Legal Beagle by Graeme Edgeler


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.


Update: Coroner's investigation

My post "Breaking News: Man Shot by Police; or the $600 tweet" has been picked up in the media. Police had not previously confirmed that Mr Červeň was unarmed when shot and the news that "The Coroner has ruled that there is currently reasonable cause to believe the death was self-inflicted" is also new, although it is important to note that is "in no way a concluded view on the matter."

My guess is that a Coroner would almost never release a tentative finding in such a way, and would not have had I not sought a High Court review of the refusal to let me publish. A coroner has previously found that a police shooting death was self-inflicted, but that finding was a concluded view, released at the end of the inquiry into the death.

The odd thing is, I wasn't seeking to break actual news. I did not ask the Coroner to release information, and certainly did not expect to cause the release of even obvious preliminary findings. I just wanted to lawfully report the information that Police had provided to the media at a press conference. I thought the public had a right to know a man had been shot and killed by police (and that police had admitted this), and didn't want to break the law when I relayed this information.

I think that, when there is a Police shooting, police ought to release information like "no weapon was found on the deceased", once they have reached that view, but I was not asking or expecting the Coroner to do it for them. That's just not something Courts do.

The coverage shows one of the problems with the entire process of seeking permission to make public particulars of death. In a position where they have to give "authority" to news coverage, the Coroner may be unwilling to give authority to publish information that doesn't meet the standard of a judicial finding. But that is not the standard to which the media aspires: initial reports can be incomplete, or the media can accurately report a witness who provides a statement that turns out to be misleading. In events like a shooting death, news coverage can fairly include conflicting statements without concluding which (if any) is accurate. If coroners are to approch applications for authority to release information in the same way that they approach inquests, then the system cannot work.

In the end, I got to do more than simply release (lawfully) information that was already released, but actually got to break news, as I was released a Coronial finding not automatically made available to other media. This is odd in itself. It may be appropriate that media or the public should be able to apply for a release of preliminary findings or tentative views by a Coroner, but the way the law is written, this is a power that is limited to cases where the Coroner may be able to find a death to be self-inflicted. In other high profile cases, the way you would do this is unclear, and you wouldn't have a statutory right to go to the High Court to challenge a refusal.

I'm not particularly hopeful, but with some luck, Parliament will be able to fix this when the Coroners Amendment Bill comes up before the Committee of the Whole House. Of course, as was pointed out in the comments to my earlier post, removing the new prohibition on reporting overseas suicide bombings is probably a higher priority.


Breaking News: Man Shot by Police; or the $600 tweet

On the evening on Sunday 2 August, Police shot and killed David Červeň in Myers Park. He died at the scene. At a press conference the following day, Superintendent Richard Chambers, the Auckland City District Commander of the New Zealand Police, stated that the death occurred after Mr Červeň declared he had a firearm and was about to use it.

Almost all of you will know this already. The information, after all, comes from a press conference, excerpts of which early in major news programmes on television and radio, and which made it into stories in New Zealand’s major newspapers, and on-line News sites.

But this is still an exclusive, as I am the first person to be able to tell you this legally.

Until Friday afternoon, shortly before I ‘broke’ the news on twitter, the Coroners Act forbade any publication of the fact that someone had been shot by police in Myers Park.

This is obviously ridiculous. The law should not automatically suppress the fact that police have shot and killed someone. Not only should it not automatically be suppressed, I’m not sure it should ever be suppressed. The death of someone at the hands of those exercising state power is an issue of the highest public importance.

Anyway, I thought this was important. And, as I have before, I sought permission from a Coroner to publicly discuss the salient details.

I should be clear, the law does not ban the publication of all police shooting deaths. Rather, the circumstances of this death, as relayed by police at their press conference, bring into play section 71 of the Coroners Act, which limits the discussion of particulars of the manner of a death if “there is reasonable cause to believe the death was self-inflicted”. I considered there was a chance that that applied here. It is difficult to see a distinction that could clearly distinguish a death resulting from someone purposefully stepping in front of a train as self-inflicted, but allowing that a death resulting from someone (especially someone unarmed) telling armed police officers that he was about to use a firearm could never be self-inflicted. As it happens, the Coroner agreed. Deaths at the hands of Police have previously been ruled suicides, and although there is no conclusion yet, there is at least reasonable cause to believe that may be the case here.

The death was on Sunday 2 August, the press conference on Monday 3 August, and I made my request for permission on the Tuesday. By Thursday, I had a response: “Coroner Greig will not be commenting about this case until the investigation is complete.”

