TID-BIT: Prison Privatisation Unlawful

From the wires, a very interesting decision from the High Court of Justice in Israel, ruling that the privatisation of prisons "severely violate[s] the prisoners' basic human rights to dignity and freedom". 

As far as I can see, the English version of the decision is not yet available on the Court's website, but there is a useful synposis and analysis on Yale's Comparative Administrative Law blog:

> CompAdminLaw: "Prison Privatization Judged Unconstitutional by the Supreme Court of Israel"

TID-BIT: Parliamentary Due Process

I'm presently attending ANU's Public Law Week-end entitled "Change":

http://law.anu.edu.au/CIPL/Conferences&SawerLecture/2009/2009_PLW_Program_Registration.pdf

It's always interesting to catch up on developments abroad and to see how other jurisdictions deal with common constitutional and administrative law problems.

In the keynote Geoffrey Sawer Lecture delivered by Professor Hugh Corder from the University of Cape Town (http://law.anu.edu.au/CIPL/Conferences&SawerLecture/2009/Sawer_Lecture09.pdf), there was an interesting discussion of a South African case from their Constitutional Court touching on parliamentary due process:

Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11 (http://www.saflii.org/za/cases/ZACC/2006/11.html)

In short. There's a provision in the constitution that one of the houses of Parliament, the National Council of Provinces, must be ensure that there is adequate public deliberation on Bills that it is considering.  In relation to some abortion reform legislation, the public hearings were patchy and inadequate.  As a result the Constitutional Court declared the legislation unconstitutional and invalidated it (on a deferred basis).  It's a touch more complex than that, but you get the basic gist! 

An interesting contrast, I think, to New Zealand's frenzy of unbridled urgency and its deleterious effect on public participation and engagement in the law-making.  The litigation does have its foundation in South Africa's very comprehensive constitution though.  Personally, I'm not convinced about the courts having power like this to intervene in the parliamentary process - I'd prefer that Parliament itself took more responsibility to ensure process deliberative democracy.  But food for thought at least.

Gangs, houses and rights

The High Court recently dismissed appeals by tenants of Housing NZ arising out of the termination (by notice) of their tenancies, in essence, because their partners were anti-social Mongrel Mob members.

> Winther & Ors v House New Zealand Corporation (09.10.2009, High Court, Wellington, Wild J, CIV-2009-485-1954)

The appellants tried to argue before the Tenancy Tribunal that the termination of their tenancies amounted to unlawful discrimination under the Bill of Rights and breached their right to free association. They said the notices to terminate should be quashed. They wanted to stay put.

But the High Court, in agreement with the Tenancy Tribunal and District Court below, ruled the Tribunal could not consider such a claim. In simple terms, they all said Housing NZ was to be treated no differently from a private landlord. Private landlords could terminate on 90 days notice without given reasons - the state agency was no different, even if it was subject to the Bill of Rights. Any complaints about unlawful discrimination were to be pursued through standard processes under the Residential Tenancies Act, which might led to (only) an award of damages. Justice Wild effectively said to consider the lawfulness of the (alleged discriminatory) reasons for the termination would be to engage in an irrelevant enquiry not mandated by the Act. He relied on pointers in the Act that suggested the ability to raise such concerns, and the ability of the Tribunal to consider them, was relatively circumscribed. Those other processes should be pursued. Or the actions of Housing NZ should be judicially reviewed.

I'm not convinced.

First, it is axiomatic that Housing NZ is in a different to a private landlord. It is a manifestation of the state and therefore is subject to additional obligations founded in public law and the Bill of Rights. This applies even when engaged in the assertion of private property rights. This was made clear in the Police v Beggs [1999] 3 NZLR 615, where a full bench of the High Court (including Wild J) ruled the Speaker's ability to issue trespass notices in relation to Parliament was circumscribed by their obligations under the Bill of Rights. That basic proposition was recently endorsed by the Court of Appeal in Bright v Police [2009] 3 NZLR 132 (leave to Supreme Court refused), where the ejection took place at a local authority meeting.

Secondly, in reality, the appellants were mounting a public law collateral challenge to the termination notice. For better or worse, our courts have generally been receptive to such challenges. The Rule of Law requires public bodies to act lawfully and the courts have been reticent to see people's ability to point to unlawfulness clouded by technical arguments about the proper place or process to raise these concerns. See Knight, "Ameliorating the Collateral Damage Caused by Collateral Attack in Administrative Law (2006) 4 NZJPIL"

Thirdly, against this backdrop, I think a more aggressive interpretation of whether the Residential Tenancies Act allowed the ventilation of breaches of this important public law obligation is required. Section 6 of the Bill of Rights demands this. I've not convinced that the Residential Tenancies Act processes and jurisdictions necessarily exclude the consideration of such a claim. Sure, there are indications in the Act that such claims are not the norm - but that's because the bulk of landlords will be private. Those provisions are, I think, capable of being read subject to a public law gloss in the case of state landlords, without violating the injunction in section 4 of the Bill of Rights. That's orthodox Bill of Rights interpretative methodology. But, regrettably, we don't see explicit reference to that methodology.

Anyways, a fascinating case that crosses the public--private divide. And worthy of further consideration by the Court of Appeal, even though I fear the appellants may have run out of steam by now...

Vetting of Bills - whose responsibility?

I was disappointed to read the follow passage in the Transport and Industrial Relations Committee's report on the Land Transport (Enforcement Powers) Amendment Bill:

New Zealand Bill of Rights issues Standing Order 261 (1) requires that whenever a bill contains any provision which appears to the Attorney-General to be inconsistent with any of the rights and freedoms contained in the New Zealand Bill of Rights Act 1990, the Attorney-General must indicate to the House what that provision is and how it appears to be inconsistent with the New Zealand Bill of Rights Act. We are aware of concern regarding property issues about vehicle impoundment; the reverse onus of proof in clause 6; and freedom of association, peaceful assembly,and movement. However, Crown Counsel advised the Attorney-General that there were no inconsistencies with the Act.

It's is regrettable that the member of the Select Committee have eschewed their own responsibility to vet the bill for Bill of Rights compliance. The summary adoption of Crown Counsel / Attorney advice is, in my view, inappropriate. It is for the Committee to deliberate on the potential rights breaches and the justification of any limitations on rights. It is notable that in the legal advice to the Attorney-General, Crown Counsel noted that particular aspects of their advice was "not wholly beyond dispute" and "not beyond argument". Especially in these cases, one might expect that the Committee to address the point and to provide reasoned analysis of their position - rather than simply adopting a lawyer's view as being determinative. Human rights judgement calls are as much a responsibility of politicians as they are for lawyers.

I am reminded of the remarks of the Court of Appeal in Boscawen v Attorney-General [2009] NZCA 12 about the contestability of the vetting process and the importance of transparent debate on Bill of Rights consistency:

Additionally, the public availability of the advice given to the Attorney-General means that both members of the public and Members of Parliament are able to challenge or support that advice in submissions made to the select committee considering the relevant Bill. This allows further contribution to and participation in the NZBORA debate during the legislative process. Where there are differing views on possible inconsistency with NZBORA rights and as to whether any limitations on any NZBORA right is justified in a free and democratic society, it is appropriate that those issues should be debated in Parliament. ... [O]pinions can legitimately vary on human rights issues, particularly on the issue of whether any limitations on rights are justified in a free and democratic society and on assessing the appropriate balance between rights and between rights and other values (such as privacy) where these may be apparently in conflict. We refer to one well known case, discussed in Rishworth and others The New Zealand Bill of Rights (2003) at 200 – 201, where Parliament effectively rejected the Attorney-General’s view. The Attorney-General reported to the House that a Bill providing for random breath-testing of motorists conflicted with the NZBORA. However Parliament took a different view, based on independent legal advice the select committee received from the President of the Legislation Advisory Committee, and passed the Bill on the basis that Attorney-General’s view was incorrect.

Perhaps it is time for New Zealand to consider adopting a specialist Bill of Rights vetting Select Committee, like the United Kingdom (see their Joint Committee on Human Rights). This would empower MPs to form their own judgements on Bill of Rights consistency, develop greater expertise in Bill of Rights matters generally, and better encourage MPs to challenge the singular view of the Executive about Bill of Rights consistency.

Standards of Review: Canadian-Style Deference and Lessons For The Antipodes

Tomorrow I depart for a 6 week trip abroad, courtesy of the Canadian Government (in particular, their Canadian Studies programme), to think about, chew the fat about, and write about some Canadian administrative law. Below is the project summary. More about the substance and progress when I'm over there and I've got my head around it...

