Legal Beagle by Graeme Edgeler

The Police have completed their investigation into the GCSB spying on Kim Dotcom, and have decided not to charge anyone. I am fine with that. For the most part I don't think we should impose serious criminal liability on people who aren't intending to break the law. I think this was an appropriate case for the police to exercise their discretion not to lay charges, and have said so in the past.

Yes, there were people in the GCSB who illegally spied on Kim Dotcom, but absent knowledge or recklessness about their lack of authority, I think civil penalties - Dotcom being able to sue (whether for breach of privacy, or unlawful search or breach of confidence or something else) and get a remedy that way - should be sufficient. We don't need to use the criminal law in respect of individual employees of the GCSB to mark our disappointment, or anger, at what has gone on here.

But this isn't a case where police have found an offence committed, and then decided not to charge those responsible. Instead this is a case where the police have decided no offence has been committed at all.

And their decision is woeful.

The Police have said that they do not believe an offence has been committed because:

it cannot be established that any GCSB staff had the necessary criminal intent to illegally intercept private communications in this case.

The problem with this observation is that an "intention to illegally intercept private communication" is not an element of the offence  police were investigating. The intention requirement in the offence relates to the act of intercepting private communications by means of an interception device, not to the assessment of whether the interception was illegal.

Not all offences are like this. In addition to intercepting phonecalls, the GCSB can also access your computer. The offences around that are different. To commit the offence of accessing a computer system without authorisation, you must not only intentionally access a computer system without authorisation, you must also either know you didn't have authorisation, or be reckless about whether you have authorisation.

I think that law is a much better one. We should be reluctant to impose criminal penalties on those who lack a 'guilty mind'. I can't see a particularly good reason not to have that as an element of the offence of intercepting private communications. Any reasonable distinction that means knowledge or recklessness is appropriately an element of the offence of unlawful access to a computer, but shouldn't be an element of the offence of unlawful intercepting a private communication eludes me.

But the law draws a distinction in this case, and it is a very clear one. The police rationale for not charging anyone in this case assumes an element of the offence that simply is not there. I think the law should be amended so that that is an element of the offence, but I don't get to re-write the laws, and neither do police.

It happens I think they would have a good rationale for not laying charges in this case. The lack of intention to break the law is an entirely proper consideration in exercising the discretion not to prosecute in a particular case, and would have provided a good reason not to charge any particular GCSB employee.

I suspect that Police would still have faced criticism had they stated they considered an offence had been committed, but that it wasn't in the interests of justice to prosecute. It probably matters very little to them, but I would not have joined in.

This morning, under urgency, Parliament enacted the Bail Amendment Act, which makes a number of changes to our bail laws.

It removes near automatic bail for those under 20 (limiting this to those under 18). And it removes near automatic bail for those under 18 who have previously been sentenced to prison. The most significant change relates to bail for those charged with murder: anyone charged with murder will have to prove they should get bail. This also applies to those charged with dealing in class A drugs. We will have to see whether this makes much difference. Bail is hard to get already if you are charged with murder, (or with dealing with class A drug crime) but it will likely mean that at least some people at the margins will be denied bail who would have got it under the old law, and some of these people will ultimately be acquitted. I'm not a fan of making bail tougher - I think the law should treat people as innocent until proven guilty, and sending innocent people to prison is obviously wrong - but that's not what this post is about.

The National Party is quite pleased with its new laws - understandable given that they fulfil a clear pre-election promise (.pdf) - and has even released the following ad, which various MPs have tweeted, or facebooked:

This describes the reverse onus provisions in the Bail Act. Usually, the police have an obligation to prove why someone shouldn't be bailed, but in certain circumstances, the onus of proof shifts (here's something I prepared earlier), and the person charged has to prove why they should get bail (a rule which will now apply to all people charged with murder).

But National's ad is a highly misleading way of describing the new bail law. In fact, it's a really a description of the current law. Except the current law is tougher than this. There is a list of "serious crimes" in section 10(2) of the Bail Act. No-one who has committed one of those serious offences, who is found to have committed another offence from that list is allowed bail at all.

National's law change is not, as its ad states, about those who commit serious crimes, but is instead about those who are *alleged* to have committed another serious crime (whether they have in fact committed it at all). It is an important distiction, but perhaps we can accept it as advertiser's licence.

Someone who has been convicted of one of those serious crimes, and who is charged with another of those serious crimes has to prove they should get bail. So if you have a conviction for robbery, or rape, or manslaughter (or any of the other serious offences on the list) and get out, and are then charged with another offence from that list (it doesn't have to be the same one), you have to prove you should get bail.

