Legal Beagle by Graeme Edgeler

12

Election '20: The No Threshold Hypothetical

The final count of the 2020 general election has been released, with five parties making it into Parliament.

If New Zealand had no threshold, and parties just had to get enough votes to be entitled to be in the first 120 seats given out, there would be 10 parties represented. Of course, without a threshold, voting patterns would have been different, but below, I present the hypothetical New Zealand House of Representives, if the 2020 general election got the result it did, without an artifical threshold:

New Zealand Labour Party

60

The New Zealand National Party

31

The Green Party of Aotearoa/New Zealand

10

ACT New Zealand

9

New Zealand First Party

3

The Opportunities Party (TOP)

2

New Conservative

2

Māori Party

1

The Advance New Zealand Party

1

Aotearoa Legalise Cannabis Party

1

This would be a decidely different Parliament, and even Government, with Labour's bare majority of the vote not quite enough to govern alone.

If, instead of no threshold, you had to earn at least 1/120 of the vote to get your first seat (i.e. no rounding up for the first seat), Legalise Cannabis's seat would have gone to Labour.

8

Election '20: The Special Votes

The 2020 General Election has a preliminary result. For reasons I am unable to really explain, we will not have even a preliminary result for the end of life choice and cannabis legalisation referendums for some weeks (I dropped the ball on that one when the referendum legislation was before select committee, focusing on other concerns with the bill).

The preliminary result is mostly meaningless from a legal standpoint, but we want to know what happened before we go to bed on election night, so we get a rough and ready count of the ordinary votes: those cast by people whose name appears on the printed electoral roll who voted at a voting place designated for their electorate (including during advance voting).

The official count is still to happen. They’re more careful with that, and there's a lot of cross-checking - starting with a check to make sure that no-one voted more than once. The official count also includes the counting of special votes. Special votes are:

  • votes cast overseas;
  • votes cast by the telephone dictation servce, including this year, by people in managed isolation;
  • votes cast on polling day (or in advance) by people voting at a voting place not desginated to serve their electorate;
  • votes cast by people who enrolled after the printed electoral roll was closed (including during advance voting or on election day itself);
  • takeaway votes;
  • votes cast by people on the unpublished electoral roll; and
  • votes cast by people who are not on the electoral roll, who thought they were enrolled.

There are some differences this year - and managed isolation is only one. The biggest change is that people can be enrolled on election day. Last election around 20,000 special votes were cast on election day by people who were not enrolled to vote. In 2017, those votes were not counted - you could enrol during advance voting, but not on election day itself. That has changed: in 2020 you could do this on election day itself.

This election there are a lot of special votes. The most ever. The Electoral Commission estimate is that there are 480,000 special votes, which is around 17% of the total. The estimate is always wrong. The Commission know approximately how many special votes were cast in New Zealand. Postal votes don't have to have arrived yet, and add to the total. The Electoral Commission's election night estimate of special votes in 2017 was that there would be 384,072. In the end there were 446,287 (of which 417,980 were counted).

We do not know what electorates special votes are intended for - the Electoral Commission know where they were cast, but over the coming days, local returning officers will be sending the votes to the returning officers of other electorates, where they will be checked, and if valid, opened and added to the official count.

Historically, the voting patterns of those who cast special votes differ from those who cast ordinary votes. Special votes in recent elections have tended to favour left-aligned parties. It is probably fair to assume that this general direction of special votes this will continue at this election. But with so many more special votes, and new reasons why some were cast, whether it is fair to assume that the size of the effect will be similar is less clear.

That said, we don’t have anything better to go one, so using the same rudimentary method I use each election (assuming the variance in special votes is the same size as it was at the preceeding election), along with the Electoral Commission’s estimate of the number of special votes at this election, I estimate the following final result:

 

Preliminary

Estimate

 

Vote share

Seats

Vote share

Seats

Labour

49.10%

64

49.94%

65

National

26.81%

35

25.60%

34

ACT

7.98%

10

7.87%

10

Green Party

7.57%

10

7.99%

10

New Zealand First

2.66%

0

2.53%

0

New Conservative

1.51%

0

1.47%

0

TOP

1.42%

0

1.54%

0

The Māori Party

1.01

1

1.08

1

In 2017, National did 20.7% worse in the special votes than they did in the ordinary vote. While Labour did 19.5% better and the Greens did 44.2% better. The Māori Party did 57% better.

