Legal Beagle by Graeme Edgeler

It being National Library week,* I thought this might be timely to post.

I’ve decided Auckland City Libraries are quite cool. First, they came up in Prime TV’s fantastic documentary series “The Naughty Bits” (its three episodes are all on-line here, and well worth watching), where they and Dylan Horrocks (whom I’ve also decided is cool), were discussing Alan Moore’s graphic novel Lost Girls, and concerns it might be seen as promoting the sexual exploitation of children (update: since the show was made, Lost Girls was rated R18 and is back in the library, although I’m not sure if the missing volumes have been replaced).

Then, there was their response to the petition asking them to withdraw from circulation the book To Train Up a Child (which has, I think probably reasonably fairly, been described as a manual for child abuse). The petition was a bit confusing, but the response was still strong:

There’s debate at the moment about a book we have in our collections called ‘To train up a child’ by Michael and Debi Pearl. We acknowledge this book is divisive and people may find its content offensive.

At Auckland Libraries our collections development policy defines our commitment to the principle of freedom of access to information and states that the library will not suppress or remove material on the grounds that it gives offence. 

I greatly admire the position libraries take on issues like this. The response from Auckland Library is exactly the position I want a library to take, and I’m glad they see their role as supporting freedom of expression.

I’ve had some push back on this view. And there are different debates to have on this issue. When you try to defend the libraries decision, you're asked to defend the book, which is obviously harder.

There is the debate on whether the book should be banned. On free speech issues generally, and censorship issues more specifically, I am about as staunchly in favour of freedom of expression as it is possible to be. I am not sure there is any text I would censor, in the way we use that word in New Zealand. Lots of expression is illegal, but far less is censored. I agree that death threats should be illegal, but they aren’t censored: it’s not illegal to possess a written death threat, in the sense that it is illegal to possess Postal 2: Share The Pain, A Guide to Growing Marijuana in Cool Climates, Critic Te Arohi 23 of 2005, or an image of child sexual exploitation.

But that’s not a discussion about the role of libraries, that's a discussion of the proper test Parliament should set for the Censor to apply when considering banning material.

And the debate about whether the purchase of this book was an appropriate use of ratepayers money is a different one too. The book had apparently been borrowed 10 times before the current uproar, what might be the standard metric appears to have been met by Auckland Libraries. But even a library system the size of the Auckland City Libraries cannot buy every book, so the proper use of its limited collections budget is a matter properly for debate. I don’t think anyone can seriously suggest a library could have an obligation to buy this book to make it available to the public.

But that too is a different debate, because for good or ill, Auckland Libraries has already bought this book, so we can’t talk about saving ratepayers money. Instead we are discussing what a library should do, when they find themselves in this situation. In short, what is the role of a library? Should a responsible custodian of a public information resource make this book available to the public, knowing what it contains?

I’ve long thought the role of libraries was to do just that, and am pleased, but not really surprised that they think so too. I’m sure this has not always been the case, but there has been discussion within the library community, and they are about as staunch on censorship as its possible to be.

In 2002 the Council of the Library and Information Association New Zealand Aotearoa adopted a Statement on Intellectual Freedom. I was going to quote from it, but I think I’m just going to quote it:

1. Society creates libraries as institutions to store and make available knowledge, information, and opinions and to facilitate the enjoyment of learning and creativity in every field. Every library has a responsibility to provide its users with the widest range of information materials possible, which are within the constraints of its budget, relevant to its users' requirements, and which represent the spectrum of points of view on the topic held in the community.

2. Librarians have a responsibility to ensure that the selection and availability of information materials is governed solely by professional considerations. In so doing, they should neither promote nor suppress opinions and beliefs expressed in the materials with which they deal. These professional considerations include the use of knowledge, skills, collection management experience, and collection development policies to make decisions on what is selected for the library collection.

3. No information resources should be excluded from libraries because of the opinions they express; nor because of who the author is; nor on the grounds of the political, social, moral or other views of their author.

4. No library materials should be censored, restricted, removed from libraries, or have access denied to them because of partisan or doctrinal disapproval or pressure. This includes access to web-based information resources.

