Academic correcting an academic

July 30th, 2016 at 10:00 am by David Farrar

Andrew Geddis takes the rare but justified step of criticising another academic:

When academics venture into the media to inform the public about their discipline, they have a basic obligation to be accurate in what they say. I’m afraid that Prof. Chris Gallavin has fallen short of this standard.

In an opinion piece published in Monday’s NZ Herald, ProfessorChris Gallavin made a number of suggestions as to how the Court of Appeal should respond to appeals by the killers of three-year-old “Baby Moko” against their 17-year jail sentences. He did so while labelled as “Deputy Pro Vice-Chancellor, College of Humanities and Social Sciences, at Massey University”, so it’s fair to say that his commentary was intended to carry the mana and credibility implied by his academic position. Those of us with the privilege of commenting from such vantages have attendant duties.

Given that, as reluctant as I am to publicly diss a fellow academic who has ventured into the media commentary game, Prof Gallavin’s article so misrepresents both the criminal appeals process and reasons for the original manslaughter verdict that a response is necessary. In fact, I think it operates as an object lesson in the risks of academic commentators writing on contemporary topics without stopping and carefully asking themselves “is what I’m saying about this correct?”

So this is not about disagreement of opinion, but accuracy.

Although it hardly needs saying, let’s begin by acknowledging that the actions of those responsible for Baby Moko’s death, David Haerewa and Tania Shailer, were quite reprehensible. They have met with perfectly justified, widespread public condemnation.

And while they have a legal right to appeal their sentences, it is understandable that many regard both their decision to do so and the arguments they are using in support as adding insult to their earlier injurious behaviour. Nevertheless, our feelings of moral repugnance at their actions ought not to replace important matters of legal principle and process. And those with academic knowledge of those matters of legal principle and process have a responsibility to explain why they matter; or, at least, not misrepresent how they work. 

Unfortunately, however, in his Herald article Prof. Gallavin appears to have allowed the emotion of this case to overcome this responsibility. His first suggestion is that “the Court of Appeal ought to take the unprecedented move of quashing the convictions, and substituting them with murder.”

This move would indeed be “unprecedented”, because it is legally impossible. Under the Criminal Procedure Act 2011, where a sentence (and not a verdict) is appealed a court can only alter that sentence. It has no power to quash a conviction, much less impose a conviction for a completely different offence.

So first inaccuracy.

In his article, Prof Gallavin refers obliquely to the Court of Appeal’s alleged “inherent ability to oversee plea bargains” as permitting such a move. With respect, he appears to have just made this power up out of thin air. It has no basis whatsoever in the governing statute.

No 2.

Furthermore, consider what Prof Gallavin’s call really amounts to. He is, in essence, saying that the judges on the Court of Appeal ought to simply declare Haerewa and Shailer guilty of murder without their ever having been tried on that charge and so having had no opportunity to mount a defence. Such a proposal is entirely antithetical to the very rule of law.

No 3. Conviction without trial.

This same problem infects Prof Gallavin’s later suggestion that the Court of Appeal could alternatively “quash the conviction for manslaughter based upon the plea bargain and leave it then for the Crown to come back with charging them with something else – i.e. murder.” Once again, the Court simply has no legal power to do so on an appeal against sentence brought by the convicted party.

No 4.

To reiterate, Haerewa and Shailer’s horrible actions in killing Baby Moko stir real outrage and anger. But when academics venture into the public realm to comment on such matters, especially when they are explaining to the lay reader how legal processes operate, there is an obligation on them to make sure their contributions are as accurate as they can be (always given the reality of human frailty and the fact that the occasional slip-up will occur).

Prof Gallavin’s errors go beyond such understandable slips made in the heat of the moment. It is regrettable that his discussion of the appeal process is so misleading and gives such a false impression of what the Baby Moko case was about. Given his background as a former Associate Professor and Dean of a law faculty, he really ought to know and do better.

This is what shocked me, that such basic errors were being made by a former law school dean.

Geddis on why you should submit to the euthanasia inquiry

January 15th, 2016 at 6:46 am by David Farrar

Andrew Geddis blogs:

Last year, somewhat to my own surprise, I became quite vocal around the issue of “aid in dying” (or, if you are trying to scare the horses, “euthanasia”/”assisted suicide”). It happened almost by accident. It certainly wasn’t an issue I had given a huge amount of thought to previously; my knee-jerk socially liberal response was that I thought it ought to be permitted with appropriate safeguards and that’s about as far as things went.

However, the case of Lecretia Seales really focused my attention onto the issue. Not only did it raise a number of very important legal issues that fall within my area of academic study, but I could strongly identify with her determination that decisions about how her death should come about should be hers alone to make. That resonated with me at a quite fundamental level.


Having sat in on some of the High Court proceedings, I can only second the Herald’s choice. Seeing Ms Seales being wheeled into the court, clearly drawing to the end of her time on earth, was deeply affecting. It brought home strongly that the judicial proceedings weren’t just an abstract debate about theoretical matters. They were (literally) a life and death issue for a real, identifiable person … who stood for other real, identifiable people in similar situations.

As I’ve got involved with this issue, I’ve also found how real this is for so many people. Some issues only affect a small number of people, but this issue has a real impact on so many.

Of course, Ms Seales didn’t get what she wanted from the Court. Ihad hoped that she might be more successful, but perhaps it is for the best that (as Justice Collins concluded) our elected, accountable representatives must make the call on when and how aid in dying may be provided in this country. Clearly these issues are something that many of us have strong and contrasting views on, so let’s let those views be considered and acted on by people we choose to make laws for us instead of by an appointed ex-lawyer who happens to have been rostered onto a particular case.