Except, wait, *that's already the law* as well. And it's been the law since the Bail Act was enacted in 2002.

People with prior convictions for serious offences who are charged with another serious offence already bear the onus of proving that they should be bailed.

The law change that National has made around this area is, in fact, much much smaller. It has kept the law that Labour enacted in 2002 word-for-word and simply added six extra offences to the list of serious offences (basically: underage sex, kidnapping, aggravated burglary, and assault with intent to rob). It's a change, but it doesn't really bear a resemblance to what is described in their ad, which has (ignoring the bit where they say 'commit') has been the law for quite some time.

There are plenty of changes that National could trumpet from their bail law changes - changes that would actually be laws for which they bear responsibility. And which, to be honest, will probably be popular. But they have instead chose to run advertising with a statement taking credit for the law as it was during the previous government. And that just seems wrong.

Gordon Campbell has written an important article for this month’s Werewolf, detailing the concerning nature of this Government’s attitude to the rule of law.

However, while the article makes a large number of important points, some of the detail is exceedingly odd, in particular, his assessment of the Government’s approach to Bill of Rights Reports, which Gordon draws upon in support of an overall thesis that this is all much worse than we have seen before:

4. Token Bill of Rights Act (BORA) Reports. Routinely, the Attorney-General vets new Bills as to whether they comply with the Bill of Rights. Just as routinely, the government ignores the conflicts that ther A-G identifies. Here are a few examples of where the Key government has ignored its legal puppet and passed laws that violate human rights supposedly protected by BORA, and/or by international conventions that New Zealand has signed

No reason is given as to why the Attorney-General is the Government’s “legal puppet”, and I would have thought that the fact Chris Finlayson is making so many reports suggests he probably isn’t a puppet. But that is less important than the example’s Gordon gives of where the Key Government passed laws that violate human rights.

Gordon’s first example, the Criminal Investigations (Bodily Samples) Amendment Act draws no further comment from me. It seems a perfect fit for the argument. However, his second example - the Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill - is laughable:

• it isn’t a government bill. It is a member’s bill, albeit from a National Party MP.
• it also hasn’t passed. The strong hint that this was the case is probably in the use of the word “Bill”, but it makes a list of laws passed by the Key Government anyway.

• this bill is still before a select committee, and it has already been indicated that it will not continue in the same form. We will need to wait to see whether this is still in a form which would breach the Bill of Rights, but even if it is, it won’t be as a bad as it is now.

Gordon’s third example is the Parole (Extended Supervision Orders) Amendment Act 2009. Extended Supervision Orders are problematic, but this act didn’t create them. They were created in 2003 by the Labour Government in the Parole (Extended Supervision) and Sentencing Amendment Bill. National’s bill made some largely technical changes, properly characterised as errors in the original legislation. Fixing the errors did have the effect of extending the powers of the Parole Board, but not in a way beyond that which was originally intended, which was why it got a section 7 report. National can, perhaps, be challenged for not repealing extended supervision orders, but this bill’s inclusion in this list makes no sense.

Gordon’s next example is the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010. I agree it is worthy of a place in a list of unreasonable laws passed under Key’s watch, but Gordon’s description of its effect is seriously in error. Gordon states:

Probably the Key government’s most craven pitch for the talkback radio vote. This Act effectively removes the right to vote from every New Zealander who happens in prison at the time of a general election.

Again, this wasn’t a government bill, but a member’s bill, but more importantly, saying the bill “effectively removes the right to vote from every New Zealander who happens in prison at the time of a general election” is simply wrong. The law does not apply to all prisoners. It does not apply to people who are in prison for non-payment of fines, or those in prison for contempt of court, or those in prison for disobedience of a court order. It also does not apply to service prisoners detained under the Armed Forces Discipline Act. It does not cover those detained in prison awaiting extradition hearings. And most importantly, it does not apply to prisoners who are on remand awaiting trial or even those remanded to await sentencing. 

Next we have the Sentencing and Parole Reform Act, otherwise known as the three strikes law. Unfortunately, Gordon paraphrases the Law Society’s views at the select committee: “this provision for a life sentence to be imposed for a third listed serious offence appears inconsistent with the right not to be subjected to disproportionately severe treatment”. This might be right, but it’s a particularly poor example to use of the Government ignoring human rights concerns, because on this issue, the Government listened to criticism and removed that provision before it passed the law. The three strikes law does not provide for life sentences for third strikes.

