Legal Beagle by Graeme Edgeler


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!


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.


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.


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.