Sir Geoffrey Palmer: the fourth branch of government
May 10, 2010
A sentence from the Herald on Sunday’s story about Louise Nicolas’s objections to Clint Rickards’ presence of the duty solicitor roster caught my eye:
A lawyer, who did not want to be named for fear of punishment from the Law Commission, said there were many people at the courthouse “who don’t want the guy in the building”.
I knew that the Law Commission under Sir Geoffrey had a far-reaching agenda, but I didn’t know it was that far-reaching.
Topics: General | 49 Comments »
America: Fuck yeah!
May 6, 2010
The Onion reports on a US Supreme Court obscenity decision upholding First Amendment rights. Recommended, if only for the accompanying photograph.
Topics: General | No Comments »
The right to receive information revived…
May 3, 2010
I have long thought that our official information laws ought to be affected by the NZ Bill of Rights Act’s guarantee of freedom of expression, which says:
Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
Surely, I thought, the right to receive information could include information about the workings of government. Yes, there will often be reasons for government to withhold information. The rights in the BORA can be limited if the restrictions are reasonable, prescribed by law, and demonstrably justified in a free and democratic society. So most of the withholding grounds in the Official Information Act, for example, would probably pass muster. But there ought to be an argument that those grounds ought to be interpreted and applied consistently with the right to receive information in the BORA, and a convincing justification made out if information is to be denied. The same would go for applications for access to court material. And perhaps even to the Privacy Act.
But the balance of authority has been against this proposition. I debated this with Andrew Geddis and others in the comments section of this MLJ post. I cited NZ and European authority against this interpretation of the right to freedom of expression. (I could also have cited the Hutton inquiry).
But recent EHCR authority may indicate a change of approach – at least where the information requested can be regarded as significant for the media’s social watchdog role. As Dan Tench notes, this could have implications (in the UK, anyway) for access to court proceedings, government inquiries, government information – and even perhaps information held by large corporations that may be required in the public interest.
The UK Court of Appeal has gone some way to accepting this. Might it catch on here?
Topics: NZ Bill of Rights Act, Official Information Act | 99 Comments »
NZ’s Dunne v Canwest
May 3, 2010
Here’s a column I wrote about the Dunne case suggesting that the media’s predictions of doom and gloom were wrong.
Judging by the media reaction, Justice Young’s decision to order TV3 to include Peter Dunne and Jim Anderton in its leaders’ debate last week was one of the most astonishing blunders in judicial history.
Media Freedom Committee Chair Tim Panckhurst called it “bizarre.” The New Zealand Herald said the judge “demonstrated a cavalier disregard for fundamental issues of media freedom and private-company rights” and called his decision “astoundingly inappropriate.” Sunday Star-Times columnist Michael Laws described it as “staggeringly stupid.”
All fretted that the decision paves the way for judges to tell the media what it has to publish. “The ruling implies that every time Mr Anderton, or any other MP, expresses a view during a parliamentary debate, the media will be obliged to report it,” thundered the Herald.
This would indeed be – as Fairfax New
But it’s not.
In fact, it’s difficult to believe that any of them have even read Justice Young’s decision. If they had, they would have found its reach much more limited than they seem to imagine.
Essentially, the judge said that even though TV3 is a private company, there are occasions when companies do things that are so pivotal to our democracy that the courts may have to step in to make sure they don’t make a complete hash of them. Here, TV3 was running a debate that could conceivably affect the make-up of the next government. That possibility isn’t merely theoretical. Recent history shows how a similar debate on TVNZ (which also featured the “worm”) during the last election jump-started the fortunes of United Future. Before that debate United Future was polling at 0.4%. The worm and, afterwards, the media drooled over United Future’s leader, Peter Dunne, and the party garnered 6.9% of the vote at the election.
Even so, TV3 was going to exclude United Future from its leaders’ debate this year. It had earlier announced that only the top six parties in its July 28 poll would make the cut. ACT came in sixth, with 1.6%. United Future was next with 1.4%. Jim Anderton’s Progressive Party scored 0.4%.
Justice Young wasn’t impressed with this selection procedure. Perhaps he recalled his days as president of the Electoral Commission, the agency that divvies up public funding and airtime for party advertisements. It’s a rigorous process that weighs up everything you’d expect, including all recent poll results, existing representation in Parliament, and the results of any recent by-elections.
And here was TV3 basing its whole decision on one poll! A poll whose 3.1% margin of error made the differences between the smaller parties a statistical nonsense! Justice Young concluded that TV3 was acting “unreasonably and arbitrarily.”
The judge wrestled with the problem of who should be included in the debate. He said he would rather let TV3 re-decide itself based on proper principles. But time was running out, so he said the only sensible way to draw the line was to order the inclusion of those who, on the evidence before him, were likely to be in Parliament after the election.
