Constitution Cube

http://www.vuw.ac.nz/staff/dean_knight/Constitution_Cube.pdf

Note To Our Australian Friends: Don't Panic Mr Mainwaring!

So, it looks like a hung Parliament.  The first time for a long time for the Australian Federal Parliament.

But a quick note of advice to our Australian brethren.  Don't panic!

It's not actually unchartered territory.  While the constitutional history and context might differ slightly, you might consider glancing over to New Zealand to see the heavily developed and carefully framed constitutional conventions surrounding the appointment of the Prime Minister by the Governor-General in such situations.
One of the best guides is Sir Michael Hardie-Boys' 1997 Harkness Henry Lecture "Continuity and Change":

- http://www.gov-gen.govt.nz/node/471

Actually, there are a range of other speeches which also speak to the conventions surrounding appointment:

- http://www.gov-gen.govt.nz/resources/media/speeches/constitutional

If I can highlight the key passage:

The core principles
Through this public speaking and writing I tried, in essence, to make clear a few simple points:
- The formation of a government is a political decision and must be arrived at by politicians.
- My task as Governor-General is to ascertain where the support of the House lies. In an unclear situation, that might require me to communicate with the leaders of all of the parties represented in Parliament.
- Once political parties have reached an adequate accommodation, and a government is able to be formed or confirmed, the parties could be expected to make that clear by appropriate public announcements of their intentions. At that point it might be necessary for me to talk with some party leaders. I would then expect to have sufficient information to be able to appoint a new Prime Minister, if that were required.
- Throughout this period of negotiation, the incumbent Prime Minister remains in office, governing in accordance with the caretaker convention.
The second of these points is the nub of the matter. In a parliamentary democracy, the exercise of my powers must always be governed by the question of where the support of the House lies. It is this simple principle which provides the answer to those who sometimes suggest that in situations like that encountered by New Zealand after the last election, the head of state should simply call on the leader of the largest party to form a government. Size alone provides no reason to prefer a party if its leader does not appear to have the support of a majority of the House. It is better to wait for negotiation among the parties to produce a majority. This principle is also the answer to those who regularly write to Government House suggesting that the Governor-General dismiss the government and call another election, based on perceived public sentiment, dissatisfaction with particular actions, or opinion polls. To repeat: in a parliamentary democracy such as ours, the exercise of the powers of my office must always be governed by the question of where the support of the House lies. If that is unclear, I am dependent on the political parties represented in the House to clarify that support, through political discussion and accommodation.

And from a later speech (http://www.gov-gen.govt.nz/node/403):

Politicians may assist during a time of political uncertainty by indicating publicly where they stand in terms of their support for the Government. A vote of confidence is nonetheless the more critical indicator.

Good luck!

An Ode to (Public) Law

For my sins, I am one of a group of lecturers nominated for the Academic Idol competition being run at Vic by the student magazine, Salient.

The competition involves the candidates submitting a short response to a quirky question each week.  Each week, people vote and the lowest polling candidate gets voted off the island.

So far I've survived the first 3 rounds:
http://www.salient.org.nz/blog/academic-idol-round-one-2
http://www.salient.org.nz/blog/academic-idol-round-two-2  
http://www.salient.org.nz/blog/academic-idol-round-three-2

This week was a difficult task, but quite fun: "Write an acrostic poem using your name that explains why students should study your subject."

And I was pretty pleased with the result - despite my severe lack of poetry-writing skills.  I thought folk might be interested in reading it:

http://www.salient.org.nz/blog/academic-idol-round-four-2

AN ODE TO (PUBLIC) LAW
Daring adventures in the common law
Examining judgments for their every flaw
Abstract, though, the law is not
Ne’er the people should be forgot
King, Queen, and Guv’nor lead our realm
Nay, their ministers at the helm
In our names, they serve and reign
Good governance is our refrain
Hapu, family, plumber, and more
Tis people at the heart of law

[PS: To vote, text the name of your favourite lecturer to 027 CUSTARD (027 287 8273) or email editor@salient.org.nz.  Just saying.]

Judicial Review: Practical Lessons, Insights and Forecasts

Earlier this year, I presented a paper to a conference of government lawyers.  It is now available as a working paper:



- Dean R Knight "Judicial Review: Practical Lessons, Insights and Forecasts" (Working Paper VUW-NZCPL-002, Wellington, April 2010)
It contains - like, I think, any good sermon - three key points:
1. The discipline of judicial review is confusing and uncertain, particularly in some key areas, such as substantive review, review involving human rights or review in areas where the state has departed from the classic model of undertaking public functions.
2. Recognising that the courts are grappling with competing tensions of vigilance and restraint is a better way of understanding the great morass of judicial review cases.
3. Across all grounds of review, there is a reasonably common set of contextual factors which feed into the balance between vigilance and restraint.
As usual, comments, feedback, or rotten tomatoes welcomed!

BIG SNAPS: Courts (Remote Participation) Bill

It was pleasing to hear reports of some mature law-making last night.

Labour, Green, and Maori MPs had been arguing against the use of remote video links for substantive criminal trials without the consent of the accused.  Although the government had the numbers to pass the Bill (we assume, although the voting patterns of the ACT party are never predictable), reports are that the Minister, Hon Simon Power, was "persuaded" by the strength of the debate and proposed a handwritten SOP to amend the Bill to address this.

On its face, it looks like mature and responsive law-making, where the merits of the case are at the forefront.  An examplar for our MMP multi-party legislature.  "Big snaps" to all involved.