Legal Beagle by Graeme Edgeler

Hone Harawira is to resign from Parliament, to seek a mandate from the voters of Te Tai Tokerau as a Mana Party MP.

There has been some disquiet about the cost of a by-election so near to a general election. I would note that the timing is not greatly different from that around Winston Peter's resignation and re-election in 1993 (Tauranga by-election April 17, general election November 6), but I appreciated Danyl's observation:

most the state’s wealth comes from ordinary people working hard and then giving a huge chunk of their income to the government, so spending it is a sacred trust not an endless opportunity to squander it all on gimmicks and whims and political stunts.

But it is difficult to know Hone's true motivations in going, and in going now.

I recently opined that one practical reason Don Brash might prefer to lead ACT rather than start a new political force was the public funding available to ACT through the broadcasting allocation. I don't anticipate that that was a likely consideration at all, but similar practical considerations have been posited by a number of people - including at least one member of Parliament - as a possible motivating force behind Hone's desire for a Mana Party mandate. 

If Hone wins the by-election, will he qualify for a higher salary and a parliamentary leader's budget?

Again, I have no idea whether this has factored into Hone's thinking, but the answer is fraught. It is clear that if Hone were to win a by-election as a member of a registered political party that he would, short of that, however, and it's anyone's guess.

The Directions by the Speaker of the House of Representatives cover eligibility for parliamentary funding.

Under clause 4.5 of the Speaker's Directions, a party is entitled to annual leadership funding of $100,000 + $64,320 per non-Executive MP (i.e. for each MP who isn't a minister) who in its caucus.

Under clause 4.6 there is $22,000 available per MP annually to each party in "party and group funding" (running the whips office and research).

Under clause 4.7, Hone - as an MP representing a large Maori electorate - gets $105,192 as "support funding". This is largely to run electorate offices for Te Tai Tokerau. All MPs get funding of this nature, and it doesn't turn on whether Hone is an independent, has an official new party, or wins a by-election. It may nevertheless be important in assessing the impact of the by-election on the funding to which Hone Harawira is entitled.

The Parliamentary Salaries and Allowances Determination sets out the pay of member of Parliament. It sets different salaries for different member of Parliament: the Prime Minister gets the most, and cabinet ministers and chairs of select committee and party leaders and party whips and others all get different amounts. A leader of a political party in Parliament is also entitled to a higher salary than an ordinary MP, based on the number of MPs they have.

An ordinary MP, with no particularly parliamentary or governmental responsibility earns $134,800, plus an allowance (effectively salary) of $15,300. A Party leader of a party with a single MP (like Jim Anderton - the leader of the Jim Anderton's Progressive Party) gets $148,500 plus the $15,300 allowance.

But assuming that a re-elected Hone Harawira would qualify for the higher salary and the extra funding pre-supposes that the Mana Party would be recognised as a Party. This is far from clear.

The Salaries Determination defines a party as:

a parliamentary political party whose members in the House of Representatives include at least 1 member elected as a constituency or list candidate for that party.

While the Speaker's Directions define a party as:

a parliamentary political party whose members
in the House include at least 1 member

But what is a parliamentary political party? These instruments don't say.  The best bet seems to be the Standing Orders of the House of Representatives. Standing Order 34(1) states:

34 Recognition of parties
(1) 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.

Note that the last bit of this effectively prohibits MPs from leaving their parties and setting up new parties for the money. For this reason, MPs like Gordon Copeland, and Phillip Field weren't recognised as representing the Kiwi Party or the Pacific Party while in Parliament (and didn't qualify for the higher salary or funding). Recognition as a party in Parliament affects in a number of things: the method of voting during party votes, membership of the Business Committee, rights to speak in response to ministerial statements and others.

This is where the claim that Hone might be doing this for the money comes from. If he wins a by-election in the interest of a party, it is entitled to be recognised under Standing Orders. S.O. 34(2)(b) states that a party may also be recognised for parliamentary purposes if it registers with the Electoral Commission, and has six MPs, and S.O. 34(2)(c) recognises that a party may also be recognised if it is a component party, for which the MP stood as a constituency candidate at the election (a component party is a party registered in its own right under the Electoral Act that has joined with others in an overarching registered party to contest the party vote - during its time in Parliament, the Alliance contained a number of component parties).

But back to the words of S.O. 34(1): when it say "party", what does it mean? Given the later bits of S.O. 34, it is clear that The Electoral Act 1993 can come into play under S.O. 34. And Speakers' Ruling 6/3 states:

Whom the Electoral Commission recognises as a political party is relevant only if the Speaker receives a letter from a member seeking to be recognised in respect of a new party under the Standing Orders.

This does not necessarily mean that the The Electoral Act will be determinative, however, the Electoral Act does define a party: as a registered party (which the Mana Party currently isn't).

It is possible that an independent could be elected a member of Parliament. It hasn't happened in a while, although Derek Fox came reasonably close in 1999. Candidates not representing a registered party don't have be listed as "Independent" on the ballot: at the 2008 general election Toby Hutton of the No Commercial Airport at Whenuapai Airbase Party contested East Coast Bays. Unregistered parties like the NCAWAP and even the National Front, have registered logos with the Electoral Commission that can appear on ballots, and nominate electorate candidates under the party name. A number of candidates do it each election, the party doesn't need to register, or intend to register, it doesn't need to have much of an existence at all (maybe a constitution).

In calculating the divvying up of list seats, independent MPs and MPs from unregistered parties (or parties that don't nominate lists) are treated identically: they are removed from the calculation and cannot cause overhang.

