Legal Beagle by Graeme Edgeler

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The Entrenchment Angle We All Missed

I have a basically finished 800-word article on the entrenchment issue that is now unneeded. Dean Knight’s tweets, my tweets, and the open letter of the group of legal academics published by the New Zealand Herald say almost all that needs to be said on the manner in which the House – hopefully briefly – attempted to entrench parts of the Water Services Entities Bill: in short, advancing a proposal on Monday, and voting on it on Wednesday, is not the way to go about this, however important the issue is: it undermines the moral force of entrenchment, and risked damage to New Zealand’s constitutional structure.

New Zealand entrenches very few things, only aspects of the electoral system that, if changed in particularly bad ways could mean New Zealand wasn’t really even a democracy anymore, we could probably protect a couple more (eg MMP itself). But this is not holy writ. Most countries entrench, in some sense, much more than New Zealand does: because they have written constitutions.

There is no magic in limiting entrenchment to the very specific things New Zealand has, and the argument over what matters deserve constitutional protection is one that is clearly up for political debate.
You just do not do it this way.

So instead of my post about why this was bad, I instead have this post, spurred on by a thread by Max Harris, and a recent column from Gordon Campbell, tweets about which helped me realise what we all missed.

Gordan and Max think public ownership of water infrastructure is really important, so important that protecting that ownership against transient future governments’ whims justifies a measure of constitutional protection. Others may disagree – I may disagree – but there is a solution that manages this, without the need for parliamentary trickery.

You can even get the same 75% protection that the Parliamentary term has. And this can all be done without undermining the moral weight of entrenchment. Indeed, doing this the right way could enhance the mana of entrenchment. You don’t even need that supermajority in the House of Representatives.

If you are someone who thinks public ownership of water infrastructure is so important that the government should act to entrench it, you do not need to convince National to agree with you. You need to convince the public (that shouldn’t be difficult: public ownership of water infrastructure is very popular!). Because there are two ways to entrench a law in New Zealand, and both have been used: the entrenched parts of the Electoral Act 1956 were entrenched by Parliament a supermajority of MPs (in fact, all of them) voted for it. But the Electoral Act 1993 isn't law because Parliament voted for it, it's law because the public voted for it: the entrenched bits of that are actually entrenched because there was a binding referendum.

If you are a Gordon or a Max, or a Eugenie, that’s your solution. Don’t settle for 60% protection. Go into the next election with the policy: if we cannot get 75% support in the House of Representatives to protect the continued public ownership of water infrastructure, we will hold a binding referendum on it, requiring a future Parliament to either agree by a 75% majority to sell water assets, or to come back to the public in a further binding referendum.

If you think the public ownership of water assets is crucial, you can seek to protect it without the need for Parliamentary manœuvres, while also protecting the moral weight of entrenchment. But you have to mean it, and you have to want it more than you want some rhetorical cudgel to swing against the opposition. Come back next week and fix this mess, but come back to voters next year and show you mean what you say.

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Draft submission on the Māori Electoral Option bill

I have prepared the following (draft) submission on the Electoral (Māori Electoral Option) Legislation Bill, which you all have until Saturday to submit on. Happy to consider comments, or to fix typos: have I used the word whakapapa incorrectly, etc? Please let me know :-)

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The Justice Committee

Electoral (Māori Electoral Option) Legislation Bill

Submission of Graeme Edgeler

1. Thank you for the opportunity to comment on the Electoral (Māori Electoral Option) Legislation Bill.

2. I recognise that the policy questions raised by the bill can be fraught, and that there are theoretical arguments around election fairness that argue against allowing eligible voters to switch between the Māori roll and the General roll at will, but I support the overall principle of this bill, that the option should be more open than the law currently provides.

