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.

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Electoral Finance Act editorial and law suit

April 12th, 2008 at 3:01 pm by David Farrar

The Dominion Post Editorial shows they understand why Labour passed the EFA. Quotes:

In office buildings on The Terrace and Featherston St some of the country’s finest minds are grappling with the most pressing legal issue of the day, The Dominion Post writes. It may not be what they had in mind when they applied for jobs at the Crown Law Office and the Electoral Commission, but it could prove to be the defining moment of their careers. Does a balloon bearing a political party logo and website address constitute an election advertisement?

Yes the balloon law is defying the law of common sense.

To the Great Unwashed the answer is simple. Of course. What other purpose could it have? But the answer is clearly anything but straight-forward for the Government’s legal advisers and the agency responsible for maintaining the integrity of the electoral system.

The question that they should be asking, is would parties put their names and websites on balloons if they didn’t think they did help with attracting support.

There is a serious side to the affair, however. It illustrates the absurdity of the new rules Labour, the Greens and NZ First rammed through Parliament last year.

As was apparent then, and is still apparent now, no one knows what they mean or how to interpret them.

Even Mike Williams has conceded this point, and in fact Labour have expressed support for National’s lawsuit seeking the opinion of the High Court on some key provisions.

This is best illustrated by the attempts of Justice Minister Annette King and her ministerial colleagues to explain whether or not parliamentary funds spent on promotional material should be counted as election advertising.

Last November Ms King said they should, then said she could be wrong. Last week Deputy Prime Minister Michael Cullen said they should not because “matters that are properly authorised as being for parliamentary purposes do not count as election advertising for the return of expenses”.

Ms King disagreed. The cost of any of the Labour booklets distributed this year would be deducted from the amount Labour was allowed to spend campaigning, she said, but only because the party secretary had said it would be.

If all that seems like an argument about nothing, then think again because if the position advanced by Dr Cullen is accepted, it will mean politicians are free to spend the $17 million given to them each year to develop and explain policy on election advertising so long as they do not explicitly solicit votes.

Exactly. This is what Dr Cullen and Labour wants. They just don’t want the voters to understand it,which is they made the provisions in the EFA implicit instead of explicit.

But there is a catch. The slush fund will be available only to incumbent politicians. Not only will political newcomers be denied access to the fund, they will also be barred from making up the difference from their own pockets.

New candidates are finding the EFA a huge problem, as appealing to free media is the only way they can raise their profile unless they want to spend their entire campaign budget by March.

When governments overseas stack the odds in their own favour, our Government tends to label them anti-democratic, but here its principle concern appears to be to make the rules as opaque as possible.

Oh the changes are anti-democratic, and designed to tilt the field in their favour. The reason the rules are opaque is simply because they didn’t want people to catch on to what they were doing.

Its face should be as red as the balloon in question.

That only works for people who have a sense of shame.

Now National announced late yesterday that they are filing proceedings in the High Court, seeking ruling on three issues:

1 – What is a parliamentary purpose? This seeks to clarify what elected parliamentarians and parties can spend their taxpayer-funded budgets on.

2 – Third party registrations. Does the law really allow organisations which are intertwined with political parties to run separate attack campaigns that don’t count towards a political party’s total election-year spending cap?

3 – Enforcement. What is the basis for referring matters to the police?

Now the NZ Herald reports that Helen Clark herself has said the judicial review might be “useful” in relation to the first point.

Prime Minister Helen Clark told reporters it might be “useful” that National had sought a judicial review of Electoral Commission rulings in order to get clarity on what “parliamentary purpose” meant.

“I understand the Electoral Commission is taking a view of that which may be at variance with what members of Parliament understood the law to be,” she said at the Labour Party conference in Wellington.

Indeed, it will be most interesting to see how the Court rules. I am not the plaintiff in the second case (I would liked to have been but I just couldn’t afford the cost) but I have sworn an affidavit and tendered a number of documents into evidence. This does mean I need to be somewhat cautious in any comments in make in public on the case, I may not be able to say as much as I would like to, until it is concluded.

But it is nice we finally have bipartisan agreement on electoral law – that we don’t understand it, and want some judicial guidance!

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