The decision does have its problems. Arguably, Justice Young didn’t pay enough attention to the careful balancing that’s required under the Bill of Rights Act when freedom of expression is at stake.
Arguably, he should have acknowledged that analogous cases where the courts have intervened have involved private organisations that were performing regulatory functions, like the Advertising Standards Authority. TV3 isn’t performing that sort of public function when it holds debates.
And arguably, the judge set the standard of arbitrariness too low. There are cases that say a person’s behaviour has to be “so absurd that he must have taken leave of his senses” before the courts will treat it as “arbitrary.” TV3’s debate decision was based on a scientific poll, and was unbiased, so it wasn’t that absurd.
Bolstering this argument is Justice Young’s botched statistical reasoning. He was wrong to say that the 3.1% margin of error made the minor parties indistinguishable. What he (and the lawyers and most journalists) didn’t realise was that the margin of error shrinks when considering the smaller numbers. They’re more likely to be accurate. For instance, the margin of error for the polling of ACT (1.6%) and United Future (1.4%) is actually about plus or minus 0.8%.
That means Justice Young was right to conclude that ACT and United Future were essentially statistically indistinguishable from each other. But it also means that both are statistically distinguishable from the Progressives on 0.4%.
Ironically, on Justice Young’s reasoning, it may have been rational for TV3 to exclude Jim Anderton, but not Peter Dunne.
So there’s a fair chance that TV3 would win an appeal. But that doesn’t mean the original decision is bizarre or stupid or cavalier. In part it’s because TV3 – who only had a day to prepare its case – didn’t make the most of the available arguments.
Even if Justice Young’s decision stands, it’s very unlikely to usher in a new era of judicial management of the media. True, the door is open a chink for politicians to challenge private media decisions they think are arbitrary and that may undermine democratic rights. And under MMP, where a few votes in key electorates or a fractional shift in party support nationwide can conceivably determine who governs the country, it’s arguable that the media make many decisions that have significant electoral impact.
But Justice Young insisted such cases rarely trigger the court’s powers. His decision is tied closely to the broadcasting framework, so it’s unlikely to affect the print media. It’s hard to see it applying outside election time. Even during election season, how often will a broadcaster make such a manifestly daft editorial decision, in the context of a programme with such powerful democratic relevance?
Sure, other politicians who feel slighted by the media might be tempted to try it on in the courts. But they’re unlikely to get anywhere. For instance, the Destiny Party is now gunning for TVNZ’s Marae programme for excluding them from its scheduled candidates’ debates for Maori seats. Marae’s producer says the debates were restricted to the Labour and Maori parties, who were well ahead in the polls. They made an exception for independent candidate Mere Mangu in Te Tai Tokerau electorate as she was polling well too.
If that’s right, it seems a far cry from the sort of arbitrary media decision-making (and probably the sort of national impact) that Justice Young was talking about in the TV3 case.
Justice Young’s decision doesn’t really have “dangerous implications for a free and robust media in this country” as O’Hara and other media bigwigs contend. If there’s one thing truly guaranteed to damage the media’s role in the democratic process, it’s this sort of self-serving exaggeration from the very people we rely on to deliver accurate and impartial information.
PS. Dean Knight’s analysis of Dunne is here.
Topics: Electoral speech, NZ Bill of Rights Act | 63 Comments »
Scotland’s Dunne v Canwest
April 30, 2010
Remember Peter Dunne’s successful legal action forcing his inclusion in TV3’s televised election debate?
The Scottish National party has tried it too. Not so successfully though.
[PS Decision here. A few notable things. First, it’s hard to disagree with the party’s claim that the debates really are extremely significant in determining electoral support. The Liberal Democrats’ bounce seems further proof of that:
The impact of the previous two debates on the media coverage of the General Election campaign as a whole, has been demonstrably the single largest factor in the current UK General Election campaign in terms of impact on the media profile , approval ratings of party leaders and overall voting intention …
Second, the delay in bringing the application was unforgivable. They’d known about the format of the debates since last December, and the application wasn’t made until after the first two televised debates. The judge found the delay significant. It may be explained, I think, by (a) the party’s realisation that it had a much better shot at the BBC, which hosted the third debate, since it’s a public body, rather than Sky and ITV which hosted the first two; and/or (b) the party’s realisation that its case was hopeless, and its real objective was to get some publicity during the election and to apply pressure on the BBC to crank up its coverage of the party outside the debates; and/or (c) the party’s desire to keep costs down.
Third, the application was surely doomed from the outset. The BBC’s decision was plainly not unreasonable. Even on the principles laid down in Dunne v Canwest, this application would not have succeeded.
Topics: Electoral speech, General | 47 Comments »
Blind, not stupid
April 29, 2010
As Justice McGechan J put it in the Tucker case, justice should be blind, but it should not be stupid. Judges shouldn’t try to suppress information when the public know it already.
