Legal Beagle by Graeme Edgeler

Jordan Williams, formerly of Vote for Change, and Winston Peters, currently of New Zealand First, have had a few things to say to and about each other recently, with Jordan finding fault with Winston for causing instability under MMP, and Winston encouraging Jordan and his "limited skills" toward easements and licences to occupy, rather than constitutional law.

While unsurprising, it is still a little odd, because they were commenting in light of the Electoral Commission's MMP proposal paper - on which they are largely in agreement.

In 1993, voters agreed in a referendum to an MMP system. And the system we agreed to had a bunch of details - it included a 5% threshold, and it included the one-seat rule.

We held a further referendum at the last election. And at that referendum, the Electoral Commission conducted a public information campaign explaining what each of five systems involved. In respect of most of them it was pretty general in its description - for example, it didn't say whether there would be a party vote threshold for supplementary member, and only gave an estimate of the number of multi-member electorates there would be if we adopted single transferable vote. But for one system - MMP - it was very specific:

Under MMP, New Zealand is divided into 70 electorates ... to get any seats in Parliament, a party must reach at least 5% of the party vote, or win an electorate seat.

And, as we know, it was this system which won. With the promise of a review, if it did, but no idea whether any changes would be good, or bad, or welcome at all. Keep MMP was the option for voters who wanted the MMP we have now, and those who wanted MMP with many changes.

In my submission to the MMP Review I argued for quite a few substantial changes to our voting system, which - while still recognisable as MMP - could be seen as a vastly different system. However, I noted in my submission, and strongly reiterated in person, that the view was mine: I like to thing it was considered and well-argued, but it remained the view of one person and if enough people disagreed with me, then the system shouldn't be as I want it, but as we do.

But a further referendum doesn't seem likely to happen (at least one MP has gone so far as to - falsely - say people voting at the referendum knew we wouldn't get a further referendum on any changes) and Jordan Willams has (repeatedly!) criticised the process by which the review will now be considered as being like asking turkey to vote for an early Christmas. The Electoral Commission has recommended against a further referendum, but one hasn't been ruled out. I note in particular that constitutional lawyer Mai Chen, in a January Nine to Noon slot looking forward at the year in public law, in answer to the query "... it doesn't go out again to a referendum?" responded "well what the Prime Minister has said - and it's also confirmed in the speech from the throne that was given in December, 21 - is that if there are recommendations for change, then the Government will put it to the electorate again." I haven't had any luck finding a reference (the reference to the speech from the throne is in error, but I've no reason to doubt that the suggestion came from somewhere).

Winston Peters has stated that he considers the proposed changes to MMP as undemocratic.* This view has disconcerted some, who looked at the clear vote to adopt MMP, the stronger vote to keep it, and the large number of submissions on the review as the epitome of a democratic process, but the simple point remains that we have very little idea how much genuine support there is for changes to MMP at all, let alone the particular ones tentatively proposed, or whatever final recommendations may come from the Commission, or whatever final bill may emerge.

The New Zealand First Party has a list of 15 Fundamental Principles. One of these is:

Electoral reform will be determined by the electors. The Government’s duty will be to ensure the fair representation of all views and the holding of appropriate referenda.

Which is where Jordan, and Winston, and I, find common ground. A few thousand of the politically motivated among us have submitted to the Electoral Commission, but the voices of the vast majority haven't been heard on the question of whether they're happy with status quo MMP, or want the smallish change the Commission is proposing, or would welcome more substantial change. Which is wrong.

The next step in the review process is for the Electoral Commission to finalise its recommendations to the Minister of Justice. She will then get advice from the Ministry of Justice, and may take proposals to cabinet, which, after consultation with government partners, will decide what changes - if any - to include in any government bill to be placed before the House. Which is the way every other government policy is enacted. I've no reason to believe the government will seek to do anything particularly - or even slightly - egregious during this process, but it doesn't seem likely to result in the enactment of the form of MMP the public support. We're not likely to be given a choice between the status quo and any alternative, and given the interest our present MPs have in the outcome, this is a little sad.

[*Peters has also stated on at least a couple of occasions that the Royal Commission said that an MMP Parliament could operate effectively with 100 MPs. To the contrary, it devoted an entire chapter of its report in support of increasing the number of MPs - under either first post the post or MMP, concluding at one point "... this suggests an ideal size for the House of about 140 members" before compromising on 120, because they were aware it would be unpopular. "We must stress that ... an increase to 120 is the minimum necessary to help Parliament meet the demands that will be made of it during the next generation."]

The Electoral Commission has proposed a couple of minor changes to the operation of our voting system, but mostly, it's steady as she goes, with the Commission recommending no change to the rules which allow MPs to be both list and electorate candidates, or which allow list MPs to contest by-elections, and not proposing any strengthening of the requirement for democratic processes to be used in the nomination of party lists.