- - - - - - - -

"Standards of Review: Canadian-Style Deference and Lessons For The Antipodes"

Judicial review is the main formal mechanism within Anglo-Commonwealth constitutional systems for providing "checks and balances" on administrative decision-making. Central to the operation and effectiveness of this accountability mechanism is notion of the "intensity" adopted – or in inverse Canadian parlance, "deference" applied – by the courts when reviewing or scrutinising the decisions of public bodies and officials. The question of the appropriate degree of intensity or deference is coloured by two equally important competing values. On the one hand, the courts strive to be vigilant, in order to protect the rights and interest of citizens and to uphold the Rule of Law. On the other hand, the courts also recognise the need to exercise restraint, in order to respect the constitutional allocation of power by the legislature to public bodies and officials, and to acknowledge the limits of the judicial function and procedure when reviewing the decisions and judgements made by those public bodies and officials.1 Judicial methodology or the common law doctrines applied by the courts therefore represent a mediated equilibrium or compromise between those two competing tensions.

English, New Zealand and Australian courts have traditionally given effect to this vigilance–restraint equilibrium by applying developed grounds of review which contain prescribed degrees of intensity or deference. For example, when reviewing a legality of administration under the "lawfulness" or "illegality" ground of review, the courts apply absolute vigilance and are entitled to intervene if any legal error is found.2 In contrast, when reviewing the "merits" of a decision (that is, the overall robustness of the decision, any factual findings made, the weight given to different factors, or the reasoning on which it is based), the courts are only entitled to intervene in cases where the decision is manifestly unreasonable.

In contrast, Canadian courts have for many years applied a framework where the vigilance–restraint equilibrium is settled on a case-by-case basis based on the circumstances of particular cases. Initially adopted under the "pragmatic and functional" framework3 – more recently, re-branded a "standards of review" analysis4 – the Canadian courts calibrate the degree of deference or intensity of review under a universal system based on different standards (not grounds) of review.5

The difference between the competing approaches has begun to narrow as the English, New Zealand and Australian courts have become to question the propriety of rigid grounds of review with defined degrees of deference. For example, in England and New Zealand, the courts now accept that, when reviewing the merits of a decision, the degree of unreasonableness required to justify judicial intervention may vary in the circumstances (although the precise methodology to be adopted has yet to be definitely settled).6

This year, however, the Canadian courts modified their standards of review approach,7 in the light of many years of experience and following some criticism of the regime.8 Although the basic framework was retained, the Supreme Court of Canada directed a new approach to the assessment of the reasonableness of the administrative decision under review (that is, collapsing the distinction between patent unreasonableness and reasonableness simpliciter and replacing it with a unified, but context-specific, reasonableness standard).

The purpose of the proposed project is to analyse and critique the unique features of the Canadian regime and recent developments, particularly the concerns that led to the recent change to the regime and the practical experience under the modified regime. It is proposed to undertake this analysis from a comparative perspective, that is, relating the Canadian practice and experience to the more fledgling New Zealand approach to intensity and standards of review. This comparative study will contribute to a broader project assessing whether New Zealand should adopt a formal standards of review framework and, if so, what type of standards should be adopted.9

1 See for example Michael Fordham "Surveying the Grounds: Key Themes in Judicial Intervention" in Peter Leyland and Terry Woods (eds) Administrative Law Facing the Future: Old Constraints and New Horizons (Blackstone Press, London, 1997).
2 Dean R Knight "Simple, Fair, Discretionary Administrative Law" (2007) VUWLR 91 and Michael Taggart "Administrative Law" [2006] NZ Law Rev 75.
3 CUPE, Local 963 v New Brunswick Liquor Corporation [1979] 2 SCR 227 and Canada (Director of Investigation & Research) v Southam Inc [1997] 1 SCR 748. 4 Dunsmuir v New Brunswick (2008) SCC 9.
5 See for example David Phillips Jones and Anne S de Villars Principles of Administrative Law (4 ed, Thomson Carswell, Scarborough, 2004); David J Mullan "Establishing the Standard of Review: The Struggle for Complexity?" (2004) 17 Canadian Journal of Administrative Law and Practice 59; Philip Bryden "Understanding the Standard of Review in Administrative Law" (2005) 54 Uni New Brun LJ 75; Audrey Macklin "Standard of Review: The Pragmatic and Functional Test" in Colleen M Flood and Lorne Sossin (eds) Administrative Law in Context (Edmond Montgomery Publications, Toronto, 2008) 197.
6 See for example Dean R Knight "A Murky Methodology: Standards of Review In Administrative Law" [2008] 6 NZJPIL 117 and Michael Taggart "Proportionality, Deference, Wednesbury" in Judicial Review (New Zealand Law Society, Wellington, 2007) (New Zealand); Andrew Le Sueur, "The Rise and Ruin of Unreasonableness?" [2005] 10 JR 32 (United Kingdom); Lisa Busch "Standards of Review of Administrative Decision-Making in Australian Public Law" [2006] JR 363 (Australia); 7 Dunsmuir v New Brunswick (2008) SCC 9.
8 Guy Régimbald "Correctness, Reasonableness, and Proportionality: A New Standard of Judicial Review" (2005) 31 Man LJ 239; and Toronto (City) v CUPE, Local 79 [2003] SCC 63.
9 For my initial work on this broader project, see Dean R Knight, "Dunne v Canwest TVWorks Ltd: Enhancing or Undermining the Democratic and Constitutional Balance?" (2005) 21 NZULR 711, Dean R Knight "A Murky Methodology: Standards of Review In Administrative Law" [2008] 6 NZJPIL 117, and Dean R Knight, "Standards of Review in Administrative Law" (Seminar for Crown Law Office, Wellington, September 2008).

Loss of a great scholar and friend

Ka hinga te totara o te wao nui a tane.

With the passing of Mike Taggart due to illness yesterday, the NZ legal academy has lost one of its finest and most generous legal scholars.

Below is a copy of a painting (by Richard Taggart) presented to Mike to mark his retirement from Auckland Law School last year. It epitomises Mike: a truly fine common lawyer, with incredible enthuthiasm and passion for what he did.

We will all very much miss him.

See also: > 15 Lambton Quay: "The death of a friend - Professor Mike Taggart" > Hart Publishing: "A Simple Common Lawyer"

New Zealand Order of Merit (Modernisation of Titular Titles) Bill

> New Zealand Order of Merit (Modernisation of Titular Titles) Bill Most folk reading this will know that, for quite some time, I have been lobbying publicly and on this blog for the reinstatement of titulars titles as part of the NZ Order of Merit. With this month's announcement of the re-designated Knights and Dames, part of that campaign has finally come to fruition. I understand there is soon to be a redesignation ceremony, from which point honorands will be able to use the appellations of Sir and Dame. But... my campaign was not merely about reinstating the titular titles of British origin. I also proposed that we allow equivalent Māori / Te Reo appellations, "Tā" and "Kahurangi" (or such other appellations as Māoridom support). It would, I think, have been a nice compromise in the polemic debate: a nod to our British heritage and a nod to our indigenous heritage. Anyway, I've now drafted a Member's Bill which would effect such a change. Also included in the proposed Bill are changes to a couple of the discriminatory elements of the Knightshoods and Damehoods. Honorands of both genders and their spouses should be treated the same - this Bill would ensure they are. This Bill is free to a good home - I'm happy for any MPs to pick it up and seek to have it progressed in the House. - - - - - - -

New Zealand Order of Merit (Modernisation of Titular Titles) Bill

Member's Bill

Explanatory Note

In March 2009, the New Zealand Order of Merit was changed to restore titular titles. That is, the recipients of the highest honours were redesignated Knights and Dames and are entitled to use the appellations of "Sir" and "Dame" before their names.

This Bill further amends the honours system to allow Knights and Dames to use a Te Reo Māori form of appellation, "Tā" and "Kahurangi", if they wish. This reinforces the indigenous nature of the Order and acknowledges that the honours system may evolve to reflect New Zealand's present-day culture. Further, the adoption of an explicitly indigenous appellation may mean some people may be more willing to accept the highest honours.

In addition, the Bill removes the following discriminatory elements of the titular titles and highest honours: - First, only men are entitled to be conferred with the Accolade of Knighthood (that is, the "dubbing" of shoulders with the ceremonial sword). - Secondly, only wives of Knights are entitled to the courtesy title "Lady". Husbands of Dames do not receive a courtesy title, nor do (opposite-sex or same-sex) civil union or de facto partners.

These elements are inconsistent with the prohibitions on gender, martial status and sexual orientation discrimination in the New Zealand Bill of Rights Act 1990. This Bill allows women to also receive the Accolade and to be "dubbed". It also removes courtesy titles for wives of any Knights, honoured after the date the Bill is passed (existing courtesy titles may continue to be used), so the spouses, civil union partners and de facto partners of Knights and Dames are all treated in the same manner.

