Legal Beagle by Graeme Edgeler


Council elections: FPP Q&A

After my (re-)post about ensuring your vote counts under the single transferable vote voting systems, I had the concern that people might think I was telling them how they should vote. My post was not intended to tell people what strategy they should use when voting (I'll be ranking everyone because I see no downside to it in this election, but there are perfectly good reasons not to).

I don't get to decide what is important for you when you vote. That's on you.

I do not accept that there are wasted votes. I do not believe that people who vote for the Green Party candidate in a marginal race are to blame if a Labour candidate loses. I do not believe that a party vote for the Maori Party is wasted despite the fact they are unlikely to get a list MP. And I don't believe that a vote for a minor party with no hope of reaching 5% or winning an electorate is wasted either. I would like people to vote with the knowledge that these are the consequences of their vote, but if they weigh them up and vote that way anyway, well, that's democracy in action.

Yes, if Peter Dunne hadn't been elected in Ohariu in 2011, National wouldn't have had the numbers to partially privatise state assets. But I also have no doubt that the vast majority of people who voted for Green Part candidate Gareth Hughes in that electorate did so knowing that if Peter Dunne won the electorate, he'd back National, and that they were perfectly happy that they could have used their vote differently to make that less likely. Although I cannot really imagine what the 20 Ohariu voters who gave United Future their party vote, but Charles Chauvel their candidate vote, were hoping for, they certainly don't owe me an explanation.

You do not have an obligation to vote tactically. For your own reasons, you can choose to vote in whatever way you want. In an STV election, you do not have vote for everyone, and I will fault no-one who chooses to rank only some candidates and who because of this doesn't help decide an election that comes down to two people they have left unranked.

My post on STV was aimed at ensuring that people know the consequences of their choices. Leaving some people unranked because you simply do not want to rank them is fine, leaving some people unranked because you think that helps the people you have ranked is a mistake (it does not help them in any way).

I think most people understand the basics of STV (vote your favoured candidate with a 1, your next with a 2, etc.), but not everyone is sure how to make the most of their vote (what if there's someone I really don't want to win?), and my post was aimed at providing some of that information.

I live in Wellington. The four races I get to vote in during this local election season will all be conducted under STV, but everyone voting outside Greater Wellington will also be able to vote in First Past the Post elections, and I had the thought today that perhaps, not everyone knows how to make the most of their votes under that system, so the following Q&A follows:


So you’re voting in an FPP election, and you want know how to best use your vote? Well … here goes.

What is FPP?

FPP is First Past the Post. It is an election system where you vote using ticks.  It can be used to elect one candidate – like a mayor – or to elect multiple candidates in a single ward.

What elections use FPP?

All regional council elections except Wellington use FPP. Most council elections use FPP (the councils in the Wellington area, and in Dunedin, Marlborough and Palmerston North use STV). All DHB elections use STV.

How do you vote in an FPP election?

In the form of FPP used in New Zealand local body elections, you vote with ticks. The candidates with the most votes win.

How many votes do I get?

You get one vote for each vacancy. In a mayoral election conducted under FPP, this means you put a tick next to the name of one candidate. In a council ward electing 3 candidates, you can vote for up to three candidates. If your ward election 5 candidates, you get five ticks

Do I have to use all of my votes?

No. Your vote is still valid even if you don't use all of your votes. In a councel ward electing five candidates, you can put ticks next to 1, or 2, or 3, or 4 or 5 of the candidates, and your vote will count.

What are the ways my vote might become invalid in an FPP election?

If you don't vote for anyone, or if you vote for too many people (e.g. two candidates in a mayoral election) your vote can't be counted. I have no idea whether, if you number three candidates 1, 2 and 3 in a council race electing three candidates, whether your vote will count, so don't risk it!

But is it a good idea to use all of my votes in a multi-councillor election?

Maybe. It depends on what is important to you in casting your vote.

There is one candidate I really really want elected in my local council ward, what should I do?

If you want to increase the chances of one candidate against all of the others and are willing to sacrifice the opportunity to help select other councillors, then voting for only that candidate is your best bet.

