Legal Beagle by Graeme Edgeler

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Legal Beagle: Because it is a big deal

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  • Graeme Edgeler,

    Private prosecution...

    But only for stuff in the last two years.

    Wellington, New Zealand • Since Nov 2006 • 3011 posts Report Reply

  • Craig Ranapia,

    NEWSFLASH: Tory lawyer misses the point.

    NEWSFLASH TOM: Around here we usually do people the courtesy of presuming they're arguing in good faith.

    North Shore, Auckland • Since Nov 2006 • 12052 posts Report Reply

  • Idiot Savant,

    But only for stuff in the last two years.

    If you get in quick, you might just be able to get Jones. Otherwise it'll have to be Groser or Heatley.

    Palmerston North • Since Nov 2006 • 1664 posts Report Reply

  • Graeme Edgeler,

    we usually do people the courtesy of presuming they're arguing in good faith.

    I assumed we were. Arguing someone has missed the point can most certainly be an argument made in good faith - although I'm intrigued to know:

    1. why there is only one point; and
    2. what that point is.

    Because for the most part, I thought my point was 'Here, I looked through all the law, and extracted some bits out for you so you didn't have to, so that people could better understand the legal situation and take that into account when making their assessment of the whole thing.'

    Of course, that isn't really a point at all so I suppose that means I have missed the point. Pray tell then Internet, what are the points?

    Wellington, New Zealand • Since Nov 2006 • 3011 posts Report Reply

  • Russell Brown,

    Noting that this is the considered report of the Auditor-General, never written lightly:

    [Para 90, page 19] In our view, circumstances can arise from time to time where it may be sensible to put items of personal expenditure on credit cards when there is a clear intention to reimburse the costs. However, this should be done only when necessary and should be clearly documented. (emphasis added)

    Goodness. That's quite interesting.

    Auckland • Since Nov 2006 • 19019 posts Report Reply

  • Ian MacKay,

    Russell. My thoughts exactly. It seems to contradict the implaccable "it is clearly always illegal" line.

    Bleheim • Since Nov 2006 • 498 posts Report Reply

  • Patrick Xavier,

    Goodness. That's quite interesting

    Not really.

    The AG is making the distinction between prohibited public expenditure (ie, including that which should be privately incurred), and the incurring of private expenses (ie, including on a public credit card in "circumstances").

    To be clear, it's not an offence to put private expenses on a Ministerial credit card, unless there's an intention improperly to procure public funds for such private use.

    Since Nov 2006 • 38 posts Report Reply

  • Graeme Edgeler,

    Russell. My thoughts exactly. It seems to contradict the implaccable "it is clearly always illegal" line.

    Yes. Now if I could find a legal basis for it, I'd be a happy man. For the true emergency situation envisioned in the credit card contract, the defence of necessity would apply, and would negate criminal liability under s 76 (although the spending should still be validated), but for mere convenience, I just don't see it.

    Section 25 of the Public Finance Act allows expenditure without appropriation in emergencies, but that section only applies if—

    (a) a state of emergency or state of civil defence emergency is declared under the Civil Defence Act 1983 or the Civil Defence Emergency Management Act 2002; or

    (b) a situation occurs that affects the public health or safety of New Zealand or any part of New Zealand that the Government declares to be an emergency.

    And section 26A allows transfers between appropriations in certain circumstances, but it doesn't go so far as to allow spending outside of any appropriation.

    Wellington, New Zealand • Since Nov 2006 • 3011 posts Report Reply

  • Patrick Xavier,

    Now if I could find a legal basis for it, I'd be a happy man.

    No doubt, but that would just be confirming your prejudices.

    You're missing the point of both the BofR and the PFA: it is that public expenditure must be authorised (and, as a corollary, the diversion of public monies for private benefit is an offence), not that private expenditure is prohibited. Your reference to s25 of the PFA illustrates how far you miss the mark.

    Private expenditure on Ministerial credit cards presents a risk to transparency, tends to illustrate poor judgement, and its reimbursement should be achieved through good governance. But it's not an offence in itself.

    Since Nov 2006 • 38 posts Report Reply

  • 3410,

    NEWSFLASH TOM: Around here we usually do people the courtesy of presuming they're arguing in good faith.

    Apart from all those times that you dismiss someone's argument as being made solely on the basis that they "don't like" the subject of it. :)

    Auckland • Since Jan 2007 • 2618 posts Report Reply

  • Craig Ranapia,

    Goodness. That's quite interesting.

    Indeed it is. But could I be cynical enough to suggest that various persons in Parliament who were quite happy to impugn the A-G's grasp of the law when expressing "our view" on *cough* various other matters shouldn't be allowed to cling to this too hard. :)

    Apart from all those times that you dismiss someone's argument as being made solely on the basis that they "don't like" the subject of it. :)

    3410: Around here, I'd get my arse righteously spanked if I couldn't do marginally better than "Liar-bore lawyer misses the point". Seriously.

    BTW, if Graeme is a "Tory" stooge, I've got to wonder how he escaped from the re-education camp after supporting the Electoral Finance Act.

    North Shore, Auckland • Since Nov 2006 • 12052 posts Report Reply

  • Graeme Edgeler,

    You're missing the point of both the BofR and the PFA: it is that public expenditure must be authorised (and, as a corollary, the diversion of public monies for private benefit is an offence), not that private expenditure is prohibited.

    Where is the authorisation of spending on golf clubs?

