Donations to political parties and "bribery"

> NZHerald: Call for police to investigate offer to Maori Party > DomPost: Cash offer to Maori Party 'not illegal' I think we need to take care before we baldly conclude that the offer to make a donation to the Maori party on the basis that they support Labour as the government amounts to bribery. Section 103(2) of the Crimes Act sets out the offence:

s103 Corruption and bribery of member of Parliament (1) ... (2) Every one is liable to imprisonment for a term not exceeding 7 years who corruptly gives or offers or agrees to give any bribe to any person with intent to influence any member of Parliament in respect of any act or omission by him in his capacity as a member of Parliament. (3) ...

"Bribe" is defined in section 99 as:

Bribe means any money, valuable consideration, office, or employment, or any benefit, whether direct or indirect:

I haven't got time to develop the argument but:

- There's a difference between concluding that such offers are politically objectionable (controls might be transparency and ultimately voter response at the ballot box) and that such offers triggers criminal liability.

- Interestingly, the home of the origins Westminister system, the UK, does not have the same criminal liability.

- There's a need to reconcile the offer with offers from groups like, say, an anti-alcohol lobby groups who might say to a party, "we'll make a donation to your party if you support raising the drinking age; but if you don't, we won't".

- There's a wee bit of literature and jurisprudence on the issue but I haven't got time to go through it. Two goods reads though:

> AG of Ceylon v de Livera (a case under a similar section) > Zellick, "Bribery of Members of Parliament and the Criminal Law" [1979] Public Law 31 (on the UK situation, remembering there is no specific offence)

Rule of Law and retrospective legislation

The war of rhetoric continues about the pledge cards, with numerous suggestions that the position maintained by some parties is "corrupt", is unconstitutional, or violates the Rule of Law. I’ve previously suggested that:

- according to administrative law principle, parties which have overspent might not be required to pay back the overspending, if they were assured by an appropriate agency that the spending was legitimate, had no reasonable reason to doubt that assurance, and no reasonably available mechanism by which to otherwise confirm that expectation (see LAWS179: "Shifting Goalposts");

- legislation validating spending from the parliamentary leaders fund might not be objectionable and may be consistent with the Rule of Law, not contrary to it (see LAWS179: "Retrospective (or retroactive) legislation and pledge cards");

- if this was a criminal matter, the parties might similarly be able to rely on a defence of officially induced error (see LAWS179: Killing Miss Muggins: Officially Induced Error).

Once again, I must record that I’m not in a position to fully appreciate all the factual contentions made about whether or not the spending was in accordance with past practice and/or explicitly / implicitly “approved” by Parliamentary Services. However, from where I sit and the more I see and hear, suggests Labour’s argument that they genuinely and legitimately understood the spending was permissible has a degree of credibility. I await with interest the Auditor-General’s report and/or Darton v Clark litigation. My point of posting though is to reinforce the view I’ve previously expressed that retrospective validating legislation may not be objectionable in this situation and enhances the Rule of Law, rather than violates it. Quite frankly, the discussion about this point in the political arena and the media has been superficial and sloganistic, rather than attempting the grapple with the important legal principles that are at stake. In this regard, an Australian monograph – Charles Sampford, Retrospectivity and the Rule of Law – was on the list of new additions to the library. It deals in some detail with the issues that are stake in the present pledge cards issue and makes for instructive reading. For example, Sampford makes the following introductory comments about the legitimacy of validating legislation:

Validating Legislation Validating legislation is passed where someone, usually the executive arm of government, has acted in reliance on an erroneous view of the law, which action the retrospective statute is intended to validate. Thus, this sub-category include statutes designed to overcome more significant legislative defects than those considered in the routine revision category; often there are complicating factors such as a person's reliance on the defective scheme. However, provided that no new (that is, unexpected) obligations are imposed on anyone, there is little that can be objected to in the retrospective curing of the defects. Indeed, the reliance on existing state of the law is an argument for retrospectivity, because the executive and others relied on what turned out to be a mistaken interpretation of the law. In these instances, it would be perverse not to perfect the law given that people have been led into error by the government. The retrospective legislation is concerned with making the law conform to that which people acting in purported reliance on the law believed to be the case. Failure to cure the defects in validate those actions in the circumstances could diminish respect the law rather than support it.

