Legal Beagle by Graeme Edgeler

There’s another news story about a citizen’s arrest of a tourist driver.

I got asked about citizen's arrests on Twitter, and thought people who don’t follow me on Twitter might also be interested in the answer.

Citizens' arrests do exist, and are lawful, but they’re limited, and they’ve become more limited recently. Police and the Courts don’t seem to be big fans. The Court of Appeal has noted that there isn’t a “power” of citizen’s arrest, but recognises (as I suppose they must) that the Crimes Act provides immunities for citizen’s arrests in certain circumstances. They have also been clear that the Crimes Act is it – whatever common law right of arrest citizens might have had in the past is gone – if your citizen’s arrest falls within the few sections of the Crimes Act covering arrests, it’s “justified”. If it doesn’t, you’re likely breaking the law.

Judges, like the Police, like to caution people not to “take the law into their own hands”, but the law, at least was written in a time when there was still some inkling that “Constables were neighbours doing full-time what every decent citizen could and would do when necessary,” and arrests aren’t supposed to be punishments, just a process by which people are brought before the Courts to have the law take its course.

But a few years back, that changed, and I’m not sure anyone noticed. I didn’t, and probably should have, so this is another mea culpa like the one I ran here, on an unnoticed change to the law of burglary.

The law used to recognise lawful citizens' arrests where you found a crime being committed at night, or where, during the day, you found someone committing an offence for which the maximum penalty is 3 years, or more.

But that was when the law recognised a subset of offences that were officially classed as “crimes” (as distinct from less serious “summary offences”). And the law no longer does that. As with the change to burglary (which used to be unlawful entry with intent to commit a crime), when we abolished the distinction between crimes and summary offences, we had to amend law around when citizens' arrests were lawful.

And we did that by drastically limiting them.

Where previously, a citizen’s arrest could be for any “crime” (if at night), or any crime with a maximum penalty of at least three years (if during the day), the law was changed to only cover offences against the Crimes Act. Now, that is most of the big ones, but it’s far from all serious crime.

And that means that offences against the Land Transport Act aren’t covered. So a news story about a citizen's arrest for dangerous driving (an offence with a maximum penalty of three month's imprisonment) is really a story about the possible kidnapping of a tourist.

It also means that offences against the International Crimes and International Criminal Court Act aren’t covered either, so probably don’t try to arrest Bush or Blair, or Obama if they visit any time soon.

But citizens' arrests are still a thing in New Zealand, a legislative remnant from a time when the law and concepts of community had a different meaning than the government might now wish. The law welcomes them, The Law™ may not. And despite what the name may lead you to think, in New Zealand at least, the immunity for conducting arrests is not limited to citizens.

So, if you’re not a police office, please don’t forcibly take someone’s car keys from them. Unless, you’re a Māori Warden, of course, and the driver is Māori, or is in the vicinity of a gathering of Māori  Then you can go right ahead.

I

On Thursday, Newsroom journalist Sam Sachdeva sent this tweet:

There have been a whopping 6254 written questions submitted to Govt ministers by the Nats in the last month; for comparison, there were 964 during the equivalent period after the 2014 election.

— Sam Sachdeva (@SamSachdevaNZ) November 24, 2017

I retweeted, and replied, and my mentions have now started to die down.

Written questions are not OIA requests. They’re more urgent: replies are expected within six working days, not 20, and the MPs who are asking them can seek answers, but not documents. And like the more well-known oral questions, each question is limited to one question, and answers are usually expected to be short. They’re a means for MPs, especially opposition MPs, but also local MPs, to quickly get information from Ministers to enable them to be able to do their jobs, representing the interests of their constituents, or holding the government to account, and, ideally not having to wait for the length of time an OIA usually takes.

You can’t use the written questions to get documents, but you can use them to ask for the names of documents: what reports has the Minister seen about school closures in the last month? With the answer, an MP can then follow up with an OIA request for reports of interest.

So, what questions have National MPs been asking?

Here’s one example:

8560 (2017). Hon Mark Mitchell to the Defence (Minister - Ron Mark) (16 Nov 2017): What meetings, if any, has the Minister attended between 26 October 2017 and 15 November 2017, including subject, attendees, and agenda items?

