Stephen Franks

Director
Stephen Franks

Stephen Franks is a nationally known lawyer, expert in company and securities law, and law reform.

After early general practice he spent two years in the Office of the Ombudsmen then joined Chapman Tripp in 1979, became a partner in 1981 and served as Chairman of the firm’s National Board. He had six years in Parliament, then four back as a consultant with Chapman Tripp before establishing in July 2009 a specialty law firm, Franks & Ogilvie (Commercial and Public Law Limited) to focus on the intersection of government and commerce.

Stephen ran a vigorous campaign for election in 2008 as the National Party candidate for Wellington Central but the seat was retained by Labour.

He’s been a member of the Securities Commission, the Council of the IOD, and the NZ Stock Exchange’s Market Surveillance Panel. In 2009/10 he served on the Minister of Energy’s expert advisory group on the electricity market structure.

He advised the New Zealand Dairy Board on the route to the creation of Fonterra, the Ministry of Commerce in drafting the Electricity Industry Reform Act, Telecom New Zealand during its privatisation and initial international public offering and the World Bank on legal aspects of corporatisation and privatisation.

Other current interests include a 2,000ha manuka and grazing block, mountain biking, and kayaking. Stephen is married to Catharine and they have four young adult children.

Stephen
in the news
March 30, 2023

On 27 March 2023, the Government introduced the Severe Weather Emergency Recovery Legislation Bill. Its 'emergency' introduction has stunned lawyers. The First Reading debate in Hansard was not even available by the time Select Committee submissions closed, and these submissions were only open for one day.

The Bill shrieks of arbitrary power to constitutional lawyers. They are talking of Henry VIII clauses. What do they mean and why is there such outrage over a measure responding to cyclone devastation?

The Bill lets the Governor-General (who acts on Cabinet's request) grant exemptions from, modify or extend any provisions from a broad list of statutes. They include the Building Act, Land Transport Act, Local Government Act and Resource Management Act. Orders can also specify any provisions of additional Acts of Parliament that will in effect no longer bind a Minister on relevant matters. To exercise that latter power the Minister must be satisfied there is “unanimous or near unanimous support” from the leader of each political party in Parliament.

The Orders can only operate in a specified local authority that has been affected by the severe weather events.

Henry VIII Clauses

Clause 7 of the Bill, which allows these Orders, is a contemporary Henry VIII clause. Henry VIII clauses delegate Parliament’s legislative powers.

Confining law-making to the people’s elected representatives was an enormous constitutional achievement. It removed the power to make up rules along the way from local big-wigs, priests, soldiers, officials and agents of the government. That legal inheritance distinguished the English Rule of Law from more despotic regimes.

Henry VIII clauses are “in disrespectful commemoration of that monarch’s tendency to absolution” (LawsLJ, Thoburn v Sunderland City Council [2002]4 All ER 156 at 157). The term refers to a 1539 law which permitted King Henry VIII to override Parliament by decree, which he used to declare some of his children illegitimate and to alter the line of succession. Taken with his abuse of legal procedure to dispose of unwanted spouses, the term is not a compliment.

So provisions in Acts that delegate what is effectively power to make up the law on the spot, to amend, override, or exempt from primary legislation, are very significant.

What makes Henry VIII clauses so dangerous?

Over centuries Parliament has evolved accountability mechanisms. Consultation processes, general elections, and public scrutiny help to constrain what is otherwise an absolute power of a Parliament which is supreme, and without any constitutional body to over-ride it. Exercises of Henry VIII power sidestep those protections. At a local level they may authorise abuses of power which might not even get public attention.

New Zealand's experience of the cruel use of MIQ powers (which the courts have subsequently criticised), show the dangers of extraordinary power, even under statute. The Severe Weather Bill has no protections against favouritism or vendetta. It has no protections against jobs-worth high-handedness. It has no specific protection of property rights.

This Bill will allow discretionary authority outside of statute, and in spite of it.

Henry VIII clauses often contravene the doctrine of Separation of Powers. This doctrine tries to protect against arbitrary authority by confining each branch of government to its own sphere. Those that make the law should not be those who apply it. Law-makers should not be “judge and jury” in their own cause.  

These Henry VIII clauses violate this protection by allowing the executive government to step into the shoes of Parliament. Those exercising the powers are accountable to their bosses, but without law constraining them to make them accountable to the courts.

The Regulations Review Committee has indicated that while Henry VIII clauses are permissible in some circumstances, they should only be used where necessary. There should also be appropriate constraints on the use of their power. The Bill material does not show satisfaction of those requirements

 

The Bill fails to provide accountability

The Severe Weather Bill, as introduced, has feeble reassurances.

