Legal Beagle by Graeme Edgeler

Much has been written about the importance of discretion in an emergency situation, and the concerns raised by the potential for it to be exercised arbitrarily. Given the quality of the discussion, there seemed little point in adding to it at any length. In particular, I point to the evidence given this morning by Professor John Hopkins of the University of Canterbury to the House of Representatives' Epidemic Response Committee. The concerns raised by him and by others have raised are real and remain, and are a matter for ongoing vigilance by the Epidemic Response Committee, and by the press, and if necessary, by the Courts.

But one highly technical aspect of today’s discussion hasn’t been remarked upon, so I saw some use in writing this post.

This morning, members of the Epidemic Response Committee were questioning Police Commissioner Mike Bush. I did not watch the discussion in full, but media reports indicate the Commissioner advised the Committee Police had obtained legal advice from Crown Law and were relying on that in the exercise of their extraordinary powers under the Civil Defence Emergency Management Act. ACT MP David Seymour at least has request (and perhaps others have as well?) that Police release this advice: “The rule of law requires that rules are clear and publicly accessible. That is not the case at present. Police can't demand respect from the public but must earn it. Police have an opportunity to encourage public respect for the law by being open and transparent and releasing Crown Law advice.”

At the committee meeting, Bush didn’t agree to release the information, but indicated Police would seek advice from Crown Law on whether to release it.

While these has been some disappointment at this, it isn’t surprising: as a matter of Government practice, Bush can’t release it.

Paragraphs 4.69 – 4.72 of the Cabinet Manual record the position of the Government on the release of Government legal advice:

Release of legal advice

4.69 As part of the Attorney-General’s constitutional role, the Attorney-General represents the Crown in the courts and provides legal advice to the government. Day-to-day instructions to legal advisers are usually provided by departments, agencies, or other Ministers under the authority of the Attorney-General. Nevertheless, the constitutional responsibility of the Attorney-General remains. The Attorney-General has the right to:

(a) obtain copies of all legal advice provided to the Crown (from whatever source);

(b) determine whether to release that advice; and

(c) instruct all lawyers acting for the Crown.

4.70 When determining whether to release legal advice that has been provided to the government, or to refer to the content of such advice, and waive (or potentially waive) legal privilege, there is a need to:

(a) ensure a coordinated government approach to release;

(b) avoid any adverse impact from a release on current or potential legal proceedings; and

(c) ensure that no single release will create an undesirable precedent.

4.71 Where a Minister or a government department considers that it is necessary to release legal advice or refer to the content of such advice, the matter must first be referred to the Crown Law Office. The Crown Law Office will in turn refer the matter to the Attorney-General’s office for approval.

4.72 Where a request is made under the Official Information Act 1982 or the Privacy Act 1993, the decision on release must be made by the Minister or chief executive who received it. The Attorney-General (through the Crown Law Office) should be consulted about the request.

This reinforces the long-standing position of the Government is that there are not multiple “Crowns”. It is one legal personality, and though it can exercise its powers in different ways, and through different state actors, it is still “the Crown” which is acting. Because of this, its position is that the Crown’s legal advice belongs to the Crown as a whole, and in the case, does not belong to Police.

This conception of the Crown means that neither the Police Commissioner, nor Police generally are the client (“the Crown” is) and thus Police are not in a position to waive legal privilege in it.

This is, of course, only government policy, and there are partial exceptions. As noted in 4.72 above, the Official Information Act and Privacy Act can require the release of legal information (it’s rare, while the exception isn’t absolute, it’s close, but theoretically there will be occasions where the release of legally privileged material is in the public interest, which is a decision that has to be made by the person who holds the information).

And there’s another one. The House of Representatives has a power to summon people and documents, a power which it granted the Epidemic Response Committee. If the Committee wants to see this advice, it can insist.

Of course, it may not need to go quite that far. It strikes me as unlikely that any Crown Law opinion on the exercise of legal discretion under state of emergency has been directly disseminated to frontline Police. The direction given by Police command to frontline officers might be informal, or may have been issued as general instructions issued by the Commissioner under section 28 of the Policing Act, or a Commissioner’s circular. These are effectively “orders” by the Commissioner to police, and (if lawful) must be followed.

