Legal Beagle by Graeme Edgeler

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Q&A: John Banks' judicial review

John Banks’ judicial review of the District Court decision committing him for trial on a charge of knowingly filing a false election return for the 2010 Auckland mayoral election is being heard in the Auckland High Court on Wednesday.

Why is John Banks judicially reviewing the committal decision?

Well, Banks would like the prosecution to be over (if it goes to trial, it will be in the run-up to the election), and getting it thrown out for insufficient evidence is one way of doing it.

But why not just appeal the decision?

In criminal cases, you can only appeal certain types of decisions. They’re individually listed in legislation, and this one isn’t there. He is judicially reviewing, because that is what you can do if an inferior court (a court that ranks lower than the High Court) makes a decision you don’t like. It’s not as easy as appealing, but it’s an option.

How does a judicial review differ from an appeal?

In quite a few ways (an appeal would be a criminal case, a judicial review is a civil case) but one is particularly important: in a judicial review, the “relief” (what the judge orders if you’re successful), is discretionary. Even if you prove there was an error, the High Court can simply decide not to give you what you ask for.

Is it common to judicially review a court?

Well, it’s not uncommon. Search on any database of New Zealand court decisions (there’s a free one here). If a District Court is named as a party, it’s probably a judicial review. Most of the time, however, you won’t judicially review a court decision, because there are a lot of things you can appeal instead, or you may just go to trial, and if necessary, run the arguments you wanted to at an appeal of the final decision.

What about judicial review of committal decisions?

These are rare. Justice Heath, the High Court Judge who is dealing with the judicial review on Wednesday, has released a minute to the parties (more on this later), in which he draws their attention to a 1995 decision of the Court of Appeal, where the Court of Appeal dealt with an appeal from a judicial review of a committal decision, and notes that there are very narrow grounds of which an appeal will succeed.

What is Banks’ argument?

His main argument is that the Judge Gittos simply got the evidence wrong. A judge is supposed to decide a case based on the evidence, and Banks’ lawyer, David Jones QC, says that Judge Gittos made findings that simply weren’t available. For example, the Judge mentions the (in)famous helicopter trip that was arranged by Kim Dotcom to have Banks visit his Coatesville property for lunch. The judge describes the evidence of Dotcom explaining how the two discussed funding for Bank’s mayoral campaign, and two cheques were handed over. He argues that even though Banks and Dotcom disagree on things, they agree that the meeting with the helicopter trip had no mention of a campaign donation, and that the money wasn’t mentioned until a different meeting, months later, which Banks drove to by car. He says that there isn’t even an allegation that any cheques from Kim Dotcom or Mega were handed to Banks personally, at either meeting.

Why would this be important?

Well, if Banks was personally handed cheques, that would be really good evidence that he must have known that Dotcom and/or Mega had made donations to his campaign, so they couldn’t be declared anonymous. But it may not be crucial.

What happens if Banks convinces the High Court the District Court made a mistake?

There are a number of options. The usual result in a successful judicial review is that you order the decision-maker to make the decision again. On a case like this, this is unlikely. Rather, the High Court would probably make the decision itself.

What are the options?

The High Court might decide: you’re right, the District Court argument was completely wrong, and there’s no way there’s enough evidence for us to spend court time on a trial.

Or it might decide: you’re right, the District Court argument was completely wrong, but there in fact was enough other evidence that was before the District Court for this to go to trial.

But you said judicial review of committal decisions are only on very narrow grounds!

They are. It might also decide: actually, this is the type of case where the Court of Appeal was saying judicial review shouldn't be used, and I’m staying out.

Well, what are you picking?

I’m always open for a Court to surprise me, but I think Banks’ chances of winning this case on a judicial review are low. The types of cases where judicial review of a committal decision will succeed are process ones, and Banks simply isn’t arguing anything like ‘the judge should not have committed me to trial because one of the witnesses is his brother-in-law’.

This type of case is pretty much exactly the type of thing the Court of Appeal was warning us about. A decision committing someone to trial doesn’t finally resolve anything (unlike say, a judicial review of a decision about where a mine can be built). Banks hasn’t been convicted of anything, and being committed for trial doesn’t mean Banks stops being a member of Parliament, so even if the Court agrees there’s a problem, I suspect it will just exercise its discretion to stay out of it.

Any other reasons?

When the judge issues his minute, he included a couple of suggestions for the parties. First, he noted that he thought the criminal case was the type of trial that was important enough for the trial to happen in the High Court. He asked the two sides whether they agreed, and my understanding is that they did. I suspect the order has already been made. The judge doesn’t give a reason, but I suspect that the consequences of conviction (Banks ceases to be an MP) will have played a part. An appeal doesn’t affect the automatic vacating of the seat, so you want to do what you can to ensure that as few mistakes happen as possible in the trial.

What does that mean?

The High Court hears all judicial reviews. If it is also the trial court, then it can also exercise the powers it has under the criminal law, which gives the Court, and Banks, another option.

If someone thinks that there isn’t enough evidence for them to be tried, they can ask the trial court to throw out the charge. This is more common in cases where the committal occurred without an assessment of the evidence, but even if (as in this case) the decision to commit to trial involved an actual decision after hearing evidence, you can simply ask the trial court to look again.

This is another reason why I think that the High Court won’t uphold Banks’ judicial review, even if it thinks he is right: he has another – much simpler – option. The Judge can simply look at the evidence himself and decide whether there is enough evidence on which a jury could convict, which is the same test as was applied by Judge Gittos.

What chance is there?

