Legal Beagle by Graeme Edgeler


The flag referendum: complicating your decision

I published a Q&A on how to vote in the first flag referendum, and because a first-past-the-post election with two choices is one of the few voting systems that cannot be gamed, I was going to write a half-joking post with a single question for this one:

How do I vote in the flag referendum?

You have two flags to choose between. Put a tick next to the flag you prefer.

Only, before I got around to writing it, I realised it was wrong. This vote isn’t at all like an ordinary first past the post vote. And the analysis isn’t obvious like the vote in the first flag referendum, or in a mayoral election run using single transferable vote.

Casting an effective vote in an FPP election can require you to have a lot of information. If you want your vote to make a difference, you may have to vote against your real preference. In our national elections, electorate races are run using the first past the post voting system, but the party vote is king, so it usually doesn’t make a big difference to the overall result.

But other elections may be different. You might hate, hate, hate your current mayor. But if want rid of them, and your council uses FPP, it may be better to vote for your second or third choice instead of the person you really want for mayor. If your favourite candidate has little chance of winning, voting for the lesser of two evils is a way to mitigate the damage.

Of course, no-one is obliged to cast their vote in this way. Parties and candidates don’t own voters There were people in Epsom who gave their party votes to ACT, and did not give their candidate votes to David Seymour. Good for them. A couple may have been confused, but I reckon there’s a good chance that most of them knew exactly what they were doing. Same with the voters who vote for the Green Party candidate in Ohariu: I reckon most of them are fully aware that voting for the Labour candidate would increase the chance of removing Peter Dunne from Parliament. And they’re fine with that: the Labour candidate seems not to have done enough to earn their votes. Maybe the next one will do better.

I firmly believe that there are no wasted votes, but for those voters whose aim is to cast a vote most likely to affect the outcome. this sort of conundrum isn’t supposed to happen when you’ve only got two options. Because, well, you’ve only got two options: Hitler or Stalin? Bush or Gore? Kang or Kodos? If there’s someone you like: great! If not, vote for whichever you prefer, however unpalatable your options might be.

But that probably doesn’t work this time.

Why is this? Because the vote is a one-off. Maybe. And it’s that “maybe” which is important.

We’ve had the current flag since 1902. If we adopt a new flag in this referendum, it’s probably sticking around for a while. Absent a revolution, it will be the flag we having through major constitutional change, even something like become a republic. It will probably be around for 80 or a 100 years.

But if we don’t change, then maybe there will be another chance to change. Ok, not within three years, probably not within the next 10 or even 20 years. Maybe it’s something that waits until we become a republic (if we become a republic), and maybe it doesn’t happen at all.

Which means your options can be complicated. You may hate the fact that the Union is in the first quarter of the New Zealand flag, and accordingly think that the blue and black Lockwood is an improvement, but you might still vote for the current flag, because you don’t think it’s enough of an improvement. You might be prepared to risk 30 years more with the 1902 flag, so that you can experience 30 years after that with a really really awesome flag.

Conversely, you might think that the Lockwood flag is actually worse than the current flag, but you might still vote for change, if you think rejecting the current alternative might mean a vote in 10 years’ time that might choose a flag you hate even more.

I haven’t got the answers.

If we reject the alternative flag, will we be offered another opportunity to change the flag? I don’t know.

If we were given another chance, how long would we have to wait? I don’t really know that either.

If there’s another alternative offered at some currently unknown future date what flag or flags will we be given to choose between?

Will they be better or worse than the current flag and better or worse than the current alternative flag? Well, that’s up to you, and you don’t know either.

How should you vote? I don’t know that either.

I’ve always liked the current New Zealand flag. I reckon it just looks really good. The stars are in good positions, well-sized, with those little borders, and the right number of points. I’m not much of a fan of the idea of becoming a republic – I’m not sure the alternative would be better, so why change – but every so often, I have a republican twinge. When MPs are commanded by Black Rod to attend the Speech from the Throne, or when the House has to seek permission from the Crown before they can debate certain bills, the idea of a Crown seems a little ridiculous. If Parliament reckons it should be sovereign, they should be a little more willing to tell the Crown to suck it.

