New Zealand Order of Merit: Restoring Titular Titles

> LAWS179: "New Zealand Order of Merit (Titular Titles) Bill" > LAWS179: "New Zealand Order of Merit (Titular Titles) Bill: My New Year Honours List" > LAWS179: "Queen's Birthday Honours" > LAWS179: "New Zealand Order of Merit: new Knighthoods and Damehoods" With the release of this year's honours, time to update the project to restore some form of titular titles to our indigenous honours system. First, below is a list of the most recent honorands - described as they would have been under the proposed system of titular titles: P.C.N.Z.M. Professor Tā (Sir) Ralph Herberley Ngatata LOVE, Q.S.O., J.P., of Porirua. D.C.N.Z.M. Dr Kahurangi (Dame) Claudia Josepha ORANGE, O.B.E., of Wellington. Professor Sir David Christopher Graham SKEGG, O.B.E., of Dunedin. Sir Murray John WELLS, of Auckland. The Honourable Dame Margaret Anne WILSON, of Tauranga. I note that Ngatata Love was ambivalent about the titular title Sir. I wonder if he would have been less ambivalent if the Order came with a titular title in his indigenous language? Secondly, there's been some suggestion on the radio that the new government may be interested in reverting to a system of titular honours - although I haven't yet seen any unequivocal statement or policy on the honours system. That sounds encouraging though. Thirdly, if a change is supported, a possible template is the Member's Bill I previously drafted: > New Zealand Order of Merit (Titular Titles) Bill (pdf) (A text version is also set out over the break.) If the change is supported by the new government though, it would not be necessary to give effect to the change through legislation passed by the House. As the system falls within the purview of the Sovereign's prerogative authority, the system can be varied merely by Royal Warrant. That is, the government - relying on their Executive power - can advise the Queen to vary the system. There's no need for the change to be implemented in the format of a Bill, although the nature of the provisions would basically be the same. One other thing we might want to think about is whether we want to codify the present system in the form of legislation passed by the House, rather the prerogative legislation. There may be some value in the people of New Zealand taking ownership of the system through the adoption and endorsement of the system by their elected representatives as a whole.

An alternative Christmas message

> DomPost: "Queen calls for service to others"

An alternative Christmas message from the Head of State:

The Governor-General, Anand Satyanand, has urged people to learn from unsung heroes when times are tough.

Delivering his Christmas message to the New Zealand people, the first head of state of the Republic said that Christmas this year was a sombre occasion for many. "Some of those things which could once have been taken for granted suddenly seem less certain and, naturally, give rise to feelings of insecurity," he said. "People are touched by events which have their roots far across the world. Whether it is the global economy or violence in a distant land, the effects can be felt at home."

The Governor-General paid particular tribute to two Kiwis who gave their lives to save others. He spoke of the sacrifice of Elim Christian College teacher Tony McClean, who lost his life trying to save school children trapped in the swollen Mangatepopo Stream, and Austin Hemmings, stabbed while going to the aid of a stranger in Mills Lane in central Auckland. "Their bravery and instinctive behaviour in doing what was right speaks to all New Zealanders," he said.

He also noted the death of one of New Zealand's great heroes. "This year saw a mighty kauri fall, with the passing of Sir Ed. We must strive to fill the gap in the forest with new heroes."

Satyanand spoke of his delight in watching the successes of New Zealanders in many areas of endeavour over the past year. "The hearts of our community were warm with pride as we saw our athletes, writers, film-makers, scientists, comedians and others make their mark on the international stage."

He cautioned that the country continued to face many challenges in the upcoming year. "The strength of our community and the resoluteness of our nation will be tested by the economic crisis. We will have to continue to confront great issues like climate change, settlement of Treaty grievances, and increasing violence in our society."

Recounting a Maori proverb, the Governor-General urged the nation to work together to address these challenges: "Kaua e rangiruatia te hā o te hoe, e kore tō tātou waka e ū ki uta. Do not lift the paddle out of unison or our canoe will never reach the shore."

Satyanand said that over the next few days he would be spending some time relaxing at the beach with his wife Susan and their daughters and son, and he hoped that others would also find time to relax and spend with their whanau and friends.

