McCully not the Supreme Commander

September 15th, 2011 at 12:04 pm by David Farrar

Dean Knight at Laws179 blogs on the legal situation around the waterfront:

Much has been made of Murray McCully’s so-called “nationalisation” of the waterfront for RWC party central, through the exercise of reserve powers under the special legislation for the Rugby World Cup. 
The legal position is, however, very different.  While some regulatory approvals for standard event-based activities may be fast-tracked through a special process under the RWC 2011 (Empowering) Act, the RWC Act does not give the Minister the ability to “take control” of the waterfront.  The Minister’s statutory role is reactive only, namely, considering applications made to and assessed by the independent RWC Authority. Any ability for the government to “take the lead” on the party central activities must have been garnered collaboratively, and does not come from the exercise of power under the RWC Act.
In any event, the applications presently being made urgently are conjoint applications from the Ministry of Economic Development and the Auckland Council’s events team.  These applications were, I understand, in the process of being prepared collaboratively before the Minister’s announcement. And the fast-tracked approvals currently being sort are largely mundane. …
The legislation also provided for an even more expedited process “in circumstances of urgency that, for good reason, were not foreseen”.  A higher threshold was required (necessary to “secure public safety”, to “avoid seriously compromising” the RWC, or to “provide support for” RWC organisers). 
A different, and more expedited, process was provided for. Rather than being determined by the RWC Authority, the RWC Authority only assesses the application and makes an recommendation to the Minister for the RWC.  There is no obligation to subject the application to a participatory process.
The decision about whether the approval should be granted then falls to the Minister for the RWC.  He must consult the Minister for Economic Development and other relevant Ministers.  He must take account of (but is not bound by) the recommendation of the RWC Authority.  His decision is final.
That’s all.  They are the only “special” powers under the RWC Act.  The Act does not provide any power to assume control over or nationalise events.  The Minister’s role is reactive, as ultimate decision-maker, once an urgent application is made. And then only after the independent RWC Authority has scrutinised it.
That’s a very useful clarification on what is happening. So the waterfront is still a joint management exercise between the Government and the Auckland Council. But McCully will be approving various applications under his special powers.
Dean also raises the issue of whether the Minister is conflicted as the decision maker, as he is also the proponent of the changes. It’s an interesting academic argument but I doubt anyone would be silly enough to try and have a judicial review of the applications.

The precautionary principle

January 11th, 2011 at 2:00 pm by David Farrar

Dean Knight blogs:

RadioNZ reports that Minister of Transport, Steven Joyce, says “more evidence is needed before the Government will consider lowering the general drink-driving limit”.  Others such have David Farrar have echoed the claim that specific evidence is needed that lowering the drink drive limit will have an instrumental effect on the number of road deaths and accidents.

Yes, changes to laws should be justified.  But, no, the justification need not be specific evidence.

Both Joyce and Farrar are ignoring the precautionary principle.  In general terms, this principle says that, in relation to risky activities where there is scientific or empirical doubt about the nature and extent of the risk, policy- and law-makers should favour the course of action which avoids the risk.  That is, in the face of uncertainty, the burden shifts to those undertaking the risky activity to demonstrate it is not harmful. 

I call baloney on Dean’s baloney.

First of all, transport policy is not about eliminating risk, it is about balancing it – a point he admits later. Without that balance, then one would easily conclude that driving at faster than 30 km/hr is dangerous (and it is) and should be banned.

So, we know that drink driving is a risky activity.  That’s why we prohibit driving above the current blood-alcohol level (80mg).  If there’s doubt about whether driving while above a reduced limit of 50mg (which I not sure there is doubt about when looking at international practice), then the precautionary principle would favour lowering the limit anyway and collecting data to demonstrate it is not risky or has no instrumental influence on road accidents and deaths – not the other way around!

Dean ignores one crucial point – if you lower the limit now, you will never ever be able to collect data on the prevalance of legally driving at a BAC of 0.05 to 0.08, and its associated risk.

Ultimately, these things involve a cost-benefit calculus. There are seldom king-hits in law- and policy-making. A balance must be drawn.

Joyce and Farrar et al are, however, underplaying the benefit (risks avoided) of lowering the limit by proclaiming uncertainty about their nature and extent.  In this context, though, we’re entitled to assume there is a risk associated with driving with a blood-alcohol of over 50mg, unless evidence shows otherwise.  This means, for the purpose of the cost-benefit calculus, we can assume lowering the limit is beneficial   

Yes there is a risk driving with a BAC between 0.05 and 0.05.  Lowering the limit would lower that risk. But there is also a risk in allowing people to drive at faster than 30 km/hr. There is a risk at allowing people to drive with passengers in their car, as they can be distractions.

