More common sense law

June 19th, 2008 at 11:12 am by David Farrar

Read this about what had to do, just to check if it could put a Minister’s press release up on the Beehive website:

Brendan Boyle, Secretary of , revealed that his department had sought legal advice on how to handle press statements put out by ministers’ offices since the new law.

He said an in-house legal team had provided the advice, with involvement from Crown Law, the Parliamentary Service and the State Services Commission.

That good old law of common sense strikes again. I mean seriously lawyers from four agencies to set up guidelines on press releases going on a website!

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35 Responses to “More common sense law”

  1. milo (538 comments) says:

    I see the Labour party website has the parliamentary crest on it.

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  2. Steve Withers (98 comments) says:

    I don’t want to talk lawyers down, but their advice can be too conservative at times. On that level, I do understand what Annette King is trying to say about “common sense”.

    When I was involved with the IBM (then AT&T) ISP a few years back, we often had opinions from lawyers that I would characterise as “hyper-cautious”. Business would be all but impossible if we followed their advice to the letter.

    We made changes to what we were doing were it made sense to do so and often ignored the rest of the advice as it would get in the way of good relations with customers. Grey areas can be amplified into minefields when they are just grey areas and the chances of anyone ending up in court are very remote provided all concerned are seen to be acting in good faith.

    Much of the extreme legal “hyper-caution” around the EFA is a combination of self-serving legal puffery on the one hand and lawyers being extra careful lest litigious people acting in bad faith use the courts to score political points.

    The EFA certainly does create problems for party officers and candidates, but any other citizens is free to say whatever they like on any issue provided they don’t recite verbatim some party’s policy, name parties or candidates or tell anyone how to vote.

    I could take out full page ads in the Herald every day from now until voting day about the need for better, more integrated public transit in Auckland and between and within other major NZ cities.

    Anyone can do the same on any or many issues.

    Nothing whatever in the EFA to stop me…..

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  3. freedom101 (462 comments) says:

    It’s a real loss of personal freedom when discretion is given to officers of the law to exercise common sense. If laws are too complex then it becomes too difficult to comply with them. If ‘common sense’ is to be applied it then becomes a matter of discretion as to whether or not you are charged. At this point things get murky.

    When the police have to apply their discretion they end up being the agents of the government. And then you are on the road to Robert Mugabe-land. That’s how you get Shane Adern being charged for protesting on the steps of Parliament but the PM has numerous lucky escapes from the law, let off with warnings.

    Either you have broken the law or you haven’t.

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  4. Steve Withers (98 comments) says:

    milo: Yes. Labour doesn’t actually have a party web site last time I checked. What you see at labour.org.nz is run out of the PM’s office. The phone number there goes direct to the PM’s office (no – not Helen – but not far away, either).

    I blogged on this a few weeks ago in response to a question raised by homepaddock on her blog.

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  5. getstaffed (9,189 comments) says:

    what freedom101 said

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  6. ghostwhowalks3 (387 comments) says:

    milo seen the national ‘tv’ site .. no its not for transgenders

    It too has the parliamentary crest on it so all paid for by the taxpayer
    http://www.ntv.co.nz/

    Contact email is national@parliament.govt.nz
    A national.org.nz production.

    So nothing to do with the ‘party’ but all looked after by a webmaster on the (taxpayer paid ) staff of John key

    Steve Withers could check his own glasshouse sometimes

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  7. insider (1,000 comments) says:

    The worry is, these are some of the same legal advisors that said the EFA was not in breach of BORA and that the EFA only referred to natural persons when it came to affiliates.

    So when they say that everything is alright re the content of these sites, do they have the trackrecord to be credible?

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  8. Rex Widerstrom (5,261 comments) says:

    Yes, what freedom101 said.

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  9. RRM (9,459 comments) says:

    But, Freedom101, regardless of whether the police have had to “exercise discretion” or not, either way don’t you need to have broken the law before you can be convicted of breaking the law?