The House of Representatives has a duty to ensure the public accessibility of the law (I’ll leave the debate over whether this is moral or legal to another day), and it has given the Epidemic Response Committee the power to fulfil this responsibility at least. It has the power to insist upon being told the guidance underpinning the police exercise of statutory discretion, irrespective of the ordinal crown approach to the Conduct of crown legal business. If it needs to, it should exercise it. 

New Zealand is planning to hold a general election on Saturday 19 September 2020. With the COVID-19 pandemic, I’ve had several queries about how New Zealand’s electoral laws would cope with this event. There’s obviously a long way to go until the election, but because I was asked, and because it’s useful to have these things written down accessibly to point to later, I've prepared a brief Q&A.

Although not related to COVID-19, the Electoral Act was updated last week, adding things like election day enrolment, but also updating the laws around interruptions of election day. Spurred on, I think, by the Christchurch earthquakes, the law still mostly covers short-term or localised disruptions. We’re not in lock down yet, and may never be, but what does the law say about disrupted elections?

Can the election be delayed?

Yes. Although the Prime Minister has announced the date of the election, the legal formalities have not been completed, and will not be for some time. It is open to the government to announce a different date for the election. It could do this right up until the 52^nd Parliament expires. It is possible (and probably advisable) that this would occur after seeking input from the opposition, but this is not required.

When does Parliament expire? And what’s the last date an election could be held?

Unless it is sooner dissolved, Parliament will expire on 12 October 2020. This is because the term of the New Zealand Parliament is three years. This three years starts from the date set for the “return of the writ” of the preceding election (ie the date when the writ – the formal document signed by the Governor-General ordering the Electoral Commission to hold an election – directs that itself be returned to the Clerk of the House of Representatives declaring who was elected). For the last election, the date set for the return of the writ was 12 October 2017, so three years later is October 2020. If we waited until this last day, the usual process would start then – the writ ordering the election must be signed within seven days (so 19 October 2020) and (under that law change from last week) it must be returned within 60 days (so 18 December at the latest). Working backward from this date, this gives a realistic last day for the election of 5 December 2020, allowing time for the count to take place after overseas votes are allowed in), but this could technically be pushed to 12 December 2020 if the regulations were changed (that’s probably unlikely).

That’s under normal circumstances, are there powers to delay the vote beyond that time if there’s an emergency?

Yes, there are rules (also updated last week) about what to do if there is an “unforeseen or unavoidable disruption” to an election. They’re mostly designed to deal with short-term, or localised disruptions (think earthquake or particularly bad weather), and only once an election has been called, but they could be used during an epidemic. The power enables the Chief Electoral Officer to adjourn voting for up to three days, and then subsequently for recurring 7 day periods. During an adjournment, the Electoral Commission could make arrangement for alternative voting processes, including, for example, extending the electronic voting process overseas voters can use to New Zealanders.

With the uncertain end point, and the fact that while this is going on, there isn’t a Parliament, it is not an ideal process to use when the disruption is known, and seems very much to be a last resort, for a very short period.

Can the Government delay the election beyond this year?

The Government couldn’t. Not by itself. But if it was thought necessary, Parliament could delay the election. It has done this before: despite the standard three-year term, the 19^th Parliament (elected in 1914) lasted almost 5 years, after Parliament passed the Parliamentary Elections Postponement Act 1916 because of the First World War. Parliament passed a law extending the term of Parliament to four years in 1934 (extending the term of the then current Parliament as well), possibly as part of the response to the Depression. This was later reversed, but the election was also delayed twice during the Second World War, with a Prolongation of Parliament Act passed in each of 1941 and 1942.

Under our current system, a law delaying the 2020 election beyond early December would require legislation, which would have to be supported by at least 75% of the House. In the current Parliament, this means both National and Labour would have to agree.

We’re not at that stage yet, but what if the need to delay the election didn’t arise until after Parliament has stopped sitting?

If Parliament had adjourned, but not been formally dissolved, it could be recalled to act. If the house had been dissolved, or expired, then one way or another there would be an election. It might be briefly delayed using the Chief Electoral Officer’s adjournment powers, but it would have to happen at some point, in relatively short order.

