Legal Beagle by Graeme Edgeler


New Zealand rockets up the anti-Corruption ratings: a non-Spinoff investigation

New Zealand is again atop the Transparency International list of countries with the lowest perceived corruption.

With an index score of 90 out of a possible 100, the perception of non-corruption has also increased (last year, when New Zealand ranked forth, with a lowly 88). It’s not that the rest of the world is getting worse, New Zealand's apparently getting better. What is New Zealand doing right? I decided to investigate.

The Transparency International Survey of Corruption perceptions takes data from a range of international surveys that, in part, have questions on corruption. There are thirteen in all, including The African Development Bank Governance Ratings, the Economist Intelligence Unit Country Risk Ratings and World Justice Project Rule of Law Index. Corruption is a factor in governance, in economic risk, and in the rule of law, so Transparency International takes the data from the corruption parts of those rankings, and brings that together in one place.

New Zealand features in seven of the thirteen reports (Transparency International will give a country a rating if it features in at least three). Transparency International takes the information it gets from each of those surveys, turns that into a score out of 100, and then averages those scores to determine each country’s score.

So, how did New Zealand’s average score increase so drastically, up from a paltry 88, to a stellar 90?

Let’s look at each of the reports.

In the World Economic Forum Executive Opinion Survey (which surveys business executives), our corruption score fell from 92 to 90. That’s not good.

According to the IMD World Competitiveness Yearbook, a survey of business executives by IMD Business School in Switzerland, New Zealand’s corruption score increased from 93 to 95. That’s the two point increase we need to find, but all it does is cancel out the fall caused by the presumably different business executives that the World Economic Forum used.

In the Global Insight Country Risk Ratings, an assessment by in-country specialists who are part of the consulting firm IHS (now IHS Markit), New Zealand’s corruption score was unchanged: 83 in both 2014 and 2015.

New Zealand was up two points in the Economist Intelligence Unit’s Country Risk Ratings (which uses the experts in the Research Arm of the Economist to construct rankings), going from 88 to 90.

Unfortunately, New Zealand was down in its corruption rating in World Justice Project’s Rule of Law index, dropping from 83 to 79.

And New Zealand was down by five points in its corruption score according to score of risk analysis company Political Risk Services’ International Country Risk Guide, falling from 98 points to 93.

How then did New Zealand’s score increase? If you’ve been counting along, that’s only six reports, and New Zealand featured in seven. In the Bertelsmann Foundation’s Sustainable Governance Indicators report, New Zealand’s corruption score increased from 81 to 99. This is the sole reason for New Zealand’s index score increased.

How did the Bertelsmann Foundation arrive at its conclusions? Transparency International describes it in the following way:

The Sustainable Governance Indicators (SGI) examine governance and policymaking in all OECD and EU member states in order to evaluate each country's need for, and ability to carry out, reform.

The indicators are calculated using quantitative data from international organisations and then supplemented by qualitative assessments from recognised country experts. 

What changed between 2015 and 2016 that accounts for the upgrade? The people who prepare the Bertelsmann Foundation’s report have offered their own insights:

New Zealand is one of the least corrupt countries in the world. Prevention of corruption is strongly safeguarded by such independent institutions as the auditor general and the Office of the Ombudsman. In addition, New Zealand has ratified all relevant international anti-bribery conventions of the OECD and the United Nations. All available indices confirm that New Zealand scores particularly high regarding corruption prevention, including in the private sector.

This synopsis footnotes the Freedom House: Freedom in the World 2015 index. And what did that report have to say about corruption in New Zealand: 

C. Functioning of Government: 12 / 12

New Zealand is one of the least corrupt countries in the world. It was ranked 2 out of 175 countries and territories surveyed in Transparency International’s 2014 Corruption Perceptions Index. However, scandals involving political donations from migrant Chinese businessmen have hurt the government’s image. In May 2014, Minister Maurice Williamson resigned amid allegations of intervention in a domestic violence case involving a Chinese businessman who had made political contributions. In another case, donations were made to the National Party by a Chinese firm, one of whose board members is the husband of the Justice Minister.

