Archive for the ‘Jonathan’ Category

A culture of justification?

March 10, 2010

The New Zealand Bill of Rights Act, unlike its Canadian and American equivalents, is not supreme law. If a provision of any enactment is inconsistent with the Bill of Rights Act, section 4 explicitly states that the enactment prevails. This has led some to conclude that our Bill of Rights is “weak”. While it is certainly weaker than other models, the Bill of Rights nevertheless reflects a commitment by the New Zealand government that the rights contained in the Bill should only be subject to limits which “can be demonstrably justified in a free and democratic society”.

In light of this, it is reasonable to expect that government policy will be developed with the Bill of Rights in mind. In the words of two leading commentators, the Bill of Rights was designed to create a “culture of justification”:

A “culture of justification” means a culture in which citizens are entitled to call upon the provision of reasons for measures that affect their rights, are entitled to challenge those reasons, and in a sense more importantly, are entitled to expect that in advance of impairment thought will have been given to the reasonableness of a particular limit. [Butler and Butler The New Zealand Bill of Rights Act: A Commentary (LexisNexis, 2005) at para 6.8.1.]

Prior to the introduction of the Bill of Rights, Sir Geoffrey Palmer noted that one of the problems with the development of legislative proposals was that government officials are “not required to test them against basic principles and they are not invited to apply a set of standards to them” [510 NZPD 3761 (21 August 1990)]. Sir Geoffrey hoped that the Bill of Rights would change this.

Perhaps picking up on this suggestion, the Ministry of Justice has published Guidelines on the Bill of Rights Act to assist the public sector in the development of government policy. In those guidelines, the Ministry of Justice explains that the requirement that limits be “demonstrably justified” means that the onus is on the government to justify any limits to rights [see Ministry of Transport v Noort [1992] 3 NZLR 260 (CA) at 283]. The guidelines explain:

That means justifying your policy or proposed law with evidence such as research, empirical data, findings from consultation, reports, or the results of inquiries or reviews. As with any good policy development, it is important not to act on assumptions, but to provide a well-argued case – based on high-quality analysis and research – that clearly establishes why a particular course of action is necessary. You should avoid relying solely on comparable overseas developments to justify your proposals. The social/political and cultural context in those countries, which would go to demonstrating the justification in their jurisdictions, may be significantly different to our own.

I think that is good advice and accords with my view that “demonstrably justified” limits are limits that are based on actual evidence and not mere supposition.

Last year a friend sent the Ministry of Justice an Official Information Act request in relation to the electoral finance reform project to find out what evidence the Ministry had collected to support its apparent belief that there is a strong causal relationship between electoral spending and electoral outcomes.

The Ministry of Justice responded by indicating that it holds no documents, reports or studies carried out or procured by it on or after 18 September 2005 (ie in the period where it worked on both the Electoral Finance Act 2007 and the current review of electoral law) concerning:

  • the empirical relationship between party expenditure and electoral outcomes in New Zealand;
  • the empirical relationship between candidate expenditure and electoral outcomes in New Zealand; and
  • the empirical relationship between (non-party and non-candidate) interest group expenditure and electoral outcomes in New Zealand.

This is surprising. The Issues Paper prepared by the Ministry of Justice as part of its review of electoral laws, makes reference to the need to create a “level playing field” and highlights the concern that high spending limits may “’tilt’ the playing field unreasonable”. Given the policy decisions that have been made, these concerns must have been accepted to some degree. In fact, the rationale behind much of the Ministry’s work is that there is a strong link between electoral spending and electoral outcomes.

Has the Ministry followed its own advice? Or has it fallen into the trap it warns of in the guidelines and acted on mere assumptions?


I’m not sure I agree with you a hundred percent on your police work, there, Greg

March 3, 2010

The Herald reports that Police Association President Greg O’Connor is calling on the judiciary to start convicting people for insulting police to help counter a culture of disrespect. According to Mr O’Connor, such disrespect leads to assaults on police officers. Apparently yelling “bugger off” to a cop is OK but if one yells “f*ck off pigs”, the police should arrest you and charge you with insulting behaviour.

Where to start?

