Legal Beagle by Graeme Edgeler

11

Oops: how some prisoners serving life sentences get to vote

Thanks to the Official Information Act, I can now confirm that a law change in late 2010, which removed the right to vote from a large number of prisoners sentenced to short terms of imprisonment, has given the right to vote to up to 37 prisoners (as at April 2013) serving life sentences, or preventive detention.

Back in late 2010, at the height of National's attempts at bipartisan consensus for electoral law changes, the National Party, with support from the ACT Party (which spoke against, but voted in favour of the law) passed the Electoral (Disqualification of Sentenced Prisoners) Act over opposition from every other party in Parliament.

Under the old law, people sentenced to three or more years imprisonment lost the right to vote while they are detained. Other prisoners remained entitled to vote. The law extended the ban on voter enrolment to all sentenced prisoners. Thanks to a wonderful blogpost by Andrew Geddis, Parliament avoided accidentally giving the vote to a range of people who were disqualified from voting under the old law, but who through amendments recommended by the select committee (which was trying to avoid the new prohibition being retrospective) would have been required to enrol, and entitled to vote. This included people sentenced to preventive detention, and life sentences. A rather big mistake.

They fixed that up during the committee of the whole - adding a section to the law that says that people who were disqualified from voting immediately before the law took effect were still disqualifies. But, thanks to the magic of the OIA, I can confirm that there is a group of prisoners, who would have been banned from voting if the law hadn't changed, who are now entitled to vote.

There are a couple of points to make clear. Under both the old law, and the new law, as soon as a prisoner is released, they are entitled (actually required) to enrol, and are allowed to vote. This includes people serving short sentences, right up to those serving life sentences or preventive detention.

This means that people who were sentenced before 16 December 2010 (when the disqualification law took effect), but who were out at that time, were entitled to vote (assuming they met the other qualifications: NZ citizen or permanent resident, at least 18 etc.) when the law took effect.

Which is important, because as I note above, the fix Parliament included is about ensuring that people who were disqualifed just before the law took effect, remained disqualified. And, therefore, it doesn't cover those who were released at that time, and who have later been recalled to prison to continue serving their sentences (a brief explanation: when someone is sentenced to prison, they receive a total sentence, of which they have to serve a minimum amount, before becoming eligible to be released. If they later get in trouble, the Parole board can recall them to prison to continue serving their sentence until it runs out, for people on life sentences, or preventive detention, recall can be made for the rest of their life.)

And it turns out, that, as at April 2013, there were 31 prisoners serving life sentences (and a futher six serving sentences of preventive detention), which were imposed on or before 15 December 2010, but where the recall happened on or after 17 December 2010 (and a further 160 who were back in prison having been recalled for finite sentences). And unless there was some other reason that meant these people were disqualified to vote as at 15 December 2010 (or if they have now been sentenced for a new offence after 16 December 2010), they will all be entitled to vote, even the ones serving life sentences, and even though, if they law had never changed, they would have been banned from voting. The following statement, from a further OIA response I received yesterday, confirms this:

you have also asked whether a prisoner recalled to prison on a sentence imposed prior to 16 December 2010 would be eligible to vote. In these circumstances, a prisoner will be eligble to register to vote provided that they were not otherwise disqualified under the provisions that were applicable before 16 December 2010.

As Prisoner Manager have a duty to provide eligible prisoners the opportunity to vote, I wish them well exercising their voice in the upcoming local body elections! And you lot, too!

Update/Clarification: have changed the wording above to make clear in light of comments in the thread that I cannot be sure that as many prisoners as I describe are certainly within this group who are entitled to vote. The information I received from Corrections didn't list names, and it is possible that the reply ignored separate prison sentences or other disqualifying factors. The OIA requests do however confirm to my satisfaction that there is a category of prisoners - including some lifers - who are entitled to enrol and vote because of the law change banning sentenced prisoners from voting.

12

Dewey Defeats Truman; or Advice to those polling in preferential systems

Dear people commissioning polls in preferential elections
(like the Wellington mayoral race),

please take a lead from Australian pollsters, who have gotten used to polling in elections which use preferential voting, and ask people which of the 'serious' candidates they will rank higher. Don't just ask people who their first preference is.

If you do this, your poll may actually have a chance of predicting something useful.

Also, don't only 'poll' your readers!

Regards,
Graeme

57

The Police Investigation into the GCSB

The Police have completed their investigation into the GCSB spying on Kim Dotcom, and have decided not to charge anyone. I am fine with that. For the most part I don't think we should impose serious criminal liability on people who aren't intending to break the law. I think this was an appropriate case for the police to exercise their discretion not to lay charges, and have said so in the past.

Yes, there were people in the GCSB who illegally spied on Kim Dotcom, but absent knowledge or recklessness about their lack of authority, I think civil penalties - Dotcom being able to sue (whether for breach of privacy, or unlawful search or breach of confidence or something else) and get a remedy that way - should be sufficient. We don't need to use the criminal law in respect of individual employees of the GCSB to mark our disappointment, or anger, at what has gone on here.