Even with the largest ever special vote, there isn't a lot of change in the estimate: National is down one, and Labour is up one. Labour is close to a second, however. If there were 500,000 special votes, and not 480,000, the estimate would predict a Labour gain of two and a National loss of two. And if there were 525,000 special votes, the estimate would change so that National would be down two, but they'd go one each to Labour and the Greens. An extra seat for the Māori Party is exceedingly unlikely.

Of course, as the number of specials votes has increased, this will mean the make-up of the special vote cohort has changed, and as the reasons people are casting special votes have changed, there is an extra note of caution, and there is election day enrolment as well.

We don't have terribly long to wait for the official count, but that is now mostly of interest to the MPs who are on the cusp, as the shape of the new Parliament is known: Labour has a mjaority on its own. More interesting for the rest of us will be the results of the two referendums.

Update:

Some more explanation of how close parties are, and whether some electorates might change

I've answered some additional questions on twitter, which provide some further context for my conclusion above. I am happy with my conclusion above. It worked last time, and I am not remotely enough of a Nate Silver to advance a serious model, this is rough and ready, just slightly better than people's reckons (which to be fair, reach approximately the same conclusion). I should also note that two election ago, I underestimated the special vote swing against National.

Assumption: Party Special Vote Swing - the Green Party

These are some other ways of looking at the numbers: in 2017, the Green Party did 44% better on special votes than ordinary votes. If the number of special votes is as estimated by the Electoral Commission, this would not be enough for them to take a seat off National. But in 2014, the Greens did 53% better on the Special votes. If that's what happened this year, it would be enough.

Assumption: Number of Special Votes

The Electoral Commission has estimated that there are 480,000 special votes. I have used this number in my calculation. On election night 2017, the Commission estimated there were 384,072 specialvotes, but in the end there were 446,287, of which 417,980 had valid party votes. I do not know how many more there will be this election, but if there were 500,000, and the swing was the same as last time, National would lose two seats. If there were 525,000, and the swing was the same, one of those seats would be to the Greens.

Assumption: Party Special Votes Swing - The Māori Party

The Māori Party tends to do best out of the Parliamentary parties in the special votes. In 2017, the Māori did ~57% better on special votes than ordinary votes. They would need to substantially better than that to get an extra seat this time. If there are 480,000 special votes, they'd need to do 99.5% better on special votes. This isn't impossible (legalise cannabis came close by doing ~97% better on special votes over ordinary votes in 2017). And if there were 520,000 special votes, ~93% better would be enough.

Estimate of Effect of Special Votes on Whangārei

Whangārei was the closest result on election night, with National MP Shane Reti ahead of Labour's Emily Henderson by 164 votes. 

Shane Reti won 47.3% of the ordinary votes in Whangārei in 2017. His Labour opponent, in third on election night had 18.6%. Reti got 38.2% of the special vote, and his Labour opponent 24.2%, enough to move ahead of Shane Jones into second place. I am not making as estimate, but with over 4300 special votes cast in Whangārei at the last election, there is cause for Reti to be worried, and the seat could definitely swith to Labour's Emily Henderson.

Estimate of Special Votes on Waiariki candidate votes

Waiariki was won on the preliminary count by the Māori Party's Rawiri Waititi, with a lead of 426 votes over Labour's Tamati Coffee. It is the only seat that the the Māori Party has won this election. In 2017 Coffee won 53.6% of ordinary votes, and did slightly better on special votes with 54.3%. The Māori Party candidate, Te Ururoa Flavell was the inverse (there were only two candidates in 2017), doing slightly worse on special votes. 426 is fair margin however, and a switch would be a suprise.

Estimate of Special Votes on Auckland Central candidate votes

Auckland Central was won on the preliminary count by the Green Party's Chlöe  Swarbrick, with a lead of 492 votes. In 2017, Labour's Helen White won 39.8% of the ordinary votes, and 40% of the special votes. The Green Party's candidate at that election, Denise Roche, won 8.8% of the ordinary vote, and 12.4% of the Special vote. If anything, the gap will increase here, and Swarbrick seems safe.

0

Low-Hanging Fruit

In a couple of months, the 53rd Parliament will meet in Wellington, and approximately 120 MPs will be sworn in, many of them for the first time.

They will all have political goals, some aligning with their party platforms, some not, some complex, and some simple, but they will gain one thing that every non-MP, not matter how political or motivated, does not have – the ability to legislate.