There’s definitely a chance, just as there was a chance before Judge Gittos. It’s still not an easy test for Banks to win on: it basically assumes that all the prosecution evidence that’s not completely unbelievable is true, and then asks: accepting that all the prosecution evidence is true, would there be enough for a conviction?

This sort of application – known as a section 347 application – is common at trials. A witness who you were expecting to give some evidence just doesn’t, and that means there is no evidence about a necessary element of a charge (a trial for illegal importation I did a few years ago succeeded on a 347 application, after we pointed out at the end of the prosecution case that none of the prosecution witnesses had actually given any evidence that the material had come from overseas).

So, in this case, Dotcom’s claim that Banks specifically asked him to split his donation into two donations of $25,000 in order that he could declare them as anonymous will be accepted. And that gets you quite a way toward a finding that Banks knew about the donations, and knew they were falsely declared as anonymous.

At trial, a jury might listen to Dotcom, and decide they can’t be sure that that claim is accurate, and they might decide on that basis that there is reasonable doubt. But the test at this stage isn’t proof beyond reasonable doubt. The question is: is there evidence that a jury could accept that would be enough for a conviction beyond reasonable doubt? Whether any jury accepts that evidence is a matter for it. It may or may not. But if it did, would they convict? And if the answer is “yes”, then we go to trial to find out.

Why did the judge suggest this?

Mostly, to make sure that there isn’t any unnecessary delay. If Banks was just arguing a judicial review on Wednesday, the result might be: I’m not really going to look at this, because you have the option of bringing an application under section 347 of the Crimes Act, which is a better approach than a judicial review of a committal decision. And if that happened, Banks would probably then make an application under section 347 of the Crimes Act. By raising this now, both matters can be dealt with together (or at the very least, preparations can be under way for a 347 application shortly after).

How long will we have to wait?

I doubt it will be long. Judges make rulings on 347 applications on the spot all the time. I suspect we’ll get a reserved decision, if only so the judge can make sure to not make the types of errors Banks’ team says Judge Gittos made (Judge Gittos gave an oral decision). I would be very surprised if a decision wasn’t out before the Christmas break, and it will probably within a week or so.

And then what?

If Banks wins, it’s over.

If Banks loses, then, while he could appeal the judicial review, he probably wouldn’t. And as he couldn’t appeal any decision on a section 347 application (and he can’t judicially review it either, if it’s made by a High Court judge), there would be a High Court trial sometime next year.

You’ve mentioned a “jury” a few times, would it be a jury trial?

The default assumption in Banks’ case is that it will be a jury trial, but it’s essentially up to Banks. Banks would have to apply to have the trial heard before a judge without a jury, and he has given no indication that he intends to do that. The deadline for the easier type of application has already passed (if you apply within 28 days of committal, you use a different section of the Crimes Act, which is easier to meet). This does not appear to have happened. He can still apply, but the test is now slightly harder. However, the fact there was a judicial review, and it’s still months from any trial, would probably mean an application looked at now would still be looked upon favourably. But, again, he has given no indication that he wants a judge-alone trial.

If Banks goes to trial and is convicted, then what?

We’re a little ahead of ourselves, but a conviction on the offence Banks faces would mean he would lose his seat. This happens even if he appeals. Unless Banks is sentenced to prison (which won’t happen), he could run in an Epsom by-election (but probably wouldn’t). If a vacancy occurs less than six months from a general election, the House of Representatives can decide to forgo a by-election.

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Think it possible that you may be mistaken

I don’t like advertiser boycotts; especially not boycotts of advertisers for the content of the programmes during which their advertising appears, and especially not if that programme is news or current affairs.

Yes, free speech has consequences. But the exercise of free speech in response also has consequences.

There are several aspects to this. I do not think that advertisers should exercise control – even indirectly – over content. For advertisers, the programming is the medium, not the message; a programme is a conduit to the audience of a broadcaster, not something they should generally been seen as supporting. Especially when we are dealing with news or current affairs, those advertising during a particular programme should not be seen as endorsing the views expressed in it. And I think that if people generally treat advertisers as bearing responsibility for editorial content, they are more likely to either want some control over it, or to spend their advertising dollars in a way that has that effect.

We have ad-supported broadcasting. While there might be a place for a real public broadcaster, most of the radio and television we have will continue to be ad-supported. I like that there is a variety of things to watch and to listen to (most of which I don’t). But if we really start holding advertisers to account for the content of programmes or channels on which their ads appear, then they will be more circumspect about placing ads, and some voices may be lost.

That is not to say that those calling for boycotts should be stopped. Their speech is just as worthy of protection as the speech they seek to shut down. I simply ask that they consider not only the consequences of the speech they are protesting, but also the consequences of the speech they engage in.

I may agree that the speech targeted in one boycott is ill-considered, or harmful in some way, but next time a boycott succeeds it might have the effect of reducing speech I like, or think is valuable. Targeting Freeview over something Willie Jackson and John Tamihere have said, or Heritage Hotels for something Paul Henry said over which they had no control (and shouldn't have control) in order to punish their broadcasters for airing them, isn't fundamentally different from arranging a boycott of Four (or Mediaworks) for airing an episode of South Park about the abuse by Catholic clergy, or someone else for airing pro-homosexual propaganda like Queer Nation or The L Word.

I think liberal non-racists outraged about Paul Henry should be able to call for a boycott of him, and all of TVNZ, and the advertisers who support TVNZ. I think conservative Christians should be able to call for a boycott of The L Word, and the channel it appeared on, and every advertiser who supports that channel. But I think if they do, despite that being an exercise of free speech, it will be bad for free speech.

Threats of advertiser and consumer boycotts force companies to be more conservative, leaving out voices. Those voices may still be able to get through, but sometimes, they won’t. And sometimes that will suck.

