Legal Beagle by Graeme Edgeler

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Legal Beagle: Q&A: John Banks' judicial review

115 Responses

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  • Rich of Observationz, in reply to BenWilson,

    Not to mention that according to statute (apparently, I base this on Graeme Edgeler's tweets as I have never understood that stuff about writs of election) if Banks has a conviction entered when he comes up for sentence on August 1st, there will then legally have to be a by-election prior to the general election.

    The only way to stop this would be a *political* decision by Labour to vote for cancellation in a recalled Parliament.

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • Sacha, in reply to Rich of Observationz,

    Or for Banks to resign before he is sentenced.

    Ak • Since May 2008 • 19740 posts Report Reply

  • Rich of Observationz, in reply to Sacha,

    Yes, indeed. Another political move, which would need to be followed by a vote for Labour to cancel the by-election.

    I reckon if he won't do this, then Labour should refuse to vote for any by-election cancellation, especially given that Key seems wedded to trying to gift Epsom to ACT (https://twitter.com/patrickgowernz/status/474755131448098817).

    Keep corruption in peoples minds.

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • Matthew Poole,

    Sacha, if Banks resigns that still creates a vacancy that must be filled through a by-election unless the s131 resolution to call off said by-election is successful. He’s an electorate MP not one from the list, so cannot be replaced by someone from the list.

    Come sentencing day, it will be so close to the general election that the Governor General could simply delay issuing the writ until he issues the writ for the general election – “Writ Day” is scheduled for 20 August, which is within the standard 21 days within which a by-election writ must be issued – and the Electoral Commission could then simply “hold” the “by-election” in conjunction with the general election a month later. The statue law is silent on such a situation, as I imagine it’s one that was never contemplated by the legislators; an MP who became incapable of holding office or died during that six-month period would be so apolitical an occurrence that the resolution to not hold a by-election would sail through unopposed. The idea of there being a writ for a by-election issued for the same window as a writ for a general election is the kind of thing that fevered academics dream up when they’re taking some amazing drugs.

    The simple reality is that no matter how this plays out, there will not be a by-election for Epsom. It won’t happen. Labour and the rest will make the “political decision” to vote in support of the resolution for the simple fact that they’ll look like fucking wankers with a serious case of the numpties if they vote to force a by-election weeks before a general election. No matter how much certain commentators in here would like to dream that there’s a sufficient number of MPs in the current Parliament with a vengeful streak that’d override their political and common sense, it’s not going to happen.
    Anyone who voted against such a resolution would then (quite rightly, IMO) be hammered during the remainder of the campaign for blatantly wasting taxpayer money on a political stunt. The Te Tai Tokerau by-election cost half-a-million dollars, and caused significant inconvenience to an Electoral Commission that was already occupied with the conduct of a general election.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Paul Campbell,

    forcing a cash strapped ACT to contest both a by-election and the general election in close succession might be a very smart move, especially if the punt on the by election - they might end up ceding Epsom to the Nats (where it might stick in the following election), or even split the vote between ACT and the Nats and actually win it (where it probably wouldn't stick)

    Dunedin • Since Nov 2006 • 2622 posts Report Reply

  • Matthew Poole, in reply to Paul Campbell,

    forcing a cash strapped ACT to contest both a by-election and the general election in close succession might be a very smart move

    But contest costs cut both ways, and the parties who might contest it seriously have their own money issues; they also don't have a plethora of wealthy benefactors who might be willing to support such a contest for the sake of defending the party's good name.
    You can only force a costly contest by engaging in one yourself. Simply forcing Act to put Seymour up as a nominee doesn't cost them anything more than the filing fee.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Sacha, in reply to Matthew Poole,

    no matter how this plays out, there will not be a by-election for Epsom

    I agree.

    Ak • Since May 2008 • 19740 posts Report Reply

  • WH,

    John Banks was once New Zealand's Minister of Police. I'm a long way from being a perfect man myself, but I remember Banks being pretty tough on the criminal element when he was on talkback.

    The ACT Party's current law and order policy is here and features the following:

    ACT generally favours tough and principled sentencing that is a proportionate deterrent to the crimes it focuses on.

    While I disagree with John Banks about most things, the Court's finding of guilt has made me realise I don't bear him any personal animosity. On the other hand, I don't think a discharge without conviction can be part of the discussion in all the circumstances.

