Legal Beagle by Graeme Edgeler

The Press Council has released a decision on Hayden Donnell’s article on The Spinoff about racism on Radio Sport. As part of that article, Donnell embedded a tweet of his in which he asserted that sports commentator Miles Davis, “must have set a record for 'public homophobia without getting fired'.”

Davis complained about this, saying it was wrong and offensive in the articles assertion that he was homophobic.

The Press Council upheld his complaint.

The Press Council does not actually say which of its principles the article breached. This would have been helpful. First, the Press Council Principles, unlike the standards issued by the Broadcasting Standards Authority, don’t actually include a rule against being offensive. Second, the basis for the finding is not that Mr Davis was not homophobic, but that the “article did not include any evidence of Davis being homophobic”. It is not immediately apparent which principle requires an article to contain evidence for factual claims, as against merely having factual claims, but there seems to be one.

During the complaints process, The Spinoff relied on both the evidence it had included in the article, and also a range of other material it said showed what it had written was true. Davis disputed that the examples included in the article supported a claim of homophobia, and also said that nor did the additional examples provided subsequent to publication.

The Press Council agreed with the first part: the particular examples used in the article did not prove homophobia, but it disagreed with the second part. It would not have found that The Spinoff’s article was inaccurate and offensive had those other examples been used in the article.

This is just weird. The Press Council have said that for a claim to be accurate, it must not only be accurate, and provably so, it must be both accurate and supported by evidence that is included in the article itself. I find myself wondering what other true claims carried in news media will now be inaccurate and offensive because, while being true, and while the person making the claim has evidence they are true, not all of that evidence is included in the article itself.

How do you prove that John Key is the Prime Minister? I’m not sure, but the Press Council may well consider it inaccurate (and offensive!) to say so in an article without offering proof.

I’m big on making sure voters know how to make the best use of their votes at elections, so last week I went along to the Transparency International Mayoral Forum.

After short-opening statements, the candidates were asked about governance, and avoiding corruption, and then they opened up for questions from the floor. I got to ask the last question of the evening, and think the answers are worth reporting. My question was along the lines:

Wellington uses the STV voting system, which means voters get to rank the candidates. I assume you all want my first preference, whom do you recommend I should give my second preference?

I got the biggest laugh I’ve had in years, and while Helene Ritchie, Andy Foster and Justin Lester all quickly declined to answer, both Nicola Young and Nick Leggett did (Jo Couglan had already left to another engagement).

Nicola, who’d used her speech to talk about support for openness, said she felt that she should be open with voters, and recommended that people give their second preference to Nick Leggett.

I’m not sure Nick was expecting that, but he replied that he returned the favour. I had thought this was intended as semi-humorous, but he confirmed on Twitter the following day that Nicola Young has his second preference.

I welcome this sort of candour from politicians. I’ll be voting for everyone, although in what order, I’m still not sure, but this sort of information from candidates is very helpful in understanding where everyone fits.

In Australian elections, which also allow voters to rank candidates, parties will formally declare which candidates from which other parties should get later preferences. People even stand outside voting places handing out “how to vote” cards on behalf of candidates, listing how to vote for all the candidates in rank order if you support a particular candidate.

I will never know a lot about candidates for local office when casting my vote, so information like this is useful. I perhaps also could have helpfully asked whom they would recommend I rank last :-).

This type of information is likely to give voters a better understanding of the interactions and alliances, as well the real views of candidates on issues important to them; much more than stock answers about the importance of consensus or transparency ever will.

While there will be reasons to vote for different candidates at general elections, generally the most important and useful information for most voters is the name of the party they’re standing for. In local elections, where parties have less involvement, this is a good proxy. And if I do decide I like the policies of a particular mayoral candidate, well, they’re probably in a better position than I am to know which candidate other than them is closest to their positions, and thus deserving of my back up vote.

It would be especially helpful to have mayoral voting recommendation from candidates for local council seats, who get even less media scrutiny. If you’re heading along to a candidates forum this year, I encourage you to ask the candidates their recommendations for the other races.

The Long Long Holiday

On a wholly unrelated note, I recently finished watching The Long Long Holiday on Netflix, and cannot recommend it more highly. It’s a 10-episode French cartoon (English dubbing optional, and oddly grouped as five episodes on Netflix) about two children who find themselves on holiday with their grandparents in Normandy when World War II begins. It’s clearly aimed at families, and is never particularly graphic, but it doesn’t shy away from the realities of the Nazi occupation. I’m deliberately avoiding spoilers, but it also has the best use of La Marseillaise since Casablanca.

Carter/Docherty Day!

And finally: Happy Carter/Docherty Day everyone!

National MP Nuk Korako has the luck of the draw earlier this week, when his ‘lost luggage’ member’s bill was drawn from the biscuit tin of democracy that the Office of the Clerk keeps to conduct the member’s bill ballot.

Bills, particularly amendment bills, can be hard to grasp. You might have to know what the old law says, or what a bunch of other laws say, before you really understand them. And with member’s bills, there’s no requirement or practice of providing the background detail that explains what they actually do. Andrew Geddis has already written about Nuk Korako’s Airport Authorities (Publicising Lost Property Sales) Amendment Bill, but I thought I’d look particularly at what this bill does and does not do.