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  10. Graeme Edgeler (3,267 comments) says:

    RRM – I think Freedom101 may have been saying that there was discretion as to whether someone has broken the law.

    E.g. you published something. Is it an election advertisement? Who knows? The Chief Electoral Officer then exercises a discretion and decides that what you published was an election advertisement.

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  11. RRM (9,459 comments) says:

    And furthermore – I suggest that some of the people who routinely compare political events in this country to the Mugabe regime in Zimbabwe, ought to actually visit Zimbabwe and see what that country is like.

    The only thing about Zimbabwe today that even remotely resembles anything in New Zealand is that there is a Z in the name of both countries.

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  12. jafapete (766 comments) says:

    Freedom101: “Either you have broken the law or you haven’t.”

    If it were that simple then we wouldn’t need the courts, would we?

    Whether it’s the police, as 101 incorrectly suggests, or the Chief Electoral Officer, someone needs to decide whether there is an arguable breach of the law. Fine. Aren’t the police doing this every day of the week? And don’t the Crown Law Office sometimes also get into the act?

    And, noting that I am in no way connected to them, I commend the progblog post on this to you.

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  13. Ross Miller (1,662 comments) says:

    We are not very good at giving credit where credit is due. So ‘heartfelt’ congrats to Labour & NZ First (and GWW3 et al) for the huge windfall profits now accruing to the legal fraternity courtesy of the EFA.

    So it’s not all bad folks …. whoopps, just realised those windfall profits come from me (and you) the long suffering taxpayer … so congrats to us from lawyer land.

    Still, every dog has its day, and the election is, at the most, 184 days away and counting.

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  14. freedom101 (462 comments) says:

    Obviously it’s debateable in some cases whether or not a law has been broken, but the point is that when the law is overly complex it truly becomes a decision for the police to determine whether to lay charges.

    We were told not to worry about a law banning cell phone use in cars as the police would use common sense in deciding whether to charge someone. What does that mean? That they can use their whim? So unless you cower and say ‘yes sir, no sir’ you will be charged. If you grovel and declare undying love for the dear leader then you are let off? This is a really dangerous route to travel down.

    The exercise of discretion becomes the de facto rule of law, beyond scrutiny of parliament and the courts. In that respect it is the Zimbabweisation of NZ, which isn’t to say there is a strong resemblance between the two countries … yet.

    Zimbabwe only got where it’s got by taking a long slide down a slippery slope. Worth thinking about.

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  15. MacDoctor (66 comments) says:

    Jafapete:

    If you need to go to court to know whether you have broken a law, then the law is a very bad one! Personally, I prefer to know whether I am breaking a law up front :-)

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  16. toad (3,669 comments) says:

    Macdoctor said: Jafapete: If you need to go to court to know whether you have broken a law, then the law is a very bad one! Personally, I prefer to know whether I am breaking a law up front

    I know there will be lots of fans of Stephen Franks-style black letter law on this blog, but that’s not the way the law operates in a democratic society. Jafapete has a good point. Case law evolves over time according to its interpretation by the courts.

    If that were not the case, we would just have statutes passed by Parliament, and Government agencies administering them according to the interpretation of officials and imposing summary judgments and penalties on people without recourse to any judicial decision-making whatsoever .

    Now what sort of countries does that remind you of?

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  17. Hagues (711 comments) says:

    “The only thing about Zimbabwe today that even remotely resembles anything in New Zealand is that there is a Z in the name of both countries.”

    RRM obviously you haven’t been following the Black Caps lately :)

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  18. casual watcher (289 comments) says:

    Common sense is telling me that the net affect of this attempt to corrupt our electoral system has been very positive. It seems to be hurting Labour far more than anyone else and I find that gratifying. By the time Bob Jones starts challenging this silly law, the petrol price continues to rise, and Labour continue on their arrogant path to self destruction, I would say they will not get many votes at all come the election – maybe one or two diehards like GWW but not many more. Helen and Winston both know they are gone and I sincerely hope the Greens go the same way. Common sense is a wonderful thing when you have a scenario such as this.