So why, did Transparency International raise New Zealand’s anti-corruption score increase in 2016? According to the authors of the reports they relied on (and the authors of the reports they relied on) it’s because New Zealand was highly ranked on Transparency International rankings in 2014.

Now that's funny, and points out a pretty big problem with all of these indexes (although at least the Transparency International index is not quite as ridiculous as the index that suggested that North Carolina is no longer a democracy). but it's not actually the reason.

The Bertelsmann Foundation is interested in sustainable governance, of which corruption is only a part of its assessment. Indeed, the data transparency international uses from their assessment comes from a single question:

To what extent are public officeholders prevented from abusing their position for private interests?

The recognised country experts were told this question addresses:

… how the state and society prevent public servants and politicians from accepting bribes by applying mechanisms to guarantee the integrity of officeholders: auditing of state spending; regulation of party financing; citizen and media access to information; accountability of officeholders (asset declarations, conflict of interest rules, codes of conduct); transparent public procurement systems; effective prosecution of corruption.

Helpfully, the experts tasked with answering this question were warned:

Note: Please be aware that the Corruption Perceptions Index (CPI) of Transparency International uses the data and information given in response to question D4.4 for their assessments. To avoid circularity of assessments, please do not base your evaluation on the CPI.

They were asked to give a score from 1 to 10, with scores explained as following:

  • A score of 9 or 10 signifies that “Legal, political and public integrity mechanisms effectively prevent public officeholders from abusing their positions.”
  • A score of 6-8 would show that “Most integrity mechanisms function effectively and provide disincentives for public officeholders willing to abuse their positions.”

Quantitatively, this appears to be the source of the difference in New Zealand’s Transparency International index score between 2015 and 2016.

So, presumably, that question saw New Zealand get a score of 8 in 2015 (which Transparency International converted to 81), and a 10 in 2016 (converted to 99)?

Actually, no. The Bertelsmann Foundation's assessor gave New Zealand a 10 in 2016, and a 10 in 2015, and a 10 in 2014. It's just that in 2016, this 10 was converted by Transparency International to a 99 on a 100-point scale, and in 2015, that 10 was considered to be worth 81 by Transparency International.

Transparency International explains how this works:

Standardise data sources to a scale of 0-100 where a 0 equals the highest level of perceived corruption and 100 equals the lowest level of perceived corruption. This is done by subtracting the mean of the data set and dividing by the standard deviation and results in z-scores, which are then adjusted to have a mean of approximately 45 and a standard deviation of approximately 20 so that the data set fits the CPI’s 0-100 scale. The mean and standard deviation are taken from the 2012 scores, so that the rescaled scores can be compared over time against the baseline year.

I know a number of people much better at statistics than me occasionally read and comment here, so I won't try to explain it. In the end, I doubt understanding the exact process will help. Although I suspect it gives lie to Transparency International's outline of the results as shocking because so many countries score below 50:

So what explains New Zealand's rise?

In 2015, when New Zealand's Bertelsmann Foundation score of 10 was standardised as an 81, Denmark's score of 10 scaled to 97. Finland and Sweden, whom New Zealand beat on the Bertelsmann Foundation's measure (they received 9s) got scores of 91. The Netherland's score of 7 got scaled to 97 (oops). And Canada's 8 got them 81 like us.

Why did New Zealand rocket up Transparency International's Anti-Corruption ratings in 2016? And why did the Netherland's fall from fifth to ninth? There were data entry errors in Transparency International's 2015 analysis. Fix that mistake, and New Zealand's index score didn't go up from 88 to 90, it went down from 91 to 90. And New Zealand would have been first equal (relying on rounding) in both years.

Assuming, of course, there aren't more errors. And ignoring that these sorts of rankings are stupid anyway.


Three Strikes five years on! Now with accurate numbers!

A month ago, I retracted a piece I wrote in 2015 looking at the first five years of the three strikes sentencing regime for serious violent crime, attempting to see how the first five years after three strikes compared to the five years before three strikes.

