Public Address - Legal Beagle (Home)

Tastes like democracy | Jun 30, 2008 23:48

I have fond memories of the 2005 election.

I woke up early enough. I spent a couple of hours doing not a whole lot at home, and then walked the 200 or 300 metres to the Karori West Normal School hall. There weren't a lot of us at around a quarter past eleven, but there were a few others just heading into, or out of, the voting booth and over the hours that had preceded and followed our voting a steady trickle of voters came and went. Some came with their kids, who waited patiently in the foyer – or on the swings outside – and got to wear the orange "I voted" sticker on the way home.

It felt right.

My first two elections weren't like that. In 1999 I cast a special vote before I returned to Tokoroa for the holidays; in 2002 I voted at Clyde Quay School in Mount Victoria, where I'd been living for less than a year. But in 2005 I'd been living nearby for a while, I'd been to the school gala and in the suburbs – where people with families and mortgages and responsibilities live – the day felt special.

It felt like democracy.

New Zealand elections have a solemnity attached to them. There are rules prohibiting any political advertising or displays on election day. On polling day, it's illegal to within view or hearing of a public place hold (or take part in) a "demonstration or procession having direct or indirect reference to the poll by any means whatsoever". We get to vote and no-one can get in our way.

And it's among the reasons why I think internet voting is a terrible idea.

It's an idea that has recently been raised. The Chief Electoral Office (which runs our elections) recently released a paper, suggesting we might conduct a small trial of e-voting in 2014, followed by larger trials at the 2017 and 2020 elections, before deciding whether to adopt e-voting for the 2023 election. It seems slow (perhaps thorough), the legislation – which would need a Parliamentary supermajority – could be introduced about a year into the next Parliament, and passed about a year later through it, but the exercise in moving from a paper ballot to an electronic one is a massive undertaking – even simple questions like 'how does a scrutineer work?' have no obvious answer.

We've had the secret ballot for over a hundred years in New Zealand. If you even try to look at whom someone is voting for in a polling place you can go to prison for two years. That's four times longer than the maximum penalty for a candidate who destroys ballot papers (a pet peeve of mine with our electoral law).

Why we'd want to rid ourselves of the secret ballot, I'm not sure; I've got to say I'm pretty happy with it. I've no doubt there are families in which one partner has always secretly voted one way, with their partner thinking they agreed the entire time. While a student, I worked for a polling company, and remember a couple of calls where the woman at the address had asked her husband whom they voted for – it was his voice that was heard that night, but in the polling booth, it was her voice.

Internet voting abandons this. And the 'convenience' just isn't worth it.

The sense of democracy as a community undertaking would be lost if we were able to stagger the election over two weeks. I very much doubt there would be more than a minimal effect on voter turnout, and I wouldn't be surprised if the decline in civil society I think it would precipitate actually lead to decreased interest from the politically disinclined.

We vote because we think we should. Because when we were younger our parents took us with them when they were voting and it was solemn and seemed important. We vote because there's one day ever three years when voting is what you do – what everyone does.

Because it feels like democracy.

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If we only had time | Jun 25, 2008 01:20

A couple of days ago, the organisers of a petition to Parliament seeking a referendum on the question:

Should a smack as part of good parental correction be a criminal offence in New Zealand?

placed that petition before the Clerk of the House of Representatives. If the petitioners are successful, it seems sensible (and fiscally prudent – it'll save around $10 million) to hold that referendum at the same time as the general election. But it has been suggested that there is insufficient time to organise the referendum to be held concurrently with the election, so I thought I'd work my way through the various laws in play to test this hypothesis.

The petition was presented to the Clerk on June 23. The Clerk has two months to determine whether the petition has enough valid signatures. Then the Clerk must advise the Speaker whether she is required to present the petition to the House – on or before August 22. Assuming that there are enough signatures, the Speaker must "forthwith" inform the House that an the petition has been successful. This would occur on August 26, the next sitting day. Even if the Clerk finishes a couple of weeks early (any time after August 7), the House would not be informed until August 26, because the House is in recess during the interceding weeks.

After the petition had been presented to the House, the Governor-General, by order-in-council, must specify the date on which the referendum is to be held. The decision must be made within one month of the presentation in the House, and the date specified must be no later than 12 months after that date.

Cabinet (which instructs the Governor-General what to do) meets on Mondays. On Monday 1 September it will be able to decide when to hold the referendum. Cabinet could, of course, delay making the determination if it really wanted to – with September 22 the date of its last meeting of cabinet before the deadline, but the order-in-council could be made any day until September 25.

