Next year's public law exam question is here somewhere ...

Three important public law developments fell on the one day. That makes posting a bit of a challenge!

Three pretty interesting public law developments took place today. (I fully recognise that attaching the descriptor "interesting" to the phrase "public law developments" is an open invitation to ridicule, but I stand by the claim!)

  • Parliament's Privileges Committee handed down a first report on the David Henry inquiry into who leaked the Kitteridge report into the GCSB to the media, focusing on the actions of Parliamentary Services in providing that inquiry with information about communications between Peter Dunne and the reporter Andrea Vance.
  • The Court of Appeal upheld the High Court's determination that the Government acted unlawfully in offering uninsured Red Zone residents only 50% of their property values - whilst at the same time ruling that the Government acted lawfully in declaring the red zones.
  • And, finally, the High Court declined to review the District Court's decision to commit John Banks to trial on charges that he knowingly submitted a false return of electoral donations from his 2010 mayoral campaign.

I haven't time to discuss each of these issues in great detail (and I suspect you wouldn't have the patience to read the lengthy post that would result.) So let me just pick out some aspects of each in turn.

First, on the Privileges Committee report, there isn't anything there that hadn't been telegraphed for quite some time. It was clear from the Committee's questioning of witnesses during the inquiry phase that the members were very unhappy about how much information Parliamentary Services was prepared to hand over to David Henry without first getting approval from the Speaker and/or Peter Dunne. That comes through strongly in its report's conclusion:

... we cannot ignore the evidence that failures on many levels have led to the matter that now stands referred to us. We find it unacceptable that an inquiry, lacking formal powers to control the production of information, into an Executive information leak, was so readily given parliamentary information, including information about a journalist, without the direct involvement of members or the Speaker. We believe that the Speaker should have been involved by the participants, and that members should have been consulted. That such an intrusion has been allowed to occur does not reflect well on the agencies responsible.

What perhaps is interesting is that the blame is placed most directly on Parliamentary Services, and not on David Henry for asking it for the information (much less on the Prime Minister for sending him off to look for the leak). That is probably wise - the Privileges Committee ought to focus on getting (literally) its House in order, rather than go picking a fight with the executive branch (much less degenerate into a partisan slanging match over John Key's role in the affair).

One thing about the response to the Committee's report, however. Peter Dunne is claiming it vindicates his refusal to provide David Henry with the information that he sought. He also would like to get reinstated as a Minister, now that the Privileges Committee has found that information was too freely provided to David Henry. After all, if his "crime" was refusing on principle to give David Henry communications of the sort that the Privileges Committee now says were too freely provided, then isn't he actually a martyr to a cause proved just?

I'm not so sure.

First, the Privileges Committee has not said that the Henry Inquiry shouldn't have got the information involved at all. Rather, it's criticised the alacrity with which that information was provided without any checks or balances being applied. So there still is the fact that, when directly asked to demonstrate his innocence to an inquiry carrying the PM's imprimatur, Dunne said no. The fact that the Henry inquiry may have obtained other information in a dodgy way doesn't necessarily justify that refusal.

Second, there remains the rather uncomfortable fact that Peter Dunne remains the prime suspect in actually leaking the Kitteridge Report to Andrea Vance. Maybe the Henry inquiry shouldn't have been able to get the information pointing to Dunne as the leak's source - but it did. And that information sets out a pretty compelling circumstantial case against him.

So this isn't just a case of a Minister who said "no" on principle to the PM's demand that he fully comply with an inquiry that was out-of-control. Rather, it's a Minister whom the PM has very good reason to believe gave a journalist a copy of report into a spy agency that the PM personally is responsible for, thus gazumping the media coverage of the PM's trip to China and playing havoc with his office's communications strategy on the issue.

So when it is reported that John Key says "reinstatement is an option, but [he] has had no such discussions with Mr Dunne", I think we can know why.

Second, the Court of Appeal's decision that the Government's declaration of "Red Zones" in Christchurch was lawful will have relieved a lot of stress in Gerry Brownlee's office. Sure, the Court of Appeal has also ruled unlawful the Government's decision to only offer 50% payouts to uninsured property owners in such Red Zones. But that latter part of the ruling is just about money - at worst, it means a few more million dollars in payouts to a few more property owners. Not ideal, but not the end of the world.

No, the big problem that the Government faced here was that when examining the lawfulness of those offers, the High Court had held the decision to Red Zone areas of the city was itself unlawful as it hadn't been made through the CERA legislation. (I covered that case in passing here.) Given how central the whole division of the city into zones (Green, Red, Orange, White) has been to the planning of what to do next, a ruling that splitting the city into these zones has no basis in law would have undermined much of the work that the Government has done. In fact, I'm willing to bet that the Government was quietly working out how to get validating legislation through the House, should they continue to lose the issue in the courts.

However, the Court of Appeal has made that problem go away. It decided that the declaration of the Red Zones (as well as, by implication, the other coloured zones) was nothing more than the distribution of information to the public (and affected property owners) about the state of the land there after the earthquake. As such, the Government didn't need any express legal authority to do it - there's nothing in law to say Governments can't make such information available, so the Government (just like any other person) can do so.

Of course, things get a bit messy when you recognise that the implicit message behind colouring land Red was "this property is so munted it cannot safely be lived on". However, the Court accepted that this implicit message reflected nothing more than the reality wrought by the earthquake(s). So, again, the Government making people aware of this fact didn't require any explicit lawful authority, because merely notifying people of the geological status of their land didn't in-and-of-itself affect its legal status. It's just that any sentient person would know that, given the geological facts about the land, there inevitably would be later moves to change its legal status (which would require explicit legal authority).

So, the Government is off the hook. Central as the whole "zoning" of land has been to the future look of Christchurch as a place, it's just a bit of basic information sharing which anyone (including Governments) is free to do.

I suspect this judgment is going to become a bit of a staple in future Public Law course around the country, because of its discussion of what Governments do and don't need explicit legal authority to do. I also suspect that, if you were so inclined, you could probably rewrite this judgment to reach the exact opposite conclusion. Which is why there's probably no chance of the Government risking taking the matter up to the Supreme Court.

Finally, John Banks.

There's been so much said about him and his case already, on this blogsite and elsewhere, that it's difficult to find much new to say. So rather than talk about what the High Court's decision not to review his committal to trial means for him, let me close on an upbeat note.

We can get a bit down about our country, and cynical about our public institutions. Like Primal Scream say:

All jails are concentration camps, all judges are bought

Everyone's a prostitute, everyone's a prostitute.

But take a moment to think about what the John Banks' case involves. A Minister of the Crown gets accused of an electoral funding offence from one of his earlier campaigns for public office. A lone individual takes the matter to a court (admittedly after the Police ducked doing so on the basis they didn't think there was enough evidence, but let's skip over that for the moment). And he succeeds in convincing a judge that the government minister should have to stand trial in open court.

Then the State's prosecutorial arm steps into the case and decides to take it over. However, far from burying the matter to protect a political ally of the Government, it successfully fights off an attempt by the (now ex-) Minister to have a court throw the case out. And so the ex-Minister is set down to stand trial in an election year, where his success or failure at the polls may be the difference between the Government returning for another term in office, or slinking off to the opposition benches.

Now, I don't want to get all dewey eyed here and proclaim that Banks' case demonstrates that everything in New Zealand public life is rosy, and the system always works like it should. But what I will say is that when we claim that New Zealand is a country in which the rule of law operates, we mean just this.

And that's something worth being quietly proud of.