What's my blog rated?

> Mingle2: "What's my blog rated?"

This rating was determined based on the presence of the following words: gay (5x) lesbian (4x) dick (1x) On the one hand, an amusing exercise. On the other hand, quite disappointing and homophobic. It reinforces heteronormativity by suggesting that "gay" and "lesbian" are "adult" words, somehow sinister and dirty. And it marginalises gay and lesbian youth: the corollary of "gay" and "lesbian" being adult concepts is the implication that young people are or should be "heterosexual" - it suggests that homosexuality is somehow incompatible with being a young person. Nothing new though. This type of discrimination is prevalent in filtering software used by businesses. I have several friends who have had emails and website intercepted or blocked because of the presence of terms like gay and lesbian.

Boy-racers and bylaws banning cars on roads

CCC: "Street Racing Prohibition " ThePress: "Christchurch boy-racer hot-spot ban plan" NZHerald: "Death spurs plan to ban boy-racers" Cunning but, in my view, unlawful! Christchurch is looking to imposing a night-time curfew on cars in order to address the "boy-racer" problem. Tauranga City also raised this idea recently too. The precedential bylaw is the Manukau City bylaw (chapter 16, clause 26.1). It prohibits "vehicles weighing less than 3,500 kg" from certain roads from 10pm-5am on Friday, Saturday, and Sunday night and purports to impose a $500 instant fine. In short, I think they're all misinterpreting the empowering provision and/or using it for an ulterior purpose. The relevant empowering provision is, I understand, s72 Transport Act 1962:

Bylaws as to the use of roads (1) Subject … to the provisions of this Act or of any other enactment in respect of any of the matters referred to in this subsection, any Minister of the Crown in respect of any roads under his control, or any local authority in respect of any roads under its control, may from time to time make bylaws for any of the following purposes: ... (i) Prohibiting or restricting absolutely or conditionally any specified class of traffic (whether heavy traffic or not), or any specified motor vehicle or class of motor vehicle which by reason of its size or nature or the nature of the goods carried is unsuitable for use on any road or roads specified in the bylaw: ... (2) Any bylaws made under this section may apply generally to all roads under the care, control, or management of the Minister or local authority making the bylaws, or to any specified road, or to any specified part or parts thereof, and may apply to all vehicles or traffic or to any parts thereof, and may apply to all vehicles or traffic or to any specified class or classes of vehicles or traffic, and may operate at any time or at any specified time or times.

My concern is that the purpose of the empowering provision is to address the (un)suitability of the vehicle on the road. Typically this would mean banning heavy vehicle (ie, the reverse of the 3,500 kg restriction!) from roads that are not able to cope with them or prohibiting long or wide trucks from narrow streets. The temporal restriction of the ban means the Council accepts that the vehicles are not unsuitable, indicating they are using this provision for a different purpose, namely prohibiting boy-racers. Whether or not that is a sensible purpose, it is an ulterior one beyond the scope of the legislation and therefore unlawful. Unlawful! And that's even without considering the repugnance of the bylaw ban to the common law right to pass and repass on roads and the freedom of movement protections in the Bill of Rights. They further augment this conclusion, particularly as the Bill of Rights would require an ambiguity about the purpose of the provision to be resolved in favour freedom of movement. UPDATE (27/6/2007): > CCC "Street Racing Bylaw Control" (& Legal Opinion) > CCC "Commencement of Special Order Proceedings to make The Christchurch City Traffic and Parking Alteration Bylaw 2001" > CCC "Confirmation of Special Order Proceedings - Christchurch City Traffic and Parking Alteration Bylaw 2001" Aha! Someone who has done some further digging has alerted me to the fact that Christchurch City actually agreed with me that the bylaw cannot be made under s 72 of the Transport Act 1972. Instead, they relied a different power, s684(30) of the Local Government Act 1974:

s684 Subject-matter of bylaws (1)Without limiting the power to make bylaws conferred on the council by any other provision of this Act or by any other Act, the council may from time to time make such bylaws as it thinks fit for all or any of the following purposes: ... Roads (13) Concerning roads and cycle tracks and the use thereof, and the construction of anything upon, over, or under a road or cycle track: ... Recreation and Community Development (30) Regulating the use of any reserve, recreation ground, or other land, and any public building or public place vested in the council or under the control of the council:

Notably the Council lawyers decided that the specific empowering provisions addressing the regulation of traffic and the use of road (Transport Act, s72 and LGA74, s684(13)) could not be used. Instead they purported to rely on a more general provision allowing the bylaws for the purpose of "regulating the use ... of any ... public place vested in the council" - on the basis that roads are vested in the Council under ss 130 & 131 of the LGA74. Again, cunning but - in my view - unlawful. There's no doubt in my mind that the empowering provision and surrounding statutory scheme mean that that provision cannot be used to regulate traffic on roads. For example: - the more specific provisions addressing the regulation of roads (which do not apply) trump the more general provisions; - s684(30) must be read in the light of the heading above it: "Recreation and Community Development"; it's more about regulating sports grounds and the like, not roads, which are addressed in s684(13) and elsewhere. The Council has tried to refashion a regulatory tool designed for one purpose to address a completely different mischief. Again, the bylaw is in my view ultra vires the empowering provision and/or adopted for an ulterior purpose! As an aside, s684(30) has been repealed. The equivalent provision in s146 of the LGA2002 provides:

Without limiting section 145, a territorial authority may make bylaws for its district for the purposes— ... (b) of managing, regulating against, or protecting from, damage, misuse, or loss, or for preventing the use of, the land, structures, or infrastructure associated with 1 or more of the following: (i) water races: (ii) water supply: (iii) wastewater, drainage, and sanitation: (iv) land drainage: (v) cemeteries: (vi) reserves, recreation grounds, or other land under the control of the territorial authority:

And the more general empowering provisions in s 145 LGA 2002 provide:

s145 General bylaw-making power for territorial authorities A territorial authority may make bylaws for its district for 1 or more of the following purposes: (a) protecting the public from nuisance: (b) protecting, promoting, and maintaining public health and safety: (c) minimising the potential for offensive behaviour in public places.

Although the LGA74 power has been repealed the bylaws is deemed under s193 LGA 2002 to be made under the LGA 2002. Now, I think this means the Council must rely on the new powers in the LGA 2002 when amending the bylaw. Now, in my view, reliance on s146 creates the same problems as arose under s684(30). Reliance on s145 is possible (to the extent that it relates of nuisance and/or public safety), but I think is also unlawful: again, for the reason that the specific empowering provisions relating to roads and traffic - which aren't available - circumscribe the general powers to regulate. The other complication arising from purported reliance on the LG Acts rather than the Transport Act is that it probably means the Police have no power to issue infringement notices for any breach. There is (presently) no power under the LGA 2002 to issue infringement notices for breaches of bylaws (unless the Minister of Internal Affairs so orders for particular bylaws - not applicable here). The provisions in the Land Transport Act 1998 (ss 2 "infringement offence" and 138) and Transport Act 1962 (Schedule 2) only allow infringement notices in certain circumstances, only for breaches of "any provision of any bylaw involving the use of vehicles" this is doubtful given the bylaw, according to its stated empowering provision, is about the regulation of the use of public places, not the use of vehicles. I'm not sure if Manukau City took the same view and relied on the LGA provisions rather than s72 of the Transport Act, but I'm trying to find out. UPDATE (28/6/2007): > ThePress: "Expert: Templeton boy-racer ban unlawful"

Crimes (Substituted Section 59) Amendment Bill

NZHerald: "Police question smacking law" DomPost: "Regular smackers may face charges" This amendment comes into force this week. The pragmatic "solution" to refer to the prosecutorial discretion in legislation is novel and fascinating:

Crimes Act 1962, s59(4) (4) To avoid doubt, it is affirmed that the Police have the discretion not to prosecute complaints against a parent of a child or person in the place of a parent of a child in relation to an offence involving the use of force against a child, where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.

However, I think that many people misunderstand the effect of this clause. There seems to be frequent reference to the interpretation of this clause needing to be addressed by the courts. But, in my view, is extremely doubtful that the courts will touch the clause: 1. The clause does not circumscribe illegal action. Subsection (1) provides the only legislative limit on criminal liability for assaulting children. Most people seem to accept that. 2. The clause only *affirms* prosecutorial discretion. The discretion is, of course, a discretion. That means it's for the Police to decide whether or not to prosecute. They might. They might not. On the one hand, it means they do not need to if the use of force is inconsequential. On the other hand, they might decide to prosecute even if it is inconsequential. Or, indeed, they might decide not to prosecute for other reasons. Notably, the Police are not legally prevented from prosecuting cases where the use of force is inconsequential. 3. Even if clause limited the exercise of discretion, or there was any other purported error or defect in the exercise of discretion, the courts generally do not review the exercise of discretion; that is, prosecutorial discretion is non-justiciable (not suitable to being checked or regulated by the courts). A useful statement of this principle is in the Court of Appeal's decision in Fox v Attorney-General [2002] 3 NZLR 62:

The constitutional position [28] In our system of government, the discretion to prosecute on behalf of the state and to determine the particular charges a defendant is to face is part of the function of Executive Government rather than the Courts. That allocation of the function recognises the governmental interest in seeing that justice is done and community expectations that criminal offenders are brought to justice are met. [29] There are various mechanisms for the accountability of those making prosecutorial decisions within structures of government and as part of the government’s own responsibility to the House of Representatives. These apply whether prosecution decisions are taken by law enforcement agencies such as the police, the Serious Fraud Office, or other government departments or public agencies, or by the Law Officers of the Crown, the Attorney-General and Solicitor-General, who have an overall responsibility for prosecution processes. The Attorney-General is, as well as being the senior Law Officer, the Minister directly responsible for the conduct of prosecutions laid indictably, once they have reached the stage of committal for trial following depositions. Other Ministers are likewise responsible to Parliament for conduct of particular prosecutions by the departments for which they are responsible. In all cases independence from political direction of prosecutorial decision making is an established constitutional practice in New Zealand. It is often reflected explicitly or implicitly in the legislative framework governing such departments and other public bodies and public officials. It is especially reflected in the role of the Solicitor-General in the prosecution process in New Zealand (J Ll J Edwards, The Attorney-General, Politics and the Public Interest (1984), pp 391 – 396; Joseph, Constitutional and Administrative Law in New Zealand (2nd ed), paras 9.5(3) and 25.8.2; Huscroft, The Attorney-General, the Bill of Rights and the Public Interest, in Huscroft and Rishworth, Rights & Freedoms (1995), p 135). [30] A decision by a public official to prosecute in any case involves the exercise of a discretionary public power. There are prosecution guidelines issued by the Solicitor-General which discuss that discretion and indicate how it is to be exercised. The current Prosecution Guidelines are reproduced in Criminal Prosecution (New Zealand Law Commission Preliminary Paper 28 (1997), Appendix B). When considering whether to prosecute, para 3 of the Law Commission paper states “there are two major factors to be considered: evidential sufficiency and the public interest”. The latter aspect requires consideration of “whether, given that an evidential basis for the prosecution exists, the public interest requires the prosecution to proceed” (para 3.3.1). [31] The Courts traditionally have been reluctant to interfere with decisions to initiate and continue prosecutions. In part this is because of the high content of judgment and discretion in the decisions that must be reached. But perhaps even more so it also reflects constitutional sensitivities in light of the Court’s own function of responsibility for conduct of criminal trials. This reluctance to interfere on the ground that the prosecution is thought to be inappropriate is widely apparent in the common law jurisdictions (see R v Humphrys [1977] AC 1 at p 46 per Lord Salmon; Barton v R (1980) 147 CLR 75 at pp 94 – 95 per Gibbs CJ and Mason J; R v Jewitt [1985] 2 SCR 128 at para 25 per Dickson CJC; and R v Power (1994) 89 CCC (3d) 1 at pp 13 – 20 per L’Heureux-Dubé J delivering the majority judgment of the Supreme Court of Canada).

The High Court in Polynesian Spa Ltd v Osborne [2005] NZAR 408 was reluctant to rule that prosecutorial discretion could never be reviewed but accepted that the substantial policy and constitutional reasons against interference meant that "it will only be in rare cases" (namely, "if it were established that the prosecuting authority acted in bad faith or brought the prosecution for collateral purposes"). 4. The upshot of this orthodox principle is that the courts are unlikely to review the exercise of discretion or the meaning of subsection (4), either directly by judicial review or collaterally in the context of a criminal prosecution (except in cases of bad faith - an extremely high threshold). 5. The one complication is whether the affirmation of the prosecutorial discretion in legislation alters the present position. I've chatted with a few colleagues about this, and we've come to the view that it's unlikely that this changes things; fundamentally, the policy and constitutional concerns still remain and the legislative reference simply recognises the discretion (ie, it does not in itself confer the discretion). 6. That does not mean that the courts are powerless to respond to trivial charges. There is some ability to control prosecutions under the courts' powers to control abuse (but that's more likely were there is simply no evidence supporting the charges or use of prosecution for ulterior purposes). And, of course, the courts can address the matter after conviction, through their powers to discharge a defendant without conviction. But the central point remains, as a matter of law, the manner in which the prosecutorial discretion is exercised is essentially irrelevant in the eyes of the court.