5. Librarians should resist all attempts at censorship, except where that censorship is required by law. Librarians are free to request, and to lobby for, the repeal of laws, which compromise the principles set out in this statement.

While I’m particularly drawn to the last couple of paragraphs, I think the whole thing is pretty wonderful.

The same sentiment is contained in the International Federation of Library Associations and Institutions’ Glasgow Declaration on Libraries, Information Services and Intellectual Freedom:

Libraries and information services contribute to the development and maintenance of intellectual freedom and help to safeguard democratic values and universal civil rights. Consequently, they are committed to offering their clients access to relevant resources and services without restriction and to opposing any form of censorship.

Auckland Libraries incorporates these principles into their collections policy, and I think they're doing great work in meeting the standards they've set themselves. They don't see themselves as a censor, and are going to hold to that whatever the pressure: if you want censorship, go to the Office of Film and Literature Classification, not a library. These considerations form part of Auckland Libraries' Collection Development Policy, which incorporates both the LIANZA Statement on Intellectual Freedom and the LIANZA Statement on Access to Information.

The usual course of my blog posts is a correction, or a complaint, or some observation about how some law works, or doesn’t. Today, during National Library week*, I just thought I’d say thank you to Auckland Libraries. I think about freedom of expression a lot, and also about particular parts of it, lots about media freedom, about access to justice, and freedom from censorship, even occasionally about academic freedom, but I’ve never really thought about intellectual freedom, and now – because you’re doing such a great job upholding it – I will.

(*in America, maybe we should have one too!)

Teina Pora is innocent.

The Government, having considered the matter, apparently agrees he should not be re-tried. It is not clear whether the Government agrees he is innocent, but I suspect they don’t.

With no re-trial ordered, Pora’s involvement with the criminal justice system over Susan Burdett’s rape and murder are over, and his lawyers will likely now raise the possibility of seeking compensation for the time he ought not to have spent in prison.

I’ve been meaning to write about compensation for miscarriages of justice for some time. One of Pora’s lawyers, Malcolm Birdling, wrote his doctoral thesis on the correction of miscarriages of justice, and was rather scathing. But the broader discussion will have to wait for a day when I have a little more time.

Cabinet has issued guidelines about who qualifies for compensation under its ‘ex gratia’ scheme. Before anyone gets compensation for having served prison time for a wrongful conviction, they have to convince the Government they are probably innocent. The Government will consider claims from people who fall outside the guidelines, but imposes an additional hurdle before they will qualify.

People who want to claim for a wrongful conviction, but who fall outside the guidelines must prove not only that it is more likely than not that they’re innocent, they must also show that there are “exceptional circumstances”, which the government says is a very high test. An example of an exceptional circumstance that has been accepted in the past is that the person isn’t just probably innocent, but is innocent beyond reasonable doubt; others include serious wrongdoing by authorities, or police failing to investigate claims of innocence during their investigation.

David Bain was acquitted at trial, so his claim for compensation falls outside the guidelines, which makes his claim a lot harder. Justice Binnie looked at his case, and determined there were exceptional circumstances (in part, for example, because police had destroyed evidence following the conviction, making challenging the conviction more difficult), but the government was a little snippy about his views on that.

So what of Teina Pora? Earlier today, Canterbury University’s dean of law Chris Gallavan was on Morning Report, and had the following exchange with Susie Ferguson:

SF: Now, not having an automatic retrial in this case, will this work in Teina Pora’s favour for compensation?

CG: It does, actually, and if anybody looks up the Cabinet Manual, the guidelines to Cabinet on the granting of this compensation, they’ll see that the first criteria is actually squarely in the Teina Pora situation, that there’s either been a pardon or that the conviction’s been quashed on appeal without an order for a retrial, which is exactly what’s happened here.

The Minister of Justice, Amy Adams, has apparently made similar statements, as have Otago University’s Marcelo Rodriguez-Ferrere, Ingrid Squire (another of Teina Pora’s lawyers), and, as it happens, me in a tweet or three the night the Privy Council’s decision was released. Now that I’ve actually checked, it seems we are all wrong.