3. The principle argument I have heard against this policy change will allow for gaming of the Māori seats: the suggestion that people might move to the Māori roll after a census to increase the number of Māori seats and then change back the General roll to vote in a more marginal electorate. I do not think this is a particularly realistic possibility, simply for the reason the vast majority of voters do not think like that, and not least because voters who care enough to go on the Māori roll to increase the number of Māori electorates are almost certainly already on the Māori roll.

4. While the Government appears to have recognised that this at least a partial concern, with the inclusion of new section 78A dealing with by-elections, I do not consider that the issue is one that should be a complete block to removing the current ban on roll-switching. However, if there is some concern that this is an issue – particularly as the bill amends reserved sections of the Electoral Act – I offer some additional safeguards and alternatives which the Committee could consider that would still meet the aim of the bill in allowing more freedom to change between the Māori roll and General roll.

Why a Policy Change is Welcome

5.  I have not always supported a change to allow voters to switch between the Māori roll and the General roll, as I have a general aversion to rules which might allow for gerrymandering. As noted above, I now consider this a relatively minor concern in this case/

6. The choice to be on the Māori roll or on the General roll is an expression of individual identity. It may be one that can change over time, but it is not that will change frequently for any one person. How that identity is expressed will differ between individuals, but that identity may manifest itself in different ways even when an individual’s beliefs do not change.

7. For example, someone of Ngā Puhi ancestry might have chosen to go on the Māori roll because being on that roll enables them to have a say in who represents the Ngā Puhi rohe in Parliament, through voting in Te Tai Tokerau.

8. But if they moved to Hamilton to live and work, they may consider it wrong that they would be voting to determine who would represent Māori who whakapapa to Waikato-Tainui and Ngāti Raukawa and the other Iwi who have rohe within the boundaries of the Hauraki-Waikato electorate.

9. Forcing this person, who chose to go on the Māori roll as an exercise honouring their whakapapa to later vote in in a way which may undermine their mana is wrong, and the law should not require it.

Other Ways of Achieving this Policy Goal

10. I welcome change to abandon the status quo, but recognising that the Committee and the House will likely be considering alternative measures to achieve this policy which can attract broader support, I offer the following as options which will advance the policy underpinning this law, while also lessening the risks some have identified with allowing completely free change.

Roll Changes not Permitted After the Roll Closing Date

11. One of the practical issues that will arise with the bill as drafted is that, by permitting roll changes up to the election, and even on election day, some voters may be at least somewhat enrolled in two electorates: these are voters whose name will be on a printed electoral roll, and who will be sent an Easy Vote card for an electorate they are not going to vote in.

12. I understand that one of the aims of this bill is to place the Māori roll on an even playing field with the general roll. The bill as currently written goes beyond this. People who may only enrol on the general roll cannot change their electorate whenever they wish, but instead only change the electorate they are in when they move (or once the boundaries are re-drawn). Moreover, they must live in their new electorate for a month before their new enrolment takes effect.

13. If a voter is on the roll for Wellington Central, and moves to Christchurch Central after the rolls are printed, they vote in their old electorate for that election. The same could apply to those who change roll type after the roll closing date: when a person changes roll after the roll closing date, that decision – like an updated enrolment – does not take effect until a month later, after the election.

14. New enrolments, of people not then enrolled to vote, could of course choose which roll to enrol on as they can now.

Allow Changing of Rolls when Re-enrolling after Moving

15. Another way in which the bill as drafted does not treat those who may enrol on either the Māori roll or the General roll equally with those who may only enrol on the general roll is that it permits a person to change roll without moving. When a person on the general roll moves, they may change electorate.

16. One alternative, which would treat the Māori roll and the general the same would be to only permit a change in roll type when a person moves and has to change their enrolment. This would address issues like the one I raised above about a person on the Māori roll not wanting to vote in electorate to which they do not whakapapa.

Change once per term

17. Alternatively, as recommended by the Electoral Commission following the 2011 and 2014 election, voters could be permitted to change roll type once per term, which would address the concern some have about possible gerrymandering.