Sure, it might not happen following any particular boycott or campaign: it’s a risk, not a certainty. But it is not a fanciful risk.

We have had quite a number of successful (and partly successful) protests against speech some consider offensive over recent years. Paul Henry went from Breakfast, and Willie and JT have gone (for now, at least) from Radio Live. Of course, it’s not just radio and television broadcasts that are affected by angry consumers; after a campaign against Ian Wishart’s book Breaking Silence: The Kahui Case, which told Macsyna King’s story, a number of major book sellers, including Paper Plus, The Warehouse and Mighty Ape, announced they would not be selling it. TradeMe apparently banned its resale. Whitcoulls, to its eternal credit, announced that they preferred to read the book before denouncing it, and continues to sell it to this day, while the Booksellers’ Association put out a wonderful statement reminding everyone that no-one was trying to compel anyone to read it, and reinforcing the dangers of banning books because some don’t like them.

Other books too feel the wrath of an angry public. Earlier this year, a similar (if smaller) campaign against Ted Dawe’s award-winning young adult novel Into the River, saw it removed from some bookstores, and others put up warnings.

Of these recent examples, Paul Henry is an outlier, as he was just trying to be funny. But with Willie and JT, Breaking Silence and Into the River, we do not have people being shocking for no real reason. Rather, we have people who have said things that they consider important, others who agree that there is a need for their speech to be heard, and others who, equally honestly, consider it just as important that their ideas are silenced as much as possible.

The speech recently being denounced as “victim blaming” does not come from people who think they are victim blaming. Much of the advice they give they see as information that would help stop some women and girls from becoming victims of rape or sexual assault. Their opponents view their speech not only unhelpful in this regard, but dangerous, instead having the effect of reinforcing the views of some that there are people who are asking to be sexually assaulted, and discouraging the type of support that would make it easier for victims to seek help. And there are others who honestly believe that that message is dangerous, because they see it as falsely telling women and girls that there is no action that they can take to make themselves safer, which they view as increasing the likelihood that some people will be raped. They cannot all be right, but those who are wrong are misguided, not mal-intentioned. They have vastly contrasting views, but for the most part, they honestly believing that the expression of their views has a chance of decreasing the incidence of rape, while that of those they oppose, will tend to increase the numbers of victims.

This duality is often the case in calls for the silencing of certain viewpoints. With Ted Dawe’s Into the River, the debate is between those who fear the book will encourage young people to follow in the hero’s footsteps or expose them to material they will not be able to process, and those who think it will instead help. Author Bernard Beckett (who was one of the judges of the New Zealand Post Children’s Book Awards at which Into the River did so well) responded eloquently:

Finally, although you may not agree with my judgement, ours must not be portrayed as a disagreement between the moral and the apathetic. Those of us who believe in literature like this are as driven to make a better world for our children as those who oppose it. Nor is this even a disagreement about what stands as moral, for I too seek a place where the young may move with safety and joy, live in respect and tolerance, and form healthy, nourishing relationships. To the extent we do disagree, it is about the way this book will be read, and more broadly, the way that reading will influence world view and behaviour. These are difficult questions, to be approached with a cautious and open mind, and crucially, with careful study and evidence to support one’s case. Do that, and there is a chance we can move together towards the sort of world we all desire. Turn this into a tribal war, between the putatively decent and depraved, and everybody suffers.

The point Bernard makes about the potential for everyone to suffer when it is people – rather than ideas – that are attacked is an important one. Even adopting the perspective of someone who considers certain speech dangerous, there is still the risk that seeking to silence an opposing view will do more harm than good, and not just because of a potential “next” boycott.

Supporters of the boycott of Radio Live and its advertisers were hoping to silence the speech of those they see as placing blame on victims of rape – a view that they consider has the effect of emboldening those who victimise women, and which they believe discourages rape victims from seeking help, and attaining justice. They consider the view that victims of sexual assault could have chosen to wear different clothes to lessen their chance of being victimised as dangerous speech.

Of course, those views are still out there. The diminished reach of Willie and JT personally does not diminish the extent to which the views to which they gave voice are held within the wider community. So removing Willie and JT’s audience from them isn't going to attack their real concern – the prevalence of these views within the broader community.

How do we solve this? Well, it’s partly generational; as the more conservative older generation dies, some of the views they hold die with them. If you grew up in a society where these views weren't just accepted, but encouraged, and perhaps no one spoke against them for a very long time, it is probably naïve to expect wholesale change.

But for someone who views this speech as dangerous, a generational change isn't fast enough, so they need to change some minds. Some people will be incorrigible. Others just haven’t heard that single argument that will convert them. Most will be somewhere between.

But the numbers who will accept the error of their ways because Willie and JT are no longer on Radio Live between noon and 3:00 pm on weekdays are vanishingly small. You are going to need to persuade people, and accusing them of “victim blaming” or being “rape apologists” isn't going to do it. But you know there are some reasonable people out there, whose minds can be changed, and society changed along with them.

What if – after listening to the original interview, and to the apology – you decided that the hosts were a lost cause, but you didn't think their audience was, and certainly didn't think everyone in their audience was, and you formed the view that there was a chance you might successfully expose some of them to alternative views: to get at least some of them to think about the damage that can happen when a victim’s choices are scrutinised, and a perpetrators are minimised.

Willie and JT’s audience has heard an interview full of crass behaviour that you consider damaging, but few of them are reading twitter, or blogs. And they’re not going to look for an alternative view themselves.

In reaching these people, the campaign against Radio Live, against their advertisers, and against Willie and JT, did not help.