If cabinet is to set the date, then an actual date must be specified. Cabinet cannot order that the referendum be held on an as-yet-unknown election day. It could determine the date of the election, and set both for the same day, or Parliament could make the decision. Because an election must be held within the next 12 months, Parliament can pass a resolution requiring the referendum to be held at the same time as the unscheduled election; indeed, Parliament could do this before Cabinet meets – it could even do it (with leave in order to leapfrog other stuff on the order paper) on the day the Speaker presents the petition.

The question then arises as to when the decision about the election must be made.

The last possible date for the election is November 15. The election will be held on the date the Governor-General determines in a writ he issues ordering the Chief Electoral Officer to conduct an election. A maximum of 50 days may pass between the issuing of the writ and the announcement of the result. Between the dissolution of Parliament and the issuing of the writ there is a maximum of 7 days, and between nomination day (around a week after the writ) and polling day there will be at least 20 days, but no more than 27 days – thus an election can effectively be called with 4-5 weeks notice.

At the cabinet meeting on 1 September, the election could be ordered for any Saturday in October or November. Even if it chooses to delay its decision by a week or two (as it is entitled), it would still have enough time to order both the referendum and election for mid-late October or November. Only if an election in September (or earlier) was wanted would there be insufficient time to order the referendum be held.

One thing that would prevent the election being held on the same day as the referendum is if the writ ordering the election to be held has already been issued. A decision by the Government to have an early election would prevent the writs (one ordering the election, and one ordering the referendum) being issued at the same time (which is required if the the votes are to happen at the same time), and would prevent Parliament from ordering them to be concurrent (because Parliament would have been dissolved).

There is nothing – except perhaps fiscal prudence – to require the election and any referendum be held at the same time, but any choice that they not be – either by electing the go early, or by delaying the vote until next year – is voluntary on the part of the Government. The government will not be prevented by any circumstance beyond its control from holding the referendum at the same time as the election. The 20-27 days between the close of nominations and voting is long enough for the Chief Electoral Officer to determine the form of 70 different ballot papers and have them printed in sufficient quantities to conduct elections. Adding another question, or another piece of paper that is the same across the whole country (the format of which is already known) is not an Herculean task beyond his capacities.

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What was I thinking? What were they thinking? | Jun 23, 2008 10:59

One of the unintended consequences (and I use unintended advisedly – I'm pretty sure I warned them) of the Electoral Finance Act is that is has closed the historically substantial gap between political parties and their parliamentary wings. Whilst obviously linked, the operations of the divisions have been largely separately – to the extent that one may not know how the other intends to behave.

Though perhaps counter-intuitive, this can be viewed as a reasonably rational response to two concerns:

• that we elect members of Parliament, and have no say in choosing those who hold high party office;
  
• that members of Parliament should be seen to operate free from outside control
  

Placing control of parliamentary matters in the hands of parliamentary wings of parties ensures that elections may be used as a mechanism to hold parties to account for their use of public money – as some may find to their detriment following the 'pledge card' and related matters. It has been used by politicians as a reason for their opposition to direct public financing of political parties – arguing that giving money to people we've elected is acceptable, but giving money to wholly private organisations seeking political success is not.

The advertising paid for by funding from the Parliamentary Service previously was spent by the leader's office of the Parliamentary party – on the say so of the leader, or his or her chief of staff. No reference was had to the extra-parliamentary party.

The Electoral Finance Act has shifted the balance. Advertising, and other publications that fall within the definition of the broadly-defined term "election advertisement" (which includes websites and may extend to press releases) must now be promoted by a financial agent. And it doesn't matter who pays for it. Two previously distinct bodies, operating for good reason entirely independently, are now mandated to operate as one.

This – requiring Parliamentary leaders to obtain permission from internal party-appointed officials (the financial agents) before publishing anything, or spending their leader's fund on advertising – is quite an unintended consequence in itself, but the substantially closer formal ties between the wings of parties had me questioning whether there might be other consequences.

Questions which the Herald kindly aired on my behalf, and NZPA repeated in the ODT and elsewhere. My theory was that advertising funded through the Parliamentary Service might constitute a donation to a political party – Bill English was quoted as agreeing with me, and having an on-line column, and a captive audience, I thought I'd publicly state my reasoning.

"Donation" isn't really defined in the Electoral Finance Act – there are words that clarify its meaning (a donation doesn't have to be of money, and could be of goods or services, for example, foregone interest on a loan, or a mates' rates discount), but there's nothing that states donation means "a voluntary provision of something valuable without expectation of reciprocation" – as I imagine a dictionary might.