The process of turning a political idea into draft legislation can be complex. For some policy proposals, it’s something that an individual MP cannot seriously do, without the assistance of a government department, or a pre-existing Law Commission Report the government is being slow in adopting. Others will be doable, but will take years of work. Ministers have a head start, but even the newest MP has the privilege has at least the chance to put a bill in the members’ ballot. And that privilege is something all eligible MPs should do, at every opportunity. If they are not trying to change New Zealand’s laws for the better, why did they choose to become legislators, instead of say, activists, or farmers? Even if they are working on a bigger project – one that will take months or years, there simply has to be some small way that they, as an MP, could make New Zealand law less capricious. At the very least, it will mean I am unlikely to note on twitter, in response to a claim there is some problem with the law, that they don't have a bill in the members' ballot!

One MP who recognises the enormous privilege that being an MP brings is National MP Chris Bishop, who has been a prodigious drafter of simple bills that have been entered into the ballot in his name, and in the names of various of his colleagues who have adopted them (MPs can have at most one bill in their own name in the ballot). He’s had substantial success in getting bills passed, including one I suggested, and has several others that seem very worthy in his name or others'. A recent-ish addition is a bill to amend the lawyers and conveyancers act to permit employed lawyers (eg those who work in companies, not law firms) to provide pro bono legal services for people other than their employer: not a massive change, but an obviously good one.

11 and a bit years ago, blogger Idiot/Savant from No Right Turn started the progressive bills project, a wiki designed to allow, I guess progressives, to draft legislation that could be picked up by MPs (at the time, the biscuit tin of democracy seemed to be significantly less well-used than it has become in the years since). I/S was covering member’s bills, and the members’ ballot, when others often weren’t, and wanted to provide an opportunity for people to make it easy for MPs to advance law changes they want, to suggest simple law changes – of the type you can advance as a back bench MP – so that MPs looking for ideas could just take them up. The project has seen a number of bills taken up by MPs, some unlucky at the ballot, and some even passed into law (some of that may be coincidence, but I understand at least some potential legislation has come directly from the project).

Over the last few years, the site has mostly been me, occasionally having an idea, and getting motivated enough to spend an hour or two drafting short bills. A lot of these ideas have come from Twitter conversations I’ve been involved in – sometimes people complaining about egregious happenings overseas, where I’ve had the sad duty of letting them know “yeah, that’s the law in New Zealand too”.

I get that MPs – new MPs especially – will have lots of calls on their time and their focus, but the first members’ ballot could be on them quickly, and while they are working on whatever grand plan they bring with them, there are simple changes they could advance in the interim. There will be some draft bills lying around Parliament: those advanced by retiring MPs who had bills that never got drawn, but more will be needed, and in the spirit of Milton Friedman, I offer the following ideas, mostly from me, some from I/S.

The Crimes (Wage Theft) Amendment Bill.

This would amend the offence of theft by person in a special relationship to make clear that it can be used to prosecute the intentional withholding of monetary entitlements owed to an employee, in the same way that an employee can be prosecuted for stealing from an employer.

It is, like a lot of the legislation I have drafted, the low hanging fruit. There is a lot that could be done in the wage theft area, including beefing up enforcement within the Labour Inspectorate, but that is harder, and probably involved spending money, which makes a member’s bill a more difficult prospect. But knowing that the perfect should not be the enemy of the good, something can be done that is simple – adding a few words to a pre-existing criminal offence to confirm it applies to wage theft.

The Maori Community Development (Unruly Behaviour Repeal) Bill

I’ve written about this before. It would repeal a set of criminal offences that can only be committed by people who are Māori. It’s another simple bill – the Maori Community Development Act could probably use a general update, but criminal offences, one of the elements of which is that the person is Māori simply should not exist.

The Criminal Procedure (Interim Suppression Pending Appeal) Amendment Bill

I’ve written about this one too. In December 2018, there was a high-profile case where a person charged with offending was refused name suppression. They informed the judge in the District Court that they intended to appeal, so that judge was required to impose an interim suppression during the appeal period. You have 20 working days to appeal such a decision, and with Christmas getting in the way, this prevented journalists publishing the name until well into the new year, even though a judge had decided they should be able to. It is somewhat ridiculous, but had the judge in the District Court granted suppression, media would have been better off: they could simply have appealed the following day, and probably had the appeal heard before the holidays. I propose reducing the normal 20 day appeal period to 5 working days.