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  19. Lee C (4,516 comments) says:

    SO, under the EFA we are allowed to have individual political opinions, but are prohibited from enjoying the right to organise and share them during an election year?
    And this represents a forward step – how exactly?

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  20. ross (1,454 comments) says:

    What if someone decides to set up a website called something like http://www.howtoloseyourselfrespect-voteLabour.com. Even though it contains the words “vote Labour”, that isn’t what the website wants you to do. So that surely wouldn’t come under the EFA, right?

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  21. jafapete (766 comments) says:

    Thanks Toad, for clarifying what I would have said had I the time to expand.

    We need to courts to interpret the law because there will always be situations that cannot be foreseen, and grey areas.

    Everytime there is a new law there is a process of determining where the boundaries are, and what the law means. Take the Employment Contracts Act 1991. It was a relatively straightforward piece of legislation, but the courts had a fine old time deciding various points.

    Lee C says, “SO, under the EFA we are allowed to have individual political opinions, but are prohibited from enjoying the right to organise and share them during an election year?”

    It seems to me that Lee and the kiwiblog right have been doing very well at sharing their opinions, election year or no.

    That said, I am not going to try to defend the EFA in all its glory, despite understanding and accepting the concerns that gave rise to it.

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  22. paradigm (507 comments) says:

    Toad said:
    “I know there will be lots of fans of Stephen Franks-style black letter law on this blog, but that’s not the way the law operates in a democratic society. Jafapete has a good point. Case law evolves over time according to its interpretation by the courts.”

    Of course case law should evolve over time; the point is how much evolution should an introduced law need to undergo in the court before it is well understood. In the case of the EFA we have a dinosaur, in need such enormous remedial attention in court that perhaps it should simply be made extinct.

    I would suggest that while a court should be able to interpret and develop the practical application of law, it is desirable that a law be introduced in a manner where it requires only minor in-court alteration to become workable. What has become a trend recently is for law to be introduced with nebulous phrases, especially when dealing with “politically difficult” issues (this is not limited to Labour – see John Key’s “minor and inconsequential” addition to the repeal of sec. 59 of the crimes act) and in so doing palm off responsibility to the courts. The situation has been exacerbated by having a legally ignorant attorney general. This tends to result in a very marginal case being dragged through the judicial system in order to establish boundaries that could have been set were politicians able to show a little more leadership and/or legal prowess, often resulting in no conviction and a huge amount of wasted time and money on the part of both the defendant and crown (and for crown read tax payers). The situation becomes even more unacceptable when dealing with a time-critical event such as an election campaign, where one cannot afford to waste time in legal limbo.

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  23. Grant Michael McKenna (1,156 comments) says:

    Being from the area, and having family in Zimbabwe, I must agree with RRM- there is the world of difference. he Labour Party is very different to the Zimbabwe African National Union – Patriotic Front (ZANU-PF). Although Labour’s recent congress was scripted, the contrast to the Zanu-PF congress is immense; there no debates were held, and certainly no protests against Mugabe were heard.

    I wrote recently to the Listener about the Joanne Black’s statement that Zimbabwe is South Africa’s future, and pointed out how there is a massive difference in how their changes in government happened. In Zimbabwe after independence the masses were demobilised and the political elite took control, unlike in SA- and unlike here in NZ, where a multi-party democratic tradition exists.

    The fundamental problem faced in NZ is that the governing party has no real challenge. John Key will win because it is “National’s turn” in effect, and the competition for the hearts and minds of the people is not being fought- and so the next few years will be a blip in the slow degradation of the NZ standard of living- unless Mr Key pulls finger once elected.

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  24. Lee C (4,516 comments) says:

    “It seems to me that Lee and the kiwiblog right have been doing very well at sharing their opinions, election year or no.”

    Do you think that if the EFA’s intent were to be further refined along its original lines, that blogs might be fair game next?

