Legal Beagle by Graeme Edgeler

5

Last call on the Electoral (Integrity) Bill: A plea for Labour, New Zealand First and Green MPs to consider some minor amendments

The Electoral (Integrity) Amendment Bill is going through it's final stages, and will likely pass this week.

It is going to pass, and amendments - such as a sunset clause - or the exclusion of electorate MPs from its scope - or a delayed start - are not going to be agreed to by a parliamentary majority either.

But it is not too late for Parliament to make some minor changes to the bill to make a slightly better, and to slightly better protect principled opposition within Parliamentary parties.

The point of this blog post is pretty simple: it is to ask Labour MPs, New Zealand First MPs and Green MPs to consider supporting three particular amendments proposed by National.

National has proposed many amendments that a supporter of the broad thrust of this bill could not support. That's what oppositions do. You get on record that the Government opposed something so can present it to the electorate later to show why they're bad. The point of such amendments is not really to get them adopted, but to force the government to vote against them.

But the three amendments I seek support for are not "wrecking amendments". They are very limited amendments, designed to ensure that the process for removing an MP from Parliament is fair, and identifiable.

First up is Chris Penk's proposed amendment in supplementary order paper 69. It would require registered parties to have rules around the process they would use to seek to expel an MP from Parliament.

In a similar line is Tim Macindoe's proposed amendment in supplementary order paper 71. This would require that those rules would have to be provided to the Electoral Commission and available for public inspection.

Parties are already required to have public rules around two specific things: party membership, and candidate selection. The processes around these are important matters that should be set out and publicly-available. I think this is also true of rules around expulsion of MPs. The two amendments do not require anything in particular in the rules - one party could leave the issue completely up to Caucus, and other parties might involve the party council, etc. - but the rules of each party should be a matter of public record, consistent with other aspects of the Electoral system.

A version of Macindoe's amendment in supplementary order paper 70, which proposes that the rules that applied at the election should apply for the whole term (so that parties can't change the rules after an election) might also be appropriate, but I recognise that in its present form, the Government won't vote for it, as this would preclude any expulsions this term.

I also ask Government MPs to consider supporting Simeon Brown's amendment in supplementary order paper 64. This proposes that the caucus vote to declare than an MP has distorted Parliament should occur by secret ballot.

Justice Minister Andrew Little has accused bill opponents of failing to engage with various safeguards he says are in the bill that would prevent it being abused - in particular the requirement that two-thirds of the caucus must support the leader. 

I think this is an unfair criticism - I engaged with them in both my written submission and oral submission, and the Academic experts Little criticised as having failed to do so engaged with them in their presentation to the Justice Committee - but now is his chance to meet his own challenge: making the caucus vote a secret ballot would add substantial weight to his argument that the were safeguards in the bill that would prevent a leader being able to silence opposition within their caucus.

There is one other matter, not touched that I can see, in an amendment proposed by National, which I would like to see someone pick up for serious consideration. In light of Andrew Little's argument about the two-thirds vote in caucus being a "major safeguard", I note my written submission included the following:

At present, the bill requires a two-thirds majority vote of a party caucus to expel and MP from Parliament. If an MP is really threatening the proportionality of Parliament, one would expect much greater unanimity from a party caucus as to that fact, than a mere two-thirds.

Under the current proposal, National could eject an MP even if 18 of their MPs considered the MP had not threatened the proportionality of the House, and Labour, could eject an MP with 15 MPs opposed. If the vote had anywhere near that many opposed, I think it must be seriously disputed whether proportionality would have been threatened.

When you are talking about ejecting an MP from Parliament, a much higher vote should be required, perhaps even near unanimity of the party caucus (ie unanimous, but the for the MP in question). An MP who has the support of even two or three of their party colleagues represents a significant party position likely to have been supported by at least some of that party’s voters, whose voice should not be silenced by other party factions. An MP with that level of support from the party Caucus should not be forcibly expelled from Parliament.

I think this is pretty clear enagement with the safeguards Andrew Little is discussing, and its something that the Justice Committee itself appears to have engaged with, having sought advice from Parliamentary Counsel about changing the threshold to "near unanimity". As it happens, I agree with the advice: if you are change the threshold to "near unanimity", it should be clearly defined what that means.

I do not think it is beyond the skill of government MPs, or opposition MPs to draft such an amendment before the debate on the Electoral (Integrity) Amendment Bill continues. (UPDATE: I was working off the online list of proposed amendments, which appears to be a couple of days behind, as National MP Chris Bishop advises he has proposed such an amendment).