Conclusion

18. I would not object to the bill as introduced passing in that form, although I can see some benefit to adopting the roll-closing date as a date after which roll changes are closed.

19. In the aim of reaching agreement, I invite the Committee to consider alternatives, such as those I outline above.

20. I look forward to speaking the committee in person if that can be arranged.

Graeme Edgeler

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The local bill to remove equal suffrage

There are four types of bills that Parliament considers: most bills are government bills, but there are also members bills, private bills and local bills. Members bills are relatively well know (some important ones have passed over the last few years), but these latter three types are often grouped together. On the days that the House considers members bills (every second Wednesday that it meets), it considers local bills and private bills first.

Private bills are law changes advanced to change the law for the benefit of a particular person or body. Recent private bills that have become Private Acts have included the Paige Harris Birth Registration Act 2022, which provides that Paige Harris's birth certificate can include her mother's name (Paige was born through surrogacy, a process which would have ended by Paige's mother adopting her, which was not possible as she tragically died before Paige's birth).

Local Bills are bills advanced by local or regional councils to allow them to do things general laws would not normally allow them to do. Because they have the democratic backing of an elected council, it is usual practice for such bills to go to select committee, even where there might be concerns about the bill (there are often good reasons Parliament might prohibit local councils from doing something!). Like presenting petitions to the House, being the MP responsible for a local MP does not even necessarily mean you support it, it's just something MPs will ocassionally be asked to do by local councils.

Parliament's Māori Affairs Committee is currently considering a local bill proposed by the Rotorua Lakes Council. The Rotorua Lakes Council says it needs the Rotorua District Council (Representation Arrangements) Bill because it wants to adopt a representation arrangement for its local council that provides for three councillors to be elected from a Māori ward.

If that was its aim, then the bill is unnecessary because the Local Government Commission has since approved a representation arrangement which allows exactly that. Instead, the bill is aimed not at ensuring that there are three councillors elected from a Māori ward, but is aimed at ensurery that the general ward elects no more than three councillors, despite representing over 2.5 times as many people.

The Council seems to have asked for some haste with its bill, and only two weeks were allowed for written submissions (including Easter). Abolishing equal suffrage - even just at local council level - should not be something that is this rushed. This is especially so when, because the bill is a local bill, the Attorney-General's report on the bill isn't available at introduction, and the entire time for consideration of the bill has passed without it being made available.

I anticipate the bill will fail the Bill of Rights assessment process, not least because the Council's rationale for the bill (.pdf) is non-sensical. The Bill also goes far further than is necessary to achieve any justifiable aim of advancing representation. In short, the bill is bad, and should not pass. I put in a submission a short while ago, which I have copied below (please ignore the numbering issues, which are not present in the original).

Submissions close at midnight tonight. You can have your own say here.

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The Māori Affairs Committee

Rotorua District Council (Representation Arrangements) Bill

Submission of Graeme Edgeler

Introduction

  1. This Submission is made by Graeme Edgeler. I am a lawyer with a deep interest in electoral law matters, and I welcome the opportunity to comment on the Rotorua District Council (Representation Arrangements) Bill.
  2. I am concerned about the approach the bill takes to both current and future reorganisations of the Rotorua District. The bill would abandon equal suffrage as a core principle at local elections for no major democratic or representational benefit, even accepting it on its own terms.
  3. I am also concerned about the short time that has been made available for submissions on the bill. I had hoped the prepare my submission having the benefit of a section 7 report from the Attorney-General under the New Zealand Bill of Rights Act, but neither it, nor a Ministry of Justice assessment of the Bill is yet public.
  4. The bill represents so important a change to the democratic underpinnings of our local electoral system that it should not be rushed in advance of this year’s local elections. As a bill advanced by a local authority, it is appropriate that it is considered, but the Committee should seek substantial advice before considering recommending its passage, including by inviting to appear before the Committee either the Attorney-General (if there is a section 7 report), or the Ministry of Justice officials who prepared any advice to the Attorney-General (if there is no section 7 report), as well as the Local Government Commission.

