Legal Beagle by Graeme Edgeler

3

A draft submission on the Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill

For once, I have written my submission on a bill with enough time to spare to both enocurage any of you who wants to make a submission to do so as well, and to give you time to spot the typos in mine.

Louisa Wall's Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill was pulled from the biscuit tim a little while back, and got through to the Justice Committee. It's a relatively simple bill designed to make some prosecutions for so-called "revenge porn" easier. An excellent bill of the ype that fits well into the members' bill process.

My draft submission is below

------------

The Justice Committee

Harmful Digital Communications (Unauthorised
Posting of Intimate Visual Recording) Amendment Bill

Submission of Graeme Edgeler

Introduction

My name is Graeme Edgeler. I am a Wellington barrister with a practice revolving around the criminal law.

I thank the committee for the opportunity to make a written submission on Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill, and look forward to appearing in person to supplement it.

I support the intention of the Bill, but offer some short comments that the committee might like to consider, as well as a small suggestion around some of the wording used.

New Offence Around Non-Consensual Posting of Intimate Visual Recordings

Non-consensual posting of intimate visual recordings is already illegal, but prosecution can be complicated by the requirement to prove harm, defined as “serious emotional distress” in the Harmful Digital Communications Act. This can mean that some people may avoid conviction for posting “revenge porn” because their victim, while negatively affected by the publication, isn’t affected in quite the right way for the requirement of serious emotional distress to be proved.

The intention of the bill is essentially to take the offence of causing harm by posting digital communication, and where that offence involves the posting of an intimate visual recording, assume that harm of a type the criminal law seeks to prevent is present.

I support this approach. Non-consensual posting of intimate visual recordings is harmful. It is a serious harm of the type society properly uses the criminal law to discourage. This harm is present even when the type of harm currently proscribed by the offence in section 22 of the Harmful Digital Communications Act cannot be proved beyond a reasonable doubt.

This law change will make prosecuting “revenge porn” easier. It should reduce some of the additional stress the Court process can impose upon victims, as intensely personal questions around the affect the posting has had on them will become less relevant, and potentially, there may be more guilty pleas as one avenue of avoiding conviction – seeking to establish reasonable doubt about the harm element of the current offence – will be removed.

Maximum Penalty

The bill has a second aim, albeit one which is not mentioned in the explanatory note: it increases the maximum penalty for the offence from two years to three years.

I will start by making it clear that I am not saying that the increase in the penalty is wrong. For the most serious types of this offence, three years’ imprisonment may well be an appropriate maximum penalty.

I am instead raising the following as something that the Committee may wish to think about, and seek further input from departmental advisers.
There is a general principle of law-making that when Parliament sets the maximum penalty for an offence, it is prescribing the sentence that should be applied to the most serious forms of that offence. For example, aggravated robbery covers a range of offending, all serious, but with a clear range from less serious to more serious. At the least serious end, any robbery committed by two or more people is an aggravated robbery, but at the most serious end, so too is robbery committed with a loaded firearm.

This approach – setting the maximum penalty as the appropriate penalty for the most serious offending of the kind to be prosecuted under the offence – is recognised in section 8(c) of the Sentencing Act, and was considered in the Law Commission’s 2013 Study Paper Maximum Penalties for Criminal Offences (NZLC SP21), which I would recommend to the Committee if it wishes to consider this further.

When Parliament passed the Harmful Digital Communications Act it criminalised non-consensual posting of intimate visual recordings. It did this through the section 22 offence of causing harm by posting a digital communication.

That offence does not only deal with the posting of “revenge porn” but covers a range of different offending. It is likely that Parliament considered non-consensual posting of intimate visual recordings to be the most serious type of causing harm by posting a digital communication. At that time, Parliament thought two years was the appropriate maximum.

Parliament knew what a serious invasion of privacy non-consensual posting of intimate visual recordings was at the time it set the two-year maximum. I suspect its view hasn’t changed. It remains as serious as it always was, with this law change primarily about making it easier to prosecute slightly less-serious forms of “revenge porn” (ie those where serious emotional distress cannot be proved).