    We're a long way from the conversation about the presumption of innocence we had on this blog a few years back - this is actually quite an historic turn of events.

    Since Nov 2006 • 797 posts Report Reply

  • BenWilson,

    I guess the argument will be that ending Banks' political career is a pretty strong deterrent for what is essentially a political crime. Of course it's nowhere near as powerful a deterrent as an actual punishment imposed by the court, in particular the punishment of receiving a criminal record. I don't personally think it's worth jail time, but it should, at the very least, be officially acknowledged that a crime was committed.

    Auckland • Since Nov 2006 • 10657 posts Report Reply

  • Chris Waugh, in reply to BenWilson,

    I guess the argument will be that ending Banks’ political career is a pretty strong deterrent for what is essentially a political crime.

    In the NZ context, certainly. Political corruption exists, but is really quite pathetic in the grand scheme of things and being caught does generally put the brakes on one's career.

    Wellington • Since Jan 2007 • 2401 posts Report Reply

  • Kumara Republic, in reply to BenWilson,

    All the same, the responses of Richard Prebble et al come across as a bit No True Scotsman-ish. Because crime is only committed by unwashed proles, right?

    "Mr Prebble also downplayed the seriousness of the offence Mr Banks had been found guilty of, which carries a maximum penalty of two years imprisonment.

    "We're acting as though this is some heinous crime. No it isn't, it's just a clerical error"."

    The southernmost capital … • Since Nov 2006 • 5441 posts Report Reply

  • BenWilson, in reply to Kumara Republic,

    Prebble is such a nut. I don't think it's a heinous crime either, but it's still a crime. I'd think a fine would be fair. It's not a clerical error, it was deliberately obscuring something, a fraudulent act.

    Auckland • Since Nov 2006 • 10657 posts Report Reply

  • Rich of Observationz,

    Well, the offence was enacted (albeit in a haphazard and sloppy fashion) to try and create transparency in local government campaign finance. It was considered by Parliament to be a moderately serious offence, carrying a two year sentence or $10k fine (Common assault carries a one year maximum sentence).

    I guess the fact that the offending was based on "wilful ignorance" as opposed to "explicit knowledge" might be a mitigating factor. On the other hand, Banks sought to delay justice for as long as possible and has shown no sign of acceptance of his guilt, let alone contrition.

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • Matthew Poole, in reply to BenWilson,

    ending Banks’ political career is a pretty strong deterrent for what is essentially a political crime.

    If he was a political high-flyer on an upwards trajectory - Darren Hughes, say - that might be a reasonable position to take. But he's not. He's a politician whose career was coming to a natural close with or without this occurrence, and it's been a pretty illustrious career in aggregate. He's a former Minister of Police, for one, which ought to be a very big strike against him for engaging in conduct that's blatantly afoul of the law.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Sacha, in reply to Kumara Republic,

    "We're acting as though this is some heinous crime. No it isn't, it's just a clerical error"."

    even Saturday's Herald editorial "Minimising Banks' crime doubly wrong" doesn't buy that line.

    The situation was, said Justice Wylie, "engineered" by Mr Banks. The Epsom MP had either known the return was false or had chosen not to check it because he wanted to remain in ignorance.

    Because of the lengths Mr Banks went to, and the importance of the breached provisions of the Local Electoral Act, it is impossible to play down the degree of wrongdoing.

    Ak • Since May 2008 • 19740 posts Report Reply

  • Sacha, in reply to Matthew Poole,

    He's a former Minister of Police, for one, which ought to be a very big strike against him for engaging in conduct that's blatantly afoul of the law.

    Scott Yorke has been pondering the connection.

    Ak • Since May 2008 • 19740 posts Report Reply

  • Sacha,

    And Kerre McIvor is like a kid at a grown-ups party. Those men look funny. All the noise as they talk is the same and she wishes they'd go home.

    Ak • Since May 2008 • 19740 posts Report Reply

  • Ian Dalziel,

    Mr Right...
    Saint Colin opines on Banks collapse...

    Everybody does it apparently, and Banks is no better nor worse!

    Banks made a mistake. It wasn't the crime of the century. Police made the correct decision in the first place to let the matter lie.

    Spoiler:

    Not for the first time, our justice and political systems have been commandeered by a busy-body serial litigant and a political pretender.

    He could be describing John Key or Conservative Craig as well...