But this isn't a case where police have found an offence committed, and then decided not to charge those responsible. Instead this is a case where the police have decided no offence has been committed at all.

And their decision is woeful.

The Police have said that they do not believe an offence has been committed because:

it cannot be established that any GCSB staff had the necessary criminal intent to illegally intercept private communications in this case.

The problem with this observation is that an "intention to illegally intercept private communication" is not an element of the offence  police were investigating. The intention requirement in the offence relates to the act of intercepting private communications by means of an interception device, not to the assessment of whether the interception was illegal.

Not all offences are like this. In addition to intercepting phonecalls, the GCSB can also access your computer. The offences around that are different. To commit the offence of accessing a computer system without authorisation, you must not only intentionally access a computer system without authorisation, you must also either know you didn't have authorisation, or be reckless about whether you have authorisation.

I think that law is a much better one. We should be reluctant to impose criminal penalties on those who lack a 'guilty mind'. I can't see a particularly good reason not to have that as an element of the offence of intercepting private communications. Any reasonable distinction that means knowledge or recklessness is appropriately an element of the offence of unlawful access to a computer, but shouldn't be an element of the offence of unlawful intercepting a private communication eludes me.

But the law draws a distinction in this case, and it is a very clear one. The police rationale for not charging anyone in this case assumes an element of the offence that simply is not there. I think the law should be amended so that that is an element of the offence, but I don't get to re-write the laws, and neither do police.

It happens I think they would have a good rationale for not laying charges in this case. The lack of intention to break the law is an entirely proper consideration in exercising the discretion not to prosecute in a particular case, and would have provided a good reason not to charge any particular GCSB employee.

I suspect that Police would still have faced criticism had they stated they considered an offence had been committed, but that it wasn't in the interests of justice to prosecute. It probably matters very little to them, but I would not have joined in.

19

Fact Check: New Bail Laws

This morning, under urgency, Parliament enacted the Bail Amendment Act, which makes a number of changes to our bail laws.

It removes near automatic bail for those under 20 (limiting this to those under 18). And it removes near automatic bail for those under 18 who have previously been sentenced to prison. The most significant change relates to bail for those charged with murder: anyone charged with murder will have to prove they should get bail. This also applies to those charged with dealing in class A drugs. We will have to see whether this makes much difference. Bail is hard to get already if you are charged with murder, (or with dealing with class A drug crime) but it will likely mean that at least some people at the margins will be denied bail who would have got it under the old law, and some of these people will ultimately be acquitted. I'm not a fan of making bail tougher - I think the law should treat people as innocent until proven guilty, and sending innocent people to prison is obviously wrong - but that's not what this post is about.

The National Party is quite pleased with its new laws - understandable given that they fulfil a clear pre-election promise (.pdf) - and has even released the following ad, which various MPs have tweeted, or facebooked:

This describes the reverse onus provisions in the Bail Act. Usually, the police have an obligation to prove why someone shouldn't be bailed, but in certain circumstances, the onus of proof shifts (here's something I prepared earlier), and the person charged has to prove why they should get bail (a rule which will now apply to all people charged with murder).

But National's ad is a highly misleading way of describing the new bail law. In fact, it's a really a description of the current law. Except the current law is tougher than this. There is a list of "serious crimes" in section 10(2) of the Bail Act. No-one who has committed one of those serious offences, who is found to have committed another offence from that list is allowed bail at all.

National's law change is not, as its ad states, about those who commit serious crimes, but is instead about those who are *alleged* to have committed another serious crime (whether they have in fact committed it at all). It is an important distiction, but perhaps we can accept it as advertiser's licence.

Someone who has been convicted of one of those serious crimes, and who is charged with another of those serious crimes has to prove they should get bail. So if you have a conviction for robbery, or rape, or manslaughter (or any of the other serious offences on the list) and get out, and are then charged with another offence from that list (it doesn't have to be the same one), you have to prove you should get bail.

Except, wait, *that's already the law* as well. And it's been the law since the Bail Act was enacted in 2002.

People with prior convictions for serious offences who are charged with another serious offence already bear the onus of proving that they should be bailed.

The law change that National has made around this area is, in fact, much much smaller. It has kept the law that Labour enacted in 2002 word-for-word and simply added six extra offences to the list of serious offences (basically: underage sex, kidnapping, aggravated burglary, and assault with intent to rob). It's a change, but it doesn't really bear a resemblance to what is described in their ad, which has (ignoring the bit where they say 'commit') has been the law for quite some time.

There are plenty of changes that National could trumpet from their bail law changes - changes that would actually be laws for which they bear responsibility. And which, to be honest, will probably be popular. But they have instead chose to run advertising with a statement taking credit for the law as it was during the previous government. And that just seems wrong.

26

Gordon Campbell @GordonCampbell_ #GordonCampbell

Gordon Campbell has written an important article for this month’s Werewolf, detailing the concerning nature of this Government’s attitude to the rule of law.

