Legal Beagle by Graeme Edgeler

5

Littering!

I published my Select Committee submission on the Contempt of Court Bill yesterday. Part of the reason it was both late and short was that I decided that my submission on the Litter (Increased Infringement Fee) Amendment Bill was probably more important, not because the bill is, but because there has to be a reasonable chance that I'm the only person who is going to submit on a bill whose sole purpose is to change a "$400" to a "$1000" in one section of the Litter Act.

It's my first submission to the Environment Committee, so I hope they like it.

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The Environment Committee

Litter (Increased Infringement Fee) Amendment Bill

Submission of Graeme Edgeler 

Introduction

1. My name is Graeme Edgeler. I am a Wellington barrister who mostly practices in public and criminal law.

2. I oppose the Litter (Increased Infringement Fee) Amendment Bill and thank the Committee for the opportunity to present a submission on it explaining why.

3. In short, the proposed maximum allowable $1000 infringement fee for littering is out of all proportion with the offence of littering, and out of line with infringement fees for other infringement offences at a similar level. Local Authorities do not need the power to adopt bylaws providing for a $1000 infringement fee for littering. They already have sufficient powers under the current legislation.

Criminal Offence or Infringement Offence?

4. Littering is both a criminal offence, punishable by a fine, and an infringement offence, punishable by the imposition of an infringement fee. This dual approach is relatively common with a range of regulatory offences. More serious breaches of these offences can be prosecuted in the Courts as criminal offences (potentially resulting in a conviction and a criminal record) while less serious breaches can be dealt with using infringement fees (which are like parking tickets, or speeding tickets, and do not result in criminal records).

5. As this bill proposes amending the level of the infringement fee, it should be recognised that it is dealing with low level littering, and not with more serious dumping. More serious littering would be prosecuted rather than dealt with by the infringement notice procedure.

6.  If there are concerns with dumping or other serious examples of littering, then amendments to the maximum *fine* for littering (currently $20,000, or $30,000 for dangerous refuse) and not changes to the *infringement fee* would be more appropriate. Of course, particularly serious dumping abuses are likely dealt with under other legislation: either as criminal nuisances under the Crimes Act, or under the Resource Management Act, and not the Litter Act at all. If the Committee has concerns, that may be a better place for it to look.

The Practical Difference Between Fines and Infringement Fees

7. It is important that the Committee appreciates the practical differences between fines and infringement fees.

8. A fine is a sentence that can be imposed by a Court following a prosecution and conviction for a criminal offence. When imposing a punishment, a Judge (or in the case of a fine-only offence like littering, probably a Community Magistrate) is able to look at the particular offence, and the circumstances of the offender, and impose a penalty in line with this.

9. This is not how infringement fees work. Unlike a fine, an infringement fee is imposed as a set amount. If an authority (whether it’s a local authority, such as for a parking infringement, or police, for something like a speeding infringement) issues someone with a ticket for an infringement offence, the infringement fee that comes with it is at a particular level set by the rule that creates the offence.

10. These can sometimes be set to a scale, like the infringement fees for speeding, with different amounts in 5km/h increments, or they can be the same for all instances of a particular infringement offence. When an authority chooses to impose an infringement fee in a particular case, there is no discretion as to the amount. Whatever has been set as the infringement fee is it. Because of this, infringement fees can be inequitable, and recognition of this is part of the reason why speeding fines were lowered some years back.

The Proposed $1000 Infringement Fee for Low-Level Littering is Far Too High

11. As noted above, this bill amends the maximum infringement fee that a council could set for littering.

12.Although littering is bad, a possible $1000 infringement fee is out of all proportion with the offence, particularly when we recall that we are concerned with the type of low-level littering properly subject to infringement fees. It is useful to compare it to other infringement offences: The highest infringement fee that is imposed for speeding is for speeding between 46km/h and 50km/h over the speed limit. [1] This fee is set at $630.