If the election were so deficient, for example, in turnout, with large groups of voters unable to vote because of an unforeseen or unavoidable disruption, it would still result in the election of MPs, but it is possible that the new Parliament might see itself as a sort of caretaker Parliament. The caretaker convention is about executive government in times where the Government doesn’t have the confidence of Parliament (for example, in the period after the vote, but before the result is counted), but something analogous might apply to a Parliament that couldn’t be sure it really had the support of voters – it could ensure continuity, make necessary changes and approve spending (preferably by consensus), and hold the fort while arrangements were made for a new election. This is a long way off however.

Are there other options beyond delaying the election?

Depending on the cirsumstances, Parliament could recognise the issues inherent in holding an election during, or soon after an epidemic, and change the laws around voting - perhaps allowing people within New Zealand to cast special votes electronically in the same way that voter overseas can. Telephone voting, made available to members of the Deaf community would be another option, as would going to a postal vote. Most of these changes would require amendments to the Electoral Act, some might require a supermajority, but some of the smaller ones might be able to be done through the Electoral Regulations. Thankfully, we have time to consider our options.

I am among the most pro-free speech people I know. I don’t doubt there are others more strident than me, but I’m certainly up there. And my support for freedom of expression isn’t limited to opposition to government-imposed restrictions. It extends to a belief that employers should have limited powers over their employees non-employment-related speech (I was firmly of the view that, had Israel Folau’s controversial facebook comments been subject to New Zealand employment and non-discrimination law, they would have been protected, and if it turned out they weren’t protected, the law should be changed so they were), and to a preference for companies that form part of the infrastructure of the Internet to avoid content-based restrictions (I oppose campaigns to get companies to refuse to provide services to unpopular people and groups – Stuff.co.nz should be able to decide what comments it publishes, but the company who leases them server space, and the companies that carry their content to you over the Internet, shouldn’t consider it their function to play a part – if certain types of content should be banned, decisions should be taken by governments with approval or oversight from independent courts, not corporations).

My support for freedom of expression seems to come from a slightly different place than it does for most of people who are prominent in New Zealand in their advocate of free speech: I’m not sure I actually agree that free speech enables the marketplace of ideas, that good ideas will beat out bad ones by force of argument, but I generally oppose laws limiting speech anyway, because of a belief that the imposition of criminal consequences is often more harmful than the harms we might seek to prevent by passing criminal laws.

Not only is convicting someone harmful, but prosecuting someone is harmful. Arresting someone is harmful. Arguing that we need to pass a criminalising some conduct to “send a message” is good way to ensure I will reflexively oppose it. We should pass criminal laws because we consider that the conduct engaged in can be so bad, that when people engage in it we are willing to say to their children: you can’t have your parent around for a while, and your life should be made meaningfully worse in a way which increases your risk to society. Some conduct is that bad, but it’s a damn high test.

Even just prosecuting someone, without a sentence of imprisonment, or even without a conviction can have some of these consequences (arguments around why we shouldn’t impose the costs of prosecution on the victims of it are for another day).

But even starting from this point, I am not yet reflexively opposed to all regulation of hate speech. There’s a pretty good chance that I may oppose a particular proposal – and I don’t know what the government’s review is likely to recommend – but the idea that there could be some law change to recognise the harm caused by hate speech does not meet immediate opposition from me.

Of course, future hate speech laws need not be criminal. Much of the general public understanding of the regulation of hate speech comes from high-ish profile examples from the United Kingdom, where criminal law has been the predominant tool. This is not the only option. Defamation law limits speech, but does not impose criminal penalties. It is easy to imagine a law being enacted where hate speech was subject to civil damages, not fines or imprisonment. In fact, that is already the law in New Zealand. There are at least two “hate speech” provisions in the Human Rights Act: (1) a criminal offence around publishing threatening, abusive, or insulting material, with the intention of exciting hostility or ill-will against, or bringing into contempt or ridicule, any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins; and also (2) a civil prohibition on publishing such words where they are likely to have that effect (this is an objective test, so the effect need not be intended, which is required for the criminal offence). The criminal offence is punishable by conviction and a fine of up to $7000, or up to 3 months’ imprisonment. The civil prohibition is enforced by someone suing in the Human Rights Review Tribunal, for civil damages. Given that the victim of the publication would be a group, and the person making the claim likely an individual, it’s somewhat odd, but any damages would appear to be paid to the claimant.