OIA grumbles

Last week, I made the following OTA request:

Kia ora I am an academic with a particular interest in local democracy and sub-national bodies and am presently undertaking some work on Codes of Conduct. I would be grateful therefore if you could provide me with the following information relating to the code of conduct issues in relation to Mr Solomon: - a copy of your code of conduct; - reports to the DHB on these issues; - minutes of the meetings at which these issues were considered. I would also be grateful if you could treat this request as urgent – obviously it is a contemporary issue of some public importance. thanks Dean Knight Lecturer, Faculty of LawVictoria University of Wellington, Government Buildings, 15 Lambton Quay, PO Box 600, Wellington, New Zealand[ tel +64 (4) 463 6364 ] [ fax +64 (4) 463 6365 ] [ mob +64 (21) 684 544 ] [ dean.knight@vuw.ac.nz ] [ www.vuw.ac.nz/law ]

Subsequently I received the following response:

3. A couple of thoughts:

- Um, since when has the OIA not been a "core duty"? Surely, public transparency is a fundamental part of a public bodies' functions?

- The documents I requested are, essentially, official documents from Board meetings (reports and agenda). Surely these are readily available? And within the "free" 1 hour?

- Yes, I made the request and so I do really want the documents! I'd prefer not to have to re-confirm my intentions. But, if I do, who do I contact to confirm the request - the CEO? Maybe it would be helpful to have a nominated person to contact, and perhaps even their email address?

- Oh... yes, "the 20-day working deadline"? Actually, your primary obligation is to satisfy the request "as soon as reasonably practicable". But I suspect you won't start the clock until I re-confirm my request?

- In any event, my request was noted as urgent? Maybe it would be nice if it would be treated as such?!?

*sigh*

"Codes of conduct" - threats to democracy

WanganuiChronicle: "DHB censures Solomon" RNZ Nat: "Whanganui Hospital" I've been concerned for some while that Codes of Conduct adopted by sub-national governmental bodies like local authorities and district health boards are proving problematic and are really an affront to democracy. Don't get me wrong: I'm all for prophylactic measures which endeavour to achieve better governance outcomes. But - and it's a big but - they should not be used to suppress genuine political dissent. It's one thing to say that elected members should be not swear at each other in meetings. It's another thing to say they shouldn't express views because they undermine the work of the Board when they are trying to achieve "solutions". This gags an elected member from undertaking their own governance responsibilities - for which they are accountable to the public at the ballot box. While there are some instances where there is a pressing objective that codes of conduct seek to address (for example, directly criticising an individual officer and bringing them into the public debate), these need to be balanced against the democratic imperative. In my view, Good Health Whanganui has got clearly got the balance wrong and is acting disproportionally to their purported objective (which seems, as best, to be that all children should play nice with each other while in the sand-pit). Local democracy is being eroded as a consequence. I am in the process of researching this issue. Anecdotal evidence suggests there are numerous examples of where codes of conduct are being misused, as tools to suppress or attack other members with different views - rather than genuine failings in governance responsibilities. As far as I'm aware, only one case has made it to Court so far: > Goulden v Wellington City Council [2006] 3 NZLR 244 (Disclosure: I provided some assistance to the Council's lawyers in this case.)

Personal liablity of elected members

ThePress: "Council feels 'gun to head' over Central Plains water" Interesting to see the old chestnut of personal liability for councillors being wheeled out (I'm pretty sure that what the reports are suggesting). It may surprise some people but there is a rather nasty provision in the Local Government Act that makes elected members potentially liable for losses. That said, the threshold for liability is relatively high and is subject to various "outs", liability only arises if the Auditor-General makes an adverse report, and - as far as I am aware - it's never been used in New Zealand. It's equivalent has been used in the UK but has since been repealed. Below is an extract on this issue from a paper I have written previously on personal liability of members: Personal liability of members Under s 43(1) of the LGA 2002, members of a local authority are indemnified by the local authority for any liability if they acted in good faith and in pursuance of the responsibilities or powers of the local authority:[1]

(1) A member of a local authority (or a committee, community board, or other subordinate decision-making body of that local authority) is indemnified by that local authority, whether or not that member was elected to that local authority or community board under the Local Electoral Act 2001 or appointed by the local authority, for— (a) costs and damages for any civil liability arising from any action brought by a third party if the member was acting in good faith and in pursuance (or intended pursuance) of the responsibilities or powers of the local authority (or committee, community board, or other subordinate decision-making body of that local authority); and (b) costs arising from any successfully defended criminal action relating to acts or omissions in his or her capacity as a member.