13. In New Zealand, drink driving is a criminal offence, but in 2014 Parliament created a new lower drink driving limit which imposed an infringement fee rather than criminal penalties for low level drink driving; those over the older higher limit still face conviction and fines in Court, but those who have only breached the new lower limit commit an infringement offence, and face an infringement fee of $200.

14. Although speeding tickets and the infringement offence of low-level drinking driving also come with demerit points, the fact that the level of the infringement fee is substantially lower than for offending that is far more serious than the type of low-level littering appropriately dealt with here suggests the proposed increase is unnecessary.

15. By way of further example, a first-time drink driver actually convicted of the full drink-driving offence (above the higher, long-standing limit), would usually receive a fine of less than $1000.

What Should the Infringement Fee be for Low-Level Littering?

16. People shouldn’t litter, but imposing infringement fees at a level many New Zealander would face great difficulty affording, well in excess of other low-level matters that local councils deal with (like parking infringements, which can by themselves lead to people being unable to pay and having to attend a fines court) is disproportionate.

17. There is, of course, a question of what the infringement fee should be. I am aware that during the first reading debate, a number of MPs discussed whether the maximum infringement fee needed to be brought in line with inflation. The Committee should be aware that it already has been increased well in excess of inflation from its original 1979 levels.

18. When the Litter Act 1979 was introduced, the maximum allowable infringement fee was $20 (~$104.66 in 2018 dollars). In 1990, this was increased to $100 (~$169.54).[2] And in 2006, this was increased to $400 (~$493.33).[3] The suggestion that it would need to be ~$1500 to keep up with inflation is wrong. The fee is already well in excess of the levels it was set at in 1979, and in 1990, and given the low levels of inflation over recent years, it’s still not all that much less in real terms than it was when it was last adjusted in 2006.

19. It may be thought that $400 is low for serious dumping, but of course, serious dumping shouldn’t be subject to the infringement fee process in any event. It should be prosecuted. If there are concerns that commercial-scale unlawful dumping is unable to be prosecuted at appropriate levels under the Litter Act, then the $20,000 maximum fine for criminal dumping under section 15 should be adjusted, not the infringement fee.

Conclusion

20. I oppose the bill, and encourage the Committee to reject it:

20.1.  The maximum infringement fee is already in-line with other infringement fees for things like speeding and drink-driving, and substantially higher than those imposed for things like parking infringements.

20.2. An increase in the infringement fee to $1000, would see low-level littering punished with an infringement fee much higher than those imposed for driving 49km/h over the speed limit, or drink-driving in respect of the new lower limit is clearly disproportionate.

20.3. If the Committee is concerned about commercial-scale littering, it should consider amendments to the fine in section 15, or to the Resource Management Act, instead of the infringement fee in section 14, as this bill proposes.

21. I look forward to meeting the Committee in person to address my submission.

Graeme Edgeler



[1] Speeding at a higher level is effectively always charged as careless, reckless or dangerous driving.

[2] Litter Amendment Act 1990, s 6.

[3] Litter Amendment Act 2006, s 6.

2

The Contempt of Court Bill

I have just filed a Select Committee submission on the Contempt of Court Bill. My submission was made a lot easier by the submission prepared by Leonid Sirota and Edward Willis, which raised almost all of the issues with the most problematic aspect of the bill - its failure to take the opportunity to completely abolish the form of contempt of court known as "scandalising the Court". Their focus on this meant I could focus on matters slightly more frivolous, like the fact the bill I have just submitted on is in fact not called the Contempt of Court Bill.

You can read that submission, signed onto by a number of other public law academics, on Dr Sirota's blog, but if you are interested in reading mine, it follows.

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The Justice Committee

Administration of Justice (Reform of Contempt of Court) Bill

Submission of Graeme Edgeler

Introduction

1. My name is Graeme Edgeler. I am a Wellington barrister who mostly practices in public and criminal law. I have some experience with the Law around Contempt of Court, up to and including the New Zealand Supreme Court.