The Chief Justice said the same thing in the famous “American Billionaire” case:
Where information as to the identity of someone appearing before the Court is already in the public domain, it will not generally be appropriate to grant name suppression
So what’s going on here?
Two police officers charged after a drinking incident have had their names suppressed, despite being named in a Herald story for several months.
Topics: Name suppression | 48 Comments »
The Devil’s in the detail
April 28, 2010
How often do you check those website boxes that say “I’ve read the terms and conditions below and agree to them”?
Now, how often do you actually read the terms and conditions? Me neither.
Had we signed up to Gamestation on April Fool’s day, we would have been agreeing to this:
By placing an order via this web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non transferable option to claim, for now and for ever more, your immortal soul.
And this:
Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from gamesation.co.uk or one of its duly authorised minions. We reserve the right to serve such notice in 6 (six) foot high letters of fire, however we can accept no liability for any loss or damage caused by such an act. If you a) do not believe you have an immortal soul, b) have already given it to another party, or c) do not wish to grant Us such a license, please click the link below to nullify this sub-clause and proceed with your transaction.
Nice.
Of course, nobody picked it up. It’s a beaut little demonstration of the fact that no-one bothers to read them. They’re probably still binding on us, though. Having ticked the box and all.
What about all those websites that don’t require us to expressly accept the terms and conditions, which will probably just sit under a little-clicked link headed “terms and conditions”? Are they binding on us? Perhaps not. A US court recently ruled that a manifestation of intent to consent was needed before a visitor could be held to a particular condition on the site (ie that they accept Colorado’s jurisdiction over disputes concerning the site). Question: if the particular condition (or the existence of the conditions) was sufficiently prominent, might revisiting the site later – this time, one assumes, aware of the clause – amount to consent?
Topics: Internet issues | 48 Comments »
Laws confused about laws
April 26, 2010
For someone who is readily outraged by news stories that contain falsehoods about him, Michael Laws certainly doesn’t display the same regard for accuracy in his own journalism.
In the Sunday Star-Times yesterday, he railed against the Declaration on the Rights of Indigenous People, arguing that it is likely to be a potent legal force for change in the country. Along the way, he seriously mischaracterises its status, saying it “gifts [Maori] a path toward self-determination”; it will “influence all future law and policy practice”; it will “advance” Maori activists’ “separatist agenda”; “it gifts the right of veto to Maori upon policies that they can consider may not be in their best interests”; it “will soon become a staple in public law lectures across the country”.
Wrong.
For one thing, it’s unlikely to find much of a place in general public law lectures (as opposed to specific courses on indigenous rights). It’s not significant enough. It might rank a bare mention, along with a myriad of international instruments that affect NZ in various ways, but it’s a long way down the list of international documents with serious clout. This remark of Laws’ is best filed under “Laws – Loathing of Law Lecturers” rather than “Public Law – Likely Curriculum”.
I’d also be surprised if there’s a law school in the country whose public law course gives any lengthy play to even the most important international declaration ever: the Universal Declaration on Human Rights (UDHR). Why not? Because its importance is largely rhetorical and historical. It certainly paved the way for other international instruments that did have more bite – such as the International Covenant on Civil and Political Rights (ICCPR). The difference is that the UDHR is non-binding and aspirational; the ICCPR creates obligations for those countries that sign up. There is no formal penalty for countries that sign the UDHR if they later breach it. There is no place even to take a complaint. Countries don’t have to report to any UN committee about how they’re getting on in implementing it. At best it may play into the rules of international law that emerge by a consensus of nations. But it can’t be enforced in any court.
So that’s the status also enjoyed by the Declaration on the Rights of Indigenous People. In fact, it’s much weaker, since it doesn’t have the grandfatherly gravitas of the UDHR.
It might get some teeth if its principles were embodied in a proper treaty like the ICCPR. With the ICCPR, signatories agree to comply with the obligations. They agree to ensure that their domestic laws reflect those obligations. They have to report periodically to an international committee about their progress in implementing those obligations. They may even agree (as NZ has) to allow citizens to make complaints to the Human Rights Committee.
Still, those are not very strong teeth. They are only baby teeth. They don’t have very much bite. There is very limited scope for them to affect the substantive law in NZ. They can’t be directly enforced in our courts. They may be relevant when courts are interpreting a wide statutory power or ambiguous statutory phrase. They are likely to be raised when policy is being developed. So even though such Conventions are binding on the country at international law, they don’t necessarily have much impact at the coalface of the NZ courts and in Parliament. Even if the UN Human Rights Committee upholds a complaint against us, or otherwise criticises our lack of compliance with the ICCPR, we might ignore them. Other countries might frown at us for not playing nice in the community of nations. But it doesn’t change NZ’s laws. For example, the no-fault possession offences in our censorship laws have long been criticised by the UN Human Rights Committee, but we’ve chugged happily along with them.