Banning passengers and lowering the speed limit to 30 km/hr would also be “beneficial” if you only are focused on the road toll.

Of course, on the other side of the ledger, we can also say there is negligible cost associated with lowering the blood-alcohol limit. 

That is nonsense. There is significant cost associated with such a lowering. It could mean that many more people will be unable to legally drive, and in rural areas especially could even lead to the closure of pubs, where public transport is not a viable option. It may also impose extra costs on people who then take taxis home. Now you may think that is a good thing, but it is also a cost. And again I’d like to know the costs before a decision is made.

And here is the problem – we currently do not measure at all what the “cost” would be of lowering the limit, because we do not know how many people currently drive with a BAC between 0.05 and 0.08, and hence we can’t calculate what the cost will be of a law change.

I want the Government to be able to answer a few simple questions before they make a decision:

  1. What is the current prevalance of drivers with BAC between 0.05 and 0.08
  2. How many drivers with a BAC between 0.05 and 0.08 are involved in accidents
  3. What then are the accident rates for drivers with a BAC below 0.05, betwene 0.05 and 0.08 and above 0.08
  4. How many accidents and fatalities are caused by adult drivers with a BAC betwene 0.05 and 0.05

Once you have that data, then you can make a sensible decision about whether the benefits of reducing the BAC to 0.05 is worth the cost.

If you go down Dean’s path, then we will never ever be able to gain that knowledge. His precautionary principle plea, is in fact a cloak for making a decision that one could never later challenge.

Vote Knight

October 7th, 2010 at 2:29 pm by David Farrar

If you’re at Vic Uni, make sure you vote in the final of Academic Idol, for the most popular lecturer.

It not often ones goes for a lawyer, but the competition is from the psych department, and lets face it almost all psychologists are nuts themselves. Also Dean is a great guy.

Dean’s final entry is:

If you were going to commit a crime, which one would it be and how would you justify it to the public (if you get caught)?
Bonus question: Capybaras—yay or nay?

“C’mon! You can’t ask a legal academic that question. We believe in the Rule of Law! Well, perhaps. Maybe. Or maybe only one or two of the different conceptions of the Rule of Law…
Anyways, the whole point about being a smarty-pants lawyer is we know what’s illegal and what’s not. And we know how to argue about the grey areas in order to avoid being convicted. No need to justify anything if you don’t commit the crime.
– Parking in a loading zone (Land Transport (Road User) Rule 2004, r 6.4)—not a crime after 6pm, unless the sign says “At All Times”.
– Urinating in a public place (Summary Offences Act 1981, s 32)—not a crime if you reasonably believe no-one can see you.
– Drinking booze in a liquor ban zone (Local Government Act 2002, s 147)—the Police first have to analyse and prove the liquor is more than 1.15% strong.
– Stealing a baby’s identity to get a false passport (Tough on Crime Act 2010, s23)—you’re immune if you’re a member of the Sensible Sentencing Trust.
– Breaching any law of the land in the name of the earthquake recovery effort (Canterbury Earthquake Response and Recovery Act 2010, s 6)—not if you have a note excusing you written by Lord Gerry VIII…

Now this is actually damn useful advice – how to legally park on loading zones, urinate in public and drink alcohol in a ban zone.

A final note from Dean:

So that’s it. If you reckon I have done enough to Outwit, Outplay and Outlast (or Outspam?) – or just want to support the law guy – then you can text “Dean” to 027 CUSTARD (+64-27-287-8273) or; by 5pm Thu (NZT). Apparently you don’t need to be at Vic to vote.

You have 150 minutes to vote!

A win for Justice Wilson

September 29th, 2010 at 9:00 am by David Farrar

Colin Carruthers, on behalf of Justice Wilson, has had a partial victory with the judicial review of of the decision of the Judicial Conduct Commissioner’s recommendation that a Judicial Conduct Panel be established.