An Act of Canned Ham

> DomPost: "Kiwi spammer gets hefty fine" We should not be proud of the (first) $100,000 "fine" imposed on a spammer this week. Don't get me wrong. I hate spam. But the penalty regime within the Unsolicited Electronic Messages Act 2007 has worried me for some time. Basically it enacts a criminal penalty regime - maximum $200,000 fine (or $500,000 if a company), search warrants, infringement notices, etc - but then calls it a "civil liability" regime. Notably, the usual protections of the criminal law - including the high burden of proof - are excluded by section 49:

49 Applicable rules, procedure, and standard of proof The proceedings under sections 45 and 46 are civil proceedings to which the usual rules of the court, rules of evidence, and procedure for civil proceedings apply (including the standard of proof).

In my view, that's bad, for obvious reasons. Less obvious fish-hooks include things like different (vis reduced) entitlement to legal aid for civil proceedings.

The Bill of Rights vet touched on the problem of criminal penalties in drag but summarily concluded that any breaches of rights, including the minimum standards of criminal procedure, were justified. I'm not so convinced.

This approach is a dangerous precedent. Perhaps something worthy of Law Commission consideration.

Santa, a drag queen, and the Kapiti Coast District Council

> DomPost: "KKK man shows up to council in wig and dress"

The DomPost reports:

Just six months after upsetting Kapiti councillors by dressing in a Ku Klux Klan outfit, community board member Dale Evans has struck again. He appeared at a Kapiti Coast District Council meeting in a purple wig and women's clothing, with seven Santas in tow, and was ejected from the chamber yesterday by police prompting one councillor to compare the council to a three-ring circus. ... Ms Rowan opened the meeting by saying that, if anyone was dressed disrespectfully, they should leave. Mr Evans and his Santas refused to budge and the mayor adjourned the meeting. Some councillors left the chamber and police were called. ... Council chief executive Pat Dougherty said the ejection was justified. "Asking police to eject a group dressed in Santa suits and women's clothes was totally justified following the earlier Ku Klux Klan incident from the same person. They were asked to leave under standing orders.

No! Ejecting people for what they are wearing is not justified.

Section 47 of the Local Government Official Information and Meetings Act 1987 gives the public a right to attend any public meeting of a local authority. The (sole) power of a local authority to eject a member of the public from a public meeting is found in section 50:

50 Maintenance of order (1) The person presiding at any meeting of any local authority may, if that person believes, on reasonable grounds, that the behaviour of any member of the public attending that meeting is likely to prejudice or to continue to prejudice the orderly conduct of that meeting if that member of the public is permitted to remain in that meeting, require that member of the public to leave the meeting. (2) If any member of the public who is required, pursuant to subsection (1) of this section, to leave a meeting of a local authority— (a) Refuses or fails to leave the meeting; or (b) Having left the meeting, attempts to re-enter the meeting without the permission of the person presiding at the meeting,— any constable, or any officer or employee of the local authority, may, at the request of the person presiding at the meeting, remove or, as the case may require, exclude that member of the public from the meeting.

The section poses an objective test: There must be reasonable grounds for believing that a person's behaviour is likely to prejudice the orderly conduct of the meeting.

It's clear therefore, I'm sure, that the clothes someone wears is not sufficient to trigger ejection. There must be something more in terms of behaviour that threatens the orderly conduct of the meeting. (There's nothing in reports which suggest any other disruptive behaviour.)

If there's any doubt, the protections in the Bill of Rights would further assist, in particular, the freedom of expression in section 14. To the extent that the clothes being worn amount to expressive conduct (entirely credible in this context), then the test in section 50 would need to be read down to allow such expression, as far as possible without unreasonably undermining any government imperative underlying section 50.

In short, the government imperative is enabling elected members to conduct their meeting. What people wear does not affect that. Shouting does - and people can be ejected for that. But dressing in drag or a Santa suit - or "disrespectfully" - does not.

The guy ejected sounds like a total pillock. But that's no excuse for acting unlawfully and undemocratically.

The Laws of New Zealand: Local Government (Reissue 1)

A (reissue) title on Local Government, co-written by Chris Mitchell and me, has now been published as part of The Laws of New Zealand series: > Christopher Mitchell and Dean Knight, "Local Government (Reissue 1)" in The Laws of New Zealand (LexisNexis, Wellington, 1992-) One is never quite sure whether to describe this work as a "chapter" or a "book". Strictly speaking, it's called a "title" in Laws of New Zealand parlance. But at 168 pages, it might be better described as a "real mission"! To give some flavour of the publication, I've set out below the preface.