I find it difficult to accept that the salary and funding of a member of Parliament would be determined by what they put on their nomination form, and that a successful independent Derek Fox would be entitled to half a million less funding than a successful Toby Hutton, just because Toby Hutton was elected under the auspices of the unregistered No Commercial Airport at Whenuapai Airbase Party. It may be true, but it almost defies belief.

Should Hone Harawira win the by-election, while claiming to represent an unregistered Mana Party, his claim on the public purse for additional funding as a party leader is no greater that Toby Hutton's would have been.

We cannot be sure how the word party in S.O. 34 will be interpreted, or even whether recognition under S.O. 34 is determinative of recognition under the Speaker's Directions or Salaries Determination (EDIT: McGee says it is determinative; via Big-News. That's good enough for me.), but it is at least possible that an MP elected under the auspices of an unregistered party is not elected in the interest of a party (and thus will not be recognised as a party under the Standing Orders).

It may be that the entitlement of a re-elected Hone Harawira to additional funding will turn on when the new Mana Party is registered with with the Electoral Commission. As a matter of practicality, the process of checking that there are the required 500 members etc. can take six weeks, even if nothing goes wrong.

When Winston Peters sought a fresh mandate in 1993, he ran as an independent, and only later formed the New Zealand First Party. When Tariana Turia sought her fresh mandate in 2004, she ran as a Maori Party candidate. On nomination day for the that by-election, the Maori Party was an unregistered party, but it had applied for registration, and its registration was approved the day before the election. I do not know exactly what this meant, but do not rule out that it made a difference.

Hone Harawira (and the Mana Party), if successful in any by-election may be in line for additional parliamentary funding, but when considering whether this would be a factor in his decision to resign and force a by-election we should look more broadly.

There are other consequences. Hone Harawira is Deputy Chairperson of the Maori Affairs Select Committee (this responsibility ups his salary to $139,100). When Hone resigns, he will lose this. And he won't get it back. He'll also lose his salary. While MPs who retire at (or lose at) general elections continue to get paid for three months after the election, MPs who resign mid-term do not. Their pay ceases immediately.

Even if Hone comes back, and is recognised as a party leader, the six months of higher salary will not come close to offsetting the salary he loses by not being a member of Parliament. The additional salary would be somewhat less than $5000. The forgone salary and allowance is likely to be more than $20,000 (depending on how long it takes between Hone's resignation and the by-election: the Mount Albert by-election was 8 weeks after Helen Clark's resignation, the Mana by-election 5 weeks after Winnie Laban's resignation, and Botany 7 weeks after Pansy Wong's resignation).

There may be $90,000 or so in additional Parliamentary funding on offer, but resigning, as well as costing Hone his Salary, costs him some of his 'perks'. As Hone will no longer be an MP, and will no longer be the MP for Te Tai Tokerau, and his electorate offices won't be his. The rent will be paid for up to one month after his resignation, but his use of the offices will be limited to enabling him to complete
correspondence and remove personal effects. The Parliamentary Service will be permitted to approve special arrangements to maintain basic electorate services, but the staff who used to work for Hone, won't be during the time he's not a member of Parliament. Things like the phone lines we cover for MPs get paid for a month, but after that, he's on his own. His domestic travel budget is pretty much gone straight away (he wasn't in Parliament before 1999, so doesn't get those post-retirement perks). The flight home, and one more flight to clear out his Parliamentary office (which I imagine he'll have to do) will be covered, but the taxis, and the mileage allowance cease immediately - and Hone's had a pretty high travel bill while in Parliament.

I do not know where Hone stays while in Wellington, but an apartment or other rental accommodation is a reasonable guess. The max $2000 per month accommodation supplement stop immediately. If Hone has a lease, he'll be paying it himself from his resignation.

There is some chance that a newly re-elected Hone Harawira and Mana Party will qualify for extra parliamentary money: representing an unregistered party may be enough, or the Mana Party may register in time for this not even to be an issue. Even accounting for the cost of campaigning in a by-election, the cost to Hone personally will probably be less than the $90k or so the Mana Party might be in line for, but still: if Hone is doing this for the money, he needs to redo his sums.

P.S. It was suggested on whichever news I was watching tonight that a by-election cannot be held within the six months prior to a general election. That is not true. The House of Representatives can - by a vote of 75% - determine not to hold a by-election (or fill a list vacancy), if the Prime Minister advises Parliament that a general election will be held within six months. I do not consider this likely. A slightly earlier election (to bring it to six months) just wouldn't fit with the Rugby World Cup, and a much earlier election might affect the referendum on the voting system. The public information campaign doesn't start until June and if, as many people seem to think, John Key favours our adopting the supplementary member (SM) voting system, he would be advised not to hold the general election (which must coincide with the referendum) until people have heard of it. SM finished last in 1992 referendum.

P.P.S. This by-election shows one practical reason why Maori voters can only switch roll type during the Maori option after each census. The deck could easily be stacked by were voters on the general roll able to switch to the Maori roll in order to vote in the by-election.

Some time last year, I realised that you could find stuff out by asking the Government. It used to be I'd have had a discussion with someone, or read a news story or made a blog comment and thought to myself “I wonder if they ...” or “how many ...” and I wouldn't try to find out. And then once – for some reason – likely the personal satisfaction of knowing I was right about something – I flicked off an email to a government department asking them for some small piece of information.