Unlike STV, where lower rankings only matter once the people you have ranked higher have already been elected, or cannot possibly be elected, every vote under FPP is a positive act that counts toward someone, voting for someone you kind of like as one of your choices can harm the chances of someone you really like.

This also applies if you really like more than one candidate. You can vote just for your favoured candidate, without using all of your 

I don't think my favoured candidate in the mayoral race has much chance, is it worth giving them my vote?

It can be, but be aware that it may mean that another candidate whom you don't like will have a better chance of being elected.

Under STV there is likely to be no consequence to giving your first preference to someone you really like who has little chance, because you will be able to use your later preferences to decide between the "serious" candidates.

However, under FPP, someone can be elected despite being opposed by the majority of voters. If this concerns you, because you fear that someone may be elected because the votes of the people who dislike them will be split among a range of other candidates, you may want to consider voting for your second or third choice, if you think that person has a better chance of being elected. They might not be your first choice, but if you feel that there is someone who would be happy to have as your mayor, and you think they have a better chance of winning, it can be a good idea to vote for them, even if they're not your favoured option.

So what if there’s someone I really really don’t want elected?

Well, first of all, don't vote for them.

If your main motivation in a first past the post election is to ensure that a particular candidate doesn't get in you have to be a little tricky.

Unlike STV, where ranking everyone above them (in any order you choose) makes the "Anyone But ..." strategy easy, under FPP, you have to know a bit about the likely result.

In general elections, this is usually pretty easy. People who support ACT will often choose to vote for a National candidate to make sure a Labour candidate won't be elected, and people who support the Greens may choose a Labour candidate, to give them the best chance of defeating the National candidate. First past the post elections tend to operate this way, moving toward a result where a lot of people vote against their preferred candidates, to ensure something they consider would be bad, won't happen.

It's harder to do this in local elections, because the options aren't as clear cut, but it is possible.

In local elections, if there's someone you really don't want to be elected, the strategy is to cast all of your votes, for other candidates other than the candidate(s) you strongly oppose. In a mayoral election, this means casting a vote for the one candidate who will likely get the most support out of the others. In a multi-member council ward, this means casting the maximum number of votes (e.g 5 in a 5-councillor ward) for candidates you think will be most likely to beat your nemesis, but without voting for any candidate you are confident will be elected anyway.

That sounds complicated!

Who said FPP was easy to understand? It all depends on what is important to you. For most people, voting is probably a simple matter of putting a tick next to the candidates you like (but not too many!), and not caring about the tactics of it all.

Unlike STV, FPP provides a substantial encouragement not to cast a vote for someone you like if you think they have little chance of winning, so as to avoid the prospect of someone you strongly dislike being elected. This srong negativity in FPP, almost requiring tactical voting at the general elections, is one reason I oppose FPP, but you have no obligation to vote tactically if you don't want to. And, personally, I probably wouldn't.

I'm not voting in a first past the post election this time around, but I do at general elections (the electorate races are run under FPP), and I don't think I've ever voted for solely tactical reasons. Then again, I don't think I've ever been confronted with a candidate who had a good chance of winning, but whom I despised. I'd vote tactically in the right circumstances, but I'm not sure they're that likely to arise.

Don’t forget to vote!

Voting is by postal ballot, and papers have now been sent out, so you should have yours by now. If you don't, it's possible you are not enrolled. It is not too late to enrol to vote in the local body elections, and to cast a special vote.

You should enrol to vote. You can do this online. Or you can get an enrolment form from a Post Shop. Or you can call 0800 36 76 56.

If you haven't received your voting papers, and think you need to cast a special vote, contact your local council.

If you want your vote to count, it has to be with your local returning officer by midday on Saturday October 12. If you’re posting them back, try to get them in the post on or before October 9, to make sure there’s enough time. If you’re getting near the date, it might be safer to drop them off in person at the council, or somewhere like a public library. Your council website – and voting papers – should have all the information you need to do this.


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.


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!



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.


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.