Legal Beagle by Graeme Edgeler


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:


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


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.


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.


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


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.


If Australia Jumped off a Cliff…; or How not to waste millions of taxpayer dollars

There is a good way to conduct government-initiated referendum, and there are bad ways to conduct them.

During the course of this Parliament, New Zealand will conduct one or perhaps two, referendums – one of the legalisation of cannabis use (a result of the Green Party’s confidence and supply agreement with the Labour Party), and perhaps another on euthanasia. Unfortunately, indications are not promising that the process for either these referendums will be good.

During September, October and November last year Australia conducted a referendum. We should learn from its mistake. Australia’s nationwide “plebiscite” on the legalisation of same sex marriage, in an exceedingly useful example of how not to conduct a public referendum.

How it went is no longer breaking news: a sizeable majority of the voting public indicated support, and then the Federal Parliament passed a law providing for it.

The marriage vote asked Australia voters to give a yes or no answer to the question:

“Should the law be changed to allow same-sex couples to marry?”

This is a perfectly reasonable question to ask to get a general sense of public feeling about a general issue, but is a stupid question to ask when wanting guidance on what a law should say.

How should you vote if you wanted politicians yet-to-consider a same-sex marriage bill to know that you would support changing the law to allow people of the same sex to marry, but would object to a law which might require churches to marry people in breach of church doctrine?

How should you vote if you wanted politicians to know that you thought people of the same sex should be able to marry, but would find offensive a system where a whole new law was created, setting up a separate same-sex marriage register, with separate same-sex marriage celebrants wholly separate from marriage celebrants?

You couldn’t. Holding a vote in advance of a bill being written, like they did in Australia, makes that impossible. You are being asked to vote in a vacuum – discussing the general idea of something that, in its final form, you may find you oppose.

This is a trap we should aim to avoid in both the cannabis referendum, and the potential referendum on euthanasia that New Zealand First is pushing for (and which David Seymour, the sponsor of the euthanasia bill, says he supports holding).

Because the intricacies of a same-sex marriage law are simple compared to either the regulation of cannabis or the regulation of euthanasia. These topics are much more wide-ranging, with vastly different possible systems of regulation.

And when people being asked to vote on something like this, people should know what trade-offs will be made.

Will euthanasia be limited to the terminally ill? Will it need a judge to sign off a decision to offer aid in dying? What will a doctor who refuses to take part have to do, if anything? Will advance directives be able to be enforced, or will applications have to be made by people who are conscious?

Will it be legal to sell cannabis, or just to possess and use it? Will people be able to grow their own, or will they have to buy it from specific government licenced dealers? Will you be able to smoke it outside in public places, like tobacco, or will that be prohibited, like the public consumption of alcohol often is? How will it be taxed? Will cannabis advertising and sponsorship be banned? Will councils have a role in regulating where it can be sold, or used? Will they be able to set up enforceable non-cannabis zones (like they can with alcohol), or only unenforced zones (like non-smoking areas)?

etc. etc.

These are important questions, and for a lot of people, the answers to some of these questions will be decisive in how they cast their votes. So voters should know what the proposal actually involves.

A bill should be introduced. The House should debate it, it should receive full select committee consideration, advice should be sought, and submissions received. If MPs consider that broader public input into the detailed policy questions is needed, they, or the Government, should conduct market research: legitimate opinion polls and/or focus groups about specifics. They should then form their view as to exactly the regulatory framework they think is necessary, and put it in legislative form. And if it’s considered important for voters to have a direct say, at that point voters should get their opportunity to say no.

This legislative process is happening with the euthanasia law (select committee submissions are due by 20 February). But the early indications are that it will not happen on the question of recreational cannabis use. There, to date anyway, the suggestion seems to be there should be a general non-binding referendum, asking a general question.

If that is the plan, MPs should just not waste our time. If they want a general insight into public views on the general topic of cannabis legislation, they should simply engage Colmar Brunton to undertake a large opinion poll on the topic.