The continued campaign against Willie and JT did not to stop them blaming victims of rape. In fact, they’d already stopped. In the days after the interview with Amy was posted on-line, and the apology that followed, but before Willie and JT were placed on leave, it was completely off the agenda. But it wasn't only “victim blaming” that was banned at Radio Live. After Matthew Hooton’s (dis)appearance, Radio Live didn't simply ban their show from airing content critical of victims of sexual assault, but all discussion of the Roast Busters, and of rape culture. Discussion of Willie and JT and their behaviour was off the agenda as well. Because that is what happens when, even for a broadcaster that somewhat courts controversy, something becomes simply too controversial; however great the public interest in these issues was, it wasn't worth the risk of further brand damage, and they were going to play it safe.

Where does a progressive, or feminist view of rape culture have an audience in the commercial media the size Willie and JT had on Radio Live? Well, Amy had that audience for ~10 glorious minutes, where she gave better than she got. But anyone who wanted to support her to that same audience a few days later couldn't. Not because the producers of Willie and JT’s show don’t want to give voice to people who disagree with Willie or JT, but because Radio Live had been cowed into silence.

I’m confident there were many of them. I saw enough comments of people who couldn't get through, or who were cut off from the talk back audience when they started discussing Willie and JT’s interview, or attitudes toward victims of sexual assault, to imagine that Radio Live’s regular afternoon audience were missing out on hearing a lot of perspectives they don’t usually hear. These were people trying to take their stories, and the stories of friends and loved ones affected by rape culture to an audience that doesn't often hear their voices, to an audience in the one of the places where these seldom-heard views might do the most good.

But they, too, were silenced, because Radio Live banned not just the speech their critics consider wrong, but also banned speech they would consider helpful. How many minds could have been changed if the response to Willie and JT was not to contact their advertisers, but to contact their switchboards, and flood the airwaves with the views of those appalled at their treatment of Amy? We’ll never know, but I’m guessing it would have been more than were changed by their silencing.

There isn't going to be less speech because Willie and JT are off the air – someone will fill the airtime – but it is at least possible (if not likely), that the speech that remains will be more homogeneous. And if that isn't the case once Radio Live’s early afternoon slot is filled, then the next ‘success’ or the one after that may. It certainly seems exceedingly unlikely that any boycott of this case will have the effect of increasing the range of voices on our airwaves.

The campaign to get Willie and JT off the air, and advertisers boycotts, and boycotts more generally, like the public pressure that led to major booksellers not stocking Breaking Silence, and others to cease selling Into the River, fall into a group of expression that that is aimed not at counteracting the ideas expressed by an individual, but at seeking to limit their opportunity or desire to speak in the future. And this, beyond my concern about greater advertiser influence over our airwaves, and more conservative broadcasters generally, is what I find most concerning.

As a matter of principle, I do not see that placing pressure on advertisers to, in effect, rein in an errant broadcaster is fundamentally different from other pressure placed on an individual to simply not speak. Both are exercises of freedom of expression, and both are aimed at people, not ideas.

Many women in public life – whether politicians, or business or union leaders, or public spokespeople for important (or not so important) causes – face heightened scrutiny. Photo-shopping the head of a female politician onto the body of adult film star is an exercise of free speech, as is publicly commenting upon which people you consider are ugly, and who you would like to “do”. But it is speech that risks discouraging other ideas from being expressed. Unless you are lucky(?), one photo probably won’t have that effect, but the repeated hostility toward women in public view undoubtedly discourages other women from standing for office, or speaking out.

Now, some people engaging in such speech will consider that a particular female politician is dangerous, and is pursuing policies detrimental to society at large. They may be saying things they find offensive, and it is possible that by reacting to that speech in a way calculated (or potentially having the effect) of discouraging them from speaking will cause their ideas to spread less widely. In the same way that a boycott removing Willie and JT will stop them spreading their ideas widely, derogatory remarks about someone like Sarah Palin, or Pauline Hanson, or Helen Clark, may affect their ability to disperse their ideas – they may be taken less seriously, and others may be more reluctant to come forward at all.

Consumer boycotts such as those I've discussed above, and misogynistic comments about female public figures have the same ultimate aim: to silence people, or to ensure that the audience for their expression is as small as possible. There are other examples: like loud protests designed to drown out the voice of a controversial speaker invited to a university campus, or the outing of an anonymous author of a blog. And it would be great if they happened far less as well.

Of course, they are themselves an exercise of freedom of speech, even if it is speech that detracts from the marketplace of ideas. I am not proposing that advertiser boycotts should be prohibited. Nor do I think advertisers should be forced to support programming that they do not want to. Nor that bookstores should be forces to stock particular books. And banning personal criticism of politicians, whatever their stripe, and however distasteful, isn't a goer for me either.

But I would like those who engage in this sort of speech to take more care.

If you were considering boycotting Whitcoulls over its decision to stock “Breaking Silence”, it would be great if you could weigh into your decision the effect it might have on overall free speech, and the possibility you may in the future not be able to readily buy books they might want (or even that fewer people will read books you think should be read widely if they aren't readily available).

I would welcome your considering the extent to which you are actually harmed by a decision by Whitcoulls to stock the book, and weigh that against the potential harm you, others and free speech overall could face, when reaching a decision over whether to enter into a boycott. In some cases you may consider the harm so great, and the risks low enough that a boycott is justified, but other times you will not. It is likely I will disagree with you most of them time, but I cannot expect my views to hold sway in a democratic society.

