Legal Beagle: Because it is a big deal
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And this was going to be a short post.
Stupid quotes:-)
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if they erroneously thought they were entitled to it, it's not theft
Is ignorance a defence in New Zealand then?
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Thanks, Graeme. I appreciate the detail in your post, however long that makes it.
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Is ignorance a defence in New Zealand then?
Ignorance of what?
I knew this was Giovanni's car, but didn't know it was illegal to take it? No.
I thought this was Giovanni's car, and he'd given me permission to use it, but it turned out I'd taken his neighbour's car? Yes.
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Is ignorance a defence in New Zealand then?
It apparently was in Phil Heatley's case, although I'm buggered if I can see how anyone would think buying wine at a party conference (and reporting it as a meal), or paying for a family holiday, would be acceptable.
The auditor general also said that Heatley had been incorrectly advised by Parliamentary Services, as had other MPs.
I do find it ironic that having a crack and claiming what you think you can get away with isn't an offence -- but intending to pay it back is.
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Ignorance of what?
Of the rules. I thought that's what you meant. IANAL, but in Italy proverbially you cannot use ignorance of the law as a defence. Sounds like you're confirming that it's the case in NZ as well.
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Incidentally, between you and Russell you did a pretty sterling job of illuminating both the issue itself and the issues pertaining to its coverage. Thanks for that.
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The auditor general also said that Heatley had been incorrectly advised by Parliamentary Services, as had other MPs.
That was about a specific use of the Parliamentary Travel allowance (the housing stuff, and wine etc. will have been Ministerial Services, not the Parliamentary Service). The allowance allows MPs to fly for free in New Zealand, and allows their partners and kids a specific number of trips to Wellington to see them.
For a long time, it allowed MPs' kids under 5 an unlimited number of trips to Wellington to see their MP parents. At some point this changed, and they were treated the same as other kids. The Parliamentary Service did not update its advice, and kept telling everyone that under 5's had unlimited travel to and from Parliament.
I believe it has been changed back.
I do find it ironic that having a crack and claiming what you think you can get away with isn't an offence -- but intending to pay it back is.
I'm not so sure that was correct. Having a crack wouldn't be theft (and nor would taking with the intention to pay it back), but the section 76 offence isn't so limited. I wonder whether the Auditor-General was specifically considering that offence or whether it may have been focussed on other things.
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Bez,
Thanks for that analysis.
As you notice, there is a 2 year limitation period, but it might well be that the 7000 documents now disclosed contain sufficient information for charges to be laid, in which evidence of prior consistent behavior can play a role to underpin a case.
Question is will there be a sufficiently bothered individual to lay the actual complaint? -
Well the Auditor general has all lready looked at the 'unauthorised expenditure' angle - and doesnt see an issue
s95) For Vote Ministerial Services, we note that the expenditure by Ministers on the accommodation and meal costs of spouses or partners will be unappropriated if it is outside the rules. We will work with Ministerial Services during the remaining parts of our inquiry to determine whether there is a widespread problem resulting from the way the particular rule is written, and its application in practice, before considering what remedial action may be needed.
http://www.oag.govt.nz/2010/vote-ministerial-services/findings-and-conclusions.htmAS the A-G says as well they going to 'fix' the problem of unauthorised expenditure for childrens travel for ordinary MPs
"Parliamentary Service had already identified that the incorrect way it has been administering travel entitlements for children under five years will have resulted in unappropriated expenditure."
The web of unauthorised spending will have caught a lot of MPs.
Dont expect any prosecutions.
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Graeme, is your approach useful or helpful? Certainly you're thumping the pulpit with all the moral righteousness and wrathful indignation of Ian Paisley Sr.
But every constable knows, when faced with a vein-popping citizen at the counter who Demands The Law Be Enforced, that he has a ready answer in saying that the Police can and do exercise discretion.
What actions would you suggest be taken to ensure as much as possible the wise, reasonable, proper, and importantly moderate use of public money?
I'll quote from parts of the Auditor-General's report of 30 Mar 2010 ('Heatley') linked above: (and I recommend reading the 20 page PDF to all who are remotely interested)
[Page 2] The public rightly expect all those who spend public money to recognise that it is public money . . . There is even greater sensitivity for Ministers and members of Parliament, who must manage the line between ministerial, parliamentary, party political, and personal spending.
[Page 2] It is also important that the rules and administrative processes supporting the rules are clear, practical, and align with common sense. (emphasis added)
[Page 4] For Ministers and members of Parliament, the boundaries between parliamentary, ministerial, party political, and personal expenditure may be difficult to manage in practice.