It’s the type of thing any beat reporter probably does once a month via the OIA: ask the Minister of Health, or Education, or Defence who they have met with in the last month (or in this case, the first 3 weeks or so since being a Minister), or what reports they’ve received in the last month, and then 20 working days later once you received the reply, put in further requests about reports or meetings of particular interest. It is an entirely reasonable question for the opposition defence spokesperson to ask: MPs have a heightened interest in this information, and allowing them the faster start on the question part is the reason Parliament has written questions.

The answer given was:

Hon Ron Mark (Defence (Minister - Ron Mark)) replied: I meet regularly, formally and informally, with officials and various stakeholders. A range of issues are discussed. If the Member would like to be more specific I will endeavour to answer the question.

This is not particularly helpful. But perhaps three weeks is too a long time? With meetings every day, the answer could be lengthy.

How did other MPs do?

Well, Simon Bridges, split them up a little more. He broke them down into weeks, asking questions like:

8449 (2017). Hon Simon Bridges to the Immigration (Associate Minister - Kris Faafoi) (16 Nov 2017): What meetings, if any, did the Minister attend between 26 October and 29 October inclusive, including subject, attendees and agenda items?

And:

8448 (2017). Hon Simon Bridges to the Immigration (Associate Minister - Kris Faafoi) (16 Nov 2017): What meetings, if any, did the Minister attend between 30 October and 05 November inclusive, including subject, attendees and agenda items?

These questions got the answers:

(to 8449) Hon Kris Faafoi (Immigration (Associate Minister - Kris Faafoi)) replied: I meet regularly, formally and informally, with officials and various stakeholders. A range of issues are discussed. If the Member would like to be more specific I will endeavour to answer the question.

(to 8448) Hon Kris Faafoi (Immigration (Associate Minister - Kris Faafoi)) replied: I meet regularly, formally and informally, with officials and various stakeholders. A range of issues are discussed. If the Member would like to be more specific I will endeavour to answer the question.

Well, they say a week is a long time in politics, so maybe this too is too long, even when the week is short because for most of it, you weren’t yet a Minister). So, at the express request of the Ministers, National MPs have been limiting their requests further:

Chris Bishop asked about a single day:

8393 (2017). Chris Bishop to the Police (Minister - Stuart Nash) (16 Nov 2017): Did the Minister have any meetings in his capacity as Minister of Police on October 27, if so, what people and organisations did he meet with on that day, where were the meetings held and what were the main items of business?

The reply:

Hon Stuart Nash (Police (Minister - Stuart Nash)) replied: I meet regularly, formally and informally, with officials and various stakeholders. A range of issues are discussed. If the Member would like to be more specific I will endeavour to answer the question.

 Bishop too, was asked by the Minister to be more specific, Ministers are refusing to say what they did even on a single day. Bishop has followed up, with a few more questions:

11778 (2017). Chris Bishop to the Minister of Police (22 Nov 2017): Did the Minister have any meetings in his capacity as Minister of Police on October 27 between 8 and 9am, if so, what people and organisations did he meet with at that time; where were the meetings held and what were the main items of business?

11779 (2017). Chris Bishop to the Minister of Police (22 Nov 2017): Did the Minister have any meetings in his capacity as Minister of Police on October 27 between 9 and 10am, if so, what people and organisations did he meet with at that time; where were the meetings held and what were the main items of business?

The replies are due by Thursday. Hopefully Bishop, and the other MPs (all of whom seem to have been specifically invited by Ministers to ask more granular question) will have the answers to which they are entitled.

So far, Bishop’s hour-by-hour requests only cover the first two days the Minister of Police was in office, although the essentially rejected day-by-day requests covered several weeks. The Minister should consider himself lucky. Far from being aghast that National MPs have asked “a whopping 6254 written questions”, I am instead surprised by their forbearance. They are being denied information they ought to have. By rights, they should have asked more.

II

A wonderful piece of journalism I’ve come back to several times is this article by David Simon, now reprinted on his website. He describes:

...police commanders who felt it was their duty to demonstrate that crime never occurred in their precincts, desk sergeants who believed that they had a right to arrest and detain citizens without reporting it and, of course, homicide detectives and patrolmen who, when it suited them, argued convincingly that to provide the basic details of any incident might lead to the escape of some heinous felon. Everyone had very good reasons for why nearly every fact about a crime should go unreported.

