Posts by Andrew Geddis

  • Legal Beagle: Necessity: or the Sky is Falling,

    That’s why all vehicles are equipped with a large glass thing in front of the driver, so one can see what the road does and control the vehicle appropriately.

    Of course, on that approach we don’t need set speed limits anywhere … just a general rule to “drive safely” – or, like Montana had until the late 1990’s, a requirement to drive at a “reasonable and prudent” speed. Some problems with that, but:

    (1) At least some people are over-confident about their driving abilities, and so will think they are driving in a safe or reasonable and prudent manner when in fact they are not. So a rule that says “no matter how good a driver you are, don’t go faster than 80 km/h here” counteracts that.

    (2) Deciding whether a given speed is “unsafe” or “unreasonable and imprudent” gives discretionary power to rule-enforcers … on (say) my stretch of road, one cop may say going 100 km/h is fine, another may say it isn’t and so ticket me.

    (3) Speed zones can form a sort-of “risk heuristic” – they can be a way of alerting drivers to what to expect on a given stretch of road. So if I’m driving along the open road in a 100 km/h zone, then come to an 80 km/h zone, it alerts me to the fact that road conditions have changed and that I really need to adjust my driving behaviour accordingly.

    None of which is to say that sticking to speed limits takes away a driver’s responsibility to drive safely – and that’s not what the law says either: http://legislation.govt.nz/act/public/1998/0110/latest/DLM435152.html

    Dunedin • Since Nov 2007 • 167 posts Report Reply

  • Legal Beagle: Necessity: or the Sky is Falling,

    I reckon very few people would actually have appealed five- or ten-year-old speeding fines (it was a fair cop, even if the posted limits had expired), but the Minister of Transport has said this wasn’t about revenue, but safety. Well, even if there aren’t speed limits, dangerous driving would still be illegal, and careless driving would still be illegal, so driving at 150km/h in a school zone would not suddenly go unpunished.

    First of all, driving at 150 km/h was still unlawful irrespective of the status of the councils' speed limits - open road (100 km/h) and urban (50 km/h) speed limits are set by Land Transport Rules, not councils (https://www.nzta.govt.nz/resources/rules/setting-speed-limits-2003/#23). So if a given Council's different speed limits (i.e. a 40 km/h limit near schools; 80 km/h limit on a rural road) were invalid, the limit would default to these (still valid) ones.

    Second, there is precisely no "safety" issue involved with retrospectively validating the speed zones. None whatsoever. There probably is with regard to validating Council set speed zones for the future. For instance, the rural road out to my house is Council zoned 80 km/h for a reason - anyone who is led to believe by signs that they can drive it at 100 km/h will probably run off the road pretty quickly!

    However, Bridges doesn't want to be the guy on the radio saying "we should be allowed to keep the money that was taken off people for speeding even though it was unlawfully gathered". So he dresses the whole issue up as "safety" because, well, who doesn't like safety?

    Dunedin • Since Nov 2007 • 167 posts Report Reply

  • Speaker: Gay marriage, weed, and death…,

    Just a comment on these points:

    ...how quickly the country went from its first law permitting same-sex marriage (2004, in Massachusetts), to a majority of States first acting to ban same-sex marriage, then after 2012 a majority of States moving to allow it (36 by last week)...

    A majority of the States had already allowed same-sex marriage before the US Supreme Court acted. This is very different from abortion, where only around a third of States had acted pre-Court.

    I'd note that a lot of the States that permitted same sex marriage pre-Supreme Court decision did so because other courts told them that they had to. Some of those courts were State ones (applying State constitutional provisions - like happened in Massachusetts), but a bunch were Federal (applying the US Constitution - like Mississippi). So it's not that the States were independently moving through their legislative/referenda process to allow this practice. Rather, it's that the courts decided pretty much en masse that the States had to let this happen ... with the Supreme Court simply being the latest one to do so (as well as the most important, because once it says it has to happen, then ALL the States have to listen).

    Why, then, did the courts do so? Part of it is that society's view did change ... judges know how to read opinion polls just like politicians do. But part of it also was that the legal precedents were pretty well set - it's hard to read Loving v Virginia and not apply the exact same reasoning to same-sex relationships. And, by the same token, there is a far more active and developed public interest litigation strategy in place today - c.f., say, female suffrage, when the idea of getting the courts to tell States they had to let women vote just wasn't on anyone's radar.

    How, then, does this map onto the two other issues you touch on - pot and aid in dying? Well, pot doesn't raise an issue of constitutional rights, so there isn't a Bill of Rights path to the Supreme Court. Which means it has to be fought State by State through the political process. And aid in dying may have gone too soon - in the 1990s the Supreme Court said that it wouldn't rule on the matter, but instead leave it to the "laboratory of the States" to deal with. Which means that, at least until a bunch more States follow Oregon/Washington/Vermont, it'll keep out of the fray (as well as keeping other federal courts out of it, too).