My starting-point is that, where the financial agent of a political party has approved spending on an election advertisement, and where that financial agent is legally to "promoter" of an election advertisement, if the party isn't paying for that advertising, someone has probably donated it. That's not to say that in all situations where this happens, there will always be a donation, but you start looking expecting to find one, and need a good reason to conclude there isn't.

I am saying "may" every time I posit this, because well, I'm pretty sure I'm the first person who thought of it, and it really can't be certain until a judge decides one way or the other. I may be right, or wrong.

If I gave the National Party $30,000 worth of leaflets it would be a donation – as it would be if Labour printed off $30,000 worth of leaflets, sent me the bill which I paid. Of course in this situation it's not an individual, or a company, making the payment, but the principle seems the same: a political party has received thousands of dollars worth of pamphlets without paying for them.

It's not that straightforward of course: the Parliamentary Service, acting under budget legislation and operating within directions laid out by the Speaker, is required to make the payment – which hardly seems the stuff of a donation – something I suspect they'd be pleased to hear.

It seems that if there is a donation then there are three options as to who the donor might be:

• The Parliamentary Service
  
• The taxpayer, or the "Government" or Parliament itself
  
• The party's parliamentary wing
  

The Parliamentary Service is most directly responsible for the benefit the party has received – they're the ones actually making the payment – signing and sending the cheque to the supplier, but – under a legal obligation to do it – they've at least an argument they're not really donating anything.

Parliament, which passed the budget which included a line specifying the sum that was to appropriated to support the parliamentary parties, wasn't under any obligation to provide that money to the parliamentary wings – so its actions are somewhat more donation-like, but the money it provided need not have been used to the direct benefit (or control by) the extra-parliamentary wings of any political party.

It is entirely possible that the parliamentary wings for whose benefit Parliament voted that money could have directed its spending in a way that would have required no involvement at all from the party financial agent. If I give money to you to spend within broad parameters that neither require nor preclude a donation to a political party, I doubt if you choose to make that donation it can be sheeted home to me (even if I apprehended the possibility) – I gave the money to you to do with what you would.

The parliamentary wings of the political parties do not have access to the money, they merely pass on the bills to be paid by someone else. However, ultimately, the decisions over where the money goes, who benefits, and whether the money is to be spent in a way requiring the input of a party financial agent, is a decision made within the parliamentary wing. The money may not be theirs, but its existence is for their benefit, and they direct its spending. They are under no obligation to spend it to the benefit of the party proper, and could just as easily choose to spend it in a different way.

Though each is a possible donor, on balance the parliamentary party seems the most likely candidate. Who the donor is is of secondary importance – I don't mind if parties count this as a donation from taxpayers or Parliament – but if the law requires it, it should treat them as donations.

Why is this important? First, if there is a donation to political parties, then parties will have include these in their donation returns: we'll get to explore one more aspect of political party financing, and can do with the information whatever we want.

Secondly, if the value of any donation is more than $20,000 then the party must file a return within 10 working days. Failure to do this without reasonable excuse is an offence. Some may already have committed this offence, though its possible that because no-one had thought of this, they've got a pretty good excuse for failure.

Thirdly, public scrutiny of the spending of the leader's funds could greatly increase – getting around the pesky rule that means the Parliamentary Service isn't subject to the Official Information Act. I suspect our prurience over Parliamentary spending would decrease if the information became more commonplace (as happened in the United Kingdom when its parliamentary spending was opened to public scrutiny), but it was exceptionally surprising to find out after the 2005 election that not only was the 2005 pledge card publicly funded, so were the 2002 card and the 1999 one – even though that one carried a statement along the lines that it was "paid for by supporters of the Labour Party". Despite the schedules to the Official Information Act, I think we had a right to know that.

Margaret Wilson has called for the opening of Parliament to the Official Information Act, a move I wholeheartedly support (and which is a far cleaner mechanism for public scrutiny of parliamentary expenditure than patchwork donation disclosure). We know that in the lead-up to the 2005 election that the parliamentary wing of the National Party didn't spend its money on electioneering advertising (though a few MPs spent some of theirs that way), but I think we can also be pretty confident that National did spent its entire entitlement on something, and I'd like to know what. It is public money, just as public as the money spent by the Ministerial Service and every other government department, and with far greater scope for misuse. It's time. But the arguments for that will come later (if at all). Right now, political parties are receiving advertising they haven't paid for, from funds that aren't available to all parties, and I'll take any disclosure I can find.