Kiwiblog's David Farrar is disappointed by this decision:

However I think they should have recommended greater internal democracy measures for party list rankings, and should have proposed either not allowing List MPs to contest by-elections or indeed even abolishing by-elections (which they talk about but take no stance on). Also no movement on dual candidacy means that the issue which most upsets people the most in my experience, is not dealt with.

The words missing from David's post, which got me thinking enough to write this piece are "is not dealt with ... by legislation". Simply because the law won't require parties to have greater internal party democracy, doesn't mean they will be prohibited from doing so. Because, even absent a statutory mandate, these are all things that parties can adopt now, and if it is something a large portion of voters really want, one or other party could simply adopt this themselves, and then shout it from the rooftops.

On this, the Commission seems to be taking the admirable view that voters aren't stupid. And we're not. Voters who care that a party is protecting "useless" electorate MPs with high list places will be less likely to vote for them. And voters who didn't care enough to take notice before the election will notice after the election that the MPs that party now sports aren't very good, which will mean it will suffer at the next election.

The solution to David's concern isn't legislation, but the market. And I like the market. Like every other voter, I get to decide what is important to me when choosing the party and candidate worthy of my support. I like that.

If the concerns are as widespread as David seems to think, a party that changes its approach will gain support. Its leader will be able to go on TV, and its candidates will be able to public meetings, and say "we're selecting the best candidates: people with a strong electorate focus for our electorate candidates, and specialists who bring important skills as our list candidates", or "our Party list was selected by thousands of our members from right around the country. It represents all of New Zealand, and is filled with people who will stand up for you, because if they want to be high on this list, they won't have to keep party leaders happy, they'll have to keep on the side of the thousands of ordinary Kiwis who vote for our list."

It's this market which David used when he sensibly opposed calls by the Taxi Federation for a law change requiring taxis to have security cameras:

And even if a few companies don’t implement cameras, then their drivers can choose to work for another company.

It’s sad that the NZ Taxi Federation thinks it needs a law passed, to be able to put security cameras into cars. Why don’t they just get on and do it.

Even if a few parties don't adopt proposals to allow their members to have a direct say in selecting list candidates, then their supporters can choose to vote for another party.

It's sad that a party activist thinks there needs to be a law passed to enable party members to have a say in party lists. Why don't parties just get on and do it?

Few people know how political parties select their lists, but I get the feeling that a lot of only mildly political people are aware that the Green Party involves its whole membership in a way that other parties don't. And that's something the party likes to tell people about. Other parties are more than capable of allowing their membership a greater role in these sorts of decisions.

And its even something that party members can force on parties, either through party elections, or constitutional amendment. I believe David -although no longer involved in the administration of the party - is still a National Party member in good standing. If he believes the National Party would elect a stronger slate of MPs, or govern more effectively, or be more electorally acceptable, or have better internal policy discussions with a list that was first subjected to a publicly-announced list ranking vote of ordinary National Party members, well, the National Party has an internal procedure for amending its rules, and he is more than capable of submitting a proposal for change. A number of the arguments in favour of positions David is advocating are compelling, but there's no reason he needs to convince the Electoral Commission and Parliament to impose this rule on everyone, he can simply start with convincing enough people in the party he belongs to to gain the advantage for themselves.

At the Mount Albert by-election following former Labour Leader Helen Clark's retirement, David showed just how this political market could be used - Patrick Gower and Tim Watkin both credit his raising of the "Tizard Effect" as influencing Labour's decision not to nominate a list MP as its candidate. We've had a few by-elections since we adopted MMP, and quite a few of them have included list MPs, but never has a list MP won. And if it some point one does, that MP will have been elected by an electorate in full knowledge of the consequences, and happy enough with them. The Electoral Commission notes:

No list MP has been successful in a by-election yet. Whether one is ever to be successful is a matter the Commission suggests can safely be left in the hands of voters.

If enough people feel as David does over dual candidacy, or party leadership having too great an influence over list placements, the parties which refuse to meet voter concerns will suffer. Not unlike the taxi companies which refuse to provide cameras to protect their drivers and passengers.

The market usually works. And I welcome the Electoral Commission view that a lot of these details are better left to voters. Who mostly aren't stupid, and do know what they are doing. Although one thoroughly awesome quote from the Commission shows they aren't quite convinced of the intelligence of every one of us:

Submissions talked in terms of list MPs being ‘unelected’, ‘appointed’ by parties or that they were the Parliamentary representatives of parties and accountable to them rather than the electorate.

This is not the case. Parties do select the candidates on party lists, just as they also select their electorate candidates. List MPs are elected by voters through their party vote from party lists lodged with the Electoral Commission on Nomination Day, published on the Commission’s website, provided to every elector in their EasyVote pack, and available for inspection in every voting place. That some voters choose not to avail themselves of the information readily available to them in party lists does not alter the fact that list MPs are elected.

