Legal Beagle by Graeme Edgeler

Last Friday, the Electoral Commission announced that it had cancelled the registration of the United Future Party.

My immediate thought was that that was unfortunate, because I had wanted a relaxing night, and didn't want to have to write a long post railing against the continued funding of Peter Dunne for Parliamentary funding purposes.

In the end, I didn't. I had a quick look at the Speaker's Directions, and the Standing Orders. They weren't very clear, and didn't seem addressed to the issue in hand, but I concluded that they probably turned on the situation in place at the election and would thus allow continued funding, and decided that a post railing about how someone was probably entitled to funding would be rather boring and went on with my night.

I received texts from a journalist:

"Will Dunne get less money in parliament now UF isn't registered? Intense journo debate!"

"And will he lose staff?!"

I replied:

Dunne personally? No. Ministers are paid more than party leaders. Party support funding is less clear. The laws aren't written in a way to allow for a clear answer, but I would guess not.

I also sent and replied to a couple of tweets, but it very much seemed like an issue that would interest only people like me, and not have cut particular cut-through.

Well, after the events in the House today, it seems my view that this would be boring was rather misplaced (at least with respect to those who follow parliament).

There is more than one question. Recognition of a party for parliamentary purposes includes things like the right to speak on ministerial statements, and the affects proxy votes, and membership of the Business Committee. The question of whether a party is entitled to funding may be different, but I will assume that it probably isn't for the purposes of this post.

I looked at these questions in two posts prior to the 2011 Te Tai Tokerau by-election, and came to some firm conclusions and also determined that there were some "known unknowns". Standing Order 34 has changed since then, and the bit I wasn't sure of then is now definitively ruled on. An unregistered party which wins a seat in parliament at a general election (or a by-election) is now clearly not entitled to be recognised as a party under standing orders.

But that isn't the situation Peter Dunne finds himself in.

Standing Order 34 now states:

Every political party registered under Part 4 of the Electoral Act 1993, and in whose interest a member was elected at the preceding general election or at any subsequent by-election, is entitled to be recognised as a party for parliamentary purposes.

Peter Dunne was elected at the preceding general election in the interest of a political party registered under Part 4 of the Electoral Act. That party  is no longer registered, but he was so elected, and under that banner. United Future was recognised. Properly. A new general election would change that, but we haven't had one.

Now, you can clearly argue that a different interpretation, that recognition by Parliament is an ongoing matter, that the Speaker needs to be convinced of all matters in Standing Order 34(1) at all times. Standing Order 34(1) has changed. Before the start of this Parliament, it said:

Every party in whose interest a member was elected at the
preceding general election or at any subsequent by-election is entitled to be recognised as a party for parliamentary purposes.

There's a pretty good argument that you can look at the difference and say 'see they changed the rule, now it's clear, Dunne gets no funding!', but there are a couple of problems with that. First, the Standing Orders Committee explained why it made this change, and it had nothing to do with this, but was in response to a submission by the Clerk of the House, that there was a circular definition of 'party' that should be cleared up. Second, there is also a steer under SO 34(3). The rules allow new parties of party-hopping MPs to be recognised between elections if they have at least six members (a level I anticipate is based on the 5% threshold), but also provide that:

(3) [such a party] loses its recognition if its membership falls below six members of Parliament.

The rules don't give any other situations where a party loses recognition. If the continuing obligation principle was correct, the bit above would be unnecessary: as soon as a new party-hopper party lost it's sixth MP, it would cease to be registered because it would no longer meet the requirements for a non-elected party to be recognised. This bit being there suggests recognition is otherwise a one-time thing.

I don't have a dog in the fight. I'm reasonably political, but also highly non-partisan. I would like the rules to be clear. The House has a rule that doesn't clearly deal with this situation, except, maybe, by inference. And the two inferences that rule has are contradictory.

I do, however, have a concern with the decision of the Speaker to give Dunner and United Future time to deal with this matter. Whatever interpretation one takes, this isn't something that can be fixed up. Either the rules require a parliamentary party to maintain registration with the Electoral Commission as a continuing pre-requisite to recognition, or they do not. If they do, then United Future has lost its entitlement to funding, and that should cease; if they do not, it doesn't matter whether United Future re-registers next week, or just gives up, the entitlement to recognition in the House would remain until this Parliament rises before the next general election.