There is a legitimate debate about what is, and what is not, an appropriate topic to hold a public referendum over. The basic answer – those things where we do not MPs making the decision for us – only restates the question. New Zealand First has the view that certain issues, those commonly called conscience votes, should be for voters. This is far from a universally held opinion, but there is a broad consistency to it, and it fits within the mandate theory of democracy. In an MMP voting system, we vote for political parties that put forward policies. They don’t get to enact them all unless they get a majority, but they are broadly expected not to act inconsistently with their promises. But conscience votes are matters on which political parties tend not to have policies. For such policies to have a mandate, it must come from elsewhere.

There are answers to this concern, but the objection I usually hear to holding referendums on such issues – that they are blunt instruments, reducing complex policy questions to yes/no questions – doesn’t apply to a referendum held after the process I describe above.

When you get to the end of the legislative process, legislators face the same basic yes/no question: given what this bill contains, should it become law?

In the New Zealand House of Representatives, it’s asked in a form like “the question is that the motion be agreed to. Those of that opinion will say ‘aye’. The contrary, ‘no’.” There isn’t any nuance in this. If the motion that the bill be read a third time is agreed to, the bill is read a third time, and will become law. If the motion is rejected, the bill fails. It is highly unusual for a bill to get this far and fail. A bill that won’t become law is usually rejected at an earlier stage, but the principle is the same.

This is the approach we used in the 1993 referendum on the electoral system. It is the system we used in the 1997 referendum on compulsory retirement savings, and the system we used for the 2015 and 2016 flag referendums. It contrasts with the system we use in citizens-initiated referendums.

Unfortunately, while the legislative process underway for the euthanasia legislation should work through the detail of the scheme, any referendum seems likely to be an afterthought. The bill itself doesn’t provide for a referendum, and New Zealand First, and bill sponsor David Seymour say the proposal for a referendum will not be introduced until the committee of the whole. This is the second to last stage, well after any opportunity for public input. This is a problem. Electoral legislation should not be passed without the possibility for public input.

The obvious solution would a Referendum Act, a permanent law that, like the Electoral Act, would provide for the basic rules for a referendum any time Parliament wanted to hold one, but we don’t have one, so every time Parliament wants to hold a referendum they have to pass a law not only setting out the question, and the consequences, but also the rules around advertising, and counting the votes, and laws providing for secrecy, and prohibiting bribery, etc. They might get this right on the first attempt, but draft laws are easy things to stuff up, and public scrutiny of legislation is important.

Fortunately, it’s not too late. The euthanasia law is still early in its early legislative process, and the cannabis referendum isn’t set up yet. Hopefully, we can avoid not only the mistakes Australia made, but also new ones of our own.


On citizen’s arrests; or yet another law change I missed when Parliament created the Criminal Procedure Act

There’s another news story about a citizen’s arrest of a tourist driver.

I got asked about citizen's arrests on Twitter, and thought people who don’t follow me on Twitter might also be interested in the answer.

Citizens' arrests do exist, and are lawful, but they’re limited, and they’ve become more limited recently. Police and the Courts don’t seem to be big fans. The Court of Appeal has noted that there isn’t a “power” of citizen’s arrest, but recognises (as I suppose they must) that the Crimes Act provides immunities for citizen’s arrests in certain circumstances. They have also been clear that the Crimes Act is it – whatever common law right of arrest citizens might have had in the past is gone – if your citizen’s arrest falls within the few sections of the Crimes Act covering arrests, it’s “justified”. If it doesn’t, you’re likely breaking the law.

Judges, like the Police, like to caution people not to “take the law into their own hands”, but the law, at least was written in a time when there was still some inkling that “Constables were neighbours doing full-time what every decent citizen could and would do when necessary,” and arrests aren’t supposed to be punishments, just a process by which people are brought before the Courts to have the law take its course.

But a few years back, that changed, and I’m not sure anyone noticed. I didn’t, and probably should have, so this is another mea culpa like the one I ran here, on an unnoticed change to the law of burglary.

The law used to recognise lawful citizens' arrests where you found a crime being committed at night, or where, during the day, you found someone committing an offence for which the maximum penalty is 3 years, or more.

But that was when the law recognised a subset of offences that were officially classed as “crimes” (as distinct from less serious “summary offences”). And the law no longer does that. As with the change to burglary (which used to be unlawful entry with intent to commit a crime), when we abolished the distinction between crimes and summary offences, we had to amend law around when citizens' arrests were lawful.