I had made OIA requests before: the background papers to something, an explanation of something I was particularly interested in for some specific purpose, or for work (and that's all an OIA request is: a request to the government for information) but this was altogether more frivilous. But nonetheless important. The Official Information Act replaced the Official Secrets Act (Muldoon did something right!) and ushered in a more open system, which I suspect has had an important impact on public decision-making and accountability (mostly for good, some for ill).

Every request for information from a state agency, however informal – written, via telephone, in person, or emailled – is an OIA request. And that state agency needs a good reason to tell you they won't release the information you seek.

Russell hasn't run a tell us your stories post in a while, so if my interests bore you (or even if they don't) feel free to chime in with your own OIA successes (or failures) in the comment thread. Following, are three of my most recent hits:

 

Why Don Brash might prefer to lead ACT than form a new party (and why The Mana Party faces a hard ask)

Each election year, the Electoral Commission starts a process by which it divides up a pot of public time (on TVNZ and National Radio) and money ($2.855m ex. GST) that registered political parties contesting the party vote get to spend on TV an radio advertising. It is the only money parties can spend on TV and radio advertising.

The process by which this money is allocated is convoluted. It starts many months before the election when parties (or prospective parties) are required to advise the Commission in writing that they wish to be considered. At the 2008 election, the Kiwi Part forgot, and so couldn't run TV and radio advertising.

And on 17 March this year, just before the 5pm deadline, I asked the Electoral Commission who had applied.

I had been hoping someone big had failed to apply. All the Electoral Commission is required to do is publicise the process in the New Zealand Gazette. As no-one would notice it there, it tends to also put out a press release. This year it didn't. The information is on its website, and for obvious reasons, I'll give you the url in full: http://www.elections.org.nz/study/news/2008-media-releases/ec-media-broadcasting-invite-parties-110208.html. Yep. They just edited the 2008 press release on their website, which is still there archived with the other media releases from 2008 - its webfeed didn't even update. I imagine the Commission must also have emailed the secretaries of the political parties (no missing parliamentary parties, for a start), but not everyone is there (the New Citizen Party, for example).

The Maori Party has applied, but Hone Harawira's Mana Party has not (Hone the candidate will be allowed radio and tv advertising as part of his $25k spending limit, but it won't be able to push a party vote and it won't be publicly funded).

And importantly, there is no new Don Brash Party.

This provides a pretty big incentive for Brash to want to lead ACT rather than to have gone it alone in a new vehicle. Even if he brings in lots of money in donations, unless he's behind the Coalition of New Zealanders, the New Zealand Sovereignty Party, the Pirate Party of New Zealand, or the World Peace Party (the four unregistered parties which did apply), that new party couldn't have advertised on TV or radio.

Another bonus, of course, is the level of funding. The Electoral Commission is hearing submissions from the parties today and tomorrow on the proper allocation between the parties. Based on past numbers, I estimate a new party will get $10k, and ACT will be up for $200k-$250k of public money to spend on broadcast advertising.

 

Just how many private prosecutions are there?

Until 2008, the Ministry of Justice didn't keep the numbers, but I suspect, with the changes to jury trials and everything else occuring (and perhaps Trevor Mallard's high profile private prosecution bringing it to the fore), they decided it was time to start.

The few people I've spoken about this to have assumed there would be at most a handful each year. I'd always thought that - with the crazies out there - there would be a reasonable number. I know of a few against a government officials, and imagined that there'd be less famous people subject to them as well. A prosecution is a pretty easy thing to commence, and the filing fee per charge is a little over $30.

So I asked. Of the charges that reach a conclusion in 2008, 61 of the 339,428 were private prosecutions. In 2009, it was 49 of the 369,826. There were no guilty pleas to a private prosecution in either year. In 2008, nine privately-laid charges went to trial, and in 2009, one did. None resulted in a finding of guilt.

These numbers, though small, may be among the reasons the Criminal Procedure makes laying a private prosecution a little harder (a registrar will be able to order that the charge go before a judge for the judge to look at the intended evidence and rule whether there is enough for it to even be laid).

 

Yellowcake importation: how the Government missed the boat

In June last year, TV3's Patrick Gower broke a story about the transhipment of yellowcake (partially-refined uranium ore) through New Zealand territorial waters (including its docking, but not landing) at the Port of Nelson.

Claire Browning, over at Pundit, looked into the legalities of it, and I chimed in with a know-it-all remark to the effect "what about Atomic Energy Act 1945?" (which I'd been blindsided with in some other Internet-based discussion). That Act requires the written approval of the Minister of Energy to importation of more than five pounds (yes, pounds) of uranium.

You can read up on the technical detail in the Pundit thread, but we had filed parallel OIA requests to different government departments about compliance with bits of the law, and I got pretty quickly to my answer: no permission had been given under the Atomic Energy Act for the shipments to pass through New Zealand.

The response to my OIA request suggested that the appropriate permissions had been granted by the Environmental Risk Management Authority under the Hazardous Substances and New Organisms Act 1996. I don't accept that's the end of it. I consider that the transhipments of yellowcake were "imported" - even if temporarily - so both bits of legislation will apply.

Complying with one piece of legislation dealing with a matter doesn't mean you can ignore the other bits. That you've obtain a consent under the Building Act to build a farm shed doesn't mean you won't also need a resource consent, or a water permit.

In the end, nothing will likely happen. But I don't rule out the possibility that next time this comes up, someone in the Ministry of Economic Development will suggest the  permissions be granted out of an abundance of caution, even though it may not be required...

I have posted on criminal procedure before.