I recommend that the Committee consider what the appropriate maximum penalty should be for this offence. I have no particular opinion on what it should be, but I recognise that there is some benefit in having a coherent approach to maximum sentences, as the Law Commission’s Study Paper addressed.

I anticipate that two years was chosen in 2015 in part because the pre-existing intimate visual recording offences in sections 216I and 216J of the Crimes Act carry three-year maximums, while dealing with more serious invasions of privacy (they cover situations where not only is the publication non-consensual, but the recording was non-consensual as well).

Overall, both two years and three years seem defensible, but I offer this as something to think about.

Proposed Changes to the Legislative Language

New section 22A(3) gives the sentencing Court the power to make what would be civil orders in the course of a sentencing. This appears sensible, and is in line with a few similar provisions in respect of other offences. Two issues arise: one substantive, and one around the drafting.

This is still a criminal proceeding, it would be appropriate to limit the orders available to the Courts to those in section 19(1)(a)-(c). In reality, a judge may be unlikely to make an order under 19(1)(d)-(f) in the Course of the sentencing, but I submit that the orders in paragraphs (d)-(f) are inappropriate in criminal proceedings, and the law should recognise this.

In terms of wording, subsection (3) refers to “any penalty being imposed on a person under subsection (2)…”. Subsection (2) sets the maximum penalty, but a Court does not impose a sentence or penalty under it. Rather sentencing takes place under the Sentencing Act. As drafted, there is a technical risk that a court may consider its powers limited where the penalty imposed is not one prescribed by subsection (2), for example, a sentence of home detention, or a community order.

It would also be appropriate for orders to be able to be made even where a penalty is not imposed at all, for example, because a discharge, or an order to come up for sentence if called upon is the result.

To better achieve the aims of subsection (3), I would invite the Committee to consider adopting wording closer to that in sections 216L and 216M of the Crimes Act, which deal with similar post-conviction orders around intimate visual recordings. The Committee may also like to consider whether the power ought to be able to be exercised in respect of other Harmful Digital Communications Act prosecutions under section 22.

Conclusion

I thank the committee for the opportunity of presenting a submission. I welcome the bill as an improvement over the current law, fixing an issue that will arise is a small number of prosecutions for offending Parliament intended to criminalise a few years back.

I support the passage of the Bill, while recommending that the Committee:

  •  Amend new section 22A(3) to remove the possibility of inappropriate civil orders being made in a criminal prosecution, and fixing the empowering provision to better accord with the intent behind it.
  • Consider what the appropriate maximum sentence should be for this offence.
3

A submission on the Films, Videos, and Publications Classification (Urgent Interim Classification of Publications and Prevention of Online Harm) Amendment Bill

Below, for those interested, I copy my submission on the Films, Videos, and Publications Classification (Urgent Interim Classification of Publications and Prevention of Online Harm) Amendment Bill.

This is the government bill aiming to create a mandatory Internet filter. The bill is largely unnecessary, but in parts not as bad as people fear, although this is because the current law already has many of the problems they're ascribing to eg the new offence of livestreaming objectionable content.

The Governance and Administration Committee

Films, Videos, and Publications Classification (Urgent Interim Classification of Publications and Prevention of Online Harm) Amendment Bill

Submission of Graeme Edgeler

Introduction

My name is Graeme Edgeler. I am a Wellington barrister with a strong interest in censorship and issues of freedom of speech.

I thank the committee for the opportunity to make a written submission on the Films, Videos, and Publications Classification (Urgent Interim Classification of Publications and Prevention of Online Harm) Amendment Bill, and look forward to appearing in person to supplement it.

I consider parts of the bill unnecessary, and the bill somewhat of a missed opportunity: there are a number of issues with New Zealand’s censorship laws that are in need of major reform, which this bill does not seek to address.

I am aware of other criticisms of the bill, some of which are misplaced. Many of these criticisms are really criticisms of the current law. I have not addressed these matters (for example, the livestreaming of non-objectionable material that becomes objectionable) because the Bill does not change the law around this. The Committee should nevertheless consider making recommendations around fixing these concerns.

I address the following issues in my submission:

  • Livestreaming objectionable content.
  • The disapplication of the Harmful Digital Communications Act.
  • The creation of a mandatory Internet filter.
  • A few relatively minor comments on statutory language.