And we did that by drastically limiting them.

Where previously, a citizen’s arrest could be for any “crime” (if at night), or any crime with a maximum penalty of at least three years (if during the day), the law was changed to only cover offences against the Crimes Act. Now, that is most of the big ones, but it’s far from all serious crime.

And that means that offences against the Land Transport Act aren’t covered. So a news story about a citizen's arrest for dangerous driving (an offence with a maximum penalty of three month's imprisonment) is really a story about the possible kidnapping of a tourist.

It also means that offences against the International Crimes and International Criminal Court Act aren’t covered either, so probably don’t try to arrest Bush or Blair, or Obama if they visit any time soon.

But citizens' arrests are still a thing in New Zealand, a legislative remnant from a time when the law and concepts of community had a different meaning than the government might now wish. The law welcomes them, The Law may not. And despite what the name may lead you to think, in New Zealand at least, the immunity for conducting arrests is not limited to citizens.

So, if you’re not a police office, please don’t forcibly take someone’s car keys from them. Unless, you’re a Māori Warden, of course, and the driver is Māori, or is in the vicinity of a gathering of Māori  Then you can go right ahead.


Questions, but no answers, with thanks to David Simon for opening my eyes


On Thursday, Newsroom journalist Sam Sachdeva sent this tweet:

There have been a whopping 6254 written questions submitted to Govt ministers by the Nats in the last month; for comparison, there were 964 during the equivalent period after the 2014 election.

— Sam Sachdeva (@SamSachdevaNZ) November 24, 2017

I retweeted, and replied, and my mentions have now started to die down.

Written questions are not OIA requests. They’re more urgent: replies are expected within six working days, not 20, and the MPs who are asking them can seek answers, but not documents. And like the more well-known oral questions, each question is limited to one question, and answers are usually expected to be short. They’re a means for MPs, especially opposition MPs, but also local MPs, to quickly get information from Ministers to enable them to be able to do their jobs, representing the interests of their constituents, or holding the government to account, and, ideally not having to wait for the length of time an OIA usually takes.

You can’t use the written questions to get documents, but you can use them to ask for the names of documents: what reports has the Minister seen about school closures in the last month? With the answer, an MP can then follow up with an OIA request for reports of interest.

So, what questions have National MPs been asking?

Here’s one example:

8560 (2017). Hon Mark Mitchell to the Defence (Minister - Ron Mark) (16 Nov 2017): What meetings, if any, has the Minister attended between 26 October 2017 and 15 November 2017, including subject, attendees, and agenda items?

It’s the type of thing any beat reporter probably does once a month via the OIA: ask the Minister of Health, or Education, or Defence who they have met with in the last month (or in this case, the first 3 weeks or so since being a Minister), or what reports they’ve received in the last month, and then 20 working days later once you received the reply, put in further requests about reports or meetings of particular interest. It is an entirely reasonable question for the opposition defence spokesperson to ask: MPs have a heightened interest in this information, and allowing them the faster start on the question part is the reason Parliament has written questions.

The answer given was:

Hon Ron Mark (Defence (Minister - Ron Mark)) replied: I meet regularly, formally and informally, with officials and various stakeholders. A range of issues are discussed. If the Member would like to be more specific I will endeavour to answer the question.

This is not particularly helpful. But perhaps three weeks is too a long time? With meetings every day, the answer could be lengthy.

How did other MPs do?

Well, Simon Bridges, split them up a little more. He broke them down into weeks, asking questions like:

8449 (2017). Hon Simon Bridges to the Immigration (Associate Minister - Kris Faafoi) (16 Nov 2017): What meetings, if any, did the Minister attend between 26 October and 29 October inclusive, including subject, attendees and agenda items?


8448 (2017). Hon Simon Bridges to the Immigration (Associate Minister - Kris Faafoi) (16 Nov 2017): What meetings, if any, did the Minister attend between 30 October and 05 November inclusive, including subject, attendees and agenda items?

