Legal Beagle by Graeme Edgeler


MPs to vote on raising international travel perk

I don't really need to post this, as Idiot Savant of No Right Turn has beaten me to itBut, because I've written about the former MP's travel perk before, I thought I'd do it anyway.

For a reason it is yet to explain, Parliament is about to consider increasing the international travel perk for people who were MPs before 1999 by around 80%. Under the Members of Parliament (Remuneration and Services) Act 2013, it is set at around $11,000 per year now (see calculation below). Simon Bridges wants to increase it to around $20,000 per year.

A few years ago, they were updating the law around MP's pay and entitlements, and I told a select committee they should abolish the international travel perk that MPs who were members prior to 1999 still get on retirement:

Travel Entitlements of Former Members

I submit that all provision of travel entitlements for former Members should be abolished.
The justification for the continuation of this provision is that MPs at one point gave up a salary increase, and received the travel entitlement instead. That three- or six-year period in the 1970s for which MPs were “underpaid” was remedied with above-inflation salary increases, shortly thereafter. This tradition continues apace, which the salary increases of both ordinary members and ministers still exceeding inflation.
The vast majority of former members of Parliament who now benefit from this entitlement never suffered the “loss” that justified it. It was never a condition of their terms of employment, and was not factored into salary determinations in the way that MP’s direct travel entitlements were.

It is now 14 years since the entitlement was abolished for newly retiring MPs. Those who have even the remotest claim to have suffered through its removal have now had a minimum of 14 years in which to enjoy it. This is long enough. Whatever loss they may have endured, they have now been more than compensated.

I accept that former Prime Ministers may be in a different category, but consider that their needs are met by the provision of the annuity.

We can be grateful for the service of members of Parliament, and for the sacrifice of their families, but members of Parliament are well remunerated, and have been for a very long time. There is no justification for continuing this perk, and it should be abolished.

I remain of that view. And at the very least, the level of the international travel perk should not be increased. Next week, perhaps as early as Tuesday, MPs are going to get to vote on whether to do just that. Only a few current MPs will benefit from it when they retire (you have to have been an MP before the 1999 election), but it also benefits already retired MPs.

The change is pretty simple. The current maximum allowed international airfare subsidy for retired MPs who qualify is 90% (some former MPs get less based on the number of terms they served) of the lowest cost business fare between New Zealand and London is, as at July 1 of that year: for both them, and their spouse. They don't have to fly that route, or fly business class, but that's how the maximum is calculated. A quick check of webjet, suggests the cheapest business class return fare from Auckland to London is a little over $6000 (flying Malaysia Airlines), so the maximum annual rebate is currently around $11000.

For many, perhaps even most, New Zealanders, that would be a once-in-a-lifetime trip. Qualifying retired MPs and their spouses get up to that level of international travel every year.

The Government's proposed law change is simple: in the calculation of the maximum rebate on International travel, it replaces lowest cost business-class return fare between Auckland and London with an Air New Zealand business-class return fare. For former MPs who qualify for the perk, this will increase the maximum rebate to around $20,000 a year.

And don't think this is about supporting our local airline. Former MPs can still fly whichever airline they want. Air New Zealand is simply used as a means to increase the maximum allowed rebate for international travel.

So the change is, I think, an unnecessary one. But what makes the proposed amendment particularly dodgy is that it is being done through a statutes amendment bill, after that bill has already been through a Select Committee.

Statutes amendment bills are supposed to be for non-controversial technical changes. They group together a lot of semi-important changes to a whole range of unrelated legislation (this bill amends over 30 laws - included the Forests Act 1949, the Heavy Engineering Research Levy Act 1978, and the Tokelau (Territorial Sea and Exclusive Economic Zone) Act 1977) and they tend not to get much press. People can have a say, but you have to wade through quite a bit to actually find out what's in there, and even I don't always have the time to do that. But, of course, you can't have a say if the change is added after the bill has been through Select Committee, and passed its second reading.

The amendment was introduced on Thursday. According to Gerry Brownlee's business statement, it may be voted on as early as Tuesday, and if previous experience of statutes amendment bills is anything to go by, it could pass its final reading on Thursday.

