PS Happy for the wager. Bottle of pinot noir?
I don't really do wine. Do you do bacon?
PPS Note to self: Must re-read Awatere-Huata before making any more wagers. The role of the Speaker and the effect of parliamentary privilege may be crucial.
It is definitely possible - I might go so far as likely - that the Speaker would refer the matter to the privileges committee if there was some dispute. I'm saying the result of whatever internal process the Speaker/House employs will be that Banks is gone from Parliament if a conviction has been entered.
Graeme: what happens if way he’s convicted but sentenced to less that 2 years or say fined, or gets the white collar equivalent home detention – is this a “corrupt practice”? (seems like one to me)
It’s the conviction that matters, not the the actual sentence. Any conviction for any offence, the maximum penalty for which is two years, or more than two years, is enough. Banks will not get either prison or home detention if he is convicted.
Graeme, I think you’ve touched on it, but if a guilty verdict came down could the defence lodge an immediate notice of intent to appeal based on, say, misdirection by the judge, and have the trial court hold entering the conviction until the CA decided whether or not to hear the appeal?
They could try. I’m not sure it would work, but there is probably a way it could be done using the process of reserving a question of law.
My understanding is that a guilty verdict results in a conviction which must be entered and, having been entered, must be notified to the Speaker. Or does conviction not get entered until sentencing has been completed?
A conviction can be entered after a guilty verdict, or it can wait until sentencing. If you are considering asking for a discharge without conviction, you can ask the judge not to enter a conviction until sentencing.
If this was going to be tried, I would imagine this would be the way through it. You would reserve a question of law, and just not hold the sentencing until it was resolved.
I remain convinced however, that the law requires, if a conviction is entered, the vacation of the seat. As I note, a prison sentence would be required to stop a convicted MP running in any by-election.
Edit: Dean - I'm happy to have a bet on this in the event it arises :-)
(1) There’s wiggle-room there in the manner in which the conviction is entered.
Every time I've mentioned this recently, I have been careful to phrase this around an MP being convicted, not an MP being found guilty.
(2) There remains an interpretative question, perhaps for the Speaker, about whether “is convicted” is a snap-shot or means “is convicted” following exhausted appeals.
There does, as I don't think it has come up. I note that this Speaker's Ruling does imply an appeal might affect the result.
(3) While the LG Act has different language, it was drafted in a different era and isn’t determinative.
Amendments and re-enactments of the various provisions . The text in the section 101X of the Local Government Act 1974 (which is basically the same) was inserted in 1989. The Electoral Act is from 1993. Those are not different eras.
(4) Section 27(1) NZ Bill of Rights (natural justice, read together with s 25) may suggest an interpretation that allows the exhaustion of an appeal before removal from office.
Does that apply to prison terms as well?
how much cost to the :) consumer and taxpayer :) is there in this litigation?
I imagine not very much (to date). Banks will be paying Court fees that will cover a bit, and it's not as if they've hired extra judges or staff to work on it. Now that the Solicitor-General has assumed the prosecution, it will be going up, but again, lots of those costs are fixed.
I’ve heard that said about s 55 before, but find it odd and suspect the courts prob work to avoid an appeal being nugatory?
The Courts are not without options, e.g. if there was a point of law on which a conviction might turn, a Court might decline to formally enter a conviction until an appeal on a reserved point had been heard, but I am confident of the overall point. (There's also the possibility of a discharge without conviction).
We start with section 55(1):
The seat of any member of Parliament shall become vacant—
if he or she is convicted of an offence punishable by imprisonment for life or by 2 or more years' imprisonment
Section 57(1) of the Electoral Act requires:
The Registrar of the court in which any member of Parliament has been convicted of an offence punishable by imprisonment for life or by 2 or more years' imprisonment, or has been convicted of a corrupt practice, shall, within 48 hours after the conviction, notify the fact to the Speaker.
Section 129(1) requires:
If the Speaker is satisfied that the seat of a member elected to represent an electoral district has become vacant, the Speaker must, without delay, publish a notice of the vacancy and its cause in the Gazette.
There is simply nothing that allows for any alternative. Then we contrast it schedule 7, clause 1 of the Local Government Act:
(1) A person's office as member of a local authority is vacated if the person, while holding office as a member of the local authority,—
(a) ceases to be an elector or becomes disqualified for registration as an elector under the Electoral Act 1993; or
(b) is convicted of an offence punishable by a term of imprisonment of 2 years or more.
(2) If subclause (1)(b) applies,—
(a) the disqualification does not take effect—
(i) until the expiration of the time for appealing against the conviction or decision; or
(ii) if there is an appeal against the conviction or decision, until the appeal is determined; and
(b) the person is deemed to have been granted leave of absence until the expiration of that time, and is not capable of acting as a member during that time.
(3) A person may not do an act as a member while disqualified under subclause (1) or while on leave of absence under subclause (2).
There is simply nothing like that in the Electoral Act, perhaps quite sensibly so. Do we really want MPs who can't vote in the House?
Also, an appeal won't be nugatory. It would vacate a conviction. I imagine that would be a pretty big deal for John Banks.
In fact, this may not be the most interesting 2010-Auckland-Super-City-election-related criminal case in the Auckland High Court this week. The jury trial of the individuals alleged to have been making false enrolments is nearing completion.
And where IS Graeme? Be careful what you wish for.
I don't know where you're at today, but Wellington is glorious.
I've been at the beach.
Possibly too late in a comments thread to ask this, but…
Does anyone here think that speech like that of Willie and JT should actually be banned? In the you-commit-a-criminal-offence-if-you-say-it sense?
And for those of you who answer “no”, why not?
We can, and should, actively try to reduce the power and frequency of pro-rape speech.
And some of the people who oppose your view think your speech is pro-rape. They think that the things you say mean that there will be more victims of rape. So are they justified in trying to stop you from speaking?