In the case of a broadcaster, or a bookstore, as well as there being other broadcasters you agree with, or books that you like which may face a boycott (if one succeeds, it seems likely that more will try), there is also the concern is that some bookstores may simply become more conservative out of fear of bad publicity. It is probably less likely to happen in New Zealand than elsewhere, but it was not all that long ago that books about any number of progressive issues would have been highly controversial.

In the United States, some major movie theatre chains just won’t air films which receive an R rating from the MPAA (and some department stores won’t stock the DVDs). In some cases (“The King’s Speech” is a good example) film-makers release PG-13 edits of their films for the American market. Sometimes they do not. It’s not that the theatres would have faced a boycott if they’d aired the R-rated version of “The King’s Speech”, they probably wouldn't. But it didn't even get that far.

These boycotts follow from consumer action, but have the effect of basically stopping some people (e.g. in towns where the only cinema or cinemas are part of those chains) from seeing certain films. Of course, if they really want to, they can get the film out on DVD or whatever, but people who think “we should see a movie.” “What’s on?” “The King’s Speech.” “I heard that was good” will just miss out.

Should movie theatres be forced to show R-rated films they really don’t want to show? Of course not. But wouldn't it be better if the fear of consumer protests didn't cause them to make a blanket decision without consideration for the merits of a particular film?

Please don’t protest in a way designed to diminish the free speech of others, or at least be very careful before you do; as one day you may wish to rely on that free speech. Consider the golden rule: would I support these actions, if someone was doing them to me? Or am I wanting to silence someone simply because I do not like what they want to say?

If we move to ban speech because of the harm some people consider it poses, ask yourself, whose perception of harm will we use? Some people really think that telling women and girls that their choices cannot decrease their chances of being raped is dangerous. What if they convince enough people that your ideas are harmful?

In words of Oliver Cromwell’s that I discovered through Jacob Bronowski: think it possible that you may be mistaken. And if that is a step too far, consider that the actions you take may actually harm your cause. Or you may find your campaign not only silences those who have said something you vehemently disagree with, but also those who are fighting your cause – like those who wanted engage Willie and JT’s audience over the effects of rape culture, and couldn't, because of the pressure Radio Live was put under.

And if I am loudly saying things you disagree with, ask yourself whether it would be better if you silenced me, or if you changed my mind.

4

Last Minute Lobbying: MPs' Pay

The Members of Parliament (Remuneration and Services) Bill passed it's second reading yesterday. It it expected to come up for its committee stage tomorrow (EDIT: I am now advised that this is not the case).

The committee stage is the opportunity for the House of Representatives as a whole to closely scrutinise legislation. Select Committees do the hard yards of close scrutiny (or at least they should), and it is generally too late to make major changes, or to reverse major policy decisions, unless the government is using the chance to hurry through some changes that should have been notified earlier, or to fix some mistake a select committee either missed, or caused.

However, every so often, the opposition has the opportunity  to ask the government to look again at one or other aspect of a bill. And sometimes, the government listens.

I have already shared my thoughts on the MPs' Pay bill. I don't intend to rehash them. I won some. I lost some. I was pleased to get some recognition of my view that the law does not currently allow mid-term list MPs to be paid (has Paul Foster-Bell, Claudette Hauiti, or Carol Beaumont declared a conflict of interest in the voting on this bill?), and surprised that my suggestion around death benefits for the families of just-retired MPs was not followed, but that time has passed, and I'm over it. However, there are a couple of pretty minor matters that I will take this opportunity to ask MPs to reconsider.

First, is the proposal advanced by independant MP Brendan Horan, that would see MPs' salaries set once per term, just before the election, to cover the whole three years of the following term of Parliament. People would stand for office, and we would elect them, knowing what they would be paid. This seems a no-brainer for MPs. There is no reason why they need annual increases in salary; nor any reason why they should get their pay increases backdated. The advice of officials was that:

  1. While the intention of submitters seems to be to seek to take some of the ‘heat’ out of the issue, fixing the period in this manner may have the opposite effect if it results in the Remuneration Authority making a higher than usual award in the interests of providing for circumstances that may arise in the following three year period

I acknowledge that the officials may be right. We won't really know until it happens (if it does), but given that an election will intervene before anyone gets the increase in salary, my guess is that they're wrong. People will still whine, no doubt, but given that the higher salaries will be going to people we choose to receive them, I don't think we will be quite as aggrieved: it's up to us to choose people we think are worth it, and we'll know what we're paying them before we do.

The second is the proposed penalty for MPs who are absent without leave. I submitted that one wasn't necessary - the penalty for bad MPs is that voters can punish them or their party at the next election - but that if there is to be one, it shouldn't be laughable. The current proposal is that absent MPs will lose 0.2% of their salary each sitting day they are away without leave (ignoring up to three days each year). There are only around 90 sitting days in a year (I counted 93 in 2012), so an MP who skips absolutely all of them for no good reason, will still keep over 80% of their salary. This isn't as laughable as the unenforced $10 per sitting day the law currently provides, but it is still a pretty minor penalty, and is out of proportion with the penalty for suspended MPs (who lose 0.2% of their salary per day of their suspension, not per sitting day). Somewhere around 0.5% per sitting day would bring these closer to parity.

No-one has yet put up an amendment to bring my second suggestion into effect, but it's not too late for an MP to come forward. I also urge the MPs who read this before tomorrow's committee stage to seriously consider supporting Brendan Horan's amendment around a three-year salary.

Finally, and I know I said I was over it, but if someone can come up with a good reason why my proposal to change the rule around the support for the families of dead recently-retired MPs wasn't changed, I would welcome it. The reason there is so stark a distinction in the help provided to the family of an MP who retires at a general election, and then dies the day before that election, and those who retire and then die the day after the election, escapes me. I hope it never comes up, but this just seems mean.

