Legal Beagle by Graeme Edgeler

22

Geoffrey Palmer has decided to write a constitution

Last year, the Law Foundation made a $10,000 research grant to former Prime Minister Sir Geoffrey Palmer to write about a New Zealand Constitution. But, after more than one recent government investigation ended in only recommendations to keep discussion alive, he’s going a step further: with Andrew Butler, a partner at law firm Russell McVeagh, he’s working on a draft constitution for Aotearoa New Zealand.

At a public talk at Victoria University Law School last week, Sir Geoffrey outlined his progress. The draft is still unfinished, but the intention is to publish a book (written to be read by the general public, not lawyers or policy wonks) containing the first draft of a constitution, with commentary.

It’s a rather ambitious task.  They intend to then set up a website where people can make comment, before expressing their final view on what should be in The Constitution of Aotearoa New Zealand next year.

After Sir Geoffrey’s talk was announced, and I’d RSVPed, I thought about how one would go about writing a New Zealand Constitution in the current environment (ie without some constitutional crisis or political change necessitating it). My thought was to have a bunch of legal experts draft a no-change constitution: a constitution all written in one place, but with no differences from the current law not otherwise inherent in the fact it’s a written constitution. And then, when they’re all agreed that it makes no changes, every else gets to argue about what we should add to it, or change in it, so that we get what we want, while being less likely to stuff things up.

Well, Sir Geoffrey is a little more ambitious. He’s made changes to our constitutional structure in the past, and would apparently like to do it again.

He didn’t announce many specifics, but the proposal is for a supreme law constitution. His current view is that the Courts should be able to strike down legislation that is inconsistent with the constitution, but that Parliament could vote to override a court decision striking down a law with a 75% supermajority (which is the same level he suggests for amendments to the constitution, consistent with the bits of the Electoral Act already entrenched).

It’s apparently very much a work in progress, and the speech was light on specifics. However, we may be able to glean some insight into where his proposal will lead from the description given with Law Foundation grant:

It is intended to write it from the position of New Zealand as a republic, will provide a higher law constitution with increased power to the courts and a number of other more minor reforms, but at its core it aims to preserve the essence of our Westminster style democracy, strengthen the rule of law, protect property rights and guard against our democratic freedoms being whittled away gradually. It is innovative in providing constitutional protection for institutions that maintain transparency and integrity in government.

The bit about New Zealand being a republic was unmentioned in the speech, and I followed up whether that was still the intention. I’m told I’ll have to wait for an answer to that one; my guess, based on nothing in particular, is that it may be there as an option, but might not be intergral - given the option, I reckon Palmer would favour a written Constitution, even without abandoning the Monarchy. I suspect a right to property will be there, and based on the speech, I think the intention to enshrine democracy is likely to extend beyond voting in national elections, to include a right to local democracy as well, perhaps brought on in part by the Government’s actions in Canterbury.

Later this year isn’t that long to wait, but Sir Geoffrey did read out an outline of what was currently (or at least, recently, as he noted it was already out of date).

  • Preamble
  • The State
  • The Head of State
  • The Government
  • Parliament and the Legislature
  • The Judiciary
  • Law-Making
  • Finance and Taxation
  • International Relations
  • Defence and Security
  • The Treaty of Waitangi
  • The Bill of Rights
  • Other State Institutions
  • Integrity and Transparency
  • Adoption and Amendment
  • Emergencies and suspension of parts of the Constitution
  • Transitional provisions

Though there have been several attempts to get a conversation started, and this one, firmly intending to have an actual draft constitution, may be more likely than most to have some continuing effect. It’s always useful to have something sitting around, if we suddenly find we need it it a hurry (it seems to have worked for the Rogernomes). Sir Geoffrey isn’t expecting change soon. He suggests the adoption of a Constitution might not happen for 20 years, which, if we are to have one, seems like a reasonable time scale, given there isn’t a pressing need, and he realises he’s going to have to convince ordinary New Zealanders, not politicians. 