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I have this theory | Jun 18, 2008 09:29

It always struck me as unlikely that National really cared how the EPMU – or any other union affiliate of the Labour Party – campaigned against them (there are ways they can do it and not break the law even without registering). I know it sounds crazy but the claim may actually have rested on the legal principle at stake.

The EPMU case revolved around the meaning of the word person in the phrase "person involved in administration of the affairs of a party". Such persons are prohibited from registering as third parties under the Electoral Finance Act. Thus political parties cannot subvert their statutory spending limits by having their senior officials or candidates list as third parties with their own spending limits. Pretty sensible stuff.

Interpreting the phrase "person involved in administration of the affairs of a party" as to only exclude natural persons involved in administering political parties would have allowed political parties to use intimately-connected organisations as campaign proxies. It would have allowed the Wellington Central Branch of the National Party, or the Labour Party Governing Council, to list as a third party. Now this wouldn't have allowed drastic breaching of spending limits – any pro-Labour material would still need to have been authorised by Labour's financial agent etc. (and would count toward its spending limit), but anti-Labour advertising, or election-related issue advertising, could have been engaged in in excess of the party's cap.

So the current argument from National that the Labour Leader's Office should register as a third party must be seen in this light, otherwise it doesn't make much sense. It is not that National wants the Labour Leader's office, or the Parliamentary wing of the Labour Party, to register as a third party to comply with the Electoral Finance Act – it went to court to (rightly) ensure that they cannot. And knowing that the EPMU case established that a "person" like the Labour Leader's Office might properly be denied registration, they must know it cannot list as a third party: the Labour Leader's Office is surely involved in administering the affairs of the Labour Party.

The point isn't to embarrass Labour by making it register (and highlighting a further problem with the Electoral Finance Act). The point is to drastically limit the scope of the parliamentary funding entitlement. It won't be a prohibition on actually spending the money on electioneering advertising, as was found to be in place by the Auditor-General at the last election, rather it would transpose a new Electoral Finance Act limit over the (much less stringent) parliamentary one: the $120,000 limit if they list as a third party, or $12,000 if they don't or can't. Which is quite a bit less than the $800,000 or so National may otherwise fear Labour will spend (either within, or additional to, Labour's spending limit).

But this argument also constitutes an implicit argument than a relatively serious offence has been committed. The argument that the Labour Leader's Office should have registered as a third party is implicitly an argument that it is the Labour Leader's Office (or someone within it) that is the promoter of the advertising. It is not merely an allegation that as an unlisted promoter the Labour Leader's Office has breached the $12,000 (unlisted third party) spending limit (which National recognises), it is also an allegation that the advertising carries a false promoter statement. The budget advertising has a promoter statement listing Labour Party financial agent Mike Smith as the promoter of the advertising; if Bill English succeeds in his argument that it was really the Labour Leader's Office that is the promoter then something will hit the fan.

National is playing hardball on this one.

All published election advertisement must carry a promoter statement, listing the name and address of the promoter of the advertising. And the promoter is the person who initiates the advertising.

The Electoral Finance Act requires that promoters of election advertisement fall into one of four categories – the only people entitled to promote election advertisements are the financial agents of candidates, parties and listed third parties, and those spending under $12,000. If National can establish that the promoter of this advertising was someone other than Mike Smith – whom we must assume assented to the publication – then the initiator/promoter of a whole swathe of election advertisements put out under the name of party or candidate financial agents may be in doubt.

If National is serious, they're not just trying to embarrass Labour, they're trying to break the system.

And it's high risk. National doubtless has a lot of material like this – MP websites etc. funded by its Parliamentary entitlement for example, and most of its privately-funded campaign material will be thought up by professional campaign staff, with the financial agent likely just crunching the numbers to ensure they don't go over their limit. The compromise of adding financial agent-approved promoter statements to old material – or material about which electoral authorities have warned you – may become meaningless. If the financial agent actually has to initiate everything, rather than approve ideas initiated by others political party advertising may dry up.

And I'm just trying to work out whether they've thought this through. Using the Electoral Finance Act to stop Parliamentary spending makes sense from National's perspective, but the implicit allegation of offending that this attack necessarily entails could backfire. Any complaint about Labour's Mike Smith-approved, but potentially not Mike Smith-initiated, advertising could likely be levelled at every parliamentary party.

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If Britain Jumped off a Bridge... | Jun 10, 2008 09:41

The Criminal Procedure Bill, among the many laws our Parliament enacts, doesn't really sound like the sort of legislation to create a small furore – least of all over proposed changes to preliminary hearings in the indictable jurisdiction.