The Crimes (Exploitative Sexual Conduct with Person in Detention) Amendment Bill

This bill would create a criminal offence of exploitative sexual connection with people in detention. A lot of people assume that there is necessarily a crime involved when, say, a police officer has sex with a person whom they have placed under arrest. While there’s certainly a serious employment issue, any prosecution would have to be under a standard criminal law, such as rape, and arguments about consent would arise (with no presumption that consent is impossible, and the prosecution required to prove the absence of consent, beyond a reasonable doubt, just as in other rape trials). Sex between a detainer, and someone detained seems inherently exploitative, so having a specific law, where consent doesn’t enter into it, seems justifiable.

There are lots of other good ideas (and probably some bad ones, or at least out of date ones), including many that don’t fit within the basic idea of small changes with a good prospect of passing, but for some brave MP, the project also has a bill to drop the voting age to 14, and this bill to abolish the offence of bigamy.

There are others I've been meaning to work on (I started drafting one to port over the secrecy provisions that apply to the IRD to MSD, but it was more complex than anticipated), and have a mind to try one around criminal records arising out of convictions at Courts Martial, but anticipate some complexity there too (clearly not all convictions in the military justice system should port over the MOJ system, given that you can get a conviction in circumstances where employment law, not criminal law would apply to a civilian), but some seem like they should.

Anyway, if you are an MP, hope to be one soon, or know a candidate or MP who doesn't yet have a policy proposal ready to go in the ballot, I am more than happy for any of the idea above to be adopted by anyone. As a backbench MP, it will be difficult to change the world, but you certainly have the power to change one small part of it, and it's a privilege you should take seriously.

6

Compensation for pre-acquittal remand; or, The Blog Post Ten Years in the Making

i. David Bain

Ultimately, David Bain was acquitted. To be able to lawfully punish him the Crown had an onus to prove, at a fair trial, that the jury could be sure he was guilty. This, the Crown never did. Bain had spent a little under 13 years in prison, as a result of his flawed conviction, and upon being acquitted, he sought compensation for the time he spent in prison.

Because he was acquitted at a re-trial, and not at the appeal that got him the retrial, his road to compensation for the time spent in prison was a little harder. The Cabinet guidelines that have been set required extraordinary circumstances, in addition to Bain establishing his innocence.

This led to a report from Ian Binnie, a retired Canadian Supreme Court Judge, and a dismissive response from the then Minister of Justice, but my view on compensation didn’t turn on any of the legal complexity. I know what the guidelines say (and they’re largely in-line with other countries), I just simply disagree with them. Bain spent thirteen years in prison, and the Crown never actually proved in Court, what it needed to prove in Court to get the convictions that would see him sentenced to prison. For me, that should be enough.

It isn't for the Government. It isn't for most similar governments. 

I am mostly happy to proceed on the basis that a person is innocent until proved guilty. I am certain that the Government should proceed on that basis. A man whom the Government could not prove guilty – and whom the government should therefore recognise as innocent – spent nearly thirteen years in prison, when he should not have: compensation should follow. (Ultimately, the Government paid Bain a shade under $1m, not as compensation, and significantly less than he would have received in compensation, but enough to ensure his legal action went away)

ii. The rise in pre-trial remand

Remand prisoners (those who have been charged, but not convicted, and also those convicted, but not sentenced) make up a large, albeit apparently falling, proportion of New Zealand’s prison population. In the early-mid 2010s, there was a sharp increase in the remand population, more than doubling over only a few years.

This increase is usually, but misleadingly, attributed to National’s 2013 Bail Amendment Act. The law itself cannot be the direct cause – it made no material change to the onus or test for bail for the vast majority of people who appear before the Courts - but I do not think the timing is mere coincidence. There was a narrow change in the law, but Police, prosecutors and judges got the sense that Parliament (and perhaps the public too) wanted bail to be harder to get, and acted accordingly. The rest was history. It’s New Zealand’s version of Clinton Crime Bill – blamed for the vast increase in the size of the imprisoned population in the US, but clearly not to blame (it only increase penalties in the federal system, but the majority of the increase in incarceration rates that followed it was in state prisons).

For the most part, the increase in remand prisoners is not the cause of the increase in the prison population. Someone who is convicted and sentenced to four year imprisonment for burglary, and who serves two years before being paroled is just one prisoner, serving two years in prison, whether that imprisonment is one year as a sentenced prisoner and one year as a remand prisoner, or two years as a sentenced prisoner. It matter for them (remand prisons are worse), but the numbers are mostly the same.