17

An update of changes to suicide-reporting law (updated)

Parliament looks set to have its last substantive debate on the Coroners Amendment Bill this evening, with the committee stage on the Coroners Amendment Bill listed as the fourth item in the order paper (although, depending on how things go with the other items up for debate, the debate might not finish today).

I’ve written on the bill before, particularly about its rules around public discussion of self-inflicted deaths. The bill relaxes it in some areas, but tightens it in others. I had asked the select committee to reconsider the extent to which our laws criminalised public discussion of self-inflicted deaths at all, but they went the other way: further limiting the details that can be published (while still retaining the liberalising bit from the government’s bill – the right to describe a death as a “suspected suicide”).

The select committee also extended the restrictions on reporting suicides to overseas deaths, and historical deaths, which was somewhat of a surprise.

With the bill through select committee, I largely abandoned hope of it being the means of enacting a sensible law around public reporting of suicide, but I at least hoped the Government would see sense and reverse the decision of the Select Committee to extend the prohibition of publication of details of self-inflicted deaths to overseas and historical deaths.

Unfortunately, they only got part way there. On the day the issue will be voted on, the government released its final amendments. Discussion of the details of overseas suicides will no longer be illegal, but historical suicides within New Zealand will now be covered by the offence.

No reason has been given for the change.

Update: Parliament did not reach the bill this evening. When it will next be up for debate is up to the government. I will try to follow closely.

16

Fact-checking Parliament: more prisoners can vote than they think

Parliament’s Justice and Electoral Committee has released its report on the 2014 general election. There are number of useful observations about the process, and recommendations about possible law changes. Nothing particularly major – work on online voting is not a priority – but hopefully a few changes to make our elections a little bit better will result.

People bring up all sorts of things in submissions on the Inquiry into the General Election: someone will usually ask for photo ID to be required to vote; to which the Committee helpfully responds “We observe that fraud and personation countermeasures are in place: dual votes are extracted through the scrutiny process and not included in the official count, and cases of personation are referred to the police. The number of dual votes is very low, between 0.002 and 0.004 percent of registered voters.”

The Committee wants the ban on partisan twitter use on election day to stay, and looked at the problems with the Broadcasting Act, and recommends further consideration. Perhaps most noteworthy is that the Māori Party (and the Electoral Commission) appear to have won over the Government members, as the Committee unanimously recommended a change to the Māori roll process (allowing people eligible for the Māori Roll to switch roll type once per election cycle, rather than only during the Māori Electoral Option).

And the Committee was also asked by submitters to reconsider the extended ban on prisoner voting. Although “reconsider” might be wrong word: the bill extending the ban on prisoners voting went to the Law and Order Committee, not the Justice and Electoral Committee. This may be part of the reason it passed so incompetently: the expert government advisers on the legislation were not the Ministry of Justice, but the Department of Corrections, who might be experts in running prisons, but they aren't experts in electoral law.

On the prison voting ban, the Justice and Electoral Committee recommended by majority to retain the current ban, noting:

“Prisoners on remand are the only prisoners eligible to enrol and vote.”

Thing is, this isn’t true. Though mostly small, a number of other categories of prisoners are in fact eligible to vote, including a small group of sentenced prisoners, as I discovered here.

My extensive, but probably not exhaustive, list of prisoners who aren’t automatically disqualified from enrolling and voting in New Zealand follows. There are probably some technical issues: although people falling within most of following categories are prisoners, there are technical arguments about whether particular forms of detention are “imprisonment”. People required to go into a booze bus for an evidential breath test are detained, but they are not prisoners (they can vote). And the Government would probably argue people subject to public protection orders ordered to be detained on prison grounds are not prisoners, but are residents. Well, if you’re detained in a building inside the wire at a prison, I’m calling you a prisoner. My list also doesn’t include all people detained. There are all sorts of powers of arrest usually exercised for the purpose of getting someone to court. People under arrest are detained, but they are not prisoners. And forcibly detained in secure care mental health facilities are not prisoners either (some can vote, some cannot).

