Legal Beagle by Graeme Edgeler

4

Voting disqualifications (updated)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

15

A submission on the Electoral (Integrity) Amendment bill

I'm no fan of the Electoral (Integrity) Amendment Bill, the law that seeks to reinstate anti-"Waka-jumping" laws. And I wrote a submission saying so, to Justice Committee. A bunch of people have already made submissions on the objections in principle to the law, so rather than repeat them, I decided to focus my submission on changes that could make the bill slightly less worse than it otherwise might be. If you are interested, it follows below:

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The Justice Committee
Electoral (Integrity) Amendment Bill
Submission of Graeme Edgeler

Introduction

My name is Graeme Edgeler. I am a Wellington barrister with a strong interest in electoral law.

I thank the Committee for the opportunity to present a written submission on the Electoral (Integrity) Amendment Bill.

I consider that the bill is unnecessary, and harmful. It would move the political system toward one where greater power rests with parties, and party leaders, and less power with individual MPs

New Zealand already has the strongest party system of a Westminster-style democracy. Without other changes to our law (for example around the threshold), any move in this direction is likely to risk the integrity of the system, rather than increase it.

Individual MPs should be empowered to hold their parties to account, on behalf of the voters who put them into Parliament. It is not clear why, for example, an MP going against their party when it votes for legislation it campaigned against at an election should lose their seat because they threaten the integrity of the electoral system, while the MPs who go against their pre-election promises are not seen as threatening “electoral integrity”.

I know there is some support and also some disquiet among members of the Committee to the bill. I am aware that the Committee has received other submissions that address the argument at length, so, while I recommend that it not pass, I also offer some options for the Committee to consider to ameliorate some aspects of the Bill.

Legislation Expiry

The previous version of the Electoral (Integrity) Act included an expiry date. This did not necessarily mean that the law would lapse, but had the effect of requiring Parliament to reconsider whether it continued to be needed. If there is some reluctance to make either no change, or a permanent change without broader buy-in (I am aware that New Zealand First, for example, considers that controversial changes to electoral law should require either broad buy-in, or support at a referendum), then this could be considered.

I submit that the Committee should consider removing the sections dealing with expulsions by parties, and limit the effect of the Bill to resignations from parties. The 1999 Electoral (Integrity) Amendment Bill (before it was amended by the Select Committee) originally only applied only to resignations, and did not also apply to expulsions. The committee might consider again limiting it in that way. It would deal with the worst of the current system (MPs being elected under one banner, and then defecting), while not substantially increasing the risks of harm to MPs’ free speech etc. that will arise with the threat of expulsion from Parliament.

Expulsions

If the committee does consider that the law should cover not just resignations, but also cover expulsions, it should consider whether the balance is correctly struck.

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

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

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

To ensure that the vote fairly reflects individual caucus member’s true positions, I would also suggest that the vote to expel should be required to be a secret ballot of the caucus (in much the same way that this is required before a strike).

Component Parties

Members will recall the Alliance Party. It has been some time since the party was successful in electoral politics, but at the first MMP election, it fielded candidates from the four separately-registered “component parties”: The NewLabour Party, the Green Party, Mana Motuhake and The Democrats, and had 13 elected.

The Alliance formed in part because of the very high 5% threshold that was chosen when we adopted MMP. The form of relationship it had is encouraged by the Electoral Act, which provides for an explicit process by which two or more registered parties can be recognised as “component parties” of a larger party to give them a realistic chance to pass the 5% threshold.

Although there are currently no parties with no component parties, I am concerned that the processes in the Act are inconsistent with the sections of the Electoral Act that create and recognise component parties, do not adequately protect the position of parties that are component parties.

People voted for the Alliance, for example, knowing that they were voting to ensure NewLabour MPs were in Parliament, as well as Green MPs, etc. Standing Order 34(2)(c) even allows that MPs who are members of component parties to be recognised as such for parliamentary purposes. Allowing a party to expel a member of a component party, to be replaced by someone from a different party is likely to distort proportionality, not enhance it.

Similarly, when the Green MPs who were elected as part of the Alliance in 1996 announced the Green Party would be running as a separate party, outside of the Alliance umbrella party, at the 1999 election, it could not fairly be said they distorted the proportionality of Parliament (people voted for the party knowing the Green Party was a component party of the Alliance, and knowing that MPs who were Green Party members would be elected). Given this, it would be wrong to allow such a situation to result in an expulsion from Parliament for distorting the proportionality of the House.

In light of this, consideration should be given to amending the bill to take account of the position of component parties, so that the bill does not inadvertently provide a mechanism to increase disproportionality.

Requirement for Parties to Adopt Rules

New section 55D provides when an MP is expelled by a caucus, the letter sent by the Party Leader must advise that, if the party imposes rules on the expulsion of an MP, they have been complied with. As drafted, a party is not necessarily required to have such rules, but those parties that do are required to follow them.

I submit that parties should be required to have such rules. This is in line with other parts of the Electoral Act, which require parties to have (i) membership rules (ii) rules around candidate selection.