Losing your luggage can be annoying. Isn’t it good to have a law to help passengers connect with the carry-on they forget to take with them from the plane, or the luggage that gets mis-directed?

It might be, but that’s not what this law is about. This law is about airports, not airlines.

If an airline sends you to Wellington, and your luggage to Christchurch, that’s got nothing to do with an Airport Authority. That’s the airline, and this bill does nothing to change that.

It’s in the airport authorities act, not the civil aviation act, so that probably makes sense.

What does the Airport Authorities Act require an airport to do with lost property?

Nothing. The Act imposes no obligations on Airport Authorities over lost property.

So this amendment bill will change that, and impose new requirements on airports when dealing with lost property?

No. The Act, even if amended by this bill, would impose no requirements on airport authorities in relation to lost property.

But isn’t this law change required so that airport authorities don’t have to advertise lost property in the newspaper, and can instead advertise it on their websites?

No. Airport authorities are not required to advertise lost property in newspapers. They are also not prohibited from advertising lost property on the Internet.

But wouldn’t it be a good idea for airport authorities to advertise lost property on their websites?

It might, but again, the amendment does not require this.

And second, no airport authority actually has a website. Most airports seem to, but airport authorities are different. They’re local authorities that deal with some of the regulatory stuff around airports.

What does the law actually change?

It amends the bylaw making powers of airport authorities.

So instead of imposing rules around lost property in the control of Airport Authorities in the Airport Authorites Act, those rules are contained in bylaws?

No. The bylaws made under this section are not rules imposed on Airport Authorities, but are rules made by airport authorities themselves.

But they’re required to have by-laws about lost property?

No. Airport Authorities are allowed to have rules around lost property, but they are not required to. Some do, and some don’t.

But those that do have bylaws have rules that require them to advertise lost property in newspapers?

No. Among all the Airport Authorities that have published bylaws that relate to lost property, none of them has bylaws that require them to notify lost property in newspapers.

Then how does this law or these bylaws help connect people with their lost property?

They don’t. The act, and the bylaws, and the amendments proposed to them have nothing to do with connecting people with their lost property. If an airport authority chooses to pass a bylaw about lost property, that bylaw must require the airport to keep that property (unless it’s perishable or valueless) for three months, but that’s it.

Most airports probably have lost property departments. They probably try to connect people with their stuff, but the act does not require them to do any of that, and the amendment isn’t proposing to change that.

But aren’t there requirements to advertise lost property somewhere to let people know what’s been found?

No. The act does provide that airport authorities can (if they want to) make bylaws around advertising, but these have nothing to do with connecting people with their lost property.

Well, what are the advertising requirements about?

Again, there aren’t requirements about advertising in the act, and there is no requirement to have a bylaw that relates to advertising. Instead what the act does is provide that, if, an airport authority chooses to have a bylaw relating to lost property, and chooses to have that bylaw provide that the airport authority gets to sell lost property it finds, it must advertise, in a local newspaper, the auction that it will use to sell that property.

But wouldn’t an advertisement that some property is going to be auctioned help someone looking for something know that it is missing, and where they could find it?

It might, but the advertising is about the holding of the auction, even when all of this applies, there is no requirement to actually list what found property is to be sold off. The requirements are about the advertising of the auction itself.

Well, if it’s not about connecting people with their property, what is it about?

It’s an anti-corruption measure, designed to protect the public interest. Airport Authorities are local authorites, and if they are going to be selling stuff, we want them be able to get as much money for it as possible. If the auctions aren’t advertised, then someone involved in the process could let a mate know when the auction was, and they could buy up what’s for sale cheaply when no-one else turned up. They’d get a bargain, and the airport authority would get ripped off.

The section is largely based on the old Police Act, dealing with the auctioning of lost property handed in to police. Police auctions have always had to be publicised as well, because if they weren’t taxpayers would miss out. The money from Airport Authority auctions doesn’t go directly to the government in the same way as money from police auctions does, but the principle is similar.

So this law change is about changing the way lost property auctions can be advertised by airport authorities, and allowing them to advertise them on a website, instead of in newspapers?

No. Airport authorities are already allowed to advertise their lost property auctions on websites.

Well, what does the bill change?

It removes the requirement of any airport authority that chooses to have a bylaw dealing with auctions of lost property, to include in that bylaw a requirement for advertising in the auction in local papers, and instead allows them to advertise those auctions “in a fair and reasonable manner”. This might include advertising in a local newspaper, but it might not.

Who gets the money from these auctions lost property?

The airport authority gets to keep it.

So, Nuk Korako’s bill is not about reuniting people with their lost property, but about making it slightly easier for airport authorities to sell that lost property, keeping the profit?

Bingo.

Campaigning in this year’s local body elections is well under way. Voting papers will be mailed to you in mid-September (if you enrol by Friday 12 August these will be sent to you automatically; you can still enrol after that – right up until the day before voting papers have to be back – but voting will involve a little extra effort).