2. I support the move to bring the law of contempt of court into legislation, although I proposes some changes to the bill. Public accessibility of the law – particularly laws with criminal consequences – is important, and the current approach to contempt law makes it difficult not just for members of the public, but even for lawyers, to understand the law.

3. The importance of this public accessibility of the law gives rise to my first proposed change, around the bill’s treatment of other non-statutory contempts of court.

Clause 29 – other contempts

4. Clause 29 repeals the main common law contempts, these having be statutorily enacted in the rest of the bill. However, clause 29(2) states that:

Nothing in this Act limits or affects any authority or power of a court, including the authority of the High Court under its inherent jurisdiction, to punish any person for contempt of court in any circumstances to which this Act does not apply.

[Emphasis added]

5. This is a cop out. It abandons the principal benefit of a Contempt of Court Act – bringing contempt law into a place where people can actually find it – and maintains a set of laws with criminal sanctions that no-one may be able to find.

6.  Instead, I submit that all remaining non-statutory contempts, including those founded in the inherent jurisdiction, should be abolished.

7.  If there other non-statutory contempts of court not covered by this bill that ought to be maintained, it should not be beyond the abilities of the Law Commission and the Ministry of Justice to state what these remaining contempts of court are, and to recommend the language necessary to add them to this bill.

8. If they are unable to do this, I do not see how members of the public can be expected to have to comply with their obligations not to commit such contempts of court. If those tasked with enforcing the laws cannot say what is actually prohibited, it would be wrong to punish anyone else for doing such things. The law – especially the criminal law – must be knowable.

The bill should be renamed the Contempt of Court Bill

9. I would not usually submit on the name of a bill, but given the use to which the Administration of Justice (Reform of Contempt of Court) Bill is likely to be put, it has far too cumbersome a name.

10. The operative sections of the act are principally the criminal offences in creates. It would make things a lot easier for everyone dealing with the law, as well as aid public understanding and accessibility of the law, if the bill was renamed the Contempt of Court Bill. I appreciate that in New Zealand, bills with names that have bracketed bits are common. This is often appropriate for amendment bills, but it should be avoided for substantive stand-alone criminal laws like this.

11. People face robbery charges under the Crimes Act, not under the Administration of Law (Reform of the Law of Crime) Act. And people who are charged with contempt of court as a criminal offence, should be charged under a law called the Contempt of Court Act. This would be consistent with the approach in other jurisdictions, including the United Kingdom.

Clause 24 – the offence of publishing untrue allegations or accusations against a Judge or court

12. The bill proposes the re-enact the common law contempt of scandalising the Court, as an offence of publishing an untrue allegation or accusation against Judge or court.

13. I submit that it should not. People should not publish untrue allegations about anyone, but the criminal law is a wholly inappropriate means to enforce this. The particular form of this offence is highly problematic, and the mere attempt to do this is likely to be counter-productive.

14. We are about to abolish blasphemous libel. We abolished criminal libel a number of years ago. We should not recreate criminal libel in the Contempt of Court Act. Scandalising the Court should be abolished completely.

15. If judges are defamed, they can adopt the same recourse as everyone else. They are not in need of special protection allowing them to imprison people who defame their colleagues.

16. I am aware of the submission of a group of Legal Academics on this aspect of the bill, to be presented before the Committee by Dr Leonid Sirota of AUT and Dr Edward Willis of the University of Auckland. I endorse their comments, and recommendations.

17. I add two things: first, even if a more measured version of this offence were adopted, I consider any prosecution under it is likely to have the opposite of its intended affect.

18. The offence provision is aimed at protecting public confidence in the Courts. I can think of little more likely to undermine public confidence in the Courts than the appearance that the Courts are punishing those critical of them.