____________________

[Member of Parliament]

New Zealand Order of Merit (Modernisation of Titular Titles) Bill Member's Bill

Contents 1 Title 2 Commencement 3 Purpose 4 Act to bind Crown 5 Te Reo Māori Titular Titles 6 Accolade of Knighthood 7 Removal of Courtesy Titles ____________________

The Parliament of New Zealand enacts as follows:

1 Title This Act is the New Zealand Order of Merit (Modernisation of Titular Titles) Bill 2009.

2 Commencement This Act comes into force on the day after the date on which it receives the Royal assent.

3 Purpose The purpose of this Act is: (a) to amend the Statutes of the New Zealand Order of Merit to provide for titular titles in Te Reo Māori, namely "Tā" and "Kahurangi"; (b) to remove discriminatory elements of the titular titles and highest honours.

4 Act to bind Crown This Act binds the Crown.

5 Te Reo Māori Titular Titles (1) Clause 20 of the Statutes of the New Zealand Order of Merit (SR 1996/205) is revoked and the following clause is substituted: "20. Ordinary and Additional members of the first and second levels of this Order may use the following appellations before their forenames from the date of their appointment:(a) in the case of a man of, "Sir" or "Tā"; and (b) in the case of a woman, "Dame" or "Kahurangi"." (2) Clauses 3(2)(c) and 4(2)(c) of the Additional Statutes of The New Zealand Order of Merit (2009/90) are amended by inserting after the word "Sir" wherever it appears, the words "or "Tā"". (3) Clauses 3(3)(b) and 4(3)(b) of the Additional Statutes of The New Zealand Order of Merit (2009/90) are amended by inserting after the word "Dame" wherever it appears, the words "or "Kahurangi"".

6 Accolade of Knighthood Clause 16 of the Statutes of the New Zealand Order of Merit (SR 1996/205) is revoked and the following clause is substituted: "16. It shall be competent for Our Chancellor of this Order to perform in Our Name, and on Our behalf, the ceremony of investing persons admitted to this Order with the insignia of their dignity and confer the Accolade of Knighthood on Knights Grand Companions, Dames Grand Companions, Knights Companions and Dames Companions if such Knights or Dames have not previously received the Accolade."

7 Removal of Courtesy Titles (1) Wives of Ordinary and Additional members admitted to the first and second levels of the New Zealand Order of Merit after the commencement of this Act are not entitled to used the courtesy title of "Lady" before their surname. (2) For the avoidance of doubt, wives of Ordinary and Additional members admitted to the first and second levels of the New Zealand Order of Merit before the commencement of this Act may continue to use before their surname (while it remains the same as that of their husband) the courtesy title of "Lady".

Ambach - is it really a provocation defence case?

> R v Ambach (10.07.2009, CRI-2007-004-027374) I see the High Court ruling on whether the defences of automatism (based on drunkeness) and provocation should be put to the jury is now available. I must say it is only a partial piece of the jigsaw. As I note in some comments I made on another website, reproduced below, we still can't be confident about the reason for the manslaughter verdict. The ruling corroborates this uncertainty. As automatism was in issue (albeit ruled out as being caused by a drug), it suggests the possibility of a lack of intent due to drunkeness was a very real issue. Although provocation was allowed, reading between the lines, there is some suggestion it was a weak case without a strong foundation. It will be interesting and important to consider the judge's reasons when she sentences Ambach soon. That might shed some light on whether it is another tragic provocation defence case. However, whether or not this case ultimately turned on provocation, the great dark clouds that hangs over these types of case may be a reason itself to support its abolition anyways. - - - - - I think we might need to take some care at this point about what we read into the Ambach-Brown. I share the concerns about the egregious way the provocation defence is deployed by the killers of gay men. And I am similarly frustrated that it's taken a high-profile case involving a heterosexual woman to trigger the abolition of a defence when gay groups have been lobbying for abolition for years. However, I'm not sure we can confidentally assume that Ambach's acquittal turned on provocation. As I read the reports, the case for provocation was quite tenuous and the judge instructed the jury accordingly. A manslaughter verdict may also have arisen from a lack on intent (due, I understand, to claims of intoxication). In some respects we won't know because a jury does not need to provide reasons for it's verdict. But it might be that some light is provided by the judge when she sentences Ambach shortly. That's not to take away from awfulness of the case or the provocation defence - but categorising is as a successful provocation case might be premature at this point.

Starter for.... 40 marks

It's still blogger-light for me. But with good reason. Although teaching has finished, I'm busy marking 300 legal opinions / assignments for Public Law! The assessment problem is no great secret (past exam questions and some other assessment is routinely made available). I thought some of you might be interested to see an example of how we test students' knowledge and skills. Below is the problem. And perhaps some of you might be interested in giving it a go yourself! You have 1,800 words!
Problem [Total: 40 marks]
In August 2009, the current government is a National-led government and is the same government that was constituted following the November 2008 general election. That is, the number of MPs elected for each party is as follows:
- National 58
- Labour 43
- Green 9
- ACT 5
- Māori 5
- Progressive 1
- United Future 1
- TOTAL 122
The National Party has confidence and supply arrangements with the ACT, Māori and United Future parties ([see http://www.parliament.nz/en-NZ/MPP/Parties/ for copies of the agreements]). You are a constitutional lawyer within the Department of Prime Minister and Cabinet. The Prime Minister, the Hon John Key, has asked you for various pieces of advice, at different times, on a number of the legal and constitutional issues arising from the events that follow. Provide the advice requested by the Prime Minister, giving reasons in support of your advice. You must presume that the advice you give the Prime Minister is based on the events up to the date on which the advice is requested.
Writing style and structure [5 marks] As noted above, your writing style and structure of your opinion, including compliance with the Style Guide will also be assessed.
On 4 August 2009, John Key announces that Cabinet has agreed to introduce the Land Transport (Boy Racer Eradication) Amendment Bill 2009 into Parliament and intends to pass the Bill under urgency before the end of the week. A copy of the Bill, as introduced by the Minister of Transport, the Hon Steven Joyce, on the same day, is attached. The New Zealand Law Society's Rule of Law committee immediately issues a media release indicating that it will be investigating the Bill because of concerns that the Bill is inconsistent with the Rule of Law.
Issue 1: 4 August 2009 [10 marks]
The Prime Minister seeks advice on whether or not the Land Transport (Boy Racer Eradication) Amendment Bill 2009 is consistent with the Rule of Law and, if not, the aspects of the Bill that are inconsistent with the Rule of Law.
On 5 August 2009, the Minister of Local Government, the Hon Rodney Hide (a Minister outside Cabinet), is interviewed by Mikey Havoc on his regular political show on 95bFM. In the course of the interview, Rodney Hide says the following:
 "HIDE: Oh, ACT is still working out whether we'll support the Bill or not. You know, ACT is tough on crime. We're pushing the "three strikes and you're out" Bill. We think the government has gone soft on this one. When this idea came to the Cabinet committee, I argued strongly that we should not just destroy the cars, but we should burn the cars in public. And as for the rapscallions who were driving the cars, we should put them on weeding duty along the roads where they were cruising. Put pink overalls on the rascals, like they do with the graffiti. That's what I reckon. That'll stomp out this anti-social behaviour. But this guy Joyce is a wimp and wouldn't have a bar of it. And that Finlayson chap kept spouting that human rights mumbo-jumbo. I reckon I could have turned Crusher Collins though. She's one of the few who warmed to this idea. But Sharples was concerned about the effect of the law on young Māori, particularly their economic wellbeing if these expensive cars are seized when they still owe lots to finance companies. And he was worried about their education and how they might get to school and wānanga if they lose their cars. And I'm not sure I like this idea of leaving it to the local authorities to choose which roads to designate as cruise-free zones. What a waste of time. More red tape. I've been working hard to cut rates for ratepayers and oppose any extra duties for local authorities. My idea was to cut out the local authorities and to make the offence apply to every road."
Issue 2: 5 August 2009 [5 marks]
The Prime Minister seeks advice, from a constitutional perspective, on what, if any, steps he is entitled to take or obliged to take in relation to the comments made by Rodney Hide on the 95bFM radio show.
The following day on 6 August 2009, the Bill is passed under urgency, with ACT ultimately agreeing to vote for the Bill after being given an assurance that in return the National Party would expedite ACT's Taxpayer Rights Bill. The Governor-General immediately assents to the Bill and it becomes law. Five months later, once local authorities have designated some roads as cruise-free roads, the Act starts to have an effect on boy racers. Over 100 vehicles are seized and destroyed. The Police report that nearly 40% of the vehicles destroyed are Toyota Corolla FXGT vehicles. The government then recommends to the Governor-General that a regulation be promulgated under section 9 of the new Act to prohibit the importation of Toyota Corolla FXGT vehicles.
On 7 January 2010, the Governor-General accedes to that advice and promulgates a regulation to that effect.
On 8 February 2010, a problem arises. Reports start to emerge that the Police have used the seizure and destruction power under the new Act to seize and destroy three politically branded Volkswagen cars owned by Māori Party MPs. The cars were driving repeatedly up and down Lambton Quay, covered in red and black balloons, celebrating the repeal of Foreshore and Seabed legislation.
A well-known left-wing blog alleges that the Minister of Police, the Hon Judith Collins, may have had a hand in the Police action and may have improperly directed the Police to target the Māori Party cars. As a result, Māori Party list and backbench MP, Hone Harawira, issues the following media statement:
"FESS UP OR RESIGN The illegal seizure of the cars by the Police is a scandal" says Hone Harawira. "Even if the cars were cruising down Lambton Quay, the seizure of the cars was unlawful because the cars were not owned by boy racers and did not meet the criteria for seizure and destruction under the Land Transport (Boy Racer Eradication) Amendment Act 2009." Harawira called on the Minister of Police to come clean about her involvement in the seizure. "The unlawful seizure suggests that there are rotten apples in Collins' police department. Or there is inappropriate influence coming from the Minister herself. She must resign. If she doesn't, the Prime Minister must dismiss her forthwith. If she doesn't go, the Māori Party will withdraw its support for the government."
On the same day, the Prime Minister is quizzed at his weekly press conference about the Māori Party threat to withdraw and says the threat is a hollow one:
"They'll stay on board. If they don't, we'll sue them for reneging on their contract with us."
That comment riles the Māori Party and it announces the withdrawal of its support for the government on matters of confidence and supply and the resignation of its ministerial positions.
Issue 3: 8 February 2010 [5 marks]
The Prime Minister seeks advice on whether, constitutionally, the Hon Judith Collins is obliged to resign or whether he is obliged to dismiss her. Further, he also seeks advice on the legal and/or constitutional implications of the Māori Party reneging on its confidence and supply agreement.
On 9 March 2010, on the back of a grim previous month, the government announces its Budget. Due to the recession, the Budget includes a reduction in funding for the Police. The Minister of Finance, the Hon Bill English, explains this on the radio:
"Each department needs to pull its weight and help us through the tough times. The police department is no different."
However, Rodney Hide is outraged. He says it's another example of the National Party being "all bark and no bite" on crime. In his speech on the first reading of one of the first budget Bills, the Appropriation (2010/11 Estimates) Bill, Rodney Hide announces the immediate withdraw of his party's support for the government on confidence and supply and the resignation of its ministerial positions.
A vote is then had on the first reading of the Appropriation Bill. The National and United Future parties vote for the Bill; the Labour, Green, ACT and Māori parties vote against the Bill; the Progressive party abstains from the vote.
Issue 4: 9 March 2010 [10 marks]
The Prime Minister seeks advice on the constitutional position following the vote in the House on 9 March 2010. The Prime Minister wants to know what his constitutional obligations are in this situation. Further, the Prime Minister wants to know what powers, if any, the Governor-General may exercise in these circumstances, along with advice about how the exercise of those powers or associated processes is constrained by constitutional convention.
On the next day, on 10 March 2010, the Labour leader, the Hon Phil Goff, announces that he believes the defection of the ACT party might mean he has the numbers to form an alternative government, if he can secure a deal with the ACT party. On the same day, international problems arise. The Japanese government, concerned at the regulation preventing its main car manufacturer from exporting its cars to New Zealand, announces that unless the regulation is revoked immediately, the Japanese government will impose a compulsory boycott of all dairy exports from New Zealand.
The next day, on 11 March 2010, the Labour Party leader publicly announces that he believes he has successfully garnered coalition agreements with the Green, ACT, Māori, and Progressive parties and, as a result, he is entitled to be appointed Prime Minister. He publicly releases the coalition agreements and says he will be asking the Governor-General to appoint him as Prime Minister at the first opportunity. However, as the Governor-General is conducting a ceremony conferring a knighthood on a local resident on the Chatham Islands, Phil Goff is not formally appointed and sworn in as new Prime Minister until the following day, 12 March 2010, once the Governor-General returns to Wellington.
Issue 5: 10 and 11 March 2010 [5 marks]
The Prime Minister seeks advice on whether it is lawful and/or constitutional for him to advise the Governor-General, either on 10 March 2010 or 11 March 2010, to revoke the regulations prohibiting the importation of Toyota Corolla FXGT vehicles.