This civil process was most recently used by Labour MP Louisa Wall, who sued Fairfax, the Marlborough Express and the Christchurch Press over the publication of two editorial cartoons by Al Nisbet found to be insulting to Māori and objectively offensive. The case, and an appeal from it, ultimately failed on the basis that the publication of the cartoons was not likely to excite hostility toward Māori. But they are useful to showing what laws we currently have, and that a criminal offence is not the only option.

In a sense, these sorts of laws are (or at least can be) similar to defamation, and privacy: different civil proceedings dealing with rather abstract concepts. Defamation laws protect against attacks on character or reputation, privacy laws against invasion of privacy, with these sorts of hate speech laws (there are others) protecting against attacks on dignity. It is easy to imagine new laws which might provide for further protection against embarrassment or harm to feelings.

Of course, the protection the law provides against attacks to character, and breaches of privacy is much greater than it currently provides to hate speech said to undermine dignity, but It is not clear to me why a person’s reputation is so much more worthy of legal protection that their dignity. Of course, one solution I might favour would be to drastically reduce the scope of defamation law.

But I have already said that I am not wholly opposed to all new regulation of hate speech, so the question I ought address is what sort of law might find my favour. It is helpful to consider what sorts of restrictions on freedom of expression there are, and which are justifiable.

When the state proposes to limit a right like freedom of expression, it ought to be able to point to a compelling government interest. Often, this is easy: the interest in prohibiting criminal activity is a compelling reason to make conspiracy to commit a crime illegal, especially where the crime is serious: getting together with others, and forming a common intention (through words alone) to murder someone, or to import methamphetamine, is illegal, even though the offending hasn’t even reached a stage of eg attempted murder.

Other times it is harder: our current defamation laws protect reputation even in the absence of other loss, and even in circumstances where publication has not in fact been shown to have diminished a person’s reputation. I don’t think they get the balance right, but know that others do.

Back on the clearly justified side: people shouldn’t feel threatened, so laws against threats, and against stalking are justified.

This last example is helpful in a discussion around hate speech. A part of the problem of stalking is the sense of unease it creates, and the fear and worry it can induce in people. It can have real limit on a person’s ability to live their life. People who have been stalked, like people who have been in situations of domestic violence, can be affected in all facets of their life. Sometimes it could manifest in a fear of being out in public. Other times, it may require a person to limit their profile, for example, not engaging in political advocacy in a way in which they may like to, for fear of being recognised, and re-victimised.

Certain types of hate speech may have a similar effect. Much of this hate speech is already illegal, including death threats, and other threats of violence or of sexual assault. For some other harmful speech, it is less obviously so. Sometimes it can be prosecuted by general laws, but this can be inconsistent. It does not seem necessarily unreasonable that the law would act to ensure that people should are able to go about their lives.

Examples are easy to imagine. A Muslim mother wishes to take her children to the beach on hot summer day. Her beliefs dictate that she should be modestly dressed in public, but she still wants to swim with her kids, so wears a burkini. At the beach, she’s verbally accosted by someone yelling “Go Back to Islam”, and other derogatory comments indicating she doesn’t belong in New Zealand. Now, maybe this is the type of speech we have to live with in a pluralistic society. But we shouldn’t pretend there is no harm. Her kids have heard it. Maybe they were worried for her safety, in the same way that someone who hears a threat may fear for someone’s safety. Maybe they’re now scared to go to the beach, in case that bad man (or someone like him) is there.

This might well already be illegal. In 2013, a man was convicted for offensive language for crossing the street to tell two men “you've got Aids” and “you're a poofter”. But the same law has also been used to convict someone for saying a war commemoration should commemorate the dead on both sides of the conflict and not just our dead, and a related law was used to arrest Tiki Taane for performing N.W.A.s protest song “Fuck the Police”. As much as there may be victims of hateful speech, there is also a risk there will be victims of hate speech laws.