Next we have the Corrections Amendment Act 2013, in respect of which Gordon’s analysis seems fine. The strip-search provisions of this bill, which were opposed by not only the New Zealand Law Society, but also the Ombudsman, and the Corrections Association, seem unnecessary.

Finally, we have the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Act 2013. This too is offensive, but like the Extended Supervision Order regime, this is merely a re-enactment of a law passed by Labour. National did announce it was going to go further than Labour did, but there was objection, and it backed off. The law offends against the right to an effective remedy for state breaches of rights, but it doesn’t really belong in a list aimed at pointing out how much worse than previous governments National is.

Gordon lists other bills he considers problematic, with many of his arguments overstating any problems in the bills. He describes the Search and Surveillance Act as allowing searches without warrants, but doesn’t state that the old law allowed them too. He uses the production order system, which has been designed to be less invasive than the aspect of the search warrant procedure it replaces, as an example of overreach. A member’s bill providing for secret ballots for strikes – a worker protection mechanism – is objected to because it doesn’t similarly apply to boards of directors, who have no say in lockouts, and who don’t need protection. He argues that the removal of a tax break provided to companies is anti-worker, despite it applying to money employers have no option but to pay to workers.

The simple point is that none of these overstatements is necessary to make the overall argument that Gordon Campbell makes. There are plenty of objections in respect of state overreach and civil liberties that can be laid at the Government’s door without resorting to the fallacious examples the article uses. Arguments like these, which are easily rebuttable, weaken the case, and I like to think we deserve better from someone I have recently seen described as New Zealand's leading political journalist.

Nominations for this year's local body elections have opened. Voting papers will be mailed to you in September (if you have enrolled by 16 August these will be sent to you automatically; you can still enrol after that - right up until the day before voting papers have to be back - but voting will involve a little extra effort).

Naturally, this post is about voting systems. It's also one of my laziest posts ever (but not laziest) as I've largely copied and pasted below something I wrote shortly before the last local body election. Because there's always a lot of misinformation about how the STV voting system works, I thought I'd try to get in early this time.

If you've any other questions about how voting will work (or about how block-vote works), feel free to ask in the comments.

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So you’re voting in an STV election, and you want know how to best use your vote? Well … here goes.

What is STV?

STV is Single Transferable Vote. It is a voting system where everyone gets one vote, but that vote, or part of that vote, can transfer from one candidate to another candidate. It can be used to elect one candidate – like a mayor – or to elect multiple candidates in a single ward. It is generally considered a proportional voting system.

What elections use STV?

All District Health Board elections use STV, as well as a number of City Councils (Dunedin, Palmerston North, Porirua, and Wellington) and District Councils (Kapiti Coast and Marlborough). The system used in the other elections is called first-past-the-post or block vote. If you live in the Greater Wellington Area all of your elections will be STV (since the 2010 elections, the Wellington Regional Council has adopted it, the only Regional Council to do so), but everyone else will have both systems operating in different elections that they can vote in. Of course, you don't have to vote in all of them if you don't want to, but you can.

How do you vote in an STV election?

You rank the candidates with numbers. Put a 1 next to the candidate you most want to win, a 2 next to your next favourite, then a 3 for then next person and so on.

Do I have to rank everyone?

No. Your vote is still valid even if you only rank some candidates.

What are the ways my vote might become invalid in an STV election?

If you don’t rank anyone at all with a “1”. Or if you rank more than one person with a “1”. Or if you vote using ticks, like in a first past the post election.

If you muck up the later numbers – like ranking two candidates with “3”s – your vote won’t be able to transfer to help them or anyone lower, but your earlier rankings will still count.

But is it a good idea to rank everyone?

Yes.

But if I give someone I don’t like a rank, couldn’t this hurt the chances of candidates I like more?

No.

Your lower preferences cannot ever harm the election prospects of anyone you rank higher than them.

But some of my vote could still go to someone I’m not a fan of?

Yes. But only if all the people you ranked higher than them have already been elected, or cannot possibly win.

By ranking a candidate lowly, you’re not helping them beat people you like more than them, you’re only helping them against people you hate more.

In the 2002 French Presidential election, there was a vote-off between the top two candidates, the right wing incumbent Jacques Chirac, and far right National Front leader Jean-Marie Le Pen. Many left-wing voters did something they never thought they would do, and voted for Chirac. They weren’t using STV, but the principle is identical. In Australian Senate Elections, and some state elections – which do use STV – the Labor Party has advised its supporters to rank the right-wing Liberal Party above Pauline Hanson’s One Nation Party. Voting this way doesn’t hurt the Labor Party, but it makes it as unlikely as possible that One Nation gets anyone in.