However, while the article makes a large number of important points, some of the detail is exceedingly odd, in particular, his assessment of the Government’s approach to Bill of Rights Reports, which Gordon draws upon in support of an overall thesis that this is all much worse than we have seen before:

4. Token Bill of Rights Act (BORA) Reports. Routinely, the Attorney-General vets new Bills as to whether they comply with the Bill of Rights. Just as routinely, the government ignores the conflicts that ther A-G identifies. Here are a few examples of where the Key government has ignored its legal puppet and passed laws that violate human rights supposedly protected by BORA, and/or by international conventions that New Zealand has signed

No reason is given as to why the Attorney-General is the Government’s “legal puppet”, and I would have thought that the fact Chris Finlayson is making so many reports suggests he probably isn’t a puppet. But that is less important than the example’s Gordon gives of where the Key Government passed laws that violate human rights.

Gordon’s first example, the Criminal Investigations (Bodily Samples) Amendment Act draws no further comment from me. It seems a perfect fit for the argument. However, his second example - the Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill - is laughable:

  • it isn’t a government bill. It is a member’s bill, albeit from a National Party MP.
  • it also hasn’t passed. The strong hint that this was the case is probably in the use of the word “Bill”, but it makes a list of laws passed by the Key Government anyway.
  • this bill is still before a select committee, and it has already been indicated that it will not continue in the same form. We will need to wait to see whether this is still in a form which would breach the Bill of Rights, but even if it is, it won’t be as a bad as it is now.

Gordon’s third example is the Parole (Extended Supervision Orders) Amendment Act 2009. Extended Supervision Orders are problematic, but this act didn’t create them. They were created in 2003 by the Labour Government in the Parole (Extended Supervision) and Sentencing Amendment Bill. National’s bill made some largely technical changes, properly characterised as errors in the original legislation. Fixing the errors did have the effect of extending the powers of the Parole Board, but not in a way beyond that which was originally intended, which was why it got a section 7 report. National can, perhaps, be challenged for not repealing extended supervision orders, but this bill’s inclusion in this list makes no sense.

Gordon’s next example is the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010. I agree it is worthy of a place in a list of unreasonable laws passed under Key’s watch, but Gordon’s description of its effect is seriously in error. Gordon states:

Probably the Key government’s most craven pitch for the talkback radio vote. This Act effectively removes the right to vote from every New Zealander who happens in prison at the time of a general election.

Again, this wasn’t a government bill, but a member’s bill, but more importantly, saying the bill “effectively removes the right to vote from every New Zealander who happens in prison at the time of a general election” is simply wrong. The law does not apply to all prisoners. It does not apply to people who are in prison for non-payment of fines, or those in prison for contempt of court, or those in prison for disobedience of a court order. It also does not apply to service prisoners detained under the Armed Forces Discipline Act. It does not cover those detained in prison awaiting extradition hearings. And most importantly, it does not apply to prisoners who are on remand awaiting trial or even those remanded to await sentencing. 

Next we have the Sentencing and Parole Reform Act, otherwise known as the three strikes law. Unfortunately, Gordon paraphrases the Law Society’s views at the select committee: “this provision for a life sentence to be imposed for a third listed serious offence appears inconsistent with the right not to be subjected to disproportionately severe treatment”. This might be right, but it’s a particularly poor example to use of the Government ignoring human rights concerns, because on this issue, the Government listened to criticism and removed that provision before it passed the law. The three strikes law does not provide for life sentences for third strikes.

Next we have the Corrections Amendment Act 2013, in respect of which Gordon’s analysis seems fine. The strip-search provisions of this bill, which were opposed by not only the New Zealand Law Society, but also the Ombudsman, and the Corrections Association, seem unnecessary.

Finally, we have the Prisoners’ and Victims’ Claims (Continuation and Reform) Amendment Act 2013. This too is offensive, but like the Extended Supervision Order regime, this is merely a re-enactment of a law passed by Labour. National did announce it was going to go further than Labour did, but there was objection, and it backed off. The law offends against the right to an effective remedy for state breaches of rights, but it doesn’t really belong in a list aimed at pointing out how much worse than previous governments National is.

Gordon lists other bills he considers problematic, with many of his arguments overstating any problems in the bills. He describes the Search and Surveillance Act as allowing searches without warrants, but doesn’t state that the old law allowed them too. He uses the production order system, which has been designed to be less invasive than the aspect of the search warrant procedure it replaces, as an example of overreach. A member’s bill providing for secret ballots for strikes – a worker protection mechanism – is objected to because it doesn’t similarly apply to boards of directors, who have no say in lockouts, and who don’t need protection. He argues that the removal of a tax break provided to companies is anti-worker, despite it applying to money employers have no option but to pay to workers.

The simple point is that none of these overstatements is necessary to make the overall argument that Gordon Campbell makes. There are plenty of objections in respect of state overreach and civil liberties that can be laid at the Government’s door without resorting to the fallacious examples the article uses. Arguments like these, which are easily rebuttable, weaken the case, and I like to think we deserve better from someone I have recently seen described as New Zealand's leading political journalist.