Amid the rather fact-free debate over that aspect of this truly omnibus bill (neither of the two victims whom media found to publicly urge National to support the Government's moves were actually required to give an oral deposition), there has been some reasonable debate of those moves, but also a much bigger void about a bill that will change so much more. It is great that the Herald can devote an editorial and an op-ed page to so esoteric a debate as a change to depositions procedure, but I thought I'd try to provide a little more light on some of the bill's other aspects.

The Criminal Procedure Bill was subject to a negative report from the Attorney-General on its introduction as inconsistent with the New Zealand Bill of Rights Act, and the moves around depositions are a only small facet of it; it also:

• allows for majority verdicts
  
• restricts the right to a jury trial
  
• abandons the absolute rule against double jeopardy
  
• allows for trials that previously had to be heard by in the High Court to occur in the District Court
  
• dramatically reforms pre-trial disclosure
  

That's the big ticket stuff. There's a lot of other stuff too – it's a fairly drastic overhaul of our Criminal Procedure, it further:

• allows the Government to amend – by regulation – the Summary Proceedings Act (to change the list of offences which must be heard by a jury), and the Districts Courts Act (to change the list of offences that must be heard in the High Court)
  
• removes a rather odd prohibition on certain dissenting judgments in the Court of Appeal
  
• permits the defence to call an expert witness immediately after the prosecution's expert witness (instead of waiting until all the prosecution's evidence has been called)
  
• allows juries to select their foreperson later in the trial
  
• allows those called to jury service to defer their service for up to 12 months
  
• reduces the number of peremptory challenges (challenges without cause) each side may make during jury selection (from 6 to 4)
  
• removes the absolute requirement for jury sequestration during deliberations
  
• allows a further pre-trial appeal on important preliminary matters to the Supreme Court (effectively overturning that Court's decision in Clark v R).
  

The bill largely arises from some Law Commission papers from a few years back (2000 on criminal procedure, 2001 on juries); the one major recommendation it doesn't adopt would essentially amount to a complete overhaul of the distinction between the indictable and summary jurisdictions (something, if done right, that could be incredibly useful – I've appeared in the Court of Appeal when judges have noted their disappointment that the Criminal Procedure Bill wasn't picking that fight).

The above is naturally just the potted summary – pertinent facts missing for effect – and given we're now likely to see swift legislative action on the remaining stages of the bill, I thought I'd run through a few of the details, and provide a comments thread for, well, comment.

Majority verdicts
There isn't really much in the way of detail for this. After 4 hours of deliberations, juries will be allowed to convict or acquit if there is a single hold-out (11 votes to 1). 10 votes to two will remain a mistrial, but lone dissenters will no longer be able to hold out. For myself, I think this is an unnecessary change. Mistrials from jury disagreement are rare, and lone dissenters must be rarer. We have juries of 12 people for a reason and requiring unanimity among them is a mechanism to reassure society that we convicted (or acquitted) someone justly – when we know that 12 people, individually and collectively, have reached the same view on guilt without fundamental disagreement, we can more faith in the result.

The right to a jury trial
It's been pretty fundamental for a very long time that if we face being sent to prison, we have a right to a jury trial. Apparently it's in the Magna Carta, and I believe it's somewhere in the US Bill of Rights too. Any time you're charged with an offence carrying a maximum term of more than three months imprisonment – even if actual imprisonment for such a term (or at all) is improbable – you have the right to request that your case be heard by a jury (I believe the single exception is Summary Offences Act assault – a possible six month term).

We're obviously not proposing to get rid of them completely (that whole majority verdict would be a bit of a waste of time), but this right is to be curtailed in some instances. Under the Criminal Procedure Bill, a judge will have the power to declare that any trial be held without a jury if:

there are reasonable grounds to believe that intimidation of any person or persons who may be selected as a juror or jurors has occurred, is occurring, or may occur; and ... the effects of that intimidation can be avoided effectively only by making [such] an order.

The right to a jury trial will also be curtailed in circumstances where the trial is likely to be long (20 days – i.e. a month) and complex.

It is envisaged that the exception for long and complex cases will generally apply to complex fraud cases, and it won't apply to very serious offences: those carrying maximum sentences of 14 years or more will still have to be heard by a jury. The select committee report, a little old now because the Government has been sitting on the bill waiting for Parliamentary majorities on all its provisions, notes that in the preceding five years, 11 trials would have been eligible to be heard by judge alone under this provision.

Double jeopardy
The two exceptions to the rule that this Bill introduces have been termed "tainted acquittal" and "new and compelling evidence".

