Adopting a modern day interpretation

A timely and significant judgment issue today by a full bench of the High Court on the legal question of who can adopt:

Re AMM and KJO

Until now, the term "spouse" in section 3 of the Adoption Act 1955 has been taken to mean only men and women who are married.  This excluded opposite sex civil and de facto couples, as well as gay couples wanting to adopt as couples.  Oddly, though gays (and unmarried straights) could adopt as individuals.

But in an appeal from a decision involving an opposite sex de facto couple in the Family Court, the High Court has ruled that the term "spouse" nowadays must be taken to include "a man and a woman who are unmarried but in a stable and committed relationship".

The result is driven by the anti-discrimination provisions in the Bill of Rights Act. The difficult issue was whether the legislative history demonstrated an inconsistent interpretation that prevented the term spouse being given a rights-consistent meaning.  The two judges together ruled it did not.

The Court was careful to note that its ruling did not deal with the question of whether the term spouse should be taken to include same-sex couples:

What it is not about is whether “spouses” can be interpreted to cover any other type of relationship such as a same sex couple. A favourable decision for these appellants might open the door for people in other forms of relationship to apply. That possible consequence is a factor the Court must take into account. But, in the end, if the decision in this case were to open that door, what the answer will be for those other couples will have to await another day.

It will be no surprise that I think it's manifestly wrong to continue to prevent gay couples from adopting.  Whether or not the courts will be prepared to make this further extension in a case involving same-sex couples, time will tell.

Regardless, the issue needs to be sorted, if not by the courts, then by legislative amendment.  There are numerous reports and calls for it to be sorted.  And it should be expedited too.

PS Congratulations to my colleague Claudia Geiringer, who acted as counsel for the couple.  I have no doubt that the success is in part due to her thorough and compelling Bill of Rights arguments.

Constables, local councils, and the constitution

It seems like the government is intent on passing the Policing (Involvement in Local Authority Elections) Amendment Bill through all stages under urgency. A shame really, as I was intending to make a submission opposing the Bill. 

The Bill looks like a technical one, removing a prohibition on police officers from standing for local authorities, in order that "all employees of the New Zealand Police are treated in the same way as other State servants". 

But that's the problem, they're not.  Part of their responsibilities, as constables, is to enforce bylaws passed by local authorities.  It's a basic violation of the constitutional principle of the separation of powers to have a person passing laws also enforcing them.

The Policing Act 2008 recognised this problem and included the current prohibition (a prohibition which basically replicates the prohibition at central government).  But now the restriction is being removed at a local level.

The Police's regulatory impact statement acknowledges the potential for some such "conflicts of interest" to arise, but suggests they will be addressed through "internal policies", amongst other things, clarifying that Police officers should not be involved in drafting or approving bylaws". 

That's not good enough, in my view.  This is a serious constitutional matter, with the potential to lead to the abuse of the coercive power of the state.

And it's not good enough that legislation which is constitutionally dubious to be rushed through under urgency, without the opportunity for public submissions and proper scrutiny.

STARTER FOR 10: Breath-testing of spectators at Christ College rugby match

http://www.stuff.co.nz/the-press/sport/3838932/Breath-testing-for-college-match/

Where do the police get the legal authority from to breath-test spectators and refuse entry for those that have been drinking?!?

Government formation UK-style: a constitutional hiccup?

- TheGuardian: "David Cameron is new prime minister"
- BuckinghamPalace: "Appointment of new Prime Minister"

David Cameron is the new PM.

But some questions remain:

1.  Did Gordon Brown potentially embarrass the Queen by resigning as caretaker Prime Minister before a formal deal had been settled between the Tories and the Lib-Dems?
2.  As newly appointed Prime Minister, is David Cameron merely acting in a caretaker capacity - until a formal coalition agreement or arrangement on confidence is settled with the Lib-Dems?

Based on New Zealand's precedents and experience, the resignation and appointment seems somewhat premature.  The Governor-General has made it clear that in order to appoint a new PM and government, "political parties [must] have reached an adequate accommodation, and a government is able to be formed or confirmed".  In New Zealand, it is expected that parties will make that clear "by appropriate public announcements" and to provide the Governor-General with "sufficient information to be able to appoint a new Prime Minister".   By custom, or perhaps even constitutional convention, the public announcement expected from political parties in New Zealand is either a joint statement confirming a coalition or confidence and supply agreement has been settled or public disclosure of those agreements.  It is from these political compacts that the Governor-General is then able to ascertain which political groupings are able to "command the confidence of the House".

But do we have that in the UK now?  No deal appears to have yet been settled, although a general outline of the type of arrangement has been foreshadowed.   Is that enough for the Queen to be ascertain where the support of the House lies, with the requisite certainty?  I'm not so sure.  There's still a chance that negotiations about the form of the arrangement may break down. 

However, Gordon Brown's immediate resignation forces the Queen's hand.  The Monarch cannot be left without government advisors.  A Prime Minister is needed.  Hence the swift moves to appoint David Cameron.  But, if - as I suggest - he has not yet demonstrated with certainty that he commands the confidence of the House, then he must only be (in NZ parlance) a caretaker Prime Minister.  That is, legally installed in office, but subject to the constraints of the constitutional caretaker convention. 

These subtleties make be lost on a UK audience, but I think it's fair to say that the New Zealand experience, customs and conventions would probably avoid such hiccups.  The expectations in terms of signed political compacts, public statements, and public ceremonial appointment of the Prime Minister, along with acceptance of the caretaker convention mean we would be unlikely to get such a premature transfer of power.

Shadow boxing with brothels

The first punch from Tau Henare:

Henare calls for Prostitution Reform Act amendment
Press Release: New Zealand National Party

Tau Henare
National List MP
30 April 2010
MEDIA RELEASE

West Auckland National MP Tau Henare is calling for an urgent amendment to the Prostitution Reform Act 2003.

“It is appalling and totally unacceptable that a brothel can go up opposite a school’s gate and nothing can be done to stop it. The Act as it stands allows this to happen. It needs to be amended” said Mr Henare.

“The previous Labour led government legalised prostitution in 2003 to protect sex workers, but clearly not enough consideration was given to protecting children from the unwanted influences of the sex industry outside their schools” says Mr Henare. “We now have a situation where there are very few restrictions on where a brothel can be sited. As long as a small owner operated brothel meets the definition of a “home occupation” as set out in the Resource Management Act a resource consent is not required and there’s nothing a local authority can do to stop it.

“The law urgently requires a commonsense clause that enables local authorities to manage the location of brothels. I will be working with my colleagues in Wellington to bring about this change,” says Mr Henare

ENDS

The actual legal position at the moment:

Prostitution Reform Act 2003:
s 14 Bylaws regulating location of brothels
Without limiting section 145 of the Local Government Act 2002, a territorial authority may make bylaws for its district under section 146 of that Act for the purpose of regulating the location of brothels.