There is one out. And it's a good one. Any provision in a statutes amendment bill has to be agreed to by all MPs. It only takes one "no" vote in the House's committee stage to remove a provision from a statutes amendment bill.

If this law change passes, every single MP will be to blame. And if it doesn't, we'll have @PhilipLyth to thank, along with whichever MP decided to step up. Without his tweet, I'd have had no idea.

— Philip Lyth (@philiplyth) March 13, 2015


The Northland by-election; or The so-called Tizard Effect

When New Zealand adopted the mixed member proportional (MMP) voting system, Parliament had a bunch of choices to make about the detail of its operate.

With the Northland by-election, we are temporarily getting a lesson in two of them:

  1. That the rules we adopted for MMP mean the proportionality of the House of Representatives is only important after the general election, not to changes between elections.
  2. That counter-intuitive things can happen a list MP wins a by-election (whether from the same party as the MP who has resigned, or a different one).

A full explanation follows, but the too long didn’t read for those of you here simply because someone provided you a link from twitter to clear up some confusion is:

  • If Winston Peters win the Northland by-election, he has the option of resigning as a New Zealand First list MP.
  • Any list MP who resigns is replaced by the next person on the list, In the case of New Zealand first, this is Ria Bond. Assuming Ms Bond is still a party member, and want the job, she would become a list MP, in addition to Winston becoming electorate MP for Northland.
  • If this happened, National’s number of MPs would stay at 59, down from the 60 they had after the election result was declared, and New Zealand First’s parliamentary strength would increase to 12.

There are good reason why we should do it another way, but there are also good reasons why it shouldn't, and this is the way we’ve chosen to do it.

If you are reading this because you live in Northland, you still have time to enrol to vote in the by-election.

Proportionality is set at the election, not necessarily after it

Under the system of MMP we adopted proportionality only matters at the general election. If an electorate MP from one party resigns (or dies, or otherwise leaves Parliament), and an MP from another party wins the resulting by-election, the overall proportionality of the House changes.

This has already happened a couple of times: When Labour electorate MP Tariana Turia resigned, Māori Party candidate Tariana Turia won the Te Tai Hauauru by-election, and the number of Labour MPs, which had been 52 at the 2002 general election fell to 51, and the number of Maori Party MPs grew by one. A similar thing happened when Hone Harawira resigned as an electorate MP for the Māori Party, and was replaced in the Te Tai Tokerau by-election by an electorate MP standing for MANA (also as, it happens, Hone Harawira). But the same principle also applies if the replacement is a different person. If Labour's Willow-Jean Prime wins the Northland by-election, Labour gets an extra MP, and National stays one below its result at the general election.

You might think that in the event a candidate from a different party from that which previously held the seat won a by-election, the party winning the by-election should lose a list MP, and the party which had the MP resign from it should gain a list MP, so that overall proportionality is maintained with the party vote at the preceding general election. There are good reasons why you might do this, especially if the proportionality of the party vote is considered particularly important.

But the simple point is that we don’t. If you look at section 55 of the Electoral Act, you will see all the ways in which a seat can become vacant in Parliament. The seat of a list MP cannot become vacant because a candidate for their party won a by-election in a seat they didn’t previously hold. Look through the rest of act, and you simply will not find anything that says we ensure proportionality remains after a by-election is held.

There are also good reasons why we don’t do this. Sometimes it simply can’t work, for example, when a party not previously in Parliament wins the by-election (which the Maori Party and MANA both achieved). And redoing the list seat allocation after a by-election to ensure proportionality could also completely muck around Parliament.

Winston Peters has announced that he is running in the by-election in Northland, but imagine if, instead of being held in 2015, it was held in 2009, after an election in which New Zealand First got 4.07% of the party vote. The current rule we have is that he would simply have become an MP, replacing the person who previously held the seat, but if we re-did the list allocation, then National would have lost three MPs, and the Greens and Labour one each, so that New Zealand First could have gotten the five MPs their votes and threshold-busting electorate seat would have them get in a proportional Parliament. You can probably see why we don’t do that, as it could easily be very destabilising to Parliament. Of course, in a very close Parliament, like the one we currently have (where, for example, the government’s reform of the Resource Management Act had support of 61 MPs and opposition from 60), not doing it can have the same effect.