Problems with the Bill

  1. There are a range of concerns arising from this bill, which suggest it is at best unnecessary, and at worst, profoundly contrary to established democratic principles.
  1. The discussion within the Council, and the rationale the Council adopted in progressing its bill to this stage show a profound misunderstanding about the policy underlying both the Local Electoral Act and the Local Electoral (Māori Wards and Māori Constituencies) Amendment Act 2021.
  2. Both the original Local Electoral law, and last year’s amendments are premised on creating equity between voters. The Council’s final decision not only runs contrary to this aim, it does so without any benefit for its aims of promoting co-governance.

The Bill is not needed to achieve the aim of Māori Representation on the Rotorua Lakes Council

  1. Last year, Parliament passed the Local Electoral (Māori Wards and Māori Constituencies) Amendment Act 2021, designed to make it easier for Councils to create Māori wards on a similar basis to Māori electorates.
  2. Rotorua Lakes Council wants an electoral system where Māori ward voters can directly elect three of the 10 councillors on the Rotorua Lakes Council. It does not need a law change to achieve this.
  3. The point of this bill is not to provide for a fair system of councillors to be elected from Māori wards, because under both the law as currently provided, and this bill, Māori electors would directly elect three of Rotorua Lakes’ councillors.
  4. Instead, the point of this bill is to limit the number of councillors that general electors (both Māori and non-Māori) can elect, also to three, despite there being more than twice as many general voters.
  1. The rationale that the council gives for this is that it doesn’t want individual voters to be voting for different numbers of councillors. There is nothing necessarily wrong with each voter voting in a ward with the same number of councillors, but it should not be adopted as the main criterion for determining how a council is elected, and should certainly not be placed above equity.
  2. Moreover, this too could be achieved under the current law. A council with nine elected councillors, three elected from a Māori ward, and three elected from two general wards would also achieve this goal, if it thought desirable.
  3. Rather, what the Council has decided is that it is important that the general electors all vote together, and seeks to artificially limit their collective voting strength to directly electing three councillors from a general ward. The existence of the at-large ward, in which all voters would get to participate does not greatly ameliorate this effect.
  4. It is as if Rotorua Lakes Council decided that the voters of Hamilton were really a single community of interest, and so should all vote together in Parliamentary elections rather than as Hamilton East and Hamilton West, but to maintain parity with electors in the rest of the country, still limited them to one MP. Or that the Council decided that because the South Island elects 16 general MPs, and one Māori MP, the North Island should elect the same number.

Local Government Commission Determination

  1. Importantly, two days after the House gave this bill its first reading, the Local Government Commission released its determination on the Rotorua Council’s back-up alternative. It approved an alternative arrangement: a Māori ward electing three councillors, a general ward electing six, and a rural ward electing one, all allowed within the current wording of the Local Electoral Act.
  2. Unless the Council wishes to have that determination changed to provide for two general wards (perhaps Rotorua North and Rotorua South, etc.), this appears to fulfil Parliament’s aim in adopting the Local Electoral (Māori Wards and Māori Constituencies) Amendment Act 2021, in particular, by avoiding creating some votes which are worth more than 2.5 times the votes of others.
  3. The explanatory note for the bill records:

Reasons for local Bill

The Council’s ideal representation arrangement is currently prevented by clause 2 of Schedule 1A of the Local Electoral Act 2001 as it does not satisfy the formula currently specified for calculating the number of Māori ward members of the Council.