The tainted acquittal exception is pretty uncontroversial – it allows for a fresh trial where the previous acquittal was obtained through criminal action. I believe the Law Society and some others opposed it before the Select Committee, but even Tony Ellis doesn't have a problem with this. It applies only in the situations where it really should – where there has actually been a conviction for perverting the course of justice in the trial, and the High Court considers it is more likely than not that the offence was a significant contributing factor in the person's acquittal. If someone is acquitted because they bribed the judge or police, got someone to perjure themselves, threatened jurors, manufactured evidence or conspired to defeat justice, and is convicted of this, there really is no reason we shouldn't get a second go at sending them to prison for what they did the first time.

The other one, however, is very different.

Whilst the Law Commission did consider whether we should have a new and compelling evidence exception, it rejected one. And it was this aspect of the Criminal Procedure bill that caused sufficient alarm in the Crown Law Office that the bill received its negative report from the Attorney-General.

It doesn't mean that if a prosecution fails the first time, the Police can just have another go, but it is a vast change from the law that has operated for centuries – new and compelling evidence will be a ground upon which police can re-investigate, and ultimate re-charge, acquitted defendants.

The laying of charges against someone, and bringing them to trial – with all that entails – is one of the greatest impositions of state power there is, and there are very good reasons for not letting them do it repeatedly.

The provisions do only apply to offences where the maximum penalty is at least 14 years imprisonment, and the evidence must be both new (i.e. not used at the first trial, and could not, with the exercise of reasonable diligence, have been used at the trial) and compelling (i.e. a reliable and substantial addition to the previous evidence that implicates the accused with a high degree of probability). Moreover, the police cannot continue an investigation into an acquitted person without prior consent from the Solicitor-General, and can only actually proceed to trial if the Solicitor-General convinces the Court of Appeal that it should. It can only be used once – the police can't just keep finding new and compelling evidence – and is not retrospective.

Intriguingly, there was a National Party supplementary order paper that would have removed the new tainted acquittal rules, and restricted the new and compelling evidence rule to fresh DNA evidence. As a matter of practicality, the exception may well be limited to evidence obtained through advancing technology – most other evidence (new witnesses etc.) probably could have been found with reasonable diligence at the time.

Moving trials to the District Court
This is the aspect that led the Chief High Court Judge to call for urgent action in the passage of legislation (and I'm pretty sure it was the only matter over which he publicly sought action). It allows for various offences that currently may only be heard in the High Court to be heard in either the High Court or the District Court (and allows for the Government to change these by regulation – something Parliament's Regulations Review Committee came out against). I believe it is this power that Justice Randerson hoped would be used to clear a backlog of cases in his court.

At present all trials in which a life sentence is a technical possibility must be heard in the High Court. This includes pretty much all offending (other than mere possession) involving methamphetamine and other class A drugs. Even small time dealers – selling a few (is it hits?), who will get at most a few years, have to be tried in the High Court, and it's not really the best use of High Court time and space. It's serious offending, sure, but not so serious that they can't be heard by District Court juries (which, after all, already hear most rape trials).

Criminal Disclosure
This is an aspect of the bill I haven't looked into too closely. It involves a major overhaul of our current laws relating to criminal disclosure, and creates a standalone Criminal Disclosure Act, that seeks to codify a range of statutory and common law obligations that the prosecution has toward the defence.

I don't think there is too much controversial about it (except to the extent that it may re-state already controversial law in one place) but I welcome any input in the comments thread. At the least it's not as interesting from my perspective – not really raising important issues about high principle in the way that double jeopardy or majority verdicts do – if anyone has concerns, or would like a second look at an aspect of the new regime I'm happy to continue the debate.

Oral Depositions
This is one aspect that has gotten a reasonable going over in other places – it removes the automatic right of defendants in indictable proceeding to question prosecution witnesses during a pre-trial hearing, and most will proceed on the basis of written statements of evidence. Judges will be able to order in the interests of justice in a particular case that oral evidence may be taken, and the defence will be permitted to argue that this should happen. As it's had a good showing, I'll add only one thing – the explanatory note of Chester Borrows' proposed amendment that would have reinstated oral depositions; it's a concise distillation of the arguments against the proposal to get of the right to an oral depositions (he seems to be making a habit of having the rug pulled from under his proposed amendments):

Oral pre-trial hearings frequently remove complexities thus narrowing the issues and often shortening trials. The display of evidence often results in guilty pleas by defendants and/or accommodations by the prosecution, which may also lead to guilty pleas or withdrawals of charges. As a result there are fewer trials, trials may be shortened and the entire process streamlined. All of this would be lost if the current legislative provisions are repealed...