Like the French voters who “voted for the crook, not the fascist”, ranking all the candidates helps ensure that what you might consider “the greater of two evils” won't be elected.

But what if I really don’t want to rank everyone?

You don’t have to. If there are a bunch of people whom you think are just as bad each other, or you know nothing about, your vote will still count. If the election comes down to race between people you haven’t ranked, you won’t help determine the result, but if you don’t mind which of them is elected, this shouldn’t bother you too much.

But if there’s someone I really really don’t want elected, I should rank everyone else above them?

Yes.

And this can’t cause any damage?

Well, you could be wrong :-)

It’s always possible that the one the person you think you want to make sure isn’t elected isn’t actually the worst candidate. Maybe that candidate you haven’t heard of is to the Right of Ayn Rand or the Left of Che Guevara, and if you knew that then he’d have been your absolute last choice. If you’re casting your vote for someone you know very little about, there’s always a chance that if you had known more about them, you’d have thought differently.

An informed vote is always a good idea.

Even for the District Health Board?

Okay, you got me. Health Board elections are stupid.

Seriously though, how does the counting work?

I won’t go into it in great detail, but...

First, all the number 1’s are counted.

If it’s a one-person race – like an election for mayor – then someone has to get more than half of the votes to win. If no-one does, then the candidate with the lowest number of 1’s is declared to have lost. All the second rankings for that candidate are then added to the votes for the other candidates. The votes of anyone who voted for that losing candidate that didn’t have a valid second ranking are set aside.

If anyone now has a majority of the remaining votes, they’re elected. If not, the person with the lowest number of votes is declared to have lost, and the second rankings of the people who voted them number 1 are added to the votes of the other people. If anyone voted the first loser as number 1, and this candidate as number 2, then their third preference is added instead. If anyone who voted number 1 for this candidate, had their second choice as the candidate who was kicked out in the first round round, then their third preference is used.

This keeps going on, until someone has more than half of the remaining votes.

But what about in STV elections where you’re electing more than one person?

Multi-member seats operate on the same basic principle, but with a couple of extra twists. Instead of needing more than half the votes, candidates need to beat a quota, which is set so that only the right number of candidates can be elected. In a one-person race, this is more than half, because it is impossible for two or more people to both get more than half of the votes. If your ward is electing two people, the quota is set at just over a third of the votes; if it’s five people, then it’s just over one-sixth of the votes.

The main extra twist is that the vote counting continues after candidates have already won. If your ward is electing three people, the votes keep transferring until three people are elected. There’s also an extra step. Before the lowest-ranked person is declared to have lost, and the second preferences of the voters who voted for them are distributed, the excess votes of anyone who has already gotten past the quota and been declared a winner are distributed.

For example, if the quota was calculated as being 100 votes, and on the first round, one of the candidates got 125 votes, then those excess 25 votes are distributed according to second preferences. To make it fair, the second preferences of all that candidate’s voters are used (not just the last 25!); this would mean that an extra 0.2 votes would be added to the second choice of each of the voters that had chosen the winning candidate as their first preference. Only once this is done, is the first loser declared not to have been elected, and are their second preferences distributed. The fractions of votes can get pretty complicated (you might have 0.75 votes going to your first candidate, and 0.20 votes going to your second choice, and 0.05 votes going to your fifth choice), so all the ballots are uploaded to a computer which goes through the calculation.

Is that all?

It’s way more than you need to know to cast an informed vote, but if you do want more detail, there’s a handy government website which explains STV for you took look at.

Don’t forget to vote!

If you haven't been sent an enrolment pack by Orange Guy in the last few weeks, then you're probably not enroled to vote. You should enrol to vote. You can do this online. Or you can get an enrolment form from a Post Shop. Or you can call 0800 36 76 56.

Your voting papers will be sent to you around September 20, and have to be with your local returning officer by midday on Saturday October 12. If you’re posting them back, try to get them in the post on or before October 9, to make sure there’s enough time. If you're getting near the date, it might be safer to drop them off in person at the council, or somewhere like a public library. Your council website – and voting papers – should have all the information you need to do this.

Last Friday, the Electoral Commission announced that it had cancelled the registration of the United Future Party.

My immediate thought was that that was unfortunate, because I had wanted a relaxing night, and didn't want to have to write a long post railing against the continued funding of Peter Dunne for Parliamentary funding purposes.