  1. The determination of the Local Government Commission shows this to be false: applying the formula as it has results in three Māori ward members: the number of Māori ward members that the Council wishes to have elected is possible under the current law. What is not possible under the current law is artificially limiting the number of general ward councillors.
  2. Over-riding the determination of the Local Government Commission would also void its decision to create a Rural General Ward that recognises that the residents of the Rotorua District who live outside the city of Rotorua are a distinct community of interest whose interests deserve to be represented in decision-making (and which can be accommodated under the current legislation).
  1. Indeed, passage of the law would create an ongoing issue that would prohibit future councils from reconsidering whether the rural areas of the Rotorua District should be separately represented in the future, with changes to this now not being a matter for consideration by the Council and confirmation by the Local Government Commission, but a matter on which Parliament would likely need to legislate should circumstances change.

Permanent Removal of the Local Government Commission from Involvement with Decisions over Representation in the Rotorua District

  1. One consequence of the approach taken in this bill is that it needs to short-circuit the usual protections provided in the Local Electoral Act to enable affected locals to raise concerns about fairness and representation with the Local Government Commission.
  2. Under clause 7 of the Bill, aspects of the usual process for consideration of election arrangements are essentially repealed for the Rotorua District.
  3. Rather than locals affected by a Council representation decision being able to ask the expert Local Government Commission to consider the matter, their only recourse will be to approach the Minister of Local Government to object, and then, if necessary to judicially review the order-in-council which may follow.
  4. The Local Government Commission, like the Representation Commission, was created for a reason, recognising that both local councils and national politicians have direct interests in the forms of representation that are adopted and under which they are elected. Removing consideration of the Rotorua District’s ongoing representation from the Local Government Commission, and giving it to the Minister is contrary the policy of the Local Electoral Act, and to principles of independence in the administration of elections.
  1. Under clause 11 of the bill, the Minister, in concert with the Council would also be empowered to redraw boundaries, without any provision for concerns to be raised at the Local Government Commission, despite those protections applying in other councils.

Consistency with the New Zealand Bill of Rights Act

  1. As noted earlier, this submission is written without the benefit of having seen a section 7 report, or Ministry of Justice vetting of the bill for compliance with the New Zealand Bill of Rights Act.
  2. I anticipate that a section 7 report will be forthcoming, so do not submit at length here, as that report will hopefully mean further submission is unnecessary.[1]
  3. Not all discrimination is unlawful discrimination. Discrimination can be justified by reference to a compelling state interest to advance that mean that the discrimination is justifiable in a free and democratic society.
  4. One example of lawful discrimination would be the existence of Māori wards at local bodies, and of Māori electorates. The provision of such wards is discriminatory in the sense that not everyone is given the same choice, but because they are created on the same basis as general seats, and because they serve a population of the same size (with a margin for rounding), they do not create the type of disadvantage that would be difficult to justify.
  5. That is not the case here. The deliberate down-weighting of general votes creates a grave discrimination that would need a compelling justification. None is advanced. I invite the Committee to seek further advice, including from the Attorney-General or Ministry of Justice as appropriate, and may address this in person if necessary.

Single Transferable Vote

  1. One matter the Committee may wish to comment on in its report is the possibility that Rotorua Lakes Council should consider adopting the Single Transferable Vote system.
  2. It is too late for the Rotorua Lakes District Council to do so in advance of the next local election, but many of the issues it says it wishes to address: fairness between voters, all voters having the same number of votes, etc. are solved by that system, which, within the margin possible for a 10-member council, is a wholly proportional voting system, and could ensure that sizeable minorities would not have their voices overridden.

Conclusion

  1. Given the major issues with this bill, and the solution that arises from the recent Local Government Commission determination of a ward system that provides for fair representation in the Rotorua District, the Committee should recommend that this bill not pass.
  2. Thank you for your consideration of this matter. I look forward to making what I believe will be my first submission to the Committee in person.

                                                                         Graeme Edgeler

[1]     As the right to participate in democracy in section 12 of the New Zealand Bill of Rights Act is limited to parliamentary elections, I anticipate any report will primarily address section 19: freedom from discrimination.

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A submission on the repeal of the three strikes sentencing law

Just sent the following submission in on the law repealing the three strikes sentencing regime.

You have until midnight tonight if you want your say.