I still oppose the bill, but there is an opportunity in the next few days to make it inarguably better than it currently is.

If you want to read a thought-provoking defence of the bill, Chris Trotter published one here.

And if you are one of the 63 MPs from Labour, New Zealand First of the Green Party with the power to decide this final form of this law, please consider your position on supplementary order papers 64, 69, and 71, not least because you have the opportunity to blunt some of the criticism you are currently facing for supporting the bill.

4

Careful what you wish for: How entrenching the Māori seats may lead to the opposite of what its supporters seek

On 3 May Labour MP Rino Tirikatene had his Electoral (Entrenchment of Māori Seats) Amendment Bill drawn from the ballot. It hasn’t been before the House for its first reading debate yet, but it has already caused some controversy.

The bill aims to add some of the bits of the Electoral Act dealing with the Māori seats to the list of provisions protected by section 268 of the Act, which “entrenches” specific provisions of the electoral law, making them harder to amend.

The drawing of the bill from the members ballot follows concern about the different treatment of Māori representation at Local Government level. Moves by various councils to create Māori wards have resulted in ratepayer petitions requiring binding referendums on the issue, all of which have resulted in the council’s decision being overturned.

Supporters of Māori representation have argued that minority rights should not be subject the majority veto. Instead, they say the question of whether there should be Māori wards should be put in the same position as the organisation of general wards: which is a matter for a simple majority decision by councils, not subject to possible referendums, which I’ll be honest, doesn’t sound very different from a majority veto to me.

The objection to the holding of referendums may have greater salience because, when public votes on minority rights are held, they can often be very negative experiences, even if successful in upholding the rights. But that seems contrary to what entrenchment actually is.

Simply put, entrenchment is a process that makes it harder to change a law.

Very few provisions are entrenched in New Zealand, but we have recognised that there are some matters that are so important, the question of change should be a matter for voters in a referendum where the suggested change is contentious. We have collectively formed the view that it would be wrong to allow a simple majority in Parliament to stack the Representation Commission (which draws election boundaries), or extend the term of Parliament by abolishing elections, or to raise the voting age. These matters go directly to how MPs are elected, so questions around them are left to the voters.

There is effectively a political convention that extends this beyond the specific issues that are formally entrenched. The MMP voting system is not formally entrenched, but the understanding is that changing to a different one would require a referendum, even if a referendum may not technically be required.

Now, Parliament can amend entrenched provisions, but if it wishes to do so, it needs something close to consensus – a 75% vote is needed to make the change. Which means that if the change proposed isn’t something that a political consensus has formed around, if it’s going to be changed, then its going to be at a general referendum.

I’m open to the entrenchment of the Māori seats, but if your position is like that of Alex Braae, writing for The Spinoff:

“Surely, if the Māori seats are to be abolished, it should be a decision for Māori alone to make. Otherwise, it would be a case of the majority dictating to a minority group what their rights are.”

Then adding the bits of the Electoral Act dealing with Māori seats to the list of entrenched sections probably isn’t what you want to do.

First, for a law protecting the Māori seats from simple majorities in Parliament by adding them to the sections protected by section 268 of the Electoral Act to pass, you need one of two things:

Given that National appears not to support entrenching the seats, the only realistic option for entrenching them is by a referendum. Which seems to be contrary to much of the purpose of removing a public veto over minority rights.

And even if successful in getting 75% support in the House, entrenching the Māori seats simply changes the majority needed to get rid of the seats from a simple majority in Parliament to simple majorities in both Parliament, and among the general public at a referendum.

Now, there are probably some things that could be done legislatively to better protect the Māori seats from repeal – setting up a periodic process by which Māori alone could make the decision over whether to retain the Māori seats would be one option – and it would probably remove some of the political impetus behind moves to change, but I suspect that would not have much support, even among supporters of the Māori seats.

I think there a lot of bits of the Electoral Act that are important enough to protect from amendment by a simple majority in Parliament (I wouldn’t want a simple majority to be able to increase the threshold to 15%, or reduce the number of list MPs to 10, for example), and I can see that the Māori seats could fit on that list. But I wonder whether the people supporting the push to entrench the Māori seats really want to move it to a system where the ultimate vote on them would probably be a referendum.

5

Littering!

I published my Select Committee submission on the Contempt of Court Bill yesterday. Part of the reason it was both late and short was that I decided that my submission on the Litter (Increased Infringement Fee) Amendment Bill was probably more important, not because the bill is, but because there has to be a reasonable chance that I'm the only person who is going to submit on a bill whose sole purpose is to change a "$400" to a "$1000" in one section of the Litter Act.