Of course, this isn’t true for one small, but very important group of remand prisoners: those who are acquitted, and those who are convicted, but who do not receive prison sentences.

iii. Interim injunctions in civil proceedings

As a general rule in civil proceedings, if you sue someone for something, you go to trial, and if you win, you may be able to enforce a judgment. If the claim was for money, it’s enforceable against assets if necessary, if the claim was for some sort of court order, breach of it can be punishable by contempt of court, and potentially imprisonment.

But there are times when this isn’t enough. If someone is using one of your trademarks, then an 18-month wait until a full trial of your application for an order that they stop using your trademark may be too long to wait. Your business may have folded, or employees had to have been let go, and the person whom you claim has caused you loss may not be in a position to fix things if ordered to pay financial damages.

So sometimes, you can obtain an interim orders. In my trademark hypothetical, you could apply for court order stopping use of your trademark before you even get to trial. Because the other side won’t get a full opportunity to defend itself, the legal test for getting interim orders is more involved than you would need at the trial itself, but if you can make the case, you can get one.

But getting interim orders comes at a risk: you might not succeed at trial. And if that happens, you are liable for the damage caused by the interim order: at your request, and for your benefit, there was a court order stopping from doing what it turns out they were entitled to do. And they might have been put to great expense because of it. So one of the things you have to do when applying for interim orders is to provide an undertaking as to damages: a promise that, if you fail to obtain final orders, you’re good for the financial consequences. And this even applies when it is the Government seeking interim orders.

iv. Privatising the losses

The criminal justice system exists to pursue societal goals – society at large is supposed to benefit when people who seriously breach society’s standards are held to account – which is why the Crown prosecutes, and not individual victims.

But when the Crown fails to establish guilt, it isn’t society that bears the cost, even when the Crown has opposed bail.

The government has come to the Court: it has told a judge, we are confident that we have the evidence needed to convict this person of a serious offence, and are confident that upon conviction, we can show that a prison sentence at least as long as the time spent in remand will result. And we think it is really important, for the benefit of society, that this person be detained now, before we have actually proved beyond reasonable doubt that they are guilty.

Being prosecuted is a massive imposition. Being denied bail for any length of time is orders of magnitude worse. You will likely lose your job, if you have one. If you didn’t, you immediately lose any welfare benefit, which may mean you lose your home, which may break up your family. Even a short remand in prison can have devastating personal and financial consequences.

And if the Crown got it wrong, if it prosecuted you in circumstances where actually, it shouldn’t have been so sure it had the evidence necessary to convict, it doesn’t have to make it right. If it sued you, and got interim orders, it would, but because the claim was a prosecution, and the interim imposition was imprisonment, the Crown washes its hands.

I’ve long thought this distinction was unjustifiable. Interim orders detaining someone in prison pending a criminal trial aren’t so different from interim orders stopping a tort, or another civil breach, that society should bear the costs of the failed civil claim, but not the costs of the failed criminal one.

v. Compensation for pre-acquittal remand

I have been meaning to write this blog post for maybe a decade. And if you’ve read this far, you’ve probably guessed my proposal. Not only do I think compensation should be awarded to all those who have their convictions overturned – itself a relatively radical proposal – I also think that when the Government prosecutes you, and fails, then it ought to bear the financial cost of putting right any restrictions it imposed in the interim. Society claims the benefit of the criminal justice system, it shouldn’t privatise the unjust losses.

Why has it taken me so long to write this up? Well, it seemed so unlikely, and so likely to be so unpopular, that it always seemed a long way off. But I now wonder whether that is the case.

In a piece on Kiwiblog, opposing any loosening of bail laws, Jess McVicar of the Sensible Sentencing Trust argues:

Assertions of widescale injustice are also exaggerated. Time spent on remand is credited against any eventual term of imprisonment, meaning the impact on most defendants is neutral. The only real injustices are with those who are acquitted (around 9% of cases) or who or receive a sentence that would not have seen them imprisoned for that length of time. We would be better off providing compensation to this small minority than trashing our current bail laws.

Sensible Sentencing and I will disagree on a lot, especially in relation to things that happen before conviction, but the two sentences ending the quote above give me hope for common ground. It is time for the Crown to compensate all those whom it wrongly imprisons, including the acquitted who spend time in prison on remand.