Assuming a person is otherwise eligible to enrol, the following categories of prisoners are not banned from voting in New Zealand elections:

  • Remand prisoners (people refused bail pending trial; or after conviction but before sentence).
  • Sentenced prisoners serving a life sentence or sentence of preventive detention imposed before 16 December 2010, who were paroled as at that date, but who have subsequently been recalled to prison to continue serving that sentence.
  • Sentenced prisoners on temporary release on the day of the election (if they enrol in time!).
  • Service prisoners subject to a sentence of imprisonment (those convicted at Courts Martial or otherwise under the Armed Forces Discipline Act, unless directed to serve their sentence is a civilian prison).
  • Service prisoners subject to a sentence of detention (even if serving the sentence in a civilian prison)
  • Someone imprisoned for contempt of court (but not contempt in the face of the court, unless they are…).
  • Someone imprisoned for contempt in the face of the District Court if the Court is exercising civil jurisdiction, but not criminal jurisdiction unless in respect of a charge laid before 1 July 2013.
  • Those serving a term of imprisonment for non-payment of fines, but not those serving a sentence of imprisonment in substitution of a community sentence.
  • People subject to a public protection order detained in a residence on the grounds of a prison.
  • People subject to a prison detention order or an interim prison detention order.
  • People subject to an interim detention order ordered to be detained in a prison, or on prison grounds.
  • A person paroled to reside on prison grounds, or subject to an extended supervision order with a condition to reside on prison grounds
  • People detained in prison on an extradition warrant (who are probably technically remand prisoners) or a surrender warrant, including surrender warrants in respect of International War Crimes Tribunals.
  • An Australian citizen who has resided continuously in New Zealand for one year at some point, who is suspected of constituting a threat or risk to security, detained in prison pending the making of a deportation order.
  • Someone imprisoned upon proof of probable cause they were intending to leave New Zealand to the material disadvantage of a person pursuing an action on the High Court for the recovery of a debt exceeding $100.
  • People imprisoned overseas.
  • And even, I think, people who have escaped from prison and are unlawfully at large.

And probably some others I might realise I should have included after reflection. Feel free to suggest possibilities!

22

Future Leaders for Democracy; or lowering the voting age

One of my favourite episodes of the West Wing is the sixth season episode “A Good Day”. There are four somewhat interweaving plots, and all are good. The episode is best known for the legislative manoeuvre of a bunch of congressmen pretending they weren’t going to be able to vote (a scheme copied a few years later by the Conservatives in Britain to defeat a hate speech law); and the plot involving the possible invasion of Canada is hilarious, but I think my favourite thread is the White House visit of the Future Leaders for Democracy, a youth lobby group pushing for a constitutional amendment prohibiting age discrimination in voting rights.

I was reminded of this episode after reading this week’s Sunday Star Times’ debate between Jacinda Ardern and David Seymour, on whether 16 and 17 years-olds should have been permitted to vote in the flag referendum.

This isn’t a new idea, especially when it comes to votes with longer than usual effect. The voting age in the United Kingdom is 18, but the Scottish Parliament allowed 16 and 17 year-olds to vote in the recent Scottish Independence Referendum, with people arguing, well, they’ll be the ones to live with the consequences.

Now, I kind of disagree with both Ardern and Seymour.

Don’t get me wrong - I’m sold on extending voting rights. Like the precocious kids on The West Wing, I’d probably just abolish the voting age completely, although I recognise that won’t happen any time soon. And any law that will move it in that direction will have my support.

There have been suggestions in the past. Green MP Sue Bradford once announced a bill around civic and the voting age, and others have said it would be a good idea at times.