But even so, I’ve often thought that if we ever did become a republic, I’d quite like to keep the current flag. But I’m actually ok with the alternative, so I’m still a little undecided. Maybe the next time, the choice will be worse :-)

A footnote on the flag referendum process

There have been complaints about the flag consideration and referendum process. There are other ways we could have done it (I supported one at the select committee) but this is fair way of doing it. Disagreement about the quality of the result doesn’t necessarily mean that the process through which it was obtained was bad.

We could have had a team of designers included on the Flag Consideration panel, but as long as they still sought public input, I can’t see they could have excluded the Lockwood design from the long list, or the short list. A lot of people don’t like the Lockwood flag, and we may see in a few weeks whether they are in the majority, but Kyle Lockwood’s fern design has been a popular alternative flag for quite some time.

Had we undertaken a different public process for choosing an alternative flag to run against the 1902 flag, I think it’s highly likely the alternative flag being offered in this referendum would have been Kyle Lockwood’s design. Although I guess it may have been the red, white and blue one. It’s not all that old, but it has actually stood the test of time. Some of the other alternative flags that have been proposed over the years have not.

On another note, I don’t know whether it is particular to New Zealanders, but we seem to have a tendency to try to make the word “political” do far too much. Any public vote is a political matter. The flag is a political. But New Zealanders often use the word “political”, when they really mean “partisan”. I disagree, but there is a reasonable argument that it shouldn’t be a partisan matter.

If your sole reason for voting one way or the other in the referendum is your view of John Key, then I have no problem with that. My view is that voters’ reasons are their own. Parties can choose to adopt positions on a range of issues, and they can be judged on those positions, or on the fact they even have an opinion, or on the fact they don’t.

But it is perfectly proper that others should feel differently, and consider it wrong that voters’ view on which flag they should vote for should have nothing to do with their views on a particular party or politician. It would be nice, however, if this criticism was made on the basis that the flag vote shouldn’t be a partisan matter. Of course it is political!


New Zealand's most racist law

Earlier this year, Ted Dawe’s teen novel Into the River was temporarily banned. It was a ridiculous decision, but this was in part attributable to a flaw (one of many) in New Zealand’s censorship law. The only two options that the President of the Film and Literature Board of Review had available were allowing the book to go unrestricted, or temporarily banning it. The Board of Review had already determined that harm would be done if the book was available to 13 year-olds, and the only option that the Board President had to prevent that anticipated harm was a temporary ban on anyone obtaining the book.

National MP Chris Bishop has announced that he intends to introduce a bill into the Member’s ballot to amend the law to allow temporary restrictions (not just temporary bans). Hopefully it gets drawn, because I look forward to supporting his bill. I suspect I’ll be pushing for the bill to be extended – I’m not sure that we need interim restriction orders at all – they only ever apply when the censor has already approved something for release, so even if there is harm, it’s very much at the lower level.

This is an ideal member’s bill. It’s short and simple. Hard to stuff up drafting, and if stuffed up, easy to fix in select committee. Bishop has proposed a few short simple bills in his short time as an MP, and as MPs can only have one bill in the Members’ ballot at a time, and some of his colleagues seem not to have many ideas (or at least, not many ideas that have made it through caucus), he’s passed some on to others.  Drafting legislation to advance freedom probably isn’t a bad thing for a new MP to become known for.

There a lot a reasons to advance a members bill. From opposition, it can be a good to force an issue onto the agenda, sometimes hoping to get the law changed, but other times, knowing you don’t have the numbers, but wanting to force the government to make an unpopular decision.