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The Justice Committee

Three Strikes Legislation Repeal Bill

Submission of Graeme Edgeler

Introduction

  1. This submission is made by Graeme Edgeler. I am a barrister with an interest in criminal law issues.
  2. I support the Three Strikes Legislation Repeal Bill, and welcome the opportunity to comment on it.

Repeal of Life without Parole

  1. While I support the bill, it is somewhat of a missed opportunity, as it does not repeal all the law changes made by the Sentencing and Parole Reform Act 2010.
  2. A major part of the Sentencing and Parole Reform Act 2010 was the creation of the sentence of life without parole.
  3. The sentence of life without parole creates sentences of no hope, and should not exist in New Zealand. I can accept that many people will never get out of prison after committing particularly heinous acts, but release should be theoretically possible for everyone.
  4. It seems odd to me that Parliament would consider that finite sentences ordered to be served without parole are unjustifiable and the possibility of a court ordering them should be removed, but that indefinite sentences should nonetheless still be able to be ordered to be served without the possibility of parole.
  5. It may be entirely appropriate that a particular person should never be released from prison, but that is a decision that should be made looking at them and their risk at the time by the New Zealand Parole Board, not by the sentencing court at the time of sentencing.
  1. The Select Committee should take this opportunity to recommend to the House that the sentence of life without parole should also be repealed, in the same way that it is to repeal determinate sentences without parole.

Resentencing of People Sentenced Under the Three Strikes Regime

  1. The bill as drafted adds transitional provisions relating to people currently serving sentences as second or third strikes. It provides that “a person is not eligible for release or re-sentencing as a consequence of any provision brought into force under the Three Strikes Legislation Repeal Act 2021”.
  2. The Committee should be clear that this will not prevent people being resentenced if they meet the standard set by the Supreme Court in Fitzgerald[1](a third strike offence), which was applied by the Court of Appeal in Matara[2] (a second strike case) late last year.
  3. However, to obtain this resentencing, people will have to appeal the Court of Appeal. This is an inefficient use of Court resources. Having to have three judges sit, using up time in the Court of Appeal, rather than a single judge in the High Court should not be necessary. Given the decisions of the Supreme Court and the Court of Appeal, this law would appropriately provide for re-sentencings if the tests in those cases are met.
  4. This would not mean that everyone serving a second-strike sentence would succeed – the requirement that the sentence be inconsistent with section 9 of the New Zealand Bill of Rights Act is a high test to meet, but this is an argument that, given the law change, should be able to be made in the High Court, not one that should have to be made before a panel of judges in the Court of Appeal.

Conclusion

  1. I support the Bill but recommend that it should be amended to provide the following:
    1. The repeal of the sentence of life without parole
    2. To provide a process by which those sentenced under the three strikes regime can apply to the High Court to be resentenced where the sentence imposed upon them was inconsistent with section 9 of the New Zealand Bill of Rights Act.
  2. Thank for your consideration of this matter. I look forward to speaking to my submission in person.

 

Graeme Edgeler

[1] Fitzgerald v R [2021] NZSC 131.

[2] Matara v R [2021] NZCA 692.

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A submission on the COVID-19 Public Health Response Amendment Bill (No 2)

I have made a submission on the COVID-19 Public Health Response Amendment Bill (No 2).

In preparing it, I looked at the Hansard for the first reading debate, and got name-dropped as someone likely to make a submission. So, of course I did. I focus on a small bit of the bill, around the change in penalties for breaching COVID orders. In short, the infringement fees are too high, but some of the fines are probably too low.

No need for anyone else to proofread this one, it's already been sent in :-)

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The Health Committee

COVID-19 Public Health Response Amendment Bill (No 2)

Submission of Graeme Edgeler

This submission is made by Graeme Edgeler. I am a Wellington barrister who mostly practices in public and criminal law.

