The Law Commission's issues paper, Alcohol in our Lives, dominates today's Herald. There may be much good in the paper, putting perhaps to one side the rather odd child-like personal alcohol experience statements that pepper the first few pages – other than being impressed by a student's artistic talent, for instance, we learn little from the "Adrian Mole" diary excerpt that records that students drink too much, while the experiences of "Wellington lawyer Ben Fairweather", lack even that artistic merit. But why is it the Law Commission's job to make recommendations of the sort indicated?

Sir Geoffrey's justified reply will be that he was asked by the previous Minister to do it. Fair enough, But much of this project seems to me like the core business of government departments, and involves the kind of policy that is better down within the policy process of the central government.

Obviously sometimes Law Commission reports will be controversial as a result of a suggested change to legal doctrine or legislation, and I would not argue for a second that the Law Commission not be interested in policy, but it should do so on matters where there is some value added by a "Law Commission", and save its "political capital" for those occasion where that law expertise requires it to be controversial . The report gains some prestige from being from "Law Experts" in the Herald, but the matters in the report are not 'law' so much as general policy debates about the kind of society in which we want to live. In my view it is the job of politicians to run those debates. They should get on with it, armed with the work of the public service that is employed to inform the position that Ministers take.

This matters because our Law Commission is a precious resource. My worry is that by being asked to do such intensively policy based work, the Commission is becoming either a standing commission of inquiry or just another government department. Either places the Commission's continued existence at risk when it gets the public or political mood wrong. And there is much actual law reform work that the Commission must be allowed to get on with. What is really important is that when we really need the Commission's legal expertise, it is not diluted by being seen as just another arm of government. What I earnestly hope is that Ministers will not burden the Commission like this again.

 

Geoff McLay

 

 

Paula Bennett’s release of the details of benefits paid to two women who criticised the Government’s axing of the tertiary study allowance is potentially a breach of both the Privacy Act 1993 and the privacy tort. Principle 11 of the Privacy Act 1993 provides that ‘an agency that holds personal information shall not disclose the information to a person or body or agency unless the agency believes, on reasonable grounds’ that one of the exceptions set out in Principle 11 applies. There is no question that the Minister is an ‘agency’ for the purposes of the Act and that she has disclosed ‘personal information’. The question is therefore whether an exception applies. The Minister seems to be relying on the exception which applies when the ‘disclosure is authorised by the individual concerned’. It is questionable though whether a person who reveals that they are on a benefit and hoped to rely on a further study allowance can be said to have ‘authorised the disclosure’ of the exact details of all of the benefits that they are currently receiving and have received over the past few years. I would be surprised if the Privacy Commission (which would consider any Privacy Act complaint the women were to bring) were to accept that this was enough to satisfy the exception. Bennett’s conduct could also fall foul of the privacy tort. The women could claim a breach of privacy if they were able to show that they had a reasonable expectation of privacy in respect of information about their benefits and that the publicity which the Minister gave to them would be ‘highly offensive’ to a reasonable person. Both of these elements seem to be satisfied here. The Minister would have a defence if the women consented to the disclosure or if the disclosure was a matter of legitimate public concern. This means that the disposal of any tort claim would again turn on the extent to which the women could be said to have put the matter in the public domain by discussing their objection to the Government’s policy in the media. New Zealand courts have accepted that the fact that a claimant has ‘courted publicity’ can be a defence, as can a defendant’s interest in ‘putting the record straight’. However, neither of these defences give defendants a carte blanche to reveal whatever they like about the matter that the individual has raised. Instead, courts assess exactly what kinds of disclosures were justified in the circumstances. It is questionable whether revealing confidential financial information about the women was either necessary to ‘set the record straight’ or justified by the limited disclosures that the women had made themselves. When considering these defences, the courts would need to consider freedom of expression interests which weigh on both sides of the argument here. The law should protect the Minister’s right to respond to criticism yet it is important that she does not do so in a way which is so heavy handed that it would deter others from speaking out. There is an element of David and Goliath in this case that, in my view, which makes the women’s position rather more sympathetic. Nicole Moreham, Senior Lecturer