44

Fact check: Q+A on mayoral resignations

I have just finished watching Q+A on time delay. In it, both former National Party President Michelle Boag and Unite Union head Matt McCarten made the claim that if Len Brown was to resign before before sworn in for his second term as mayor of Auckland City, that the second-placed candidate would be declared elected and be sworn in.

This is false.

Whatever the reason any New Zealand mayor-elect may not take up office, the result is a by-election. If a mayor (or councillor) leaves office during the term, there is a by-election unless there are less than 12 months to the next full council election.

If a mayor-elect dies, or is disqualified between the vote and the swearing in, there is a by-election. The runner-up can never simply assume the office of mayor. The Local Electoral Act simply does not allow it. I suppose it could. But as that would be really really stupid, it doesn't.

The legislation is clear. The Council of the Auckland "super city" was created under the Local Government (Auckland Council) Act. Section 8 of that law applies the Local Electoral Act to elections for the Council, including the mayoral election. Section 117 of the Local Electoral Act includes the following:

If a vacancy occurs in the office of a member of a local authority or in the office of an elected member of a community board more than 12 months before the next triennial general election, the vacancy must be filled by an election under this Act.

This includes the mayor (see the definition of 'member of a local authority' in section 5).

I do not expect everyone called upon to comment on the political ramifications of matter affected a local body mayor to know this. Before I was asked a week or so ago, I wasn't certain of this. But, seriously, why would you not check before making this claim? And if you are a journalist covering the matter, and are going to be on a panel discussing the possibility of a resignation, why would you not find out what would happen if there is a resignation?

8

The Review of Standing Orders

For anyone particularly interested, my submission on the triennial review of Standing Orders follows. I hope I picked up at least some things that at least some of you would like changed. If there's anything you'd like to see changed, submissions closed yesterday, but are - for the moment at least - still being accepted on-line. Alternatively, comment here, or on David Farrar's submission, and maybe someone somewhere with the power will read it :-)

Review of the Standing Orders

Submission of Graeme Edgeler

Overview

My name is Graeme Edgeler. I am a Wellington barrister with a strong interest in parliamentary procedure. I thank the committee for the opportunity to make a submission on the Review of the Standing Orders. I would welcome the opportunity to speak to my submission.

My submission addresses a number of discrete aspects of the Standing Orders, perhaps of particular interest to members of the public. I suggest consideration should be given to amendments in the following areas:

  • Issues concerning the use of urgency:
    • Question time under ordinary urgency;
    • Urgency used to avoid select committee consideration;
    • Clarity in urgency motions;
  • The New Zealand Bill of Rights Act 1990;
  • The Crown financial veto;
  • Bills affecting the Crown prerogative;
  • The election of the Speaker;
  • Broadcasting of the proceedings of the House during personal votes;
  • Three way votes.

Urgency

There have been a number of improvements to the systems by which the House of Representative accords additional time to the Government to pass legislation. Extended sitting hours are a welcome addition, which allow for the expansion of time without disrupting the ordinary business of the House. In addition, it is now common for leave to be granted for the House to hold question time, despite being under urgency.

Question time under urgency

While I can understand that the ordinary business of the House in holding the government to account will take a back seat when the House accords extraordinary urgency for some item of business, I do not see a particularly strong case for this to occur during ordinary urgency.

I submit that, under ordinary urgency, the standing orders should provide that the holding of question time should be automatic.

When matters are truly urgent, in the sense of legislation being needed to be passed all but immediately, extraordinary urgency will enable the government to proceed with the haste required, and, if necessary, override the ordinary requirement to hold question time. Short of this level of urgency, this should not be necessary, and question time should be held, despite the House being in urgency.

Urgency used to pass legislation without recourse to a Select Committee

Use of urgency in a way that avoids normal select committee scrutiny (particularly to allow passage through all stages) is one of the most concerning uses of urgency. While this will sometime be necessary, Parliament should be very clear about what it is doing before it does it.

Under changes to Standing Orders adopted following the last review, whenever the Government wishes to move a motion reducing the time allowed for a select committee report on a bill to a period of less than four months, that motion is debateable. Counter-intuitively, however, there is no separate debate when the government uses urgency to avoid select committee consideration entirely.

I submit that Standing Orders should be changed to require a separate debate whenever the Government wishes to advance a bill without select committee consideration.

In the same way that a debate on an instruction to a select committee to report a bill quickly is limited to that question, and speeches cannot address the principles of the bill itself,[1] a debate on such a motion would be necessarily limited. Members speaking in the first reading of a debate on an important bill should not be placed in a position of having to decide whether to speak about the bill, or to speak about the process.

Given that this sort of debate is already provided for with short select committee consideration, it should not be difficult to provide for it where the discussion is about whether there should be select committee consideration of a bill at all.

If the Government wishes to use an occasion of urgency to move multiple bills through without reference to a Select Committee, it could perhaps include these in a single motion, which can be addressed as the first item of business once urgency has been accorded.

Clarity in urgency motions

I submit that urgency motions should be required to clear as to what is covered by them. As an example, at the beginning of the last Parliament, the House resolved:[2]

That urgency be accorded the introduction and passing of Government bills dealing with taxation, employment relations, bail, education and sentencing, Government notices of motion Nos 4 and 5, and any maiden statements to be made at times determined by the Business Committee.

I do not consider this should be sufficient. Members of Parliament – and the public of New Zealand – are entitled to know what is going on in the House. I submit that all urgency motions should be required to state:

  • The exact bills intended to debated (i.e. by name); and
  • The stage or stages through which those are intended to be passed.