  1. I regret that I have not had the opportunity to consider the whole COVID-19 Public Health Response Amendment Bill (No 2) (“the Bill’) given the time made available for submissions, and other commitments, however I am concerned about one aspect of the bill, being the proposed amendments to the infringement fee regime for breaches of COVID orders.
  2. Clauses 13 and 14 of the Bill of increase the maximum infringement fee and maximum fine for breaches of COVID orders. I submit that the Committee should reconsider the amounts set.
  3. In short, the maximum infringement fee is simply too high, given the purpose of infringement fees. In addition, the new maximum fine able to be imposed on a company will be disproportionately low compared to that applying to individuals.

Criminal Offence or Infringement Offence?

  1. Breaching a COVID order is both a criminal offence, punishable by a fine or imprisonment, and an infringement offence, punishable by the imposition of an infringement fee. This dual approach is common with a range of regulatory offences. More serious breaches of COVID orders 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).
  2. This bill proposes amending both the maximum fine, and the maximum level of the infringement fee, while also allowing that the Government may, by order-in-council impose different infringement fees for different breaches of COVID orders. I will address the changes to the fine and to the infringement fee separately.

The Practical Difference Between Fines and Infringement Fees

  1. It is important that the Committee appreciates the practical differences between fines and infringement fees.
  2. 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 is able to look at the particular offence, and the circumstances of the offender, and impose a penalty in line with this.
  3. This is not how infringement fees work. Unlike a fine, an infringement fee is imposed as a set amount. If an enforcement agency (whether it’s a local authority, such as for a parking infringement, or police, for something like a speeding infringement, or a COVID 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.
  1. 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. But when an enforcement agency 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 (with demerits imposed instead).

The Maximum Fine

  1. The Bill would increase the maximum penalty for those convicted of serious breaches of COVID orders from six months imprisonment, or a fine of $4000, to six months imprisonment or a fine of $12,000. For corporations convicted of breaches, the maximum penalty would rise from a fine of $12,000 to $15,000.
  2. I do not object to the increase in the maximum fine for this offence for individuals. Judges imposing sentence should have the necessary information available to them at sentencing and can impose a punishment commensurate with the offending. It is easy to imagine a serious offence justifying a fine well above the $4000 maximum currently provided.
  3. However, with the new higher fine available for individuals, the proposed increase in the fine for corporations lacks proportionality: simply put, it is now too low. Where a criminal offence provides for maximum penalties of imprisonment for individuals convicted, substantially higher maximum fines are justified for corporations convicted of the same offence to recognise that more serious punishments like prison, home detention, community detention and supervision are unavailable.
  1. Providing for a separate fine for corporations that is only 25% higher than the fine that can be imposed on an individual, who can also be imprisoned suggests that either the fine for individuals is too high, or the fine for corporations is too low.
  2. Generally, where separate penalties are provided for corporations, a multiplier of at least two, and more commonly, four or even higher would be considered proportionate. In light of the offending covered by this offence, if maximum fines of $12,000 are available for individuals, maximum fines of between $25,000 and $50,000 would be appropriate for corporations. Most offenders will, of course, not receive the maximum, but for the most serious offenders a maximum fine for a corporation of between $25,000 and $50,000 is commensurate when an individual faces a fine of $12,000 (and the possibility of imprisonment).