By-election-winning list MPs

The possibility of a list MP winning a by-election has come up before, but hasn’t actually happened. Two sitting National list MPs have contested by-elections: Melissa Lee ran in the Mt Albert by-election, and Hekia Parata in the Mana by-election. There were suggestions that Labour list MP Phil Twyford might seek Labour’s nomination for the Mt Albert by-election, but he ultimately withdrew his name from consideration, possibly due to the so-called “Tizard Effect”.

The Electoral Act does not explicitly cover what happens if a current list MP wins a by-election, but most people who have thought about it (ie. me, Andrew Geddis, David Farrar, the Chief Electoral Officer, and the fine staff at the Electoral Commission) generally agree what it means.

If a list MP wins a by-election, they would become the MP for that electorate, but could resign as a list MP, and (like every other resigning list MP) be replaced by the next person on the list.

This could happen whether the by-election winner was from the same party as the MP whose resignation (or death etc.) led to the by-election (thus helping to maintain proportionality), or from a different party (changing proportionality).

The possibility that voting for one person as your MP might result in an entirely different person being elected to Parliament, is known in some circles as the Tizard Effect in honour of former Labour MP Juduth Tizard. There was speculation (or fomented mischief?) that with the new leadership of the party wanting a break from the past, decisions about Labour’s selection for the by-election in the safe Mount Albert electorate were affected by the prospect of Ms Tizard's return as a list MP, if another list MP was nominated.

A list MP winning a by-election hasn’t yet happened, and there are some differences of opinion over the exact process. I’m of the view that the resignation would have to happen before the writ for the by-election was officially returned, but I understand that the Chief Electoral Officer disagrees.

The decision of the by-election-winning list MP to resign is up to them. If they don’t resign, they’re not replaced as a list MP because no vacancy has arisen. They wouldn’t get two votes in the House, or two salaries. If they don’t resign at the time, but then die a year later, I have no idea whether they get replaced once as a list MP and once through a by-election, or just through a by-election. The Electoral Act isn’t especially clear on this point.

Everyone assumes a by-election-winning list MP would resign to allow their party an extra MP, but they could decide not to (if for example, the next person on the party list, has, since missing out at the list at the general elect acted in a way in which means the party no longer wants them as an MP. One of the odd oversights in our electoral law is that the law provides a variety of circumstances in which an MP is forcibly sacked (eg conviction for an offence punishable by two or more years in prison), but it does not apply these rules to replacement list MPs.

It seems likely that at some point, a list MP will win a by-election, but I’m not sure it is likely to be now. Nominations close on Tuesday, and voting in the by-election will be on Saturday 28 March 2015, with advance voting and overseas voting starting on Wednesday 11 March. If you live in Northland, you can check your enrolment here, or can freephone 0800 36 76 56. You can also do this if you don’t live in Northland, but it is slightly less urgent for you :-)


Wellington Super City? Not even if it’s the best idea ever.

The Local Government Commission has released a Draft Proposal for Reorganisation of Local Government in Wellington.

It proposes a region-wide governance structure, with a single overarching council replacing the Greater Wellington Regional Council, the Carterton District Council, the Hutt City Council, the Kapiti Coast District Council, the Masterton District Council, the Porirua City Council, the South Wairarapa District Council, the Upper Hutt City Council and the Wellington City Council.

I have not read it. I do not care what arguments it arrays in support of its conclusion. There is simply no conceivable rationale that could lead me to vote in favour of one.

The super council may be literally the Best. Idea. Ever. We may be literally 100% certain that every positive outcome suggested will be achieved, and every negative fear unrealised, and I will still not vote in favour of it, because the law under which local government reorganisations occur is now so appalling, I will refuse to endorse a result I cannot be certain is widely supported within the whole region, whatever my own views (presently sceptical).

The law used to be different. Until December 2012, the basic system was:

  • The Local Government Commission would look into suggestions for reorganising local government in an area.
  • After consultation, it would make a final recommendation, and if it proposed a reorganisation of local councils, then each of the districts affected would hold a referendum of their residents and ratepayers, and if a majority in each affected council area agreed to a reorganisation, it would happen.

This is the process which was used in 2005, when referendums in the Banks Peninsular District and Christchurch City agreed to the dissolution of the Banks Peninsular District Council, with that area’s inclusion in Christchurch.