This would not require parties to adopt any particular sort of rule (the rules adopted might simply state that there are no requirements beyond those contained in the Electoral Act), but it would aid in clarity of what is required, particularly in combination with the following submission. Political parties should be permitted a wide latitude in how they run their affairs, but this bill effectively gives parties the power to overrule the election result, ejecting from Parliament someone whom the voters have elected. In the same we that we require them to have rules around selection of candidates, I do not think to great an imposition, to require them to declare in advance how they will do it.

Public Notification of Bills

Section 71B of the Electoral Act gives statutory recognition to party rules already, and in particular requires registered parties to supply the Electoral Commission with copies of the rules governing membership of the party and the rules governing the selection of candidates (as both list candidates and constituency candidates).

I submit that if party rules around the expulsion of MPs is to have statutory recognition, as the bill proposes, these rules should be required to be supplied to the Electoral Commission in the same way. This would not place the Electoral Commission in the position of mediating disputes (which they don’t do either over membership, or candidate selection), but would provide some clarity to the process for all concerned, and allow voters to take account of the rules when making deciding how to vote.

Conclusion

I oppose the bill, and encourage the Committee to reject it, however, if the Committee is minded to support the Bill back to the House, I encourage it to adopt some or all of the amendments I propose above:

  • Consider whether the bill should have an expiry, by which Parliament will have to reconsider whether it continues to be necessary;
  • Change the bill so that it only cover resignations, not expulsions;
  • Require near unanimity of a party caucus before expulsion can occur (or certainly caucus support substantially higher than that presently in the bill);
  • Provide that a caucus vote must be conducted by secret ballot;
  • Provide recognition of the place of component parties;
  • Require parties to adopt rules around expulsion of MPs, in the same way that parties are required to have rules around membership, and selection of candidates;
  • Require parties to publicly notify their rules for expulsion of MPs by providing them to the Electoral Commission.

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

Graeme Edgeler

15

A Small Official Information Act Fix

A few days ago, TVNZ journalist Andrea Vance tweeted an Official Information Act response she had received from David Parker, the Attorney-General. Vance had sought information about workload and funding pressures on Crown Solicitors, something he had apparently taken an interest in while in opposition.

The response received advised that “the Attorney-General is not subject to the OIA in the performance of their Law Officer functions.” This is footnoted to an Ombudsman opinion that does not appear to be online. I’ve no reason to doubt it exists, although I think the argument is weak. I’m aware of another Ombudsman’s opinion (that is publicly available) that says that the Solicitor-General in performing her Law Officer functions is outside the OIA because the Office of Solicitor-General is not listed in the Ombudsman Act, or in the OIA, which I can accept. I’m not sure that it’s as clear for the Attorney-General. Ministers of the Crown are subject to the OIA in the performance of their ministerial functions, and I would have said that Attorney-General was exercising a ministerial function when acting as a Law Officer of the Crown.

That said, even the exclusion of the Solicitor-General for the OIA is a pretty big oversight. I can’t imagine it was a conscious decision, but even if it was, it was wrong. The Solicitor-General is the Executive’s chief legal officer, and exercises all sorts of government power. There’s probably a lot of information that the Solicitor-General has that shouldn’t be made public, but that can be protected by the other grounds in the OIA, like legal professional privilege. There is no reason for a blanket exclusion. So, with that in mind, I have drafted a short bill. It adds a short subparagraph to the definition of official information to provide that information held by the Attorney-General and Solicitor-General in the exercise of their function as Law Officers of the Crown is official information.

If any member of Parliament who likes transparency and openness in Government is looking for a simple members’ bill, they’re more than welcome to it.

16

If Australia Jumped off a Cliff…; or How not to waste millions of taxpayer dollars

There is a good way to conduct government-initiated referendum, and there are bad ways to conduct them.

During the course of this Parliament, New Zealand will conduct one or perhaps two, referendums – one of the legalisation of cannabis use (a result of the Green Party’s confidence and supply agreement with the Labour Party), and perhaps another on euthanasia. Unfortunately, indications are not promising that the process for either these referendums will be good.

During September, October and November last year Australia conducted a referendum. We should learn from its mistake. Australia’s nationwide “plebiscite” on the legalisation of same sex marriage, in an exceedingly useful example of how not to conduct a public referendum.

How it went is no longer breaking news: a sizeable majority of the voting public indicated support, and then the Federal Parliament passed a law providing for it.

The marriage vote asked Australia voters to give a yes or no answer to the question:

“Should the law be changed to allow same-sex couples to marry?”

This is a perfectly reasonable question to ask to get a general sense of public feeling about a general issue, but is a stupid question to ask when wanting guidance on what a law should say.

How should you vote if you wanted politicians yet-to-consider a same-sex marriage bill to know that you would support changing the law to allow people of the same sex to marry, but would object to a law which might require churches to marry people in breach of church doctrine?

How should you vote if you wanted politicians to know that you thought people of the same sex should be able to marry, but would find offensive a system where a whole new law was created, setting up a separate same-sex marriage register, with separate same-sex marriage celebrants wholly separate from marriage celebrants?