Parties with procedures that select bad lists, elect poor MPs. And even if we don't know that before the election, we find out over the term of the Parliament afterward. I trust voters to look at MPs and decide who is worthy of support. And even if a party can bluff its way through one election with some MPs whom, on balance, a lot of voters might think are poorer choices, such parties suffer in the long term. And if they don't, it might just be because I'm not the best person to decide who should represent a constituency that I'm not part of, or know little about.

I don't agree with everything the Commission has proposed, but I welcome its vote of confidence in the New Zealand voter. On these issues at least.

The Electoral Commission Proposal Paper has been released. The Commission has proposed two changes to our MMP voting system:

• Reducing the party vote threshold to 4%
• Removing the one electorate seat threshold ("the single biggest factor in public dissatisfaction with MMP at present")

It also made a contingent proposal - that if the one-seat rule was removed, then the overhang rule should be changed so that parties that earn less than the party vote threshold (whatever that is) don't cause overhang.

This is a pretty technical change, but its effect on the current parliament would have been substantial. Parliament would have reduced in size by one, National would have lost a list seat, and the Government could not pass legislation with support only from United Future and ACT (they'd have had 60 seats between them in a 120 seat Parliament).

Everything else - banning dual candidacy, or list MPs contesting by-election, requiring greater internal party democracy, or letting voters rank lists - is rejected.

And now ... I have to prepare for an urgent court fixture. Feel free to start without me.

In a week, the Electoral Commission will release a proposal paper in its Review of our MMP voting system.

I'm a big fan of this idea. I don't expect the Commission will make any major errors, but giving themselves the opportunity of avoiding making the type of idiotic mistakes made by the Royal Commission on Auckland Governance is eminently sensible. And given the ownership of our electoral system that we as citizens should have, it is a good approach to let us make our views known before the proposals become recommendations.

After the release of the proposal paper, approximately four weeks will be allowed for further written submissions, which the Commission will take account of before releasing its final recommendations.

I have no inside knowledge of the Commission's thinking, other than what might have gleaned from reading most of the 4000 public submissions, or sitting through around half of the two days of oral presentations the Commission heard in Wellington. I will hopefully cover the Proposal Paper in some detail, but with a week to go, I thought I'd make an educated guess as to what the Commission will and will not propose:

Threshold

I'm going to go along with everyone else here, and predict that the Commission will propose dropping the party vote threshold to 4%, and removing the one-seat exception. I don't rule out its going to say 3%, but would be very surprised with anything lower than that. The one-seat rule can increase proportionality, but I'm picking the Commission will consider its benefits are substantially outweighed by its problems.

Dual candidacy

This is the one topic on which I have almost no doubts: I'm almost certain that the Commission will recommend the status quo, leaving it up to voters to support or punish any party which chooses to protect weak or endangered electorate candidates with high list placement.

List MPs contesting by-elections

This is related to dual candidacy, but not as clear cut, I don't think the Commission will propose banning this altogether (by requiring list MPs to resign before contesting a by-election), but it could well make some recommendations clarifying or changing the process by which a new list MP can enter Parliament if a list MP wins a by-election.

Ordering candidates on party lists

With our single nationwide list (which the Commission won't propose changing), I'm predicting the Commission will think that allowing voters to re-order party lists would be too complicated or confusing for what little benefit it might bring. The Commission will, however, recognise public concern about centralised control of party lists, which I believe it will seek to allay by proposing strengthening the requirement for internal party democracy. It will suggest that at the very least parties should hold internal votes of all (or close to all) their members, in the process of list-ranking (although the result won't be binding).

Overhang

I may be out on a limb here, but I think the Commission will propose abolishing overhang, which occurs when a party wins more electorates seats than its overall party vote would entitle it. This proposal may be tied to the removal of the one-seat rule, which would either increase, or complicate the overhang. That said, one of the advisers to the Commission is Professor Nigel Roberts, and he does love overhang :-)

The ratio of electorate seats to list seats

This could be the bolter. I suspect the Commission will acknowledge the slow reduction in the number of list seats, but will note it won't be a concern for a very long time. That acknowledged I think that if the Commission is going to make any unexpected recommendations, it will be here. I wouldn't bet on it, but I wouldn't be too surprised were the Commission to recommend a change to the from the current 70/50 split to an ~80/40 split. And although the Commission isn't looking at the size of Parliament, it may also suggest consideration is given to imposing a floor below which the proportion of list seats should not drop, so that if the North Island population growth continues to be more rapid than South Island growth, some time down the track, the size of Parliament will increase, like it did under first past the post.

Other things

I don't think the catch-all "other matters" will play a much of a role in the Commission's proposal paper, although it's possible the Commission will present a few minor surprises (another advantage of having a second round of submissions is that people will be able to make their views known).