Complex member’s bills are difficult. The results are sometimes embarrassing. Jacinda Ardern wanted adoption law reform on the agenda, but advanced a laughably bad bill to try to achieve this (Kevin Hague had a more serious attempt, but wasn't lucky enough to have his bill drawn from the ballot, and is now promoting something else). Keith Locke wanted a public discussion of a whether New Zealand should continue to have a Head of State who lives in another country, and whose role (under the law at that time) passes to their eldest son, as long as that person is not a Catholic (or even married to one) but his bill to set up a process for a referendum on a republic was ridiculous (for example, it didn’t create a republic, and in the event of the untimely death of a new New Zealand head of state, the role passed to their son, as a long as that person was not a Catholic!). And in an effort to stop child sex offenders from gaining employment working with children, Jian Yang wrote a bill that declared everyone convicted of robbery to be a child sex offender.

Getting a law right is hard. Even the professionals stuff it up (and not all that infrequently). If an MP wants to actually pass a good law from the back benches (or from the opposition), they’re well advised to make it a simple one (or be really really careful!).

I’ve got a simple idea. We should repeal New Zealand’s most racist law.

Sections 30-36 of the Maori Community Development Act 1962 (originally the Maori Welfare Act) are laughably offensive.

Early last year there was a rash of instances of tourists having their car keys taken off them by people who had decided they were unsafe to drive. It stopped after a few instances, with police (and even the Prime Minister) warning against it.

What few of the people quite rightly objecting to the mild vigilantism probably realised is that the law actually specifically provides for circumstances when people can have their car keys taken away from them.

If the driver is Māori.

Or if the driver is non-Māori, but is in charge of a vehicle near a meeting place, or a lawful gathering of Māori.

It is also illegal to serve alcohol at a gathering of Māori. A Māori Committee can grant a licence to serve alcohol at a gathering of Māori, but only if that gathering is not for the purposes of a dance.

Māori wardens are empowered to enter hotels and to order quarrelsome Māori to leave.

This reads like it comes from one of those lists of ridiculous laws that are still in force, when New Zealand usually seems to be represented by a claim that it’s illegal to fly with a rooster in a hot air balloon (which I’m pretty sure isn’t true).

But it’s worse than a ridiculous law. It’s a racist law.

It has no place in New Zealand. It should never have been the law. And it certainly shouldn’t be law now.

There are a bunch of MPs who do not currently have a bill in the members’ ballot. Well, here’s an idea for you: propose the repeal of sections 30-36 of the Maori Community Development Act. I’ve even drafted a bill for whichever MP wants to take this up.

We have had racist laws before. And we have others still now. The Citizenship (Western Samoa) Act is still there: following was a Privy Council decision that said a large number of Samoans were entitled to New Zealand Citizenship (what was then known as Western Samoa was under New Zealand control for a number of years, and as British Subjects under New Zealand control when New Zealand citizenship was created, they qualified). Muldoon’s Government didn’t want a lot of Samoans becoming citizens, so passed a law, stripping them of the right to claim it on that basis. That was a worse law – it still prevents Samoans claiming citizenship using an argument that can work for people of other nationalities – but it’s probably “hard”. This is easy. There should not be criminal laws that apply only to Māori.

Discussion of repeal of parts of the law has come up in the past. John Key is reported to have said that the bit allowing Māori Wardens to eject Māori from pubs “felt a bit racist”. And others MPs called in antiquated, and in need of repeal. Well, that was five years ago, and the law is still there. It’s time for some member of Parliament to force the issue.


Voting in the Flag Referendum

Voting in the first flag referendum started today, with the first voting packs delivered. Enrolled voters have the option of taking part to decide which alternative flag will go up against the current New Zealand flag in a second referendum that will be held next year.

The Electoral Commission has a site which explains some of the details, but there have been a bunch of people in my Twitter and Facebook feeds a little confused about some of the details, so I thought I might try to clear some of them up.

How do you vote in in the first flag referendum?

You rank the flags with numbers. Put a 1 next to the flag you most want to win, a 2 next to your next favourite, then a 3 for the next flag, then a 4, and then a 5 for the flag you least want to win.

Do I have to rank all of the flags?

No. Your vote is still valid even if you only rank some of the flags.

What are the ways my vote might become invalid in the first flag referendum?

If you don’t rank any flag at all with a “1”. Or if you rank more than one flag with a “1”. Or if you vote using ticks, like in a first past the post election.