The Justice Minister’s comments on the idea of ‘positive consent’ in sexual assault cases has rightly raised eyebrows (and some heckles) on all sides in the criminal justice debate. Such a move would no doubt have huge significance for the prosecution of sexual crimes – effectively reversing the burden of proof by giving priority to the claimant’s version of events, and pushing very hard against the presumption of innocence. Those are matters for criminal law scholars to speak to, but there is an underlying issue running right through this debate: the issue of the normative force of consent. (Note: there is a further issue about the conceptual logic of ‘positive consent,’ which would need to be worked through more carefully than a blog post allows). Consent is a rather magnificent concept, wrestled with by philosophers and lawyers for different though related reasons. Philosophers explain that consent can change something that is wrongful into something permissible. It can change an individual project into something that is shared between people. It can allow us to assume obligations that we did not have before. It can allow someone to invade another’s autonomous sphere of action, without being blameworthy. Though consent is not all-powerful - it cannot right every wrong nor create obligations which are contrary to our other moral obligations - in the right context, consent has the power to change the obligations that we have to one another. The law institutionalises some of the power of consent whenever it makes consent the marker between activity that is unlawful and activity that is lawful. Consider the difference between sexual acts which involve inflicting physical pain, and sexual assault. The morally (and legally) significant difference is not the actual acts performed, and although there are differences in the intention of the dominator/perpetrator, the significance of these differences depends upon the presence or absence of consent. Both the dominator and the perpetrator might aim to assume control and to cause some physical pain, but the dominator does so with a consenting partner in order to gratify both; the assailant clearly does not. Sexual crimes provide the most obvious and the most difficult examples of the significance of consent, and the Minister’s suggestion brings these difficulties into sharp relief. Sexual crimes have always been about non-consent, about resistance and powerlessness to stop an unwanted advance. But consent has always been deeply problematic in the realm of sexual conduct because of the circumstances in which consent is given or withheld. Some argue that consent is ‘ambiguous’ or that ‘signals’ can easily be mistaken; that yes can mean no and no can mean yes. Others criticise these arguments as excuses for letting perpetrators of sexual crimes off the hook. Whichever view is taken, we must at least be cautious at the margins of consent, which is where a ‘positive consent’ requirement becomes risky. Marginal cases will often concern conduct where one or more participants are either intoxicated or at least uninhibited; or between young adults and teens who are pressured or simply uncertain about what they want. Requiring proof of positive consent in such cases risks criminalising many who not be clearly blameworthy. The suggested change would reverse not only the burden of proof, but also the whole view of sex as something which is an acceptable, desirable, and dare I say it, ‘normal’ part of human interaction. It would conceive of sexual conduct as wrongful unless consent is given. The law currently takes that view whenever sex involves one who cannot consent, but it is a different thing altogether to presume that one who can consent is a victim unless he or she actually does consent. There may well be policy reasons - to do with protecting powerless victims, and responding to statistics which suggest under-reporting of sexual assaults – that lean towards making such a change. That is for the experts to debate, but that debate must take note of the power of consent and its immense normative significance in ordering our social relationships. Nicole Roughan Lecturer