There are serious consequences if a party ceases to be entitled to be recognised as a Party in the House, but there's no basis to put the decision off. What has happened has happened, and if there are consequences, they occur immediately.

UPDATE: Andrew Geddis also posts on the issue. We disagree over how tenable the argument about continuing entitlement is, but agree on what I think is the more important issue. There is no basis for a grace period, and the decision of the Speaker to allow one is wrong.

It appears that there will be no major changes to our MMP system before the next election.

I'm okay with that. While I support each of the recommendations in isolation (I think the 5% threshold is too high, and the one-seat rule gives unequal power to arbitrary groups of voters), I also recognise that not everyone agrees with me. Just because I think the recommendations would be an improvement over the status quo doesn't mean they should be enacted. The referendum set up a process by which there would be a review, but how should you have voted if you like MMP exactly as it is now?

Every party in Parliament - with the exception of New Zealand First - has adopted a position on the recommendations of the Electoral Commission's Review of MMP consistent with their own political interests. I am not saying that is necessarily why they have adopted those views, although I do note that Labour's position supporting the recommendation to drop the one-seat rule was announced before the Electoral Commission made that recommendation, and indeed, before the referendum. And that the stated reason for their support for removing the one seat rule was that it would stop ACT being in Parliament. The position of National, ACT, and United Future is clearly one of self-interest, but it's a club open to parties across the political spectrum.

I do not think that the Electoral Commission having made these recommendations means that National should support them, but I also think the excuse offered for not doing anything is rather poor - the need for there to be consensus on changes in our electoral law is something that simply doesn't exist.

Where was the consensus on denying short-term convicted prisoners the right to vote, in a parliamentary vote the National Party won only with the support of an ACT Party which actually opposed the bill, but which hoped to get support for three strikes?

Where was the consensus when Labour passed a law creating Maori Seats on the Bay of Plenty Regional Council, or when National passed a law that did not have Maori seats on the Auckland Super City?

Where was the consensus when National replaced the Canterbury Regional Council with appointees, and abolished the election to be held in 2010, and will prevent another this year? Where was the consensus when Labour passed a law electing Harry Duynhoven to Parliament?

Where was the consensus when Labour passed a law shortly before the 1975 election which would have increased the number of Maori seats?

Where was the consensus when National passed a law shortly after the 1975 election (before Labour's law had taken effect) which re-set the number of Maori seats at four?

Where was the consensus when National changed the Broadcasting Act to ensure New Zealand First didn't get any broadcasting funding for the 1993 election? Oh wait, that change actually had consensus, and it was an appalling decision! The increase in the threshold from 4% as recommended by the Royal Commission to the 5% we have now was basically a consensus agreement between Pete Hodgson and Murray McCully, designed to make it harder for new parties to challenge them.

Partisan changes to our electoral laws have a long history in New Zealand.  Where there's a Labour Party Electoral Finance Bill, there's a National Party country quota. And our history has often seen consensus when that meant agreement between National and Labour to benefit themselves, including, for example, with the continued presence of Government and Opposition members on the Representation Commission (which draws electorate boundaries), and who have, for a very long time, only ever come from the Labour Party and the National Party, and the continuation of the refund of nomination deposits, which mean National and Labour pay nothing to run candidates in general elections, while minor parties pay many thousands of dollars.

It just doesn't seem sensible to expect MPs to vote against their own interests. The best we can hope for is for them to set up a process by which we get to make the decisions, as happened in the 1993 referendum that introduced MMP. On matters like this, it should probably happen more often.

Do I think there should be changes to the MMP system? Yes. But I really don't think our MPs should be making them. And if they ever do think about making changes of this nature to our electoral law, they shouldn't be doing it to affect the next election, but one down the track. Major electoral law changes should all take effect effect one term distant to (if only slightly) minimise the incentive for self-interest to trump principle.

And when they do propose changes, they should be upfront about the effects of their proposals. The recommendations of the MMP Review would have the effect of decreasing diversity in Parliament, and increasing disproportionality. I'm okay with that as a trade-off for increased equality between voters (though I would prefer to avoid this trade-off, by reducing the party vote threshold further), but some members supporting these changes seem reluctant to admit they'll have the effect of silencing some voices. If they believe it is worth it, they should have the courage to say it.