That’s all OK, as far as it goes. However, if we’re going down that line of thinking, it then puts the onus back onto us. Because democratic representative government only works like it is meant to if we, the people who live under the laws our representatives choose, take the time and make the effort to participate in it. If we don’t, then it really doesn’t work at all.

So here’s the challenge to anyone with views on how, when and if individuals should be able to choose the time and means of their own death.

Tell Parliament’s Health Select Committee what you think about this issue.

You only have a little over two weeks left to do so – submissions close on 1 February.

This is an issue worth submitting on. Andrew gives some advice:

  • Making a submission is really, really, really easy! Just go here, verify that you are a real person, provide some personal details and then type what you think into the text box. Once you hit the submit button, you’ve done your bit (unless you want to go in front of the Committee to give oral evidence, that is.)
  • You don’t need to be an expert or to know everything (or even all that much) about the topic – part of the purpose of this inquiry is to find out what ordinary New Zealanders think on the issues. So just speak from the heart!
  • If you have a personal story to tell about the hard choices that come at the end of life, so much the better. As Ms Seales showed, this isn’t an abstract issue – real people and real suffering underlie it. But just be aware that a submissions is made public unless you ask (and the Committee agrees) to keep it private.
  • There is no magic formula or wording to use in your submission – just try to write clearly and make your point early in the piece. Remember that MPs are really busy folks who have to give their time and attention to lots of different matters. The more you can help them know what you want, the better.
  • Finally, if you are interested in what those who are still carrying Lecretia Seales’ flame aloft think, you can read it here.

I’m working on my submission in the next week and a bit.

Geddis on the Seales euthanasia case

May 26th, 2015 at 7:00 am by David Farrar

Andrew Geddis and Kathryn Tucker have had an article published in the NZ Law Journal on the Seales case. They believe her case has a high chance of success. Some extracts:

Ms Seales’ application for a declaratory judgment makes much the same statutory scope argument that has been advanced in the United States. Her case turns upon the proper understanding of the Crimes Act 1961, s 179. It states that anyone who “incites, counsels, or procures any person to commit suicide”, or “aids or abets any person in the commission of suicide”, commits a criminal offence.

Whether those provisions cover the case of a doctor who supplies Ms Seales with aid in dying is the question. That is a matter of statutory interpretation. Key to that process is the New Zealand Bill of Rights Act 1990 (NZBORA), s 6: Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

To simplify, s 6 requires a two-step approach (R v Hansen [2007] NZSC 7; Rishworth “Human Rights” [2012] NZ L Rev 321 at 330-331). First, does an “ordinary” or “plain meaning” interpretation of s 179 that criminalises the conduct of a doctor who assists a competent, terminally ill patient to achieve a peaceful death via aid in dying unjustifiably limit any of the rights and freedoms contained in the NZBORA? If so, can the word “suicide” in s 179 be given an alternative meaning that is consistent with the NZBORA?

We need not spend too much time on the first point, as a recent unanimous decision of the Supreme Court of Canada, Carter v Canada (Attorney General) [2015] SCC 5, provides extremely strong persuasive authority that it does so. It found that:

The right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly. Here, the prohibition deprives some individuals of life, as it has the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable (at [57]).

This is a key point. The current ban on euthanasia actually leads to people killing themselves prematurely, as they have to do it while they can still do it unaided. This is not a theory – it is a fact. I know someone who did this. He may have lived another ten years, if he had the option of being able to have a physician assist his death at a time when his condition became intolerable.

In particular, drawing on the significant body of empirical data that has emerged from the Oregon “state laboratory”, the trial court found that when assisted dying is available there is no evidence of harm to patients or to vulnerable populations (Carter, at [25]).

Opponents will imagine up potential awful scenarios that could happen, such as the greedy child killing their parents off with a conniving doctor, to get their money early. But the reality is this has not happened in Oregon. No harm occurred to those vulnerable, instead those in suffering were given a way to have a peaceful end.

Although the Canadian Charter’s “supreme law” status ultimately was rejected in New Zealand, it still provides the model for our NZBORA. Unsurprisingly, therefore, the NZBORA s 8 guarantees each individual’s right to life in terms virtually identical to the Canadian Charter. Furthermore, as Ms Seales’ husband notes, the same issue of premature death arises here in New Zealand: “What Lecretia faces are the horns of a dilemma: kill herself now and rob herself, me and her family of precious moments together, or risk waiting until death takes her, which could be weeks or months of needless, potentially agonising suffering” (

And Lecretia should not be forced to make a choice between an early suicide or what could be months of agonising suffering.

Consequently, it seems almost certain that a New Zealand court, considering the Carter v Canada precedent, would find that a reading of s 179 that prevents Ms Seales access to aid in dying is inconsistent with the NZBORA

That is a strong statement.

This alternative meaning would distinguish between the sorts of intentional self-inflicted deaths we ordinarily think of as being “suicide” (the lovesick teen, the family breadwinner facing financial crisis, etc.) and the act of a competent, terminally ill person who is seeking (as in Ms Seales’ case) to choose a more peaceful death when brought to death’s door by the advance of disease and enduring unbearable suffering. Are these scenarios distinguishable from each other, and can that distinction be given effect under the specific wording of the Crimes Act?

I think that the two situations are very different. Not helping a depressed teenager kill themselves is very different to not helping someone who is facing an agonising death, from avoiding some suffering.

Choosing to suffer less before death arrives can be an entirely rational response to a horrific situation that cannot be remedied. No matter how fervently they may wish to live, their illness has robbed them of that option. The only question is how much suffering will be endured before death arrives. Suffering can be multifactorial, and indeed the experience in jurisdictions where aid in dying is openly available demonstrates this: those who choose aid in dying typically express that they do so because of the cumulative burden their illness imposes. These burdens may include: loss of ability to engage in activities which give life joy and meaning; progressive and inexorable loss of bodily function and integrity; increasing dependence on others for all personal care needs; pain that cannot be relieved; extreme fatigue; severe nausea and vomiting; acute shortness of breath and sensation of suffocation; open wounds with foul-smelling discharge. Choosing a less brutal death ought not be considered suicide.

I agree.

Electoral Law in NZ

February 2nd, 2015 at 12:00 pm by David Farrar

A year or so ago I got a complimentary copy of Andrew Geddis’ Electoral Law in New Zealand to review. I read most of it during a tramp in the Milford Sound!

If you are an electoral or political geek, the book is a must have. It deals very comprehensively with all aspects of our electoral system, from obscure electoral petitions to the operation of MMP. Even though it costs a lot of money, I’d purchase a copy if I hadn’t got one for free. I’ve used it to check things out half a dozen times already.

I don’t agree with all of Andrew’s views on matters electoral, but he distinguishes well between the law and his opinion.

No doubt the next edition of the book will be updated to include the Arthur Taylor electoral petition. Andrew has blogged here that it is doomed to fail, but it may result in some interesting opinions from the court.

Geddis says Labour results worst ever

November 19th, 2014 at 10:00 am by David Farrar

Andrew Geddis writes:

The only thing worse than electing the wrong person as leader of Labour is electing him by the narrowest of margins, by virtue of the influence of a handful of individuals acting under instructions. 

Labour just made the wrong choice, in the worst possible way.

Obviously, I think that the decision to choose Andrew Little over Grant Robertson was the wrong one however it came about … that’s because Grant is a good friend whom I think will one day make a fantastic Prime Minister of New Zealand. So Andrew Little could be the reincarnation of Jack Kennedy mixed with Bob Hawke by way of Michael Joseph Savage (which he most certainly isn’t) and I’d still be lamenting the Labour Party’s decision to appoint him leader ahead of Grant.

So let’s put aside my personal disappointment at the actual decision that Labour has made and instead look at how it has done so. Because it looks to me like it’s created an almighty cluster&*k.

Andrew explains:

First, Little beat Grant by just over 1% of the weighted votes cast. That’s about as close a margin of victory as you can get, achieved on the third round. So the overall mandate for Little’s leadership is … fragile, at best.

Second, Little lost heavily to Grant in both the Caucus and the Membership vote in every successive round of voting. Little was the first choice to be leader of only four of his colleagues (assuming he voted for himself, that is). Only 14 of 32 backed him as leader over Grant by their third choice – meaning 18 of 32 think Grant is a better person to lead them. And in respect of the membership vote, Little was consistently 10% behind Grant at each stage of the vote.

The thing that gave Little the edge, of course, was his support amongst “affiliates” – which means those unions that still retain membership ties with Labour.

Now, I’m not a knee-jerk anti-union person. I am, and always have been, a member of AUS and then the TEU. I served on the local branch committee for a while. I believe strongly in the need for collective organisation and action to protect the rights and interests of working people.

I also accept that the Labour Party has been (and to a degree remains) the political expression of that need. So I don’t have any sort of problem in principle with the union movement having some sort of guaranteed input into the process of selecting the leader of the Party. Plus, of course, its really only the Labour Party’s business how they do things.

But for all that, as a “concerned observer”, I think that the sight of the Labour Party leader being chosen almost purely because of lopsided support amongst the union organisations is a terrible,terrible one for it.

They have a leader rejected by his colleagues and the party members, but there due to the union vote.

It’s not that 75% of the individual members of all the affiliated unions think Little is a better leader than Grant. It’s instead that 75% of those people that each union allowed to decide the issue plumped for Little ahead of Grant. People who, in the case of (say) the Engineering, Printing and Manufacturing Union, basically were told by their leaders that they should vote for the guy who used to be their boss. 

Only one of the six unions allowed their members to vote. The other five had the bosses cast the votes for them. A few score union bosses got to decide the labour party leadership over the wishes of the caucus and the party members.

Try to imagine if the National Party had a leader who had the support of only four of his colleagues. It’s so ridiculous that you can’t even imagine it.

But then imagine if the National Party had a leadership system where the Auckland Chamber of Commerce Board got say 7% of the vote, the Wellington Employers Association Council got 5%, the Federated Farmers Executive got 6% and those three employer and industry groups got to determine the National Party leadership over the wishes of the caucus and/or the membership?

Here’s the real problem for Labour. In a rational party, some senior members or activists would be speaking up and saying “hey our rules have led to us having a leader who failed to win a majority of support from either the caucus or the members, this is a bad look, so we should review the rules”. But no one dares say this in public, even though they are saying it in private.

Fisher on Radio Live on the Warners e-mail

September 16th, 2014 at 10:59 am by David Farrar

Listen to David Fisher on Radio Live talking about the Warner’s e-mail. Some quotes:

He did not present it at the Town Hall. I think that is extraordinary that we have two and a half years of this … conspiracy theory against me and I’m going to present this evidence. Initially it was going to be at the extradition hearing and then he said it will be on September 15 … Dotcom spent two and a half years saying I’ll show you the evidence, and then not. …

I’ve been following thsi case right from the outset Sean and the feeling I’ve had, the belief I’ve had, my honest belief is that there is not a conspiracy theory. I don’t believe there is any evidence that shows Key knew about Dotcom prior to the raid in January 2012

Fisher is the author of Kim Dotcom’s biography.

Another interesting discussion is whether the Internet Party should declare the cost of the Moment of Truth as a campaign expense, and would this push them over the spending limit? Their expenses return is going to be very closely scrutinised and I’d be very nervous if I was the party secretary.

David Fisher said he has no doubt it should be treated as an expense for the Internet Party.  Plunket also interviewed Andrew Geddis on this issue.

Geddis on Banks

June 8th, 2014 at 12:00 pm by David Farrar

Andrew Geddis blogs:

I’m conflicted about how outraged I should be at Banks’ actions. Yes, Banks is guilty of deliberately trying to hide from the world the identity of donors to his campaign that (for whatever reason) he thought might prove embarrasing down the track. This is a bad thing for politicians at any level to do. However, Banks’ opponent at the relevant mayoral election was also busy hiding from the world the identity of those who funded his campaign … he just did it more cleverly by utilising a trust as a conduit. So is the real issue here that Banks just didn’t obey the letter rather than the spirit of the law?

Banks broke the law, and that is not something to be minimised. However as Geddis points out the impact of his actions is no different to what Len Brown did. They both hid donations – just that Brown used a trust to avoid disclosure (which was legal) and Banks did not.

Fourth, it is true that Banks only has to leave Parliament if he gets convicted of the offence he is guilty of (conviction and guilt are not the same thing). But I really, really hope he doesn’t get discharged without conviction – New Zealand has a terrible record of pursuing and punishing electoral offences (the police still haven’t actioned a bunch of complaints from the last election campaign!), and so to (effectively) let off an MP for breaching electoral law would reinforce the message that these sorts of rules really don’t matter. Furthermore, the honourable thing for Banks to do would be to resign now … it’s a bad look for Parliament as an institution to have an MP guilty of an offence that should see him thrown out hanging on in the hope that a court will spare him that indignity. By all means Banks should carry on trying to clear his name with appeals and the like, but he won’t be doing the institution any favours if he insists on his right to remain.

If Banks doesn’t resign, but is convicted, we then have the issue of what happens is his seat is vacated. Here’s the time-frame.

  • 31 July – last House sitting day
  • 1 August – sentencing of Banks
  • 3 August – deadline for Registrar to notify the Speaker of conviction
  • 4 August – vacancy declared in Gazette
  • 14 August – Parliament dissolved
  • 20 August – Writ Day for general election
  • 25 August – deadline for Governor-General to issue writ for a by-election

The media have said that if Banks is convicted on 1 August, then Parliament would need to reconvene to decide not to hold the by-election. I’m not sure that would be necessary, even though it would remove doubt.

S129(4) of the Electoral Act says no by-election is needed for a vacancy that occurs after Parliament is dissolved or expires. Now the vacancy would occur before the dissolution, but the writ would not have to be issued until after the writs for the general election has been issued.

I think electoral officials could use discretion to decide that a general election writ for Epsom supercedes a by-election writ for Epsom, and not to hold the by-election eve if Parliament didn’t vote not to have it. The by-election would not be held before the general election and would be of no consequence.

So if Banks does not resign (which seems unlikely), and is convicted on 1 August, it may not be necessary for Parliament to reconvene to vote not to have a by-election. If the Government just delays the writ until after the writ for the general election, I’d say common sense would see prevail. I can’t see a Judge ever ruling that the Electoral Commission must run a by-election after the general election writs have been issue.

Peters v Geddis

May 9th, 2014 at 2:00 pm by David Farrar

The Herald reports:

New Zealand First Leader Winston Peters is disputing leading lawyers’ views that his party’s rule to fine MP’s who jump ship up to $300,000 is unenforceable.

The rule was was inserted into NZ First’s constitution after Brendan Horan was ejected from the party in late 2012 but refused to resign from Parliament. However it is yet to be ratified.

Constitutional law expert Andrew Geddis of Otago University has said the rule has no legal foundation while public law expert Matthew Palmer pointed out that once an MP left a party they were no longer bound by its constitution.

“With the greatest respect to Mr Geddis, he doesn’t know anything about this stuff”, Mr Peters said this morning.

Yeah, Andrew knows nothing at all on electoral law – apart from writing the textbook used in pretty much every university in New Zealand.

Andrew blogs on why Winston is wrong, and he is right here.

No doubt if NZ First ever tries to enforce their clause and lose in court, Winston will claim the Judges all got it wrong also.

Geddis on Internet Party selections

March 31st, 2014 at 12:00 pm by David Farrar

Andrew Geddis blogs on the issue of whether the Internet Party’s selection rules comply with the obligation in the Electoral Act for them to be democratic. He first points out that regardless of the rules, they can get registered:

There are two separate points here. The first is whether the Internet Party’s rules governing candidate selection are consistent with the Electoral Act’s requirement that parties use “democratic processes” when choosing who will stand under their banner. The second is whether that first question is at all relevant to the Party gettting registered. I’ll answer them in reverse order. …

One is that this obligation applies to registered parties. In other words, for it to kick in, the party already must be registered with the Commission. (In fact, a party doesn’t have to have any rules at allbefore being registered, as it is only required to provide the Commission with a copy of the party’s rules a month afterregistration.) And when it comes to the Commission carrying out the party registration process, it has no legal authority to look at a prospective party’s candidate selection rules (assuming these exist). 