19 Second, I find the liability section in clause 24(2) troubling. The maximum sentence in every other contempt in the bill is express the same way that every maximum sentence is now expressed, for example, in clause 14(3):

A person who commits an offence against subsection (2) is liable on conviction,—

(a)     in the case of an individual, to imprisonment for a term not exceeding 6 months or a fine not exceeding $25,000; or …

20. Clause 24(2) is instead written as:

A person who commits an offence against subsection (1) is liable on conviction,—

(a)     in the case of an individual, to a term of imprisonment of less than 2 years or a fine not exceeding $50,000:

21. This form of words is contrary to the practice of the Parliamentary Counsel Office, and also contrary to the Legislation Design and Advisory Committee's Legislation Guidelines. This is quite literally the only time this form of words is used across the entire body of the New Zealand law. It appears as though the Law Commission wants to create a maximum sentence of 2 years, but realising that this would allow a defendant to request a jury trial, has decided to create the only offence in all of New Zealand law with a maximum sentence of 1 year, 364 days, just to avoid this. However it wants to avoid directly saying this is the maximum sentence in the legislation, because then it might then be too obvious.

22. I submit that if this contempt is retained, in whatever form, the maximum sentence should be written in the normal way “imprisonment for a term not exceeding 2 years”. Not only would this accord with standard drafting practice, but the possibility of a jury trial is about the only thing I can think of that could help avoid the perception that any prosecution under this section would involve Judges seeking to silence criticism of the Courts.

Conclusion

23. I commend the Bill to the Committee, making the following recommendations:

23.1. The Bill should be renamed the Contempt of Court Bill

23.2. The remaining non-statutory contempts of court not covered by this bill, should be identified, and either added to this bill, or abolished

23.3 The offence of publishing untrue allegations or accusations against a Judge or court should be removed from the bill, and if not removed, should be substantially amended

24. I look forward to meeting the Committee in person to address my submission.

Graeme Edgeler

4

Voting disqualifications (updated)

Arthur Taylor has had some “luck” in the Supreme Court recently, getting two cases there in a month, both looking at the 2010 amendment to the Electoral Act that expanded the prohibition on prisoner voting. Many lawyers wait years to get leave to argue a case in the Supreme Court, so two heard in a month is somewhat extraordinary for a self-represented litigant.

His first was heard earlier in the month. It was actually a Crown appeal, but it was from a case Taylor won in the High Court, and Court of Appeal (there with some help from the Human Rights Commission). In today’s case, he isn’t self-represented any more, having arranged a lawyer since getting leave to argue the case. The first appeal was over whether courts have the power to declare the legislation is inconsistent with the New Zealand Bill of Rights Act. The case being argued today has the potential to render that moot: it's over whether the 2010 law change actually changed the law at all.

When the argument was first raised in the High Court, before the 2011 election, I didn’t think it had much chance of success. That was partly because of the urgency of the case, and the form in which it was brought (at that stage it was as an application for an interim injunction), but I also didn’t think the substantive argument was likely to succeed either.

I think I still think he’s going probably going to lose, but I’m not nearly as convinced as I was.

The case is relatively simple. Section 268 of the Electoral Act sets out specific parts of the Electoral Act which are particularly important, and which can only be amended by a 75% in Parliament, or by a referendum (the vote limiting prisoner voting rights was much closer than that). One of the “reserved” sections is described:

(e) section 74, and the definition of the term adult in section 3(1), and section 60(f), so far as those provisions prescribe 18 years as the minimum age for persons qualified to be registered as electors or to vote:

Now, the prohibition on prisoner voting isn’t in any of those sections. Section 74 provides the qualifications required for voting. And section 80 provides the disqualifications from voting (like not having been in the country in the last three years, etc.).

Seems simple, while the necessary qualifications for voting in section 74 need a supermajority to change, it seems section 80 can be amended without a 75% majority. But there has to be a line, doesn’t there? If section 80 was amended so that that you were disqualified from registering to vote if you were under 21, that would directly contradict other reserved sections, like the definition of adult as being 18+. But surely there are some other prohibitions that would go too far?

The law prohibits a simple majority in Parliament amending section 74 to make one of the necessary qualifications for registering to vote that the person is male, or that the person owns at least £50. Would we seriously suggest that section 80 could be amended by a simple parliamentary majority to make being female, or owning no property (or less than £50 of property) something that disqualifies you from enrolling to vote? Wouldn't such a disqualification so undermine the qualifications for voting to render them not really the qualifications at all?