These questions got the answers:

(to 8449) Hon Kris Faafoi (Immigration (Associate Minister - Kris Faafoi)) replied: I meet regularly, formally and informally, with officials and various stakeholders. A range of issues are discussed. If the Member would like to be more specific I will endeavour to answer the question.

(to 8448) Hon Kris Faafoi (Immigration (Associate Minister - Kris Faafoi)) replied: I meet regularly, formally and informally, with officials and various stakeholders. A range of issues are discussed. If the Member would like to be more specific I will endeavour to answer the question.

Well, they say a week is a long time in politics, so maybe this too is too long, even when the week is short because for most of it, you weren’t yet a Minister). So, at the express request of the Ministers, National MPs have been limiting their requests further:

Chris Bishop asked about a single day:

8393 (2017). Chris Bishop to the Police (Minister - Stuart Nash) (16 Nov 2017): Did the Minister have any meetings in his capacity as Minister of Police on October 27, if so, what people and organisations did he meet with on that day, where were the meetings held and what were the main items of business?

The reply:

Hon Stuart Nash (Police (Minister - Stuart Nash)) replied: I meet regularly, formally and informally, with officials and various stakeholders. A range of issues are discussed. If the Member would like to be more specific I will endeavour to answer the question.

 Bishop too, was asked by the Minister to be more specific, Ministers are refusing to say what they did even on a single day. Bishop has followed up, with a few more questions:

11778 (2017). Chris Bishop to the Minister of Police (22 Nov 2017): Did the Minister have any meetings in his capacity as Minister of Police on October 27 between 8 and 9am, if so, what people and organisations did he meet with at that time; where were the meetings held and what were the main items of business?

11779 (2017). Chris Bishop to the Minister of Police (22 Nov 2017): Did the Minister have any meetings in his capacity as Minister of Police on October 27 between 9 and 10am, if so, what people and organisations did he meet with at that time; where were the meetings held and what were the main items of business?

The replies are due by Thursday. Hopefully Bishop, and the other MPs (all of whom seem to have been specifically invited by Ministers to ask more granular question) will have the answers to which they are entitled.

So far, Bishop’s hour-by-hour requests only cover the first two days the Minister of Police was in office, although the essentially rejected day-by-day requests covered several weeks. The Minister should consider himself lucky. Far from being aghast that National MPs have asked “a whopping 6254 written questions”, I am instead surprised by their forbearance. They are being denied information they ought to have. By rights, they should have asked more.


A wonderful piece of journalism I’ve come back to several times is this article by David Simon, now reprinted on his website. He describes:

...police commanders who felt it was their duty to demonstrate that crime never occurred in their precincts, desk sergeants who believed that they had a right to arrest and detain citizens without reporting it and, of course, homicide detectives and patrolmen who, when it suited them, argued convincingly that to provide the basic details of any incident might lead to the escape of some heinous felon. Everyone had very good reasons for why nearly every fact about a crime should go unreported.

In response to such flummery, I had in my wallet, next to my Baltimore Sun press pass, a business card for Chief Judge Robert F. Sweeney of the Maryland District Court, with his home phone number on the back. When confronted with a desk sergeant or police spokesman convinced that the public had no right to know who had shot whom in the 1400 block of North Bentalou Street, I would dial the judge.

And then I would stand, secretly delighted, as yet another police officer learned not only the fundamentals of Maryland’s public information law, but the fact that as custodian of public records, he needed to kick out the face sheet of any incident report and open his arrest log to immediate inspection. There are civil penalties for refusing to do so, the judge would assure him. And as chief judge of the District Court, he would declare, I may well invoke said penalties if you go further down this path.

Delays of even 24 hours? Nope, not acceptable. Requiring written notification from the newspaper? No, the judge would explain. Even ordinary citizens have a right to those reports. And woe to any fool who tried to suggest to His Honor that he would need a 30-day state Public Information Act request for something as basic as a face sheet or an arrest log.

“What do you need the thirty days for?” the judge once asked a police spokesman on speakerphone.

“We may need to redact sensitive information,” the spokesman offered.

“You can’t redact anything. Do you hear me? Everything in an initial incident report is public. If the report has been filed by the officer, then give it to the reporter tonight or face contempt charges tomorrow.”