But even if we reject expanding hate speech laws, we should not ignore the fact that speech which causes someone to change their public life – not going to the beach because their kids are scared of being accosted; or driving to the supermarket, instead of walking because someone on the direct route yells out the n-word or the (other) f-word every time they walk past – is harmful.

Of course, we can address a lot of this harm without specific hate speech laws. And that may be the preferable approach: for example, instead of a specific hate speech law, you could instead expand the offence of intimidation to more clearly cover off speech which has the effect of diminishing public utility. Or we could expand civil laws – although that too comes with risk (is the threat of bankruptcy, and the lower standard of proof justified?). And, of course, the risks of criminalising hate speech may still be too great, but some of the factors that might mean I am less likely to oppose a proposal around a law designed to address hate speech where that law targets:

• individualised speech, and not generalised speech
• directed speech, and not non-directed speech

• aggressive speech
• speech which provably inhibits a person’s ability to be in public spaces, or participate in public life

When we think of hate speech laws, we tend to think of laws which would deal with general insults, like the law that was used by Louisa Wall to challenge Fairfax, but I think there is an important distinction for example, between a hateful post on your own facebook page, and one that someone has posted on a victim’s own facebook page (or been sent as a message). And wherever you draw the line, a street preacher giving a sermon against homosexuality generally, is not causing as much harm, as a person approaching someone and yelling at them that they have caused AIDS.

What would cause me to oppose a new hate speech law? The fear that such a law would be disproportionately used against poor and brown people, like most public order offences are. And that still might be enough. It is a very real concern that anyone proposing a law in this area need to address. I'm not sure I've really seen anyone attempt it yet.

Yesterday news broke that a member of the New Zealand Army had been arrested and was in military custody. Details were sparse, but Stuff journalists Florence Kerr and Thomas Manch, and Newsroom’s Marc Daalder in particular seemed to be quick to print with details of the individual’s far right ties.

Later yesterday evening I noted an odd tweet, with Marc Daalder noting that the New Zealand Defence Force had told him that “the Commanding Officer of the soldier is currently in the process of making interim suppression orders, which will prohibit the publication of any information that may lead to the soldier’s identification”.

This struck me as off. We give Officers in the Armed Forces the power to give orders to others in the military, and to others temporarily on military property, we don’t let them order around civilians, and allowing them to give orders to newspapers seems particularly wrong.

So I wondered, whether maybe there was an error in the statement, perhaps “seeking” was meant instead of “making”? But I was quickly shown the suppression order, and that was not the case. The soldier’s commanding officer had indeed issued a suppression order, at the request of the arrested soldier.

The legal argument that a commanding officer in these circumstances has suppression powers isn’t ridiculous, but it’s also not nearly as clear cut as you would hope, and on balance I tend to the view that the legislation does not provide it.

The Armed Forces Discipline Act

I do not claim to be an expert on armed forces law, but I have a general sense of how it works, and the ability to read legislation faster than most people. The argument arises from the fact that at low levels, and at the initial stages of dealing with higher-level military offence, a person’s commanding officer can act as a “disciplinary officer”. There are limits – they won’t deal with some charges, but they can accept guilty pleas, determine charges, and impose punishments within certain limits (if they feel greater punishment might be required than they could impose, they can refer a case to Court Martial). It is a summary process, still with procedural safeguards, but taking account of the more disciplined nature of military service (if your knowledge of military law is limited to what you learned watching JAG in the 90s and 2000s, it’s New Zealand’s equivalent of the US military’s non-judicial punishment, in the US Navy called “Captain’s mast” or “Admiral’s mast”).

This is the stage that the proceeding against the arrested soldier is at. His commanding officer is acting as a disciplinary officer at the initial stages. We do not know the nature of the charge, and it is possible the accused may request, or be sent to a Court Martial, or that his commanding officer may dismiss the charge as baseless.

It is at a stage that, if this was a charge in the District Court, that a judge could impose name suppression. The question is whether a disciplinary officer can.

Disciplinary proceedings in the Defence Force are dealt with under the Armed Forces Discipline Act. It does not directly contain a suppression power, but instead section 145 provides that the suppression powers in the Criminal Procedure Act apply “to the extent that it is applicable and with all necessary modifications, to proceedings” under the AFDA.