I’ve published a version of this post in advance of each of the last two local body elections, so you may have read something like it before. Because there’s usually a lot of misinformation about how the STV voting system works (like this article on Stuff, by someone who ought to know better), I thought I’d try to get in early this time.

If you’ve any other questions about how voting will work (or about how block-vote works, which is the system used in most of our local body elections), feel free to ask in the comments.

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

What is STV?

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

What elections use STV?

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

How do you vote in an STV election?

You rank the candidates with numbers. Put a 1 next to the candidate you most want to win, a 2 next to your next favourite, then a 3 for the 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 does not 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 you don’t rank everyone. If the election comes down to race between people you haven’t ranked, you won’t help determine the result, but if you don’t mind which of them is elected, this shouldn’t bother you too much.

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

Yes.

And this can’t cause any damage?

Well, you could be wrong :-)

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

An informed vote is always a good idea.

Even for the District Health Board?

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

Seriously though, how does the counting work?

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

First, all the number 1’s are counted.

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

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

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

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

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

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

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

Is that all?

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

Don’t forget to vote!

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

Your voting papers will be sent to you in the week of 16-21 September, and have to be with your local returning officer by midday on Saturday October 8. If you’re posting them back, try to get them in the post on or before October 5, to make sure there’s enough time. If you’re getting near the date, it might be safer to drop them off in person at the council, or somewhere like a public library. Your council website – and voting papers – should have all the information you need to do this.

Last year, the Law Foundation made a $10,000 research grant to former Prime Minister Sir Geoffrey Palmer to write about a New Zealand Constitution. But, after more than one recent government investigation ended in only recommendations to keep discussion alive, he’s going a step further: with Andrew Butler, a partner at law firm Russell McVeagh, he’s working on a draft constitution for Aotearoa New Zealand.

At a public talk at Victoria University Law School last week, Sir Geoffrey outlined his progress. The draft is still unfinished, but the intention is to publish a book (written to be read by the general public, not lawyers or policy wonks) containing the first draft of a constitution, with commentary.

It’s a rather ambitious task.  They intend to then set up a website where people can make comment, before expressing their final view on what should be in The Constitution of Aotearoa New Zealand next year.

After Sir Geoffrey’s talk was announced, and I’d RSVPed, I thought about how one would go about writing a New Zealand Constitution in the current environment (ie without some constitutional crisis or political change necessitating it). My thought was to have a bunch of legal experts draft a no-change constitution: a constitution all written in one place, but with no differences from the current law not otherwise inherent in the fact it’s a written constitution. And then, when they’re all agreed that it makes no changes, every else gets to argue about what we should add to it, or change in it, so that we get what we want, while being less likely to stuff things up.

Well, Sir Geoffrey is a little more ambitious. He’s made changes to our constitutional structure in the past, and would apparently like to do it again.

He didn’t announce many specifics, but the proposal is for a supreme law constitution. His current view is that the Courts should be able to strike down legislation that is inconsistent with the constitution, but that Parliament could vote to override a court decision striking down a law with a 75% supermajority (which is the same level he suggests for amendments to the constitution, consistent with the bits of the Electoral Act already entrenched).

It’s apparently very much a work in progress, and the speech was light on specifics. However, we may be able to glean some insight into where his proposal will lead from the description given with Law Foundation grant:

It is intended to write it from the position of New Zealand as a republic, will provide a higher law constitution with increased power to the courts and a number of other more minor reforms, but at its core it aims to preserve the essence of our Westminster style democracy, strengthen the rule of law, protect property rights and guard against our democratic freedoms being whittled away gradually. It is innovative in providing constitutional protection for institutions that maintain transparency and integrity in government.

The bit about New Zealand being a republic was unmentioned in the speech, and I followed up whether that was still the intention. I’m told I’ll have to wait for an answer to that one; my guess, based on nothing in particular, is that it may be there as an option, but might not be intergral - given the option, I reckon Palmer would favour a written Constitution, even without abandoning the Monarchy. I suspect a right to property will be there, and based on the speech, I think the intention to enshrine democracy is likely to extend beyond voting in national elections, to include a right to local democracy as well, perhaps brought on in part by the Government’s actions in Canterbury.

Later this year isn’t that long to wait, but Sir Geoffrey did read out an outline of what was currently (or at least, recently, as he noted it was already out of date).

• Preamble
• The State
• The Head of State
• The Government
• Parliament and the Legislature
• The Judiciary
• Law-Making
• Finance and Taxation
• International Relations
• Defence and Security
• The Treaty of Waitangi
• The Bill of Rights
• Other State Institutions
• Integrity and Transparency
• Adoption and Amendment
• Emergencies and suspension of parts of the Constitution
• Transitional provisions

Though there have been several attempts to get a conversation started, and this one, firmly intending to have an actual draft constitution, may be more likely than most to have some continuing effect. It’s always useful to have something sitting around, if we suddenly find we need it it a hurry (it seems to have worked for the Rogernomes). Sir Geoffrey isn’t expecting change soon. He suggests the adoption of a Constitution might not happen for 20 years, which, if we are to have one, seems like a reasonable time scale, given there isn’t a pressing need, and he realises he’s going to have to convince ordinary New Zealanders, not politicians.