The place to look is, as Chris Gallavan suggests, the Cabinet guidelines, and I copy the appropriate bit below:

1. The category of claimants who shall be eligible to receive compensation or ex gratia payment in respect of being wrongly convicted of offences (qualifying persons) is limited to those who:

(a) have served all or part of a sentence of imprisonment; and either

I. have had their convictions quashed on appeal, without order of retrial, in the High Court (summary convictions); Court of Appeal (including references under section 406 of the Crimes Act 1961); or Courts Martial Appeal Court, or

II. have received a free pardon under section 407 of the Crimes Act 1961; and

(b) are alive at the time of the application.

The requirement that the convictions be quashed on appeal, without order of retrial is there. But the eagle-eyed among you will notice that a person only falls within the guidelines if the conviction is quashed in the High Court, Court of Appeal, or Courts Martial Appeal Court. And Teina Pora’s conviction was not quashed in the High Court, Court of Appeal, or Courts Martial Appeal Court.

The guidelines do not mention the Privy Council. I think the distinction that the guidelines make is a stupid one, especially in light of the creation of the Supreme Court, which is also not mentioned. But the distinction is nonetheless there, and any claim that may be made by Teina Pora falls outside the guidelines, and thus may require proof of exceptional circumstances.

I am hopeful that pragmatism may prevail (especially in light of Amy Adams’ comments), but given the New Zealand Government’s historical practice when it comes to correcting miscarriages of justice, I’m not sure that hope is well-placed.

How much might Teina Pora get? The guidelines set a base figure of about $100,000 per year of incarceration, which can be increased in "truly exceptional" circumstances. As for how much Pora should get, well, if the headline the day after compensation announced couldn’t be mistaken for a news story about a powerball jackpot, I reckon the Government will have secured a bargain.

The preliminary results of the Northland by-election were released last night. A few overseas votes will be winging their way back to New Zealand, and checks will be made over the eligibility of those who cast special votes, but Winston Peters has a lead of over 4000 votes, so the official vote isn’t going to change the outcome.

This means the National Party is down one on their election result: an electorate MP has resigned, and been replaced by someone from another party. Just like when this happened in the Te Tai Tokerau by-election, and the Te Tai Hauauru by-election, there’s no way for the party that previously held the seat to get a replacement except by winning.

There has been some dispute about what the law provides in these circumstances. I am entirely confident. I believe the Electoral Commission is confident also.

Winston Peters is currently an MP, a member of Parliament because his name was sufficiently high on New Zealand First list that he got elected with the help of New Zealand First’s 208,300 voters.

Like all MPs, Peters can resign. If he resigns, then section 55 of the Electoral Act says there is ‘vacancy’. If that vacancy arises before the writ is returned then that vacancy will have been caused by the vacating of a “seat of a member elected as a consequence of inclusion of the member’s name on a list”. I do not think it can be suggested that if Peters writes a letter of resignation to the Speaker, the Speaker can do anything other than accept it, and declare a seat vacant, as has happened every other time a list MP has resigned. The Governor-General will then order the Electoral Commission to undertake the process to replace him with someone else on New Zealand First’s list.

We shouldn’t assume that Ria Bond (or anyone else from the New Zealand First list) will become an MP next week. Winston Peters probably wants to be in the House next week, and the official count isn’t due for another 10 days. After that, there’s 3 working day period in which a judicial recount can be requested, and assuming that doesn’t happen, the ‘return of the writ’, officially declaring Winston Peters to be the member of Parliament for Northland, will happen on Tuesday 14 April.

Before then, we all assume Winston Peters will resign. But Peters is not required to resign, and has said he may not. The Electoral Act does not automatically declare a vacancy if a person who is already an MP wins a by-election. He can, if he wants, simply leave Parliament one MP down on its election result total. Philip Lyth has an interesting post here asking whether it is possible that if Winston declined to resign, could the Speaker, with or without assistance from the Privileges Committee, force a vacancy in his list seat? Philip asks:

But what if the Speaker considers that a list vacancy has arisen?  This is an area where the law is unclear.

I disagree, While I still consider the result would be the same, I would have agreed with Philip (and David McGee, writing in 2005) that there was room for debate, but for one matter: late last year, Parliament enacted the Parliamentary Privileges Act. Section 23 of that act makes clear that the Electoral Act is the only mechanism by which an MPs seat can become vacant:

23 Members' seats become vacant only as provided in Electoral Act 1993

(1) The House has no power to make a member's seat become vacant by expelling the member (whether to discipline or punish the member, to protect the House by removing an unfit member, or for any reason or purpose) from membership of the House.

