NEWS ON POLICY
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ELECTION POLICIES Redundancy gets rehearing National's local government policy IN POLITICS Woulda coulda, shoulda The Honorary Consul Cave canum - The rise of the Cockapoo Keep those BIMs and letters coming IN THE WINGS The distractions of the election and Labour Day meant that Cabinet has not met since 20 October. At that last meeting several international agreements were approved. more... IN OTHER NEWS ACC changes to rule out competition? more... A Step Closer to Franchising regulation? more... Victims of Crime Compensation - Law Commission more... Trans-Tasman Trade more... Waikato Conservation more... United States Trade more... IN PARLIAMENT Until the 49th Parliament is constituted there is no legislation on which to report. The only action is on the regulatory front. more... IN CONSULTATION more... IN THE COURTS Combined Beneficiaries Union Inc v Auckland City Community Organisation Grants Scheme (COGS) Committee and Others [2008] NZCA 423 more...
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| ELECTION POLICIES | |||||||||||||||||||||
Redundancy gets rehearingIn the last issue of Watching Brief we flagged the likelihood of redundancy compensation becoming a focal point of political campaigning. Since then, Labour has endorsed the idea of a statutory entitlement to redundancy compensation, with Helen Clark announcing that Labour will introduce a transitional assistance package for workers who are casualties of a deepening recession. Under the package workers made redundant will be entitled to up to 13 weeks of redundancy payments to tide them over until they find a new job. The cash payments would be made even if the person is not entitled to the unemployment benefit (e.g. if a person's spouse is in the workforce). For people over the age of 25, the value of Labour's redundancy payments is therefore $185 per week after tax, or $2405 in total. Labour also plans to reduce the stand down time for the unemployment benefit to two weeks (although workers who are made redundant will be entitled to immediate assistance). Initially, National rejected any form of statutory entitlement or state compensation, but this week John Key adopted a familiar 'me too' approach, announcing that National too would provide cash payments to workers made redundant as a result of the recession. Under National's proposed scheme, though, payments would be targeted at middle income earners with families and mortgages, rather than cash payments across the board. The payments would also be means tested and would take into account redundant workers' savings, outgoings and whether or not they are entitled to the unemployment benefit. Full details of the package are expected today. Local GovernmentAlso this week National released its policy on local government. With local government reform a probable early flashpoint for any incoming administration, National had an opportunity to set potentially election winning agenda. It was, however, an opportunity that was largely ignored. With the Auckland constituency obviously in mind, the infrastructure development theme gets a practised work out, as does the enhancement of service delivery and commitment to local democracy. The necessary nod is also given to the environment, with National essentially affirming the objectives of the Waste Minimisation Act 2008. Overall the policy is bland and, apart from a commitment to value for money benchmarking does little to address the concerns of those who remember the vaunted, but essentially unproductive rates inquiry of 2007. The indication that National will review the legislative burden on councils and consider the allocation of costs offers some hope that the practice of cost-shifting from central to local government will receive scrutiny, but the policy is silent on the fundamentals of local government funding, debt ratios and the use of practice of cross-subsidising council activities through charges for monopoly infrastructure services. Presumably, National will have been constrained in its proposals by delays in the report of the Royal Commission on Auckland Governance. With the latter likely to have implications wider than Auckland, National will have wanted to avoid substantive announcements until the Commission's framework for dealing with infrastructure and council structures is known. The question then will be the extent to which the Commission report amounts to a blueprint for wider application. |
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Woulda coulda, shouldaIn one of the stranger turns in this year's election campaigning, Labour has begun to announce policies that, but for the economic crisis, it would have introduced. Although the intent will be to reinforce in voters' minds the attentive and caring nature of the administration, the ploy also invites derision or at least a series of copycat assertions about policies that might have been. But it is not just the risk of being lampooned that makes the announcement of good but unverifiable intentions a less than smart move. Instead of providing voters with reassurance about what the Government can do in the face of crisis, it points to what it can't. Painting a picture of helplessness in the face of circumstance does little to enhance the administration's call to avoid changing horses midstream. There will come a point where people won't care what horse they're on provided it can swim. The Honorary ConsulJust as the Owen Glenn donation saga and questions about who said what to whom had begun to fade from political memory the electorate is confronted with the revelation that, yes, Foreign Minister Winston Peters had in fact made representations in support of Glenn's appointment to the vacant position of Honorary Consul to Monaco. Although the news is unlikely to sway many in their political choices, it does seem likely to have at least some impact on those undecided voters who might otherwise have been attracted to Peter's charm and iconoclasm. Hopes of crossing the critical 5% threshold may not have been dashed, but they have certainly taken a hit. All eyes now turn to Tauranga and whatever toehold Peters may be able to claw from the campaign to collapse the Labour electorate vote into NZ First's. National's pollsters claim to be unphased by the possibility, pointing to the lead their Johnny-on-the-spot, Simon Bridges, has in the local polls. Assuming that confidence is justified, Peters' only