On 9 May 2013, the Labour Party Secretary filed a donation return with the Electoral Commission, in respect of four payments it received via The Public Trust, from the Estate of Brian James Dalley:

$411,500.00 received on 23 April 2012,
$7,250.00 received on 2 May 2012,
$1,282.50 received on 24 July 2012, and
$226.83 received on 27 July 2012.

Section 210C of the Electoral Act 1993 requires a party secretary to file a donation return within 10 working days of receipt of a donation if that donation exceeds $30,000, or if that donation, together with any other donations (that haven't already been disclosed in this way) made by the same donor in the preceding 12 months, exceed $30,000.

If these count as donations (and both Labour, and the Electoral Commission appear to accept they do), then each of the sums above created a separate obligation of disclosure, with 10 working days allowed after each to declare it. The failure to do so within that time period, on each of the four occasions is (unless the Party Secretary has a "reasonable excuse") a separate offence, carrying a maximum fine of $40,000.

Tim Barnett, who took over as Labour Party General Secretary on 26 July 2012, is reported as having explained that Labour did not initially declare the bequest as a donation "because of confusion as to whether bequests count as donations," also saying that it was as an "honest mistake ... to not realise that a bequest was actually classified as a donation and therefore had to be immediately declared to the Commission."

But is a bequest actually a "donation" that the Electoral Act requires to be disclosed? The received wisdom is very much that it is. There seems to be very little doubt about that at all. I certainly think the law should require it to be disclosed, but I do think the law should say so more clearly, because I'm not certain it actually does.

The definition of donation in the Electoral Act is wholly unhelpful in this matter. When it comes down to it, donation is defined as being a donation. It effectively carries its ordinary definition, so we must ask whether a bequest falls within this.

Like I say, I think it should, especially in light of the purpose of the donation disclosure rules, but operating under the same principle, I think spending by parliamentary parties of parliamentary funds on advertising that is agreed by the party secretary should be declared as a donation. I don't see a major difference between a company or union, or wealthy individual seeking permission (as required by the law) from the Green Party to run and pay for "The Green Party will be great for the environment" ads and the Parliamentary Labour Party seeking permission from the Labour Party to run "Labour will be great for the Economy" ads, yet the Electoral Commission takes the position that the former is a donation to the Party involved, and the latter is not.

My view on that question not having been accepted by the experts, I am compelled to reconsider, and it seems to me that there are substantial similarities between bequests and parliamentary spending. In both instances, the person making that payment (the executor in the case of a bequest, and the Parliamentary Service in the case of parliamentary spending) is not making a voluntary payment, but one that is required by law, and compulsion seems contrary to the spirit of a donation. It is true that the person on whose wishes a bequest is made has made a voluntary choice, but that is also true of a Parliamentary Party which has directed the Parliamentary Service to make a payment.

Moreover, I don't think that when we think of bequests, we think of them as donations (or the converse); I think most people, would categorise both as forms of giving, but not one as a subset of the other. And in other places, the law provides for a distinction between the two: I understand (noting that I am not a tax lawyer) that a bequest made to a charity does not qualify for the charitable donations tax credit.

So I do not consider this is as clear as others believe. However, despite my doubts, I have no sympathy for the Labour Party.

I simply cannot accept "confusion" as an explanation. Being confused about this means you received the money and thought about it whether it had to be disclosed, and just couldn't make up your mind for certain either way. In a situation like this, if you think you may have a legal obligation to do something, and are confused, the thing you do is check. If the reason the two Labour Party Secretaries involved (Chris Flatt at the time of the first three payments, and Tim Barnett at the time of the last payment) didn't declare these payments as donations was because they were "confused" about whether it was required then what they've realised that what they're (not) doing may be an offence, but have chosen to run the risk.

I am not the Labour Party's electoral lawyer, but I know what my advice to them would have been if they called me up for a legal opinion on whether this bequest was a donation that was required to be disclosed:

I am happy to provide you with a legal opinion if you really want, but why do you care? Just file a disclosure anyway, and save yourself some money. At the very least, just call up the Electoral Commission and ask. If they say you a bequest doesn't count as a donation, then don't file a return, but otherwise, what's the harm? 