That is not the law now. In 2012, the National Government amended this law in a couple of important ways:

  • The requirement to hold a public vote was abolished. This was replaced with a provision allowing a vote if 10% of the voting age residents of an affected area signed a petition within 6 months 60 working days requiring there to be a vote. Given voter engagement in local body issues, a petition requiring that many signatures in that amount of time will generally be a major undertaking, and seems designed to avoid seeking public approval (although in this instance it may not be, given that one of the affected areas – a proposed changes around the Tararua area – affects 11 property owners).
  • More importantly, the referendums have been replaced with a referendum. And that “S” is crucially important. Rather than holding a vote in each affected area, a single vote is held over the whole area. This means that the residents of one area who are perfectly content with their current local council can have their local council taken away from them if the residents of another area decide to compulsorily acquire it.

Like all government, local government is a question about priorities. Will rates come down under a super council? I don’t know. Will services increase? I don’t know that either. But if the majority of residents in an area with a functioning district council are happy to pay higher rates, or receive lesser services in exchange for local control of their local affairs, that should be a matter for them.

The new rules for reorganisation of local government disagree. They say that the people who should have the greater say over how Masterton and Upper Hutt are governed are not the residents of Masterton and Upper Hutt, but the more numerous residents of Porirua and Wellington City.

I am sure some members of the South Wairarapa District support a super council: based on an un-sourced tweet I saw a few days ago, as many as 15% of the ratepayers in the area may be Wellingtonians, and others might see benefits in economies of scale, or greater region-wide co-operation. But I do not know whether a majority in the South Wairarapa District will support it, and I will not risk being a part of a region-wide majority that forces them to abandon their present local council against their will.

And  whatever your view on the merits of a super council  if you get a vote on it, neither should you.


A rather incomplete submission on the Countering Terrorist Fighters Legislation Bill

I've been busy lately, and have been unable to prepare the submission on the Countering Terrorist Fighters Legislation Bill that I would have liked. I also have a half-written blog post fact-checking claims made before the bill was released by the Prime Minister and the Defence Minister on what the bill would do (mostly, they fact check each other, making contradictory statements). I'm pretty sure I will never finish it.

I have however, put together a short, rather incomplete submission on the bill, or at least a couple of the minor more technical aspects I assume won't get much airplay elsewhere. I copy my submission below for those interested, but to be honest, I encourage you to read other submissions that address the principle and detail in a way I have not. In the time available for submissions, and indeed, the time available for Parliament to pass this bill there simply is not time to have a proper discussion of it, and whether (or to what extent) it is needed. That on its own is enough to reject the bill.


The Foreign Affairs, Defence and Trade Committee 

Countering Terrorist Fighters Legislation Bill

Submission of Graeme Edgeler


1. My name is Graeme Edgeler. I am a Wellington barrister with a strong interest in law reform.

2. I thank the Committee for the opportunity to present a written submission on the Countering Terrorist Fighters Legislation Bill. I regret that given the shortened time period and other commitments, I will be unable to present in person.

3. Regrettably, this submission is much shorter than I would like it to be. I hope that the Committee will have received submissions raising the other concerns I would like to have raised. I invite the Committee to include in its report concerns about the time in which it has been required to undertake its consideration of this bill.

4. In general, I do not think that the case for the changes proposed by the Bill has been made. For example, passports can already be suspended for three years, it is just that after 12 months, this suspension must be approved by the High Court. Having 12 months in which authorities can prepare an application to the High Court to further suspend a person’s passport seems sufficient. I invite the Committee to seek advice on the number of times an application to the Court has been made under the sections that currently apply. I anticipate that it is few, but either way, it will be instructive.

5. I cannot address all of the concerns I have with this Bill. In the brief amount of time I have, I hope to focus on matters that it is perhaps less likely others as raised. They are probably not the most important issues that can be raised, but I hope the few random issues I raise will be of assistance to the Committee in its consideration.

Customs Searches (Clause 7)

6. Searches by Customs of people entering New Zealand are warrantless searches where the various protections of the Search and Surveillance Act do not apply. Permitting the police and the NZSIS to obtain information through these searches is a measure that will allow the Police and NZSIS to avoid the ordinary requirement to obtain a warrant.