Now, banning women from voting would be an unreasonable limit on the right to vote guaranteed in the New Zealand Bill of Rights Act, but so, it is accepted, is banning all sentenced prisoners from voting. So if the former is on one side of the line, what distinguishes the latter that it might be on the other?

There has to be a line somewhere. Which of the following “disqualifications” be added to the electoral act by a bare parliamentary majority, without offending the principle that the qualifications for voting are protected by there being a requirement for a Parliamentary supermajority:

  • sentenced prisoners serving at least 3 years in prison?
  • sentenced prisoners in prison on election day?
  • people released from prison, but on parole or subject to release conditions?
  • all former sentenced prisoners?
  • people with unpaid fines?
  • people who have ever been convicted, even if not sentenced to prison?
  • people with unpaid child support, or unpaid taxes?
  • people who don’t pay enough in taxes?
  • people on welfare?

Now, Parliament almost certainly isn’t going to amend the law to preclude people in most of these groups from voting, but the legal question is whether it could with a simple majority if it wanted to. Which of these amendments would do enough violence to the protected guarantee that adults are qualified to vote in New Zealand that a Court would say a law change passed without a 75% majority was invalid? Because, while I still don’t expect Arthur Taylor to win, I really can’t tell you the legal principle that makes the difference for some and not others.

Update: I went to the Supreme Court this morning to watch the first half-hour or so of the argument, and found it so fascinating, that I stayed for the whole argument. The Crown is arguing that, in fact, there is no line, and that Parliament could, if it wanted to, institute a ban on women voting, or impose a property qualification, by a simple majority.

It accepts, however, that if the Court does rule that the entrenching provision covers prisoner voting, then the Court should declare the the 2010 legislation invalidly enacted. That would mean that the law would rever to the 1993-era ban applying only to those prisoners serving sentences of imprisonment of at least three years. Although it accepted this in the High Court and Court of Appeal, this is a relatively new concession. Certainly when the first entrenching section was added in 1956, it was considered to be of moral persausion only. 

Of note from the argument of Francis Cooke, who represented Arthur Taylor, is that if we wins the case, he accepts that the rule requiring 75% to amend the prison voting ban would also apply in reverse, so that if the new Government wanted to get rid of it completely, it would need 75% support for this in Parliament (or either a referendum, or an amendment to the entrenching provision).

15

A submission on the Electoral (Integrity) Amendment bill

I'm no fan of the Electoral (Integrity) Amendment Bill, the law that seeks to reinstate anti-"Waka-jumping" laws. And I wrote a submission saying so, to Justice Committee. A bunch of people have already made submissions on the objections in principle to the law, so rather than repeat them, I decided to focus my submission on changes that could make the bill slightly less worse than it otherwise might be. If you are interested, it follows below:

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The Justice Committee
Electoral (Integrity) Amendment Bill
Submission of Graeme Edgeler

Introduction

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

I thank the Committee for the opportunity to present a written submission on the Electoral (Integrity) Amendment Bill.

I consider that the bill is unnecessary, and harmful. It would move the political system toward one where greater power rests with parties, and party leaders, and less power with individual MPs

New Zealand already has the strongest party system of a Westminster-style democracy. Without other changes to our law (for example around the threshold), any move in this direction is likely to risk the integrity of the system, rather than increase it.

Individual MPs should be empowered to hold their parties to account, on behalf of the voters who put them into Parliament. It is not clear why, for example, an MP going against their party when it votes for legislation it campaigned against at an election should lose their seat because they threaten the integrity of the electoral system, while the MPs who go against their pre-election promises are not seen as threatening “electoral integrity”.

I know there is some support and also some disquiet among members of the Committee to the bill. I am aware that the Committee has received other submissions that address the argument at length, so, while I recommend that it not pass, I also offer some options for the Committee to consider to ameliorate some aspects of the Bill.