New section 124AB offence to livestream objectionable content

New section 124AB would create an offence to livestream objectionable content.

This new offence is unnecessary. It is already an offence to livestream objectionable content. Anyone livestreaming an objectionable video commits the offence of making it, as well as supplying it, and distributing it.

Section 123(4) of the Films, Videos and Publications Classification Act was amended in 2005 to make clear that electronic transmission was covered. If there is any serious doubt that the words used are sufficiently clear (and I do not believe there is), then:

(i) Ministry advisers will presumably be able to point to the court case in which a person was acquitted on this technicality, despite Parliament’s 2005 amendment; and

(ii) The appropriate legislative response is keeping the new definition of livestreaming and adding the word “livestream” as an alternative in section 123.

I note also that the livestreaming offence appears intended to only cover publishers, and not those watching a livestream (either way, this should be made clear). People watching a livestream can currently be charged, the creation of this offence in this way, may suggest to the Courts that Parliament intends that those watching, for example, livestreamed images of child sexual abuse ought not to be charged.

Disapplication of the Harmful Digital Communications Act safe harbour provisions

When Parliament adopted the Harmful Digital Communications Act (“HDCA”) is put a deliberately wide immunity provision in it, providing not just a defence, but a broad immunity that prevented online content hosts from even being proceeded against.

This was an appropriate response: online content hosts should not be expected to screen every picture or video uploaded, or email sent: you should prosecute the person who wrote the death threat, not the mailman who delivered it.

Given the desirability of this approach, it is not clear why this legislation needs to be excluded from the protections in the HDCA, which will continue to apply, for example, to privacy claims, defamation, and prosecutions for things like death threats, and uploading intimate visual recordings.

While the removal of objectionable content is more serious than unwanted intimate visual recordings, the differences between them are not such that one would expect different approaches to be taken with blameless content hosts of either sort of illegal content.

Given that there is dual responsibility for enforcement of laws against objectionable material (by both DIA and the Police, and Customs), it is difficult to see why different immunities should apply depending on who was bringing the charge: the defence in new section 119G when Police lay the charge under section 124 of the Films, Videos, and Publications Classification Act or the immunity in section 23-25 of the HDCA when Customs charge fundamentally identical behaviour under section 390 of the Customs Act.

In addition, the statutory immunity is insufficiently broad. The HDCA immunity applies whenever an online content host receives notice of a complaint about content they host, which does not need to be in a particular form. The section 119G defence only applies when there is a take-down notice. If no take-down notice is issued, but instead a prosecution of the online content host is commenced, the defence would not apply. Whether a separate immunity/defence is needed or not, the defence that online content hosts can rely on should arise from the fact they are not expected to censor all the content they host, not because some action has or has not been taken by an enforcement agency. This concern also arises with respect to the section 22D defence in respect of interim classification assessments.

If there is a problem with overbreadth of the immunity provision in the HDCA, then it should be fixed for all content covered by that immunity, not just objectionable or restricted content.

And if there are concerns that the liability shield in sections 23-25 of the HDCA would prevent enforcement of new takedown orders, then an amendment to section 25(5) of the HDCA is the better way to meet that aim.

The Mandatory Internet Filter

The explanatory note of the bill records that “The Bill facilitates the establishment of a government-backed (either mandatory or voluntary) web filter if one is desired in the future. It provides the Government with explicit statutory authority to explore and implement such mechanisms through regulations, following consultation.”

This is backwards. Parliament is being asked to approve a government-backed web filter, despite one “not being desired” at this time. It should refuse.

Parliament should not abandon its role in deciding so important a public policy question to the Secretary for Internal Affairs. If Parliament wishes there to be a mandatory Internet filter, it should recommend to the Government that it bring forth a proposal for one, with much more detail than is contained here included in the primary legislation. It should then decide whether the safeguards are sufficient, and the costs worth it, and either approve it or reject it.

If the Government has yet to make up its mind over whether it wants a filter, or what type of filter it wants if it does, then it should go away and do the work before seeking any necessary legislative change. If there are concerns that the Government could not do the preparatory work on a possible filter without a law change, the law should could be limited to permitting that.