I simply cannot think why, upon first being advised by the Public Trust that they were going to get a large bequest, someone in the Labour Party didn't just send their point of contact at Electoral Commission an e-mail to ask what they should do. If they actually contacted the Commission, and someone told them they needn't bother, then they've got a reasonable excuse, and haven't broken the law, but short of that, I'm having difficulty seeing what rationale could be offered, that doesn't involve having flawed systems that don't properly alert the Party Secretary when sums of money arrive, and those sorts of flawed systems should not be an excuse. My diversion above is a "don't know" at best, and why would you run the risk?

Newstalk ZB's Felix Marwick apparently has confirmation that the Electoral Commission won't be referring these matters to the Police, which has disappointed a number of people. There is nothing to stop individuals laying complaints with the police, and I suspect a number will, although it seems unlikely police will pursue charges.

I don't know the reasons for the Commission's decision, but the view that it would be wrong to hold an individual responsible for whatever failure happened in this case (when it may have been someone else's fault) may factor. This possibility shows, I think, one of the flaws in our electoral law. For something like this, there will often be no reason to sheet responsibility to an individual for a failure like this. The law should allow political parties to be charged directly, not sheet home responsibility only to party secretaries. And for potential offending like this, I'm not sure the criminal law needs to be involved at all. A late donation return could be perfectly appropriately dealt with by an infringement offence: a fine (perhaps $5000 for parliamentary parties, $500 for non-parliamentary parties, and maybe with an additional fine per day late) could be imposed automatically, but could be challenged in court in the same way as parking tickets and speeding fines. Where there is an intention to deceive, the possibility of actual charges, or holding individuals liable could remain, but it shouldn't be difficult to craft a fair balance.

For completeness, I note two parties appear to have filed their 2012 annual returns of donations late (.xls) -United Future seven days late (even though it was a nil return), and the Conservative Party one day late.

On March 5, New Zealand held its census. And for four months starting next Monday, 25 March voting-age New Zealanders of Māori descent will have the option of switching between the Māori and general electoral rolls. The results of the census, and the Māori Option will be used to draw electorate boundaries for the next two general elections.

My post in late 2011 looking at the legality of this year’s Māori option is – as I predicted and as was predictable – now of academic interest at most. But there is an older – and I suspect, very little known – story of substantial importance to the Māori option. The story of how, prior to the 1996 census, and the boundary redrawing that followed in 1997, the Government Statistician decided to increase the number of Māori seats, because it seemed like a good idea.

Since the introduction of the mixed member proportional voting system (MMP), the number of Māori seats has been determined on the same basis as general seats (within +/- 5%, and a margin created by the need for there to be whole number of seats, the number of residents served by each electorate MP is the same). Before the Electoral Act 1993, the number of Māori seats was limited to four, no matter how many people were registered to vote on the Māori roll. The unfairness that previously existed can most clearly be seen from the very beginning of MMP. Between 1993 and 1996, the number of Māori electorates increased from 4 of 99 electorates (4.04%) to 5 of 65 electorates (7.69%).

Because we have chosen to determine our electorates with respect to the overall ordinarily-resident population (not the enrolled-to-vote or voting age population), data from both the census, and enrolment forms is used to determine the Māori Electoral Population, which is used to determine the number of Māori seats after each Māori option is concluded. The formula is relatively simple, but understanding it is unnecessary to appreciate what is going on.[1]

The Māori electoral population is the group of people whose electorate representation in Parliament is through the Māori seats. It is determined by taking the Māori descent population (i.e. the number of ordinarily-resident New Zealanders who have a Māori ancestor), and assigning a proportion of this group according to proportion who are enrolled on the Māori roll. So, if 60% of people who are listed on the electoral roll as being of Māori descent are enrolled on the Māori roll, then 60% of the overall Māori descent population counts as the Māori electoral population, and the other 40% are included in the general electoral population.

But how do we know what the Māori Descent population is? Well, question 14 in the Census asks:

Are you descended from a Māori (that is, did you have a Māori birth parent, grandparent or great-grandparent, etc)?

It is the answer to this question (and not the ethnicity question) that is used in determining the number of electorates of each type.

For example, the calculation of the number of Māori seats for the first MMP election was, in short form:

• On their 1991 census forms, 511,278 people indicated they had Māori ancestry.[2]

• After the 1994 Māori Option, 51.7% of people who indicated on their enrolment forms that they had Māori ancestry were on the Māori roll, so the Māori electoral population was 264,222 (which is ~51.7% of 511,278).
• This Māori electoral population was enough people (not voters) for 5.11 Māori seats, which got rounded down to 5.