It will sometimes be necessary for the Government to introduce a bill under urgency, but there is no reason that people shouldn’t at least know the names of the bills that are to be debated.

New Zealand Bill of Rights Act 1990

Section 7 of the New Zealand Bill of Rights Act 1990, and SO 262 provide important protections to ensure that Parliament is informed of human rights implications in legislation before it passes laws infringing rights.

I submit that Bill of Rights reporting should also occur at other stages in the legislative process. Ideally, this would occur before the Second and Third readings of bills which had undergone substantial amendment in select committee, or the Committee of the Whole, and the House would be aware of the Bill of Rights considerations in any amendments it was consider.

Of course, I recognise that the resource implications in reporting on every bill at every stage, and every amendment, and supplementary order paper may mean it would not be practicable to require it at all stages, but I submit that the Standing Orders should at least allow for Bill of Rights reporting from the Attorney-General at other stages during the passage of legislation.

In particular, I submit that any government supplementary order paper that is referred to a select committee should be subject to a bill of rights report, and major government supplementary order papers introduced at late stages could be considered as well. I anticipate that in respect of such matters, the Bill of Rights implications will have been considered as part of the pre-legislative process in cabinet papers, etc. which should alert the Attorney-General as to which supplementary order papers need attention. Given the work will have been undertaken already, the additional work involved in obtaining sign-off from the Attorney-General should not be too great. It will also assist the House to know whether Bill of Rights concerns present in legislation at introduction have been sufficiently met by amendments made by Select Committees.

Most Bill of Rights concerns in legislation will be present from introduction, but occasionally, the problematic provisions will be introduced during the select committee process or in a committee of the whole House (as happened with the Criminal Justice Amendment Act (No 2) 1999, for example). Alternatively, broader discussion of a bill may result in a greater understanding of the bill of rights implications in it (I think, for example, of the Electoral Finance Bill and the Public Health Bill). A process by which a concerned member of Parliament (or a committee) could seek a renewed opinion from the Attorney-General as to a bill’s compliance with fundamental obligations under the Bill of Rights would be welcome.

The Crown financial veto

The Crown financial veto as contained in the Standing Orders is a relatively recent creation. Previously, it had a statutory basis, beginning in section 54 of the Constitution Act 1852, and most recently, in section 21 of the Constitution Act 1986, which provided the legislative basis for the Crown financial veto, was repealed in 2005.[3]

New Zealand operates under the system of Parliamentary sovereignty, in which the government cannot spend money without the agreement of Parliament. It is also a system where the rule of law requires that the Government follow the laws passed by Parliament. While it will almost always be the case that the Government will command a majority in the House, there will be a few instances, on the occasional issue, where the Government does not have the support of the House for its position.

This will usually not involve money, but on the few issues where it does, if the Government feels strongly enough that it does not wish to expend that money, then its solution should be to state that the vote is an issue of confidence. The provision of a veto, which can be exercised without the support of the majority of the House, is anathema to Parliamentary sovereignty and the democratic underpinnings of the House. The Crown should only ever act when it commands the support of the House. It should not have the power to veto the passage of a bill.

Bills affecting the Crown prerogative

Standing Order 309 provides that “No Member’s bill, local bill, or private bill that contains any provision affecting the rights or prerogatives of the Crown may be passed unless the Crown has, by message, indicated its consent to that provision.”

Like the Crown financial veto, this is provision is a holdover from a time now long past. We are a fully functioning Parliamentary democracy, operating under the principle of Parliamentary sovereignty.

Simply put, if the majority of the House supports a bill that affects the Crown Prerogative, the Crown should wear it. The House should not need to seek its permission to legislate on any matter that it sees fit.

The election of the Speaker

I submit that consideration should be given to the House electing its Speaker using a secret ballot.

The Speaker is creature of the House, and is responsible to the House. It is important that they not only have the confidence of the House but are seen within Parliament and outside as having that confidence. I believe that the election of the Speaker by secret ballot would greatly assist with this.

Election of a Speaker by secret ballot is now common in Westminster Parliaments. The UK House of Commons conducted its first secret ballot for Speaker in 2009 (having adopted rule changes in 2001).[4] Elections for the Speaker of the Scottish Parliament,[5] and for the Presiding Officer of the Welsh Assembly,[6] are also by secret ballot. The Presiding Officer and deputies of the Northern Ireland Assembly are not elected by secret ballot,[7] but there is a requirement that election of the Speaker and deputies has “cross-community support” (a majority of both Nationalist and Unionist members).[8]

The election of the Speaker of the Australian House of Representatives[9] and the election of President of the Australian Senate[10] are also by secret ballot, as are such elections in state or territory legislatures in ACT,[11] New South Wales,[12] the Northern Territory,[13] Queensland,[14] South Australia,[15] Tasmania,[16] the Legislative Assembly of Victoria,[17] (but not the Legislative Council[18]), and Western Australia.[19]

The election for the Speaker of the Canadian House of Commons[20] has been by secret ballot for over 25 years (there is no election for the Speaker of the Canadian Senate, who is appointed on the advice of the Prime Minister[21]). Elections for Presiding Officers of provincial legislatures in Alberta,[22] British Columbia,[23] Manitoba,[24] New Brunswick,[25] Newfoundland and Labrador,[26] Nova Scotia,[27] Ontario,[28] Prince Edward Island,[29] Quebec,[30] and Saskatchewan,[31] are also all conducted by secret ballot, however, the Speakers of the Legislative Assemblies of the three Canadian territories: Northwest Territories,[32] Nunavut[33] and Yukon[34] are elected by motion

The international movement towards conducting the elections of presiders Officers by secret ballot is clear, and the New Zealand House of Representatives remains on the out, by continuing to elect its Speaker in a way that allows for a strong whip to be imposed

I submit that it is time for the New Zealand House of Representatives to consider adopting a secret ballot for the election of the Speaker

Broadcasting of the proceedings of the House during personal votes

The Rules of Filming the House[35] currently provide that:

7. While a personal vote is in progress, a graphic to this effect may be shown in place of live coverage, or a static wide-angle shot of the Chamber may be used, provided that this coverage does not seek to identify how individual members are voting. Any spoken proceedings that occur during a personal vote (such as a point of order) will be covered, subject to the usual rules.

