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.

We The People(s): Participation and Engagement in Government

The NZ Centre for Public Law is running a conference in early February (11th & 12th), exploring the public's engagement and participation in government. 

I'm one of the folk organising it (and speaking at it too) but it fair to say - I hope - that the line up looks really interesting.  I'd encourage people to consider attending.

> NZCPL: "We The People(s)" [brochure and registration form]

TID-BIT: The uber-Supreme Court?

I noticed this in the Weekend Post.  I figure the government must have secretly set up an uber-Supreme Court...

Convicted double rapist Maka Renata in Wellington - police
Police believe convicted double rapist Maka Renata, who allegedly breached his parole conditions in Christchurch, may now be in Wellington.

Renata, 24, last month completed jail terms for the two rapes - one when he was just 14 years-old.

He was released from prison under several conditions, determined by the Parole Board.

However, on December 23 he left the Christchurch address the board had ordered him to live at and a warrant was issued for his arrest.

Detective Senior Sergeant Virginia Le Bas said police had received some good information which was being followed up.

"The most positive information suggests that Maka is in the Wellington area," she said.

Members of the public had called in with information about Renata being seen in other parts of New Zealand, however these sightings have been ruled out, she said.

Police are calling for Maka Renata to turn himself in, amid fears he may reoffend while on the run.

Anyone who might have seen Maka or who was perhaps providing him with assistance should contact their nearest police station immediately, Ms Le Bas said.

Renata, a medium build Maori, 166cm tall, was jailed for seven-and-half years after being convicted of rape committed in June 1999 when he was 14.

He and his foster father Dean Hiroki dragged a 26-year-old Wellington woman into an alley where they held a knife to her throat and took turns raping her.

He was sentenced to an extra three years in jail after sodomising his 15-year-old cellmate about 16 months later.

He was due to be freed more than two years ago but the Department of Corrections applied for a special Parole Act order to keep him in jail until his final release date.

RELEASE QUESTIONED

Sensible Sentencing Trust spokesman Garth McVicar said yesterday that Renata's action proved he was not ready for release.

A law change was needed to make it possible to extend prison sentences, he said.

"Everyone seems to think it was in the too-hard basket."

If Renata did reoffend, legal action would be taken against those who had failed to protect the public, he said.

"We need to accept the fact that there are some people who can't be rehabilitated."

The Supreme Court has ruled that Susan Couch – the sole survivor of the Panmure RSA killings in 2001 – can sue Corrections for failing to give her duty of care, because her attacker was on parole when he offended.

That ruling is the subject of an appeal at present.