A Māori Option is held after each Census, where these numbers get updated. The results of these calculations are simple enough:

Māori Option	Elections covered	‘Fair’ number of Māori seats	Māori seats
1994	’96	5.11	5
1997	’99	6.23	6
2001	’02 & ’05	6.84	7
2006	’08 & ’11	7.25	7

The fair number of seats has increased each time, but with rounding, the last increase wasn’t big enough to change the actual number. These increases have been a result of two broad factors: demographic change (with the Māori descent population rising faster than the population overall), and an increase in the proportion of voters of Māori descent choosing to be on the Māori roll (from 51.7% in 1994, up to 57.6% after the 2006 Māori Option).

You might assume that – albeit with different numbers – the same overall calculation would be done after each census and Māori option. And it largely is – but with one large difference.

For the 1997 boundary determination, the Government Statistician decided he’d do things differently. The change in approach has continued since, and that choice – not demographic changes or Māori enrolment choices – was the reason that at the last two boundary determinations, there were seven Māori seats, instead of the six we would otherwise have had for the last 15 years. The change wasn’t preceded by an amendment to the Electoral Act, or the Statistics Act, but was simply something that the Government Statistician decided would be sensible to do differently.

In the calculation for the first set of MMP boundaries, shown in bullet point form above, you may have noted that the number of people of Māori descent in the first bullet point is the same as the number used in the second bullet point, which is the number of people who answered the census question about Māori ancestry[3] by saying that they were of Māori descent.

This didn’t happen when the calculation was performed again after the 1997, 2001 and 2006 Māori options: the number of people who said “I am of Māori descent” wasn’t the number used as the “Number of People of Māori descent” input. Added to this number was a proportion of people who answer the Māori descent question with “I don’t know” or who gave confusing answers (for example, by leaving it blank, or selecting more than one option).

Statistics New Zealand – figuring that some of those people would be of Māori descent, while others wouldn’t – analysed the other census information provided by those people, and assigned each of them a likelihood of being of Māori descent using a statistical technique known as CHAID (Chi-squared Automatic Interaction Detection).

CHAID is a technique frequently used in data mining and mass-marketing. It calculates the likelihood of an unknown characteristic (in this case “is this person of Māori descent?”, other times it might be “is this person a credit risk?”), based on other known characteristics, and the existence of a large enough data set to match it against (and what’s larger than a census?).

After assessing 12 variables (arising from other census questions) to see how well they correlated to clear Māori descent answers on others’ census forms, the four that were the best indicators of whether someone was of Māori descent were adopted.[4] One additional variable was added, the place of residence (North Island/Chatham Island or South Island), not because of a correlation to Māori descent, but because of its importance to electoral calculations – resulting in 448 subgroups covering all the different combinations of census responses for those five variables.[5] If, of the people who clearly answered the Māori descent question in one of these subgroups, 6% had said they were of Māori descent, then Māori descent would be imputed to 6% of those who answered “don’t know” or gave an unclear answer.[6]

This process of imputing Māori descent to people who give unclear answers to the census question increases the Māori descent population that is used in electoral calculations:

	1994	1997	2001	2006
Number of people who clearly indicated Māori descent	511,278	579,714	604,110	643,977
Māori descent figure used in election calculations	511,278	628,429	670,264	721,431

Interestingly, the results of this analysis are only used in the calculation of the number of electorates, and aren’t presented alongside the census results. If they were, we might think of the Māori population of New Zealand as more like 18%, rather than the 15-16% commonly believed.

The decision to impute Māori descent in this way has a number of effects:

• it increases the Māori descent population (which increases the number of Māori seats);
• it decreases the general electoral population of the South Island (which lowers the South Island quota, making electorates smaller, and increasing the number of Māori seats and the number of general seats in the North Island);

• it decreases the general electoral population of the North Island (decreasing the number of general seats in the North Island: to date, by more that the increase caused by the second factor)

It seems that almost no one (except perhaps readers of back copies of the Australian and New Zealand Journal of Statistics) knows about this decision, and more importantly, I don’t believe anyone has quantified its effect on the number and type of electorates.