    Christchurch • Since Dec 2006 • 7950 posts Report Reply

  • Matthew Poole, in reply to Sacha,

    Scott Yorke has been pondering the connection.

    I actually think it's just that our police do not see crimes against the integrity of our electoral system as truly criminal. At least, not unless they're so completely egregious that it's impossible to ignore, such as falsely registering hundreds of voters. Something as nebulous as possibly filing a fake return appears to be barely higher up the foodchain of offending than, say, littering. It's not a property crime, nobody really got hurt, where's the problem?

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Ian Dalziel,

    Well rooted...
    I would also point out that John Banks is responsible for Chchch ending up with 'Ellerslie International Flower Show'!

    It was his, and his council's, decision to not guarantee $50,000 a year for 3 years, that prompted the owners to to look elsewhere and ultimately the Event Dept at the CCC got a 'jones' for a 'readymade big event' to add to their annual schedule...
    We got sold a pup there, too.
    (disguised as 'Magic Beans, perhaps?)

    Christchurch • Since Dec 2006 • 7950 posts Report Reply

  • Craig Ranapia, in reply to Kumara Republic,

    “We’re acting as though this is some heinous crime. No it isn’t, it’s just a clerical error”.”

    Oh, someone pull out the world's smallest violin and go play that tune to the next beneficiary whose "clerical error" (AKA failing to fully and promptly declare income) get their arses prosecuted for benefit fraud. Ditto for the next small business owner who fucks up their GST returns, and ends up owing the tax authorities a serious chunk of change -- with interest and penalties, of course.

    But its always different for politicians and political parties who find complying with far from onerous electoral laws so damn challenging...

    North Shore, Auckland • Since Nov 2006 • 12370 posts Report Reply

  • Sofie Bribiesca, in reply to Craig Ranapia,

    Oh, someone pull out the world’s smallest violin and go play that tune to the next beneficiary whose “clerical error” (AKA failing to fully and promptly declare income) get their arses prosecuted for benefit fraud. Ditto for the next small business owner who fucks up their GST returns, and ends up owing the tax authorities a serious chunk of change – with interest and penalties, of course

    Exactly! Hear hear!
    The guy played the system, got caught. He needs to pay just like the rest of us have to. His "nothing to see here, move right along" is his mantra.That's why he behaves that way. He thinks he's above the law of our land, Well frankly I'm sick of some people thinking they are above our law and getting away with it.To now suggest he can be left to wallow in his Stamford Plaza apartment with his Italian marble blah blah is a wet bus ticket. He'll be looking at the courthouse across the road thinking "well now that's not so bad" I hope someone in the apartments objects to the detention so he wont be able to get home detention.Maybe a bit of jail time will give him time to reflect on his abuse of power.

    here and there. • Since Nov 2007 • 6796 posts Report Reply

  • BenWilson, in reply to Matthew Poole,

    But he’s not.

    Yes, I wouldn't find it a compelling argument for clemency, personally. The lack of contrition would seem to me the most aggravating factor for a heavy sentence, which could be mitigated by an open and honest confession. Considering that the kind of people who actually commit this crime tend not to really be seriously hurt by fines, I'd think something a bit more serious and humiliating would be needed if it's ever to be a credible deterrent.

    Auckland • Since Nov 2006 • 10657 posts Report Reply

  • Moz, in reply to BenWilson,

    people who actually commit this crime tend not to really be seriously hurt by fines, I'd think something a bit more serious

    That's my feeling. Especially since a fine doesn't really match the nature of the offense. For normal fraud it's pretty straightforward: someone (tried to) obtain money illegally, so we're going to take money away from them. Here, he was trying to obtain political power. So, reasonably, we should take that away from him. A conviction with no further sentence would do that.

    But then there's the lack of contrition, and even refusal to admit guilt, so I think it's time to balance the difficulty of accommodating a former minister of police in jail against the desirability of putting him there. I'm inclined to actual jail, myself, since he's repeatedly said he's very keen to send people there as a way of teaching them a lesson. Or to put it in terms he's familiar with: as you give, so shall you receive.

    Sydney, West Island • Since Nov 2006 • 1233 posts Report Reply

  • Russell Brown,

    Meanwhile, it seems that not only will David Seymour benefit from Paul Goldsmith's desperate attempts to not win Epsom for National, there'll be a bit of a flavour of the Auckland mayoral campaign about it. I blogged.

    Auckland • Since Nov 2006 • 22848 posts Report Reply

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