 

The Criminal Procedure Bill – finally passed in 2009 – introduced a swathe of changes to New Zealand's criminal process. In the end, its most controversial aspect seemed to be the move away from oral depositions in indictable cases (disagreement over that is what saw the bill take so long in the House before its final passage), but it fundamentally altered a number of long-standing tenets of criminal procedure:

 

• It introduced the changes that allowed the prosecution of the Urewera Arms Act charges to be judge-alone despite the opposition of the defendants.
• It allowed for majority jury verdicts (11-1).
• It abolished the absolute rule against double jeopardy, allowing someone acquitted to be tried again if new and compelling evidence could be found (or if the acquittal was 'tainted').

 

It was also a drop in the ocean.

 

The Criminal Procedure (Reform and Modernisation) Bill is the wholesale change that has been mooted as needed for years. And in many respects, it is needed. Criminal procedure in New Zealand is a bit of a mess – amendment added to amendment with little if any overall coherence.

 

Intriguingly, some of the changes that received the most adverse comment when the bill was introduced weren't changes at all – the exceptions it includes to the rule against double jeopardy are simply being re-enacted in a different statute.

 

The bill was introduced in November last year, Select Committee submissions closed in February.

 

It is not right to say that the process of reaching the legislative stage has been short, the Ministry of Justice-led Criminal Procedure (Simplification) Project began in 2007. It – and the bill itself – draw on Law Commission recommendations going back more than a decade. But its reasonably long gestation, does not mean there are no concerns. It is a major reform, and soon-to-retire Minister of Justice Simon Power appears intent on its passage before the election.

 

You will appreciate soon why I begin with this quote from one of the Select Committee submissions on the bill:

 

The Bill will change significantly the system of criminal justice in New Zealand. It has been a matter of concern that the reform has been developed under such tight time constraints. ... Not all the matters we have raised have been addressed in the Bill.

 

The Ministry [of Justice] and the Law Commission have indicated that the Bill is to some extent still a work-in-progress and that they will be recommending further changes. Because we hope to have the opportunity to comment on the modifications as they develop, I propose now to refer to three matters only.

 

The first relates to the pre-trial case management provisions.... [We] met with the Ministry and the Law Commission recently to convey to them the difficulty which is being experienced in understanding exactly what is intended to be prescribed by way of pre-trial procedures. This portion of the Bill contains many gaps, apparently intended to be filled by rules. I should say at once that [our view] is that requirements for all significant steps in the pre-trial process should be contained in the legislation itself, and not in rules. What emerged from the discussion with officials was that they recognised that in the present state of the Bill it is impossible adequately to address the many issues arising. We were advised that it is intended to prepare a further draft for the consideration of the Committee in which it is hoped to cure the problems with the present draft.

 

The last Criminal Procedure Bill was introduced in June 2004. The Select Committee took over a year considering the bill, and 10 months after it reported, the Bill got its second reading. A further 10 months later, the Committee stage began, but this didn't finish for another 15 months. The final reading (and the Royal Assent) followed shortly after. Plenty of time for public and parliamentary debate.

 

But who was behind this politely-phrased-but-pointed criticism? It was not the Criminal Bar Association, the New Zealand Bar Association, nor the New Zealand Law Society – although all are critical of aspects of the bill.

 

The submission was made public by the Justice and Electoral Select Committee a week ago – and is available by now on Parliament's website. It is from the Chief Justice of New Zealand. Written after consultation with the Chief High Court Judge, and the President of the Court of Appeal, it represents the “view of the Judiciary”. To me, this is a pretty big deal.

 

And undue legislative haste is not the only matter of concern to our High Court judges. Chief Justice Elias continues:

 

The second matter concerns the requirement for notification of issues in dispute in advance of trial and also at the commencement of trial, together with related provisions providing for sanctions in the event of non-compliance both at sentence and by way of costs orders against defendants and their counsel. I have previously recorded my grave concern that these provisions are contrary to longstanding principle, being inconsistent with a defendant's right to have the prosecution prove its case beyond reasonable doubt, not being obliged to assist the prosecution by volunteering information. I appreciate that some defendants and counsel are guilty of abusing the system but, on balance, the judiciary is not persuaded that this provides good reason for the departure from basic principle which is involved in any requirement for advance disclosure of an intended defence.

 

In part my objection to the sanctions provisions has a similar basis but I should also record that the view of the judiciary is that the sanctions are likely to prove to be impracticable to apply in practice because of uncertainty about whether the abuse of the system is the fault of the defendant or of counsel. Judges will of course be inhibited in their inquiries by the existence of privilege for communications between counsel and client. All-in-all, then, the sanctions provisions are likely, except in comparatively rare cases, to be ineffective.

 

This criticism is levelled at one of the two biggest changes the law will introduce. This is a big deal. US Vice-President Joe Biden would probably go even further.

 

And the Chief Justice is not the only member of the judiciary who has submitted on the Criminal Procedure Bill. Our District Court Judges have a joint submission. So too do the Judges of the Youth Court, and the Royal Federation of Justices of the Peace. Judge David Harvey – a recognised expert on IT law – has a personal submission in respect of the changes to our suppression laws.

 

I lack the institutional knowledge to claim that this is unprecedented – Judges have certainly made select committee submissions before – sometimes controversially – but for Judges to collectively take so public a stance on such a hot-button topic seems of fundamental constitutional importance.

 

This is a matter which should receive more of a public airing than it has, so it only seems proper to attempt to provide a basic primer on the reforms that the Criminal Procedure (Reform and Modernisation) Bill introduces.