(2) Subsection (1) overrides any law to the contrary.

A list MP winning a by-election is something we’ve discussed before, but it’s never actually happened so it will be interesting to see how it plays out. However, if Winston does resign, then the identity of the person who will replace him is, at least officially, out of his hands. The law requires the Electoral Commission to ask the Party Secretary if the next person on the list remains a paid up party member, and if so, requires them to ask that that person whether they agree to become an MP (if not, the same process is followed with the person next on the list). The New Zealand First board doesn’t officially have a say, but there is nothing to stop it asking a particular potential replacement to say no to the Electoral Commission. This has happened before: it took some cajoling, but ultimately both Mike Ward, and Catherine Delahunty agreed to step aside to allow Russel Norman to become a list MP with the resignation of Nándor Tánczos.

I agree with Philip that some clarity in the law would be nice. In light of the Parliamentary Privilege Act, I don't think there is debate about Peters' options now, but if Peters were to decline to resign, I'm not certain what would happen if he was, for example, hit by a bus later in the year: would any future vacancy after Winston is formally elected as MP for Northland result only in a by-election in Northland, or both a by-election, and a list replacement?

I blogged on the government's quiet moves to "expand" the International Travel perk for former* MPs (and their spouses) on Friday. [*if they were elected before the 1999 election]. I tweeted my post on Saturday, and got some traction - enough, it seems for a couple of MPs to indicate they didn't support the change (which, as the changes are in a statutes amendment bill, would be more than enough to defeat it). I will note at this point, that while the changes do increase the current value of the perk, that is only over its value since 1 July 2014, the changes return it to the value it held before that time. However, this does not necessarily mean the changes were an oversight of which MPs were unaware when they passed the law - they language the MPs themselves inserted is very clear.

The MPs who interacted with my tweets indicated they had no idea what it was about, so I wondered whether the Government had gone through the usual process of advising other parties of their proposals (this is the process for statutes amendment bills because, with one vote being enough to defeat any amendment, the Government's wasting its time if they don't get that support in advance). I've filed an Official Information Act request seeking the background to this change, including over what information was provided to other parties, but Annette King tweeted again today:

@philiplyth @norightturnnz @GraemeEdgeler seen blog now. Yes consultation with all parties.AirNZ amend is of mistake in 2014 Act. Was AirNZ

— Annette King. (@annetterongotai) March 14, 2015

It's nice to have this confirmed, as I couldn't see why the government would not have done it, but it remains to be seen how clear the government was about the financial cost of the change when it consulted.

Was this a mistake? I’m not sure that matters, because even if it is a simple oversight, that does not mean that it is appropriate to fix it by a supplementary order paper to a statutes amendment bill released on a Thursday, to be adopted in a single debate the following Tuesday. But let’s look at this anyway.

Parliament passes a lot of law, and occasionally, words get drafted into those laws without MPs or officials realising exactly what they mean. Many of the other laws amended in Statutes Amendment Bills over the years have been fixed such mistakes. Is this one of them?

Recall that the law we are discussing will replace the words “the lowest-cost” with the words “an Air New Zealand”. So how did the words “the lowest-cost” get in there, and should other words have been written there instead?

Importantly, the rules that the law was replacing (.pdf), did set the maximum international travel perk by reference to the cost of an Air New Zealand business class fare:

If the new law was intended to just adopt the old rules in a different place, then there was a mistake.

There was no reference to Air New Zealand in the initial version of the Members of Parliament (Remuneration and Services) Bill, but, perhaps more importantly, nor did it include the word “lowest-cost”.

And that is why we can be confident this was not a simple oversight by our MPs – the word “lowest-cost” is there because it was added by the select committee:

It was a deliberate decision. I don’t think it can be seriously suggested that, in adding the word “lowest-cost” MPs on the Government Administration Committee were doing anything other than knowingly setting the maximum international travel perk except by reference to the lowest-cost business class airfare. And we have a pretty good insight into why this change was made: the Cabinet Office advised them to.