I’ve posted a somewhat larger extract of the chapter in pdf form: > Charles Sampford, Retrospectivity and the Rule of Law (Chapter 4 – extract)

Lord Cooke - some reflections: Simplicity and Fairness in Adminstrative Law

Below are my remarks for a panel address today hosted by the NZ Centre for Public Law and the Faculty of Law on Lord Cooke of Thorndon: "Lord Cooke – Some Reflections: Simplicity and Fairness in Adminstrative Law" Dean Knight Lecturer, Faculty of Law (Acting) Co-Director, New Zealand Centre for Public Law Victoria University of Wellington Lord Cooke was one of New Zealand's pre-eminent administrative law scholars and jurists, if not our finest. Sir Robin had a great passion for administrative law. His award winning PhD in Cambridge in 1954 – "Jurisdiction: An Essay in Constitutional, Administrative and Procedural Law", in which he examined and critiqued the adoption of "jurisdiction" as an organising principle in administrative law – signalled his passion and expertise in this area. Around that time he lamented the fact that "Administrative Law" was not found as a title in Halsbury's Laws of England or in the index to the Law Reports. Nowadays those oversights have been corrected. Notably, Halsbury's chapter on administrative law now contains numerous citations to Lord Cooke's contribution to administrative law jurisprudence. And the introduction to the equivalent chapter in our Laws of New Zealand honours that way in which Lord Cooke "charted the direction" for administrative law in New Zealand over the last 30 years, particularly his rejection of legal formalism in the area. Sir Robin himself estimated that around 40% of reported appellate court decisions concerned administrative law or had some administrative law element. And if one undertook that same analysis today in our New Zealand law reports, Sir Robin's name would appear at the top of many of those decisions. It is therefore no easy task to reflect on Sir Robin's contribution in this area, both in his adjudicative role and his extra-judicial writings. Professor Taggart recently said administrative law was "one of the areas – arguably the area" Sir Robin had "made his own". A recital of his significant contributions would seem like a verbatim recital of many chapters from Professor Joseph's text on constitutional and administrative law or GDS Taylor's commentary on judicial review. Sir Robin's contribution has been interwoven throughout our country's development of its unique jurisprudence in this area. And, of course, also on the international stage. One could point to many of the significance administrative law cases in which he adjudicated or in which he helped shape the development of administrative law principle, such as: • his treatment of mandatory relevant considerations in CREEDNZ; • Finnigan, the Springbok tour case, and his discussion of the justiciability of private decisions with a significant public impact; • the seminal decision on the disclosure of official information, Commissioner of Police v Ombudsman; • Tavita, Ashby and the relevance of international law to domestic administrative law; • the manifestation of the Treaty in administrative law through the NZ Maori Council series of cases; • the Casino Control Authority and the test for bias. However, rather than adopting a blow-by-blow account of Lord Cooke's contribution, I wish to focus on a few of themes which, in my view, underscored his philosophy in this area: • first, a desire for simplicity; • secondly, the pursuit of fairness; and • thirdly, his acceptance of discretion. The desire for simplicity was one of Lord Cooke’s hallmarks. In his 1980s article – “The Struggle for Simplicity in Administrative Law”, he championed “clarity and simplicity” over the “superfluous complications of principle” and use of “phrases of somewhat arcane concepts, in the nature of catchwords or half truths [or] shibboleths”. This critique was not intended to be mere window-dressing. In Bulk Gas, for example, he rejected the concept of jurisdiction and jurisdictional error in favour of the simpler "error of law" formulation. Similarly, his own formulation of the tripartite cardinal principles of administrative law – that decision-makers “must act in accordance with the law, fairly and reasonably” – represented a more straight-forward articulation than Lord Diplock's famous "illegality, irrationality, and procedural impropriety" formulation from the CCSU case. Indeed, Sir Robin commented on their similarity, although took some pleasure in noting that his initial expression of these principles in his address to the Auckland District Law Society came some 5 years before the CCSU case. In this theme, Sir Robin was also a staunch critic of the expression of so-called Wednesbury principles. He described the "irrationality" test for substantive review of decision as "tautologous and exaggerated” and advocated a simpler, and less extreme, formulation of the test of reasonableness:

“[Is] the decision in question … one which a reasonable authority could reach[?]”

In his view, such a formulation would still “give the administrator ample and rightful rein, consistently with the constitutional separation of powers”. Similarly he was a fan of the so-called "innominate" ground of review expressed by Lord Donaldson in the Guinness case: the standard being "whether something had gone wrong of a nature and degree which required the intervention of the court". Lord Donaldson's formulation mirrored his own expression of the concept of substantive fairness in the Thames Valley case, which he described as “a legitimate ground of judicial review, shading into but not identical with unreasonableness”. Sir Robin welcomed this as a "refreshing and healthy move away ... from the more formalistic constraints once orthodox" and suggested that:

[J]udges are accepting that they have a responsibility to do practical justice in administrative law as in other fields. Ample room for respect for administrative discretion remains.