However, the suppression powers in the Criminal Procedure Act only give *Courts* the power to impose suppression orders. This would mean a Court Martial would have the power under section 145 to impose publication restrictions on newspapers. The question is whether it is necessary for the word “court” in the Criminal Procedure Act to be read as including disciplinary officers.

It is not clear it should. A disciplinary officer is not a court. A disciplinary officer cannot enter a conviction. If they find someone guilty, they impose a punishment, not a sentence. And unlike orders in the civil courts, there appears to be no way that a name suppression order could be appealed by a concerned publication (only the sub-part of the Criminal Procedure Act dealing with suppression is ported over, the sub-part dealing with name suppression appeals is not).

Most importantly, we get back to the fact the Criminal Procedure Act refers to courts. A Court Martial is a court. The legal question is whether it is “necessary” to conclude a commanding officer acting as a disciplinary officer should be treated as a court. And I do not see that it is necessary. Parliament’s use of the word court should be given meaning. When applying a power given by Parliament to courts, we should be careful before concluding that it can be exercised by things that are not courts. The section has sufficient meaning in applying to situations when courts are exercising powers in proceedings under the AFDA. There may be circumstances in which it would be desirable for there to be name suppression of someone facing a non-judicial punishment, but it is not “necessary” for the law to modified this way to give it effect, and Parliament only imposed reading in modifications to the Criminal Procedure Act that are necessary.

The AFDA is not the only law with a deeming provision like this one, sometimes it simply allows something to happen legally without having to be written down in detail twice, but this shorthand approach presents problems in other areas: extradition and the law around prosecuting people with mental impairments are examples that have come up in my legal career, although I am sure there are others.

But as difficult as those laws are in practice, they are of a different character: they are primarily procedural. Suppression laws have a procedural element, but they are principally criminal laws: they set in place orders that, if breached, can be prosecuted as crimes. If Parliament wants commanding officers acting as disciplinary officers exercising what are sometimes court functions to be able to make orders prohibiting civilian newspapers from publishing things, I would expect them to use much clearer language. I hope it would agree.

Several people have asked me whether a particular repeat litigant could be declared a vexatious litigant, in light of their recent decision to appeal an adverse High Court ruling. My nascent tweet thread was getting ridiculously long, so it became this blog post instead.

The short answer is: no. The particular repeat litigant cannot be restricted from commencing or continuing a civil proceeding.

For the longer explanation, read on.

The power to restrict someone from commencing or continuing a civil proceeding (commonly called a vexatious litigant order) is now in section 166 of the Senior Courts Act. Similar powers are also now in other places, such as the District Courts Act, but they aren’t fundamentally different.

To declare someone a vexatious litigant, the person must have been involved in at least two proceedings that were "totally without merit".

The recent decision, in which an appeal has been announced, was not totally without merit. In fact, the reason there is to be an appeal is because the claim was so meritorious that it was successful.

Many of the claims involving the particular repeat litigant are cases the repeat litigant is defending, not cases they commenced. A vexatious litigant order only restricts you from suing others; it doesn’t stop other people suing you.

The current proceeding is one the particular repeat litigant originally commenced. However, the announced appeal relates to a cross-claim brought by the person who was sued. As noted in the High Court judgment, by the time the case got to trial, the reason for the trial was in reality, this cross-claim, the particular repeat litigant having withdrawn a claim for monetary damages, and offered to settle both claims including by paying $30000 toward their legal fees.

That said, without an agreement to settle, both claims went to trial, the particular repeat litigant only asking for the Court to rule there was defamation, and the person originally sued asking for monetary damages for defamation.

Neither of these claims was totally without merit. In fact, both succeeded.

This presents an insurmountable problem in using this proceeding as the basis for an order restricting the repeat litigant from commencing or continuing a civil proceeding.

You’re not a vexatious litigant if you win, and you’re not a vexatious litigant if you lose a claim someone filed against you.

And, if you lose a claim (or in this case, a cross-claim) someone brought against you, you get to appeal. In fact, you would still get to appeal such a case even if you had already been declared a vexatious litigant. Usefully, however, there are no witnesses in an appeal, and the parties don’t even have to turn up!

PS I have avoided names for a reason, and for similar reasons, have not opened this post for comments