I doubt the Commission will propose that any changes to MMP should be put to a referendum, but it could recommend that some more of MMP should be entrenched, and it's likely a few minor points will make it through, perhaps recommending an increase in the electorate tolerance to 10%, and a tidy-up of some of the anomalies in our MMP system. The Commission may also take the opportunity to re-iterate a few of its recommendations from its Report on the 2011 Election, like the recalibration of list seats after election petitions.

The Commission isn't going to adopt all my proposals, and will probably surprise me on one or two things, but it won't surprise you to know I've been counting the days since I realised there were four weeks to go. Just seven more sleeps.

On Thursday, the Police released a media statement announcing their decision not to charge John Banks in respect of the return he filed after the 2010 Auckland mayoral election. They also released slightly more fulsome letters to the complainants, including MP Trevor Mallard, and gave media interviews in which the Police conclusions were reiterated.

I can understand why Police now do this. I'm not sure they could get away with not doing it. But it is a little disconcerting all the same.

In the letter of explanation and media comment (.mp3), the Police have basically laid out the case that Mr Banks committed an offence under s 134(2) of the Local Electoral Act. It's too late to charge Mr Banks with it, because that offence is minor and the alleged offending took place well over six months ago, but the Police belief that Mr Banks is, in common parlance, a criminal,* is clearly laid out.

Why is this disconcerting? Well, the Police are not charging Mr Banks. He will never be given the opportunity to argue his case. This is, in effect, a smear Mr Banks will never have the opportunity to defend in court. Is it just that the Police do this?

In New Zealand, the presumption of innocence is generally applied in a formalistic way. It underlies legal consequence at various stages of the criminal process. The presumption of innocence is why we have bail, and why in most circumstances Police have to establish why release on bail should be denied, rather than a defendant having to prove they should be released. The presumption of innocence is also why the prosecution bear the onus of proof at trial, and is in part why those who are accused have the right to silence.

But the presumption of innocence generally doesn't have much effect more generally - no-one usually considers the presumption of innocence has any application outside the courtroom. But that isn't the only conception of the presumption of innocence. In a series of cases, the European Court of Human Rights have held that the right to be presumed innocent must be given practical and effective protection. It has held that the state can breach the presumption of innocence, by for example a judicial decision that observes that a person would have been found guilty had a strict limitation period not saved them, and in one case that a statement at a Police media conference denied one accused the presumption of innocence.

The role of the Police is manifold, but right up there is the investigation of allegations of offending, and the placing of evidence discovered thereby before courts. Publicly opining on the guilt of people they aren't even seeking to have placed before the courts isn't usually considered among their functions in society.

And John Banks' case isn't the first high profile investigation where implicit Police declarations of guilt have arisen.

In March, Police announced their decision not to charge Bradley Ambrose over the recording and release of the conversation between John Banks and John Key, that should have been known as the Teapot Moan scandal, but which instead suffered some stupid -gate suffix. This was particularly intriguing, because the expert legal commentary tended to the view that there was nothing criminal in the event. And more pointedly, in response to a question at the media conference following the announcement Assistance Commissioner Malcolm Burgess seemed of the view that Police couldn't have proved all the elements of the charge.

There are other high profile examples. Following their investigation into Darren Hughes Police announced that "After this careful consideration, the allegations do not reach the evidential threshold required to bring charges. As a result, no charges will be brought against Mr Hughes." Nothing particularly concerning about this, but following a public statement released by Mr Hughes that he had been "falsely accused", Police felt it necessary to publicly state that they had no concerns about the validity of complaint. And like, John Banks, and Bradley Ambrose, Hughes is placed in a position where the sole official conclusion is the untested one of Police detective.

Of course, the concerns don't apply in reverse. Following their investigations into allegations relating to David Garrett's statements to court in obtaining a discharge without conviction for historic offending, the Police statement took some pains to make clear that the decision not to charge Mr Garrett was not so much a decision not to charge him, but an acceptance that he hadn't, in fact, broken any laws.

The reactions to these different cases has been instructive. As with many things, it has tended to align with the commentator's political position, or their view of the individual concerned. And it was this realisation this compelled me to write this piece: had my approach to cases like these changed because of my views, for example, on the issues of the regulation of the media that arose from the Ambrose case, or election finance laws as arose in Banks'?

But even when we've reached the end, I'm not sure there's an easy answer to this quandary. We may dislike it when Police presume the power to publicly declare someone they have no intention of charging a lawbreaker, but in a world where we expect freedom of information, and want to hold the Police to account for their decisions as much as the politicians they may on occasion investigate, where should we draw the line? I'm not sure I know.

*A breach of a summary offence isn't technically a "crime". The term crime is defined in the Crimes Act 1961 as an offence which may be proceeded against by indictment.