Public Law Cases - Privileges PDF

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LAWS201 Exam Notes - Cases WHAT IS PREROGATIVE POWER? Powers exersized by the Crown. A remnant of the days before parliamentary sovereignty when the monarch ruled according to his or her personal discretion. In the modern world, Parliament makes the laws and tends to cover most circumstances of government. There are some Executive functions that are necessary for government to function which are not provided for in law. Powers are exersized by the Sovereign on advice. Only a limited number of powers are exersized personally and voluntarily by the Sovereign. Reviewability? Effects of statute on powers? SUMMARY

SUBJECT

1) Case of Proclamations 1611

PREROGATIVE POWER

ISSUES Issue: Whether the King could issue declarations prohibiting the erection of new buildings in London and the making of starch from wheat.

RELEVANT PRINCIPLES • Prerogative power • Rule of Law • Separation of powers

Held: “The King hath no prerogative but that which the law of the land allows him.” CJ Lord Coke

2) Prohibitions Del Roy 1607

PREROGATIVE POWER

Issue: Whether the King could be the judge in a common law dispute Held: “...true it was, that God had endowed His Majesty with excellent science, and great endowments of nature; but His Majesty was not learned in the laws of his realm of England…and [common law cases] should be decided by the artificial reason and judgment of law, which law is an act which requires long study and experience…” CJ Lord Coke

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Prerogative power Rule of law Separation of powers Parliamentary sovereignty

The principle in this case is that whilst justice is dispensed in the Kings name – it is to be dispensed according to the law and not the King’s personal view of merits

The King is subject to the law, only the Courts can dispense the law

3) Council of Civil Service Unions v Minister for the Civil Service [1985 PC] Minister empowered by Order in Council (issued under prerogative) to control the conduct of civil servants following industrial action - CCSU sought declaration that instruction was invalid

PREROGATIVE POWER

Issue: Whether or not an Order in Council was reviewable by the Courts Held: That the right to challenge the exersize of prerogative power existed but was not unlimited. Prerogative powers are reviewable by the Courts if the subject matter is justiciable

• Prerogative power • Rule of Law • Separation of powers

4) Burt v Governor-General [1992 CA] Burt convicted of murder and sentenced to life. Burt petitioned the Governor-General for an exersize of the prerogative of mercy. The petition was declined. Burt sought review of that decision.

PREROGATIVE POWER

Issue: Whether or not the refusal to exersize the prerogative of mercy was reviewable by the Courts

LAWS201 Exam Notes - Cases • Prerogative power • Rule of Law

Held: “The mere fact that a decision had been made under the prerogative does not exempt it from a review of the Courts. The test is rather whether the subject-matter of the decision is justiciable.” Cooke P

Prerogative powers are reviewable by the Courts if the subject matter is justiciable

5) Attorney-General v De Keyser’s Royal Hotel Ltd [1920 PC]

PREROGATIVE POWER

Held: That where a prerogative was also covered by statute the prerogatve was in ‘abeyance’.

Crown requsitioned hotel during the war – it was accpeted by both parties that it had done so lawfully – hotel wanted compensation – Crown argued it had been taken under prerogative power

6) Burmah Oil Co. Ltd v Lord Advocate [1965 PC]

Issue: Whether Crown liability in compensation to hotel was ‘voluntary’ or ‘mandatory.

• Prerogative power • Rule of Law • Effect of statutes on the prerogative power

Power of the statute trumps the power of the prerogative

PREROGATIVE POWER

During wartime Brits ordered destruction of oil wells to prevent them falling into advancing Japanese hands – Burmah oil wanted compensation – Government said no – Courts said pay up – Courts decision was reversed by retrospective legislation passed by Government

Issue: Whether an act of the prerogative rendered the Crown liable to pay Burmah Oil compensation

• Prerogative power • Rule of Law • Parliamentary sovereignty

Held: Although the damage was lawful, it was the equivalent of requisitioning property. Any act of requisition was done for the good of the public, at the expense of the individual proprietor, and for that reason, the proprietor should be compensated from public funds. Crown is liable for acts of the prerogative

PREROGATIVE 7) R v Secretary of State for the Home Department Ex Parte Northumbria Police POWER Authority [1988 QB] Police bought judicial review against Secretary of State arguing its instruction to arm police with gas and batons without approval from Chief Constable was ultra vires.

Issue: Whether Crown has acted outside of its powers

• Prerogative power • Rule of Law

Held: The Secreatry of State was acting within the power of the prerogative. New prerogatives cannot be created

The significance of this case was that a prerogative power existed that had not been previously used – the decision was highly criticised – ‘pandoras box’

Power of the prerogative can be extended?