First, where is the evidence for the claim that a “culture of disrespect for the law leads to assaults on officers”? Many professions are held in low regard by the public, used car salesmen to use a cliched example, but people don’t generally go around assaulting them. There might be more assaults taking place against the police but in the absence of evidence of causation, I’m skeptical that a lack of respect for the police is the cause of this.

Second, it seems to me that Mr O’Connor confuses “respect for the law” with the fear of being arbitrarily arrested for using colourful language in bars. Respect is earned through the way the police conduct themselves when they carry out their admittedly difficult duties. It is not enforced through the threat of arrest. If the threat of being arrested for insulting the police leads to respect for the law and police officers, such respect must have been high indeed in the former Soviet states.

Third, Mr O’Connor seems to think that it is appropriate for the police to tell judges how cases should be decided:

He is in discussions with Police Commissioner Howard Broad to approach the judiciary with a strategic plan to improve respect for the law.

“It requires District Court judges to agree – in copybook cases – that they will convict people who are arrested for insulting behaviour.”

Perhaps the rate of convictions for this type of offending is low because the Supreme Court has said that the provisions in question raise free speech questions. And perhaps Mr O’Connor would like to reflect on the separation of powers and the appropriateness of part of the executive branch of government telling the judiciary how to decide cases.

What is freedom of speech?

March 3, 2010

New Zealand Bus’ decision not to allow the New Zealand Atheist Bus Campaign to place these advertisements on its buses has some, including some religious folks, complaining that free speech rights are being interfered with. While I think that the advertisements would have stimulated a healthy debate (a debate which is happening already to some extent thanks to the publicity NZ Bus’ decision has generated), I don’t think this is a free speech issue (at least not one that implicates the Atheist Bus Campaign’s free speech rights).

What does the right to freedom of speech mean? It does not mean that I can compel other individuals to carry my message on their buildings or billboards or put up placards on their front lawn. It does not mean that you or I have a right force others to listen to our message. You’re free to stop reading this blog for instance, although I hope you don’t.

Freedom of speech is a restriction on government action. It is essentially a right not to be censored by the government. It is not a right that imposes positive obligations, rather it limits the way in which the government can act. Alan Dershowitz explains this point nicely in his book Rights from Wrongs:

There is no right to speak freely in all contexts. If you say something your boss does not like, he may fire you. Your spouse may leave you. Your parents may punish you. Your private school may expel you, and your friends may abandon you. Only the government may not restrict your right of free speech. (at 175)

So New Zealand Bus is free to choose whether to accept this or any other advertisement. Its right to free speech allows it to make that choice without censorship or direction from the government. That is of course not to say that we might not hope that it would carry any message to promote public debate but its refusal to do so does not interfere with the atheist campaigners’ free speech rights. Critics of New Zealand Bus’ decision are of course free to exercise their right to freedom of speech to try to convince it to change its mind (as they are doing).

I note that New Zealand Bus’ decision may raise other issues, such as whether it is discriminating against the atheist campaigners on religious grounds.  That’s an issue that I think Jesse has some thoughts on, so I will leave it for another day.

OIA lessons for the media

February 28, 2010

Dominion Post columnist Tracy Watkins has an interesting column that explains how the details of spending on ministerial credit cards were made public. The information was released following an Official Information Act (OIA) request made by the media. Watkins explains that on this occasion copies of ministerial credit card statements were provided to the media. Previously it seems that the media were only provided with summaries of overall spending:

Requests under the Official Information Act for ministers’ credit card expenses have been made before. But what was new about this week’s release was the manner in which the information was provided. Minister’s credit card statements were supplied in their unvarnished form. Identical requests under the former government garnered nothing like the same level of disclosure; the information was supplied in table form, with totals ascribed to each minister and little more. The only checks that could be made were phone calls to individual ministers, asking them for an explanation as to why they had run up a particularly large bill in comparison to others.

Commenting on the article, David Farrar suggests that the Dominion Post could reveal the exact wording of the request so that others may use it in future.

While that is a helpful suggestion, as far as I can tell the media (or anyone else) could previously have requested copies of ministerial credit card statements. That is because the Official Information Act 1982 allows the person requesting official information to request that the information be provided in a certain format.