remaining hope is that colleague, Ron Mark will be able to deliver the goods in Rimutaka. However, the chances there look slim, with Mark trailing a distant third behind Labour's Chris Hipkins and National's Richard Whiteside. Winston Peters is never someone easily counted out, but this time there is every sign that any return to the political fray this time, will be at the grace and favour of Labour. Cave Canum - The rise of the CockapooJust over a week out from the election and National seems finally to have taken a more assertive stance in its campaign for the Treasury benches. Concerned not to alienate voters - particularly female voters - by negative campaigning, National has to date been restrained and its candidates have been enjoined to smile and look past the many opportunities for attack that nine years of government have provided. It has been a rational strategy, but one that has left National open to criticism for appearing vapid in the face of aggressive - and more recently - highly personalised campaigning by Labour. The change of tack this week, while evident, has not been radical. National has continued its effort to focus on playing the issue rather than the woman. But with Helen Clark very much the face of Labour's campaign, it's a difficult task. The fact too that Clark has made trust - and implicitly trust in her - an election decider, means that National has little choice to carry the fight to her. After the damp squib that was Labour's neutron bomb attack on Key's integrity, together with the fresh revelations about Owen Glenn, this is what National is doing. However, it is doing so with a real appreciation of the risk it is running with an electorate sick of negative personal campaigning. If true to strategic form - and having fired its shots - National will now back off to let the public make its own judgements about who is sinner and who sinned against. Perversely, it may well be helped in this by Labour's expected release of a second neutron bomb - this time targeting National's leadership team - in the days before the election. Keep those BIMs and letters comingWhile the politicians desert Wellington to beat the drum in their electorates, officials are hunkered down refining their Ministerial briefings and deciding what particular tweaks will be required to suit the taste of whatever government emerges from the wrack of the general election. There is nothing new in this. Whenever a new Minister is appointed to a portfolio officials busy themselves with the practised task of preparing accounts for their new political master or mistress of what's happening and what needs to happen in their particular area of responsibility. Formally, this is the Briefing to the Incoming Minister. To the initiated, it is simply the BIM. Come election time the exercise is a wholesale one and the only thing to dampen the ambitions of a prospective Cabinet will be the prospect of having to read several hundred pages of official commentary on the 'outputs', 'outcomes', policy issues and 'strategic priorities' of the individual government departments and ministries. However, the days when corporates could rely on officials to describe the state of the nation as it is relevant are gone and, in a highly volatile regulatory environment, the importance of ensuring politicians know what's exercising the minds in New Zealand's boardroom is high. Accordingly New Zealand's businesses would be wise to prepare their own briefings. They may add to the Ministerial burden (or perhaps the burden of those Ministerial staffers assigned the task of review), but they are also a valuable vehicle for conveying key issues and concerns at a time when the government agenda is being formed.
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| IN THE WINGS | |||||||||||||||||||||
Cabinet did not approve any new legislation at its meeting on 20 October 2008 and it did not meet the following Monday because of Labour Day. On 20 October the Cabinet did approve several international agreements, namely:
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ACC changes to rule out competition?Labour's announcement that it will promote an immediate law change after the election to reduce the pressure on ACC levy rates, raises some serious questions about the future funding and status of ACC. Having completed the laborious transition to a fully funded scheme, news that cuts to the motor vehicle and employers' levy comes as a surprise and seem to throw into doubt Government's commitment to the fully funded model. Among the other spectres raised by the proposed changes is the possibility that the Government is trying to make privatisation or ACC competition a less palatable option. A step closer to franchising regulation?Among the business awaiting an incoming government is consideration of whether the franchising industry requires specific regulation and, if so, what form this should take. The Ministry of Economic Development has released a discussion document seeking comment from those in the industry. One option will be the adoption of a regulatory framework that mirrors that of Australia. This involves disclosure obligations (both up-front and on-going), a compulsory cooling off period for franchisees, mediation based dispute resolution mechanisms, and rules relating to the termination and transfer of a franchise. The introduction of regulation in Australia has not been without controversy. Post regulation there was a decline in the growth of the franchising sector (although that may well have been a transitional blip). Disclosure requirements have increased significantly and concerns have been expressed that the compliance costs for franchisors have become too onerous. For a copy of the discussion document go to: http://www.med.govt.nz/upload/61194/Franchises_discussion_document.pdf. The closing date for submissions is Friday 21 November 2008. Victims of crime compensation - Law CommissionThe Law Commission has concluded that it is difficult to find a rationale to introduce a compensation system for victims of crime, beyond compensation ordered by courts between a convicted criminal and the victim. In an issues paper, Compensating Crime Victims, the Commission notes that physical injuries are covered by ACC. As for emotional harm, or damage to the victim’s property, it says it believes that “the spreading of the losses of crime victims to the community at large cannot be justified on the basis of social contract