I submit that this should change. While personal votes are uncommon, when they are held, they are usually on issues on which there is uncommonly high public interest in the vote.

There is no good reason to deny people watching at home on television, or via the Internet, access to the same information that can be seen via people sitting in the public gallery. While I can understand a desire not to show what is happening actually inside the lobbies, there should be no reason why, when a personal vote is being conducted, the cameras in the chamber shouldn’t be trained on the Ayes and Noes doors so that people watching at home can see which members are voting which way, with the ambient noise of the house in the background.

The situation during various votes on the same-sex marriage legislation, where people watching from home (and, I understand, from overflow rooms in the Parliamentary precinct), spent several minutes watching a basically blank screen while elevator music was playing was not a good look for the House, and discourages participation by the wider public in the legislative process.

Voting where more than two options are offered

In the course of this Parliament, the House conducted what I understand was its first three-way vote. From the perspective of someone who was sitting in the gallery during the debate on the alcohol purchase age, the process did not seem particularly satisfactory. The procedure where members left the chamber to cast their votes in private leaves much to be desired. It appeared to take an inordinate amount of time, and it wasn’t clear that very many people actually knew what was going on.

While such votes are likely to be rare, there is no reason that the House cannot take note of its recent experience and resolve a more satisfactory process for any repetition. The Standing Orders of the House already provide for a procedure for the conducting of votes where there are more than two options, namely during contested elections for Speaker in which there are more than two nominees. There is no reason why this procedure could not be adopted the next time the House conducts a three way vote. The Chair could simply call upon each member in turn to announce which option they support. I do not imagine it would take any longer than the process used during the drinking age debate, and it might even make for good television.

Conclusion

I look forward to reading the other submissions on the Review of Standing Orders, and I thank the Committee for the opportunity to present a submission.

[1]     Standing Orders of the House of Representatives, SO 286(3).

[2]     (9 December 2009) 49th Parliament, Journals of the House of Representatives, 23.

[3]     Constitution Amendment Act 2005, s 5.

[4]     Standing Orders of the House of Commons – Public Business, SO 1B.

[5]     Standing Orders of the Scottish Parliament, SO 11.9.2.

[6]     Standing Orders for the National Assembly for Wales, SO 6.8.

[7]     Standing Orders of the Northern Ireland Assembly, SO 4(5).

[8]     Northern Ireland Act 1988 (UK), s 39(7).

[9]     Standing Orders of the House of Representatives, SO 11(i).

[10]    Standing Orders of the Senate, SO 7.

[11]    Standing Orders of the Legislative Assemby for the Australian Capital Territory, SO 2(g).

[12]    Standing Orders of the Legislative Assembly of New South Wales, SO 10; Standing Rules and Orders of the Legislative Council of New South Wales, SO 13.

[13]    Standing Orders of the Legislative Assembly of the Northern Territory, SO 7.

[14]    Standing Rules and Orders of the Legislative Assembly of Queensland, SO 41.

[15]    Standing Orders of the House of Assembly of South Australia, SO 8; Standing Orders of the Legislative Council of South Australia, SO 18.

[16]    Standing Orders of the House of Assembly of Tasmania, SO 10; Standing Orders of the Legislative Council of Tasmania, SO 14.

[17]    Standing Orders of the Legislative Assembly of the Parliament of Victoria, SO 10;

[18]    Standing Orders of the Legislative Council of the Parliament of Victoria, SO 2.03.

[19]    Standing Orders of the Legislative Assembly of the Parliament of Western Australia; Standing Orders of the Legislative Council of Western Australia, SO 211.

[20]    Standing Orders of the House of Commons, SO 4.

[21]    Constitution Act 1867, s 34.

[22]    Standing Orders of the Legislative Assembly of Alberta, Schedule A.

[23]    Standing Orders of the Legislative Assembly of British Columbia, SO 11(c).

[24]    Rules, Orders and Forms of Proceedings of the Legislative Assembly of Manitoba, r 8(1).

[25]    Standing Rules of the Legislative Assembly of New Brunswick, r 11(8).

[26]    Standing Order of the House of Assembly of Newfoundland and Labrador, SO 4(1).

[27]    Rules and Forms of Procedure of the House of Assembly, r 6B(g).

[28]    Standing Orders of the Legislative Assembly of Ontario, SO 3(e).

[29]    Rules of the Legislative Assembly of Prince Edward Island, r 9(5).

[30]    Standing Orders and Other Rules of Procedure of the National Assembly of Quebec, SO 5.

[31]    Rules and Procedures of the Legislative Assembly of Saskatchewan, r 42(1).

[32]    Rules of the Legislative Assembly of the Northwest Territories, r 8(3).

[33]    Rules of the Legislative Assembly of Nunavut, r 8(3).

[34]    Yukon Legislative Assembly, Information Sheet No. 1: The Speaker, http://www.legassembly.gov.yk.ca/pdf/1_the_speaker.pdf

[35]    Standing Orders of the House of Representatives, Appendix D.