- - - - - - - - - - - - -
Hon Steven Joyce Land Transport (Boy Racer Eradication) Amendment Bill 2009
Government Bill
The Parliament of New Zealand enacts as follows: 1 Title This Bill is the Land Transport (Boy Racer Eradication) Amendment Bill 2009. 2 Commencement This Bill comes into force on the day after the date on which it receives the Royal assent. 3 Purpose The purpose of this Bill is to: (a) authorise local authorities to designate certain roads as cruise-free roads; and (b) provide greater deterrence for anti-social boy racer behaviour by allowing vehicles driven by young boy racers to be crushed and destroyed. 4 Interpretation In this Bill, unless the context otherwise requires, cruise means driving repeatedly over the same section of a road in a vehicle in an anti-social manner designated cruise-free road means a road designated as a cruise-free zone under clause 6. 5 Offence to cruise on a designated cruise-free road (1) Every person commits an offence who cruises on a designated cruise-free road. (2) A person who commits an offence against subclause (1) is liable on summary conviction to a fine not exceeding $2,500. 6 Local authorities may designate roads as cruise-free roads (1) A local authority may, from time to time, by resolution designate any road within its district as a cruise-free road. (2) Before making a resolution under subclause (1), the local authority must: (a) give 3 month's public notice of its intention to designate the road as a cruise-free road; and (b) allow the public to make written submissions on whether the road should be designated as a cruise-free road. (3) Once a resolution is passed, the relevant road is deemed to have been designated as a cruise-free road from the date of the public notice given under subclause (2)(a). 7 Police may seize and destroy vehicles driven on a cruise-free road (1) A constable may seize and direct that a vehicle be destroyed, without further order of the Court, if the following conditions are all satisfied: (a) the vehicle is used in the commission of an offence under clause 5 (cruise on a designated cruise-free road); and (b) the car is operated by a male driver under the age of 25; and (c) the constable believes that the destruction of the vehicle may discourage the driver from engaging in cruising and other anti-social behaviour in the future. 8 Protection against certain actions Where a constable, in good faith, directs that a vehicle be destroyed under clause 7, no proceedings, civil or criminal, shall lie against the Crown, the constable, or any other person in respect of the destruction of the vehicle, or for any consequences that flow from the destruction of the vehicle. 9 Regulations (1) The Governor-General may, from time to time, by Order in Council, make regulations prohibiting the importation of any specified class or classes of vehicles if that class or those classes of vehicles are disproportionality used in the commission of offences under clause 5. (2) Any regulation made under subclause (1) may, from time to time, by Order in Council, be varied or revoked.

Judges and penal policy

QUESTION: If the Minister of Justice and government think that judges' singular role is to apply the law enacted by Parliament and they should not contribute to the debate on appropriate penal policy and the criminal justice system, why then did the government invite 6 judges (Judge Becroft, Judge Bidois, Judge Carruthers, Judge Clark, Judge Johnson, Judge Rota) to participate in the government's "Drivers of Crime" ministerial summit? > MinJust "Drivers of Crime: Ministerial Meeting"

"Blameless Babes"

I'm not suprised the Chief Justice's Shirley Smith address from last week is attracting quite some media attention: > NZHerald: "Govt rules out prison amnesties to ease overcrowding " > Stuff: "Top-judge-suggests-prison-amnesty" Having attended the lecture, I must say it the address was, as you would expect, carefully crafted and robust. It did contain some provocative comments and ideas (particularly from the most senior member of the judiciary). But I - and, it seems, many of the audience - were generally supportive of those comments and ideas. I think the remarks were also quite timely and a counter-balance to monopolisation of this topic by the Sensible ST etc. But assess the remarks yourself. They're now available online: > Chief Justice Dame Sian Elias, "Blameless Babes"

"Intensity of anxiety"

Some folk will know that I'm presently working on a project proposing the adoption of different standards of review in judicial review. That is, a framework for the courts to calibrate the balance drawn between the counterveiling values of vigilance and restraint in any particular case. (See for example Dean R Knight "A Murky Methodology: Standards of Review in Administrative Law" in Claudia Geiringer and Dean R Knight (eds) Seeing the World Whole: Essays in Honour of Sir Kenneth Keith (Victoria University Press, Wellington, 2008) 180) In my project, I noted that our highest court has been reluctant to express a firm view on the intensity question, even though some of the lower courts have adopted it. And there were some hints that they weren't that excited by the idea anyway. Well, have a look at this exchange earlier this year in the Supreme Court. It perhaps suggests that many of the Court do not agree there is any need for structuring judicial discretion in this area: > Ye v Minister of Immigration SC 53/2008 (Transcript, 21-23 April 2009)