7. Given that Parliament has required the Police and the NZSIS to obtain warrants before they can undertake searches, it should not also create a power whereby they can avoid the other safeguards it has put in place simply by getting Customs to do the work for them.

Serious Economic Damage (Various Clauses)

8. In various news sections proposed, the Bill allows powers to be exercised if there is the possibility of “serious economic damage”. I am unsure what is meant by this, but note that both the Terrorism Suppression Act (s 5(3)(c), s 7(b)(ii)), the Crimes Act (s 298B and s 307A), as well as the International Convention for the Suppression of Terrorist Bombings, and United Nations Security Council Resolutions relating to terrorism invoke the concept of “Major economic loss”.

9. The drafters of this legislation may have good reason for adopting the different formulation. It is not clear to me what the difference would be, but Courts will often approach questions of interpretation from the position that if Parliament uses different words, it means different things. I am not even sure which of “serious economic damage” or “major economic loss” is the more restrictive test (“major” sounds narrower that “serious”, but “loss” sounds broader than “damage”), but the Committee should consider whether it is appropriate to align the language in this bill with the similar language present elsewhere.

Offences relating to failure to destroy improperly obtained evidence (clause 9)

10. Proposed new sections 8IB(11) and 4IE(8) of the New Zealand Security Intelligence Service Act 1969 create offences arising out of circumstances where members of the NZSIS have conducted surveillance where they should not have (for example, by exercising a warrantless power, where it is later determined that it was improper to use a warrantless power).

11. If that happens, the NZSIS is required to delete the evidence it has obtained. Proposed new sections 8IB(11) and 4IE(8) create offences of knowingly failing to comply with that obligation to delete improperly obtained material. The maximum penalty is a fine of $1000.

12. This penalty is far too low. The actions involved in surveilling people in the way that the NZSIS does are actions that are criminal (for example, prohibited by section 216B of the Crimes Act: Prohibition on use of interception devices).

13. Where the NZSIS is acting in accordance with the law, its employees have defences that mean they cannot be convicted. This is entirely appropriate. However, if the surveillance is found to have been improper, then what would ordinarily be criminal activity has occurred, in a situation where the law says it shouldn’t have. It would be unfair to punish those involved for undertaking what they thought was lawful at the time, but if they then knowingly fail to comply with the remedy the law provides to fix the wrong that has been done (ie by failing to delete the material improperly obtained), the harm is identical to that which would have occurred if they were acting outside the law throughout – someone’s privacy has been unjustifiably invaded, and private video or audio has been illegal retained by the person who did it.

14.  If someone knowingly fails to delete improperly obtained material that they know was improperly obtained, and they know the law requires them to delete it, the same maximum penalty (two years imprisonment) that is provided in section 216B of the Crimes Act should apply.


15. I encourage the Committee to enquire into the rationale for the various changes proposed in this Bill. In many respects, the possibility that less severe measures might be sufficient to obtain the desired policy outcomes does not appear to have been considered. For at least some of the changes proposed, it seems likely that alternatives could be crafted that would get the desired outcome but also better protect New Zealander’s rights than the proposals contained in the Bill.


Gerry Brownlee is Innocent; or Free the Brownlee Three (updated)

[Please see the update at the end of this post, which may need a partial retraction]

Today we learned of the result of the Civil Aviation Authority investigation into the 'security breach' at Christchurch Airport involving the Hon. Gerry Brownlee and two un-named staffers.

The CAA issued Brownlee with an infringement notice for being in security area without identity card or document, a breach of rule 19.357 of the Civil Aviation Rules (.pdf). The infringement notice carries an infringement fee of $2000 (which is not a fine). Parking violations and speeding are examples of infringement offences; infringement offences are illegal, but they aren't really crimes, and infringement notices don't result in convictions or criminal records, even if you dispute them in Court. Contrary to opposition comment, the CAA did not impose the maximum fine, but rather, imposed the infringement fee set by law. Just like with speeding tickets or red-light running tickets and other infringement fees, the level is set. If you're issued an infringement notice for speeding where your "speed exceeds the speed limit by ... not more than 10 km an hour", the infringement fee is $30. If you drive without a seatbelt, the infringement fee is $150. And if you are in an airport security area without without an airport identity card, the infringement fee is $2000.