Section 16(1) of the OIA says that where information is requested that is comprised in a document, the information can be made available in a number of ways, including:

(a) by giving the person a reasonable opportunity to inspect the document; or

(b) by providing the person with a copy of the document; or

(e) by giving an excerpt or summary of the contents; or

It would seem from Watkins’ column that in the past Internal Affairs chose to respond to requests for details of ministerial spending by providing a summary of spending.

However, section 16(2) of the OIA provides that subject to a provision about the deletion of information where there is a good reason for withholding it, the Minister or Crown organisation responding to the request “shall make the information available in the way preferred by the person requesting it”. The information can only be provided in a different format if providing the information in the way requested would (section 16(2)):

(a) impair efficient administration; or

(b) be contrary to any legal duty of the department or Minister of the Crown or organisation in respect of the document; or

(c) prejudice the interests protected by section 6 or section 7 or section 9 and (in the case of the interests protected by section 9) there is no countervailing public interest.

I think that it would be difficult to rely on any of those grounds to refuse releasing copies of the actual ministerial credit card statements.

I wonder if media organisations previously said that they wanted copies of ministerial credit card statements or if they simply asked for details of ministerial spending. I suspect they may just have asked for details of spending. Perhaps after this incident they will be encouraged to ask for original documents more often when making future OIA requests.

VSM: whose choice?

February 27, 2010

In an earlier post I explained why I think that the right to freedom of association in the New Zealand Bill of Rights Act 1990 includes the freedom from compelled association. Some opponents of Sir Roger’s Education (Freedom of Association) Bill have argued that even if that is the case, the current provisions of the Education Act 1989 relating to membership of student associations do not interfere with the right to freedom of association. Two arguments are frequently made:

  1. That there is already freedom of association because students can choose to make student association membership voluntary by holding a referendum. (Chris Hipkins made this argument during the first reading of Sir Roger’s bill. Metiria Turei even went so far as to claim that the Bill infringed the right to freedom of association by taking away the right to have a referendum.)
  2. The right to freedom of association is not fringed because students may seek an exemption from membership of their students’ association. (This argument is made by the Save Our Services group.)

In this post I address both arguments.

The right of freedom of association belongs to the individual

The first argument rests on section 229B of the Education Act 1989. That section allows students at a tertiary institution where membership of the students’ association is compulsory to request the council of that institution to hold a vote on whether membership should remain compulsory. If 10% of students sign a petition requesting a vote, a vote must be held. Section 229C provides that the result of the vote determines whether membership will be compulsory in the following year.

The problem with this argument is that the right to freedom of association belongs to the individual. This is clear from the language of section 17 of the Bill of Rights Act which provides that “everyone has the right to freedom of association”.

The point was also clearly made by Justices La Forest, Sopinka and Gonthier in the Supreme Court of Canada’s decision in Lavigne v Ontario Public Service Employees Union. They explained that:

At the core of the guarantee of freedom of association is the individual’s freedom to choose the path to self-actualization. This is an aspect of the autonomy of the individual. (at322)

(My emphasis.)

The same point was made by Justices Gonthier, Arbour and LeBel in the Supreme Court of Canada’s later decision in R v Advanced Cutting & Coring Ltd (at [175]).

Those who make the argument that freedom of association is recognised by allowing a vote on whether membership should be compulsory, miss this point. They often argue the the mechanism of a referendum is a democratic way of allowing freedom of association. An argument along these lines was made by Jacinda Ardern in the first reading debate.  She said:

This bill is not about choice. Students have choice already, and universities have demonstrated that they are fully able to exercise that choice when and if they require it. I say again that they have learnt the lesson that the system they have is working for them. If they make the choice to have a referendum and they stick with universal student union membership, then that is a collective choice that they have made together. After they have made that collective choice, all of the services that then flow from it benefit that collective, and that choice is still there. That is democracy at work, plain and simple.

This misconceives the very nature of rights contained in bills of rights. Such rights are limits on the power of the majority designed to protect the interests of the minority. In this sense rights are undemocratic. But they reflect a democratically reached consensus that not every issue should be decided on a 50% + 1 basis.