If you muck up the later numbers – like ranking two flags with “4”s, or skipping the “2” and going straight to “3” – your vote won’t be able to transfer to help those flags or anything lower, but your earlier rankings will still count.

But is it a good idea to rank everyone?


But if I rank a flag I don’t like, couldn’t this hurt the chances of my favourite flag?


Your lower preferences cannot ever harm the chances of a flag you rank higher.

If you really like Red Peak, or really like the Kyle Lockwood flags, there is no harm in ranking them, and then ranking the other flags as well.

But my vote could still transfer to a flag I’m not that much of a fan?

Yes. But only if all the flags you ranked higher than it cannot possibly win.

By ranking a flag lowly, you’re not helping it beat flags you like more, you’re only helping it against flags you rank lower.

But what if I really don’t want to rank all the flags?

You don’t have to. If you just like one or two of the flags, it’s okay just to rank those if you want to, especially if you think all of the others are equally bad.

But if there’s a flag I really really don’t want chosen what should I do?

Rank that flag “5”, and rank every other flag ahead of it.

And this can’t cause any damage?

No. Your lower-ranked choices can never hurt your higher-ranked choices. Only ranking some of the flags, and leaving the other flags unranked, does not help the flag or flags you like in any way. There are voting systems that do that, but the voting system we are using in the flag referendum is not one of them. (This is also true of the ranked voting in some of our local body elections.)

My voting paper hasn’t arrived yet, what do I do?

Wait a little bit. The voting papers massively increase the workload of NZ Post’s posties, so they spread their deliveries over a few days. If you haven’t got your voting papers by next Friday, then check with the Electoral Commission.

Is it too late to enrol to vote?

If you aren’t enrolled at all, enrolling now won’t let you take part in the first flag referendum, but you’ll still be able to vote in the second referendum next year. That referendum will put the flag that does best in this referendum up against the current New Zealand flag. There are also local body elections next year, and you might even get called up for jury service! Information about enrolling to vote is on the Electoral Commission website, or you can call 0800 36 76 56.

Update by popular request

I really like the current New Zealand Flag, how should I vote?

You can vote for the current New Zealand Flag at the second referendum next year.

You do not have to vote in this referendum to vote in the next one, but you can if you want. Voting in this referendum can help make sure that if there is a change to the flag, it at least isn't changed to a particular alternative flag you really hate (rank that flag "5", and rank all of the other flags above it).

I want to protest  the whole referendum process, what should I do?

The best way to protest against a government policy you disagree with is to protest it. Feel free to organise a march, or sign a petition, or even change your vote at the next election 

There is no way that you can cast a vote in this referendum that will be recorded as a protest.

The Electoral Commission will record the number of informal votes, but will not separate out those which have "keep our flag" written on them, from those where the voter accidentially wrote in two 1s.

The Electoral Commission will also record the turnout. People will probably claim it means something. Others will disagree.

Working people are processing these ballots; if you write "keep our flag" on the voting paper, or come up with an even cleverer protest to include with your voting paper it will be seen by two or three or the temporary workers who are processing the ballots for counting. No-one else will know.

A basic protest won't bother them, but if you are the type of person who is a dick to wait staff when your meal isn't exactly how you like it, feel free to be the type of person who is a dick to polling staff when your democracy isn't exactly how you like it.

When is this all over?

Completed voting papers for the first referendum need to be posted no later than Friday 11 December 2015, and received by the Electoral Commission by noon on the following Tuesday.

Voting papers for the second referendum will be sent in early March next year, and voting for that closes on 24 March.


Crowdsourcing Project Cortex

Acting Head of the Government Communication Security Bureau Una Jagose was interviewed by Patrick Gower for this week’s episode of TV3’s The Nation. Much of the Bureau’s work was off limits in the interview (including any discussion of the GCSB’s involvement in any “full-take” capability as part of the US-led Five Eyes network), but Jagose was interviewed at length about Cortex, the Government’s cybersecurity programme.

The existence of Cortex was announced during the heat of the election, after Glenn Greenwald’s Snowden disclosures about Project Speargun. Keith Ng considered the release a smokescreen:

Instead, what Key has done is release a bunch of documents about a programme called CORTEX. This was a plan to provide malware detection and disruption services to companies and ISPs.

CORTEX has nothing to do with SPEARGUN

The Nation contacted Nicky Hager, who gave his view that cybersecurity was about 10% of the GCSBs work. We don’t know the extent to which Speargun happened. Maybe what we think has happened, has happened, but has a completely different name.

I can’t solve that here. But we do now have a little more information about Cortex, which apparently aims to protect the government and major corporations from cyber attacks.

According to Jagose, one of the requirements for an agency to receive Cortex protection is that it must advise “people that come into contact with that network, that their communications may be screened for cyber defence purposes”. She continued:

you will know in advance that your communications will be screened for cyber defence purposes if this is a Cortex product we're talking about, so you'll already know that in your engagement with whatever the company or agency is.


Gower: Yeah, but I would be told, would I, by the company that they've now put Cortex on?

You'll be told that your communications will be screened or may be screened for cyber defence purposes.

Right. How do you get told that?

In terms and conditions of use, for example.

On the extended Sunday panel, Bryce Edwards and Jessica Williams were somewhat scathing of this, noting that almost no-one reads the terms and conditions.

But to know whether an agency is protected by Cortex, we don’t need everyone to read the Terms and Conditions, or Privacy Policies of every organisation they’re in contact with, we really just need one person to read them. And that could even be a different person for each one.

Which is Where You Can Help.

I can’t do them all, but I have looked at a few Government departments and major companies to see, based on the advice of Ms Jagose, which agencies have such protection (and the risk that our contact with them will be screened by the GCSB as part of project Cortex (if I might be screened under some other programme, I doubt they’re going to tell us).

I have looked, where applicable, at the terms and conditions, and the privacy statements, and the contact pages and contact forms of a number of agencies and can confirm that, if Ms Jagose was correct when she said that those in contact with agencies protected by Cortex would be informed in advance of the possibility that their contact with those agencies may be screened for cyber defence purposes, then:

  • The Department of Prime Minister and Cabinet is NOT protected by Cortex (their privacy policy records that when you voluntarily provide them personal information they will only use that information to communicate with you, and will keep any such information secure and will not disclose it to any third parties.)
  • The Ministry of Defence is NOT protected by Cortex (according to their privacy policy information you provide them is only used to communicate with you, and they keep any such information secure and will not disclose it to any third parties).
  • The GCSB is NOT protected by Cortex (there is no mention of monitoring in either the privacy section, or on the contact page).
  • The National Cyber Security Centre is NOT protected by Cortex  (no mention of monitoring in either the privacy section, or on the contact page).
  • The New Zealand Security and Intelligence Service may be protected by Cortex (its privacy policy records that it may communicate information in the interest of security, but there is no mention of monitoring, suggesting they may not be protected either).
  • The Ministry of Foreign Affairs and Trade is NOT protected by Cortex (no mention of monitoring in either the privacy section, or on the contact page)
  • Transpower is not protected by Cortex (there is no mention of monitoring in their terms and conditions, nor on their contacts page).
  • Fonterra is NOT protected by Cortex (their terms of use only allow them to provide personal information to “permitted third party service providers as identified in this Privacy Policy”, and the GCSB is not identified).
  • ANZ is NOT protected by Cortex (their privacy policy allows your emails to be monitored by for security issues, but only by ANZ employees)
  • BNZ is NOT protected by Cortex (the privacy section in their terms and conditions, notes that BNZ can monitor your accounts and other information, but makes no mention of others)
  • Kiwibank may be protected by Cortex (again, not as clear as it should be, but their terms and conditions say they can release your information if it will assist in the investigation, detection and/or prevention of fraud, money laundering or other criminal offences, and they lack the terms used by eg ANZ and BNZ about how such use is limited to bank employees. Of course, with no specific mention of monitoring or cyber defence, so they may not be protected either.

