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Law Commission praised

By Steven | March 21, 2013

Last night, delivering the Robin Cooke memorial lecture, UK Court of Appeal judge Dame Mary Arden was full of praise of NZ’s Law Commission’s paper on media regulation. She noted that, unlike the Leveson inquiry, the Law Commission’s brief was to consider media regulation as a whole, not just focus on print media. The Commission’s paper suggested there should be one independent regulator (with – horror! – some statutory underpinning). Dame Mary said the idea of a converged regulator was “overwhelmingly logical”.

(It will be interesting to see whether the Law Commission maintains this position, and whether it reaches a view on whether membership should be compulsory, and for whom, when it releases its final report, due shortly).

The main point in Dame Mary’s lecture, “Press, Privacy and Proportionality”, was that the judicial review ground of unreasonableness will be replaced by review for proportionality, and that this is nothing to fear. This is a big deal: under the traditional view, to challenge a government decision for unreasonableness, you’ve got to show it’s outlandish. Under a proportionality assessment, if the decision affects rights, the government has to show it’s necessary for some significant purpose. But Dame Arden says that proportionality is a flexible standard: its application will vary depending on things like the expertise of the original decision-maker, and that the courts must be careful to ensure that governments aren’t prevented from fulfilling their constitutional roles.

Certainly it’s true that the European Court of Human Rights and some domestic courts have been using proportionality, or something like it, to strike the balance between free expression and privacy rights for some time now, and that this is reflected in a the emergence of a set of principles concerning responsible journalism, as Dame Adern noted. And some aspects of the Leveson solution (such as the levels of costs and damages) may call for proportionality assessment. But I must confess that the link between this and her point about judicial review seemed somewhat opaque to me.

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