    But could I be cynical enough to suggest that various persons in Parliament who were quite happy to impugn the A-G's grasp of the law when expressing "our view" on *cough* various other matters shouldn't be allowed to cling to this too hard.

    Different Auditor-General. The old one was awesome (seriously - if you ever get the chance to hear a public lecture by him take it up).

    Wellington, New Zealand • Since Nov 2006 • 3011 posts Report Reply

  • 3410,

    3410: Around here, I'd get my arse righteously spanked if I couldn't do marginally better than "Liar-bore lawyer misses the point". Seriously.

    BTW, if Graeme is a "Tory" stooge, I've got to wonder how he escaped from the re-education camp after supporting the Electoral Finance Act.

    Maybe so but, either way, neither point's got any relation to what I said. Anyhow...

    Auckland • Since Jan 2007 • 2618 posts Report Reply

  • FletcherB,

    Where is the authorisation of spending on golf clubs?

    Was there any spending on golf-clubs? By the public I mean....

    A credit card got used..... the credit card companies money goes into vendors account.

    If the politician puts funds into the account before its due.... did any public money get spent?

    West Auckland • Since Nov 2006 • 798 posts Report Reply

  • Kyle Matthews,

    If the politician puts funds into the account before its due.... did any public money get spent?

    Umm. That's don't work.

    Just because interest hasn't been charged yet, doesn't mean money hasn't been spent.

    Since Nov 2006 • 6217 posts Report Reply

  • giovanni tiso,

    No, actually until repayment is due the money simply hasn't been spent. It's abusing a line of credit at best. It seems quibbling in the face of precise rules and reiterated advice that it was not OK, however.

    Wellington • Since Jun 2007 • 7390 posts Report Reply

  • Martin Roberts,

    > If the politician puts funds into the account before its due....
    > did any public money get spent?

    Umm. That's don't work.

    Just because interest hasn't been charged yet, doesn't mean money hasn't been spent.

    But if you put down a deposit when you got the credit card, and always maintained a credit balance? Then surely it is just an accounting convenience.

    And if it can so easily boil down to an accounting question, then isn't it a storm in a teacup?

    Auckland • Since Nov 2006 • 88 posts Report Reply

  • Martin Roberts,

    I will give you the 'reiterated advice' issue.

    We have the same advice at my work, and the accounts clerks sitting behind me routinely expostulate about another infringement. As an IT person I feel that our team has somehow let them down if it is such a big trial for them to process a statement with clearly identified personal items.

    Auckland • Since Nov 2006 • 88 posts Report Reply

  • giovanni tiso,

    I've been doing translations for an expense management software company and they have a facility to flag payments as personal so that employees can then refund the company when the statement comes back - so it must be how some corporates decide in fact that it's the most rational way to deal with it.

    Wellington • Since Jun 2007 • 7390 posts Report Reply

  • FletcherB,

    It seems quibbling in the face of precise rules and reiterated advice that it was not OK, however.

    I agree that they certainly seem to have had very clear rules..... and it also seems that at least some of them were under an understanding that breaking those rules was actually normal and acceptable as long as it was refunded..

    But Graeme was saying, regardless of those rules, its illegal to spend un-appropriated public funds.

    I was questioning (only half-heartedly- I wouldn't want to put my neck on it) if un-appropriated funds had indeed been spent, because if they haven't, the point is moot.

    I suspect I'm wrong... I'm trying to prompt clarification...

    West Auckland • Since Nov 2006 • 798 posts Report Reply

  • Kyle Matthews,

    No, actually until repayment is due the money simply hasn't been spent. It's abusing a line of credit at best.

    But only on the basis that a bank has agreed to give your place of work a credit card and that's how credit cards work.

    The goods or services have still been paid for. The provider of the goods or services have the money in their bank account, and your workplace credit card shows the expenditure. Seems pretty 'spent' to me, and the fact that the bank allows you to actually pay the bill a month later doesnt' change that.

    Since Nov 2006 • 6217 posts Report Reply

  • giovanni tiso,

    I borrow five dollars from you, with the proviso that if I haven't paid it back within a month, Craig will pay you back. If I pay you back within that month, Craig's money will never leave his pocket, although you could also say that he's incurred a potential liability between my borrowing of the five dollars and the repayment. Still, saying that he's spent five dollars would stretch the definition of "spending" somewhat.

    Wellington • Since Jun 2007 • 7390 posts Report Reply

  • Martin Roberts,

    Perhaps we could clarify some of these questions by moving the government to debit cards? Hopefully the government doesn't actually need the credit, in which case they are getting 'free' credit at the expense of those who get stuck in the rather nasty web.

    Ambiguity resolved + karma points.

    Auckland • Since Nov 2006 • 88 posts Report Reply

  • Russell Brown,

    FWIW, my Business Mastercard is interest-free for a month but the balance is automatically cleared on the 20th of the month via a direct debit from our business account.

    Bit of a pain, actually, because it doesn't seem possible to clear it in advance.

    Auckland • Since Nov 2006 • 19019 posts Report Reply

  • jo kerr,

    I can't see any justification for using the cards for single purchases of golf clubs and bicycles etc.
    But I'm quite used to traveling for work, and usually when you check into a hotel you leave an open credit card imprint. Sometimes with a group you will ask that members pay their own extras apart from accommodation and breakfast, and sometimes those get missed at check-out for all sorts of reasons and are reimbursed later. Isn't that what most of this beat-up is all about? particularly Shane Jones' PPV movies, the employer recovering unpaid extras bills. It looked like they were pretty good over all to me.

    Since Apr 2010 • 24 posts Report Reply

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