As detailed in that retraction, the comparisons I then made were invalid. The two sets of data I was comparing were not comparable. I now have this data, following contact by the Ministry of Justice after my retraction (and Nikki Macdonald's excellent work in the Dominion Post) was published, and the Ministry apologised for falling short of the high standard they set for themselves, and offered to provide comparable data if I still wanted it.

The comparison between the years before and after the coming into force is less stark, but there remains a reduction in strike recidivism beyond that in strike crime generally. The extent to which this fall can be attributed to three strikes remains anyone’s guess.

In the first five years after three strikes came into effect 5248 offenders received a ‘first strike’ (that is, a “stage-1 conviction” under the three strikes sentencing regime), and 68 offenders received a ‘second strike’.

In the five years prior to three strikes, 5517 people were convicted of an offence where that conviction would have been a ‘first strike’ had three strikes been in force at the time, and 103 were convicted of an offence that would have been a ‘second strike’.

In addition, no-one was convicted of a third strikes in three strikes’ first five years, while four people were convicted of what would have been third strikes in the preceding five years, and two of them also racked up what would have been fourth strikes.

The bald numbers provide no evidence that the existence of formal strike warnings has a deterrent effect, and arguments about what caused. Though the numbers are low, the lack of third and fourth strikes could well be a consequence of incapacity, rather than deterrence – a second strike conviction means the offender is ineligible for parole, so result in longer times spent in prison.

In its response to me, the Ministry cautions against firm conclusions:

“Please note that although this data shows that reoffending has reduced since the Act came into force, there are several factors affecting numbers of convictions and hence people convicted over the 10 year period in question. These include changes in policing practices (for example, the Policing Excellence Scheme:, an overall reduction in crime and a reduction in the number of people prosecuted and convicted from 2009 to 2014. This means that any reduction in offending cannot be solely attributed to the Sentencing and Parole Reform Act 2010.”

We’re now at the level where alternative explanations become more likely. Our first third strike (for offending leading a conviction since the five year period of comparison) is instructive. Raven Campbell was convicted of an indecent assault committed on a prison guard. A conviction for a crime committed in prison was always likely to be the first third strike. Few prisoners convicted of serious sexual or violent crimes will have had the opportunity to have committed a strike offence, been convicted and sentenced (probably to prison) then paroled, to be convicted of a new crime committed after the first, then serve every day of a second strike sentence (for which there is no possibility of parole) before being released involving to commit further serious offending, all within five years.

In addition to the Policing Excellence scheme suggested by the Ministry of Justice (in part, it created a greater Police focus on prevention), any number of other alternative explanations for reductions in recidivism rates for serious violent crime within five years of first conviction: random variation in offending levels, longer sentences for serious offending; changes to parole laws, or to the approach of the New Zealand Parole Board to parole decisions among others. are possible explanations for reductions in recidivism rates within five years of first conviction. We’ve also seen the rollout of extended supervision orders for child sex offenders, which started in 2004 (although child sex offences make up only a small proportion of serious violent crime, and tend to have low recidivism rates).

Establishing whether something like three strikes has had an effect on recidivism rates, or offending rates is hard. The bald numbers tell us little. It is something that could be investigated further, but would need the type of resources I do not have, and I suspect would also research agreements to enable access to information that would be otherwise be withheld under the OIA for reasons of personal privacy. Mostly, I’m just here to point out the problems with others’ arguments. Too many arguments about criminal justice focus on rhetorical effect, or run the risk of falling away when the crime rate changes by a little (if you’re on Twitter, follow Fordham Professor John Pfaff):

I can't take this much further, but there are some other slightly noteworthy notings from the recent OIA releases.

In explaining why it is difficult to come up with comparable data, the Ministry of Justice noted:

Under the Act, warning may be given either when guilt is established (which is usually when the conviction is entered) or at the sentencing date. However, as the time of the giving the warnings is at the discretion of the judge, it is impossible to estimate the timings of when warnings would have been given pre the implementation of the Act.