It's my first submission to the Environment Committee, so I hope they like it.

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The Environment Committee

Litter (Increased Infringement Fee) Amendment Bill

Submission of Graeme Edgeler 

Introduction

1. My name is Graeme Edgeler. I am a Wellington barrister who mostly practices in public and criminal law.

2. I oppose the Litter (Increased Infringement Fee) Amendment Bill and thank the Committee for the opportunity to present a submission on it explaining why.

3. In short, the proposed maximum allowable $1000 infringement fee for littering is out of all proportion with the offence of littering, and out of line with infringement fees for other infringement offences at a similar level. Local Authorities do not need the power to adopt bylaws providing for a $1000 infringement fee for littering. They already have sufficient powers under the current legislation.

Criminal Offence or Infringement Offence?

4. Littering is both a criminal offence, punishable by a fine, and an infringement offence, punishable by the imposition of an infringement fee. This dual approach is relatively common with a range of regulatory offences. More serious breaches of these offences can be prosecuted in the Courts as criminal offences (potentially resulting in a conviction and a criminal record) while less serious breaches can be dealt with using infringement fees (which are like parking tickets, or speeding tickets, and do not result in criminal records).

5. As this bill proposes amending the level of the infringement fee, it should be recognised that it is dealing with low level littering, and not with more serious dumping. More serious littering would be prosecuted rather than dealt with by the infringement notice procedure.

6.  If there are concerns with dumping or other serious examples of littering, then amendments to the maximum *fine* for littering (currently $20,000, or $30,000 for dangerous refuse) and not changes to the *infringement fee* would be more appropriate. Of course, particularly serious dumping abuses are likely dealt with under other legislation: either as criminal nuisances under the Crimes Act, or under the Resource Management Act, and not the Litter Act at all. If the Committee has concerns, that may be a better place for it to look.

The Practical Difference Between Fines and Infringement Fees

7. It is important that the Committee appreciates the practical differences between fines and infringement fees.

8. A fine is a sentence that can be imposed by a Court following a prosecution and conviction for a criminal offence. When imposing a punishment, a Judge (or in the case of a fine-only offence like littering, probably a Community Magistrate) is able to look at the particular offence, and the circumstances of the offender, and impose a penalty in line with this.

9. This is not how infringement fees work. Unlike a fine, an infringement fee is imposed as a set amount. If an authority (whether it’s a local authority, such as for a parking infringement, or police, for something like a speeding infringement) issues someone with a ticket for an infringement offence, the infringement fee that comes with it is at a particular level set by the rule that creates the offence.

10. These can sometimes be set to a scale, like the infringement fees for speeding, with different amounts in 5km/h increments, or they can be the same for all instances of a particular infringement offence. When an authority chooses to impose an infringement fee in a particular case, there is no discretion as to the amount. Whatever has been set as the infringement fee is it. Because of this, infringement fees can be inequitable, and recognition of this is part of the reason why speeding fines were lowered some years back.

The Proposed $1000 Infringement Fee for Low-Level Littering is Far Too High

11. As noted above, this bill amends the maximum infringement fee that a council could set for littering.

12.Although littering is bad, a possible $1000 infringement fee is out of all proportion with the offence, particularly when we recall that we are concerned with the type of low-level littering properly subject to infringement fees. It is useful to compare it to other infringement offences: The highest infringement fee that is imposed for speeding is for speeding between 46km/h and 50km/h over the speed limit. [1] This fee is set at $630.

13. In New Zealand, drink driving is a criminal offence, but in 2014 Parliament created a new lower drink driving limit which imposed an infringement fee rather than criminal penalties for low level drink driving; those over the older higher limit still face conviction and fines in Court, but those who have only breached the new lower limit commit an infringement offence, and face an infringement fee of $200.

14. Although speeding tickets and the infringement offence of low-level drinking driving also come with demerit points, the fact that the level of the infringement fee is substantially lower than for offending that is far more serious than the type of low-level littering appropriately dealt with here suggests the proposed increase is unnecessary.

15. By way of further example, a first-time drink driver actually convicted of the full drink-driving offence (above the higher, long-standing limit), would usually receive a fine of less than $1000.

What Should the Infringement Fee be for Low-Level Littering?

16. People shouldn’t litter, but imposing infringement fees at a level many New Zealander would face great difficulty affording, well in excess of other low-level matters that local councils deal with (like parking infringements, which can by themselves lead to people being unable to pay and having to attend a fines court) is disproportionate.