The Proposed Increases in the Infringement Fee are too Great

  1. If the Bill passes in its present form, the infringement fees applying to breaches of COVID orders (which will be imposed for less serious breaches of those rules, as serious breaches should be prosecuted) will be the highest individual infringement fees for any offence in New Zealand, by a substantial margin.
  2. While higher infringement fees can be justified for offending committed as part of a profit-making exercise, I do not consider that infringement fees for individuals at the level proposed by the bill can be justified.
  3. The Committee may well consider that breaches of COVID orders are more serious than breaches of other laws which provide for infringement fees. I agree entirely. But those serious COVID order breaches should not be subject to infringement fees. They should be subject to prosecution.
  1. I can imagine circumstances in which a penalty of $4000 for a breach might be appropriate for an individual, or $12,000 or higher for a corporation, but when a COVID breach is that serious, the penalty should be imposed as a fine, following conviction, not via an infringement fee.
  2. Other than three infringement offences in the Immigration (Carriers' Infringement Offences, Fees, and Forms) Regulations 2012, which provide for individual infringement fees of $2500 (all of which relate to profit-generating activity), no infringement fee for an individual in New Zealand exceeds $2000, and even fees that high are relatively rare.
  3. In general, I do not consider that infringement fees exceeding $1000 should be imposed on individuals, although I accept that infringement fees of up to $2000 for individuals might be appropriate if limited to individuals whose minor-ish offending is part of a profit-making endeavour (for example, being the person in charge of a business that is breaching a COVID order).
  4. The infringement fees that are proposed for corporations are in line with other infringement fees, although are very high in comparison to the maximum fine. Multipliers of five or six are commonly applied to infringement fees that apply to individuals, meaning that infringement fees of up to $12,000 are not necessarily excessive (although care should be taken when setting individual fees). If fines were increased as I have suggested above, then infringement fees of up to $12,000 could not be seriously objected to.

Comparison with Other Infringement Fees

  1. It is useful to compare this 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.[2]
  1. Drink driving is a criminal offence, but in 2014 Parliament created a new lower drink driving limit which imposes 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.
  2. The Building Act creates a number of obligations, including, for example around “dangerous dams” (for example dams as part of irrigation on a farm). When a person fails to comply with a direction from a regional council around repairing a dangerous dam, maximum fines of $300,000 for an individual, and $1,500,000 for a corporation are available. This can also be enforced using an infringement fee. The infringement fee is $2000.
  3. 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 arguably similar in seriousness suggests the scale of the proposed increase is unnecessary.[3]

The Committee Should Consider Imposing Restrictions on the Types

  1. I anticipate that the Committee may seek input from the Regulations Review Committee about the amendments to regulation-making powers contained in this bill. One matter worth considering if a large increase in the infringement fee is considered is imposing limits on when and how the maximum fee might be appropriate (for example, limiting individual infringement fees at the upper level to individuals involved in profit-making activities).

Conclusion

  1. I thank the Committee for the opportunity of making this submission.
  2. In short, breaches of COVID orders can be very serious, but serious breaches should be prosecuted, rather than subject to infringement fees.
  1. The current $400 infringement fee is not especially low, but allowing the Government to make staggered infringement fees, including some higher than this, is reasonable. However, I am concerned with the particular proposal to allow individual infringement fees of up to $4000. This is much too high, and would be the highest infringement fee in New Zealand, by a substantial margin.
  2. I recommend:
    • 1. The maximum infringement fee for an individual should be set at $1000.
    • 2. Any higher infringement fee (up to $2000) that is imposed on an individual should be limited to individuals involved in a profit-making enterprise)
    • 3. The bill’s proposal for a maximum infringement fee for corporations of $12,000 is reasonable.
    • 4. The increase in the maximum fine for individuals to $12000 in reasonable.
    • 5. The maximum fine for corporations is disproportionately low, when compared to (i) the maximum infringement fee for corporations; (ii) the maximum fine available for individuals, and (iii) the fact that individuals face the possibility of imprisonment. A maximum fine of $25,000 or $50,000 could be justified and would be in line with other offences.
  3. I look forward to speaking to the Committee if time is available.

Graeme Edgeler

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

[2]     Land Transport (Offences and Penalties) Regulations 1999, schedule 1B, part 2.

[3]     I encourage the Committee to Consider the Civil Aviation (Offences) Regulations 2006, which has the most comparisons, along with the Building (Infringement Offences, Fees, and Forms) Regulations 2007, and the Land Transport (Offences and Penalties) Regulations 1999 as providing example of infringement fees that may be useful comparisons.