LAWS201 Exam Notes - Cases WHAT IS PARLIAMENTARY PRIVILEGE? The protection of unfettered democratic speech in the House and the ability of Members of Parliament to raise issues without fear of penalty. Exempts speech ‘acts’. Absolute but may be waived. Section 9 of the Parliamentary Privileges Act excludes certain criminal conduct (bribery, corruption, perjury) from being shielded by privilege. Also, the House can hold you in contempt for what you say but they can’t expel you for that. SUMMARY

SUBJECT

1) TVNZ v Prebble [1995 PC]

PARLIAMENTARY Issue: Whether parliamentary speech could be used by the media to defend a defamation suit. PRIVILEGE

TVNZ aired a show highly critical of the Labour governments handling of state asset sales by Minister Prebble - Prebble sued TVNZ for defamation - As part of TVNZ's defence, they tried to include statements made in Parliament by Prebble as evidence against his claim - In response, Prebble applied to the courts that under Article 9 of the Bill of Rights 1688, any statements made in Parliament cannot be used in any court - unless whole House waives privilege - House didn’t want to waive privilege.

2) Attorney-General v Leigh [2011 SC] Leigh worked for Ministry of the Environment – Labour’s Clair Curran appointed to oversee her work - this led Leigh to terminate her job questions in the House about whether her dismissal was politically motivated and unfair – a written question for oral answer was tabled in the House - Minister went off to talk to senior official in his Ministry to find out what went on - Mr Gow briefed the Minister - went back to the House and answered based on the advice Leigh couldn’t sue the Minister – so she sued Mr Gow – claimed he had de-famed her in what he said to the Minister

ISSUES

RELEVANT PRINCIPLES • Parliamentary privilege • Rule of Law

Held: Parliamentary Privilege is not intended to be a sword – but a shield. Intended to protect MPs from being sued – not to be used by the media to attack an MP

PARLIAMENTARY Issue: Whether advice for a Minister was within the scope of the proceedings of parliament and PRIVILEGE therefore covered by parlimentary privilege

Held: The Court drew a tight line saying that a proceeding in parliament was a lot different from advice to a Minister The decision was much to the surprise of the judiciary – both HC and CA affirmed that Mr Gow was covered by full privilege – SC held that it was qualified Response: Parliament passed the Parliamentary Privileges Act 2014 - s 32 C “the decision of the Supreme Court in Leigh – is not the law of NZ” so Parliament expressly overruled the SC

• Parliamentary privilege • Rule of Law • Comity This case was a good example of the negotiated interaction between the branches, i.e the branches doing what they are meant to do Courts: “we will define privilege narrowly” Parliament: “we disagree so we will be explicit in statute”

3) Parliamentary Privileges Act 2014 An Act of Parliament passed in response to the Supreme Court decision in Leigh v AttorneyGeneral – ‘overrules’ the Courts decision

PARLIAMENTARY PRIVILEGE

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Specifies that s 9 of 1688 is still law and reiterates constitutional rationale behind Parliamentary Privilege section Specifically not retroactive Covers advice prepared for Ministers Sets tests as incidental not necessary (s 10)

LAWS201 Exam Notes - Cases • Parliamentary privilege • Parlimentary sovereignty

WHAT IS QUALIFIED PRIVILEGE? – Historically: based on legitimate public interest in information being shared. To protect democratic debate in the public arena and the ability of citizens to be informed voters and participants in political debate. Privilege protects against the chilling effect of threat of private suit or damages. The limits of the privilege deter the media from publishing maliciously or recklessly fals information about MPs or candidates but allows for good faith publication to the public in a timely manner. SUMMARY

SUBJECT

4) Lange v Atkinson [2000 CA]

QUALIFIED PRIVILEGE

Atkinson was a political columnist for North and South who wrote an article that was highly critical of Lange - Lange sued Atkinson and the magazines publisher for defamation – upon which they filed a defence of qualified privilege

5) Hoskings v Runting [2003 CA] Photographer takes pictures of Hoskings twin girls without permission in a public place – Hoskings bought proceedings to prevent publication of the photos on the basis that it would breach the twins privacy

QUALIFIED PRIVILEGE

ISSUES Issue: Whether an article critical of Lange was covered by qualified privilege

RELEVANT PRINCIPLES • Qualified privilege • Freedom of the press

Held: Qualified privilege extends to publications concerning the conduct of publicly elected officials and those seeking office. As long as any material falsities were not done in malice.

The Court adopted a NYTs case that establiahed the actual malice standard that had to met before press reports about public officials can be considered defamatory

Media in this instance covered by qualified privilege Issue: Whether there was a tort of privacy and whether any other cause of action could prevent publication of speech Held: An action of breach of privacy could not be sustained because they were in a public place Qualified privilege does not apply

• Qualified privilege • Tort of privacy • Restraining a party’s ability to speak before hand through a Court injunction is not favoured, as it undermines robust political and public discussion....