Everything Else
The more minor details, while important, all seem reasonably self-explanatory or less interesting, and I'm happy to leave it at bullets for the time being.

We're not alone in making many (any?) of the major changes this bill entails. Majority verdicts are common in other jurisdictions (wikipedia tells me Scotland has 15 member juries where 8 is all that is needed to convict), and countries with inquisitorial judicial systems (i.e. most of them) have different conceptions of double jeopardy to begin with. Unfortunately, much of the rationale the Government seems to be relying on in its case for change is that other jurisdictions have already made such changes (which led to the title of this column). I want something better than that.

The legislation is well advanced. It may have taken a while (the Select Committee report was from the last Parliament!), and it's now too late for Parliament to change its mind over double jeopardy without changing its rules (the committee of the whole stage began over a year ago and the criminal disclosure regime and double jeopardy stuff went through intact), but a little extra public debate seems warranted. What do you think?

P.S. For those who haven't read it yet, I recommend Steven Price' short post arguing that the Sensible Sentencing Trust has committed a criminal contempt of court. I think Steven finds more contempts of court than David Farrar finds breaches of the Electoral Finance Act, but this one is particularly delicious.

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It's time for a time for a change | Jun 01, 2008 15:00

In recent weeks calls for a re-think on MMP have resurfaced. National has re-iterated its policy of asking the public what it thinks of MMP, and there have been the usual responses - those who complain about unelected MPs lacking public mandate, those who wonder why the promised re-vote on MMP has taken so long to come about, and those who accuse proponents of alternative voting systems of "hating democracy". None of this is surprising.

What has somewhat surprised me is the reaction of the Māori Party to the suggestion.

I realise that the Māori Party considers itself among the "MMP Parties", but it really shouldn't. Its lifeblood is the Māori electorate system. It relies in absolutely no way on the party vote. Whatever Atareta Poananga's hopes, it may never earn a list seat.

And it would thrive under a return to first past the post.

National may be pushing for referendum for a number of reasons - it might secretly want a return to first past the post, because of the greater legitimacy directly-elected representatives bring; it might not care, but figures the promise of a re-vote may pick up a few thousand votes from people for whom it may be a deal-maker. Maybe it figures a move to a less proportional - but still democratic - system will enable a stronger government to take the necessary steps as the country moves forward.

Maybe it's just naked self-interest. But that self-interest isn't terribly different from that of those who seem to oppose going back to the public. If National were pushing for first past the post to give them a better chance to govern, isn't Labour opposing it because it doesn't want National to have a better chance to govern? I can't really fault them for bringing self-interest into the calculus - political parties are, well, political. But that self-interest is exactly why questions around the voting system must be taken away from the politicians. That is why answering such questions belongs with the people.

But I'm wondering why the Māori Party isn't into some of that self-interest themselves. The Māori seats were greater supporters of MMP than the general seats. We cannot know why, but at least in part I think it must be because the then proposed Electoral Act 1993 would do away with the restriction on the number of Māori seats that the Electoral Act 1956 imposed. Before MMP, no matter how many (or how few) Māori opted for the Māori roll there were 4 Māori seats. There were 4 Māori seats when there were fewer than 80 electorates and there were 4 Māori seats when there were 99 electorates. The change to MMP finally saw the Māori seats achieve parity of representation - not only with an additional fifth seat, but with a far higher proportion (5 Māori seats against 62 general seats vs. 4 Māori seats against 95).

If this innovation is not abandoned - and I can't conceive that it would be - a change to first past the post would far from eviscerate the Māori Party (the threat it faces is rather the abolition of the Māori seats). It would strengthen them: practically, the Māori party has an effective limit on its power - it is exceedingly unlikely ever to earn a seat other than a Māori seat - which presently form 5.8% of the Parliament.

There are 7 Māori seats now. And 63 general seats. A 120 seat first past the post Parliament would see 12 Māori seats (and perilously close to 13). Even a 100 seat Parliament would see 10 Māori seats. And the Māori Party would stand a pretty good chance of getting nearly all of them nearly all the time (for the near future, anyway). Rather than a maximum of 7 seats in a 120 (or 121, or 123 seat Parliament), the Māori Party's 3-4% of the vote could generate 10% of seats in Parliament, and in close-ish elections (most other than those like we look to be having now) they'd stand a good chance of holding the casting vote in Parliament: a near permanent hold on the balance of power.