None of the agencies I looked at have information in their terms and conditions, or privacy statements that would provide the clarity that the Head of the GCSB states will be provided by those agencies that are benefitting from the protection against cyber attack that the GCSB's Protect Cortex is supposed to provide. But I’ve far from looked at everyone, so maybe there is some agency out there that clearly describes that contact with it will be screened for the purposes of cyber defence. I’m guessing that no-one provides the level of clarity, as minimal as it was, that Una Jagose described as a "precondition" for cyber protection by the GCSB.

It's unfortunate that this sort of information can't be to hand during an interview, but the big story from Patrick Gower's interview may be even that no-one meets the preconditions for cyber-protection by the GCSB and it isn't actually protecting anyone. Or, of course, that the promised openness, even when limited solely to the GCSB's cyber security function, is another smokescreen.

But maybe you can find a statement about monitoring for cyber defence that's as clear as they're supposed to be, so please feel free to look them up and link to them in the comments. If everyone who reads this does one or two, we'll know the reach of Cortex in almost no time at all :-)

UPDATE: two lists of the state sector organisations in NZ; first from the State Services Commission, and second from the portal. And the wikipedia list of companies in the NZX50 index of New Zealand's largest listed companies.

Thanks to Alex in the comments for kicking us off. Information provided voluntarily to the Courts (such as via email) is kept secure, and is not disclosed to any third parties.

Keep them coming!

UPDATE 2: Found some: the NZDF, the Army, Navy and Air Force, Cadet Forces and Veterans Affairs!


The Greg King Memorial Blogpost: Three Strikes, Five Years On

It now a bit over five years since New Zealand introduced the three strike sentencing regime for “serious violent crime”. And, after some news coverage about this a few months back, I decided I’d try to find out how well it’s working. It may surprise you to learn that the evidence to date suggests it is having a deterrent effect.

More on that later.

New Zealand’s three strikes law has always been a much more targeted law than its North American namesakes. It is designed to avoid particularly unjust outcomes, covering a relatively narrow range of offences, and it allows for *some* of its potential harsh consequences to mitigated in the event of a “manifest injustice”.

This has seen for example, what would have been the first two sentences of life without parole (the consequence of a murder committed as a second strike or a third strike) avoided, as explained by Andrew Geddis here (avoided for now at least, as the Crown is appealing both decisions).

Even with these decisions, and the really rather low likelihood of it causing a massive injustice, I still oppose three strikes. Applying the proviso can only get you so far. The “manifest injustice” exception only applies to the non-parole period. It can, as it has, turn what may have been an unjust sentence of life without parole into a more just sentence of life with the possibility of parole. It cannot turn what may have to be a mandatory life sentence for a manslaughter into anything less than a life sentence.

Now, I have to concede that the situations where something really unjust will happen are unlikely, but they remain possible, especially with the expansion of the scope of burglary, about which I’ve written before. Now, burglary isn’t a strike offence, but aggravated burglary is, which is any burglary committing while in possession of a weapon (the weapon doesn’t need to be used). And while high school lunch money stand overs are never prosecuted as aggravated robberies, or even as robberies, the idea that everyone convicted of a listed offence was committing something we’d agree was a serious crime is problematic.

One of the good things about New Zealand’s three strikes system is that it is in no way retrospective. At least some of the three strikes regimes in the United States are retrospective in part. While none increase the penalties for offending committed before they were passed, the higher mandatory penalties they impose can be affected by convictions entered before the law was adopted.

In New Zealand, convictions that pre-date the law don’t count as strikes, and offending that pre-dates the law, but which was prosecuted after the law change doesn’t count either: not even for a first warning (which has no effect other than being needed before something can later count as a second strike).

New Zealand’s three strike regime has an element of formality to it. Offending can only count as a second strike if the offender has actually been convicted of a strike offence before the new offending occurred. Conviction is formal step, distinct even from a finding of guilt, and when it occurs, the judge is required to read out (and provide a copy of) a formal warning of the effect of a subsequent. Judges are likely to also remind offenders of the warning at sentencing, which, for serious charges, is usually a separate event.