Local Government has been a feature of our social and political landscape since the earliest days of organised European settlement. After one or two false starts, including the relatively brief existence of provincial government, the basic elements of the current system were in place by the early 1870s. In that sense, the development of the local government model pre-dated both national identity and the national constitution but, unlike them, its further development was slow and fitful and for years remained anchored in British tradition.

As the country grew, so too did the numbers of both territorial authorities and the many special purpose authorities such as harbour boards, drainage, river and catchment boards, and transport and energy boards. All of them were elected and locally funded bodies with specific and tightly prescribed powers of governance. By the late 20th century there were well over 600 local bodies exercising some form of governmental powers. In addition to the range of statutes under which each variety of local body was constituted, there well over 1000 local statutes empowering specific aspects of their activities. The only significant change to the legislation governing territorial authorities was the union of the counties and municipal corporations legislation to create the first Local Government Act in 1974.

In his preface to the original version of this title the author, Jonathan Field, noted that “local government is where the structures of democracy touch most directly on the lives and circumstances of the citizen; where responsiveness to changing needs, transparency in meeting them, and accountability for the management of public resources, are at their highest premium”. As the 20th century came to a close, these implicit objectives and values were seen to be compromised by laws and structures which were highly complex and not always consistent or coherent. The first wave of change came in 1989 with a major restructuring of the sector under which more than 600 bodies were reduced to fewer than 100, and amendments to the 1974 legislation which required a completely new approach to planning, funding and accountability.

Surprisingly however it was not until 2002 that legislation was enacted to define the role, purpose and principles of local government, and to give local authorities broad general powers to achieve the many obligations and expectations imposed on them. While this package of statutory reform was extensive (and included electoral and rating law) it remains incomplete, and parts of the 1974 legislation remain in force as do the fragmented statutes relating to drainage, water and transport – all traditional core areas of local government activity. Further legislation can be expected to affect these aspects of local government within the next few years, and amendments to give effect to the Local Government Commission’s review and recommendations on the 2002 legislation will also no doubt appear.

So the law on local government remains in a state of necessary but slow moving change. It should be emphasised that while this title deals with many of the core areas of local government, reference must be made to other important chapters (especially ENVIRONMENT and RATING) for a more complete understanding of the topic.

It remains for the authors to gratefully acknowledge those that have helped in the production of this title. First, we acknowledge the author of the original version of this title covering the earlier legislative regime, Jonathan Field. Our version incorporates some aspects of the previous commentary and the original version also helped us settle our own approach to this topic. Secondly, thanks to Tim Miller, Research Assistant at Victoria University of Wellington for some research assistance with the project. Thirdly, we are grateful to those close to us that countenanced the demands on our time required to complete such a project. Finally, we recognise the energy and assistance of the publisher’s editor, John Lulich, in bringing together our work into a format which we hope readers will continue to find useful.

Christopher Mitchell Dean Knight November 2008

And the short-form table of contents is set out below also:

PART I. STRUCTURE AND CONTEXT (1) History (2) Structure of Local Government (3) Related Persons and Bodies (4) Reorganisation Proposals PART II. PURPOSE, STATUS, AND PRINCIPLES (5) Purpose (6) Role, Status, and Principles (7) Treaty ofWaitangi PART III. APPOINTMENT OF LOCAL AUTHORITIES (8) General Overview (9) Local Elections (10) Initial Meeting of Local Authority PART IV. GOVERNANCE AND MANAGEMENT (11) Governing Body (12) Elected Members (13) Other Governance and Management Bodies and Staff (14) Meetings (15) Decision-Making Framework and Principles (16) Public Participation (17) Planning and Reporting PART V. LOCAL AUTHORITY SERVICES (18) General Overview (19) Roads (20) Water and Sanitary Services (21) Waste Management and Disposal (22) Community Facilities (23) Emergency Management (24) Reserves (25) Land Ownership, Acquisition, and Disposal PART VI. REGULATORY, ENFORCEMENT, AND COERCIVE POWERS (26) Introduction (27) Bylaws (28) Other Regulatory Regimes (29) Enforcement Powers (30) Legal Proceedings PART VII. FUNDING AND REVENUE (31) Overview on Funding (32) Funding Mechanisms PART VIII. PUBLIC ACCOUNTABILITY (33) Official Information and Transparency Mechanisms (34) Supervisory Bodies