MR BASSETT: Through no fault of the children obviously, the same point. If I now can move just to the question of intensity of review, my submission is that this case could have been, and still can be, decided on the application of orthodox judicial review principles, however it is my submission that a hard look approach or a heightened level of intensity of review is nevertheless appropriate in a case such as this, notwithstanding that on a straightforward Wednesbury analysis, Mr Zhou’s actions are unreasonable and irrational in the administrative law sense. Justice Glazebrook at paragraph 303 referred to this case as being one which involved fundamental human rights of children and accordingly, she was of the view that this is a case where the Court should apply a standard of anxious scrutiny. I’d just like to make one or two brief comments about intensity of review which Your Honours will all be familiar with, but the basic proposition is that the level of intensity depends upon the nature of the right being interfered with by the decision making process and that the more fundamental the right, the higher the intensity of review and in this case, the right at issue is the right of a child to be looked after by its natural parents which, in my submission, is an important right and just a matter of basic humanity, even though it’s not a right protected by the New Zealand Bill of Rights Act 1990. TIPPING J: I would hope I would always have a hard look, the question is more, isn’t it, to the standard to which you hold the decision making? I don’t think it’s going to matter much in this case, but honestly, I can’t resist the temptation because you obviously have a good grip of this Mr Bassett, to put it to you that the degree of hardness of the look, I wouldn’t have thought was the point, it was the degree of the standard to which, in other words, it’s almost like degrees of reasonableness, the more fundamental the right, the more reasonable the decision must be. The idea that you look at it more closely, I’ve never found very helpful. ELIAS CJ: I don’t know that degrees of reasonableness help either. TIPPING J: No. ELIAS CJ: It’s just, it’s got to be contextual. What is reasonable takes its colour from the context. Really, there’s so much dancing around on the heads of pins in this area. MR BASSETT: I think the lingo, if you like, Your Honour, is a question of deference, less deference where the rights are more fundamental and more deference where it’s – ELIAS CJ: That’s a dreadful word. TIPPING J: It’s a controversial word. I understand the concept, you’re more exacting, if you like, the more fundamental – it’s a more exacting test, or – ANDERSON J: It connotes the extent to which a Court’s prepared to interfere. TIPPING J: Yes. ANDERSON J: However you describe it. TIPPING J: And the Court must interfere where it must. TIPPING J: You either feel driven to interfere or you don’t, and that will depend on what sort of a right it is and what the whole shebang is, I think this is a – ANDERSON J: It’s really intensity of anxiety. MR BASSETT: As has just been commented, the reason it’s being raised Your Honours is because Justice Chambers and Justice Robertson in the Court of Appeal said that, and indeed Justice Chambers in Huang said that the intensity would be light, to use that adjective, and I think that that – the lightness of review or the lightness of intensity is to some extent bound up with the fact that they, in Huang, let section 47(3) occupy the field, if you like. As I understand it, the Court appears to be taking a different view. TIPPING J: Please don’t think I’m personally being critical of you at all, I think it’s very important that you’ve raised it, but I’m just saying, I, together with I think the Chief Justice, I think there’s a lot of nonsense talked in this area and it’s unhelpful to start trying these adjectival or adverbial adornments of the sort of review you’re undertaking. MR BASSETT: Well perhaps, if you ask me the reason why I’m raising it – ANDERSON J: We can see why you’re raising it. TIPPING J: We can understand it, I can understand why. McGRATH J: It was a ground, it was specified in the grounds, and no one’s blaming you for it. TIPPING J: Yes, no one’s blaming you for one moment, we’re just – if you can shed some further light on this, but it really does seem to be a more semantic issue that in the end, you interfere if you think you should.

I know the last of remark of Tipping J has some pedigree ("whether something had gone wrong of a nature and degree which required the intervention of the court"; see R v Panel on Take-overs and Mergers, ex parte Guinness plc [1989] 1 All ER 509, 513 (CA) Lord Donaldson, endorsed on a couple of occasions by Lord Cooke).

But try teaching that to public law students at law school: judges overturn administrative decisions when they think they should! Well, at least, if that is the test, we can probably then dispense with the remaining 11 weeks of the 12 week judicial review course...

TID-BIT: Political adverts, expressive modes and the freedom of expression

An interesting - and, I think, robust - decision from the Supreme Court of Canada over the weekend. A successful challenge to a ban on political advertising (incl a students association "Rock the Vote" campaign) on public buses. > Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31 It's particularly interesting to see the Court's analysis of whether private expression on governmental location was protected. In concluding it was, the Court asked whether the public place was one where it was expected free expression would be constitutionally protected; in doing so, it looked at "the historical or actual function of the place" and "whether other aspects of the place suggest that expression within it would undermine the values underlying free expression". Unsurprisingly, they found expression of buses should be protected, particularly as "expression on the sides of buses could enhance them by furthering democratic discourse, and perhaps even truth finding and self‑fulfillment". They also ruled a total ban on political and other advocacy advertising was unreasonable and disproportionate with the desire to create a safe, welcoming public transit system ("Citizens, including bus riders, are expected to put up with some controversy in a free and democratic society"). As the Court put it, "the policies amount to a blanket exclusion of a highly valued form of expression in a public location that serves as an important place for public discourse." But, most importantly, I think the case is a salient reminder to local authorities here, such as the Wellington City Council who last year banned political bill-stickering on the Council assets and poster bollards within the CBD during the election campaign: > LAWS179: "Bill-stickering and the Wellington City Council > LAWS179: "Vote with Eyes Wide Open, Wellington City, and Phantom Billstickers"

Boobs on Bikes, Bylaws and the Bill of Rights

You might have realised that I'm on light blogging duties at the moment. It's the peak of teaching for the year, which is quite unfortunate given all the fascinating public and constitutional law issues floating around at the moment

And, the light blogging is also because I'm been working on some more substantive research. One of these projects is a paper and presention to the LexisNexis Local Government Legal Forum in Auckland last week on the Boobs on Bikes parade and unsuccessful injunction:

> Dean R Knight "Boobs on Bikes, Bylaws and the Bill of Rights" (Working Paper presented to LexisNexis Local Government Legal Forum, Auckland, May 2009).

As usual, comments and feedback welcomed.

Dissenting views of the Minister of Māori Affairs on greater Auckland Council Māori seats - a breach of Cabinet collective responsibility?

> RadioNZ: "Government scraps Maori seats for super-city" > Stuff: "Supercity to exclude Maori representation" Speaking on Radio New Zealand National today, Minister Pita Sharples is understandably upset that the government has rejected the Royal Commission's recommendation for mandated Māori representatives on the super Auckland Council. But, he's forgotten one thing: it's his government. And, significantly, he is bound under the principles of collective responsibility expressed in the Cabinet Manual to publicly support that government's decision. Speaking out today, as a Minister of the Crown, is a breach of the Cabinet Manual and the constitutional convention of unanimity that applies to decisions of Cabinet. Importantly, the "agree to disagree" provisions of the Māori Party's confidence and supply arrangement do not excuse his dissent. Let me explain: 1. The constitutional convention of collective responsibility applies to decisions made by Cabinet (Cabinet Manual 2008):

Collective responsibility and Ministers 5.22 The principle of collective responsibility underpins the system of Cabinet government. It reflects democratic principle: the House expresses its confidence in the collective whole of government, rather than in individual Ministers. Similarly, the Governor-General, in acting on ministerial advice, needs to be confident that individual Ministers represent official government policy. In all areas of their work, therefore, Ministers represent and implement government policy. 5.23 Acceptance of ministerial office means accepting collective responsibility. Issues are often debated vigorously within the confidential setting of Cabinet meetings, although consensus is usually reached and votes are rarely taken. Once Cabinet makes a decision, Ministers must support it (except as provided in paragraphs 5.25 - 5.27), regardless of their personal views and whether or not they were at the meeting concerned

2. To avoid any doubt, collective Cabinet responsibility applies to Ministers outside Cabinet (Cabinet Manual 2008):

2.27 Ministers outside Cabinet have full legal powers as Ministers, and may be appointed to full portfolios. They have the same role, duties, and responsibilities as Ministers inside Cabinet, and are also bound by the principle of collective responsibility. (See paragraphs 5.22 - 5.28.) They do not attend Cabinet, but, with the agreement of the Prime Minister, may attend for particular items relating to their portfolio interests. They are usually members of one or more committees, attending other committees where relevant.

3. The only exception to this principle is "agree to disagree" regime implemented in the recent era of coalition government. The exception is, however, narrow and is not a blank cheque for Ministers from coalition parties to dissent at will (Cabinet Manual 2008):

5.25 Coalition governments may also decide to establish "agree to disagree" processes, which may allow Ministers within the coalition to maintain, in public, different party positions on particular issues or policies. Once the final outcome of any "agree to disagree" issue or policy has been determined (either at the Cabinet level or through some other agreed process), Ministers must implement the resulting decision or legislation, regardless of their position throughout the decision-making process. 5.26 "Agree to disagree" processes may only be used in relation to different party positions within a coalition. Any public dissociation from Cabinet decisions by individual Ministers outside the agreed processes is unacceptable. 5.27 Ministers outside Cabinet from parliamentary parties supporting the government may be bound by collective responsibility only in relation to their particular portfolios. Under these arrangements, when such Ministers speak about issues within their portfolios, they speak for the government and as part of the government. When they speak about matters outside their portfolios, however, they may speak as political party leaders or members of Parliament rather than as Ministers, and do not necessarily represent the government position. When such Ministers represent the government internationally, they speak for the government on all issues that foreign governments may raise with them in their capacity as Ministers.

