Morse wins right to appeal flag-burning conviction
May 18, 2010
Yay! Tony Shaw, Felix Geiringer and I have been granted leave by Supreme Court to argue that Valerie Morse should not have been convicted of offensive behaviour for burning a flag at an Anzac Day ceremony. Along the way, hopefully we’ll be able to sort out how the Bill of Rights applies to open-textured criminal offences like this one, and particularly when they’re applied to protesters.
Topics: NZ Bill of Rights Act, Protest speech | Comments Off on Morse wins right to appeal flag-burning conviction
Siemer wins reduction in sentence for contempt
May 18, 2010
Vince Siemer has reshaped the law of contempt in New Zealand. The Supreme Court has ruled 3-2 that the Bill of Rights right to a jury trial applies to those charged with contempt, since they face potential jail terms of more than 3 months. But since it’s unfeasible to give all contempt respondents jury trials, the maximum penalty for contempt of court is now 3 months. That’s on a par with seeking donations by false pretence or disorderly assembly.
So Vince is still off to jail, but for three months, not six.
Topics: Contempt of Court, General, NZ Bill of Rights Act | Comments Off on Siemer wins reduction in sentence for contempt
Price wins chocolate fish
May 18, 2010
In a recent speech Law Commission President Sir Geoffrey Palmer laid down a challenge: define “privacy”. He promised a chocolate fish for the best entry. His view is that privacy defies definition. I proved him wrong. This is the correct definition of privacy:
Privacy is what people believe they have lost when they complain about their privacy being infringed.
I am delighted to announce that I won the competition. Now that I have consumed the prize, I can safely confess that I thought this entry was better:
I have a definition of “Privacy” for you, unfortunately because of privacy laws I am unable to divulge it to you.
As you’ll see, many entrants made the mistake of making a serious attempt to define privacy, and most of them submitted definitions revolving around control of personal information. What this misses is privacy invasions that consist of invading private spaces or paying unwanted attention. On a serious level, I think my colleague Dr Nicole Moreham has come up with a pretty robust and workable definition of privacy as a state of desired inaccessibility. But happily for me, she didn’t enter.
Topics: Privacy tort | Comments Off on Price wins chocolate fish
Jones wins defamation damages of $104,000
May 18, 2010
Bob Jones won $104,000 in his defamation case against Chris Lee. I don’t know much about the case, but on this report it illustrates some good lessons: an apology in time can avert an expensive and risky court battle; both sides’ costs probably exceeded the damages award (though such actions are cheap compared with costs in the UK); and it doesn’t pay to take on Bob Jones, as Hugh Templeton also famously discovered.
Topics: Defamation | Comments Off on Jones wins defamation damages of $104,000
Hate speech
May 10, 2010
In recent issues of the Listener, Deborah Hill Cone has been upping the frequency of her snarky swipes at the left. Last week, she highlighted the irony of liberals who preach tolerance but try to “shut down” Ann Coulter’s speech. She suggested that “[c]onservative speakers can’t visit campuses in the US now without bodyguards”. What, all of them?
Anyway, who are these liberals calling for her books to be burnt? Aren’t most liberals simply trying to point out that Coulter’s bile-filled screeds are riddled with errors and that she’s not worth listening to?
The week before, Deborah wrote:
The Spectator’s Hugo Rifkind took the words right out of my mouth about why he couldn’t be a leftie: “I could never be comfortable on the left, there’s too much hate there.”
Can she seriously believe this? The usual knock on liberals is that they are softies, tree-hugging, criminal-coddling, immigrant-loving, PC wetnurses. They care too much. Righteousness, that’s the liberal speciality, not hatred.
Sure, the left produce some nasty invective, but it’s not a patch – not a stitch on a patch – of the hatred spilled on the right. Where’s the left’s equivalent of WhaleOil? Or Michael Laws? Of Fox News, Rush Limbaugh, Powerline, Michael Savage?
Deborah should be taken out the back and shot.
Topics: General | Comments Off on Hate speech
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 | Comments Off on Sir Geoffrey Palmer: the fourth branch of government
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 | Comments Off on America: Fuck yeah!
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 | Comments Off on The right to receive information revived…
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 | Comments Off on NZ’s Dunne v Canwest
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 | Comments Off on Scotland’s Dunne v Canwest
« Previous Entries Next Entries »