In response to such flummery, I had in my wallet, next to my Baltimore Sun press pass, a business card for Chief Judge Robert F. Sweeney of the Maryland District Court, with his home phone number on the back. When confronted with a desk sergeant or police spokesman convinced that the public had no right to know who had shot whom in the 1400 block of North Bentalou Street, I would dial the judge.

And then I would stand, secretly delighted, as yet another police officer learned not only the fundamentals of Maryland’s public information law, but the fact that as custodian of public records, he needed to kick out the face sheet of any incident report and open his arrest log to immediate inspection. There are civil penalties for refusing to do so, the judge would assure him. And as chief judge of the District Court, he would declare, I may well invoke said penalties if you go further down this path.

Delays of even 24 hours? Nope, not acceptable. Requiring written notification from the newspaper? No, the judge would explain. Even ordinary citizens have a right to those reports. And woe to any fool who tried to suggest to His Honor that he would need a 30-day state Public Information Act request for something as basic as a face sheet or an arrest log.

“What do you need the thirty days for?” the judge once asked a police spokesman on speakerphone.

“We may need to redact sensitive information,” the spokesman offered.

“You can’t redact anything. Do you hear me? Everything in an initial incident report is public. If the report has been filed by the officer, then give it to the reporter tonight or face contempt charges tomorrow.”

The late Judge Sweeney, who’d been named to his post in the early 1970s, when newspapers were challenging the Nixonian model of imperial governance, kept this up until 1996, when he retired. I have few heroes left, but he still qualifies.

I don’t know a lot about freedom of information law in Maryland. I suspect it is imperfect, but the idea that there are distinct public records laws which make a range of information automatically obtainable is eye-opening. I thought we had (in theory, if not always practice) a pretty good freedom of information law, and while there’s information in New Zealand that we have a right of access to: the names and home addresses of directors of companies via the Companies Register, for example, the idea that that category can include to arrest logs and the facing sheets of reports of police shootings is kind of mind-blowing.

Basic ministerial diaries should be in the same category. MPs shouldn’t even have to ask for this material. It should be released automatically each week.

Ministers have only themselves to blame that National MPs have had to ask questions about what they’ve been doing each week, each day and each hour. It’s because they haven’t told them (and us) already.

Information about who a Minister has met, or what reports they have received are matters of public interest. While the explicit content  of some meetings, or some briefings  may be properly withheld, the existence of the meetings themselves will not, just like the existence of arrests and shootings in Baltimore.

Clare Curran has recently been appointed Minister for Open Government. She should take the opportunity to propose to Cabinet the automatic release of ministerial schedules.

III

The law of armed conflict recognises the concept of a “reprisal”. It allows, in certain circumstances, one party to a conflict to deliberately commit what might otherwise be a breach of the laws and customs of war, in response to breaches by another belligerent. For example, if your enemy commits the war crime of deliberately misusing vehicles carrying the Red Cross or Red Crescent emblem as cover for an attack, it may be permissible for you, in the right circumstances, the undertake what would otherwise be the war crime of attacking vehicles protected by a Red Cross or Red Crescent.

There are limits. You cannot carry out reprisals on civilians, or on prisoners of war, and caution is required, lest the reprisal cause further breaches of the laws and customs of war.

So too it is with Parliament. The rules allow a lot of things that custom and practice dictate should not be done in ordinary circumstances. An MP will sometimes take a point of order they know they will lose, but one of these customs is that members should not take wholly frivolous points of order.

On a Members' day on 6 April 2005, the Government deliberately refused to send a Minister to House when it resumed after the dinner break, causing the House to be inquorate (Standing Orders require a minister to be present), causing the loss of 2.5 hours of members time, preventing the opposition from using the one day it has every two sitting weeks to advance its business and not government business. They had their reasons (leader of the House Michael Cullen was annoyed opposition members had denied leave to extend the sitting during the dinner break and then rise early to allow all government members could attend a State Dinner for the President of Indonesia), but he still shouldn’t have done it. The following day, the opposition took about 3o minutes before question time on points of order litigating the issue, and then after question time, opposition MPs took turns seeking leave to table individual standing orders until the Government relented and allowed the debate on the first reading of the Green Party’s Employment Relations (Flexible Working Hours) Amendment Bill to be finished, before going to Government business. Opposition MPs should not make frivolous points of order, but the Government shouldn’t deliberately collapse the House on a members day, so the reprisal was proportionate and comity resumed.