You couldn’t. Holding a vote in advance of a bill being written, like they did in Australia, makes that impossible. You are being asked to vote in a vacuum – discussing the general idea of something that, in its final form, you may find you oppose.

This is a trap we should aim to avoid in both the cannabis referendum, and the potential referendum on euthanasia that New Zealand First is pushing for (and which David Seymour, the sponsor of the euthanasia bill, says he supports holding).

Because the intricacies of a same-sex marriage law are simple compared to either the regulation of cannabis or the regulation of euthanasia. These topics are much more wide-ranging, with vastly different possible systems of regulation.

And when people being asked to vote on something like this, people should know what trade-offs will be made.

Will euthanasia be limited to the terminally ill? Will it need a judge to sign off a decision to offer aid in dying? What will a doctor who refuses to take part have to do, if anything? Will advance directives be able to be enforced, or will applications have to be made by people who are conscious?

Will it be legal to sell cannabis, or just to possess and use it? Will people be able to grow their own, or will they have to buy it from specific government licenced dealers? Will you be able to smoke it outside in public places, like tobacco, or will that be prohibited, like the public consumption of alcohol often is? How will it be taxed? Will cannabis advertising and sponsorship be banned? Will councils have a role in regulating where it can be sold, or used? Will they be able to set up enforceable non-cannabis zones (like they can with alcohol), or only unenforced zones (like non-smoking areas)?

etc. etc.

These are important questions, and for a lot of people, the answers to some of these questions will be decisive in how they cast their votes. So voters should know what the proposal actually involves.

A bill should be introduced. The House should debate it, it should receive full select committee consideration, advice should be sought, and submissions received. If MPs consider that broader public input into the detailed policy questions is needed, they, or the Government, should conduct market research: legitimate opinion polls and/or focus groups about specifics. They should then form their view as to exactly the regulatory framework they think is necessary, and put it in legislative form. And if it’s considered important for voters to have a direct say, at that point voters should get their opportunity to say no.

This legislative process is happening with the euthanasia law (select committee submissions are due by 20 February). But the early indications are that it will not happen on the question of recreational cannabis use. There, to date anyway, the suggestion seems to be there should be a general non-binding referendum, asking a general question.

If that is the plan, MPs should just not waste our time. If they want a general insight into public views on the general topic of cannabis legislation, they should simply engage Colmar Brunton to undertake a large opinion poll on the topic.

There is a legitimate debate about what is, and what is not, an appropriate topic to hold a public referendum over. The basic answer – those things where we do not MPs making the decision for us – only restates the question. New Zealand First has the view that certain issues, those commonly called conscience votes, should be for voters. This is far from a universally held opinion, but there is a broad consistency to it, and it fits within the mandate theory of democracy. In an MMP voting system, we vote for political parties that put forward policies. They don’t get to enact them all unless they get a majority, but they are broadly expected not to act inconsistently with their promises. But conscience votes are matters on which political parties tend not to have policies. For such policies to have a mandate, it must come from elsewhere.

There are answers to this concern, but the objection I usually hear to holding referendums on such issues – that they are blunt instruments, reducing complex policy questions to yes/no questions – doesn’t apply to a referendum held after the process I describe above.

When you get to the end of the legislative process, legislators face the same basic yes/no question: given what this bill contains, should it become law?

In the New Zealand House of Representatives, it’s asked in a form like “the question is that the motion be agreed to. Those of that opinion will say ‘aye’. The contrary, ‘no’.” There isn’t any nuance in this. If the motion that the bill be read a third time is agreed to, the bill is read a third time, and will become law. If the motion is rejected, the bill fails. It is highly unusual for a bill to get this far and fail. A bill that won’t become law is usually rejected at an earlier stage, but the principle is the same.

This is the approach we used in the 1993 referendum on the electoral system. It is the system we used in the 1997 referendum on compulsory retirement savings, and the system we used for the 2015 and 2016 flag referendums. It contrasts with the system we use in citizens-initiated referendums.

Unfortunately, while the legislative process underway for the euthanasia legislation should work through the detail of the scheme, any referendum seems likely to be an afterthought. The bill itself doesn’t provide for a referendum, and New Zealand First, and bill sponsor David Seymour say the proposal for a referendum will not be introduced until the committee of the whole. This is the second to last stage, well after any opportunity for public input. This is a problem. Electoral legislation should not be passed without the possibility for public input.

The obvious solution would a Referendum Act, a permanent law that, like the Electoral Act, would provide for the basic rules for a referendum any time Parliament wanted to hold one, but we don’t have one, so every time Parliament wants to hold a referendum they have to pass a law not only setting out the question, and the consequences, but also the rules around advertising, and counting the votes, and laws providing for secrecy, and prohibiting bribery, etc. They might get this right on the first attempt, but draft laws are easy things to stuff up, and public scrutiny of legislation is important.

Fortunately, it’s not too late. The euthanasia law is still early in its early legislative process, and the cannabis referendum isn’t set up yet. Hopefully, we can avoid not only the mistakes Australia made, but also new ones of our own.

14

On citizen’s arrests; or yet another law change I missed when Parliament created the Criminal Procedure Act

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.