This accords with how I’ve seen the Act occasionally work in practice – warnings sometimes aren’t given upon conviction, but this isn't a correct statement of the law. Section 86B of the Sentencing Act is clear:

86B Stage-1 offence: offender given first warning

(1) When a court, on any occasion, convicts an offender of 1 or more stage-1 offences, the court must at the same time—

(a) warn the offender of the consequences if the offender is convicted of any serious violent offence committed after that warning…

When a warning is given is important, because an offence will only receive a higher-level warning (with the consequent parole and sentencing effects) if it is committed after the warning was entered. It will not be common, but there will have been instances where a defendant has avoided more serious strike consequences because a judge has exercised the discretion as to timing that the Ministry of Justice says they have.

In news from a wholly unrelated OIA request I made of the New Zealand Defence Force earlier in the year, I can confirm that former Navy Commander Philip Wiig, who was convicted at a Court Martial of an indecent assault, did not receive a first warning when he was convicted, or sentenced. Although indecent assault is classed as a “serious violent offence” under the Sentencing Act, not all parts of the Sentencing Act apply to Courts Martial, and the three strikes bit is one part that doesn’t. This would apply even if they charge faced was more serious: no conviction at a Court Martial has strike consequences. Now, I oppose three strikes, but I can’t see a particularly good argument that someone with a conviction for a strike offence following a Court Martial should be in a better position if subsequently convicted for further serious offending (whether in a civilian court, or a military one).

Far from the biggest deal, but I like my laws to be consistent where possible, even when I oppose them.


Retraction: Three Strikes Five Years On

On September 30 2015, I published a post: The Greg King Memorial Blogpost: Three Strikes Five Years On.

I retract that post. I am grateful to Dominion Post journalist Nikki Macdonald for her story published today looking at three strikes that determined that my piece was unsupportable.

The principal comparison I made in that post, between the number of second-strikes there had been during the first five years after three strikes, and the number there would have been in the five years before three strikes, had three strikes been in place five years earlier, is invalid. The pre-three-strikes data and the post-three-strikes data on which the post was based are not comparable.

The conclusions I reached in my post, as tentative as they were, are not supported by the evidence. I do not know what the correct figures are, but I have substantially overstated the number of second strikes there would have been.

The post was based on information provided to me in two OIA requests I made of the Ministry of Justice. I like to think that my request was drafted sufficiently clearly that the Ministry of Justice would know that the data I was seeking needed to provide a fair comparison, however this appears not to have been the case.

In relevant part, my request was:

I would like to be able to compare these numbers to the the previous five years (essentially looking at what the numbers would have been had the three strikes regime commenced five years earlier), so to enable a comparison, please also provide the following information:

How many convictions were there between 1 April 2005 and 31 March 2010 for a "serious violent offence" that was committed after a conviction had been entered for an earlier serious violent offence that was itself committed after 1 April 2005?

In respect of all questions I am asking only about offences committed by someone who was at least 18 at the time of their offending.

If you have any questions, please do not hesitate to get in contact. I have chosen the date ranges as they cover the same period before and after the entry into force of the three strikes regime, if your records are collated in a different way (e.g. calendar year), please feel free to respond with information in that way instead, but it does seem important to cover the same amount of time before and after the change to have a fair comparison.

In response to a question from Ms Mcdonald seeking to confirm the numbers released to me were comparable, the Ministry of Justice advised her that “data was extracted based on the date the charges were laid, irrespective of when the offences were committed or when a conviction was entered.” This is obviously important when drawing a comparison with three strikes, as the date of offending and the date of conviction are fundamental to whether there are strike consequences.

I am unsure why I was provided information about charges that were laid during the relevant time period, irrespective of when he offences were committed or when a conviction was entered in response to my request. Admittedly I am biased, but at least on my reading of my request, I drew that distinction.

Clearly, before publishing by post, I ought to have double-checked with the Ministry of Justice that the information that was supplied was the information that I had intended to seek (and still think I did seek) as it appears that upon being asked to do so, they have been able to confirm it was not relatively quickly.

When publishing information, I try to be careful to ensure that it is accurate. I am sorry that you have been misled by something I have written.