 

The Bill is over 500 pages. I have read it, but I’m not going to go into great detail here: feel free to ask questions about areas of concern. The bill would:

 

• Further restrict the right to a jury trial;
• Introduce a regime of pre-trial defence disclosure;
• Abolish the distinction between the indictable and summary jurisdiction;
• Creates four levels of criminal charges and provides for two basic types of criminal procedure – judge-alone trials, and jury trials;
• Reforms the laws around name suppression; and
• Changes the rules around holding trials in the absence of defendants.

 

Those are the big ones. But this is a wholesale overhaul of criminal procedure. The bill also:

 

• introduces greater levels of ‘case management’;
• allows for bail conditions to be imposed requiring defendants to follow procedural orders;
• abolishes depositions;
• largely abolishes the defence onus to prove proviso defences in summary prosecutions (it expressly keeps it for certain offences);
• legislates for the sentencing indications District Court judges just started informally providing;
• Changes the ‘appeal paths’ for different matters;
• extends the limitation period for minor offences (from six months to one year);
• allows for defence lawyers to be ordered to pay costs if they’re responsible for delays;
• adds an additional hurdle before private prosecutions can be commenced; and
• allows documents to be filed electronically

 

That's not all of course. I don’t doubt I’m missing some pretty big changes, but it’s a pretty big bill. And a lot of it is good. Criminal procedure is clunky, and in need of reform. The question for Parliament is whether this is the right reform in all respects. But let's get to the details:

 

The right to a jury trial

This is the big one. At present, anyone charged with an offence for which the maximum penalty is more than three months, can request a jury trial (there are two minor exceptions – summary offences act assault, and summary offences act assault on a police officer – both with six months' maximum); it’s in the Summary Proceedings Act 1957, and the New Zealand Bill of Rights Act 1990. It was carried over from the Acts these preceded. It is a right that has been around for a while.

 

And to get this bit of the law passed, they’re proposing to amend the Bill of Rights. This is only the second time that has happened (and the last time was entirely technical).

 

There's nothing magic in our Bill of Rights guarantee of jury trial at more than three months. It was 'only' set at three months because that's what the Summary Proceedings Act held was the case when the Bill of Rights was passed. The Canadian equivalent grants the right to a jury trial only “where the maximum punishment for the offence is imprisonment for five years or a more severe punishment .” Many countries just don't have jury trials. The European Convention on Human Rights doesn't even mention juries as they're completely foreign to the legal systems of much of Europe. The Universal Declaration of Rights and the International Covenant on Civil and Political Rights (on which our Bill of Rights is largely based) don't mention it either, for similar reasons.

 

But it still only seems right that changes to rights we quite carefully declared as fundamental human rights barely 20 years ago should only be made for very careful reasons. And the supposed cost savings don't cut it for me. The numbers vary around the country – I’m told that there are more jury trials in Hamilton than there are in the South Island – but most people charged with minor offences don't ask for a jury trial. Some of the 'minor' offences for which there are jury trials, are jury trial not because the defendant has requested it, but because the prosecution has.

 

And there are just some offences where the existence of the option of a jury trial performs an important societal function. Family First have, properly, given child discipline as an example. When smacking was outlawed, the police discretion not to prosecute was advanced as reason for ordinary parents not to be concerned. The existence of a jury to try offences of assault on a child is an excellent check on over-zealous prosecution.

 

And it's not the only offence. There are electoral offences – some punishable by fine only – which Parliament has repeatedly declared should always be heard by a jury, and those deliberate decisions are being overtaken by a simple one-size-fits-all every-offence-three-years-or-less must be heard by judge alone. If this law passes it will be possible for a member of Parliament (or a local body councillor) to lose their seat without being able to insist on a jury trial.

 

There is one offence with a maximum of only two years, that will still need to be heard by a jury (and a High Court jury at that) – infanticide. Parliament should recognise that this is not the only instance of supposedly minor offending where the input of a jury is welcome. If the we must further restrict the right to a jury trial, there should at least be a mechanism for a judge to order that an offence be tried by a jury even though it is punishable by imprisonment for three years or less.

 

Pre-trial defence notification of disputed issues

This is the other really big one. It's the one that has opponents saying this bill “reverses the onus of proof”, or “abolishes the right to silence”. It is, interestingly, not one which raised Bill of Rights concerns with the Attorney-General (the Bill did receive a “section 7 report” in respect of other provisions).

 

It basically requires that – pretty early on the process – a defendant goes through each of the elements of the offence and tell the court and prosecution which ones they accept, as well as any defences that they intend to argue apply. Saying “everything is denied” won't be acceptable, but denying everything point by point will be (which is largely why the Attorney-General wasn't concerned).

 

It is, as the Chief Justice notes, a pretty fundamental re-ordering of the criminal law. For the last several hundred years it was the job of prosecution to go to court and prove each of the elements of the charges, and disprove any possibly applicable defences.

 

If a defendant fails to do this adequately, the judge or jury is permitted to use that failure as evidence tending to infer guilt – it won't be enough by itself to convict, but it can add to the case.

 

Again, we are not world leaders in this. In Britain they go even further – your failure to tell the police of your defences when questioned can be used against you. And in many respects, the change won't be that big – it is quite common for defendants to be up front: yes I punched him, but it was self-defence, etc. And juries probably already use the fact that the defendant never mentioned in his police interview that he acted in self-defence, but is arguing it now as reason for rejecting that defence.