(relating to a Cook Strait ferry booking for the Heatley family and a car)
[Para 68, page 15] For practical reasons, the ferry and rail costs for two of Mr Heatley’s children were initially paid as part of his ministerial booking, but he appropriately reimbursed those costs immediately after the trip.
(but also relating to that travel))
[Para 67, page 15] and his family travelled by train to Kaikoura. VIP Transport Service provided a driver to drive Mr Heatley’s car to Kaikoura. A VIP Transport Service car was also sent to Kaikoura to provide return transport for the driver of Mr Heatley’s car.
Contrary to Ministerial Services guidelines:
[Para 87, page 18] the credit card agreement between [Department of Internal Affairs] and the cardholder allows personal use of the credit card in emergencies, with the costs required to
be reimbursedNoting that this is the considered report of the Auditor-General, never written lightly:
[Para 90, page 19] In our view, circumstances can arise from time to time where it may be sensible to put items of personal expenditure on credit cards when there is a clear intention to reimburse the costs. However, this should be done only when necessary and should be clearly documented. (emphasis added)
[Para 91, page 19] In our view, used correctly, credit cards are an effective and transparent way of paying business costs. However, the use of credit cards needs to be properly managed, with clear rules and policies that are enforced.
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Graeme, to continue on the theme of 'wise, reasonable, proper, and importantly moderate use' of public money:
Certainly much of what happens already is legal, and some may not be. But is all that is legal also wise reasonable proper and moderate? And is anything that may not be legal also automatically unwise unreasonable improper and immoderate?
Sending two Crown limousine drivers to Kaikoura was legal. But, I suggest, not good. Across at Hard News I suggest that it might be useful to have a panel of 70 voters scrutinise matters.
And if improper spending occurs by, say, inclusion by mistake of a $5 charge for a child's cot on a hotel bill, how does that matter if a Minister and spouse are (within the rules) regularly incurring accommodation, meals and other charges of up to $500/day? Or if, as you will assert, the children's ferry and rail travel should never have been billed-then-reimbursed, how does that stack up against the Auditor-General's finding of practicality?
As I asked at the start, what are your answers?
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Good work Graeme this is certainly matches my take on the matter
I really like this idea of that Phil is floating of allowing a panel to keep an eye on this stuff
At the moment the checks and balances are supplied by the Civil Service who quite naturally have quite a different take on the use of public money compared with tax payers -
Raymond, I am taking the risk that a panel of 70 voters may reach a collective view which does not match my prejudices (or yours!). But I recommend the Ontario panel's Background Report to you (jump over to Hard News for the link) for illumination about their processes.
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Given the fundamental legal position presented by the legal eagle here , for which I thank him, Isn't the case of us funding Nick Smith secretly
to defend himself after abusing a private company an even bigger scandal?I mean he pissed in the marketplace as an independent philosopher, went way beyond his political duties.
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NEWSFLASH: Tory lawyer misses the point.
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I thought the breach of public sector funding laws was an interesting angle, and it's good to be reminded again of the Audit office findings about Heatley. Please let's not allow this to degenerate into cheap political partisanship.
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Tom, while I don't agree with Graeme's overall view, I think you are engaging in a CHEAPSHOT.
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Graeme a Tory. Unclean! NYEUUURGH!
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By all means argue how he's missed the point, but I don't think calling Graeme a tory or a lawyer adds much - not that I believe he'd necessarily describe himself otherwise.
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Graeme has already said that he thinks that making personal purchases on the Ministerial credit card with the intention of reimbursing them AND actually reimbursing them is worse than sneaking something a bit marginal onto the card to see if you can get away with it.
Good luck with finding another 11 (or 69) people on a panel who'll agree with that. The public cares about "use of public money" only to the extent that the public's money is , you know, used. And while they hate politicians, they're also not too fond of lawyers. Graeme admits himself in his post that he speaks as a lawyer, implying that he knows us lay people are happier to apply 'common sense' in many cases. Such as this one, I would suggest. Which is exactly why the media have been playing it as they have.
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Tory lawyer misses the point.
Which is...?
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Tom ,poor Graeme just reads the law, someone has to do it.
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Maybe the Budgie Smuggler wearing Speaker of the House will be remembered for,... transparencey ?
To his credit, Lockwood has kept his private life, private for most of his time in the public eye.
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What actions would you suggest be taken to ensure as much as possible the wise, reasonable, proper, and importantly moderate use of public money?
Private prosecution, pour encourager les autres.
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