This indemnity does not apply to directors of council-controlled organisations.[2] However, members may be (jointly and severally) liable for the losses of local authorities in the following cases:[3] · money belonging to, or administrable by, a local authority has been unlawfully expended - an asset has been unlawfully sold or otherwise disposed of by the local authority - a liability has been unlawfully incurred by the local authority; or - a local authority has intentionally or negligently failed to enforce the collection of money it is lawfully entitled to receive. Individual members are not liable if they establish that the act or failure to act that resulted in loss occurred:[4] - without their knowledge; - with their knowledge but against their protests; - contrary to the manner in which they voted on the issue. More generally, members are not liable if they establish that in the circumstances, they acted in good faith and in reliance on reports, information, or professional or expert given by: - an employee of the local authority whom they reasonably believed was reliable and competent in relation to the matters concerned; - a professional adviser or expert in relation to matters that they reasonably believed to be within the person’s professional or expert competence.[5] Members are only liable for the losses if the Auditor-General issues a report on those losses to the Minister of Local Government.[6] The Crown is entitled to take proceedings against members to recover the losses, which when recovered are payable to the local authority. In Porter v Magill [2002] 1 All ER 465, Lord Bingham summarised the principles underlying the equivalent provision in English law as follows: - Powers conferred on a local authority may be exercised for the public purpose for which the powers were conferred and not otherwise. - Such powers are exercised by or on the delegation of councillors. It is misconduct in a councillor to exercise or be party to the exercise of such powers otherwise than for the public purpose for which the powers were conferred. - If the councillors misconduct themselves knowingly or recklessly it is regarded by the law as wilful misconduct. - If the wilful misconduct of a councillor is found to have caused loss to a local authority the councillor is liable to make good such loss to the council. - Powers conferred on a local authority may not lawfully be exercised to promote the electoral advantage of a political party. In that case, the House of Lords endorsed the finding of the auditor that targeted (discounted) sales of council-owned properties in marginal wards (based on the belief that the owner-occupiers were more likely to vote for the ruling group’s party) was unlawful. The surcharge requiring payment of the difference between the full market value of the properties and the discounted prices received (about £15.47m) was upheld. [1] Section 43(1), LGA 2002. [2] Section 43(3), LGA 2002. [3] Section 44(1), LGA 2002. [4] Section 44(6)(a)-(c), LGA 2002. [5] Section 44(6)(d), LGA 2002 [6] Sections 44 and 46, LGA 2002.

Back in the saddle

With my busy teaching trimester now over (apart from about 400 exam scripts, essays, and opinions to mark!), regular service should now resume...

Queen's Birthday Honours

NZHerald: "Heroes in word and deed" LAWS179: "New Zealand Order of Merit (Titular Titles) Bill" The nonsense of removing the titular titles from the honours system is once again demonstrated by this weekend's awards. Reporting on the awards, the Herald notes in its lead item:

Two women and three men were created Distinguished Companions of the New Zealand Order of Merit (DCNZM). Under the old honours system, they would have been dames and knights. Honoured were writer Patricia Grace, barrister Alison Quentin-Baxter, Warehouse founder Stephen Tindall, dairy farmer and Fonterra chairman Henry van der Heyden and Justice William Young, president of the Court of Appeal.

Seven years after the change, the media and the public still read the honours list in the light of the old titular titles. Let's remove the artificiality and simply adopt titular titles within our indigenous system of honours. A draft Member's Bill is set out in my January post on this issue: > LAWS179: "New Zealand Order of Merit (Titular Titles) Bill" PS I see Sir Kenneth Keith was appointed to the Order of New Zealand (the honour which has never carried titular titles). Sir Ken has made a huge contribution to law and governance in New Zealand and elsewhere. In fact, the New Zealand Centre for Public Law is hosted a conference on 23 & 24 August 2007 to honour his contribution: > NZCPL: "From Professing to Advising to Judging: a conference in honour of Sir Kenneth Keith" (pdf) Rather than being a blow-by-blow account of Sir Ken's contribution, he will be honoured by bringing together leading scholars from the areas in which he was active to present their own cutting-edge scholarship on topics they are actively researching.