Ultimately, however, the final decision over whether to have a mandatory Internet filter should be made by Parliament. The balancing exercise is one it should weigh.

If you are determined to press ahead with a proposal to allow the Secretary at some future time to impose a mandatory Internet filter, at the very least, the legislative instrument creating it should be a confirmable instrument, included in schedule 2 of the Legislation Act 2012, and subject to confirmation by the House of Representatives.

The decision of whether a mandatory web filter should be imposed is one for Parliament. It is should abandon its role in favour of the Secretary for Internal Affairs. If the Government decides in the future that it wishes to have, it should bring its rationale.

Proposed Changes to the Legislative Language

I have a few relatively small suggestions about some of the current wording choices adopted in the legislation, which I invite the Committee to seek advice over.

New Section 22B

New Section 22B(5) provides that the provisions of the Act (including specified offence provisions) apply to publications subject to interim classifications. This section is unnecessary. Prosecution under the Act does not turn on when a publication is classified, but on the nature of the publication itself. It also appears to imply that a prosecution could be commenced for eg possession of a publication subject to an interim classification that is ultimately not determined to be objectionable. This should not be the case. The subsection should be removed.

New Section 119A

The definition of livestream includes the words “transmit or stream”, stream can be used to describe both the actions of the person publishing the images, but also anyone receiving them. Whichever meaning is intended, some additional clarity would be welcome.

New Section 119K

I see no reason why the secretary should not also be required to make publicly available a list of take-down notices issues that have not been complied with.

Conclusion

I thank the committee for the opportunity of presenting a submission. If the Committee considers that the Bill should pass, it should recommend that a number of amendments, in particular, removing the legislative authority it grants the Secretary of Internal Affairs to create a mandatory Internet filter, and bolstering the statutory defences applying to online content hosts.

                                                                                                     Graeme Edgeler

15

Election '20: The No Threshold Hypothetical

The final count of the 2020 general election has been released, with five parties making it into Parliament.

If New Zealand had no threshold, and parties just had to get enough votes to be entitled to be in the first 120 seats given out, there would be 10 parties represented. Of course, without a threshold, voting patterns would have been different, but below, I present the hypothetical New Zealand House of Representives, if the 2020 general election got the result it did, without an artifical threshold:

New Zealand Labour Party

60

The New Zealand National Party

31

The Green Party of Aotearoa/New Zealand

10

ACT New Zealand

9

New Zealand First Party

3

The Opportunities Party (TOP)

2

New Conservative

2

Māori Party

1

The Advance New Zealand Party

1

Aotearoa Legalise Cannabis Party

1

This would be a decidely different Parliament, and even Government, with Labour's bare majority of the vote not quite enough to govern alone.

If, instead of no threshold, you had to earn at least 1/120 of the vote to get your first seat (i.e. no rounding up for the first seat), Legalise Cannabis's seat would have gone to Labour.

8

Election '20: The Special Votes

The 2020 General Election has a preliminary result. For reasons I am unable to really explain, we will not have even a preliminary result for the end of life choice and cannabis legalisation referendums for some weeks (I dropped the ball on that one when the referendum legislation was before select committee, focusing on other concerns with the bill).

The preliminary result is mostly meaningless from a legal standpoint, but we want to know what happened before we go to bed on election night, so we get a rough and ready count of the ordinary votes: those cast by people whose name appears on the printed electoral roll who voted at a voting place designated for their electorate (including during advance voting).

The official count is still to happen. They’re more careful with that, and there's a lot of cross-checking - starting with a check to make sure that no-one voted more than once. The official count also includes the counting of special votes. Special votes are:

  • votes cast overseas;
  • votes cast by the telephone dictation servce, including this year, by people in managed isolation;
  • votes cast on polling day (or in advance) by people voting at a voting place not desginated to serve their electorate;
  • votes cast by people who enrolled after the printed electoral roll was closed (including during advance voting or on election day itself);
  • takeaway votes;
  • votes cast by people on the unpublished electoral roll; and
  • votes cast by people who are not on the electoral roll, who thought they were enrolled.