It was refreshing to read the Chief Justice’s recent address on criminal justice and I commend her for her courage in making her views known. As someone with an interest in youth justice matters, I was encouraged by the discussion on early intervention. There were two issues in particular which resonated with me, though, and to which I would like to add my thoughts here. The first is the role of the victim in the criminal justice system. The rights and needs of victims of crime have rightfully begun to be acknowledged in recent years, and as the Chief Justice emphasised, there is ‘no question of going back to the days when victims were largely irrelevant in criminal proceedings’. Like the Chief Justice, however, I have concern about the changing role of the victim in criminal proceedings. A powerful narrative in the victims’ rights movement is that of the modern legal system stealing conflicts from victims. There are calls for victims to be given increased input into prosecutorial, sentencing and parole decisions. What is often forgotten in calls for increased victim input is the flip side of this coin. What about a victim that doesn’t want the offender to go to prison even though public safety is at risk? What if an offender puts pressure on the victim to drop the charges? It must be remembered that the vast majority of offending occurs within the nexus of family, community and neighbourhood. As Andrew Ashworth argues (‘Responsibilities, Rights and Restorative Justice’ (2002) 42 British Journal of Criminology 578), ‘the victim’s legitimate interest is in compensation and/or reparation from the offender, and not in the form or quantum of the offender’s punishment’. A sentence handed down to an offender can never be an appraisal of the victim’s loss, nor is it designed to be. To misrepresent the sentencing process thus, is to raise false hopes and to re-victimise victims of crime and their families. We must concentrate on improving direct assistance and support to victims of crime. Secondly, I wholeheartedly endorse the Chief Justice’s call for community education about the criminal justice system. People are entitled to their opinions, and undoubtedly there is a section of the public who is in favour of punitiveness. That is their right. I am convinced, however, that there is a lack of understanding on the part of the public about the criminal justice system, fuelled by lurid crime reports, and a lack of balance in media reporting. The public needs to have access to reliable information about the justice system. The Ministry of Justice and the Department of Corrections produce some excellent reports and statistics. Why are these not presented in a more user friendly manner? Why don’t the authors speak up when their statistics are misrepresented in the media? The Chief Justice notes that ‘…leadership of the debate around penal policy passed from officials and professionals working in the field to advocates for victims and safer communities’. The view of those working in the criminal justice field, but particularly the views of lawyers, judges and academics, are frequently dismissed as self-serving. I am reminded of the recent furore in my home country where 133 criminal practitioners wrote a letter to the Irish Times criticising proposed legislation (Irish Times, 8/7/2009). Vitriolic attacks on the letter writers followed, mainly accusing them of being concerned more with their ‘exorbitant’ fees and with the rights of criminals, rather than the public interest. I ask the question, if 133 of the country’s medical practitioners wrote a letter criticising a new cancer treatment, would they be attacked on the basis that they were money-hungry, or would it indicate that there were some issues that warranted further investigation? Similarly, comments on the New Zealand Herald website relating to the Chief Justice’s speech criticise her for being out of touch with realities of crime. Dame Elias has 40 years experience in the law and is the country’s top judge. If the country’s top cancer specialist spoke out about cancer treatment, would we listen? Let’s have some balanced reporting on criminal justice for a change. Nessa Lynch, Lecturer LINKS: - http://www.courtsofnz.govt.nz/speechpapers/Shirley%20Smith%202009%20lecture-Blameless%20Babes-9%20July%202009.pdf

One of the problems of a small place is sometimes that lack of interesting voices. I am not an expert on penal policy, but I would say that one might hope for greater debate over rates of imprisonment. It is this context that the 'controversy' over the Chief Justice's remarks on the effectiveness of imprisonment might be considered. It is both true that judges like the rest of us should talk only about matters on which they have some expertise, but that unlike the rest of us they do need to be aware that what they say has a weight because of the special constitutional role in which they operate which ought to make them pause before talking. But it is even more true that judges have a unique role of speaking truth from the perspective of their office. This seems to me unproblematic. It seems to me bound up with whole notion of a Chief Justice that on occasion he or she will say things with which people will disagree. New Zealand is lucky to have an interesting Chief Justice, who commands a great deal of respect amongst the legal community. How she chooses to deploy that respect is within her notion of what her office involves, that is the trust that the Governor –General placed in her when she was appointed. If she does it unwisely, she like all of other public figures who do that, will dissipate that respect. Personally I cannot imagine the comments that she has made have done anything of the sort. That is just not because I might agree with the points she made. In the past she has made points in speeches which I disagreed with. Different Chief Justices will take a different view of what that balance is. One of the best of our Chief Justices was Stout, and he seems all the better for promoting enlightened views of punishment while he was Chief Justice and his other extra-judicial roles such as founding my University. We should not lose necessarily lose the talents and views of some of best people because one of their roles is to administer justice according to the law. But I can also say there seems little wrong with the Minister's response either. He is quite right. In the end it is the Government that governs, and that is how it should be. It perfectly right that his job and the job of the Government in which is serves is to implement New Zealand its view of what New Zealanders want. I for one hope that both continue to say interesting things, as always we are better for the airing of views. Geoff McLay, Reader

Asher J's decision reported by the Herald this morning should not surprise watchers of the leaky homes litigation- it adds schools to the list of institutions ( motels, tourist lodges and charitable hospitals) that cannot sue for leaks . The government after all is as far removed from the prototypical NZ house owner whom the Court of Appeal deemed worthy of protection in NZ. Indeed there would have been some irony if the central government, who after the BIA decision is immune for much of the financial affects of the crisis could have sued local authorities. But what is important Asher J’s judgment is that yet again a High Court judge has emphasised the exceptionalism of the Hamlin. Asher J casts doubt over the supposed link between the aims of the Building Act on the one hand to protect health and safety and the need to provide compensation of the other hand. What the Court of Appeal will have to face in appeal in the Sunset Avenues and Botony Downs appeals later this year, is why the same logic does not apply to domestic dwellings. Geoff McLay, Reader