A major screw up

September 20th, 2010 at 11:00 am by David Farrar

Andrew Geddis blogs at Pundit:

Parliament’s Law and Order committee has, by a majority consisting of National and Act members, recommended the enactment of Paul Quinn’s Electoral (Disqualification of Convicted Prisoners) Amendment Bill – although they would change its name to the Electoral (Disqualification of Sentenced Prisoners) Amendment Bill.

My first response to this news was wry amusement that despite me being the only submitter in favour (along with Paul Quinn the author), that the select committee went along. Of course that is not due to any powers of advocacy on my behalf, but because it is a National MPs bill.

This proposal is downright wrong in its intent, outright stupid in its design and (if finally enacted) would be such an indelible stain on the parliamentary lawmaking process as to call into question that institution’s legitimacy to act as supreme lawmaker for our society.

Now Andrew is a polite sort of chap. So when he starts bolding his comments, you take notice. It’s a sort of halfway house to shouting in CAPS.

The majority of the Law and Order select committee obviously agrees with him. Why? I have no idea, because the majority says nothing at all about why the basic principle behind Mr Quinn’s proposal is the right one to adopt.

Let me reiterate that. National and Act members of the Committee want to strip literally thousands of people of one of the most basic rights New Zealanders’ – every adult New Zealander – possess, and they say nothing at all about the reasons for doing so.

Now Andrew has a very fair point here. The majority should indeed state their reasons. That struck me also when I read their report.

I suspect the reason why the Committee majority have nothing to say is that there really isn’t any sort of reasoned answer to the case against Mr Quinn’s proposal. The most that those who support it can come up with is that it is somehow “less arbitrary” to disqualify all prisoners than just those sentenced to more than 3 years in jail, it will make life easier for electoral and prison officials, and that prisoners are bad people who just shouldn’t get the same say as you and me.

The link is to my submission. I don’t intend to get into a big debate on the merits of the bill, because it is fair to say my support is luke warm. I don’t see the bill as a priority, and would not normally advocate it as an area in need of change. However as the bill was put forward, I did conclude that the current law of a three year threshold is extremely arbitrary, and that the more principled positions are to either have no prisoners have the right to vote – or have all prisoners with the right to vote. My preference being the former.

Obviously, I think this is a flawed argument – one that flows out of knee-jerk “get tough on crime” rhetoric rather than any sort of reasoned view of penal policy or proper democratic process. But lets say you are the kind of person who takes it seriously. Clearly, three people who you believe shouldn’t get to have a vote are William Bell, Graeme Burton and Clayton Weatherston.

Well, guess what? If the Law and Order committee’s recommendations to the House get passed into law, these three guys – as well as any other murderer, rapist or violent criminal currently serving a sentence of more than 3 years – will get to vote at the next election.

That’s because the committee suggests completely repealing the current disqualification provision in the Electoral Act 1993, s.81(d) and replacing it with this provision:

“a person who is detained in a prison pursuant to a sentence of imprisonment imposed after the commencement of the Electoral (Disqualification of Sentenced 15 Prisoners) Amendment Act 2010:”

See the problem? It removes the legislative provision that disqualifies people presently serving lengthy prison sentences and instead only disqualifies people sentenced to prison after the bill is enacted into law. So, there would be nothing in law to stop anyone imprisoned at the time the bill is enacted from applying to be registered to vote, and consequently casting a vote at the 2011 election.

This is a major screw up. Andrew correctly points out it would in fact restore the vote to every person currently doing a term of more than three years.

The Government should be thankful that Andrew is not a partisan who would be tempted to keep quiet on this flaw until after the bill is passed – when it would be far far more embarrassing to fix.

That’s why I called the majority members of the Law and Order committee “dumb”. They obviously don’t understand what the effect of their recommended amendments would be. How could they have got it so wrong?

Well, the answer lies in yet another abuse of parliamentary process. You might think that a proposed piece of legislation that will amend New Zealand’s electoral laws naturally would get considered by Parliament’s all-party Electoral Legislation Committee, rather than its Law and Order committee. And you’d think that whatever committee considers the matter would receive support from the Ministry of Justice, which has oversight of New Zealand’s electoral laws, rather than the Department of Corrections, which deals with keeping prisoners in jail.