theory. Nor is it likely to be justified on social utility grounds if the loss-spreading is confined to crime victims alone”. Changes to the status quo (about which the Commission makes no recommendations) could include: increasing entitlements for compensation for personal injury, extending eligibility for compensation for mental injury, the provision of state-funded trauma counselling and imposing an offender’s levy. Submissions to the Law Commission are due by 24 December 2008. Trans-Tasman tradeThe rules of origin which govern trade under the Australia New Zealand Closer Economic Relations Trade Agreement (CER) are being reviewed by the Ministry of Economic Development. Rules of origin determine whether a product qualifies for tariff-free entry when being traded between New Zealand and Australia. They are also used to compile trade statistics and for product labelling. While there is no consultation paper, submissions to MED are due to by 17 December 2008. Waikato conservationA draft of the Waikato Conservation Management Strategy for the next 10 years has been publicly notified for submissions. The Conservation Management Strategy is a 10-year plan produced by the Department of Conservation in consultation with the Waikato Conservation Board, the public and iwi. It provides long-term guidance for DoC’s management of public conservation lands and waters and the natural and historic resources it administers within the Waikato Conservancy. Submissions to DOC are due by on 9 January 2009. United States tradeThe Ministry of Foreign Affairs and Trade is seeking submissions by those who might be affected by the expansion of the Trans-Pacific Free Trade Agreement ("FTA") to include the United States. The FTA currently comprises Brunei, Chile, New Zealand and Singapore. The FTA, which is open to new membership from economies in the Asia Pacific Region, includes provisions on market access and related rules for goods trade, trade in services, intellectual property, government procurement, competition policy and dispute settlement. All FTA members are also party to an Environment Cooperation Agreement and a Memorandum of Understanding on Labour Cooperation. Three meetings have already held between the current FTA members and the United States to discuss the Investment and Financial Services chapters of the FTA. Submissions to MFAT are due by 8 December 2008.
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| Until the 49th Parliament is constituted there is no legislation on which to report. On the regulatory front, business continues and the following regulations have been made: RegulationsTakeovers Code (Zintel Group Limited) Exemption Notice 2008
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Whats New
Whats New
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Combined Beneficiaries Union Inc v Auckland City Community Organisation Grants Scheme (COGS) Committee and Others [2008] NZCA 423 The Court of Appeal recently considered a case for damages for loss caused by a denial of natural justice brought by the Combined Beneficiaries Union. The Court of Appeal, comprising Their Honours Justices Glazebrook, Hammond and Baragwanath, dismissed the appeal and a majority dismissed a cross-appeal from the respondents seeking to overturn a High Court declaration. The Combined Beneficiaries Union's ("CBU") based their case on section 27(1) of the New Zealand Bill of Rights Act 1990 ("NZBORA"). Section 27(1) reads:
Since a high-profile Court of Appeal case in 1994, damages have been available against the Crown for breaches of NZBORA. Successful claims to date include loss of liberty, loss of earnings, other economic loss (eg loss of a car), loss of opportunity to exercise rights and humiliation and damage to feelings. In CBU the Court considered the extent to which NZBORA damages were available for procedural unfairness resulting in economic loss (damages have previously only ever been in cases of personal injury or loss of liberty). In this case the High Court declared there had been a breach of natural justice and a breach of section 27(1) of the NZBORA because inadequate notice had been given about a change to time limits for provision of information to support funding applications. NZBROA damages were not awarded, however and CBU appealed this point. The Court of Appeal accepted that that section 27(1) of NZBORA was available for common law breaches of natural justice, including for discretionary decisions (here grants from COGS were discretionary). Although the consequences were arguably significant for the CBU (who missed out on funding in the range of $10,000 to $24,000) the Court considered this case did not warrant such careful consideration and was more a matter for referral to the Ombudsman. The Court did not accept that damages should be awarded in a case such as this which, in the view of the Court, was largely bureaucratic and trivial. Glazebrook J held that NZBORA damages are available in cases where breaches "shock[ed] the public conscience and thus justify payment of damages out of the public purse." Ultimately the majority of the Court held that the remedies of a Court declaration or setting a decision aside should be used first when natural justice under section 27(1) is concerned. Only where no other effective remedy existed should damages be awarded, thus limiting the likely occasions on which damages would be awarded for breaching section 27(1). Baragwanath J made some general comments regarding the scope Bill of Right damages for economic loss. While not ruling out damages for economic loss resulting from, say, procedural error or mistake, His Honour was clear there was no place in New Zealand for absolute state liability for the actions of the public sector. Baragwanath J suggested a proportional approach should be adopted involving careful consideration of the public sector conduct that is, say, designed to be in the public interest, against the extent of the harm and/or the deservedness of the claimant. Although the appeal was dismissed, Baragwanath J's judgment has left open the potential for claims for economic loss under NZBORA. Future case will further determine the circumstances necessary to trigger relief. The majority decision of Glazebrook and Hammond JJ also left open the question of whether NZBORA damages could ever be available for a breach of section 27(1).
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© Russell McVeagh 2005. All rights reserved.