Legal Beagle by Graeme Edgeler


Low-Hanging Fruit

In a couple of months, the 53rd Parliament will meet in Wellington, and approximately 120 MPs will be sworn in, many of them for the first time.

They will all have political goals, some aligning with their party platforms, some not, some complex, and some simple, but they will gain one thing that every non-MP, not matter how political or motivated, does not have – the ability to legislate.

The process of turning a political idea into draft legislation can be complex. For some policy proposals, it’s something that an individual MP cannot seriously do, without the assistance of a government department, or a pre-existing Law Commission Report the government is being slow in adopting. Others will be doable, but will take years of work. Ministers have a head start, but even the newest MP has the privilege has at least the chance to put a bill in the members’ ballot. And that privilege is something all eligible MPs should do, at every opportunity. If they are not trying to change New Zealand’s laws for the better, why did they choose to become legislators, instead of say, activists, or farmers? Even if they are working on a bigger project – one that will take months or years, there simply has to be some small way that they, as an MP, could make New Zealand law less capricious. At the very least, it will mean I am unlikely to note on twitter, in response to a claim there is some problem with the law, that they don't have a bill in the members' ballot!

One MP who recognises the enormous privilege that being an MP brings is National MP Chris Bishop, who has been a prodigious drafter of simple bills that have been entered into the ballot in his name, and in the names of various of his colleagues who have adopted them (MPs can have at most one bill in their own name in the ballot). He’s had substantial success in getting bills passed, including one I suggested, and has several others that seem very worthy in his name or others'. A recent-ish addition is a bill to amend the lawyers and conveyancers act to permit employed lawyers (eg those who work in companies, not law firms) to provide pro bono legal services for people other than their employer: not a massive change, but an obviously good one.

11 and a bit years ago, blogger Idiot/Savant from No Right Turn started the progressive bills project, a wiki designed to allow, I guess progressives, to draft legislation that could be picked up by MPs (at the time, the biscuit tin of democracy seemed to be significantly less well-used than it has become in the years since). I/S was covering member’s bills, and the members’ ballot, when others often weren’t, and wanted to provide an opportunity for people to make it easy for MPs to advance law changes they want, to suggest simple law changes – of the type you can advance as a back bench MP – so that MPs looking for ideas could just take them up. The project has seen a number of bills taken up by MPs, some unlucky at the ballot, and some even passed into law (some of that may be coincidence, but I understand at least some potential legislation has come directly from the project).

Over the last few years, the site has mostly been me, occasionally having an idea, and getting motivated enough to spend an hour or two drafting short bills. A lot of these ideas have come from Twitter conversations I’ve been involved in – sometimes people complaining about egregious happenings overseas, where I’ve had the sad duty of letting them know “yeah, that’s the law in New Zealand too”.

I get that MPs – new MPs especially – will have lots of calls on their time and their focus, but the first members’ ballot could be on them quickly, and while they are working on whatever grand plan they bring with them, there are simple changes they could advance in the interim. There will be some draft bills lying around Parliament: those advanced by retiring MPs who had bills that never got drawn, but more will be needed, and in the spirit of Milton Friedman, I offer the following ideas, mostly from me, some from I/S.

The Crimes (Wage Theft) Amendment Bill.

This would amend the offence of theft by person in a special relationship to make clear that it can be used to prosecute the intentional withholding of monetary entitlements owed to an employee, in the same way that an employee can be prosecuted for stealing from an employer.

It is, like a lot of the legislation I have drafted, the low hanging fruit. There is a lot that could be done in the wage theft area, including beefing up enforcement within the Labour Inspectorate, but that is harder, and probably involved spending money, which makes a member’s bill a more difficult prospect. But knowing that the perfect should not be the enemy of the good, something can be done that is simple – adding a few words to a pre-existing criminal offence to confirm it applies to wage theft.

The Maori Community Development (Unruly Behaviour Repeal) Bill

I’ve written about this before. It would repeal a set of criminal offences that can only be committed by people who are Māori. It’s another simple bill – the Maori Community Development Act could probably use a general update, but criminal offences, one of the elements of which is that the person is Māori simply should not exist.

The Criminal Procedure (Interim Suppression Pending Appeal) Amendment Bill

I’ve written about this one too. In December 2018, there was a high-profile case where a person charged with offending was refused name suppression. They informed the judge in the District Court that they intended to appeal, so that judge was required to impose an interim suppression during the appeal period. You have 20 working days to appeal such a decision, and with Christmas getting in the way, this prevented journalists publishing the name until well into the new year, even though a judge had decided they should be able to. It is somewhat ridiculous, but had the judge in the District Court granted suppression, media would have been better off: they could simply have appealed the following day, and probably had the appeal heard before the holidays. I propose reducing the normal 20 day appeal period to 5 working days.

The Crimes (Exploitative Sexual Conduct with Person in Detention) Amendment Bill

This bill would create a criminal offence of exploitative sexual connection with people in detention. A lot of people assume that there is necessarily a crime involved when, say, a police officer has sex with a person whom they have placed under arrest. While there’s certainly a serious employment issue, any prosecution would have to be under a standard criminal law, such as rape, and arguments about consent would arise (with no presumption that consent is impossible, and the prosecution required to prove the absence of consent, beyond a reasonable doubt, just as in other rape trials). Sex between a detainer, and someone detained seems inherently exploitative, so having a specific law, where consent doesn’t enter into it, seems justifiable.

There are lots of other good ideas (and probably some bad ones, or at least out of date ones), including many that don’t fit within the basic idea of small changes with a good prospect of passing, but for some brave MP, the project also has a bill to drop the voting age to 14, and this bill to abolish the offence of bigamy.

There are others I've been meaning to work on (I started drafting one to port over the secrecy provisions that apply to the IRD to MSD, but it was more complex than anticipated), and have a mind to try one around criminal records arising out of convictions at Courts Martial, but anticipate some complexity there too (clearly not all convictions in the military justice system should port over the MOJ system, given that you can get a conviction in circumstances where employment law, not criminal law would apply to a civilian), but some seem like they should.

Anyway, if you are an MP, hope to be one soon, or know a candidate or MP who doesn't yet have a policy proposal ready to go in the ballot, I am more than happy for any of the idea above to be adopted by anyone. As a backbench MP, it will be difficult to change the world, but you certainly have the power to change one small part of it, and it's a privilege you should take seriously.

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