As you may have guessed, I now have. A number of helpful people at the Electoral Commission and the Electoral Enrolment Centre, Statistics New Zealand, and even the Parliamentary Library who have responded to my many information requests over the last months have my thanks [Statistics New Zealand in particular, are excellent responders to information requests, often replying within hours (in the past, I’ve had and apology from them when they were going to take more than a day)].

After each Māori option, the Electoral Act requires election authorities[7] to send the end result of the option to the Government Statistician. Disappointingly, neither the Electoral Commission, nor Statistics New Zealand retains the full information for past Māori options (the split between Islands is crucial). For the three boundary determinations where the decision to impute Māori descent has been in effect, authorities were able to construct full data only for 2007. For 1997, I have been able to glean enough information from the report of the Representation Commission, and another paper published in the Australian and New Zealand Journal of Statistics) to be able to reverse engineer the ratio of Māori enrolment for each island. Unfortunately, the information available in respect of the 2001 redrawing lends itself only to an estimate of the crucial proportions of Māori enrolment by island.

So what is the effect of the decision to impute Māori descent to a proportion of those who don’t know, or wouldn’t say? It has increased the number of Māori seats, and caused a slight decrease in the fair number of general seats in the North Island. As at the last boundary determination, it accounted for 0.8 of the 7 Māori seats:

Māori seats
	1997	2001	2006
With imputation	6.23	6.83	7.25
Without imputation	5.73	6.13-6.16 (estimated)	6.44
Increase	0.49	0.67-0.70	0.80

The effect on North Island general seats was present, but wasn’t as marked:

North Island general seats
	1997	2001	2006
With imputation	44.65	45.99	46.74
Without imputation	45.00	46.31-46.48 (estimated)	47.24
Decrease	0.34	0.32-0.49	0.51

Because of rounding, imputation hasn’t had a real effect on the number of North Island general seats (although it may be a matter of time), but as noted above, without it, 2001 would not have seen in an increase in the number of Māori seats, and it would have stayed at six in 2006 as well.

The decision of the Government Statistician – which in a close election could affect the balance of power – hasn’t had a lot of press, with the only public mention in the technical notes of the Government Statistician’s calculation, such as this one in 2006:

The Māori descent figure derived from the 2006 Census includes an allocation of a proportion of those people who did not provide a clear ‘yes’ or ‘no’ response to the Māori descent question. The allocation includes a proportion of those people who answered ‘don’t know’, provided a multiple response (for example ‘yes’ and ‘don’t know’), or who did not provide a response at all to the question.

It also raises important questions. Was the decision proper (in a legal sense)? And perhaps most importantly, is it right?

I don’t have a concluded view on this, but there is cause to question it.

From a statistical standpoint, the analysis will certainly give a more accurate figure for the “real” Māori descent population. Assuming that everyone who answers “don’t know”, or who gives a confusing answer is not of Māori descent is statistically unjustifiable: clearly some of those who don’t know will be of Māori descent. The analysis undertaken is statistically sound, but that observation is diminished when one realises the more accurate information is kept out of census releases, leaving less accurate data for everyone else. Only someone with the full data can undertake a CHAID analysis, and more accurate assessments of not just Māori descent, but also a variety of other variables in the census where people may give confusing answers could be beneficial. That other census data isn’t presented in this way suggests that this isn’t the “number of ordinarily resident persons of New Zealand Māori descent as determined by the last periodical census” that the Electoral Act refers to in the definition of the Māori electoral population.

The underlying principle behind including people who can’t vote in our election calculations is that those who aren’t enrolled (mostly because they are too young to vote) are deserving of the same representation as those are able to vote. With a system of overlapping Māori and General electorates, this is somewhat artificial: we effectively assign Māori descent non-voters between the Māori roll and the general roll based on a choice they are yet to make. And most importantly, it is a choice that those who don’t know whether they have Māori ancestry, or who won’t clearly answer the question, will never get to make. People who cannot or will not give a clear “yes” to the question ‘are you of Māori descent?’ cannot enrol on the Māori roll.

Having made the policy choice to include those unable to enrol or vote in our electoral calculations, it is clearly necessary to assign the fair proportion of those who would have the choice to enrol on the Māori roll to the Māori electoral population. Increasing the Māori electoral population by assigning to it a proportion of a group who are not given that option, and those who would not be given that choice if old enough to vote, is not so obviously defensible.