17. There is, of course, a question of what the infringement fee should be. I am aware that during the first reading debate, a number of MPs discussed whether the maximum infringement fee needed to be brought in line with inflation. The Committee should be aware that it already has been increased well in excess of inflation from its original 1979 levels.

18. When the Litter Act 1979 was introduced, the maximum allowable infringement fee was $20 (~$104.66 in 2018 dollars). In 1990, this was increased to $100 (~$169.54).[2] And in 2006, this was increased to $400 (~$493.33).[3] The suggestion that it would need to be ~$1500 to keep up with inflation is wrong. The fee is already well in excess of the levels it was set at in 1979, and in 1990, and given the low levels of inflation over recent years, it’s still not all that much less in real terms than it was when it was last adjusted in 2006.

19. It may be thought that $400 is low for serious dumping, but of course, serious dumping shouldn’t be subject to the infringement fee process in any event. It should be prosecuted. If there are concerns that commercial-scale unlawful dumping is unable to be prosecuted at appropriate levels under the Litter Act, then the $20,000 maximum fine for criminal dumping under section 15 should be adjusted, not the infringement fee.

Conclusion

20. I oppose the bill, and encourage the Committee to reject it:

20.1.  The maximum infringement fee is already in-line with other infringement fees for things like speeding and drink-driving, and substantially higher than those imposed for things like parking infringements.

20.2. An increase in the infringement fee to $1000, would see low-level littering punished with an infringement fee much higher than those imposed for driving 49km/h over the speed limit, or drink-driving in respect of the new lower limit is clearly disproportionate.

20.3. If the Committee is concerned about commercial-scale littering, it should consider amendments to the fine in section 15, or to the Resource Management Act, instead of the infringement fee in section 14, as this bill proposes.

21. I look forward to meeting the Committee in person to address my submission.

Graeme Edgeler



[1] Speeding at a higher level is effectively always charged as careless, reckless or dangerous driving.

[2] Litter Amendment Act 1990, s 6.

[3] Litter Amendment Act 2006, s 6.

7

The Contempt of Court Bill

I have just filed a Select Committee submission on the Contempt of Court Bill. My submission was made a lot easier by the submission prepared by Leonid Sirota and Edward Willis, which raised almost all of the issues with the most problematic aspect of the bill - its failure to take the opportunity to completely abolish the form of contempt of court known as "scandalising the Court". Their focus on this meant I could focus on matters slightly more frivolous, like the fact the bill I have just submitted on is in fact not called the Contempt of Court Bill.

You can read that submission, signed onto by a number of other public law academics, on Dr Sirota's blog, but if you are interested in reading mine, it follows.

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The Justice Committee

Administration of Justice (Reform of Contempt of Court) Bill

Submission of Graeme Edgeler

Introduction

1. My name is Graeme Edgeler. I am a Wellington barrister who mostly practices in public and criminal law. I have some experience with the Law around Contempt of Court, up to and including the New Zealand Supreme Court.

2. I support the move to bring the law of contempt of court into legislation, although I proposes some changes to the bill. Public accessibility of the law – particularly laws with criminal consequences – is important, and the current approach to contempt law makes it difficult not just for members of the public, but even for lawyers, to understand the law.

3. The importance of this public accessibility of the law gives rise to my first proposed change, around the bill’s treatment of other non-statutory contempts of court.

Clause 29 – other contempts

4. Clause 29 repeals the main common law contempts, these having be statutorily enacted in the rest of the bill. However, clause 29(2) states that:

Nothing in this Act limits or affects any authority or power of a court, including the authority of the High Court under its inherent jurisdiction, to punish any person for contempt of court in any circumstances to which this Act does not apply.

[Emphasis added]

5. This is a cop out. It abandons the principal benefit of a Contempt of Court Act – bringing contempt law into a place where people can actually find it – and maintains a set of laws with criminal sanctions that no-one may be able to find.

6.  Instead, I submit that all remaining non-statutory contempts, including those founded in the inherent jurisdiction, should be abolished.

7.  If there other non-statutory contempts of court not covered by this bill that ought to be maintained, it should not be beyond the abilities of the Law Commission and the Ministry of Justice to state what these remaining contempts of court are, and to recommend the language necessary to add them to this bill.

8. If they are unable to do this, I do not see how members of the public can be expected to have to comply with their obligations not to commit such contempts of court. If those tasked with enforcing the laws cannot say what is actually prohibited, it would be wrong to punish anyone else for doing such things. The law – especially the criminal law – must be knowable.