In the end, I didn't. I had a quick look at the Speaker's Directions, and the Standing Orders. They weren't very clear, and didn't seem addressed to the issue in hand, but I concluded that they probably turned on the situation in place at the election and would thus allow continued funding, and decided that a post railing about how someone was probably entitled to funding would be rather boring and went on with my night.

I received texts from a journalist:

"Will Dunne get less money in parliament now UF isn't registered? Intense journo debate!"

"And will he lose staff?!"

I replied:

Dunne personally? No. Ministers are paid more than party leaders. Party support funding is less clear. The laws aren't written in a way to allow for a clear answer, but I would guess not.

I also sent and replied to a couple of tweets, but it very much seemed like an issue that would interest only people like me, and not have cut particular cut-through.

Well, after the events in the House today, it seems my view that this would be boring was rather misplaced (at least with respect to those who follow parliament).

There is more than one question. Recognition of a party for parliamentary purposes includes things like the right to speak on ministerial statements, and the affects proxy votes, and membership of the Business Committee. The question of whether a party is entitled to funding may be different, but I will assume that it probably isn't for the purposes of this post.

I looked at these questions in two posts prior to the 2011 Te Tai Tokerau by-election, and came to some firm conclusions and also determined that there were some "known unknowns". Standing Order 34 has changed since then, and the bit I wasn't sure of then is now definitively ruled on. An unregistered party which wins a seat in parliament at a general election (or a by-election) is now clearly not entitled to be recognised as a party under standing orders.

But that isn't the situation Peter Dunne finds himself in.

Standing Order 34 now states:

Every political party registered under Part 4 of the Electoral Act 1993, and in whose interest a member was elected at the preceding general election or at any subsequent by-election, is entitled to be recognised as a party for parliamentary purposes.

Peter Dunne was elected at the preceding general election in the interest of a political party registered under Part 4 of the Electoral Act. That party  is no longer registered, but he was so elected, and under that banner. United Future was recognised. Properly. A new general election would change that, but we haven't had one.

Now, you can clearly argue that a different interpretation, that recognition by Parliament is an ongoing matter, that the Speaker needs to be convinced of all matters in Standing Order 34(1) at all times. Standing Order 34(1) has changed. Before the start of this Parliament, it said:

Every party in whose interest a member was elected at the
preceding general election or at any subsequent by-election is entitled to be recognised as a party for parliamentary purposes.

There's a pretty good argument that you can look at the difference and say 'see they changed the rule, now it's clear, Dunne gets no funding!', but there are a couple of problems with that. First, the Standing Orders Committee explained why it made this change, and it had nothing to do with this, but was in response to a submission by the Clerk of the House, that there was a circular definition of 'party' that should be cleared up. Second, there is also a steer under SO 34(3). The rules allow new parties of party-hopping MPs to be recognised between elections if they have at least six members (a level I anticipate is based on the 5% threshold), but also provide that:

(3) [such a party] loses its recognition if its membership falls below six members of Parliament.

The rules don't give any other situations where a party loses recognition. If the continuing obligation principle was correct, the bit above would be unnecessary: as soon as a new party-hopper party lost it's sixth MP, it would cease to be registered because it would no longer meet the requirements for a non-elected party to be recognised. This bit being there suggests recognition is otherwise a one-time thing.

I don't have a dog in the fight. I'm reasonably political, but also highly non-partisan. I would like the rules to be clear. The House has a rule that doesn't clearly deal with this situation, except, maybe, by inference. And the two inferences that rule has are contradictory.

I do, however, have a concern with the decision of the Speaker to give Dunner and United Future time to deal with this matter. Whatever interpretation one takes, this isn't something that can be fixed up. Either the rules require a parliamentary party to maintain registration with the Electoral Commission as a continuing pre-requisite to recognition, or they do not. If they do, then United Future has lost its entitlement to funding, and that should cease; if they do not, it doesn't matter whether United Future re-registers next week, or just gives up, the entitlement to recognition in the House would remain until this Parliament rises before the next general election.

There are serious consequences if a party ceases to be entitled to be recognised as a Party in the House, but there's no basis to put the decision off. What has happened has happened, and if there are consequences, they occur immediately.

UPDATE: Andrew Geddis also posts on the issue. We disagree over how tenable the argument about continuing entitlement is, but agree on what I think is the more important issue. There is no basis for a grace period, and the decision of the Speaker to allow one is wrong.