 

The pre-trial disclosure regime also includes a new prohibition on running inconsistent defences. I'm not sure this is necessarily that big a change either: the much derided “It wasn't me, but if it was it was self-defence” might be inconsistent, but is “I didn't assault the complainant, and the person who did did so in self-defence), and aren't they the same? I've only been on one, so I can't claim any special knowledge, but I imagine juries take a reasonably dim view of this practice anyway.

 

The abolition of the distinction between the summary and indictable jurisdiction

Our criminal law has two broad types of procedure at present: summary trials (judge alone), and indictable trials (generally heard by judge and jury). Offences are categorised as indictable crimes or summary offences by the law that creates them. There is cross-over: there is a list of indictable offences which the prosecution can file summarily; and a defendant can remove any matter filed summarily to the indictable jurisdiction, if the maximum penalty is greater than three months' imprisonment.

 

The distinction has effects beyond mere procedure. Only certain District Court judges can hear cases in the indictable jurisdiction. The sentencing jurisdiction in respect of charges in the summary jurisdiction is lower (maximum five years, no matter what the maximum for the offence actually is). Some crimes provide different penalties depending on whether the crime is charged indictably or summarily (sometimes the distinction is marked – there are offences in the Passports Act which carries a maximum penalty of 10 years' imprisonment in the indict jurisdiction and three months' imprisonment in the summary jurisdiction). The appeal paths are different (summary appeals go to the High Court, indictable appeals, even from the District Court in respect of identical charges, go to the Court of Appeal), and pre-trial appeals (e.g. about the admissibility of evidence) are allowed only in the indictable jurisdiction.

 

It can be a nightmare trying to work out what is going on. From now on, all criminal charges will be the same, although there will be some differences in procedure depending on whether there is a jury. I am not the only one who thinks the time has come for this change (I noted it was missing in my piece on the last bill), although it would have been nice if the six-month time limit in respect of most summary charges had remained.

 

Four categories of crimes

The Bill creates four categories of offences.

 

• Category 1 is offences for which prison is not available. These charges will be heard in the District Court, usually by justices of peace or community magistrates.
• Category 2 is offences where prison is available, but not more than three years (except infanticide). These must be heard by a judge without a jury in the District Court.
• Category 3 is offences punishable by more than three years, but which aren't in category 4. These will be judge alone unless the defendant request a jury (which they will be generally required to do when they plead not guilty). The trials will usually take place in the District Court, but a judge can order that a particular trial occur in the High Court.
• Category 4 is a list of offences which are deemed so serious (e.g. murder, attempted murder), or of a particular nature (corruption, various crimes arising out of international law), that they must be heard in the High Court and must be heard by a jury. The list of offences which must by tried in the High Court is significantly shorter than that which currently applies – and even some offences carrying a life sentence are now triable in the District Courts.

 

A large number of crimes which must at present always be heard by a jury (which is generally anything with a maximum sentence of 14 years or higher) can now be heard by judge alone. For example: rape, kidnapping, and even that one offence with a life sentence (engaging in piratical acts in a manner likely to endanger life).

 

Reform of suppression orders

This bill modernises our name suppression laws, making it harder for defendants to get name suppression, and increasing the penalties for breach of name suppression (currently fine-only, it is proposed that it will carry a prison term).

 

The changes with suppression rules have been a cause for concern as well, particularly in relation to the obligations imposed on ISPs (rather broadly defined) to take down material alleged to be in breach of suppression orders. This is the focus of a number of submissions the select committee received. It hasn't been a particular focus of mine – others seem to have covered this issue quite well, if somewhat under the radar, but this seems a clear case of over-reach. Hopefully, the select committee will take Judge Harvey's submission seriously. It is difficult to see how, in its present form, this does not represent an unreasonable limitation on freedom of expression.

 

Trials in the absence of the defendant

This – along with part of the re-enacted double jeopardy exclusions – presented the greatest concern to the Attorney-General in his Bill of Rights examination of the Bill.

 

Trials can now already occur if the defendant doesn't turn up and it is in the interests of justice for the trial to continue. The bill substantially broadens the circumstances in which this can occur. For category 2-4 offences if the Court is not satisfied that the defendant has a reasonable excuse for being absent it must proceed with the trial. If a defendant actually has a reasonable excuse (e.g. they were hit by bus on the way to Court), but the Court isn't aware of this (for example because the person was hit by a bus on the way to Court, so couldn't inform the Court that they were hit by a bus on the way to Court), that's too bad: their fundamental right to be present at their trial vanishes.

 

It does allow for defendants to apply for a re-hearing, but – for some reason not readily apparent – this does not apply to category 1 offence (which the judicial officer may hold in the absence of the defendant but isn't required to). Get hit by that bus on your way to defend a careless driving charge, and if the trial continues without you, you won't be able to say “Hey, I was hit by a bus, give me a new trial.”

 

Additionally, you can only get a re-hearing for category 2-4 offences if you can prove you've got a good chance of successfully defending the charge. Every has the right to attend their own trial. If you aren't there, and don't have a good excuse, then you've waived that right, but even the clearly guilty are entitled to their day in court. If you get hit by a bus and the courts don't find out about until a day or two into your coma, it is only right that the courts should wait. Delays are sometimes unavoidable, and the right to confront your accusers is about as fundamental as they get.

 

Other matters

You may notice, if you peruse the list of submitters, that I am not among them. This is the kind of bill I might be ordinarily be quite likely put a lengthy submission in for, but on this occasion I pooled resources with others and offered was one of the lead drafters on the submission of the New Zealand Law Society. Feel free to read its submission here: it certainly wasn't all mine (or even mostly mine), but the technical points I like to make get a good airing. And the one I point I suggested that was dropped was made in the submission of the District Court Judges.

