judgments will be involved. In this case it is the value to society of freedom of expression, against the value society places on protecting children and young persons from exploitation for sexual purposes, and on protecting society generally, or sections of it, from being exposed to the various kinds of conduct referred to in s 3 of the Act. Ultimately, whether the limitation in issue can or cannot be demonstrably justified in a free and democratic society is a matter of judgment which the Court is obliged to make on behalf of the society which it serves and after considering all the issues which may have a bearing on the individual case, whether they be social, legal, moral, economic, administrative, ethical or otherwise.

I don't have time to set out an extended analysis but I have strong doubts about whether this rule passes this analysis. The Speaker's remarks in the DomPost suggest the objective of the rule:

Rules covering the filming of members were in place to help viewers see Parliament as it was most of the time. "If that happened, the viewer would see that the behaviour of most members, most of the time, is consistent with the standards of conduct the public expects from MPs," she said. "Unfortunately, by concentrating on gestures such as that by Mr Mark, they leave the viewer with a very poor opinion of all members."

This must be regarded as being a weak objective. It might be just enough to justify a limitation but is not strong. (Presumably, the rule also seeks to stop other MPs grandstanding by waving props etc while another member is speaking.) However, in the light of the doubtful strength of the objective, the limitation would seem to be disproportionate. The prohibition only partially achieves the objective: print and radio being able to convey, albeit in more limited form, the activity which Parliament is seeking suppress. And, most significantly, the prohibition has a detrimental effect on democracy by attempting to hide events which may be of interest and significant to the public. A member's behaviour in the House or other non-speaking activities which they undertake is often newsworthy in its own right.

In my view, it's time for the liberalisation of this rule.

PS I'll try later this week to obtain a copy of the rules and any supporting material which may have touched on these matters.

Retrospective (or retroactive) legislation and pledge cards

Much fuss has been made about the suggestion that Labour may consider validating legislation if its pledge card spending and spending by other parties out of the Parliamentary Leaders fund is found to be invalid, on the basis that the expenditure was consistent with the reasonable expectation, induced by officials, that it was permissible. For example, Matthew Hooton said (SST: "It's time to pay the piper, Helen"):

Retrospective legislation is always wrong in the sense of being in breach of fundamental constitutional conventions. It involves parliament assuming the power to decide not only what is to be legal and illegal in the future, but to declare previous acts or decisions to have been legal or illegal. That is arbitrary power, and wrong.

My response (previously posted on comments on KiwiBlog) is as follows:

The difficulty with Hooton's column and much of the discussion on this issue is that it is being undertaken by way of slogans, without an appreciation of a nuances of the legal principles at stake. So, yes, in general, retrospective legislation is a bad thing. But, not always. The "bible" when it comes to good legislation is the Legislation Advisory Committee's Guidelines on Process & Content of Legislation. See Chapter Three, Part 3 (extract): "The general principle is that statutes and regulations operate prospectively, that is, they do not affect existing situations. ... However, while the general principle is that legislation is prospective, not all examples of legislation which impacts on existing situations will be unfair (see Burrows, Statute Law in New Zealand, 1999, page 358). Examples of retrospective provisions which are seen as having only a benign effect include those which validate appointments, or provide for backdated salary and benefit payments and new superannuation arrangements. The impact of the legislation on those affected can be assessed by considering a range of factors including the purpose of the legislation and the hardship of the result on those affected. For example, individuals may have a reasonable expectation based on entering into legal obligations, such as contracts, on the basis that the law will have a certain impact." So, is it really bad in this case? Well, I'm not convinced it would be. I've previously noted (LAWS 179: Shifting Goalposts) that, assuming there was an officially induced expectation that the expenditure was permitted, then retrospective legislation might be consistent with the Rule of Law, not contrary to it.

One the world's foremost Rule of Law theorists, our own Jeremy Waldron, has written an interesting article on retroactive laws: > Jeremy Waldron, "Retroactive Law: How Dodgy was Duynhoven?" (2004) 10 Otago Law Review 631 He notes a similar point to the one I note above, but suggests that an even more nuanced analysis is required (page 648):

We might say - and there is considerable authority for this - that retrospective and retroactive legislation are objectionable only in the context of penal laws or only when in some other way they affect legal rights. ... Stated in a positive way, the suggestion we are considering is that legislation which confers benefits ex post facto, or lifts burdens retroactively, or removes prohibitions, or cures disqualifications is not nearly so objectionable as penal or digestive legislation. ... I wonder about that. Let us begin with curative legislation. Is retroactive legislation which is curative alway benign? Surely not. ... Sometimes it is, sometimes it is not. Often it is a way of covering up or avoiding the embarrassment of administrative irregularity - pretending it did not happen, and depriving the citizen of the remedies that would otherwise be associated with its occurance.