There are some differences this year - and managed isolation is only one. The biggest change is that people can be enrolled on election day. Last election around 20,000 special votes were cast on election day by people who were not enrolled to vote. In 2017, those votes were not counted - you could enrol during advance voting, but not on election day itself. That has changed: in 2020 you could do this on election day itself.

This election there are a lot of special votes. The most ever. The Electoral Commission estimate is that there are 480,000 special votes, which is around 17% of the total. The estimate is always wrong. The Commission know approximately how many special votes were cast in New Zealand. Postal votes don't have to have arrived yet, and add to the total. The Electoral Commission's election night estimate of special votes in 2017 was that there would be 384,072. In the end there were 446,287 (of which 417,980 were counted).

We do not know what electorates special votes are intended for - the Electoral Commission know where they were cast, but over the coming days, local returning officers will be sending the votes to the returning officers of other electorates, where they will be checked, and if valid, opened and added to the official count.

Historically, the voting patterns of those who cast special votes differ from those who cast ordinary votes. Special votes in recent elections have tended to favour left-aligned parties. It is probably fair to assume that this general direction of special votes this will continue at this election. But with so many more special votes, and new reasons why some were cast, whether it is fair to assume that the size of the effect will be similar is less clear.

That said, we don’t have anything better to go one, so using the same rudimentary method I use each election (assuming the variance in special votes is the same size as it was at the preceeding election), along with the Electoral Commission’s estimate of the number of special votes at this election, I estimate the following final result:

 

Preliminary

Estimate

 

Vote share

Seats

Vote share

Seats

Labour

49.10%

64

49.94%

65

National

26.81%

35

25.60%

34

ACT

7.98%

10

7.87%

10

Green Party

7.57%

10

7.99%

10

New Zealand First

2.66%

0

2.53%

0

New Conservative

1.51%

0

1.47%

0

TOP

1.42%

0

1.54%

0

The Māori Party

1.01

1

1.08

1

In 2017, National did 20.7% worse in the special votes than they did in the ordinary vote. While Labour did 19.5% better and the Greens did 44.2% better. The Māori Party did 57% better.

Even with the largest ever special vote, there isn't a lot of change in the estimate: National is down one, and Labour is up one. Labour is close to a second, however. If there were 500,000 special votes, and not 480,000, the estimate would predict a Labour gain of two and a National loss of two. And if there were 525,000 special votes, the estimate would change so that National would be down two, but they'd go one each to Labour and the Greens. An extra seat for the Māori Party is exceedingly unlikely.

Of course, as the number of specials votes has increased, this will mean the make-up of the special vote cohort has changed, and as the reasons people are casting special votes have changed, there is an extra note of caution, and there is election day enrolment as well.

We don't have terribly long to wait for the official count, but that is now mostly of interest to the MPs who are on the cusp, as the shape of the new Parliament is known: Labour has a mjaority on its own. More interesting for the rest of us will be the results of the two referendums.

Update:

Some more explanation of how close parties are, and whether some electorates might change

I've answered some additional questions on twitter, which provide some further context for my conclusion above. I am happy with my conclusion above. It worked last time, and I am not remotely enough of a Nate Silver to advance a serious model, this is rough and ready, just slightly better than people's reckons (which to be fair, reach approximately the same conclusion). I should also note that two election ago, I underestimated the special vote swing against National.

Assumption: Party Special Vote Swing - the Green Party

These are some other ways of looking at the numbers: in 2017, the Green Party did 44% better on special votes than ordinary votes. If the number of special votes is as estimated by the Electoral Commission, this would not be enough for them to take a seat off National. But in 2014, the Greens did 53% better on the Special votes. If that's what happened this year, it would be enough.

Assumption: Number of Special Votes

The Electoral Commission has estimated that there are 480,000 special votes. I have used this number in my calculation. On election night 2017, the Commission estimated there were 384,072 specialvotes, but in the end there were 446,287, of which 417,980 had valid party votes. I do not know how many more there will be this election, but if there were 500,000, and the swing was the same as last time, National would lose two seats. If there were 525,000, and the swing was the same, one of those seats would be to the Greens.