And he was a strong champion of fairness. The translation of the motto found on his personal coat of arms says: "To speak in favour of fairness". His judgments expressed the need for the courts to ensure both procedural and substantive fairness when exercising their supervisory jurisdiction. I have already mentioned to his adoption of the principle of substantive fairness and the closely aligned simple expression of the reasonableness standard. To this one can add his strengthening of the principle of procedural fairness in Daganaysi, along with the genesis of the mistake of fact doctrine in the same case. He also often indicated the importance of consultation in ensuring the delivery of natural justice and procedural fairness, notably in administrative decisions relating to Maori and more generally with the populace at large. Again, Lord Cooke was not one to be tied down by legal niceties or formalistic definitions of fairness. He commended the word of Lord Justice Lawton in the Maxwell case:

"From time to time … lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise."

His scholarship and adjudication endeavoured to achieve real justice in individual cases. He was no doubt pleased to see the rejection of legal formalism by our courts continue beyond his retirement from the Court of Appeal. The desire for individual justice also came with an acceptance of discretion in administrative law. Sir Robin once noted that when he was writing his PhD he was "quite well-deposed towards discretion" – in contradistinction to famous administrative law names such as Dicey and Sir William Wade. He went on to say that almost a quarter of a century on the bench had "warmed [his] feelings to something approaching affection for it". He understood the need for both administrative and judicial discretion in this area. However, he accepted that both were subject to limits, but limits which varied according to the subject-matter and surrounding statutory context. He queried whether administrative law might be better renamed "the law of public discretions". His acceptance of the role of discretion and rejection of rigid rules imbued his adjudication and scholarship. His formulation of the grounds of review provided for appropriate discretion. He embraced the discretionary approach to remedies in judicial review, rejecting the strait-jacket presented by the previous "void" – "voidable" distinction. He championed a discretionary approach to procedural matters, such as the question of standing. Discretion was a paramount vehicle to achieving individual justice. Lord Cooke's contribution to New Zealand – and Commonwealth – administrative law was massive. It is marked particularly by its pursuit of simplicity and fairness. We have lost one of our greatest figures in administrative law. Ka hinga te totara o te wao nui a tane. But he will not be forgotten. His legacy in this area will endure.

Peter Davis - imputations of gayness

> SST: Smear against PM's husband 'despicable' > SST: PM hits out at 'smutty rumours' > DomPost: Furious Clark defends husband > NZHerald: Bitter Clark savages rumours There's been some suggestion that litigation may follow the recent allegations being made about Peter Davis being gay. However, in my view, allegations of gayness per se are not and should not be defamatory. In today's society it cannot be said that "right-thinking" people would think that an allegation of gayness tarnishes a person's reputation. My article on this was launched last week: > 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 It's likely though that the courts may treat allegations of gayness "plus" as being defamatory, that is allegations of gayness (which are not defamatory) tied with allegations of infidelity, untruthness, or a "sham" marriage etc (which still might be). While I have some concerns about this approach which I touch on in my article (ie these other allegations are often used just to "reinvent" allegations of gayness), this alternative may still be available to Davis. UPDATE (27/9/2006): Steven Price discusses this issue with Kathryn Ryan on National Radio, including some of the points addressed in my article: > NatRadio: Law

Killing Miss Muggins: Officially Induced Error

There's been some discussion about whether Labour can rely on ignorance or confusion about the pledge cards, if it transpires that their spending was unlawful. See: > KiwiBlog: "New Court defences" > NoRightTurn: "Analogous defences" In terms of criminal offences: 1. It's clear that ignorance of the law is no excuse. Section 21 of the Crimes Act provides:

s25.Ignorance of law— The fact that an offender is ignorant of the law is not an excuse for any offence committed by him.