So to this extent, the point made by Jacinda Ardern is correct. A referendum on student association membership is a democratic mechanism. But that is simply another way of saying that it is a mechanism that allows the majority to determine the issue for the minority. The infringement with the rights of the minority is not offset by the fact that the majority of students voted in favour of compulsion. That sort of utilitarian analysis is the antithesis of the rights based approach mandated by the Bill of Rights Act.

The ability to apply for exemption is limited and misses the point

The second defence of CSM rests on the ability to seek an exemption from membership of a students association.Section 229A of the Education Act provides that:

A students association may exempt any student from membership of the association on the grounds of conscientious objection; and, if exempted, the association must pay the student’s membership fee to a charity of its choice.

There are at least two reasons why I believe that the ability to apply for an exemption does not cure any inconsistency with the right to freedom of association.

First, students can only be exempted from membership on the grounds of “conscientious objection”. Students may be opposed to joining a student association for any number of reasons, many of which could not properly be categorised as conscientious objections. And students should not be forced to bring their opposition within any particular category. Freedom of association is a recognition of individual autonomy. The freedom is not limited by the reasons underpinning an individual’s choice.

Second, the conscientious objection provision only provides a means by which a student can opt-out of membership. The student is still compelled to be a member in the first place and to pay a membership fee. In order to terminate the membership the student must actively seek an exemption. The student’s freedom of association is still infringed because there is no initial choice.

That explains why I think that the current regime concerning student union membership is inconsistent with the right to freedom of association.  I see that Jesse has come to a similar conclusion about both these arguments in his submission to the select committee ([19]-[30]). He has also already blogged about why he thinks the infringement with the right to freedom of association is unlikely to be a justified limitation on that right (in terms of section 5 of the Bill of Rights). If I get time I may share my own thoughts on that issue later in the week.

“Things just ain’t the same for gangsters”

February 25, 2010

Dr Dre is suing Death Row Records. The statement of claim is available online here and is fairly amusing.  Check out paras 3 – 7:

3. In 2009, Death Row’s music catalogue, including rights and obligations relating to The Chronic, was transferred through a federal bankruptcy proceeding to WIDEawake Entertainment, a purchaser that promised a new era of Death Row Records actually paying royalties to its artists and honoring its other commitments.

4. Specifically, the CEO of the supposedly new and improved Death Row Records stated: “I don’t think anyone could do as bad as the last guy.  Failure to provide royalties and whatever craziness went on, that’s not my way. It’s ethically wrong. I can’t do that,” promised Lara Levi, CEO of WIDEawake Entertainment.

5. Notwithstanding the rhetoric, this was another example of “meet the new boss, same as the old boss.” Dr. Dre hasnever been paid, either by Defendants or their predecessors. Defendants have also released to the public a Dr. Dre album entitled The Chronic Re-Lit, as well as a “Greatest Hits” album, without authorization. Neither Defendants nor their predecessors have honored a word of their agreements with Dr. Dre.  This lawsuit is to make sure the Defendants don’t forget about Dre.

6. Whether you get thugged or the check just doesn’t come, it’s all the same – someone else has your money. And whether its platitude-spouting, self-proclaimed soccer mom or a supposed gangster who isn’t paying you, it doesn’t change the fact that you’re not getting paid.

7. “Things just ain’t the same for gangsters … I’ve seen them come, I’ve watched them go … watched the lawsuits when they lost the dough … I just sit back and watch the show …” – Dr. Dre, plaintiff.


Also on the lighter side of things, a Family Guy clip about the FCC which is in keeping with the free speech theme of recent posts.

VSM: does freedom of association include the right not to associate?

February 24, 2010

Last year, Sir Roger Douglas’ Education (Freedom of Association) Bill was drawn from the members’ bills ballot.  (Incidentally, Sir Roger has been quite lucky with the members’ ballot recently, this week his Minimum Wage (Mitigation of Youth Unemployment) Amendment Bill was drawn from the ballot.) Anyway, the Bill is now before the Education and Science Select Committee and submissions are due by 31 March 2010 (details here). With the deadline for submissions approaching, I thought it might be timely to have a look at the Bill.