Dean Knight blogs on what it means:

First, it’s very much a technical decision about how the Commissioner should have framed and referred the complaints for consideration for the Panel.  In a nut-shell, the Commissioner was wrong to refer the whole bundle of complaints.  He should have formed a view on each and every complaint and specified with some particularity which conduct warranted inquiry by the Panel.  As a consequence, some complaints which were trifling were wrongly added into the mix; the main complaint – while sufficient for further investigation – was not framed carefully enough when it was referred; and complaints about the judge’s conduct between the two Supreme Court decision were referred without an opinion being specifically reached on whether they justified further investigation for the Panel.

This seems fair and reasonable. It means that the JCC must be very specific with which actions of Justice Wilson are thought to have been misconduct, rather than just refer the entire saga.

Secondly, on the marquee complaint that the Commissioner relied on to recommend a Panel be convened, the High Court is clear that the Commissioner’s vetting process was proper and consistent with the Act.  The Commissioner properly appreciated the standard of conduct that, as a matter of constitutional law, justified removal of a judge from office and justified further investigation. The Commissioner also properly applied this standard when reviewing the factual allegations made. The Court said (at [91]):

“The important point is that the Commissioner considered that deliberate non-disclosure was a sufficiently plausible possibility to warrant further inquiry being made.  We agree with the Commissioner’s conclusion that conduct of that type, if established, might warrant consideration of the removal of the Judge.  We also accept Mr Goddard’s submission that in reaching that view the Commissioner formed the opinion that s 15(1) required of him.”

Justice Wilson did not win on this point, but it is worth stressing that the finding is that deliberate non-disclosure was a sufficiently plausible possibility to warrant removal. That does not mean that the panel will necessarily find it is – just that it could be.

Finally, this decision is undoubtedly not going to halt the process.

Presumably the JCC will now frame more specific “complaints” for the panel to consider.

The republic debate

September 2nd, 2010 at 11:34 am by David Farrar

About to hear from Michael Cullen and Dean Knight on republicanism. Dr Cullen described himself at morning tea as a “moderate monarchist” and not too far away from Dean Knight whom he called a “moderate republican”.

Jim Bolger is the Chairman. He has been talking for around five minutes so far. I should run a book on whether he will end up speaking for longer than the actual speakers 🙂

Heh. Dean just said that after reading in the Herald on Sunday that Dr Cullen now supports NZ becoming a republic, he wondered if he should just sit down and claim victory. Jim Bolger retorted that instead he should just not read the Herald, which got good laughs. It seems Dr Cullen feels they mis-stated his position.

Dean advocates a minimal change republic. Promote the Governor-General from being the effective Head of State to the actual Head of State – but with the same powers.

The selection of the Head of State should not be hereditary, discriminatory and foreign, Dean said.

The GG is currently effectively appointed by the Prime Minister. Dean advocates that Parliament should approve any appointment by a super-majority.

In terms of the Treaty obligations, Dean states these have already been transferred from the British Crown and Govt to the NZ Government, and these would not be affected by a move to the republic.

Dr Cullen has said that the GG is indeed our effective head of state. He points out the unusually, the selection is purely by the Government of the day.

He rejects the notion that the Queen is foreign, and that being a monarchy means we are not independent. He says countries like Australia and he UK are not fully foreign, as other countries are. Also says Canada shows you can be regarded as absolutely independent yet they have kept the Queen.

Cullen says if no change is made, Charles will become King of New Zealand automatically when he become King of the UK, even though he will probably be 80 when it happens.

Cullen totally against Judges being able to strike down laws on the basis of supreme law. Will lead to highly politicised Judges. Says if the move to a republic is dependent on having a written constitution as supreme law, then both Charles and Williams will have happy reigns as Kings of New Zealand.

Says if NZ Head of State has executive powers, then elect at large. But if they have no executive powers is silly to have an election for it, as they will have nothing to run on. I agree.

One amusing observation made by Bolger is that he and Cullen are old sparring partners, but now are the Chair and Deputy Chair of NZ Post!

A legal analysis of the NZF complaint

September 22nd, 2008 at 2:59 pm by David Farrar

As people will have read, NZ First is outraged that the SFO has revealed to the Privileges Committee that the evidence given by Peters and Henry is false. I mean shame on the SFO – how dare they reveal the truth. What sort of law enforcement body do they think they are.

So NZ First have complained to the Police about the SFO. Now this is of course a media stunt -designed to maybe convince the most stupid 5% of the electorate. For the benefit of the other 95%, I’ll link to Dean Knight – a public law specialist at Victoria University.