The same is true here. While there is no limit on the number of written questions that the opposition can ask, the opposition should not ask 6254 written questions in a month. But the reason this is so is that they shouldn’t have to.

The asking of a large number of very specific questions is an entirely proportional response to the refusal of Ministers to seriously answer reasonable questions. Hopefully this reprisal again has its intended effect, and Ministers should realise that they were wrong to have refused to seriously answer the more general questions National MPs had asked.

During the election campaign, bloggers, tweeters, economists and journalists rightly called out Steven Joyce’s false claims of there being an $11.7b hole in Labour’s fiscal plan. There was a right and a wrong, and no serious debate about which was which.

On that occasion, National was wrong. On this occasion, National is right. There is no justification for the Government’s refusal to seriously respond to National MP’s questions about what they are doing in office, and every justification for National’s response. This is especially so when it is over material that should simply be made public in the general course. National should get its answers, and the public should get to see what the Government is doing. If ministers aren’t prepared for that sort of openness, they shouldn’t be ministers. Over to you, Clare Curran.

National’s new shadow leader of the House, Simon Bridges, is in the Herald this morning, expressing concern about select committee assignments for the new Parliament (or rather subject select committee assignments – this is only about the 12 select committees with subject areas that scrutinised legislation etc – it doesn’t cover the other committees).

Bridges’ comments are ridiculously over-the-top – this is in no way any sort of attack on democracy – but I am still somewhat sympathetic to National’s view. The House of Representatives does its job best when the opposition is best able to hold the Government to account. Yes, National agreed with the unanimous recommendation of the Standing Orders Committee, but it was only a recommendation. The new Standing orders approved in August do not specify how many Select Committee spots there should be, only that membership of Select Committees must be proportional to the overall membership of the House.

The Review of Standing Orders could have recommended putting the overall number of spaces in subject select committees into Standing Orders. It didn’t. It recommended that overall membership of subject select committees should be 96 MPs, but left the final decision up to the Business Committee at the start of the new Parliament. It is the decision (or non-decision) of the Business Committee that is up for debate now, not changes to standing orders agreed last term.

The question for the Business Commission should be: what overall level of Select Committee membership will best enable to House to fulfil its multiple roles in the New Zealand political system: scrutinising legislation, holding the government to account, and representing the views of the New Zealanders? The answer may be different depending on the makeup of the government, and of the opposition.

Now, the Standing Orders Committee recognised that its recommendation would mean that some MPs outside Government would not get to sit on select committees, and had further recommendations about how this could be managed, including the possibility of split membership. It may be that there could be more formality around this than anticipated, but the question still to be answered is: what is best for this Parliament?

Now, I had my fun with Simon Bridges of Twitter this morning, pointing out that not only was he on the Standing Orders Committee than made this recommendation, as leader of the House, he actually moved that the House adopt the changes to Standing Orders that it recommended. But he rightly pointed out that only overall membership of subject select committees isn’t actually in Standing Orders.

National, through Simon Bridges’ ridiculous, over-the-top musings have stated their view that overall membership of subject select committee should be 108, with the 12 subject select committees having an average of 9 MPs on them. We are yet to hear from other parties what the overall member they consider will best enable the House to fulfil its constitutional role. It may be that they have good arguments for why, in the present circumstances, the number is 96. This might, for example, be around the number of Government MPs who would have to sit on more than two committees (Cabinet Ministers don’t sit on subject select committees).

There will also be spaces on Parliament’s other committees, filled outside this overall proportional allocation: these include the Standing Orders Committee, the Officers of Parliament Committee, and the Privileges Committee, however these Committees don’t have a regular work programme, and only meet when required. There is also the Security and Intelligence Committee, which is kind of, but also kind of not, a select committee, and the Regulations Review Committee, which does have regular work, but it has a fundamentally different role than the 12 (formerly 13) subject select committees being discusses here.