Update 2 January 2017: After I published this post, the Ministry of Justice got in contact, apologised for failing to meet the high standards they set themselves, and offered to provide comparable data. A new post, with a fair comparison, is up here.


Short circuiting the legislative process; or why are we still writing about Nuk Korako?

Sometimes a law change is so important and so urgent, that Parliament feels it needs to pass it immediately, without the possibility for select committee scrutiny, and public submissions. Today, we got some insight into what that threshold is.

And it seems that National, and ACT, and Labour, and the Greens, and New Zealand First are all in agreement about this. The type of law that is so important, and so urgent, that it should be passed without ordinary scrutiny, prohibiting citizens from having a say includes Nuk Korako’s so-called “lost luggage” bill.

Now, that bill did basically nothing, but it could have been amended so that it merely did next to nothing. In fact, I’d started writing a submission on the bill pointing that out. But so urgent was the law change, Parliament unanimously decided that none of us should be able to have a say.

The point of the bill was supposedly to update the process for Airport Authorities selling off unclaimed lost property. It did not do a good job of that. And, actually, Parliament has had some experience of how to update the laws around the conduct of public lost property auctions for the Internet age. When Parliament passed the Policing Act, they changed it so that Police had the option of selling goods at an online auction.

This is good. Selling some types of items at an online auction site is likely to increase the amount of money received for them, and when we’re talking about public assets (which unclaimed lost property is), giving those tasked with looking after those assets powers to best realise public benefit from them is good.

But I will now never get the opportunity to finish that submission, and, if we ever want this very minor, but still slightly positive law change enacted, Parliament will have to change the law again. All because Parliament agreed to shortcut the normal process for passing law.

Now, I agree with pretty much all the criticisms of Nuk Korako’s bill. It was not worth spending Parliamentary time on it as a separate bill, and even with the minor change I would have proposed given the chance, it would still have been much better to simply wait until the Airport Authorities Act was next updated, or included in a statutes amendment bill.

Now, that’s what happened here, but it happened after the statutes amendment had been to select committee, too late for anyone to have a say on it.

Now, if Parliament really thought Korako’s bill was such a waste of time, and inappropriately dealt with as a separate bill, it’s solution was to vote it down at first reading, not to short circuit the legislative process to enable it to be passed without public scrutiny. And with even ACT calling the legislation a waste of time, it seems likely that it would quite properly have never progressed past a first reading. Not all that much Parliamentary time would have been wasted (likely around 30-40 minutes), and the change, if still thought necessary, could have been adopted into a later statutes amendment bill, or wider amendment to the Airport Authorities legislation.

But more important than the quick adoption of Korako’s lost property bill, was that it was not the only one that Parliament decided to add to its just-about-passed Statutes Amendment Bill this morning. It also adopted Matt Doocey’s Companies (Annual Report Notice Requirements) Amendment Bill, which changes the requirements around companies posting out hard copies of their annual reports.

This was a law change that National MP Chris Bishop was adamant was sufficiently controversial that inclusion in a statutes amendment bill was inappropriate, and it’s now not only been included in a statutes amendment bill, it’s been included in one without select committee scrutiny.

In a sense, the adoption of this change without select committee scrutiny is worse. There was quite a bit of scrutiny of Nuk Korako’s bill by members of the public. I don’t know that there’s been any of Matt Doocey’s bill. I’ve had a quick look, and cannot see any flaws, but it is not an area of the law with which I am especially familiar, and I’m not going to guarantee you that there isn’t some minor mistake in it that will need to be fixed.

Which is the point of the Select Committee process. The drafters of just about every bill that goes to select committee see no issue with the words they’ve written, but close analysis by MPs, officials, and members of the public, often pick up little (or big!) errors. Amendments that are included in Statutes Amendment Bills are supposed to be short, technical and non-controversial, but a surprising of statutes amendment bills will have one change or another that either the Law Society, or officials, or someone, find some minor issue with that needs to be changed. And I'm betting that at the point at which our MPs unanimously supported the change all voted in favour of Doocey's bill avoiding select committee consideration, our MPs were not certain that his bill would not be one of them. It’s probably fine, but probably shouldn’t be good enough.