I suspect that the principle rationale of supporters of three strikes in New Zealand was not deterrence, but incapacitation. They looked at the people committing really serious crimes like murder, saw that many have long criminal histories, and decided that if those people had been detained for longer for their earlier crimes, they wouldn’t have been in a position to commit the more serious crimes they later engaged. It has a certain logic to it, but, of course, it captures people with similar criminal histories who would not have later committed murder.

Supporters of three strikes point to the reduction in violent crime in California after the introduction of its three strikes regime (generally regarded as the strictest form) as evidence that it “works”. This argument is invariably followed by the counterpoint: crime was down a similar amount in New York, and New York didn’t have three strikes, so maybe crime was just down everywhere, and three strikes had nothing to do with it? This, naturally, is followed by the rejoinder: New York may have not have had three strikes, but they did adopt sentencing enhancements, which can have a similar effect on sentencing. It’s an oft-repeated argument: someone will point out that our imprisonment rate is increasing, even while our crime rate is decreasing. To which the response will be that the crime rate is decreasing precisely because the imprisonment rate is increasing. The argument is all but impossible to resolve.

But, in New Zealand at least, we have a chance to test whether the three strikes law is working. And early indications are that it may well be.

A couple of months back, Stuff carried an article looking at three strikes five years on. It was picked up on Kiwiblog – which played up the deterrent effect:

“So 98.6% of offenders who got a first strike, have not gone on and committed a second strike offence. That’s great. The certainty of knowing that they will not get parole if given a second strike appears to be a strong deterrent.”

And it was picked up on The Standard, which called the arguments “innumeracy”.

I questioned David Garrett about his conclusions in the comments thread of the Kiwiblog post:

“Three strikes was intended to work in two ways: first and foremost, to protect the rest of us by incapacitation of repeat violent offenders, i.e by putting them in jail where they cannot harm the rest of us. Secondly – hopefully – by specific and general deterrence.

I would be very interested if someone has a better theory as to why have 5400 first strikers five years on, but only 76 second strikers, when the vast bulk of the first strikers have served their first strike sentence, and are thus on the street. It is of course impossible to prove deterrence, as it is impossible to prove any negative.”

76 second strikes does seem low (turns out that it’s really 81, but that seems low too). But I’d be wildly speculating if I was to offer reasons why it might be low: has National instituted a wildly successful rehabilitation programme for serious offenders? I have no idea.

I asked David (Garrett, not Farrar), whether he was sure the number was in fact low:

“What are the comparison numbers for the five years before the three strikes law took effect? How many people were convicted of an offence listed as a strike offence during those five years, and how many were convicted of a second or subsequent strike offence committed after that conviction was entered?”

He didn’t know. Neither, of course, did I.

I decided to find out. It seems the obvious comparison in any assessment of the deterrent effect of three strikes. We know how many second strikes there have in the five years since it entered into force. How many would there have been in the five years prior to three strikes had the same rules applied?

To the Official Information Act!

You need to be careful when crafting OIA questions around this sort of comparison, and I am relying on the Ministry of Justice to have correctly understood my intention. It is not enough to compare the number of convictions before and after the law change. Almost a third of convictions for “strike” offences since three strikes was enacted haven’t attracted first warnings because they relate to offending that occurred before the law change. You need to exclude similar offending in the comparison.

Between 1 June 2005 and 31 May 2010, 6809 people received convictions for strike offences that occurred between 1 June 2005 and 31 May 2010.

Between 1 June 2010 and 31 May 2015, 5422 people received convictions for strike offences that occurred between 1 June 2010 and 31 May 2015.

So strike crime is down around 20% since three strikes came into effect. Claiming cause and effect over something like that is the type of intractable debate that you get into over the effect of longer prison sentences. But what we are looking at is not the general deterrent effect of three strikes (fear of punishment in the public at large), but specific deterrence: fear of punishment by those who have a conviction for strike offending who have been personally warned by a judge that further strike offending is treated very seriously.

And that is where we can check the comparison between the five years before three strikes and the five years after it.