With ministerial agreement, officials from Government Departments provide government advice to select committees considering bills. When considering the Members of Parliament (Remuneration and Services) Bill, the Government Administration Committee got advice from quite a few; primarily, the Cabinet Office of the Department of Prime Minister and Cabinet. Two bits of that advice are important: first, it noted that the bill mirrored the substance of the old rule, and then a few paragraphs later recommended the insertion of the words “lowest cost”. The advice gave no reason for this substantive change, but was adopted nonetheless.

What officials intend with particular language and what MPs intend with it are occasionally differnt. It seems possible that, in the context of other advice about how the first draft of bill might accidentally change others aspects of the International travel perk, the MPs present may have thought this change was proposed by officials to ensure the law didn’t change, or they may simply have been following departmental advice without thinking about it at all. But it is also clear that they did know exactly what law they were passing. This is not a case where a mistake means the law includes unintended language, but it may be a case of a law including unambiguous language, that everyone intended to include, knowing exactly what it meant, because they mistakenly thought that it what the old law said, and no-one could be bothered checking.

In the end, that probably doesn’t matter. What we are discussing is not whether there was an error that ought to be fixed; we are addressing whether it is appropriate to remedy any error there may have been by a supplementary order paper to a statutes amendment bill, released on a Thursday, to be finally debated the following week. And it isn’t.

Worst case scenario: former MPs taking their annual taxpayer-funded overseas holidays have to fly Business Class with Malaysia Airlines instead of Air New Zealand, or can fly Air New Zealand, but have to holiday in Honolulu or Singapore instead. That simply is not sufficiently egregious to warrant such urgency.

Of course, the travel perk isn’t the only thing being amended in this SOP. The other changes have a little more going for them, but probably still not enough to really justify avoiding the scrutiny of a select committee and the public.

Regular readers may recall a post looking at the financial incentives involved in the Te Tai Tokerau by-election, I noted that once Hone Harawira resigned, his pay and perks stopped. He got one more return flight to Wellington to clear out his office, and that was it. It seems that since the Members of Parliament (Remuneration and Services) Act entered into force, MPs who resign don’t even get that final office-clearing return flight.

That was apparently an oversight, and the type that could properly be fixed in a Statutes Amendment Bill. But, while I can see why the Parliamentary Service might want to remedy it quickly, I’m not sure that the consequences of waiting for the next statutes amendment bill (there seem to have been four going through various stages during the last Parliamentary term) are so dire that the ordinary processes shouldn’t be followed. There will, no doubt, be several legislative tweaks in the next one, that just missed the cut-off for this one, and will have to go unremedied for that extra year. I assume in this instance retiring MPs would simply be advised to clear out their offices while they’re still MPs (and some might give notice that has their resignations take effect a couple of days later to allow this to happen). This isn't going to see the IRD unable to collect hundreds of millions in taxes, or convicted burglars set free.

But, while I don’t think the other changes this SOP brings in need to be processed so quickly, you choose your battles, and I’m probably ok with them, while noting that we send bills to select committees for goods reasons, and one is that sometimes that gives officials, or members of the public, the chance to pick up mistakes. I can’t see a problem with the others changes, but I’m certainly not going to declare them error-free. MPs can object to individual clauses in a statutes amendment bill, so an MP could object to the bit amending the travel perk while allowing the other bits to stay.

So the question we now have, is, will this pass? It only needs one vote against, but it’s a bit of a movable feast. I have the Stuff story open in four different tabs, carrying four slightly different stories. The first notes (I think based on tweets) opposition from a range of MPs, but that has gone from later versions of the story. The latest story I have seen indicates that Annette King has shored up support from New Zealand First and the Greens. We may find out on Tuesday.

I don't really need to post this, as Idiot Savant of No Right Turn has beaten me to it. But, because I've written about the former MP's travel perk before, I thought I'd do it anyway.

For a reason it is yet to explain, Parliament is about to consider increasing the international travel perk for people who were MPs before 1999 by around 80%. Under the Members of Parliament (Remuneration and Services) Act 2013, it is set at around $11,000 per year now (see calculation below). Simon Bridges wants to increase it to around $20,000 per year.