 

I haven't the time to detail the technical concerns that the Law Society (and other submitters like the Criminal Bar Association and the New Zealand Bar Association) have raised, and there are a number of very serious ones (feel free to read these submissions too, or to ask question) but it also seems only right to include a few interesting points raised by some of the other judges in their submissions:

 

The Royal Foundation Of Justices makes the point that changing the Court hearing appeals from decisions of Justices of the Peace presiding in the District Court from a High Court Judge to a District Court judge, may impact on “the right ... to appeal according to law to a higher court” guaranteed in the New Zealand Bill of Rights Act 1990.

 

The Youth Court sensibly asks for a bit more jurisdiction. It currently has jurisdiction to conduct criminal trials for young persons for all offences excluding murder or manslaughter. But it lacks jurisdiction over young persons in respect of the enforcement of fines, and various minor traffic offences (e.g. careless driving) and things like alcohol by-law breaches, which must therefore be heard in District Courts. Not having practiced in the Youth Courts, I had no idea, but it seems kinda moronic.

 

But the final words go to our District Court judges on the proposal that judges and juries should be able to draw adverse inferences from defence failures to adequately notify issues in dispute:

 

... to allocate substantive disadvantage to as to one's guilt or innocence on the basis of a defect in procedure is conceptually incoherent, and therefore arbitrary. It is improper to conflate the essentially administrative character of Clause 64 with substantive disadvantage to a defendant's case. It is hard to imagine a hypothetical scenario where it would ever be appropriate to draw an adverse inference from a procedural failure to notify an issue in dispute.

 

Paraphrasing, with only very slight hyperbole: even if you pass this law, we are going to ignore it because it will be unjust, and we are telling you this in advance.

Take note, Parliament.

2011 is the year of the electoral system. For me, anyway. You should expect multiple posts and other content related to the referendum on the voting system. Hopefully I’ll deliver.

However, while I’m starting the year with an electoral topic, it’s one that is slightly more broad than the look at the mechanics of voting that is likely to consume much of my blogging for the year.

At Victoria University’s triennial post-election conference, a commenter from the floor accused (from memory) Guyon Espiner of running an “unconstitutional” poll, in which voters were asked whether the party that got the most votes had a right to form the Government. At the time, Chris Trotter had called TVNZ “treasonous” for running that poll. But I thought it an important question: however illegitimate a political scientist may consider such an objection, if people generally have the concern that it is somehow wrong for the party that gets the most votes in an election to miss out on government then it is important we know. That any backlash might have been ill conceived in the minds of some, would not have made it less of a backlash, and it could have had a profound impact on the New Zealand political landscape.

A pre-election New Zealand Herald editorial drew similar complaints (even from its opinion pages) when it suggested that a coalition of runners-up might lack legitimacy. On this matter at least, Herald editorial writers have been consistent,* in a 2005 editorial they welcomed New Zealand First’s and United Future’s pre-election promise to talk to the largest party first.

[* it was surprising searching the Herald archives for the MMP-related editorials – the number of positions the paper has taken on a referendum on MMP is confounding.]

I do not think it is as simple as either side seems to make out. Then again I rarely do.

Had Helen Clark’s government continued in office after the 2008 election, cobbling together a Government with Jim Anderton, New Zealand First, the Green Party, and an overhang-causing Māori Party, despite having fallen well behind John Key’s National Party, I don’t doubt that there would have been disquiet (even among Labour voters): support for Labour would likely have fallen, and support for MMP may well have fallen as well.

Of course, it didn’t happen. National didn’t need to rely on the “moral mandate” that John Key claimed pre-election would require the small parties to support a first-placed National Party, but had the numbers with ACT to command a majority in the House of Representatives. However, if New Zealand continues with the MMP voting system, there will be a time when the largest party does not govern, and a coalition of runners-up does. But I do not think that means that the dissatisfaction I consider would have arisen in 2008 will necessarily arise.

By 2008, the Labour Party had lost a fair amount of support. Much of the support it kept was less strident than it had been. It was seeking a fourth term in office. A post-election negotiation in which it brought together five other parties would have been seen by many as grasping: the last gasp efforts of a sore loser – even if the grouping commanded a majority in the House. This will not always be the case.

While some people – perhaps even the editorial-writers of the New Zealand Herald – may feel disquiet at any coalition of runners-up, if that coalition defeats a government, rather than prolongs it, I suspect the disquiet would be less, and less-widely shared.

In 2008, any coalition of runners-up would likely have brought it a number of political strands – from the Greens and Jim Anderton, to the Maori Party, and New Zealand First. The five-headed hydra, as John Key once termed the prospect, would have been disconcerting to many. But again, this is not how a coalition of runners-up will necessarily play out. A coalition of runners-up with a clear two-party grouping (for example, Labour and the Greens, or National with ACT) will be much more readily accepted than one that brings together multiple parties. A multi-headed beast seems much more opportunistic: politicians making shady deals to secure themselves power, without reference to the people. Constitutionally sound or not, a clear two-party group – ideally with meaningful crossover in their general policy direction – can much more easily claim the indirect public mandate needed for political legitimacy than can a politically-diverse multi-party grouping.

The closeness of the election will also play an important part in how a coalition of runners-up is received. New Zealanders’ supposedly innate sense of fairness will be less injured if the election result is National 41% + ACT 5% with Labour 38% + Greens 10% (and forming the government) than it will be if the result is National 48% against Labour 38% + Greens 10%. If the gap between first and second place is small, the idea that a coalition of runners-up may win the day is likely to be less offensive.