    Given recent reports about the rising numbers of bloggers getting arrested or detained in other places, we bloggers have merely slipped trough the cracks, after all….

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  25. OECD rank 22 kiwi (2,811 comments) says:

    I read a brilliant piece by Colin Espiner called “Beating the law’n’order drum” over on stuff. It’s basically saying that Labour did nothing on law and order over the last year in 2007 because the Justice Minister at the time, Mark Burton, was too busy setting up the rort that is the EFA. Now the chickens have come home to roost for Labour.

    I’m sure the electorate is going to give Labour what it deserves regarding its priorities over the EFA vs Law and Order. That would be a good kicking in the polls.

    So much for the law of common sense, more like the law of unintended consequences or no law at all.

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  26. jafapete (766 comments) says:

    Lee C: “Do you think that if the EFA’s intent were to be further refined along its original lines, that blogs might be fair game next?”

    No, not at all. I think that you might be confusing some unintended outcomes with “original lines”, but I don’t blame you for that.

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  27. Rex Widerstrom (5,261 comments) says:

    RRM says:

    But, Freedom101, regardless of whether the police have had to “exercise discretion” or not, either way don’t you need to have broken the law before you can be convicted of breaking the law?

    Thus spaketh someone who has clearly never run afoul of the Police (not in a “clearly breaking the law” sense, but in a “on their s**tlist” sense). I could exceed the character limit for comments listing real life examples that disprove your assertion, but I get the feeling I’d be wasting bandwidth. Not implying you’re stupid, RRM, but that like most people you’d simply find the abuses that go on too fantastic to believe until such time as they happen to you. And even then, when you’re on the receiving end, you can still barely believe it… at least until it happens a second, third, or fourth time, that is.

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  28. OECD rank 22 kiwi (2,811 comments) says:

    Talking of the EFA causing unnecessary public sector waste, you have to laugh at the IRD having to pull their publication of a KiwiSaver brochure because of fears it would be used for electioneering. At the time the IRD was saying it was pulled for commercial reasons.

    Bill English tabled in parliament emails showing the IRD being tricky. It turns out that their motivation for pulling said brochure was to protect their behinds rather than the successful uptake in numbers for KiwiSaver.

    At least the law of commonsense eventually prevailed and the whole venture was pulled less Mike Williams gets confused again. The IRD finally clicked and realizes that they should “pull back on all such information programmes until after the election.”

    Fine sentiments, if only all other Government departments would follow the IRD’s outlook. I suspect that the advertising budgets are still going to balloon in election year for Government departments.

    The Labour Government isn’t widely considered to be a shockingly disgraceful corrupt government for nothing!

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  29. expat (4,048 comments) says:

    Thats a good point Steve W.

    Why is the Labour Party website (labour.org.nz) run from the Hulun’s office?

    How come a domain named labour.org.nz can be construed as NOT being THE labour party website?

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  30. Lee C (4,516 comments) says:

    jafapete as much as I laud the volte-face by supporters of the ‘intent’ of the EFA despite the consistent support thus far your’s is a nicer version only of the faintly pompous ‘you on the ‘kiwiblog right’ don’t understand the issues’ line we’ve endured from the likes of nome and tane ad nauseum.

    Which ‘unintended consequence’ am I failing to grasp? Where did it originate, do you think?
    Was it:
    The cut and paste drafting which cherry-picked froeign examples of similar acts which disregarded bits that Labour did not like, (like caps on union spending a la Canadian Law)?
    The rather lame advice from Sims that it was all ok because ‘usually in cases like this we defer to Parlaiament…’ (which begs the question what was her actual defence of the BoR Act)?
    The use of an author who used illegally gained materials for his latest blockbuster as a star witness at Select Committee?
    The careful disregard for Law Society and HRC advice to Select Committee about the Bill?
    The rush through into statute with urgency just before Christmas?