Most problematic is that the decision to impute Māori descent to people only affects one stage of the calculation: people who have Māori descent statistically imputed to them are added to the total number of people of Māori descent, but are not added to the number of people of Māori descent who are enrolled on the general roll. At that stage, any who are enrolled are counted as voters on the general roll who are not of Māori descent. Imputing Māori descent to the fair proportion of voters (all of whom will be enrolled on the general roll) would, at that stage, reduce the proportion of those of Māori descent on the Māori roll, and reduce the number of Māori electorates.

The decision was made on legal advice, but the law doesn’t say a great deal about whether imputing Māori descent to those who give unclear answers is acceptable. Both options could probably fit within the words “the total number of ordinarily resident persons of New Zealand Māori descent as determined by the last periodical census”, but one may be a better fit than the other.

The question of whether the Government Statistician should have made a decision likely to have this sort of impact isn’t as interesting as it might seem. Given that these are statisticians, a decision not to do this would have been just as important a choice.

The decision appears to have been made without fanfare, or public or political consultation. Although, again, I’m not sure what that would add given the clear political implications of the decision. It may have been nice if the Royal Commission on the Electoral System had looked at this, but this sort of analysis was very much in its infancy in 1986.

Nonetheless, I am a little disconcerted that a single person can make what is potentially a far-reaching decision with no real oversight, and almost in private. I wonder if what should happen in situations like this might be for the government body to seek a court High Court declaration on what the law requires or allows. There will not always be a right answer, but there may be a wrong one.

Some time later this year the Criminal Procedure Act will enter into force. There are major changes to the procedure, many (I suspect most) for the better. It also contains the first amendment to the New Zealand Bill of Rights Act that reduces the rights contained in it, instead of extending them.

It's a pretty big deal. But the discussion on these procedural changes has been done. My posts here and here have some of the details.

But the changing of some of the processes, has meant substantive changes were needed to our criminal laws. In particular, the removal of the distinction between indictable offences (otherwise known as crimes), and summary offences (otherwise known as summary offences) will result in the expansion of the scope of a number of crimes.

The definitions of a number of crimes include the word "crime" within them, and when we abolish "crimes" in the technical sense, something needs to replace it. The important point to note is that things that currently constitute "crimes" are essentially a subset of imprisonable offences. Not all things that count as "crimes" are really serious, but there is a certain threshold that has to be reached. The group of imprisonable offences is considerably larger than the group of crimes.

The best example of the change - and the one most likely to make a big difference, is the offence of burglary.

Historically, burglary was the combination of two offences: breaking and entering, and theft. Breaking into someone's house is a crime. Stealing from someone is a crime. Add the two together and it gets much more serious.

There have been changes over the years to burglary. The requirement of "breaking" went at some point, so that it could still be a burglary if you went through an unlocked door. The definition of what counted as entry also changed. Any part of you, or of anything you were holding could be enough. There also used to be a greater focus on buildings, and I don't think it always covered tents, and 'enclosed yards', which it now does.

One of my tutors on the Legal Professionals course gave an example of the effect of the then quite-recent law change. I probably have the details wrong, but his client had smashed a shop window with some sort of crowbar, only to realise that there was a security grill behind the glass. She never entered the premises, but the tip of crowbar did as it went through the window, and as she was touching the crowbar at the time, that was enough. Upon finding herself charged with burglary, she said something to the effect "that's not a burglary, I've done burglaries!" But it is, now.

These changes were behind the burglary charges initially faced by Lucy Lawless and her fellow Greenpeace protesters over her oil-drilling protest, and also the burglary charge faced by Adrian Leason, Peter Murnane and Sam Land over the Waihopai spy dome deflation. There was some media comment that the burglary charges in those cases were "overcharging", but the charges just reflected changes to the legal elements of burglary, that perhaps haven't been subsumed into its ordinarily-understood definition.

Big changes, yes, but they were announced in advance, and debated in Parliament in the ordinary way. The change to burglary (as well as some other offences) as a result of the Criminal Procedure Act, hasn't really faced the same sort of scrutiny.

At present, after the changes I list above, burglary can essentially be described as an illegal entry, with the intention of committing a crime.

Notice the use of the word crime. We're abolishing crimes, and we're abolishing the indictable jurisdiction that essentially defines which offences count as crimes, and which do not. An illegal entry undertaken for the purpose of committing an offence that does not meet the definition of "crime" is not a burglary.