    Dunedin • Since Nov 2007 • 167 posts Report Reply

  • Speaker: Bridges swims in troubled waters,

    I’d rather both sides played by the actual rules. But I remember my game theory classes. If the other side is going to play dirty, then often it’s better to do the same right back than be a lily-white loser.

    Oh, Rob, Rob ... you charming naif.

    The way it works is that when National does it, then even pointing it out is simply crying wah, wah, wah and focusing on a classic beltway issue. However, should Labour do it in (say) five years time, it will be the worst action ever taken by any government ever and a sure sign that it plans to establish a one-party dictatorship.

    Do you know nothing of how this all works?

    Dunedin • Since Nov 2007 • 167 posts Report Reply

  • Legal Beagle: Compensation for Teina Pora?, in reply to BenWilson,

    Yes, and this could easily be a bi-partisan thing, since it just looks like an out of date law that just got tested.

    The Cabinet Guidelines are not law. There is no law governing the giving of compensation - the Government has set these Guidelines (note that - Guidelines) up as a way of deciding whether or not to give "ex gratia" payments (i.e. payments it makes out of the goodness of its heart, rather than because the law makes it do so).

    This means it can ignore the fact that the Privy Council/Supreme Court got left out of the written version of its Guidelines and apply them anyway (in a way it couldn't if these were "law"). Which is what it appears Amy Adams is going to do. Which is a good thing and to her credit.

    But more generally, compensation in these situations should be a legal right, not something that the Government gives or doesn't give according to its own "rules" (which it can change and/or ignore whenever it wants). That would require an Act of Parliament, of course ... hopefully as a part of wider move towards setting up some sort of wrongful conviction review body.

    Dunedin • Since Nov 2007 • 167 posts Report Reply

  • Legal Beagle: Compensation for Teina Pora?,

    The guidelines do not mention the Privy Council. I think the distinction that the guidelines make is a stupid one, especially in light of the creation of the Supreme Court, which is also not mentioned.

    I'd go further. If Cabinet tried to argue that Pora's case is "outside its guidelines" because the guidelines in question somehow neglected to include the highest courts in NZ's curial hierarchy it would be so completely fucking outrageous that every lawyer in NZ ought to march on the Beehive and burn the place to the ground.

    Metaphorically speaking, of course.

    For what it is worth, I also missed what the guidelines actually say in full, instead relying on the MoJ's summary of the matter: http://pundit.co.nz/content/why-having-no-retrial-for-teina-pora-matters

    Dunedin • Since Nov 2007 • 167 posts Report Reply

  • Legal Beagle: What next for Winston?, in reply to Rich of Observationz,

    @Rich,

    Something like that. It may or may not be a good legal argument, but I don't think s.23 precludes it in the way Graeme suggests.

    Dunedin • Since Nov 2007 • 167 posts Report Reply

  • Legal Beagle: What next for Winston?, in reply to Graeme Edgeler,

    It does use the words “Members’ seats become vacant only as provided in Electoral Act 1993”.

    True. But if the Speaker/Privileges Committee were to say that Peters being elected as member for Northland has vacated his list seat, it would be by virtue of the Electoral Act ... wouldn't it? By implication, to be sure, but it wouldn't be a claim of composition privilege (which is what s.23 is intended to address).

    Dunedin • Since Nov 2007 • 167 posts Report Reply

  • Legal Beagle: What next for Winston?,

    The House has no power to make a member’s seat become vacant by expelling the member ... from membership of the House.

    But in your scenario, the House would not be "expelling the member". Peters would remain in the House (as MP for Northland). It's just he'd be joined by another NZ First MP (from the party list). So I don't think that s.23 gives quite as definitive an answer to the question as you suggest.

    Note that s.23 doesn't say "the only way a vacancy in the House can occur is through s.55 of the Electoral Act." Rather, it simply rules out one particular way in which a vacancy may have been able to occur - through the expulsion of a member .

    Anyway, the point is completely moot. There is zero chance that David Carter would send this to the Privileges Committee.

    Dunedin • Since Nov 2007 • 167 posts Report Reply

  • Legal Beagle: MPs to vote on raising…,

    Here's what I wondered ... is there any Government procurement policy requiring ex-MPs to give preference to Air NZ for their travel (as, for instance, we're meant to at the University of Otago)? And it appears that there is: http://www.business.govt.nz/procurement/all-of-government-contracts/current-all-of-government-contracts/travel#air

    Question then is whether this applies to ex-MPs booking their own travel?

    Dunedin • Since Nov 2007 • 167 posts Report Reply

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