The bill should be renamed the Contempt of Court Bill

9. I would not usually submit on the name of a bill, but given the use to which the Administration of Justice (Reform of Contempt of Court) Bill is likely to be put, it has far too cumbersome a name.

10. The operative sections of the act are principally the criminal offences in creates. It would make things a lot easier for everyone dealing with the law, as well as aid public understanding and accessibility of the law, if the bill was renamed the Contempt of Court Bill. I appreciate that in New Zealand, bills with names that have bracketed bits are common. This is often appropriate for amendment bills, but it should be avoided for substantive stand-alone criminal laws like this.

11. People face robbery charges under the Crimes Act, not under the Administration of Law (Reform of the Law of Crime) Act. And people who are charged with contempt of court as a criminal offence, should be charged under a law called the Contempt of Court Act. This would be consistent with the approach in other jurisdictions, including the United Kingdom.

Clause 24 – the offence of publishing untrue allegations or accusations against a Judge or court

12. The bill proposes the re-enact the common law contempt of scandalising the Court, as an offence of publishing an untrue allegation or accusation against Judge or court.

13. I submit that it should not. People should not publish untrue allegations about anyone, but the criminal law is a wholly inappropriate means to enforce this. The particular form of this offence is highly problematic, and the mere attempt to do this is likely to be counter-productive.

14. We are about to abolish blasphemous libel. We abolished criminal libel a number of years ago. We should not recreate criminal libel in the Contempt of Court Act. Scandalising the Court should be abolished completely.

15. If judges are defamed, they can adopt the same recourse as everyone else. They are not in need of special protection allowing them to imprison people who defame their colleagues.

16. I am aware of the submission of a group of Legal Academics on this aspect of the bill, to be presented before the Committee by Dr Leonid Sirota of AUT and Dr Edward Willis of the University of Auckland. I endorse their comments, and recommendations.

17. I add two things: first, even if a more measured version of this offence were adopted, I consider any prosecution under it is likely to have the opposite of its intended affect.

18. The offence provision is aimed at protecting public confidence in the Courts. I can think of little more likely to undermine public confidence in the Courts than the appearance that the Courts are punishing those critical of them.

19 Second, I find the liability section in clause 24(2) troubling. The maximum sentence in every other contempt in the bill is express the same way that every maximum sentence is now expressed, for example, in clause 14(3):

A person who commits an offence against subsection (2) is liable on conviction,—

(a)     in the case of an individual, to imprisonment for a term not exceeding 6 months or a fine not exceeding $25,000; or …

20. Clause 24(2) is instead written as:

A person who commits an offence against subsection (1) is liable on conviction,—

(a)     in the case of an individual, to a term of imprisonment of less than 2 years or a fine not exceeding $50,000:

21. This form of words is contrary to the practice of the Parliamentary Counsel Office, and also contrary to the Legislation Design and Advisory Committee's Legislation Guidelines. This is quite literally the only time this form of words is used across the entire body of the New Zealand law. It appears as though the Law Commission wants to create a maximum sentence of 2 years, but realising that this would allow a defendant to request a jury trial, has decided to create the only offence in all of New Zealand law with a maximum sentence of 1 year, 364 days, just to avoid this. However it wants to avoid directly saying this is the maximum sentence in the legislation, because then it might then be too obvious.

22. I submit that if this contempt is retained, in whatever form, the maximum sentence should be written in the normal way “imprisonment for a term not exceeding 2 years”. Not only would this accord with standard drafting practice, but the possibility of a jury trial is about the only thing I can think of that could help avoid the perception that any prosecution under this section would involve Judges seeking to silence criticism of the Courts.

Conclusion

23. I commend the Bill to the Committee, making the following recommendations:

23.1. The Bill should be renamed the Contempt of Court Bill

23.2. The remaining non-statutory contempts of court not covered by this bill, should be identified, and either added to this bill, or abolished

23.3 The offence of publishing untrue allegations or accusations against a Judge or court should be removed from the bill, and if not removed, should be substantially amended

24. I look forward to meeting the Committee in person to address my submission.

Graeme Edgeler

4

Voting disqualifications (updated)

Arthur Taylor has had some “luck” in the Supreme Court recently, getting two cases there in a month, both looking at the 2010 amendment to the Electoral Act that expanded the prohibition on prisoner voting. Many lawyers wait years to get leave to argue a case in the Supreme Court, so two heard in a month is somewhat extraordinary for a self-represented litigant.

