(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?
The price of freedom of speech for Jackson and Tamihere on this issue would have been to remind sexual abuse victims of the futility of exercising their own freedom to speak up.
Except that they had stopped, before they were taken off the air.
My main question would be why rights to ‘free speech’ seem to be invoked only to defend dickheads?
Well, I did it because it's harder, and because it's easier to accept my claims are genuine if I am defending the speech of those with whom I disagree.
I suppose I could have started my attempt to persuade people not to engage in speech designed to decrease the speech of others with an article about Into the River, or about about misogyny in politics, but that's low-hanging fruit around here.
If all speech is created equally, let me ask–when’s the last time you received a rape threat in the comments section of your work, Graeme? When were you last forced to move house to get away from sexually violent stalkers who didn’t like what you wrote, or gave up writing publicly because you could no longer take waking up to a barrage of comments about what a fat slut you were who’s too ugly to be raped? This happens to women who write online routinely
It does. And it is appalling. That is speech designed to stop people from speaking, which is exactly what my article is opposed to.