He expands on these points in his article. Again, I'm not in a position to assess the propriety of the present proposal in the absence of certainty about the factual matrix surrounding the spending. My previous comments were were based on the assumption of an official assurance or reasonable expectation about the legitimacy of the spending. That point has been contested, although I'm not yet convinced the Auditor General's "warning" (NZHerald: "MPs knew rules on spending, says watchdog") was enough to displace any reasonable expectation induced by Parliamentary Services. The so-called warning was made in the OAG report: Government and parliamentary publicity and advertising, "Part 6 - Advertising in the pre-election period". The relevant extract seems to be as follows:

6.5 During an election period, successive governments have chosen to avoid conducting advertising campaigns that may create a perception that funds are being used to finance publicity for party political purposes. Paragraph 4.14 of the Cabinet Manual 2001 states – In the period immediately before a general election, the government is not bound by the caretaker convention…unless the election has resulted from the government losing the support of the House. But successive governments have chosen to restrict their actions to some extent at this time, in recognition of the fact that an election, and therefore potentially a change of government, is imminent. For example…some government advertising has been thought to be inappropriate during the election campaign (that is, where it might create a perception that public funds are being used to finance publicity for party political purposes – see the Guidelines for Government Advertising at appendix 2 for general guidance). In practice, restraints have tended to be applied from approximately three months before the general election is due, or (if the period between the announcement of the election and polling day is less than three months) from the announcement of the election. 6.6 Judgements about when and how restraints should be applied are matters for Ministers and, ultimately, the Prime Minister. The question under the guidelines of whether publicity or advertising has resulted in public funds being “used to finance publicity for party political purposes” must be considered with reference not only to the content of the publicity or advertising, but also to its timing. 6.7 The Members’ Handbook Guidelines expressly exclude “party political, promotional or electioneering material for the purpose of supporting the election of any person” from the definition of “parliamentary business” in relation to advertising by MPs or parliamentary parties. 6.8 There is no guidance as to how this should be applied in the period before Parliament is dissolved. However, there is clear potential for MPs’ and parliamentary parties’ publicity and dvertising activities in the weeks and months leading up to a dissolution to bring considerable party political benefit. That potential increases as political content is permitted in such publicity and advertising. ... 6.9 It needs to be recognised that government and parliamentary publicity and advertising outside the 3-month period before a general election can have electoral advantage for governing parties and parliamentary parties. 6.10 It is clearly impracticable for government publicity and advertising to cease completely during a pre-election period. The routine business of government must continue, and publicity and advertising is an integral part of that business. However, the potential for improper benefit exists nonetheless. 6.11 The basic expectations of the Cabinet Manual 2001 and the Members’ Handbook Guidelines are clear about conducting advertising campaigns close to a general election, and not using parliamentary advertising for electioneering or related purposes. Beyond those basic expectations, the potential for indirect political benefit requires risk management by Ministers and government department chief executives. ... 6.15 There is a need for similar guidance in respect of government department and ministerial publicity activities in a pre-election period. In recent months, we have been approached on several occasions for assurance about advertising campaigns at public expense that have been planned by government departments or Crown entities during a general election year. In each case, the content of the advertising was consistent with the Government Advertising Guidelines, had the advertising been scheduled to take place outside an election period. 6.16 We do not regard it as our role to make judgements on whether electoral advantage might accrue as a result of particular publicity or advertising being undertaken close to an election. In our view, that judgement is one for chief executives and, ultimately, for Ministers. 6.17 However, the making of those judgements would clearly be enhanced if there were more comprehensive guidance about how to manage the risks involved.

Okay, so there is an oblique warning about the care that needs to be taken with such spending. But, if anything, the report seems to augment the view that there was uncertainty about what was permissible, leaving room for the conclusion that the expenditure may have been expressly or implicitly approved by Parliamentary Services.

UPDATE: Kathryn Ryan's interview with Auditor-General Kevin Brady seems to suggest that: (a) despite the general warning, the rules may still have been clear; and (b) Parliamentary Services seems to have had a more than mere "administration" role and may have "approved" spending. See NineToNoon: Political Advertising.