Posts by Steven Price
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Oh, and in case it needs adding, it is not a ground to refuse an OIA request that the Police are worried that "their" information might be misrepresented. That is simply one of the risks of an open society.
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Hard News: The Police Ten 7 State, in reply to Russell Brown,
Where's the bit in the police statement about ensuring that any response to a request for information complies with the OIA? I get the feeling they think it doesn't apply to academic requests, which is staggering. Certainly to the extent that a particular proposal requires some form of co-operation (eg ride-along), or the compiling of data that is not already compiled, or interviews that involve forming views that are not already formed, it need not be treated as an OIA request, but only to that extent. There are also withholding grounds that can be invoked in appropriate circumstances. That aside, though, there's no right for the police to vet applicants and research, and any "blacklist" that removes future rights to seek official information is simply unlawful. Privacy issues can usually be dealt with by redaction, not refusal.
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I'm pretty shocked about this too, though it's not news that the Police are dreadful at complying with their Official Information Act obligations. They are routinely one of the most complained about organisations in the Ombudsmen's OIA stats. When I discuss OIA issues with requesters, the Police are almost always mentioned as one of the worst agencies at complying. It's beyond irony.
While you can complain to the Ombudsmen that your OIA request has been improperly refused or delayed by the Police, or about the conditions or charges imposed, I'm afraid NoRightTurn is wrong to suggest that the Police are subject to the Ombudsmen's general jurisdiction to investigate administrative wrongdoing. They are not. That's the job of the Independent Police Conduct Authority. That's why the Ombudsmen's current general review of compliance with the OIA does not include Police performance, woeful though it is. Which is a shame, because someone really needs to give them a shake-up. -
Legal Beagle: Into the River/Interim Restrictions, in reply to Andrew Geddis,
Yes, I have a wider view about what the public interest allows here.
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Where am I sourcing this jurisdiction? In the power to grant an interim restriction order in the public interest. I take the public interest to include an interest that valid classifications take effect and are not subverted if there is an obviously unlawful purported exercise of a power to overturn them. (We can argue about how obviously unlawful it is here, but that's a different question). On your logic, the OFLC could "overturn" every decision of the FLBR the next day, on the grounds that the Board supports a different rugby team, and this could have no impact on a decision to grant an interim restriction order.
That said, I completely agree with you that the power to make interim restriction orders must be exercised consistently with the Bill of Rights and that requires a focus on the competing harms.
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We might add: Fifty Shades of Grey is also freely available to all. (Disclosure: I made submissions for the publisher that this should be unrestricted).
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I'm going to say a few - and only a few - words in defence of Don Mathieson.
He is surely right that what's happened here is that the censor's office has brazenly overruled the Film and Literature Board of Review. That's like the District Court purporting to overrule the High Court.Resubmissions are allowed after three years have passed. That's surely to allow for changing social circumstances. They can be accepted before that, but only if there are special circumstances, as Graeme points out. None of the circumstances given by the censor's office are really about anything that has changed since the Review Board's decision was issued. The censor essentially says: "I think the Board got this wrong".
It's true, as Graeme says, that they point to the fact that the R14 restriction has had more of an effect on the availability of the book to others than might have been expected. But, you know, that's what happens when you age restrict a book. It was surely fairly apparently from the outset. It hardly constitutes the sort of special circumstances I think the Act is contemplating. Nor do any of the other reasons given.
In fact, the main reason given by the censor is the Board's failure to consider the Bill of Rights. That's a legal error. It is not the function of the censor to reverse a decision of the Board of Review for legal error.
That said, I agree that it's a doozy of a legal error. What the hell is the Board of Review doing making a restrictive decision without grappling with the Bill of Rights? Still, it's not the censor's place to fix that.
As for the interim restriction order, I agree that it's overkill. That is, it's disproportionate in that it fails to properly grapple with (and act consistently with) the Bill of Rights. I'd add another reason: it cannot be too hard for the Board to agree to meet quickly and reach a decision so that no interim restriction is required.
But I don't agree with Andrew Geddis that all the President's reasoning for the restriction order is wrong. If the censor did make a bad and manifest legal error in purporting to overturn the Board of Review when there really were no special circumstances justifying it (as I think is the case), then surely that is at least a factor that may be taken into account in assessing the public interest in an interim restriction order. That said, Andrew is surely right that the main question is about the balancing the harms involved: was the damage to free expression worse than the harm to impressionable youngsters of the availability of the book?
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What is your role in the left-wing conspiracy? Why don't you want to talk about the issues that matter to New Zealanders? Which vile bloggers on the left are you secretly colluding with?
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Why don't we help Holly come up with some rules that should be in place in debates (sorry, meetings) like this? I say they should instantly eject any candidate who uses the word "desperate" or starts any response to a question with the phrase "let me just say this...".
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Graeme Edgeler seems to be busy with Kim Dotcom, so I think I have to step up to the plate. Not to disagree with anything in Russel's thoughtful column, but this isn't quite right:
They failed in the High Court and Court of Appeal because their claim was trumped by the principle of freedom of expression, in particuar because the right to report on what happens in a public place is crucial to a free press. That right applies whether not we like the person doing the reporting, or their purpose in doing so.
But the Appeal court did, significantly, establish a "tort of privacy" that placed some boundaries on that right. A injured party could sue if they had "a reasonable expectation of privacy" (eg: they were at home) or if publication would be "highly offensive to a reasonable person".
It's really a tort of "invasion of privacy". An injured party must show both a reasonable expectation of privacy and highly offensive publicity. The expectation of privacy must relate to private facts, and "being at home" may not be enough. For instance, if I publish the fact that you're at home watching TV, that's not going to make the grade. Even if I published a surreptitious photo of you watching TV, that's probably not a private fact either (perhaps depending on what was on your TV). Still, the surreptitious photo might fall foul of another tort called "intrusion" - but that's not established by the Hosking v Runting case.
Finally, the Hosking case wasn't really about freedom of expression trumping privacy rights, and it didn't really say that being able to report what happens in a public place is crucial to a free press.The judges didn't have to go that far. Certainly freedom of expression was discussed and underscored. But that part of the case is really more about the complete absence of any public interest in the material photographed.
Also, I think we can give the Sunday Star-Times some credit for its feature that explored the moral issues concerning papping.
Aside from that, which is mostly nit-pickery... too right.