So the Internet Party can definitely get registered. So how can they be held to account in terms of if their rules are democratic enough:

The only real teeth and claws to this provision is that it gives a disgruntled prospective candidate (or ordinary party member) a ground on which to challenge candidate selection rules (and the way they are applied) in court. But, of course, that relies on there being some individual upset enough to get litigious against the party she or he purportedly supports and wants to represent.

So a member of the Internet Party could challenge the rules in court. Would they have any grounds for doing so?

There are a couple of initial points stacked against any such claim. The actual demands of the Electoral Act are pretty minimal: so long as there is “provision … made for participation in the selection of candidates …  by … delegates who have (whether directly or indirectly) in turn been elected or otherwise selected by current financial members of the party” then s.71 is met. Additionally, the Internet Party has as its legal advisor one Graeme Edgeler, and I’d be very, very loathe to think that he’d allow the Party to run under a set of rules that aren’t consistent with the law.

Having said that, however, I think he might just have done so (or, at least, will do so if and when the Internet Party is registered with the Commission under its current set of rules).

That is significant. Geddis is saying that he thinks there is an arguable case the rules are not consistent with the law.

The Executive Committee (at its sole discretion) gets to both select who will be on the list and where they are placed on it. The membership gets to rank the Executive Committee’s initial choices, but with the Executive Committee then only required to “have regard” to the outcome of this process when making its final decision.

What, then, is this “Executive Committee”? Well, the relevant point to note for this election is that it consists only of the people who are setting up the Internet Party without any membership input at all.

Also the Executive Committee can not be changed by the membership, as only nominations made by a current member of the Executive Committee are valid. The party founders basically can stay there as long as they want, by refusing to nominate anyone else for their Executive Committee.

So, when it comes time to choose the candidates for 2014, the Internet Party’s Executive Committee will be made up of the self-appointed “founders” of the Party … irrespective of the party membership’s views on their suitability or otherwise. Which means that any initial screening of prospective candidates for the Party’s 2014 list (consistent with rule 12.1), as well as the final decision on the list’s makeup and rank order, will be taken by individuals who have not been (either directly or indirectly) “elected or otherwise selected by current financial members of the party”.

Not very democratic is it.

All of which means that I rather think that DPF might be right when he questions whether the Internet Party’s rules will meet the requirement of s.71 of the Electoral Act (once it is registered with the Electoral Commission) – at least, with respect to how those rules apply for the 2014 election.

It will be very interesting to see who gets appointed to the all powerful Executive Committee.


Geddis on donations

March 10th, 2014 at 12:00 pm by David Farrar

Andrew Geddis blogs at Pundit:

There’s been a bit of lefty gloating going on around the traps aboutPatrick Gower’s interview with John Key on The Nation, in which he sought to draw an equivalence between David Cunliffe’s use of a trust to receive donations for his Labour leadership campaign and donations that National received back in 2010 and 2011 through a dinner held at “Auckland’s pricey Parnell restaurant Antoine’s”.

The fact that the Herald, Fairfax and TVNZ have all ignored the story is either evidence that, like Geddis, they think it is bullshit (my term) or a vast media conspiracy. I think the former considering they have all been covering the Collins story in a critical way.

But much as I would love to grab a pitchfork and torch and follow in behind the crowd all the way to the door of Key’s castle on a bleak mountain top (which is what he lives in, right?), my goddam conscience just won’t let me do it. So I’m going to have to break ranks and say, “nice try, but not quite.”

The asserted equivalence seems to be that Cunliffe’s trust lumped together a bunch of money and passed it on to him in ways that did not reveal the individuals who donated it, whilst the “Dinner at Antoine’s” likewise generated a bunch of money from individuals that then got passed on to the National Party without anyone getting to see who really gave it. That’s true enough. But it’s a superficial and misleading similarity.

Because the important difference is the intent in each case. 

This is a point I made around 50 times on Twitter at the weekend. A trust hides the identity of the donors, and that is the intent. A dinner does not hide the identity, nor is it designed to. In fact it increases transparency.

Cunliffe’s use of a trust was deliberately meant to enable individual gifts that otherwise would have to be declared to Parliament’s registrar of pecuniary interests (which has a $500 threshold) to remain “faceless”, in that it permitted only the Trust’s gift to Cunliffe to be declared. It’s the exact same strategem that the National Party used for years with its Waitemata Trust donation laundering vehicle – a practice that Labour criticised heavily at the time and enacted the Electoral Finance Act to stop (amongst other things). Which is why Cunliffe’s decision to adopt the same strategy was so very, very silly.

I’d use another word starting with H!

In comparison, none of the individual donations made at the Dinner at Antoine’s (in the form of a $5000 payment to attend) had to be declared to the Electoral Commission, as the threshold for declaring party donations was at that time $10,000 (its since gone up to $15,000). So there was no necessary reason for the donations to be bundled together  and passed over in one lump sum. It just seemed to happen that way because the owner of Antoine’s got the attendees to first pay him for the dinner, then gave a single cheque to National a few days later, rather than the attendees writing out cheques to National directly. If they had done the latter – which would have been entirely legal – then we would not have had any record of the dinner taking place at all.

That is a useful point.  The individual donors were not disclosed, because their donation was below the disclosure limit. And yes if they had paid National directly for the tickets, then the dinner itself would not be disclosed. National could have structured the dinner in a way that it never appeared on the books at all, yet they didn’t. Quite the opposite to Cunliffe.

(Oh, and in case anyone’s wondering how we know how many places any individual person bought, note that National’s financial return for 2010 states that the donation from Antoine’s was made up of “contributions” … so National must have been told who each of the guests at the dinner were. And had any of these guests paid for more than one place at it, their identity would have had to be disclosed under s.210(1)(b) (as the disclosure threshold stood at that time). So the fact that no-one’s name was disclosed tells us that each attendee paid for only one place.)

Yes, and if any of those people had made other donations to National and over a year it exceeded $15,000 they would have been exposed.

That’s why Cunliffe’s decision to use the Trust actually does feed into the whole “tricky” label that National is trying to pin on him. Itwas a strategem to avoid an outcome he did not want, in a way the Dinner at Antoine’s episode was not.

Indeed. The dinner is not a strategy for avoiding disclosure. It is a strategy for getting people to hand over money to the National Party 🙂

The rationale for permitting this is that, in the scheme of fundraising for a political party’s campaign, $5000 is such small change that it doesn’t raise any real concern that you’ll get anything in return for it. Indeed, it’s only once someone gives $15000 in a year that we (now) require the political party tell the world who they are. Anything given below that amount is kept strictly between the donor and the party.

OK. That’s fine. But let’s say that the guest list for the Dinner at Antoine’s got leaked. And let’s say that it turned out six of the places around the table were taken by Chris MollerBruce Carter,Peter CullinaneNigel MorrisonRod McGeoch and Brent Harman. (Note to Chapman Tripp or whomsoever may be asked to look at this paragraph – I am not saying that these individuals were at the dinner, but rather posing a purely hypothetical point for the purpose of academic discussion.) Would it not be of considerable public interest to know of that fact? In particular, would it not be relevant to us that (in the purely hypothetical case discussed) members of SkyCity’s Board of Directors had given National $30,000 between them prior to the last election, so that they could spend an evening in private conversation over dinner with the PM? And then let’s say that each of their wives also had chosen to buy a place at the table in their own names – adding another $30,000 to the pot.

I’m not saying that this was what the Dinner at Antoine’s was all about. It probably wasn’t – more likely it was an amalgam of social climbers and old friends taking the chance to hang out with a guy who is (by all accounts) good company. What I am saying, however, is that because New Zealand has set the legal disclosure level for donations to political parties at such a high level, we may never know if and when such a dinner ever does take place. And that, I think, is a problem.

Andrew supports a lower disclosure limit than $15,000. It used to be $10,000 which I supported but National and Labour voted for it to increase to $15,000 in 2010. But as I pointed out yesterday that is still under 0.5% of a party’s allowable spend during the election year.

In the hypothetical case above, I’d point out that each director and spouse would have to pay for their ticket personally. If one person or company was reimbursing them for the ticket or paying for it, then they have a legal obligation to reveal that.

The other thing worth noting is that a dinner is in fact a transparent fundraising device as everyone there sees who everyone else is. Just send a cheque to a political party, and no one knows but them and you. Turn up to a dinner and everyone else there will see. And I’m sure people would notice an entire board of directors there and their spouses 🙂

So a very good post by Andrew on this issue. His hypothetical is just that. As it happens I think $10,000 is a better limit than $15,000 but I put this in the context of a party’s likely total spend in election year being between $3 million and $5 million.

A silly comparison

February 4th, 2014 at 9:54 pm by David Farrar

Andrew Geddis tries to compare my statements on Labour cancelling the selection of Lesley Soper in Invercargill with National cancelling the Selwyn selection in 2007.

Andrew glosses over the key difference. No one at all has suggested that Soper’s selection in Invercargill was done improperly. The simple truth is that no one else wanted to stand, nominations closed with just her, and then once Eric Roy retired they decided they wanted a different candidate.

The 2007 selection for Selwyn was very different. Disgruntled candidates complained about the process and made allegations of favoritism. There were threatened law suits. If a selection has had procedural failings, then it is quite right to re-open it.

But if there were no procedural issues at all, then an uncontested selection shouldn’t be overturned.

McCready vs Browns

January 17th, 2014 at 10:32 am by David Farrar

Andrew Geddis blogs at Pundit on why he thinks Graeme McCready may not suceed in getting a private prosecution vs Len Brown. The bottom line is that unless you have witnesses coming forward to allege some link between the free hotel rooms at Sky, and his support for their conference centre bid, then there is no proof.

I concur it is unlikely to go anywhere.

The Herald also reports that McCready is considering a private prosecution against Brown’s wife, Shan Inglis:

Mr McCready said he would be in Auckland on Monday to file briefs of evidence in that matter and would also seek legal advice about whether there was enough evidence to lay charges against the Mayor’s wife Shan Inglis.

Mr McCready alleged gifts in her name were a “laundering exercise” to avoid Mr Brown having to declare them on the register of interests. …

Mr McCready said he would prepare two charging documents against Ms Inglis anyway.

“There’s no doubt that there’s culpability. It sends a message to all of these spouses,” Mr McCready said.

“By accepting these freebies, Ms Inglis became a party to her husband’s alleged offending and in the interest of justice she ought to be made accountable.”

Oh for God’s sake, leave the poor woman alone. Hasn’t she suffered enough. Going after family like this is deplorable, unless they have done something wrong and there is no evidence at all she has.

Geddis on free speech

October 29th, 2013 at 3:00 pm by David Farrar

Andrew Geddis writes at Pundit:

Does the right to free speech extend to shouting at a woman to take off her burqa in a supermarket? If not, why not?

A good question.

For example, the Supreme Court, in a couple of cases calledBrooker v Police and Morse v Police (I’ve posted on them in passinghere and here), has indicated that the offences of “disorderly” and “offensive” behaviour now need to be applied in ways that are properly respectful of the rights of individuals to express their (often unpopular or inconvenient) views on social and political matters. Such expression should only be criminalised where it poses some threat to public order that exceeds the bounds of what a properly tolerant citizen who is mindful of the rights of others should have to bear.

The threshold for speech to be criminal should be very high indeed.

Now, here’s the question for us (where “us” are nice liberal folks who share in the positive values of tolerance and respect for others). Why should Ms Rappard’s particular expression of views that we find quite distasteful attract a criminal conviction and fine?

Well, it can’t be the views themselves, can it? Because if it is, can we distinguish Ms Rappard’s actions from (say) a Maori kaumatua who tells a visiting tourist to take off a t-shirt that he believes has an image that misappropriates or demeans part of tikanga Maori?

Well, maybe we could do so, on the basis that the burqa has a particular religious importance and meaning for the student above and beyond that which a tourist would feel for a mere t-shirt. However, isn’t it precisely that religious importance and significance that so upsets Ms Rappard? So the symbolic value of the burqa works both ways here – it both increases the impact of the expression on the student, but also increases the “value” of the expression to Ms Rappard. How can we privilege the right of the student to wear what she wants for religious reasons over Ms Rappard’s right to express her views on that student’s public attestation of her faith?

I agree saying take off your burqa should not in itself be something you can not say.

So if it isn’t the views in and of themselves that warrant criminal sanction, maybe it’s the way that they were expressed. No matter how strongly you feel on an issue, approaching a stranger while they are going about their daily business and personally insulting them (“dirty Muslim”) by shouting into their face just ought not to be allowed.

Let’s say that’s the problem here – by targetting the student and personally “attacking” her, Ms Rappard crossed over the line into deliberately victimising her in a bullying manner. (Looked at in this way, the current case has a lot of similarities to this other tricky line-drawing exercise from earlier in the year.)

OK – but this standard then has implications for (say) protestors at the next National Party conference. Surely anyone so incensed at National’s performance in government who walks up to a delegate and shouts at her or him “Tory scum! You should be ashamed of what you are doing to New Zealand!” has acted in an “offensive” a way as Ms Rappard did. Or, again, can we privilege certain kinds of shouted insults (into the faces of ordinary political party members seeking to attend their organisation’s meeting) over and above others (into the faces of students while they are doing their weekly shopping)?

I think you can distinguish the two. Having protesters shout abuse at you as you attend a party conference is par for the course – you are there to take part in a political conference that of course attracts diverse opinions.

However if I was wearing (for example) a National Party t-shirt at my local supermarket and someone came up to me and started abusing me and yelling in my face, I’d be very unimpressed. However I’d tell them to go copulate themselves rather than call the Police!

That’s bad, and I am sorry the student felt that way. But here’s the crux of the matter – whose fault is it that Ms Rappard’s expression had this impact? Is it Ms Rappard’s, because she has so contravened generally accepted values of civility that the hurt caused was both entirely predictable and beyond that which should be permitted? Or is it the student’s, because she is failing to display the sort of resiliance and tough-mindedness needed to live in a society with multiple, conflicting views on how the world should be? 

In other words, who should be expected to be “tolerant” here? Ms Rappard, by refraining from expressing vehemently her views on the student’s religious choices? Or the student, by just sucking up Ms Rappard’s boorish behaviour and carrying on with her life?

A good point.

So here’s the question we (where “we” are nice liberal folks who share in the positive values of tolerance and respect for others) face. Can we find some way to draw a line that allows us to get all the good things we want out of a commitment to free speech, while still saying that Ms Rappard’s particular behaviour ought to attract the sanction of the criminal law? Or, are we forced by our commitment to tolerance and respect for others to agree with Ms Rappard’s assessment of the Court’s verdict?

The guilty finding was an example of political correctness ”gone mad”, she said.

”Telling a woman to take a burqa off is in my mind not offensive,” she said.

I think Ms Rappard is a pretty despicable human being to start shouting abuse at someone just because she disapproves of her head scarf. She should be ashamed of herself. However I don’t think it should be a matter for the Police unless the behaviour crosses the line into threatening.

What would have been better would be if other people at the scene rounded on Ms Rappard and told her how awful her behaviour was.

Andrew Geddis on Privileges Committee

June 10th, 2013 at 4:27 pm by David Farrar

Andrew Geddis blogs at Pundit:

In other words, the first call on this issue is going to be Speaker David Carter’s. And I suspect it’s going to be a pretty tricky one to make. There is the question of whether there is sufficient evidence to suggest that Peter Dunne actually lied when he said he was not the source of the leak. Because while the Henry Report said that it couldn’t rule Dunne out as the leak’s source, it didn’t say he was. So while a number of commentators have joined the dots and concluded he did it (and therefore lied in his response to Peters), there isn’t any official finding that this is the case.  

Furthermore, even if there is some evidence in the Henry Report to support a conclusion that Dunne may have lied when he said he wasn’t the leak’s source, did he “deliberately attempt[] to mislead the House or a committee” by doing so? Recall that he was before the Finance and Expenditure Committee in his role as Revenue Minister, to answer questions relevant to his responsibilities in that portfolio. Winston Peters then began badgering him with questions relating to the Kitteridge Report leak.

Geddis continues:

Given this fact, the question then becomes whether a witness before a select committee misleads it if she or he falsely answers a question that wasn’t relevant to the committee’s proceedings in the first place. Or, instead, did Peter Dunne simply deliberately attempt mislead Winston Peters … in which case, there’s no contempt of Parliament involved. Because contempt relates to the work of the House of Representatives as an institution, not to the individuals within it: it isn’t, for example, a contempt of Parliament for an MP to tell a barefaced lie to another MP during a public debate on the campaign trail … but it is for a Minister to lie to an MP who asks her or him a question in the House.