The late Judge Sweeney, who’d been named to his post in the early 1970s, when newspapers were challenging the Nixonian model of imperial governance, kept this up until 1996, when he retired. I have few heroes left, but he still qualifies.

I don’t know a lot about freedom of information law in Maryland. I suspect it is imperfect, but the idea that there are distinct public records laws which make a range of information automatically obtainable is eye-opening. I thought we had (in theory, if not always practice) a pretty good freedom of information law, and while there’s information in New Zealand that we have a right of access to: the names and home addresses of directors of companies via the Companies Register, for example, the idea that that category can include to arrest logs and the facing sheets of reports of police shootings is kind of mind-blowing.

Basic ministerial diaries should be in the same category. MPs shouldn’t even have to ask for this material. It should be released automatically each week.

Ministers have only themselves to blame that National MPs have had to ask questions about what they’ve been doing each week, each day and each hour. It’s because they haven’t told them (and us) already.

Information about who a Minister has met, or what reports they have received are matters of public interest. While the explicit content  of some meetings, or some briefings  may be properly withheld, the existence of the meetings themselves will not, just like the existence of arrests and shootings in Baltimore.

Clare Curran has recently been appointed Minister for Open Government. She should take the opportunity to propose to Cabinet the automatic release of ministerial schedules.


The law of armed conflict recognises the concept of a “reprisal”. It allows, in certain circumstances, one party to a conflict to deliberately commit what might otherwise be a breach of the laws and customs of war, in response to breaches by another belligerent. For example, if your enemy commits the war crime of deliberately misusing vehicles carrying the Red Cross or Red Crescent emblem as cover for an attack, it may be permissible for you, in the right circumstances, the undertake what would otherwise be the war crime of attacking vehicles protected by a Red Cross or Red Crescent.

There are limits. You cannot carry out reprisals on civilians, or on prisoners of war, and caution is required, lest the reprisal cause further breaches of the laws and customs of war.

So too it is with Parliament. The rules allow a lot of things that custom and practice dictate should not be done in ordinary circumstances. An MP will sometimes take a point of order they know they will lose, but one of these customs is that members should not take wholly frivolous points of order.

On a Members' day on 6 April 2005, the Government deliberately refused to send a Minister to House when it resumed after the dinner break, causing the House to be inquorate (Standing Orders require a minister to be present), causing the loss of 2.5 hours of members time, preventing the opposition from using the one day it has every two sitting weeks to advance its business and not government business. They had their reasons (leader of the House Michael Cullen was annoyed opposition members had denied leave to extend the sitting during the dinner break and then rise early to allow all government members could attend a State Dinner for the President of Indonesia), but he still shouldn’t have done it. The following day, the opposition took about 3o minutes before question time on points of order litigating the issue, and then after question time, opposition MPs took turns seeking leave to table individual standing orders until the Government relented and allowed the debate on the first reading of the Green Party’s Employment Relations (Flexible Working Hours) Amendment Bill to be finished, before going to Government business. Opposition MPs should not make frivolous points of order, but the Government shouldn’t deliberately collapse the House on a members day, so the reprisal was proportionate and comity resumed.

The same is true here. While there is no limit on the number of written questions that the opposition can ask, the opposition should not ask 6254 written questions in a month. But the reason this is so is that they shouldn’t have to.

The asking of a large number of very specific questions is an entirely proportional response to the refusal of Ministers to seriously answer reasonable questions. Hopefully this reprisal again has its intended effect, and Ministers should realise that they were wrong to have refused to seriously answer the more general questions National MPs had asked.

During the election campaign, bloggers, tweeters, economists and journalists rightly called out Steven Joyce’s false claims of there being an $11.7b hole in Labour’s fiscal plan. There was a right and a wrong, and no serious debate about which was which.

On that occasion, National was wrong. On this occasion, National is right. There is no justification for the Government’s refusal to seriously respond to National MP’s questions about what they are doing in office, and every justification for National’s response. This is especially so when it is over material that should simply be made public in the general course. National should get its answers, and the public should get to see what the Government is doing. If ministers aren’t prepared for that sort of openness, they shouldn’t be ministers. Over to you, Clare Curran.