Now, I wouldn’t link it to increased civics education – voting is either a right or it isn’t. And civics education is either a good idea, or it isn’t. And plenty of adults cast votes for reasons we might think are self-serving, or even stupid.

The debate has come a couple of times over the last few years, but one thing has always been missing: kids. The only people I have ever seen argue for the voting age to be lowered are people over the age of 18.

Kids are involved in politics in all sorts of ways. They sign up to Greenpeace, they join political parties (you get voting right in the Labour Party at 15, and there appears to be no minimum age in the Green Party at all). A nine-year-old petitioned Parliament for the testing of people driving on foreign drivers licences in New Zealand, after his father was killed when a foreign student drove on the wrong side of the road.

New Zealand women weren’t among the first to be given the right to vote, they were among the first to insist on being given it. There were protests. And letters to the editor. Groups were formed. And campaign committees. There were several almighty petitions. Some men were involved, but women ran the thing. For years. It took far too long, but when women in New Zealand got the vote, it was because women in New Zealand wanted the vote and set about getting it. It was the same in the UK and the United States. I imagine it was the same in other countries whose women’s suffrage movements I know less about.

But where are 16 and 17 year-olds on the voting age? Because I haven’t seen any. Where are New Zealand’s Future Leaders For Democracy? Where are the petitions, the letters to the editor, or the stories in local newspapers about the questions kids ask the Prime Minister when he visits a school? Where are the YouTube videos, the memes, the whatever-kids-do-these-days I know nothing about? Where even is the page you can like on Facebook? Because here’s one that hasn’t posted since 2012, with 47 likes.

And most of all, where are the kids who want to vote? I’m all for lowering the voting age, but I’ve seen little indication that it’s something all that many of them want. But if they want to fight for it, I’m happy to help, and they shouldn’t have to wait until the next special occasion. If 16 year-olds or 15 years-olds want to vote, we should be acting on it now, not as some last minute addition to a referendum on a flag, or a republic.

23

The Teapot Moan Scandal Ends; or Who will Broadcast the Teapot Tape?

Journalist Bradley Ambrose and Prime Minister John Key have settled Ambrose's defamation proceedings against Key. Ambrose had recorded a conversation between Key and then-ACT leader candidate John Banks, and Key essentially accused Ambrose of committing a crime by making the recording.

The following joint statement was released:

An agreed statement between Key and Ambrose reads:

"In the days following the meeting between Hon John Banks and Rt Hon John Key at the Urban Café in Newmarket on the 11th of November 2011, Mr Key made a number of comments in the media to the effect that Mr Ambrose had deliberately recorded the conversation between Mr Key and Mr Banks, and compared Mr Ambrose's conduct to the News of the World.

"These comments caused harm to Mr Ambrose personally and professionally.

"The comments reflected Mr Key's honestly held views at that time.

"Mr Key and Mr Ambrose have met to discuss the events of that day.  Mr Key now accepts that Mr Ambrose did not deliberately record the conversation, or otherwise behave improperly.

"Mr Ambrose now accepts that Mr Key believed that the conversation had been deliberately recorded at the time Mr Key made his statements.

"The proceeding relating to these statements has been settled."

(via Stuff)

Although we don't know John Banks' current view on this matter, the PM has now publicly stated that he accepts that Bradley Ambrose did not deliberately record the so-called Teapot Tape. This is important. If the recording of the conversation was not deliberate, then no crime was committed when the recording was made. In particular, there can have been no breach of s 216B of the Crimes Act, as that offence can only be committed if the person making the recording made it intentionally.

And if no crime was committed in making the recording, then no crime will be committed by a news organisation which has a copy of it making it available.

Now, other privacy obligations still apply, so if the tape includes truly private material which there is no public interest in disseminating, then media making that material public might face a broadcasting standards complaint, or a civil claim, so such material should be left out, but beyond that, there appears to have been a public interest in the release of at least some of the material that was recorded, so I look forward to someone airing it tonight.