2. However, some common law courts have developed the defence of "officially induced error". In New Zealand there is the possibility that this development may be preserved by s20 of the Crimes Act, although I recall a recent case from Baragwanth J suggesting some difficulties in the NZ context. The commentary in Brooker's, Criminal Law describes the defence as follows:

CA25.05 Officially induced error In some jurisdictions Courts have accepted that there might be a defence if a defendant acted on erroneous advice on the law from an official responsible for administering the law in question, for example, People v Ferguson 134 Cal App 41 (1933); R v MacDougall (1983) 142 DLR (3d) 216 (SCC); R v Cancoil Thermal Corp and Parkinson (1986) 27 CCC (3d) 295 (Ont CA). The existence of such a defence was left open in R v Forster (1992) 70 CCC (3d) 59 (SCC). In R v Jorgensen (1995) 129 DLR (4th) 510; 102 CCC (3d) 97 (SCC), Lamer CJC favoured recognising the principle as providing a ground on which the trial Judge may order a stay of proceedings: compare CA24.33. Such a defence has yet to find favour in England. See, for example, Surrey County Council v Battersby [1965] 2 QB 124; Cambridgeshire and Isle of Ely County Council v Rust [1972] 2 QB 426; Ashworth, “Excusable mistake of law” [1974] Crim LR 652. In New Zealand, statute occasionally creates a defence of this kind in particular contexts. See, for example, Cardin Laurant Ltd v Commerce Commission [1990] 3 NZLR 563; (1989) 3 TCLR 470. A general defence has been upheld in at least one District Court case: Dept of Internal Affairs v Nicholls 20/5/86, Judge Bradford, CR5004024002025; W Brookbanks, “Recent developments in the doctrine of mistake of law” (1987) 11 Crim LJ 195, p 200. The possibility of such a defence was not adverted to in Labour Dept v Green [1973] 1 NZLR 412, and in Tipple v Police [1994] 2 NZLR 362, Holland J preferred to deal with such a case by discretionary discharge without conviction (under what is now s 106 Sentencing Act 2002) rather than by recognising a defence. For a comprehensive review of the subject, see M Briggs, “Officially induced error of law” (1995) 16 NZULR 403.

This may provide an avenue for raising these issues (although as I understand the appropriations aspect of the pledge card raises criminal law issues). 3. The conceptual basis for this defence is strong and grounded in the Rule of Law, particularly where the law itself is undertain or ambiguous (which in itself violates the Rule of Law). I won't bore people with the references on this point now. 4. Regardless, the courts treat genuine ignorance of the law or confusion about the law more sympathetically because it goes to the degree of an offender's culpability or "wickedness". As noted in the commentary, in some cases, the mistake or lack of knowledge of an offence may lead to a discharge without conviction. As you'd expect the position on civil proceedings is usually more accomodating of such errors. I haven't got the resources to review it yet, suffice to say that in administrative law and judicial review, it would be one of the key considerations for the High Court when deciding whether to grant any relief even if illegality was established, that is, confusion and ignorance may legitimately form the basis for a court refusing to require the paying back of money. See my earlier posts for more commentary on this point: > LAWS179: "Shifting Goalposts" > LAWS179: "Retrospective (or retroactive) legislation and pledge cards" UPDATE (13/9/2005): Some people have asked what the elements of the defence might be and who bears the onus of proof. 1. The elements for officially induced error are pretty self-evident. The Supreme Court of Canada described it in R v Jorgenson [1995] 4 SCR 55 in the following terms:

In order for an accused to rely on an officially induced error of law as anexcuse, he must show, after establishing he made an error of law (or of mixed law and fact), that he considered his legal position, consulted anappropriate official, obtained reasonable advice and relied on that advicein his actions. When considering the legal consequences of his actions, itis insufficient for an accused who wishes to benefit from this excuse to simply have assumed that his conduct was permissible. The advice camefrom an appropriate official if that official was one whom a reasonable individual in the position of the accused would normally considerresponsible for advice about the particular law in question. If an appropriate official is consulted, the advice obtained will generally be presumed to be reasonable unless it appears on its face to be utterly unreasonable. The advice relied on by the accused must also have been erroneous, but this fact does not need to be demonstrated by the accused. Reliance on the official advice can be shown by proving that the advice was obtained before the actions in question were commenced and by showing that the questions posed to the official were specifically tailored to the accused's situation.

2. The position of the onus of proof is a little more complex. It depends on whether the criminal proceedings are bought as indictable or summary offences: - If bought indictably, the orthodox burden of proof applies, that is, the defendant need only make the defence a live issue by pointing to evidence in support of it; the prosecution then bears the onus to prove beyond reasonable doubt that the defence is not made out. - If bought as a summary proceeding, section 67(8) of the Summary Proceedings Act applies and the defendant bears the onus of establishing the defence on the balance of probabilities.

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.