But the use of the word crime as part of one of the elements of an offence like burglary, means we have to come up with another concept to take the place of the "intention to commit crime" component of the offence. In respect of burglary, the intention requirement will change from “with intent to commit a crime” to “with intent to commit an imprisonable offence”. Because the range of offences covered by “imprisonable offence” is much wider than the range of offences covered by “crime”, this means that the scope of burglary has expanded substantially. And things that previously did not count as a burglary, soon will.

Two examples should suffice: when the law change takes effect, an unauthorised entry into an enclosed yard for the purposes of committing minor vandalism (currently three months’ imprisonment for the entry, and three months’ imprisonment for the wilful damage), will become a burglary, with a maximum of 10 years’ imprisonment.

It might also be easy to imagine someone selling marijuana on a street doing so from behind the fence of enclosed yard, so they can't easily be seen. Putting your hand through the fence to secure possession of your class C drug (maximum penalty three months' imprisonment), will soon, also constitute a burglary.

The behaviour I've described probably won't result in burglary charges all that often, but as the charges in the Waihopai and Greenpeace protests show, assumptions about police charging practice as a result of law changes may not always be met.

The law change itself isn't really the concern (although, let's be honest, it is). My concern is the way in which the change was made, without anyone realising that was what was happening. I suspect few of the members of Parliament who spoke on the bill, and voted for it, understood the consequences of the change they were making, and I don't believe anyone who made a submission on the bill did either (I read them all) .

I wrote a fairly big part of a submission on the Criminal Procedure Bill. And like everyone else, focused on the big-ticket stuff. I picked up a few procedural issues, and got a few things changed no-one else had noticed.

Last week, I presented an argument in the Supreme Court which focused on a provision in the Act's suppression powers (which are the bit of the law already in force) which closely mirrors language I wrote for the submission. I'm quite pleased that non-accredited media can have a right to be heard on suppression orders (especially given the Law Commission recommended they shouldn't) and it was quite surreal to be arguing about what it meant given I'd spotted the issue, and suggested the change adopted.

But I missed this.

And I'm sorry about that. This isn't to say the change is necessarily bad, but there should have been a debate. Even if just on this website. I wasn't alone in missing it, but this is the type of unintended consequence I try to pick up when I'm writing a submission on a bill, and I dropped the ball.

I recognised the change some time ago, too late to make a difference to the changes in the Criminal Procedure Act, but have been meaning to post on it. A submission I presented yesterday to the Justice and Electoral Committee (on behalf of the Law Society) (.pdf)  seems like a good time to do it.

When the Criminal Procedure Act was passed, references to crime and indictment from across the statute book were amended, and changes were made to a whole bunch of offences like burglary. But a few were missed, and along with a few minor changes, Parliament is now considering a "non-controversial" bill to fix things up for later in the year when the new regime takes effect.

The Criminal Procedure Legislation Bill includes changes to six offence provisions which include an intention to commit a crime as one of their elements. It proposed to change three of these offence provisions in line with the changes to burglary: changing the requirement from an intention to commit a crime, to an intention to commit an imprisonable offence. The effect won't be as wide-ranging as the burglary change, but the scope of each offence is nonetheless expanded. The change to the other three is much more concerning, with the intention element changing from an intention to commit a crime, to an intention to commit an offence. That offence doesn't have to be imprisonable.

One of those three offences is the offence contained in section 251(2) of the Crimes Act, which makes it an offence punishable by two years imprisonment to possess "any software or other information that would enable [you] to access a computer system without authorisation" if  you intend "to use that software or other information to commit a crime". I'm pretty sure Microsoft Windows has that capability, so it seems rather ludicrous to make possession of it a serious crime in such circumstances. Increasing the punishment of a minor, fine-only offence to two-years imprisonment because of the involvement of a computer program is legislative overkill.

Yet more concerning is that the bill not only proposes making this sort of change, but that it would also empower the government to make future changes of this nature by regulation. If it happens that there are a few more of these offences with "intention to commit a crime" contained in them, the government wouldn't even need Parliamentary approval to choose between extending them to imprisonable offences, or all offences.

Parliament should be very wary about ever giving the government the power to amend primary legislation, but that power should never include the power to expand the scope of criminal offences. And it certainly shouldn't be doing it in a non-controversial law reform bill.