4. The Maori Party and the National Party have adopted "agree to disagree" processes in their confidence and supply agreement (Relationship and Confidence and Supply Agreement between the National Party and the Māori Party):

Collective Responsibility The Māori Party agree to be bound by collective responsibility in relation to their Ministerial portfolios and their Associate Minister responsibilities. When the Māori Party Ministers speak about issues within their portfolios and Associate Minister responsibilities, they will speak for the government and as part of the government, representing the government’s position in relation to these responsibilities. When they speak about matters outside these responsibilities, however, they speak as the Co-Leaders of the Māori Party or as members of Parliament. The “agree to disagree” provisions apply as necessary. They will support the government’s position on all matters that are the subject of confidence and supply votes.

5. While the Maori Party and ministers from the Māori Party may be entitled to adopt different party positions on matters that are not matters of confidence and supply, ministerial dissent on matters within portfolios is expressly excluded. 6. In my view, the issue of Māori representation on the super Auckland Council is a matter which falls within Pita Sharples' Māori Affairs portfolio, for a number of reasons: (a) First, he said on the radio it did. He said he raised the issue in his capacity as Minister of Māori Affairs:

I have voiced my displeasure at the taking away of those seats. And I've done so as the Minister of Māori Affairs because I have a responsibility to represent the views of Māori people, and Auckland Maori including the mana whenua have made that very clear to me.

(b) Secondly, although the super Auckland Council proposal is principally being promoted by the Minister of Local Government, it's fair to say the question of Maori representation falls squarely within the rubric of "Māori Affairs". By defintion, the portfolio is panoptic (cf many commentators conceptualisation of the Foreign Affairs portfolio when agree to disagee issues arose during the term of the previous government).

(c) Thirdly. the Minister's own Ministry states that such matters fall within its responsibility. In its statement of the portfolio responsibilities provided by Te Puni Kokiri to the Minister of Māori Affairs, amongst other things, it notes that "managing and advising on Crown-Māori relationships at the national and local level" as one of the Ministry's "core functions". (d) Fourthly, the Minister of Māori Affairs is charged with some express, albeit indirect, statutory responsibility in relation to the reorganisation of local authorities and governance arrangements. Under section 33(2) of the Local Government Act 2002, one member of the Local Government Commission (which is the body responsible for these matters) is appointed by the Minister of Local Government only after consultation with the Minister of Māori Affairs.

There may be other indicia that support this view. I recognise, thouhg, that some might argue the portfolio responsibilities could be drawn narrower. But I think that's gilding the lily somewhat, especially as the Minister himself has admitted that it falls within his portfolio responsibilities. The upshot of this is that Pita Sharples, as Minister of Māori Affairs, has expressed dissent on a matter within the rubric of his portfolio, in breach of the agree to disagree provisions and the Cabinet Manual. Further, the Minister was quite candid in recounting discussions he had with the Prime Minister and Minister of Local Government about the matter. Again, very problematic. Teamed with the "unanimity" limb of the principle collective responsibility is the "confidentiality" limb of the same principle. Although the Cabinet Manual provisions are aimed at confidentially about Cabinet discussions, the reality of the present arrangements probably means it extends more broadly to cover similar discussions between Ministers. In any event, this is expressly reinforced by the Māori Party's confidence and supply arrangement (Relationship and Confidence and Supply Agreement between the National Party and the Māori Party):

Confidentiality It is agreed that where briefings are provided to the Māori Party, or where the Maori Party is involved in a consultative arrangement with regard to legislation, policy or budgetary matters, all such discussions shall be confidential unless otherwise agreed.

Disclosure of those discussions would therefore seem to breach that commitment and amount to a breach of the confidence and supply agreement. Now, I have some sympathy for Pita Sharples - the summary rejection of Māori representation seems reactionary and rank. And I don't quibble with the belief that the Māori Party representatives need to champion the views of Māori on this issue. But, the role of minister comes - along with power - with responsibility and constraints; the most notable constraint is collective responsibility. The Māori Party bought into these obligations when they accepted the Ministerial warrants. If they want to operate as an opposition party and be free to criticise and condemn government initiatives as they relate to Māori, then perhaps they ought not to have accepted the responsibilities of office. And as a final note, I believe the Prime Minister has previously indicated he would hold his Ministers to a higher standard and would not tolerate breaches of the Cabinet Manual. Does this mean the Prime Minister is now obliged to ask Pita Sharples to resign as Minister of Māori Affairs?

Parliament and the Bill of Rights - a blasé attitude?

Like most, I'm someone who believes in the importance of human rights. However, as will be aware from previous postings, I also believe that many rights issues - particularly questions about whether a purported breaches of a rights are "demonstrably justified in a free and democratic society" - are complex and they benefit from ventilation in the parliamentary arena. I'm sceptical of those who rush to the courts, seeking the judiciary intervene to address some purported rights violation when the issue is something on which reasonable people within free and democratic societies can differ on. In such cases, I prefer the deliberation about the definition of rights and permissible limits to be undertaken by our elected representatives. The value judgements involved in such deliberations benefit from a democratic mandate, the diversity that representatives bodies bring to the table, and the public engagement that can be brought to an issue. It follows, then, that in such cases, I think our courts should apply a strong degree of deference - a generous margin of appreciation - to the outcome of democratic deliberations on those rights issues. But. And a big but. Any deference in this area must be earned. Parliament must, I believe, genuinely engage with the rights at stake and the proportionality calculus set by section 5 of the Bill of Rights before the courts ought to exercise restraint. (As an aside, I think this is where the Attorney-General and CLO misfired on the EFA analysis. Judicial deference was automatically factored into the section 7 analysis, with the advisors noting that, on the policy issues involved, the courts were likely to accord a reasonable margin of appreciation to the judgements made. But I say that was premature. The report ought to have identified the need for Parliament to grapple with the isssues. If grappled with genuinely, then - and only then - would the courts accord deference to the product. An "orange" light. Not a "green" light!) Perfunctory analysis or unduly expedited process are examples of Parliament not taking rights seriously. And this is seemingly becoming more common. My colleague, Claudia Geiringer, has an excellent post on last week's incident - which I thoroughly commend: > 15LQ: "Urgency, Parliament and the Bill of Rights – time for a cup of tea, guys?" I fear that if the present trend continues and Parliament continues to treat rights with summary disdain, institutional comity will come under pressure. The courts will feel obliged to exercise greater vigilance about rights. More aggressive interpretations will be adopted. Less deference will be accorded to the product of the parliamentary process. In short, disparagement of rights and the adoption of a blasé attitude to rights will, I think, come and bite our elected representatives. At the end of the day, though, the destiny of the human rights endeavour in the hands of Parliament...

Tid-bit: Magna what?

> Gregory v Gollan [2009] NZSC 29 An interesting tid-bit embedded in a decision on a leave application issued by the Supreme Court today:

Mr Henry, for the applicant, has asserted that there is a constitutional dimension to the case. He argues that Magna Carta 1297 (Imp) gives his client a right to a jury trial. But, even if it were accepted that c29 of Magna Carta extended to jury trials in civil proceedings, the matter is now covered by New Zealand legislation which makes it clear that proceedings are to be tried by Judge alone unless the Court exercises its discretion to order trial by jury. Any operation Magna Carta may once have had in relation to civil proceedings has now been plainly displaced by s 19A [of the Judicature Act 1908]. [FN: See David Clark, The Icon of Liberty: The Status and Role of Magna Carta in Australian and New Zealand Law (2000) 24 Melb. U.L. Rev 866 at p 883-884.]

New blog: 15 Lambton Quay

Folks A quick post to let you know about a new blog: http://www.15lambtonquay.blogspot.com/ A group of my colleagues - largely from the Law School, but including some further afield - will post notes on law, policy, and government. I'll be providing the occasional cross post but will continue to run with the elephants too...

Yes, Sir?

> Beehive: "Titular Honours to be reinstated" > LAWS179: "New Zealand Order of Merit: Restoring Titular Titles" > LAWS179: "New Zealand Order of Merit (Titular Titles) Bill" > LAWS179: "New Zealand Order of Merit (Titular Titles) Bill: My New Year Honours List" > LAWS179: "Queen's Birthday Honours" > LAWS179: "New Zealand Order of Merit: new Knighthoods and Damehoods" Wahoo! Success. Or sort of. The government has announced the reinstatement of titular titles with a return to Knighthoods and Damehoods. But, no mention of allowing indigneous Te Reo equivalents, such as (on a working basis) Tā or Kahurangi That's a shame. My draft Bill would have allowed that. I think it works as a nice nod to our shared heritage, traditions, cultures. Honouring the past, while still grounding the practice in our local context.