Dean makes four points:

  1. s39 of the Serious Fraud Act does not apply as the information given to the SFO was not protected under some other Act (which is linked to the SFO’s coercive power to require information protected under other legislation)
  2. s36 might apply as it refers to a wider set of information but 36(2)(e) allows the Director to disclose to “any person who the Director is satisfied has a proper interest in receiving such information” and Dean says a committee of Parliament fits this definition
  3. Regardless the letter to the Privileges Committee is covered by parliamentary privilege under the Bill of Rights 1688
  4. Those complaining about the letter may be in contempt of Parliament as Standing Order 400w includes ” assaulting, threatening or disadvantaging a person on account of evidence given by that person to the House or committee”

So Peters and NZ First may be in contempt of Parliament (again) due to their attacks on the SFO for telling the truth to the Privileges Committee. If Parliament wasn’t about to dissolve, it would be worth an MP writing to the Speaker about!

Steve Crow wins again

August 19th, 2008 at 2:44 pm by David Farrar

Steve Crow has won in court, but really he was going to be a winner regardless of the court ruling.

The publicity given to Mr Crow’s porn empire by Family First, Auckland City Council and others has been invaluable. He literally could not pay enough for all the free publicity. Rather than try and get the boobs on bikes parade banned, they should demand a share of the profits from his sex expo.

Why does Crow do boobs on bikes? To publicise his sex expo. He loses money on the actual parade – it is free. He doesn;t give a damn about whether or not the parade actually happens – he just wants the publicity about it.

He is secretly parying that Cathy Casey and co do lie down on the road to try and block it. It would be a god send for him. Guarantee a better TV story.

Mr Crow is a very smart man.

Also a very smart man, is public law specialist Dean Knight. Dean blogged last week that there was almost no chance of the Council being able to block the parade under the Bill of Rights. Dean concluded:

I am very confident in saying that, to the extent that the bylaw requires citizens to seek prior approval from a state body for a protest in a public place, it is patently inconsistent with the Bill of Rights and other fundamental common law rights, and is therefore unreasonable and invalid. There was, rightly, a public outcry a few years ago when Wellington City attempted to do this; it backed down. Also, it’s the very thing that many folk are pointing the stick at the Chinese government at the moment with the Olympics in Beijing. The requirement of prior approval is outrageous, particularly in the light of the restriction of protests and so forth.

He goes onto say:

It gets a little more complicated when one deals with other expressive activities. The reality is that we grade the nature of the expression and place differing degrees of importance on different types of speech. Political protest at the top. Speech lacking in intrinsic value at the bottom, arguably things like pornography etc. Commercial-related speech somewhere in the middle. That’s a wee bit controversial but probably accurate. In this case, we might see the full range of expression. Principally, the parade is related to a commercial activity. But it’s also got a pornographic titillation element – something slightly gratuitous. And, given the previous controversy and dealings, it’s also probably capable of being regarded as a protest or similar political assembly.

His colleague Steven Price then details a conversation he had with Dean on the legal issues:

Steven: You know what? I think it might depend on the amount of jiggle.

Dean: I think that’s right.

Steven: If there’s more jiggle, then it looks more sexualised – so arguably more lewd and offensive. Then controlling the parade fits better with the purposes of the Local Government Act, and the offences of offensive behaviour and indecent exposure. You’ve got less wiggle room for an argument based on the significance of the speech. More jiggle – less wiggle.

Dean: No, I disagree. If there’s more jiggling, there’s more of a political component to the protest. It is deliberately provocative. It underscores the parade’s message being more open about sexuality. It emphasises that the protest is defying convention, and the council’s attempts to scotch it. There’s less reason to protect an unjiggly naked protest, because the nakedness is less central to the protesters’ purpose. Jiggling provides better grounds for a defence for boobs on bikes. More jiggle – more wiggle.

Now’s that a legal conversation you don’t get to have very often!

Finally Steven notes:

Such is the stuff of academic discourse. Though it’s fair to say that Dean doesn’t normally evince this degree of interest in women’s breasts.

I burst out laughing when reading that. Those who know Dean probably did likewise. Others should be able to work it out!

As it so happens, I will be in Auckland tomorrow. Despite what some might think, I won’t be there for the Parade – for two reasons. Firstly the plastic fantastics that were on display last year look pretty awful from what I saw in the photos – you can’t beat natural. Secondly I actually think partially covered up is far far more sexy.

The Electoral Finance Act threesome

July 10th, 2008 at 2:21 pm by David Farrar

Three articles on the Electoral Finance Act to cover today.