I hadn’t asked for comment, so I followed up, and had a formal reply later that day:

It is early days in the inquiry into Mr Červeň’s death. However, given the reports in the media, it appears that section 71(1) of the Coroners Act 2006 may apply. Accordingly no person may, without the Coroner's authority, make public any particular relating to the manner in which Mr Červeň’s death occurred until her inquiry into the death has been completed. Such authority is not granted.

A man was dead, shot by police, and the public could not lawfully be told this.

I thought this was a little off.

The following day, I filed an application in the High Court, seeking a statutory review of the decision. To ensure there would be as little delay as possible, I also filed the necessary evidence, and my submissions. It had its first call a week and a half later, and was set down for second call for four weeks later (tomorrow, as it happens), allowing the Coroner and the Crown Law Office time to consider their position on the application.

And late Friday afternoon, I received a decision of the Coroner, granting the permission I had sought five and a bit weeks ago. Permission was granted to release the following particulars:

  • David Červeň was shot by police officers in Myers Park, Central Auckland on 2 August 2015.
  • David Červeň died as a result of the injuries he sustained when shot.
  • Prior to being shot, David Červeň had told attending police that he was armed.
  • After being shot, David Červeň was found to be unarmed. No weapon was found at the scene.
  • The Coroner has ruled that there is currently reasonable cause to believe the death was self-inflicted though this is in no way a concluded view on the matter.

This suggests to me one of the problems of the whole process of requesting permission from a Coroner. For a journalist, or a blogger, a request for permission to make public particulars of a death is a request to report what they would ordinarily report: quotes of eyewitnesses and information made public by police. That first, rough draft of history, not firm conclusions. But for a Coroner to give their approval to report a particular, that Coroner may feel it necessary to be satisfied that something is, in fact, a particular of the death.

And if that it is the approach, the system is only going to get worse. A bill to amend the Coroners Act recently went through select committee and is awaiting second reading. The bill contains some improvement over the current law: for example, it permits reports that a death is a ‘suspected suicide’. For most suspected suicides, that will enable a freer discussion in the media: the possible method is usually not of public interest. But the restrictions will still apply to all of those other examples I gave in previous look at this matter, like Facebook mourners. And it will still prevent publication (without permission) in cases like the one, where the manner of death is itself the story.

In other respects, however, the law is getting stricter. The penalty for a breach is increasing, and the law now more clearly proscribes the details that may be published, banning publishing not only the method (or suspected method) of a self-inflicted death but also the publication of “any detail (for example, the place of death) that suggests the method or any suspected method of the self-inflicted death”.

And perhaps most importantly, the bit of the law limiting the effect of the ban to potential self-inflicted deaths occurring in New Zealand has been removed.

The Select Committee notes in its report that:

This prohibition does not work well in practice. Although this reporting restriction applies to suspected suicides occurring in New Zealand, it does not cover overseas suicides, which are able to be reported in New Zealand media.

And then, without further explanation, they remove the words “This section applies in respect of a death if … the death occurred in New Zealand”.

I’m not really sure whether this means what it looks like it means. If Coroners currently have difficulty allowing the publication of a particular that they have yet to determine is a particular, I can only imagine the difficulty that will be presented when the Chief Coroner is asked for permission to publish particulars of a death over which she has no jurisdiction, and which no New Zealand coroner will ever investigate.

At some point, information arose suggesting, perhaps even giving rise to reasonable cause to suspect, that the deaths of those on Flight MH370 may have been a result of the deliberate action by a pilot. We may never know. But the suspicion is there, and it may be that should a similar event happen again, it would be illegal to tell New Zealanders that a plane has crashed, lest the manner of the pilot’s death be revealed. If the Select Committee’s unanimous recommendations are adopted, the Chief Coroner will find she has much broader job than she is expecting, with oversight not only of the New Zealand coronial system, but of coroners throughout the world.

Of course, the likelihood of anyone other than me actually bothering to ask for permission in a high-profile case seems low. And the likelihood of all the Facebook friends of who someone who overdoses, seeking permission before mourning is even lower.

There is some hope in the Coroners Amendment Bill. It does appear to be designed to speed up decisions on requests, recognising the urgency that requests for permission to publish particulars will have. But even the two days it took this time to get a first response is far too slow for a case like this. That it can take five weeks until a Coroner is satisfied that it is appropriate to grant permission to publish the fact that someone has been shot by police, when that information was released by a senior Police Officer at a press conference, is laughable.

Or it would be, if it hadn’t cost me $600 to get that far.

It is not too late for Parliament to fix this law. Realising that the law they’re re-enacting can ban the broadcast of police media conferences is a good place to start, and they can follow it up by limiting the law to New Zealand deaths at the very least. David Seymour, I’m looking at you.

And, in all its glory, the most expensive tweet I hope to ever send: