"Pledgegate 08": the law of common sense

> LAWS179: ""Pledgegate 08": a reply to Matthew Hooton" > policy.net.nz: "Pledgegate 08: Dean Knight misses the point" > LAWS179: "'Pledgegate 08': a storm in a pamphlet?" > policy.net.nz: "Pledgegate 08: Labour stealing from taxpayer again

At the risk of extending the debate and discussion, Matthew Hooton has replied to my reply. See his comments to his second post. The relevant two bits are hear:

1) I am sure that great care was taken to ensure the document complies with the absolute letter of the law. This is exactly what the Exclusive Brethren did. We were told that their actions were so evil that the law needed to be changed - and that the “law of common sense” would have to apply. By any common sense test, this document is blatant electioneering, especially given who developed it, and the timing of it being issued, and to whom. It is therefore an effort to “rort” the system, using the definition of “rort” Labour and its Axis partners used during the EFA debate - an attempt to get around the spirit and intend of the law by complying exactly with its letter. ... 3) Sure. I disagree and side with the vast majority on this point. It seems to me the law was written to ban everything and then for the authorities to have discretion not to prosecute. That’s bad law in my view. Parliament should speak clearly, especially when democratic and free-speech rights are involved

For what it's worth, my reply - I think - picks up on some the generic issue of the "law of common sense" and more importantly the way in which we regulate behaviour. See below.

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Matthew: I won't continue online with points 2-4; that's not to concede them but we won't persuade each other on them. But I do have a brief response on point 1, and the "law of common sense". What's actually being referred to there is enforcement discretion. And it only works down, not up. Let me explain. It's a generic point about the connection between law--discretion. When one draft rules, they are typically drafted broadly to set the outer limits of proscription. Eg. Don't jay-walk across a road. But we know that absolute enforcement of that rule is sometimes daft. There are two ways to try and address that: (1) delineate exceptions to exclude the conduct we're not concerned about; or (2) leave the over-broad rules to be dealt with by enforcement discretion or judicial discretion based on the case-by-case wickedness or mischief the prohibition seeks to address. Eg, (1), an exception could be drafted to say that it's not illegal to jay-walk if there are no cars within 25m. Or (2), we could leave it to police officers / courts to decide when the jay-walking is dangerous. Option (1) is theoretically preferable but usually difficult to achieve effectively and efficiently. Option (2) is more consistent with individual justice, but looks like over-kill and risks the inconsistent or malicious application of discretion. (On the latter point, see my critique of zero-tolerance, which demonstrates the absurdity of the rules being enforced all the time in every case: http://www.laws179.co.nz/2008/10/zero-tolerance.html) That's the law of common sense I believe was being suggested; the rules get interpreted and narrowed down in the light of their purpose. The difficulty with trying to read laws "up" to extend the prohibition beyond the text is that it offends the Rule of Law. Namely, people should be able to plan their lives in the light of the legal consequences that flow from the laws. Making illegal by extending the prohibition means people can't make informed decisions about whether or not they should engage in conduct. It's the same theoretical justification for opposing again retrospective criminalisation of conduct. Eg, it would be objectionable to prescribe a rule that says "don't jay-walk on roads", and to then say, well the purpose and mischief is similar when it comes to crossing railway lines, so we can prosecute a person for doing that under the same provision. It just isn't fair. The point, though, is that while reading laws "up" and extending them by reference to purpose is unfair, reading them "down" to exclude some innocuous conduct is not. That's consistent with existing practice, is down to the benefit of citizens, and is subject to other public law constraints which try to ensure consistency and fairness. I should add that this reading down is, of course, consistent with the practice of the courts under section 6 of the NZ Bill of Rights. The point is, as a matter of legislative drafting, Parliament knows that the courts will interpret legislation affecting freedom of speech, such as the EFA, as consistently with the freedom of expression as they can. They know it's not a case of the text being applied in the abstract; the text will be interpreted in the light of the NZ Bill of Rights, which - to the extent possible - will produce rights-consistent interpretations. This is why some legal technicians such as myself thinking many folk have been bringing an unrealistic, hyperbolic, doomsayer attitude to the EFA - the truth is the sky won't fall.