Legislation Expiry

The previous version of the Electoral (Integrity) Act included an expiry date. This did not necessarily mean that the law would lapse, but had the effect of requiring Parliament to reconsider whether it continued to be needed. If there is some reluctance to make either no change, or a permanent change without broader buy-in (I am aware that New Zealand First, for example, considers that controversial changes to electoral law should require either broad buy-in, or support at a referendum), then this could be considered.

I submit that the Committee should consider removing the sections dealing with expulsions by parties, and limit the effect of the Bill to resignations from parties. The 1999 Electoral (Integrity) Amendment Bill (before it was amended by the Select Committee) originally only applied only to resignations, and did not also apply to expulsions. The committee might consider again limiting it in that way. It would deal with the worst of the current system (MPs being elected under one banner, and then defecting), while not substantially increasing the risks of harm to MPs’ free speech etc. that will arise with the threat of expulsion from Parliament.

Expulsions

If the committee does consider that the law should cover not just resignations, but also cover expulsions, it should consider whether the balance is correctly struck.

At present, the bill requires a two-thirds majority vote of a party caucus to expel and MP from Parliament. If an MP is really threatening the proportionality of Parliament, one would expect much greater unanimity from a party caucus as to that fact, than a mere two-thirds.

Under the current proposal, National could eject an MP even if 18 of their MPs considered the MP had not threatened the proportionality of the House, and Labour, could eject an MP with 15 MPs opposed. If the vote had anywhere near that many opposed, I think it must be seriously disputed whether proportionality would have been threatened.

When you are talking about ejecting an MP from Parliament, a much higher vote should be required, perhaps even near unanimity of the party caucus (ie unanimous, but the for the MP in question). An MP who has the support of even two or three of their party colleagues represents a significant party position likely to have been supported by at least some of that party’s voters, whose voice should not be silenced by other party factions. An MP with that level of support from the party Caucus should not be forcibly expelled from Parliament.

To ensure that the vote fairly reflects individual caucus member’s true positions, I would also suggest that the vote to expel should be required to be a secret ballot of the caucus (in much the same way that this is required before a strike).

Component Parties

Members will recall the Alliance Party. It has been some time since the party was successful in electoral politics, but at the first MMP election, it fielded candidates from the four separately-registered “component parties”: The NewLabour Party, the Green Party, Mana Motuhake and The Democrats, and had 13 elected.

The Alliance formed in part because of the very high 5% threshold that was chosen when we adopted MMP. The form of relationship it had is encouraged by the Electoral Act, which provides for an explicit process by which two or more registered parties can be recognised as “component parties” of a larger party to give them a realistic chance to pass the 5% threshold.

Although there are currently no parties with no component parties, I am concerned that the processes in the Act are inconsistent with the sections of the Electoral Act that create and recognise component parties, do not adequately protect the position of parties that are component parties.

People voted for the Alliance, for example, knowing that they were voting to ensure NewLabour MPs were in Parliament, as well as Green MPs, etc. Standing Order 34(2)(c) even allows that MPs who are members of component parties to be recognised as such for parliamentary purposes. Allowing a party to expel a member of a component party, to be replaced by someone from a different party is likely to distort proportionality, not enhance it.

Similarly, when the Green MPs who were elected as part of the Alliance in 1996 announced the Green Party would be running as a separate party, outside of the Alliance umbrella party, at the 1999 election, it could not fairly be said they distorted the proportionality of Parliament (people voted for the party knowing the Green Party was a component party of the Alliance, and knowing that MPs who were Green Party members would be elected). Given this, it would be wrong to allow such a situation to result in an expulsion from Parliament for distorting the proportionality of the House.

In light of this, consideration should be given to amending the bill to take account of the position of component parties, so that the bill does not inadvertently provide a mechanism to increase disproportionality.