We know there were 81 second strikes in the first five years of three strikes. These are people who have been convicted for committing a strike offence after the law came into force, and subsequent to that conviction, been convicted of a further strike offence, itself committed after their earlier conviction occurred. The pre-strike comparison therefore needs to be people convicted of an offence committed after 1 June 2005 (but before 31 May 2010), who were then convicted before 31 May 2010 of a further offence committed after that conviction.

And it turn out that that number is a lot higher. Had the three strikes law been in place on 1 June 2005, the following five years would have seen 256 offenders receive second strikes.

Now, strike crime is down in general, but the ~20% fall in strike offending is dwarfed by the ~62% fall in strike recidivism.

Now, I hear you argue, if the three strikes regime had been in place earlier, then people might have acted differently. Well, you’re probably not arguing that, because the usual approach of the type of people likely to reading an article on Public Address, has been what Denis Dutton once apparently described as the “feverish search for ‘the real reason’” for the decline in violence.

I am, of course, open to alternative explanations: perhaps, in June 2010, the Government also introduced some highly successful treatment programmes, so that a person in prison for strike offending in 2011 has a much better chance of turning their life around than a person who was in prison five years earlier.

I doubted such a treatment programme exists, but I decided to follow that up with a further OIA request.

Because of the lack of retrospectivity in our three strikes law, two people convicted on the same day, in respect of the same charge can have different strike consequences: someone convicted for offending that occurred after the law came into force receives a strike warning, but someone convicted of an offence committed before the law was enacted receives no warning.

A comparison between these two groups may help confirm or quash the alternative hypothesis that some change in treatment is the cause of the substantial reduction in strike recidivism.

In the first 4 years and 7 months of three strikes (curse you tier one statistics!), 2437 people have been convicted of strike offending that did not result in a strike warning, and of those, 360 had subsequently earned a first warning for an offence committed after that conviction. That’s a strike recidivism rate over 1000% higher among those who didn’t receive a warning than those who did. Of course, this direct comparison is misleading, as the post-strike convictions for pre-strike offending will be front-loaded, occurring on average much earlier in the ~5 year period since three strikes was enacted, and thus allowing more time for strike-level recidivism to occur. However, it remains useful, as it provides evidence to negate the alternative explanation for the pre-strike/post-strike comparison of much improved recidivism treatment.

And that is what we are left with: in the first five years of three strikes, there were 81 second strike convictions. In the five year before three strikes, there would have been 256.

81 second strikes seemed low. Now we know it is.

And given that strike-level recidivism has dropped much faster than strike-level offending, it’s useful to ask why. I am particularly sceptical of general deterrence, am more accepting of the idea that incapacitation decreases crime (though am concerned about the cost), and am intrigued by the idea that personal deterrence, through the formal three strike warning, may actually work.

I got to this point by saying “81 second strikes sounds low, but is it?” Confirming it is leaves more questions. But the possibility that the three strike law is having a deterrent effect still leave unanswered questions. Of course, there may be other explanations, and if so, I would welcome falsifiable hypotheses. If people would like to offer some alternatives, it may be possible to graft OIA requests that may rule some of them out.

More help may come if we can make the analysis in the second (currently flawed) comparison, more granular: breaking the results down by year, or even month should enable a comparison which isn’t as affected by front-loading.

I guess my question is: if you are sceptical of the deterrent effect for second and third strike consequences, what evidence would it take for you to convince you? Establishing clear cause and effect will be impossible, but providing enough evidence to reach a conclusion that three strikes is probably (or probably not) having a deterrent effect should be possible. We have some data already – strike recidivism appears to be falling much faster than strike offending, so what more do we need?

PS If you are in Wellington, Professor Warren Brookbanks will be giving the Inaugural Greg King Memorial Lecture at 6:00pm tonight (Wednesday 30th), at the Victoria University Law School. The lecture has been organised by David Garrett, who was a good friend of Greg King’s, and Professor Brookbanks topic is the same as this blog post “Three strikes – five years on”. David Garret was the impetus behind three strikes, which Professor Brookbanks was a staunch opponent of the three strikes law when it was adopted, so it will hopefully be an interesting event for those who can make it along.