But National has raised a concern that it thinks it will be better placed to fulfil its role as the opposition (and Parliament its role to hold the government to account) if overall membership of subject select committees would 108 (an average of 9 MPs across the 12 committees). This would still leave National with some MPs who would not get a position on a subject select committee, but not nearly 11.

Of course, we should recognise that if Labour and the Greens were in opposition, the recommendation of the Standing Orders Committee would mean that they would have some MPs who would miss out on spots on Subject Select Committees, but the question for the Business Committee remains: what will best serve this Parliament?

Decisions of the business committee require “near unanimity” to have effect. Naturally, the business committee hasn’t met yet (we don’t even have MPs until tomorrow!), but there have no doubt been informal discussions. National appears to be concerned that the Business Committee will be unable to reach near unanimity, and the Government will instead create membership of select committees by pushing through a motion in the House with a bare majority, over its opposition.

That sometimes happens. The Government has a right to govern, and National is not helping its case by accusing a Government simply following a recommendation that National supported when in Government of seeking to undermine democracy.

But this should not be a question of National only having themselves to blame, or National perhaps foolishly not considering what this would mean to them if they ended up in opposition. The question of the overall membership of subject Select Committees was left to the new Parliament to determine, and the question should be: Will the role of the House, or of the opposition, be diminished if the recommendation is followed?

I do not know the answer, but if the Government wants to assert that things will be fine with 96 places for MPs on subject select committees, it should state its case.

As I now do each election (2014, 2011, 2008), below, the results of the 2017 general election if there was no threshold:

National – 54
ACT – 1

New Zealand First – 9
TOP - 3
Māori Party – 1

Labour – 44
The Greens – 8

(total 120 MPs)

Obviously, voters would behave differently if there was no threshold, but these numbers show that even with the strong disincentive that the threshold gives to people considering voting for minor parties, there are four MPs worth of voters who have been told that their views and interests are unworthy of being represented in Parliament.

The 2017 General Election has a preliminary result.

The preliminary result is an unofficial count of all the ordinary votes cast at the election: votes cast on the day by people whose name appears on the printed electoral roll who voted at a voting booth designated for their electorate (including during advance voting)

The official count is still to happen. They're more careful with it, with a lot of cross-checking. The official count also includes the counting of special votes. Special votes are:

• votes cast overseas;
• votes cast by the telephone dictation servce;
• votes cast on polling day by people voting at a voting place not desginated to serve their electorate;
• votes cast by people who enrolled after the printed electoral roll was closed (including during advance voting);
• votes cast by people on the unpublished roll; and
• votes cast by people who think they’re enroled to vote, but aren’t (these votes don’t count).

This election there are a lot of special votes. The most ever. The Electoral Commission estimate is that there are 384,072 special votes, which is around 15% of the total.

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

That said, we don't have anything better to go one, so using the same rudimentary method I used last time (assuming the variance in special votes is the same size as it was at the 2014 election), along with the Electoral Commission’s estimate of the number of special votes at this election, I predict the following final result:

	Preliminary		Projected
	Vote share	Seats	Vote share	Seats
National	46.03%	58	44.86%	56
Labour	35.79%	45	36.55%	46
New Zealand First	7.51%	9	7.32%	9
The Greens	5.85%	7	6.32%	8
TOP	2.21%	0	2.35%	0
Maori Party	1.08%	0	1.12%	0
ACT	0.51%	1	0.51%	1

In 2014, National did 17% worse on special votes than they did with ordinary votes, while the Greens did 53% better. This was enough to see National lose one seat after special votes were counted, and the Greens to pick one up. Labour did 14% better on special votes in 2014, than they did with ordinary votes. This meant they closed the gap with National a little, but that wasn't enough for them to take a seat off another seat off them.

This time, assuming (perhaps foolishly) that the same basic numbers apply, and with the larger number of Special Votes still to be counted, both Labour and the Greens are within striking distance of of taking a list seat from National. If all parties do as comparatively well, or as comparatively poorly, on the special votes as they did in 2014, then two of National's list MPs, Agnes Loheni and Nicola Willis, would be out of Parliament (to enter if there are future list National Party list MP retirements), and both the Labour Party's Angie Warren-Clark Helen White, and the Green Party's Golriz Ghahraman would find themselves as MPs when the official result is announced in two weeks.