There will be those – like the speaker from the conference floor – who will find any objection to a coalition of runners-up to be constitutionally offensive: we don’t election a government, we elect a Parliament, and whoever can command a majority of the House is properly the Prime Minister – whether from the largest party, or merely the largest group of parties. However this ignores one of the salient points of the concern: the objection itself can be grounded in democracy

We may vote for a Parliament, but voters can hardly be blamed for thinking they are voting for a government when that it what parties are campaigning to be: “A National Government will cut taxes” – “A Labour Government will raise the minimum wage to $15” – “New Zealand First will ensure we only have high quality immigration” etc. Parties cannot expect to reap the benefits of campaigning for government, while absolving themselves of some of the consequences of doing so.

This is one of the clear advantages of first-past-the-post: under a system likely to produce a single party government with a parliamentary majority, a party can campaign on policies, and if elected, actually implement them. It wouldn’t quite fit on a bumper sticker, but a Kiwiblog comment I once read has stuck with me: we’ve always had coalitions, it’s just that they used to be called National and Labour, and they announced their policies before the election.

Some chasten the Labour Government of 1984-1987 as “undemocratic” for enacting substantial economic reforms without an electoral mandate. It is a fair challenge (muted somewhat by its re-election in 1987), but it’s also one that can be levelled against post-election negotiations; a coalition – especially a coalition of runners-up – is likely to adopt policies which one party campaigned on but the other did not, and will see one party abandon – at least temporarily – policies that may have been central campaign platforms. This is one factor that may have played a part in our move to personality politics: when even the largest party, in government, cannot be assured of support to enact its policy pledges, it justifiably becomes more reluctant to make such promises.

This brings me to what I consider will be the most important factor in shaping the public acceptance of a future coalition of runners-up: public mandate.

Voters might – collectively – choose a Parliament in which some five party grouping of runners-up meets after the election and agrees to coalition terms, but not a single one of those voters will have voted for that government. If a coalition of runners-up wants to been as legitimate by the public, it will actually need to seek a mandate from the public. If National and Act, or Labour and Greens, or whichever combination of parties some time in the future may arise, want to run a government from second place, without arousing public opposition, they would be well advised to campaign on it. Voters will be far more accepting of a coalition of runners-up if it is announced before the election, rather than after it.

Late last year, Australia held a federal election: the Labor Party was “first past the post”, with 38.99% of the first preference vote, while the Liberal Party got 30.46%, the Liberal National Party of Queensland got 9.12%, the National Party got 3.73%, and the Country Nationals got 0.31%. Ultimately, when all the preferences played out, Labor was slightly ahead on the (useful, but constitutionally-meaningless) two-party preferred vote (with 50.12%. to the Coalition’s 49.88%), but with equal representation (72 seats for Labor, 72 seats spread across the Coalition, and six spread across other parties and independents). But had the numbers changed slightly, and the Coalition been ahead, no-one would have seriously challenged its right to govern – for the simple reason is that the people who voted knew exactly what they would get.

If two (or more) parties campaign as a prospective coalition government, clearly articulating that they intend to seek a joint mandate from New Zealanders to form a government – which may be a coalition of runners-up – people won’t be too that miffed if they do it. What will annoy many New Zealanders is if they don’t really find out about it until after the election, and before the vote there is just some mealy-mouthed “we can work with the A, or B, or C, but we’re waiting for the people to have their say first”. Voters can only “have their say” and endorse (or reject) a coalition of runners-up – and can only give a mandate to a coalition of runners-up – if there is something akin to one actually running in the election. Politicians cannot claim a mandate to govern, if no-one thinks they got what they voted for.

The interplay between each of these factors will be important: the potential coalition of runners-up we saw at the 2008 election fared poorly across the spectrum. If the first coalition of runners-up sees the continuation of coalition not of runners-up, the first factor I raise may not be important. If some future Labour/Green coalition government goes into an election with Labour ahead of National, but and comes out with the Labour Party slightly behind National, but quite far ahead of them when the Green vote is accounted for, people may be more likely to see it as business as usual. But if a party goes into an election with one support arrangement and emerges with an entirely different one, it will justifiably be seen as more opportunistic.

And the extent to which some minor party is seen as calling the shots – playing the major parties off against each other – will factor: even John Key’s illusory moral mandate would only apply to a party that the public might see as capable of playing with both sides. If (as with the Green Party in its current form) the public has no doubt which major party a particular minor party will support, it will be more expected, and less controversial when they do.

Which of these factors will be in play and how this will all play out won’t be known until it happens. This is a mixed blessing – the longer it takes before we have a government headed by the party in second place, the more the idea that the largest party automatically has a right to govern might be bedded in. Conversely, the longer it takes, then the more likely the consensual negotiation-style of politics that MMP was supposed to introduce will have filtered through our politics.

The possibility of a coalition of runners-up is an inherent feature of the MMP voting system. How this affects the New Zealand political environment is something over which both political parties and voters have some control. We have seen that there can be price to pay for a small party that enters a coalition government; will a larger party pay a political price if it tries to govern from second place?

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, including Wellington, and Dunedin. The system used in the other elections is called first-past-the-post or block vote. Everyone will have a combination of the different elections that they can vote in, and you don't have to vote in all of them if you don't want to.

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 really George W. Bush after a name change, 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. 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!

Your voting papers have to be with your local returning officer by midday on Saturday October 9. If you’re posting them back, try to get in the post on or before October 6, to make sure there’s enough time. Otherwise 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.