Section 92A: Shades of Grey

Given the state of my brethren blogs, I am reluctantly forced to state my views on this debate. And I do so saying that my views are somewhat raw and ambivalent. First, I'm someone who supports the protection of human rights and due process being observed. I therefore have some sympathy for a cause which is opposing a measure on the basis that it is "guilt by accusation". But, secondly, I'm not convinced the section is nearly as grave as is being claimed and am worried that this campaign is a faux protest. As part of a broader package addressing (removing?) ISP liability for copyright, section 92A requires ISPs to terminate connections of repeat copyright infringers:

92A Internet service provider must have policy for terminating accounts of repeat infringers (1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.

Ok. That makes sense. We have a copyright regime, which makes illegal to infringe copyright in some circumstances. Section 92A requires those who are partly complicit in breaches to honour and enforce those rules. Some might argue the Rule of Law requires the enforcement of the law. Does section 92A amount to guilt by accusation? Not really. It's not the most elegant drafting but it seems to me that the power to terminate can only properly be exercised where repeat infringement has been estalished. First, there is only the jurisdiction to terminate where copyright has been infringed unlawfully - if ISPs terminate where that is not the case, then they are exercising ultra vires this power. (And, it's likel that that relatively "hard-edged" judgement will be scrutinised carefully by any reviewing court or authority, if it got to that point.) Secondly, the section makes it clear that termination is only permissible "in appropriate circumstances". There's no flesh on that but it seems reasonable to expect that: (a) terminating where there is a genuinely disputed infringement clearly wouldn't be appropriate; (b) even if there has been repeat infringement, some compelling circumstances mean termination won't be the proper approach. (Those of us working in the state sector are used to terms like "appropriate" and "reasonable"; these terms allow for the flexible, case-by-case evaluation of circumstances, rather than the rigid application of fixed rules which often bring injustice.) And, a draft industry Code has been prepared. Amongst other things, it explicitly states that disputed breaches cannot form the basis of any of the 3 strikes (within 18 months) and you're out regime. It's legitimate, I think, to have regard to this when assessing the impact of the regime. Remember, we have regimes which are entirely self-regulatory (eg Press Council). Let's judge the regime holistically. As a drafting approach, I might have preferred that the Code be adopted in the form of binding regulations or that the Act itself provide some guiding principles about the reach and application of section 92A. But is the present law, as it is likely to be applied, a breach of people's human rights or due process rights? I'm not convinced it is. We're not dealing with the imposition of criminal sanctions. And the operation of the regime looks likely to be more circumscribed than the opponents suggest. Hence, I'm not blacked out. I reiterate my views are still in a state of genesis - and I'm open to persuasion. But from the research and thinking I'm done so far, I need some compelling arguments provided the other way. Oh. "Faux" protest? Why do I think that? It don't think this is really about the section 92A enforcement mechanism. I think the real cause for the complaint from the opponents is a fundamental atheism about copyright. They don't believe in copyright. I'm not a copyright guru. I'm happy to have the debate about whether those copyright concepts continue to be appropriate. But that's not the marquee message of this campaign. It's complaint is the about the method of enforcing those rules.

Judges' salaries and pay freezes

> TV3: "MPs pass motion asking for no pay rise" I was surprised, once again, to see the Prime Minister advocating that judges be subject to a pay freeze:

"Mr Key has already written to the Remuneration Authority, which sets MPs' pay, asking it not to award a pay rise this year. He also said he understood Governor-General Anand Satyanand was writing to the authority requesting no pay rise, "so I'm sure judges and the like will also take a similar view"."

I think the move borders on being unconstitutional, either by failing to accord judges a pay increase they are entitled to or for a member of the Executive to publicly champion that course of action.

Financial security of the judiciary is important element of the fundamental principle of judicial independence. As Joseph explains (Constitutional and Administrative Law, 2007, page 779):

"Judges' remuneration must not fall beneath a minimum level that could be perceived as exposing them to political pressure through economic manipulation."

Former Chief Justice Eichelbaum once noted that "guaranteed tenure of office for Judges, and adequate remuneration" was one of the essentials to support judicial independence ((1997) 6 Canterbury LR 421). To a certain extent, this principle or convention has been expressly reflected in our constitution. Section 24 of the Constitution Act 1986 specifically directs that judges' salaries not be reduced:

24 Salaries of Judges not to be reduced The salary of a Judge of the High Court shall not be reduced during the continuance of the Judge's commission.

(This provision has its origins in the Act of Settlement 1700 and which, as Palmer and Palmer put it (page 296), "was designed to protect the judges by removing the Crown's unfettered discretion to dismiss them".)

Whether this express protection would be breached by failing to increase salaries in line with inflation etc is unclear.

Authority from the United States suggests that such indirect, non-discriminatory reduction in salaries do not breach a similar protection (Joseph, 779). However, previously analysis in the New Zealand context has raised constitutional concerns about interference with judicial salaries:

- When previous attempts where made to voluntarily ask judges to request their salaries be reduced (1921) or for a request to be made for judges to voluntarily refund of their salaries (1932), such proposals were described as being "constitutionally improper" (Scott, The New Zealand Constitution, 1962, page 162).

- When changes were proposed to be made to the Government Superannuation Act, which would have seen a reduction in benefit entitlements for MPs and judge (1991), the then Solicitor-General - now Supreme Court judge - John McGrath, concluded that such specific changes directed at judges would be improper:

Such reductions would in effect diminish the security of judges in their office, which turns not only on their secure tenure as such but on undiminished remuneration during their tenure. As such the changes would be a measure detrimental to the independence of the judiciary, contrary to s 24 of the Constitution Act and in breach of the constitutional convention it articulates.

I'm not prepared, without more research and reflection, to definitively conclude that a wage freeze (effectively a reduction in salary in real terms) is unconstitutional per se. But it's fair to say that it is looks pretty dodgy at least, particularly as there seems to have been no explicit acknowledgement of the constitutional concerns it might raise.

And the public comments made by the Prime Minister championing such an approach might also be objectionable in their own right. Judicial independence and the separation of powers also requires constitutional actors to respect the underlying constitutional principles and sphere of responsibility. Ordinarily this manifests itself in the principle that Ministers should not express any views that could be regarded as reflecting adversely on the impartiality, personal views, or ability of any judge (Cabinet Manual, para 4.13). But it's not hard to see how the same principle would apply by analogy to encouraging approaches to judicial remuneration that might undermine judicial independence.

The AOS and the equality principle

> NZHerald: "Former police inspector says officer should face court" > NoRightTurn: "Wearing a uniform should not put you above the law" > KiwiBlog: "The tragic death of Halatau Naitoko" There's an interesting - and vigorous - debate going on about whether the Police officer responsible for killing the innocent bystander in the other day's car chase ought to face criminal charges. On the one hand, some same that he should face charges like any other citizen. On the other hand, others say he was just doing his job and endeavouring to protect the public interest. This discussion highlights the fragility of one of the cornerstone principles of our constitution and the Rule of Law: the equality principle. That is, the notion that the "law should be enforced, against governors and governed alike, by the ordinary courts" (Cane, 2004). This principle can be traced back to Dicey's treatise on the Rule of Law and the constitution:

We mean in the second place, when we speak of the "rule of law" as a characteristic of our country, not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.

Sounds all fine and dandy. But life's a bit more complex than that. There are a number of problems in treating the "governors" and the "governed" (ie public law actors and private law actors) in the same way. Some of these issues are canvassed by Cane in the following extract (Peter Cane, Administrative Law (4ed, Oxford University Press, Oxford, 2004), 11):