I don’t think calling MPs dumb is particularly helpful, as I think it is more a job for officials to word the bill so it doesn’t have unintended consequences. But where Andrew is on strong ground is pointing out that the Government chose not only not to send it to the specialist electoral committee, it also chose not to have the Ministry of Justice advise on it – Corrections was used instead.

This should serve as a warning for why seeking to avoid using a Ministry just because you may not like their advice is a bad thing.

The Government, and Parliament, owe Andrew a debt of gratitude for pointing out the drafting error which would basically achieve the opposite of what the bill seeks to do.

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12 Responses to “A major screw up”

  1. scrubone (3,099 comments) says:

    I see DimPost goes further and names the National/Act members – apparently they are an “obviously” dumb bunch.

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  2. beautox (422 comments) says:

    Bah. I’d go a lot further than that. I want a “No representation without taxation” bill so nobody who is not a net taxpayer gets a vote. And that includes those who suck on the public teat for a living.

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  3. Pete George (23,565 comments) says:

    Due to the triviality of the amendment maybe it wasn’t given sufficient care and attention, a quick “fix” for a minor nod to the “get tough” constituency becomes a fux.

    Hasn’t one of the bunch, David Garrett, been praised for his work in drafting other legislation? Perhaps he was just another rubber stamper with this.

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  4. James Butler (74 comments) says:

    DPF – you’ve made a quoting error which makes it look like you wrote the paragraph starting “Obviously, I think this is a flawed argument…”, where actually it’s from Andrew’s post. I’m sure you don’t think it’s a flawed argument, given your submission :-)

    [DPF: Ta - fixed]

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  5. JayMal (28 comments) says:

    One thing I cant get my head around is why is prison used as the metric here? You can be sent inside for relatively minor crimes if circumstances count against you (eg, cant pay the fine any other way, no suitable home detention) – but can avoid prison if you cash up (eg, restitution).

    To me the 3 year time limit made sense, it was just singled out the worst offenders. Even better would be to exclude anyone who had served, and was continuing to server, 3 years or more in prison.

    However, this proposal seems even more arbitrary than what it proposes to replace. It should either apply to all people serving any sentence of any kind, or none at all.

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  6. Will de Cleene (485 comments) says:

    Just goes to show that Labour doesn’t have a monopoly on writing bad law.

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  7. jv (16 comments) says:

    Lazy and arrogant are other words that come to mind – from the ouitset it has been both bad politics and bad policy which would be best dumped as a complete cockup

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  8. Rex Widerstrom (5,354 comments) says:

    I don’t think calling MPs dumb is particularly helpful, as I think it is more a job for officials to word the bill so it doesn’t have unintended consequences.

    Oh right, so why don’t we just let an officials committee decide whether or not the proposal is a good idea? We elect these dummies (and pay them handsomely) to represent us – that is to say, to act as we would in the circumstances. And most of us would (I hope… though reading the law’n’order comments here, I wonder…) have taken the trouble to understand what we were recommending. And if we didn’t, we’d have asked at the Select Committee Hearings we’re paid to attend.

    We wouldn’t have just read “prisoners” and “denied”, got a bit of a hard on and said “yes please”, which clearly these dummies have done.

    To use an analogy, if the senior managment of an investment company had recommended some flawed strategy, the Board approved it (supposedly after lengthy discussion) and the depositors’ money poured down the drain, would you now be absolving the company’s board from blame for the disaster because “it is more a job for staff to word the proposal so it doesn’t have unintended consequences”?

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  9. Honest John (191 comments) says:

    So DPF is on the record as being against universal sufferage. All good. File away.

    [DPF: Yep, and also against five year old voting. Also believe it should be citizens only]

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  10. lyndon (325 comments) says:

    FWIW it’s worth I believe the idea with 3 year line was they’d be out of society for a full term and so not in a position to judge.

    These day, if they have a TV they’re probably as informed as a lot of people.

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  11. lastmanstanding (1,297 comments) says:

    IMHO the whole House is a drafting error

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  12. ben (2,380 comments) says:

    Let me speculate on the reason for why National and ACT want to enact this legislation. It is because those being disenfranchised are primarily voting for the other party. Everything else is just commentary.

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