    I mean if all of this is ‘unintended’ I would hate to see how they can do things when it’s done on purpose!

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  31. Lee C (4,516 comments) says:

    you see, despite the ‘unintended consequences’ you now refer to, we of the ‘kiwiblog’ right as you refer to us (ignoring the fact that you contribute reguarly so does that make you one of us?) have been sonsistently displaying our understandable lack of understanding from pretty much day one.
    Were were the Labour and Green supporters? Oh yes, hiding under the rather reprehensible villification of a small group of religious extremists as a convenient excuse to try and set up preconditions under which they could rort the election.
    Unintended consequences
    yeah right!
    Unless of course we have to face another rather inconvenient idea that the People who conceived of this rort are not corrupt, but actually incompetent. Then I suppose that makes it all ok, just a misunderstanding, so let’s all have a drink and put it behind us, etc….

    No sorry, I’m not buying it.

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  32. expat (4,048 comments) says:

    The intent was to stop bretheren rich pricks making labour look like c*nts.

    Unfortunately everyone has forgotten about the bretheren and think labour are c*nts.

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  33. dave strings (608 comments) says:

    >
    >>we would just have statutes passed by Parliament, and Government agencies administering them according to the interpretation of officials and imposing summary judgments and penalties on people without recourse to any judicial decision-making whatsoever
    >

    We have that – they’re called infringement offenses and getting them withdrawn is harder than pulling hens’ teeth. If the Official thinks you offended – YOU DID!

    NOW
    as for the law evolving, I don’t think it does! the law is the law – e.g. theft is AGAINST the law. The only issue is when some lawyer who wants a jaguar convinces someone with lots of money that they can pursuade a judge that they didn’t steal. Point in case – a Saudi Princess was charged with theft of an apple from a grocer in London. She had lifted the apple, looked at it, bit it, spat out the bite and thrown the remaining fruit into a handy rubbish bin. The shop keeper (thank gaia she was a woman or all hell might have cut loose,) grabbed the woman and held on until a cop arrived (summoned by cell phone). THe Princess was charged with theft.
    Good old Barrister, who had a friend who had been in the Middle East, was in the court house when the woman was brought brfotr thr magistrate and jumped up to represent the Princess; he got the case moved to the High Court, and ther Saudi Royal Family started paying his bills.
    In front of a jury, many, many, many months later, the lovely lawyer defended the Princess with the argument that in her home country it was normal to try fresh fruit and veg before purchase, which was what she had done and which was more than reasonable; especialy as she intended buying fifty apples if she liked the one she tried. He further argued that therr had been no ‘intent to deprive’ the shop keeper of the apple, as evidenced by the fact that she had not kept it but had thrown away all of it.
    He was attempting to ‘evolve’ the law into a state where theft was OK if it was for purposes of testing the quality of the good that was stolen.

    Happily, the jury returned with the perfect result. Prefacing their words with it wasn’t OK to have abeer in Saudi because their law said so – they advised her that the ‘when in Rome do as a Roman’ applied in Britain as well and declared her guilty. THe judge, saying he had to make an example of her for misuse of the judicial system when guilt was clear to anyone fined her GBP50,000 (the magistrate would probably have left off the zeros) and the lawyer, by all accounts, got hisd Jaguar.

    Moral? The law is expected to be clear and unambiguous – however, lawyers will do their damndest to make money from trying to obfuscate it if they think there’s decent fee at the end.

    The EFA, like the lawyers, is an ass of obfuscational clap trap.

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  34. PhilBest (5,117 comments) says:

    I have been pointing out for a while that in the USA, Democratic Party Candidates (with “big government”, “Nanny State” ideals), raise far more funding in campaigning, than Republicans do. According to Ann Coulter, the biggest donor type by vocation grouping, is LAWYERS………

    HMMMMMMMMM……………………………

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  35. Gerard Barry (27 comments) says:

    Forget about the number of lawyers required to interpret NZ laws – how many electricians are required to change a kiwi lightbulb?

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