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Legal Beagle by Graeme Edgeler

41

Asserting ancient rights

The news that section 92A is likely gone, or neutered, is great – although I'm not convinced that it is as bad as was being made out. I've noted my concern over the strained interpretation in comments here and on other 'blogs before, but Steven Price puts it much better than I have :

An ISP that simply terminated on the basis of two or three allegations would surely not be implementing its policy reasonably, and termination would be inappropriate. True, this provision is awfully vague (which may also raise Bill of Rights issues, actually). Yes, it gives quite a lot of wiggle room to ISPs (though they are not likely to try to implement it against their clients’ interests). But it does not require – or even permit – guilt by mere accusation.
...
Throw in the new Telecommunication Carriers' Forum draft on how this law is likely to work in practice and we move even further away from guilt by accusation. What this draft gives us is “innocence by denial”

[emphasis added]

But as good as the news is, I'm more than a little disturbed at how it came about. Not that it came about because of citizen action, but the reaction itself. The Herald article breaking the story on Monday began:

Prime Minister John Key has announced the controversial Section 92A law, which has been widely condemned by internet users, is to be delayed. It will go on hold until March 27 while work is carried out on a voluntary code of practice.

If no solution is reached by then it will be suspended.

Suspended. Not repealed. Not even (the still constitutionally dodgy) further delayed. Suspended. You know, I'm pretty sure the Government doesn't have that power. Parliament makes the laws. The Government administers them.

True, the Copyright (New Technologies) Amendment Act 2008 did empower the Government to say when this section would enter into force, but it didn’t delegate the power to decide whether the section would enter into force. The Legislation Advisory Committee has this to say about laws which delegate to the executive their commencement:

As a general principle, the commencement of legislation should not be delegated because of the risk that the will of Parliament may be frustrated by an Executive that no longer supports the policies in an Act.

It’s as if they were warning about this very situation. Certainly, Parliament can do what it wants, but even when it passes a law and delegates its commencement, there is an expectation that the law will come into force at some point in the future. No matter how stupid the law, it was the democratic will of Parliament that it be the law. And, until Parliament does something about it, that will remain the case. Rather than asking Parliament to repeal or amend s 92A the government may just sit on it – continually delaying its implementation until who-knows-when. That would be wrong. It would be wrong if I supported the law, and it is wrong even though I don’t.

George W. Bush took hell for issuing signing statements refusing to implement pieces of the law that Congress had passed ... and he claimed his power to do so arose from the US Constitution. From where does the power to “suspend” s 92A of the Copyright Act arise?

I'm probably overstating the problems – parliamentary democracy isn't under threat. From a democratic standpoint, the fact that there probably isn't great support within (or outside) Parliament for s 92A, mitigates the outrage. That's also not really the point. It wasn't the point in the action that led to Fitzgerald – which followed an election victory fought over the very law Muldoon purported to suspend. Even then, the Fitzgerald involved suspension of a law in force, where this does not. But I'm still uneasy. There was probably popular (if not particularly strong) opposition to the Civil Union Act; I imagine there would still have been quite an outcry if a politician had come along and said 'yes, Parliament passed this, but people have protested and brought their concerns to me, so we won't be implementing it while we review what to do about it.'

Not much will likely result from this, but I wonder what happens if, in a year's time, we're still in this holding pattern. Does an APRA-initiated judicial review force the Government's hand? Do we really want to find out?

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