First we have Tuesday’s story about politically loaded questions in surveys may become an expense:

However, Electoral Commission head Helena Catt said anyone who tried to use push-polling or politically loaded survey questions thinking it was exempt from inclusion in the election spending limits could get caught out.

She said the limits of the provision were still untested, despite a similar clause existing under the previous law.

“The exception is for opinion polls and surveys, so it depends how one defines those. We would have to decide what a poll or survey is under that provision, for example whether it covers push-polling or only includes polling by polling companies, and whether there is an ethical dimension to it.”

One can’t disagree with anything there. However there are some interesting issues around the Privacy Act and the Electoral Finance Act in play. Take for example phone surveys where parties call people up and ask their views on some issues. This is research which is exempted under the EFA (and the old Act also).  The reason the parties do it is that they may use the data for a future communication (which will count as spending).

Now if you are going to be recording down personal data about someone (ie their response to a survey), you need to identify who you are calling on behalf of under the Privacy Act. So a party member calling might say “I am calling on behalf of xxxx, the local yyyy party candidate”. That way people know who they are speaking to, and can decide whether to respond or not.

But electoral authorities are worried that by saying the name of the candidate, even if just for purposes of identification, you might then be an advertisement.  So again it is all murky.

The High Court has indicated there are limitations – in its judgment on Winston Peters’ legal challenge of Bob Clarkson’s election spending after 2005, the Tauranga High Court observed push-polling was not covered by the exemption.

The court said the exemption for polls “reflects the facts that polls by definition do not seek to persuade, but rather to ascertain public opinion”.

This is quite correct – the research must be to ascertain not persaude.

Adding survey questions to material which was otherwise an election advertisement would also not make the entire brochure exempt from the spending cap.

The Electoral Commission is considering a NZ First advertisement which includes a survey, but the party claimed it is not an election advertisement.

The advertisement, which does not have an authorising statement, includes surveys on the China free trade agreement, and any sale of Auckland International Airport or the dairy industry.

Leader Winston Peters has argued it was not an election advertisement because it did not refer to its stance on policies of a future Parliament.

I think this is a perfect example of something that is not a genune survey. The NZ First advertisements were clearly designed to persuade but to ascertain opinion. It will be very interesting to see what the outcome on these will be.

Law Lecturer Dean Knight was on National Radio yesterday talking about the EFA and the Bill of Rights Act. He blogs about it here.

One part I will quote:

Now, it must be remembered that, at that stage, when the Bill was assessed and proceedings were filed, we were talking about the First Reading of the EFB – the more egregious version. Very few commentators and scholars thought the initial value judgement was particularly robust.

However, many of the restrictions were watered down by the Select Committee and the Mark II version of the Electoral Finance Act that was actually passed did not limit the freedom of expression to the same extent. Arguably, questions of consistency with the Bill of Rights were in the zone where reasonable people could differ.

I think Dean is being very nice when he says few people thought the initial value judgement was robust. This is referring to the Crown Law advice that the original Electoral Finance Bill did not breach the Bill of Rights. It still staggers me how a bill which would have forced NZers to file statutory declarations just to express their view on a political issue could be judged not to shatter the Bill of Rights. Rather than sack the person at Crown Law who write such a flawed opinion, the Government promoted her to the Law Commission.

Dean is right when he says reasonable people can differ on whether the final version of the EFA is consistent with the Bill of Rights. By implication this suggests that no reasonable person could have argued that the original Bill was consistent. Yet that is exactly what Crown Law did.

Finally we turn to an article on Newswrire about a possible EFA breach by National MP Katrina Shanks.

A local website is The Flying Pickle. It is a local community site for the suburbs of Korokoro, Maungaraki and Normandale. Any local resident can post stories there so Katrina had been putting articles on there attacking Labour. They were under her name, but unless the website is a newsmedia site or a blog, then they may count as election expenses and need an authorisation statement by her financial agent.

All very stupid. We should encourage MPs using local sites and the transparency requirement is met by posting under her name.

I am increasingly of the view that after the election the replacement for the Electoral Finance Act will need to have a fairly conservative definition of advertising so that it doesn’t regulate every form of advocacy. I also think the transparency requirements need to be totally revised as it is ridicolous that an MP needs an outside party to be authorising their parliamentary statements.

This is what Linda Clark was talking about in her Listener article – the EFA is makng it hard for MPs and candidates to communicate with the public at they very time we want communication.