Remember: that’s the status of the Covenant, an international instrument whose obligations are “binding” on us. A Declaration doesn’t even reach that degree of significance. It’s a ghost in the machine.
Add to that the government’s statement delivered to the UN when signaling its u-turn on the declaration. It’s chock-full of riders and hedges: repeated references to NZ’s “existing frameworks”, “own distinct approach” and “existing legal regimes”, and this:
Those existing frameworks, while they will continue to evolve in accordance with New Zealand’s domestic circumstances, define the bounds of New Zealand’s engagement with the aspirational elements of the Declaration.
In other words, “we’re doing this our way”.
Starting to get the idea that this has been overblown a bit? Right. It doesn’t provide “rights of veto” over legislation. It doesn’t put Maori on a path to self-determination or separatism. It will not influence all future law and policy practice.
Here’s what it might do. Lawyers may occasionally use it to suggest that a particular statute or statutory power should be interpreted consistently with it, but only where:
1. the statute is genuinely ambiguous, AND
2. the declaration is highly relevant to the issue, AND
3. the lawyer is able to slide around the problem that the declaration is not based on any government promises , and so does not technically raise the presumption of consistency with international obligations; AND
4. the lawyer also overlooks the government’s cautious statement to the UN about the boundaries of its support for the declaration; AND
5. there is a favourable wind.
It’s likely to form but one strand of an argument made up of many others, or it’s likely to lose. Hardly “an invitation to existing courts to expand an existing breach into a chasm”, as Laws would have it.
The declaration may also be brought up in discussions of government policy, but I doubt it will have much sway independent of whatever support the government may already have for the policy in question. The Waitangi Tribunal is likely to draw from it, though its jurisprudence will continue to revolve around the Treaty of Waitangi.
Mostly, it will be a rhetorical tool used by Maori interests and a rod for the government’s back by those opposed to it. Like Laws. That may be the biggest impact it has, perhaps bearing out the headline after all: “Ripples from this DRIP will be far-reaching”.
Topics: Media ethics | 46 Comments »
Flogging content
April 26, 2010
RNZ’s Mediawatch this week looked at the ethics of the media’s practice of drawing content, including pictures, from social networking sites. Host Colin Peacock mentioned a Herald on Sunday article that pulled material from a car accident victim’s Facebook site, including a photo of him, adding:
Like many people using the social networking websites these days, the victim in this case had chosen not to restrict access to the material he posted on Facebook, so there was nothing to stop any journalist looking at it or putting it in their stories.
It’s true that journalists can draw information from such sites, and it’s often good reporting. But it’s not true that there’s nothing to stop them putting the photos in their stories. This will almost always be a breach of copyright, unless the copyright owner’s permission is obtained first. Open access settings on Facebook do not change that basic rule. (True, there’s an emerging public interest defence to breach of copyright – and that’s a welcome development, I think – but it’s rather tenuous at the moment, and at its best will still demand legitimate public concern in the photo itself, a standard which won’t often be satisfied).
Stuff’s social media editor Greer McDonald was interviewed. She said, at various points, that “where possible” they seek permission for the use of such material, and that “on all occasions we seek permission”. She also gave an example of a particular situation where they hadn’t: she didn’t imagine anyone sought permission from the family of murdered Scottish backpacker Karen Aim before using travel photos from her Bebo profile – this “added to the story in a way that wasn’t negative”. Well, maybe. The family, who owned the rights to those photos, may conceivably have taken a different view. (McDonald did note that families were often happy to provide permission in such circumstances, though).
I have heard of situations where media organisations, including Fairfax, have used people’s photos without seeking permission first. I suspect it’s fairly common. If someone objects, they’ll offer them something (maybe a couple of hundred dollars or so). If the copyright owner won’t deal, they’ll probably just take it down. The copyright owner could sue for the brief use of the photo without permission, but who’s going to bother?
Topics: Copyright, Media ethics | 53 Comments »
Back on the block
April 23, 2010
I’m back in Wellington after a sojourn in Melbourne for most of six months.
While we’re not talking about media law, I will take the opportunity to post the alternate version of the Australian national anthem I composed for them while I was over there. I have long been impressed by the line “Our home is girt by sea”. It’s pithy. It captures an essential feature of the country. It’s undeniably accurate. Alas, the rest of the lyrics do not live up to this impressive standard, so I set about writing ones that did. The tune is the same:
Australia is a continent
With sand and dirt and trees
Inside there’s not much water but
Our home is girt by sea
It’s got a lot of wattle
And the odd Koala Bear
It’s mostly flat but way out back
A giant rock is there
Perhaps we could gently encourage them to adopt this much preferable version by singing these lyrics during the anthem-playing before test matches with Australia…
Topics: General | 49 Comments »
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