What is the Bill about?

The explanatory note to the Bill explains that:

The purpose of this Bill is to uphold students’ rights to freedom of association, by ensuring that no student is compelled to join a students’ association.

In order to understand why this is an issue, it’s necessary to take a step back. Before 1998 membership of student associations at tertiary institutions was compulsory. As a result of amendments to the law in 1998 and 2000 students are allowed to hold a vote to decide whether membership at their institution should be compulsory or voluntary. If 10% of students at a tertiary institution request a vote on the issue, the university is required to conduct a poll. The result of the vote is binding. In this way, if 51% of students at an institution decide to make membership compulsory, they can compel the remaining 49% to join.

Today the majority of student associations at universities are compulsory (Auckland being the major exception). Sir Rogers’ bill would change this, making membership of all student associations voluntary. This is generally called voluntary student membership (VSM).

Why does Sir Roger want to change the current system?

One argument Sir Roger is making in favour of the Bill is that it upholds students’ right to freedom of association, provided for in section 17 of the New Zealand Bill of Rights Act 1990. He says that the current system of compulsory student membership (CSM) breaches that right.

Over a series of posts I want to look at that claim and examine whether Sir Roger is right. I want to answer three questions:

  1. Does the right to freedom of association include the right not to associate?
  2. Does the current model of compulsory student union membership limit the right to freedom of association?
  3. If it does, is that limit justified under the Bill of Rights?

Does the right to freedom of association include the right not to associate?

Section 17 of the Bill of Rights simply provides that:

Everyone has the right to freedom of association.

In essence, the right allows individuals to choose who they associate with.  It might seem obvious that this includes the right to choose not to associate with a particular group and the right not to be forced to join a particular association. However, some people have argued that the right to freedom of association does not include a “negative freedom” or a freedom from compelled association (see for instance the Chen & Palmer opinion provided to the New Zealand Universities Student Association (NZUSA) in May 1997 which was tabled in Parliament on 11 June 1997 and is available from the parliamentary library). In this post I want to explain why I think that view is wrong. I’ll explain why I think the freedom of association includes the right to be free from forced association and in future posts I’ll consider whether the current version of CSM infringes that right and, if so, whether it is a justified limit on it.

Put very simply, the distinction between a “positive freedom” and a “negative freedom” feels like an exercise in semantics to me. If I am free to choose who I associate with, that freedom is equally constrained whether I am forbidden from joining my local squash club or forced to join the local rugby club. Freedom of association is a recognition of individual autonomy. In both cases my autonomy is constrained and it is not clear to me why proponents of the “positive” / “negative” divide think that one type of limit is different from the other.  Professor Huscroft makes this point nicely in Rishworth and others The New Zealand Bill of Rights (2003):

The positive/negative dichotomy is misleading, because it suggests that the freedom not to associate depends upon the existence of a stand-alone right. But the decision not to join an association can be characterised as an exercise of the right to freedom of association, just as remaining silent may be an exercise of freedom of expression, and choosing to be agnostic is an exercise of freedom of religion. (at 356)

This view is supported by the international case law.  Although there might have been some doubt about the position in 1997 when Chen & Palmer provided their opinion to NZUSA, recent cases have cleared up any uncertainty.

In Canada, the Supreme Court has considered the issue on two occasions.  The Court first considered it in a case called Lavigne v Ontario Public Service Employees Union. In that case the judges were split on whether the freedom of association included the freedom not to associate. Justices La Forest, Sopinka and Gonthier found that the right did include the freedom not be forced to associate.  They said that:

Forced association will stifle the individual’s potential for self-fulfillment and realization as surely as voluntary association will develop it. Moreover, society cannot expect meaningful contribution from groups or organizations that are not truly representative of their memberships’ convictions and free choice.  Instead, I can expect that such groups and organizations will, overall, have a negative effect on the development of the larger community.  One need only think of the history of social stagnation in Eastern Europe and of the role played in its development and preservation by officially established “free” trade unions, peace movements and cultural organizations to appreciate the destructive effect forced association can have upon the body politic. Recognition of the freedom of the individual to refrain from association is a necessary counterpart of meaningful association in keeping with democratic ideals. (at 318).