His first was heard earlier in the month. It was actually a Crown appeal, but it was from a case Taylor won in the High Court, and Court of Appeal (there with some help from the Human Rights Commission). In today’s case, he isn’t self-represented any more, having arranged a lawyer since getting leave to argue the case. The first appeal was over whether courts have the power to declare the legislation is inconsistent with the New Zealand Bill of Rights Act. The case being argued today has the potential to render that moot: it's over whether the 2010 law change actually changed the law at all.

When the argument was first raised in the High Court, before the 2011 election, I didn’t think it had much chance of success. That was partly because of the urgency of the case, and the form in which it was brought (at that stage it was as an application for an interim injunction), but I also didn’t think the substantive argument was likely to succeed either.

I think I still think he’s going probably going to lose, but I’m not nearly as convinced as I was.

The case is relatively simple. Section 268 of the Electoral Act sets out specific parts of the Electoral Act which are particularly important, and which can only be amended by a 75% in Parliament, or by a referendum (the vote limiting prisoner voting rights was much closer than that). One of the “reserved” sections is described:

(e) section 74, and the definition of the term adult in section 3(1), and section 60(f), so far as those provisions prescribe 18 years as the minimum age for persons qualified to be registered as electors or to vote:

Now, the prohibition on prisoner voting isn’t in any of those sections. Section 74 provides the qualifications required for voting. And section 80 provides the disqualifications from voting (like not having been in the country in the last three years, etc.).

Seems simple, while the necessary qualifications for voting in section 74 need a supermajority to change, it seems section 80 can be amended without a 75% majority. But there has to be a line, doesn’t there? If section 80 was amended so that that you were disqualified from registering to vote if you were under 21, that would directly contradict other reserved sections, like the definition of adult as being 18+. But surely there are some other prohibitions that would go too far?

The law prohibits a simple majority in Parliament amending section 74 to make one of the necessary qualifications for registering to vote that the person is male, or that the person owns at least £50. Would we seriously suggest that section 80 could be amended by a simple parliamentary majority to make being female, or owning no property (or less than £50 of property) something that disqualifies you from enrolling to vote? Wouldn't such a disqualification so undermine the qualifications for voting to render them not really the qualifications at all?

Now, banning women from voting would be an unreasonable limit on the right to vote guaranteed in the New Zealand Bill of Rights Act, but so, it is accepted, is banning all sentenced prisoners from voting. So if the former is on one side of the line, what distinguishes the latter that it might be on the other?

There has to be a line somewhere. Which of the following “disqualifications” be added to the electoral act by a bare parliamentary majority, without offending the principle that the qualifications for voting are protected by there being a requirement for a Parliamentary supermajority:

  • sentenced prisoners serving at least 3 years in prison?
  • sentenced prisoners in prison on election day?
  • people released from prison, but on parole or subject to release conditions?
  • all former sentenced prisoners?
  • people with unpaid fines?
  • people who have ever been convicted, even if not sentenced to prison?
  • people with unpaid child support, or unpaid taxes?
  • people who don’t pay enough in taxes?
  • people on welfare?

Now, Parliament almost certainly isn’t going to amend the law to preclude people in most of these groups from voting, but the legal question is whether it could with a simple majority if it wanted to. Which of these amendments would do enough violence to the protected guarantee that adults are qualified to vote in New Zealand that a Court would say a law change passed without a 75% majority was invalid? Because, while I still don’t expect Arthur Taylor to win, I really can’t tell you the legal principle that makes the difference for some and not others.

Update: I went to the Supreme Court this morning to watch the first half-hour or so of the argument, and found it so fascinating, that I stayed for the whole argument. The Crown is arguing that, in fact, there is no line, and that Parliament could, if it wanted to, institute a ban on women voting, or impose a property qualification, by a simple majority.

It accepts, however, that if the Court does rule that the entrenching provision covers prisoner voting, then the Court should declare the the 2010 legislation invalidly enacted. That would mean that the law would rever to the 1993-era ban applying only to those prisoners serving sentences of imprisonment of at least three years. Although it accepted this in the High Court and Court of Appeal, this is a relatively new concession. Certainly when the first entrenching section was added in 1956, it was considered to be of moral persausion only. 

Of note from the argument of Francis Cooke, who represented Arthur Taylor, is that if we wins the case, he accepts that the rule requiring 75% to amend the prison voting ban would also apply in reverse, so that if the new Government wanted to get rid of it completely, it would need 75% support for this in Parliament (or either a referendum, or an amendment to the entrenching provision).