We get something out of this all, at least. We will know that, next time the opposition complains that the government is passing laws without select committee scrutiny, what the standard is. And we can simply point them to this, and tell them to go away.


Just get the App, already

It’s over two years since then-Minister of Transport Gerry Brownlee boarded a plane in Christchurch, after entering a secure area through a no-entry door, skipping past the security check.

I spent time that day on Twitter, trying to work out what law Brownlee might have broken (I couldn’t find one), and ended up writing a post, without really getting to the bottom of it. My curiosity piqued, I requested a copy of the Civil Aviation Authority report into the events under the Official Information Act. I make a few OIA requests, and have a pretty good track record of, eventually, getting the information I’m after. I’m rarely in a hurry, and when things are redacted, it’s usually for a reason that seems justifiable.

This time, however, the response I got was entirely unhelpful. I wanted to know why a regulatory agency believed an offence had been committed, and it had redacted all its legal analysis. Judges don’t tend to do that when issuing their reasons, and it seemed a little off that a regulatory agency could decide that a criminal offence had been committed, decide to impose an infringement fee rather than prosecute, and thereby inoculate their decision, and their legal reasoning from public scrutiny. So, I think for the first time (or at least, my first time other than as a lawyer), I complained to the Ombudsman about.

I’m glad I did. I got a much-less-redacted copy of the report last week, and not only was my curiosity satisfied, I confirmed that the CAA sees quite a few of the same issues with New Zealand’s aviation security rules that I saw two years ago.

So, what law did Gerry Brownlee break? Oddly, it has nothing to do with his not going through security screening. Instead he was determined to have been in a security area without an airport ID. That probably seems like an odd law to break, because what passenger has an airport ID? But this offence has an exception for people who are in a security area for the purpose of joining or leaving a flight if they have a boarding pass for that flight.

And Gerry Brownlee didn’t have a boarding pass.

That’s it.

If Gerry Brownlee had the Air New Zealand app on his phone, his electronic boarding pass would have meant he hadn’t committed the offence the CAA say he did. That he didn't pass through security screeening is legally irrelevant. He got an infringment notice, and had to pay a $2000 infringement fee because he got his boarding pass at the gate.

Now, I feel I ought to front up, and admit that I have committed the offence Gerry Brownlee committed. I once saw my nephew and niece off at the departure gate when they were travelling as unaccompanied minors.

And we now know that the CAA acknowledges that this is illegal:

Of note, it is not currently a requirement that persons who pass through an AVSEC security screening point have to show their boarding pass to the AVSEC Officers. Clearly there are occasion when person may pass through a security screening point when they do not hold a board pass i.e. parent seeing off their unaccompanied minor on a flight, person wanting to see off a passenger and having coffee with them airside, etc.

While these persons may not be in technical compliance with the [Civil Aviation Rules] as they are not deemed to be passengers in possession of a boarding pass, the fact is they have been screened, unlike Mr Brownlee and his aided, and therefor the level of aviation security risk is low.

There are rules requiring people entering security areas to pass through security screening, but the rules do not create a criminal offence, or even an infringement offence, for those who do not. The CAA looked at whether it could charge the offending under as a “breach of statute” for failing to go through security screening, but decided it would be face difficulties (the breach of statute offence is essentially a holdover from a time when our laws were drafted less voluminously, and could be used when Parliament clearly intended something to be a crime, but didn’t provide a maximum sentence). I concur.

It seems clear, and the CAA appears to agree, that law does not actually provide an offence which covers passengers who are in airport security areas without having gone through security screening.

This seems odd. It isn’t to say there aren’t consequences. If you don’t go through security, they shouldn’t let you on your flight. And if they let you on a flight, they’re supposed to get everyone off the flight, and take them through security again before it can take off, but there doesn’t seem to be an offence in our air travel legislation that covers the individual's actions, while there is an offence that makes it illegal for parents to wait with their kids before they fly as unaccompanied minors.

And maybe, if anything good is to come from Gerry Brownlee’s escapade, we could fix that?