[insert cautionary cliché about weeks, time and politics here]

And of course, any situation in which the Māori Party would fare poorly in a race for the 12 first past the post Māori seats would also be a situation in which they'd fare poorly in the effective first past the post race for the seven Māori seats under MMP (with it probably easier to ensure themselves one or two seats out of the 12, than one or two out of the seven).

Add to this that any move to first past the past makes the argument for abolishing the Māori seats somewhat weaker, and it's a little surprising the Māori Party haven't been more open (at least) to the prospect of a referendum.

Which was of course supposed to be the focus of this column.

It is one of the enduring myths of New Zealand politics that voters were destined to have a further referendum to confirm or reject MMP. No promises of such were made before the 1992 plebiscite or the 1993 referendum. The story appears to stem from PM Jenny Shipley's public musings before the first MMP election (i.e. after we actually chose MMP) - she repeated it a couple of times, and talkback callers and letter writers have been repeating it ever since. It's her legacy as Prime Minister.

But that the expectation arises in part from a myth is not a reason to refuse to meet it. 2011 will our sixth MMP election. 2014 would be our 7th. There is no overwhelming movement for change, but there shouldn't need to be. The electoral system should be of the people and it is right that every so often, the people should have their say, alone in the four walls of the voting booth. Three or four times a century - once a generation - doesn't seem too often to obtain anew a public mandate for the way we choose our leaders (we'd be going slightly early this time, but I think it's appropriate given the change to MMP made last time).

Just as the argument has been made that first past the post is 'undemocratic', the argument can be made that MMP is 'undemocratic'. We know that Zimbabwe isn't a democracy because - no matter how many people want him gone - Mugabe seems to be able to stay. At our last election a number of MPs were thrown out by the electorate but returned to Parliament - is that 'democracy'? Under first past the post, of course, Helen Clark might be Prime Minister even though 99% of the country wouldn't even have had the chance to vote for her, much less vote against.

MMP or first past the post may be more or less representative, or more or less proportional, but neither is democratic, and neither is undemocratic. Electoral systems aren't democratic, countries are. New Zealand is democratic. And a choice between two voting systems cannot make or break that - least of all where that choice is made by the people in a free vote, after a fair fight. The two electoral systems are each perfectly legitimate ways to elect a Parliament and Government - and there are arguments for and against both - competing positions it is for the public to evaluate.

Opening the electoral system to direct public input is not scary. Enough time has passed that people may properly know their opinion on MMP, and the idea of referendums (not referenda) shouldn't become a political football. The electoral system is important, but there are far more urgent things about which the upcoming election should be fought. Our politicians shouldn't be afraid of seeking our views on this matter - and should be wary of pushing their own. And it is fitting - and right - that parties across the spectrum support calls for a new public conversation - with our voices to be heard through the ballot.

I support MMP - I'd make a couple of changes at the margins (a lower threshold, for one, a couple of extra reserved sections, and I kinda like the idea of open lists), but I do not see myself supporting moves toward first past the post, or supplementary member, or STV.

So this isn't about MMP.

It's just time.

It might also be time for a number of questions (referenda, if you will). The public haven't had their say on the term of Parliament since 1990. We've never had our say on a voting age below 18. Or restricting the franchise to New Zealand citizens (we're one of very few countries that allows its permanent residents to vote - any Australian in New Zealand for a month before an election can register and vote).

Even though I'm not leaning toward supporting change on any one of these issues, now seems as good a time as any. And I doubt a later election will be better.

I might lose. I'm arguing for referenda on issues where I pretty much support the status quo, so I can't really win, but I think it proper to ask those who might oppose seeking a new public mandate for our electoral system 'why?'.

Do they oppose a referendum on MMP, because they oppose a referendum, or because they oppose first past the post? For many, I suspect it is the latter, and it is a poor rationale. Fear of being in the minority - of democratic loss - is a appalling reason to oppose democratic input. That way lies dictatorship.

I do not particularly care why National hasn't abandoned its policy of allowing the people to reconsider our voting system. And "reconsider" is a loaded word - I never had the chance to consider it the first time round! Anyone whose first election was 1996, or 1999, or 2002, or 2005, or will be 2008 or 2011 hasn't had a chance. Others will have had their say in 1993 but not in the indicative plebiscite that preceded it. In 2011 - the putative date for the first referendum - only those in their late thirties will have known elections other than under MMP. You'll have to be over 40 to have had your views asked on the length of the parliamentary term.

National's motivation is unimportant. If they're pushing for first past the post, or supplementary member in a referendum then I'll look at the effect such changes might have on them and others. But a referendum doesn't affect them - it affects me. And it's nice to be asked.

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