Justice MacLachlin did not think that it was necessary to finally decide this question but she indicated that she was inclined to think that freedom of association included the right not to be compelled to associate:

I am inclined to the view that the interests protected by s 2(d) [the right to freedom of association] goes beyond being free from state-enforced isolation … . In some circumstances, forced association is arguably as dissonant with self-actualization through associational activity as is forced expression.  For example, the compulsion to join the ruling party in order to have any real opportunity of advancement is a hallmark of a totalitarian state.  Such compulsion might well amount to enforced ideological conformity, effectively depriving the individual of the freedom to associate with other groups whose values he or she might prefer.

The three remaining judges disagreed.  They thought that the purpose of freedom of association was simply to “protect the collective pursuit of common goals” (at 252).

That minority view was firmly rejected in a subsequent Supreme Court decision called R v Advanced Cutting & Coring Ltd. In that case eight of the nine judges agreed that freedom of association included the right not be forced to associate.

The European Court of Human Rights has also found that the freedom of association includes the freedom not to be compelled to associate in a number of cases, including in Sigurjónsson v Iceland and in Sørensen and Rasmussen v Denmark.

Those cases are consistent with the basic intuition that I referred to earlier – forced association is as much a limit on individual autonomy as prohibited association. Given the agreement in the international cases on this point, I do not expect the debate surrounding Sir Roger’s bill to focus on this issue. Rather, I expect it to centre on whether the current provisions of the Education Act actually infringe the right not to be forced to join an association and, if they do, whether that infringement is justified.  I’ll endeavour to blog about those issues next week.

What happens if the judges of the Supreme Court are evenly split?

February 24, 2010

A rather inane point for a Thursday afternoon perhaps but the issue arises because the Supreme Court judges apparently decided to hear the Gwaze appeal with only four judges this morning after one judge was called away because of a family emergency.  The Press reports that:

If the Supreme Court appeal is evenly split between the four judges, the decision would automatically support the Crown appeal.

I think the journalist has made a mistake here.  Section 31(2) of the Supreme Court Act 2003 is clear about this point:

If the Judges are equally divided in opinion, the decision appealed from or under review is taken to be affirmed.

In other words, where the judges are evenly split the judgment below is affirmed, so the appeal is dismissed.

Incidentally, where a judge is absent the Supreme Court has a discretion whether to adjourn the hearing or to continue with the sitting (see section 30).

Colorado Supreme Court strikes down limits on campaign contributions

February 23, 2010

Continuing the campaign finance theme briefly, Volokh reports that the Colorado Supreme Court has just struck down certain campaign contribution limits. Campaign contribution limits are limits on the amount that one can contribute to a political candidate, as opposed to limits on expenditure independent of a candidate (ads saying vote for or against candidate X). It was this later type of restriction which the US Supreme Court considered in Citizens United.

Anyway, the case is Dallman v Ritter. The Denver Post has a supportive editorial here.

I haven’t had a chance to read the case in detail yet but once I do I may write a further post.

Requiring firms to do pro bono work

February 23, 2010

I read earlier in the week that the Attorney-General is considering requiring law firms who win government contracts to do a certain amount of pro bono work (ie legal work which is in the public interest performed for free or at a discounted rate) as a condition of the contract.

I’m sympathetic to the idea of encouraging lawyers to do pro bono work but I hope that the Attorney-General and the Minister of Justice take some economic (as well as legal) advice before implementing any new policy in this area.  In particular I worry about what will happen if the government ends up specifying a list of approved clients who firms on government contracts must do pro bono work for.  There could be at least two unintended consequences of such a policy:

  1. Depending on how the policy is designed, firms who already do pro bono work may have an incentive to switch from providing services to their existing pro bono clients to providing services to clients on the approved list.  That is, the effect of the policy may simply be to change the organisations that firms do pro bono work for rather than to increase the amount for pro bono work done.
  2. Firms may charge the government higher rates to absorb part of the cost of the pro bono work.