Assumption: Party Special Votes Swing - The Māori Party

The Māori Party tends to do best out of the Parliamentary parties in the special votes. In 2017, the Māori did ~57% better on special votes than ordinary votes. They would need to substantially better than that to get an extra seat this time. If there are 480,000 special votes, they'd need to do 99.5% better on special votes. This isn't impossible (legalise cannabis came close by doing ~97% better on special votes over ordinary votes in 2017). And if there were 520,000 special votes, ~93% better would be enough.

Estimate of Effect of Special Votes on Whangārei

Whangārei was the closest result on election night, with National MP Shane Reti ahead of Labour's Emily Henderson by 164 votes. 

Shane Reti won 47.3% of the ordinary votes in Whangārei in 2017. His Labour opponent, in third on election night had 18.6%. Reti got 38.2% of the special vote, and his Labour opponent 24.2%, enough to move ahead of Shane Jones into second place. I am not making as estimate, but with over 4300 special votes cast in Whangārei at the last election, there is cause for Reti to be worried, and the seat could definitely swith to Labour's Emily Henderson.

Estimate of Special Votes on Waiariki candidate votes

Waiariki was won on the preliminary count by the Māori Party's Rawiri Waititi, with a lead of 426 votes over Labour's Tamati Coffee. It is the only seat that the the Māori Party has won this election. In 2017 Coffee won 53.6% of ordinary votes, and did slightly better on special votes with 54.3%. The Māori Party candidate, Te Ururoa Flavell was the inverse (there were only two candidates in 2017), doing slightly worse on special votes. 426 is fair margin however, and a switch would be a suprise.

Estimate of Special Votes on Auckland Central candidate votes

Auckland Central was won on the preliminary count by the Green Party's Chlöe  Swarbrick, with a lead of 492 votes. In 2017, Labour's Helen White won 39.8% of the ordinary votes, and 40% of the special votes. The Green Party's candidate at that election, Denise Roche, won 8.8% of the ordinary vote, and 12.4% of the Special vote. If anything, the gap will increase here, and Swarbrick seems safe.

0

Low-Hanging Fruit

In a couple of months, the 53rd Parliament will meet in Wellington, and approximately 120 MPs will be sworn in, many of them for the first time.

They will all have political goals, some aligning with their party platforms, some not, some complex, and some simple, but they will gain one thing that every non-MP, not matter how political or motivated, does not have – the ability to legislate.

The process of turning a political idea into draft legislation can be complex. For some policy proposals, it’s something that an individual MP cannot seriously do, without the assistance of a government department, or a pre-existing Law Commission Report the government is being slow in adopting. Others will be doable, but will take years of work. Ministers have a head start, but even the newest MP has the privilege has at least the chance to put a bill in the members’ ballot. And that privilege is something all eligible MPs should do, at every opportunity. If they are not trying to change New Zealand’s laws for the better, why did they choose to become legislators, instead of say, activists, or farmers? Even if they are working on a bigger project – one that will take months or years, there simply has to be some small way that they, as an MP, could make New Zealand law less capricious. At the very least, it will mean I am unlikely to note on twitter, in response to a claim there is some problem with the law, that they don't have a bill in the members' ballot!

One MP who recognises the enormous privilege that being an MP brings is National MP Chris Bishop, who has been a prodigious drafter of simple bills that have been entered into the ballot in his name, and in the names of various of his colleagues who have adopted them (MPs can have at most one bill in their own name in the ballot). He’s had substantial success in getting bills passed, including one I suggested, and has several others that seem very worthy in his name or others'. A recent-ish addition is a bill to amend the lawyers and conveyancers act to permit employed lawyers (eg those who work in companies, not law firms) to provide pro bono legal services for people other than their employer: not a massive change, but an obviously good one.

11 and a bit years ago, blogger Idiot/Savant from No Right Turn started the progressive bills project, a wiki designed to allow, I guess progressives, to draft legislation that could be picked up by MPs (at the time, the biscuit tin of democracy seemed to be significantly less well-used than it has become in the years since). I/S was covering member’s bills, and the members’ ballot, when others often weren’t, and wanted to provide an opportunity for people to make it easy for MPs to advance law changes they want, to suggest simple law changes – of the type you can advance as a back bench MP – so that MPs looking for ideas could just take them up. The project has seen a number of bills taken up by MPs, some unlucky at the ballot, and some even passed into law (some of that may be coincidence, but I understand at least some potential legislation has come directly from the project).