A question that does deserve attention, however, is why a distinction is drawn between public and private law, public law applying to public activities, and private law applying to private activities. An obvious but not very informative reply to this question might be: because we want to regulate the performance of public functions in accordance with a different legal regime from that which regulates private activities. By way of explanation, it is possible to suggest a number of reasons for this. First, because institutions of governance have the job of running the country they must have some functions, powers, and duties which private citizens do not have; obvious examples are the waging of war and the issuing of passports. Secondly, because of the very great power governmental institutions can wield over its citizens (most particularly because government enjoys a monopoly of legitimate force), we may want to impose on them special duties of procedural fairness that do not normally apply to private citizen, and special rules about what organs of governance may do and decide. Thirdly, because certain institutions of governance have a monopoly over certain activities and the provision of certain goods and services, it might be thought that the exercise of such powers ought to be subject to forms of 'public accountability' to which the activities of private individuals are usually not subject. Fourthly, because the courts are themselves organs of governance (i.e. they perform public functions), the view they take of their proper role when dealing with the exercise of public power is different from the way they view their role in relation to purely private matters. In relation to the affairs of private citizens the courts are the primary organs for interpreting, applying, and enforcing the law By contrast, when they are dealing with matters involving other organs of governance the courts take a more restrained view of their role. Parliament is largely free of judicial control; and under the rules of administrative law other organs of governance enjoy a greater or lesser degree of autonomy from judicial control. This judicial restraint is partly a function of the doctrine of separation of powers...A fifth reason for distinguishing between public and private law arises out of the fact that although governments have certain distinctive functions (such as national defence), many of the things they do are also done by private citizens. Governments make (and sometimes break) contracts just as private individuals do; governments own property in the same way as private citizens; governments also sometimes commit torts. The relevant bodies of law -the law of contract, tort, and property-are central areas of private law, developed to regulate dealings between citizen and citizen. Should these regimes of private law apply equally to government contracts, government property, and government torts, or should there be a law of public contracts, public property, and public torts? As we will see in Part II, the answer which the courts have given to this question is neither an unqualified 'yes' nor an unqualified 'no'. There are, for example, some 'public law' rules of liability in contract and tort. The argument against having a special public law of contract, tort, and so on was most famously put by Dicey. In his view, it was a great strength of English law that government officials were subject to basically the same laws as private citizens to the extent that these covered the activities of government. In this way the law ensured that the government was given no unfair privileges or advantages over its citizens. An argument which pulls in the opposite direction is this: even when a government agency is, for example, making contracts, it is doing so in some sense as representative of the citizenry at large and must bear the interests of the community as a whole constantly in mind. It might sometimes harm the public interest to subject government to rules designed to deal with cases in which the political responsibilities of government are not at issue. On the other hand, the government is a very powerful institution, and we may feel that private citizens need protection, in their dealings with government, against the operation of this power (even in the absence of abuse) by modification in their favour of the rules which govern the citizens dealings with other citizens when these rules are applied to dealings between citizen's and government. The distinction between public law and private law can, therefore, be used either to accord government special privileges, or to impose on it special responsibilities and duties and to subject it to special controls. Three examples will illustrate the importance of whether a particular activity is regulated by public law or private law. Take government contracting first. As a general rule, private individuals are free to refuse to buy goods or services from a business on the ground that the business has trading links with a country which is under the control of a government of which they disapprove. This follows from the principle that individuals are free to contract or not to contract with whomever they please. Do (and should) government bodies enjoy the same freedom? We will see in Chapter 12 that as a matter of common law, central government enjoyed the same freedom of contract as a private individual. However, now this freedom to contract is heavily circumscribed by rules based on EC law which, for all practical purposes, prohibit central government and other 'organs of the state' from refusing to contract with someone for 'non-commercial' or 'non-economic' reasons. Another illustration is provided by the police. The police, of course, have extensive powers of arrest; but these powers are not unlimited. In particular, a police officer can be sued for wrongful arrest and false imprisonment (which are forms of the tort of trespass to the person) if he or she arrests a person without a justification recognized by law The application of the law of tort (which is, of course, part of private law) to the police is a reflection of the fact that constitutionally, police officers are not government officials but enjoy independence from the government of the day. On the other hand, police officers are not the same as private security guards, and they enjoy powers of arrest more extensive than those possessed by ordinary citizens. Apparently because of the public nature of policing activities, the House of Lords has held that in a tort action for false imprisonment the question, of whether the police acted reasonably in arresting a person suspected of having committed an arrestable offence, is to be judged according to public law principles of reasonableness. The impact of this decision is to give the police greater freedom to arrest in the public interest and correspondingly to encroach upon the liberty of the individual. It is also clear that decisions and actions of the police can be challenged by way of judicial review. As a third example, consider the case of Swain v Law Society. The Law Society ran a compulsory liability insurance scheme for solicitors under statutory powers. The Society placed the insurance with commercial insurers and received commission for so doing. It decided not to pay out the sums received as commission to individual solicitors as a sort of dividend but to apply them for the benefit of the profession as a whole. Two solicitors challenged this decision but the House of Lords held that since, in administering the scheme, the Society was acting in a public capacity in the interests of all solicitors and members of the public who employed them, the legality of its decision was to be judged according to principles of public law, not private law; and so judged, what the Society had done was a proper use of its statutory powers. The question of whether, as a matter of private law, individual solicitors were entitled to a pay-out, was irrelevant.

As touched on by Cane, this incident highlights one of the tensions in the equality principle. While we aspire to ensure that all people are treated the same, the reality is that the actions of the AOS cannot really be characterised as being the same as ordinary citizens. The police officer was in a context that ordinary citizens would not find themselves - being deployed with arms to apprehend a renegade and defend the public.

But that's not to say the police are immune from accountability for such actions. Even if the police officer is not charged, he or she - and the police generally - will be held to account through other processes; processes which are designed to take into the different circumstances and context of the action and public character of the actor.

The crime tax

> DomPost: "$50 tax on crime for victim support" The DomPost notes the govt's proposed policy:

$50 tax on crime for victim support All convicted criminals must contribute Every person convicted in court will have to pay a $50 crime tax toward compensating victims under a proposed law to be introduced by National. The victim compensation scheme will offer one-off payments to victims of serious crime to cover costs not met by ACC or other state help, such as counselling or travel to court. Every offender who appears in court, from traffic violators to murderers, will be fined $50 upon conviction estimated to collect about $5 million a year. National says the money would be collected the same way as court costs and fines imposed at sentencing adding little extra administrative costs and would not be collected till any direct reparations which had been ordered had been paid to the victim.

Victims' advocates have welcomed the move, saying victims often face huge bills for funerals and the cost of travel to and from court. Kevin McNeill, whose mother, Lois Dear, was murdered in her Tokoroa schoolroom in July 2006, estimated his family had spent about $30,000 after Mrs Dear's death, including the $10,000 funeral and travel costs to attend the killer's court appearances. "When something like this happens, we're just medium New Zealanders, and when you haven't got a lot and you've got to fork out a lot in a short amount of time, that's where the victim compensation scheme will come out and help people in need," he said. "I reckon it's brilliant." Sensible Sentencing Trust spokesman Garth McVicar also welcomed the scheme. "It's fantastic to see that we're putting victims straight in the centre of the whole process."

Last week Justice Minister Simon Power promised the $90,000 running costs from a disbanded sentencing advisory board would go toward the scheme. Also, any compensation paid to prisoners for human rights breaches in jail will be confiscated and injected into the compensation scheme, as long as it is not claimed by the specific victims of the offender. National plans to set up a victims' service centre within the Justice Ministry to manage the compensation scheme.

Maori Party co-leader Tariana Turia said she supported the idea in principle. "It is a crime tax. There's part of me that doesn't disagree with that if it's going to go to those most affected." But low-level offenders might end up subsidising the fund for serious offenders sentenced to jail who would be unlikely to pay the levy. "They [minor offenders] are then paying for those at the high end of crime ... which seems rather unfair."

Opposition justice spokeswoman Annette King said the scheme was a "pure piece of political theatre" that would do little for victims. "If that's all they're offering, then they're really selling the victims a lemon. "The question must be who's going to get it?," she said. "It's going to be hugely bureaucratic and I'll be interested to know how many more public servants they're going to need to run it."

Labour had asked the Law Commission to look at how to set up proper victim compensation schemes and that work was continuing.

Mr Power rejected Ms King's view that the scheme would be expensive to run and said the courts should be able to add the levy at little extra cost. Legislation will be tabled next month.

The part that caught my eye was is this bit:

Labour had asked the Law Commission to look at how to set up proper victim compensation schemes and that work was continuing.

Yes, they are. And, in their analysis of this type of proposal in their discussion paper, they note that "there are a number of significant issues and potential problems with a levy system".

The detailed extract from their discussion paper is set out below:

> LAWS179: "Offender levy for victims of crime and the Law Commission" It will be interesting to see whether - and to what extent - the government's proposal addresses these concerns.

The (de facto) Head of State's New Year message

The Governor-General has begun a tradition of issuing a New Year message. What a splendid idea. It won't be hard for it to more relevant to Kiwis than the message from our nominal Head of State...

Governor-General issues New Year message for 2009 01-Jan-2009 The Governor-General, Hon Anand Satyanand, is urging New Zealanders to add the support of voluntary organisations to their list of New Year’s resolutions. In his first New Year message, the Governor-General emphasised the importance of volunteering to New Zealand’s society and economy. “Voluntary work does not have to be a lifelong commitment to an organisation, but we all have skills that can assist voluntary organisations, even if only for individual projects. Voluntary work not only has its own intrinsic benefits—making friends and even offers of employment—but it also adds strength to our wider communities.” The message also emphasised the importance of New Zealanders remaining engaged in New Zealand’s democracy. “Late last year, New Zealanders engaged in the ultimate form of civic involvement—voting in a General Election. The election was a demonstration of the strength of our democracy and the civil liberties we all hold dear. While New Zealand is a young country, ours is an old democracy. Democratic rights should never be taken for granted and are rights that continue to be denied to many people throughout the world.” The Governor-General said he had decided to issue an annual New Year’s message to bring to attention a number of issues New Zealanders might consider as they looked to the future.