Requirement for Parties to Adopt Rules

New section 55D provides when an MP is expelled by a caucus, the letter sent by the Party Leader must advise that, if the party imposes rules on the expulsion of an MP, they have been complied with. As drafted, a party is not necessarily required to have such rules, but those parties that do are required to follow them.

I submit that parties should be required to have such rules. This is in line with other parts of the Electoral Act, which require parties to have (i) membership rules (ii) rules around candidate selection.

This would not require parties to adopt any particular sort of rule (the rules adopted might simply state that there are no requirements beyond those contained in the Electoral Act), but it would aid in clarity of what is required, particularly in combination with the following submission. Political parties should be permitted a wide latitude in how they run their affairs, but this bill effectively gives parties the power to overrule the election result, ejecting from Parliament someone whom the voters have elected. In the same we that we require them to have rules around selection of candidates, I do not think to great an imposition, to require them to declare in advance how they will do it.

Public Notification of Bills

Section 71B of the Electoral Act gives statutory recognition to party rules already, and in particular requires registered parties to supply the Electoral Commission with copies of the rules governing membership of the party and the rules governing the selection of candidates (as both list candidates and constituency candidates).

I submit that if party rules around the expulsion of MPs is to have statutory recognition, as the bill proposes, these rules should be required to be supplied to the Electoral Commission in the same way. This would not place the Electoral Commission in the position of mediating disputes (which they don’t do either over membership, or candidate selection), but would provide some clarity to the process for all concerned, and allow voters to take account of the rules when making deciding how to vote.

Conclusion

I oppose the bill, and encourage the Committee to reject it, however, if the Committee is minded to support the Bill back to the House, I encourage it to adopt some or all of the amendments I propose above:

  • Consider whether the bill should have an expiry, by which Parliament will have to reconsider whether it continues to be necessary;
  • Change the bill so that it only cover resignations, not expulsions;
  • Require near unanimity of a party caucus before expulsion can occur (or certainly caucus support substantially higher than that presently in the bill);
  • Provide that a caucus vote must be conducted by secret ballot;
  • Provide recognition of the place of component parties;
  • Require parties to adopt rules around expulsion of MPs, in the same way that parties are required to have rules around membership, and selection of candidates;
  • Require parties to publicly notify their rules for expulsion of MPs by providing them to the Electoral Commission.

I look forward to meeting the Committee in person to address my submission.

Graeme Edgeler

15

A Small Official Information Act Fix

A few days ago, TVNZ journalist Andrea Vance tweeted an Official Information Act response she had received from David Parker, the Attorney-General. Vance had sought information about workload and funding pressures on Crown Solicitors, something he had apparently taken an interest in while in opposition.

The response received advised that “the Attorney-General is not subject to the OIA in the performance of their Law Officer functions.” This is footnoted to an Ombudsman opinion that does not appear to be online. I’ve no reason to doubt it exists, although I think the argument is weak. I’m aware of another Ombudsman’s opinion (that is publicly available) that says that the Solicitor-General in performing her Law Officer functions is outside the OIA because the Office of Solicitor-General is not listed in the Ombudsman Act, or in the OIA, which I can accept. I’m not sure that it’s as clear for the Attorney-General. Ministers of the Crown are subject to the OIA in the performance of their ministerial functions, and I would have said that Attorney-General was exercising a ministerial function when acting as a Law Officer of the Crown.

That said, even the exclusion of the Solicitor-General for the OIA is a pretty big oversight. I can’t imagine it was a conscious decision, but even if it was, it was wrong. The Solicitor-General is the Executive’s chief legal officer, and exercises all sorts of government power. There’s probably a lot of information that the Solicitor-General has that shouldn’t be made public, but that can be protected by the other grounds in the OIA, like legal professional privilege. There is no reason for a blanket exclusion. So, with that in mind, I have drafted a short bill. It adds a short subparagraph to the definition of official information to provide that information held by the Attorney-General and Solicitor-General in the exercise of their function as Law Officers of the Crown is official information.

If any member of Parliament who likes transparency and openness in Government is looking for a simple members’ bill, they’re more than welcome to it.