Over the last few years, the site has mostly been me, occasionally having an idea, and getting motivated enough to spend an hour or two drafting short bills. A lot of these ideas have come from Twitter conversations I’ve been involved in – sometimes people complaining about egregious happenings overseas, where I’ve had the sad duty of letting them know “yeah, that’s the law in New Zealand too”.

I get that MPs – new MPs especially – will have lots of calls on their time and their focus, but the first members’ ballot could be on them quickly, and while they are working on whatever grand plan they bring with them, there are simple changes they could advance in the interim. There will be some draft bills lying around Parliament: those advanced by retiring MPs who had bills that never got drawn, but more will be needed, and in the spirit of Milton Friedman, I offer the following ideas, mostly from me, some from I/S.

The Crimes (Wage Theft) Amendment Bill.

This would amend the offence of theft by person in a special relationship to make clear that it can be used to prosecute the intentional withholding of monetary entitlements owed to an employee, in the same way that an employee can be prosecuted for stealing from an employer.

It is, like a lot of the legislation I have drafted, the low hanging fruit. There is a lot that could be done in the wage theft area, including beefing up enforcement within the Labour Inspectorate, but that is harder, and probably involved spending money, which makes a member’s bill a more difficult prospect. But knowing that the perfect should not be the enemy of the good, something can be done that is simple – adding a few words to a pre-existing criminal offence to confirm it applies to wage theft.

The Maori Community Development (Unruly Behaviour Repeal) Bill

I’ve written about this before. It would repeal a set of criminal offences that can only be committed by people who are Māori. It’s another simple bill – the Maori Community Development Act could probably use a general update, but criminal offences, one of the elements of which is that the person is Māori simply should not exist.

The Criminal Procedure (Interim Suppression Pending Appeal) Amendment Bill

I’ve written about this one too. In December 2018, there was a high-profile case where a person charged with offending was refused name suppression. They informed the judge in the District Court that they intended to appeal, so that judge was required to impose an interim suppression during the appeal period. You have 20 working days to appeal such a decision, and with Christmas getting in the way, this prevented journalists publishing the name until well into the new year, even though a judge had decided they should be able to. It is somewhat ridiculous, but had the judge in the District Court granted suppression, media would have been better off: they could simply have appealed the following day, and probably had the appeal heard before the holidays. I propose reducing the normal 20 day appeal period to 5 working days.

The Crimes (Exploitative Sexual Conduct with Person in Detention) Amendment Bill

This bill would create a criminal offence of exploitative sexual connection with people in detention. A lot of people assume that there is necessarily a crime involved when, say, a police officer has sex with a person whom they have placed under arrest. While there’s certainly a serious employment issue, any prosecution would have to be under a standard criminal law, such as rape, and arguments about consent would arise (with no presumption that consent is impossible, and the prosecution required to prove the absence of consent, beyond a reasonable doubt, just as in other rape trials). Sex between a detainer, and someone detained seems inherently exploitative, so having a specific law, where consent doesn’t enter into it, seems justifiable.

There are lots of other good ideas (and probably some bad ones, or at least out of date ones), including many that don’t fit within the basic idea of small changes with a good prospect of passing, but for some brave MP, the project also has a bill to drop the voting age to 14, and this bill to abolish the offence of bigamy.

There are others I've been meaning to work on (I started drafting one to port over the secrecy provisions that apply to the IRD to MSD, but it was more complex than anticipated), and have a mind to try one around criminal records arising out of convictions at Courts Martial, but anticipate some complexity there too (clearly not all convictions in the military justice system should port over the MOJ system, given that you can get a conviction in circumstances where employment law, not criminal law would apply to a civilian), but some seem like they should.

Anyway, if you are an MP, hope to be one soon, or know a candidate or MP who doesn't yet have a policy proposal ready to go in the ballot, I am more than happy for any of the idea above to be adopted by anyone. As a backbench MP, it will be difficult to change the world, but you certainly have the power to change one small part of it, and it's a privilege you should take seriously.