Orders made under clause 7 will expressly not be invalid where they confer any discretion on, or allow any matter to be determined or approved by any person (Clause 18). There is no prescribed limit to who can make decisions under fundamental legislation, nor how these acts may be interfered with.

The Bill proposes a bureaucratic comfort - a Severe Weather Events Recovery Review Panel. The responsible Minister must consider appointing to the SWERRP members with knowledge or experience in law, environmental protection, local Māori or community interests, or emergency response and recovery. The Minister must also consider appointing one or more persons with experience in “local perspectives in the severe weather events affected areas of mana whenua, mātauranga Māori, tikanga and te ao Māori.”

The appointees are selected by the Minister creating the Orders, and are not democratically accountable.

Orders made under the Bill can remain in force until 31 March 2028, if not revoked before. Many provisions of the Act self-repeal after three years. It seems the Panel would then no longer exist to review the use of the Orders.

 

Other legislation

The Bill might be the high water mark so far of government extension of executive power. It is not much more significant, however, than the aborted attempt to entrench co-governance in the Water Entities scheme.

The provisions for Te Mana o te Wai statements by iwi may have similar constitutional implications. Words in the provisions setting up co-governance get meanings set out in Minister’s National Policy Statements. They can change. The RMA replacement Bill is shot through with comparable derogations from normal rule of law certainty, and delegation of important legislative power to unelected committees.


For more information on this, please contact Director Stephen Franks.

May 25, 2022

BusinessDesk reports on the Commerce Commission decision, due for announcement next week, that could mean price hikes over and above market prices for consumers of piped natural gas.

Franks Ogilvie is acting for the Major Gas Users' Group.

To read the full article, click here.

May 5, 2022

Summary

Just like any other public place, you can be trespassed from Parliament. But unlike any other public place, the decision to do so, by the Speaker is open to review and must take in to account rights under the NZ Bill of Rights.

Background

During the protests on Parliament’s lawn in March and April 2022, hundreds of people were trespassed from the grounds. Many of them returned during the protest. However, since then and more than 2 months since the protest ended, people have received trespass notice banning them from Parliament grounds for the next two years. The most high profile people to receive such notices were former Deputy Prime Minister and former Member for Northland, Matt King.

The notices themselves do not provide any reasons for the notice except they are made in accordance with sections 4(1) or 4(2) or 4(4) of the Trespass Act 1980.

Key Provisions

The Trespass Act 1980 applies to Parliament Grounds.

Section 4 of the Trespass Act 1980 allows for a trespass notice to be issued when a person has been warned to stay off the site. The occupier (for Parliament this is the Speaker) may do so if –

- Subsection (1) where the purpose has trespassed on the place, the person may within a reasonable time, warn them off that place

- Subsection (2) they have reasonable cause to suspect the person is likely to trespass on that place.

Subsection (4) states it is an offence against the Act, if that person, then wilfully trespasses within two years.

The New Zealand Bill of Rights Act 1990 states that everyone has the right to freedom of expression (section 14) and freedom of peaceful assembly (section 16). But they may be subject to reasonable limits as demonstrably justified in a free and democratic society.

Application to Parliamentary Protest

There are a number of technical requirements that must be satisfied when a trespass notice is issued, such as the manner the warning was given and the information provided in the notice.

As the occupier of Parliament is the Speaker, their decision is a public function and therefore subject to judicial review. This action looks at the process of the decision being made and would take in to what factors were taken in to account when making the decision (and which were not),the time frame for making the decision, whether there was any bias or improper purpose in making the decision and whether it was arbitrary.

In 1997, 300 students protested at Parliament. They were trespassed and arrested. The case went all the way through to the Court of Appeal, and it was upheld that while a trespass notice could be issued it was subject to the NZ Bill of Rights.

The decision to trespass can only be reasonable if it is a justifiable limit on the rights of freedom of assembly or expression. The questions the court asked to determine whether it was justified in regard to the student protest was whether the individuals behaved in a disorderly manner, breached or threatened to breach the peace or unreasonably infringe on the rights of others.

The law, to date, has not specifically considered whether a particular individual’s former role (as as being a MP) would affect this decision. Mr King, as a former MP, has stated publically, that he intends to run for election in 2023and if elected, would therefore be required to attend Parliament within the two year trespass notice period. It would be difficult to argue at that point that such a limitation could be justified.

Franks Ogilvie Director Stephen Franks, a former MP, was also told verbally he may receive a trespass order for speaking with people at the protest but did not receive.

 

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