Many rule breaches are both infringement offences and offences. Authorities are given the option of either issuing an infringement notice, or charging the person with an offence. The elements of each are the same, but if authorities choose to charge, a conviction can result and the maximum penalties are usually higher (for speeding itself, this isn't possible, but for seatbelt-less driving, a fine of $1000, instead of fee of $150), for the security area thing, it's a maximum fine of $5000, but oddly an actual fine would probably be less than $2000, with the punishment of a conviction making up the difference.

The Civil Aviation Authority chose not to lay a prosecution, which would have been a harsher response than the one they took, and apparently despite previous assurances, has not released its report into the breach. I would quite like to see it, so have requested it under the Official Information Act. I think that a criminal charge in these circumstances would have been overkill, but am still interested to see the CAA's reasons for not recommending one.

For myself, I see one truly excellent reason not to charge Gerry Brownlee, which is probably obvious from the title of this post: Gerry Brownlee is innocent.

When the 'security breach' was first notified, I was involved in some twitter conversations about what trouble Gerry might be in. I couldn't find anything. People suggested things, but nothing really worked. The New Zealand Herald's John Armstrong called it a "a serious offence which carries a fine of up to $3000 and up to two months in prison." I still have no idea what offence he was thinking of, as there isn't a single civil aviation offence that carries a two month prison term.

I came out with three possibilites, the rule in respect of which the CAA issued their infringement notice, and offences against two sections of the Civil Aviation Act: section 51 (trespass) and section 54 (being in a security area), both offences with a three month maximum, but quickly came to the conclusion that none could apply.

The trespass offence has probably the strongest argument, but it is still weak, because Brownlee asked for, and received, permission to be where he was, which make his actions the antithesis of trespass.

The offence of being in a security area or security enhanced area is only committed if you are in a such an area and you refuse the leave when asked, and it doesn't apply to Brownlee's situation because he didn't refuse to leave and wasn't asked.

The infringement offence is contained in rule 19.357(b). It states

(b) Subject to paragraphs (c) and (g), no person shall enter or remain in any security area or security enhanced area of any designated aerodrome or designated installation, unless that person—
(1) wears an airport identity card on the front of his or her outer garment; or
(2) has in his or her possession another identity document or other identity documents for the time being authorised under paragraph (a).

Now, I'm pretty sure Gerry Brownlee doesn't have an airport identity card, but there are some exceptions, including:

(g) Nothing in paragraph (b) shall apply to—
(3) any passenger who enters or leaves a security area or security enhanced area for the purpose of joining or leaving a flight, if he or she is in possession of a valid boarding pass for that flight or is being escorted by a crew member or a representative of the operator;

This is the bit of the law that means you don't break the law when you leave the terminal and walk accross the tarmac to your aeroplane. And it simply does not require you to go through security screening before entering an airport security area. All it requires is that you have a valid boarding pass, and I am pretty sure Gerry Brownlee will have had one. [Please see the update below.] Issuing an infringement notice for a breach of this rule in these circumstances simply makes no legal sense. 

I'll leave aside the question of whether there should be a rule that imposes an infringement fee for someone who attempts to board an aeroplane subject to security screening without actually going through security screening, but we simply don't appear to have one. I have no doubt that Gerry Brownlee took the politically proper course by paying the infringement fee quickly after it was imposed, but it is still wrong for the Civil Aviation Authority to impose liability where none exists, which you'd think a four-month investigation might have pointed out.

I await the response to my OIA response with interest :-)

[UPDATE (~2 hours after posting): I have just listened to Mary Wilson's Checkpoint Interview with CAA Director Graeme Harris. During that interview, principally dealing with the witholding of the report, Mr Harris indicated that, at the time that Gerry Brownlee entered through the door he ought not to have, he did not have had a boarding pass, noting these were subsequently obtained from the Koru Club by Mr Brownlee's associate. This would change my analysis, which as I note rests on the basis that "... I am pretty sure Gerry Brownlee will have had [a boarding pass]". If my "pretty sure"-ness is unsubstantiated, my criticism of the CAA for issuing an infringement notice for a breach of rule 19.357(b) is misplaced, and I apologise.]