A few years ago, they were updating the law around MP's pay and entitlements, and I told a select committee they should abolish the international travel perk that MPs who were members prior to 1999 still get on retirement:

Travel Entitlements of Former Members

I submit that all provision of travel entitlements for former Members should be abolished.
 
The justification for the continuation of this provision is that MPs at one point gave up a salary increase, and received the travel entitlement instead. That three- or six-year period in the 1970s for which MPs were “underpaid” was remedied with above-inflation salary increases, shortly thereafter. This tradition continues apace, which the salary increases of both ordinary members and ministers still exceeding inflation.
 
The vast majority of former members of Parliament who now benefit from this entitlement never suffered the “loss” that justified it. It was never a condition of their terms of employment, and was not factored into salary determinations in the way that MP’s direct travel entitlements were.

It is now 14 years since the entitlement was abolished for newly retiring MPs. Those who have even the remotest claim to have suffered through its removal have now had a minimum of 14 years in which to enjoy it. This is long enough. Whatever loss they may have endured, they have now been more than compensated.

I accept that former Prime Ministers may be in a different category, but consider that their needs are met by the provision of the annuity.

We can be grateful for the service of members of Parliament, and for the sacrifice of their families, but members of Parliament are well remunerated, and have been for a very long time. There is no justification for continuing this perk, and it should be abolished.

I remain of that view. And at the very least, the level of the international travel perk should not be increased. Next week, perhaps as early as Tuesday, MPs are going to get to vote on whether to do just that. Only a few current MPs will benefit from it when they retire (you have to have been an MP before the 1999 election), but it also benefits already retired MPs.

The change is pretty simple. The current maximum allowed international airfare subsidy for retired MPs who qualify is 90% (some former MPs get less based on the number of terms they served) of the lowest cost business fare between New Zealand and London is, as at July 1 of that year: for both them, and their spouse. They don't have to fly that route, or fly business class, but that's how the maximum is calculated. A quick check of webjet, suggests the cheapest business class return fare from Auckland to London is a little over $6000 (flying Malaysia Airlines), so the maximum annual rebate is currently around $11000.

For many, perhaps even most, New Zealanders, that would be a once-in-a-lifetime trip. Qualifying retired MPs and their spouses get up to that level of international travel every year.

The Government's proposed law change is simple: in the calculation of the maximum rebate on International travel, it replaces lowest cost business-class return fare between Auckland and London with an Air New Zealand business-class return fare. For former MPs who qualify for the perk, this will increase the maximum rebate to around $20,000 a year.

And don't think this is about supporting our local airline. Former MPs can still fly whichever airline they want. Air New Zealand is simply used as a means to increase the maximum allowed rebate for international travel.

So the change is, I think, an unnecessary one. But what makes the proposed amendment particularly dodgy is that it is being done through a statutes amendment bill, after that bill has already been through a Select Committee.

Statutes amendment bills are supposed to be for non-controversial technical changes. They group together a lot of semi-important changes to a whole range of unrelated legislation (this bill amends over 30 laws - included the Forests Act 1949, the Heavy Engineering Research Levy Act 1978, and the Tokelau (Territorial Sea and Exclusive Economic Zone) Act 1977) and they tend not to get much press. People can have a say, but you have to wade through quite a bit to actually find out what's in there, and even I don't always have the time to do that. But, of course, you can't have a say if the change is added after the bill has been through Select Committee, and passed its second reading.

The amendment was introduced on Thursday. According to Gerry Brownlee's business statement, it may be voted on as early as Tuesday, and if previous experience of statutes amendment bills is anything to go by, it could pass its final reading on Thursday.

There is one out. And it's a good one. Any provision in a statutes amendment bill has to be agreed to by all MPs. It only takes one "no" vote in the House's committee stage to remove a provision from a statutes amendment bill.

If this law change passes, every single MP will be to blame. And if it doesn't, we'll have @PhilipLyth to thank, along with whichever MP decided to step up. Without his tweet, I'd have had no idea.

Very very quietly, Govt is making changes to MPs (Remuneration & Services) Act & Parliamentary Service Act http://t.co/Y0y5DUvE8F

— Philip Lyth (@philiplyth) March 13, 2015