So there’s an at least tenable argument that even if you think Dunne lied, he didn’t lie to the House (or a committee of the House). I which case, there is no contempt and so no question of privilege to be considered.

I agree it i going to be a tricky call to make. No doubt if Carter declines, he will be attacked by the Opposition as Geddis notes:

Hanging over all this is another issue, however. It isn’t even a week since the Speaker, David Carter, made his decision that United Future could continue to be recognised as a party for parliamentary purposes. As I noted in this post, and as others have noted elsewhere, the reasoning for that decision is  somewhat odd. Furthermore, it caused a (probably overdone) eruption of opposition anger against the Speaker. In the light of this, can David Carter really afford to find that the complaint against Peter Dunne doesn’t involve a question of privilge? What future for his role in the Speaker’s chair if he is seen to make two quick rulings in Peter Dunne’s favour?

I would hope the decision is made on its merits, not on how it will be perceived.

Geddis cries foul

May 20th, 2013 at 10:53 am by David Farrar

Andrew Geddis at Pundit blogs:

You might need a moment to let the implications of this sink in. By passing this law, Parliament is telling the judicial branch that it is not allowed to look at a Government policy (not, note, an Act of Parliament) in order to decide whether it is in breach of another piece of legislation enacted by Parliament (the New Zealand Bill of Rights Act 1990). In other words, the judiciary’s primary function – to declare the meaning of law and its application in particular cases – has been nullified. Furthermore, the judiciary’s role as protector of individual citizens in terms of ensuring that they are being treated in accordance with the laws of the land has been removed. While the stakes may be small in the immediate case, this is about as big a deal as it gets in terms of our constitution.

Now, I sort of get why Tony Ryall (the Minister in charge of this bill) wanted to do this. Trying to come up with a policy on who does and doesn’t get money here is probably pretty complicated. And health dollars are a finite resource – everything that is paid over to family caregivers means less services somewhere else. So having the threat of the judiciary coming into this mix and upsetting whatever compromises he comes up with over the next few months when he finalises the family care policies would be a real pain in the backside. You can even argue, as does Attorney General Chris Finlayson in his New Zealand Bill of Rights Act assessment (which I’ll get to in a moment) that the courts were wrong to intervene in the first place.

After the court decisions, the Government decided not to appeal to the Supreme Court  and pay family members who care for disabled members of their own family. The Budget provided funding to do this.

I am one of those who have some disquiet that we have introduced a precedent of paying people to care for their own family members, but the courts ruled that if you can pay someone else to be the carer, then the parents should get paid also.

So as Geddis said, working out who qualifies in caring for a family member is complex. How do you define what level of diability etc. But is the Govt’s response appropriate? The Attorney-General said:

Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.

Geddis concludes:

And yet this declaration itself was not enough to stop the National Government using its numbers in the House to rush this Bill through all stages of lawmaking and onto the statute books in a single day.

So there you have it – another day in the life of the Government of the nation and the laws made by the Parliament it commands.

I think we could have a good debate about whether this policy should or should not be reviewable by the courts. But the point is we are not getting to have that debate. By passing the bill through all three stages under urgency, it means the debate never got held.

The bill should have gone to select committee, so submissions could be held on whether the law change was reasonable, in exchange for the funding now granted by the Government and Parliament.

National’s use of urgency has been very restrained for the last two years. In fact they have not gone into urgency at all since August 2011, until this month. That is a probably a record. Of course the provision for extending sitting hours helps.

The urgency for the GCSB bill was fine with me, as the urgency applied to the first reading only. It has been referred to a select committee.

Some of the bills passed through all three stages after the Budget were appropriate to do so, such as the petrol tax hike which was announced a long time ago, and excise tax increases never go to select committee (I think). The fix to the Crown Minerals Bill was also arguably okay, as it was just fixing a drafting error.

But I can’t see any reason for this bill not to have gone to select committee. Urgency should not have been used to pass it through all its stages. The clauses to remove the ability of the courts to review the policy should be submitted on and debated – even if it delayed the implementation of the payments to parents as caregivers.


Geddis on adoption

March 25th, 2013 at 9:00 am by David Farrar

Andrew Geddis has a very informative blog post on the impact of Louisa Wall’s Marriage Bill on the adoption act. Professor Geddis writes:

A LGBT individual already may adopt a child under the Adoption Act 1955. Take the example of a lesbian woman who has a 6 month old nephew who is orphaned in a car crash, with that woman being named as the child’s guardian in the child’s parent’s will. That woman already can apply to become the child’s “parent” by way of a sole adoption order under s.3(1), and her sexuality will not be an issue in deciding whether or not such an order should be made. 

This is a key issue. There is no current ban or even reference to sexuality when it comes to adoptions. The only difference in the law will be both partners in a same sex relationship will be able to adopt (if they are married), rather than one partner adopt and the other become a guardian.

Last year there were only around 50 “stranger adoptions” in all of New Zealand to married couples. There are far, far more couples (straight and same-sex) wanting to adopt than there are children put up for adoption. So even when married same sex couples are permitted to “stranger adopt”, the number of children placed with a same sex couple will be vanishingly small.

I doubt there will be even one a year.

Consequently, the true impact of the change wrought by the same sex marriage law is to open a route for same sex couples to jointly adopt a child under s.3(3). Because a married same sex couple will be “spouses” in terms of the Adoption Act (just as married straight couples are now), they can go to court together to seek an order that they both be recognised as the parents of a particular child.

Again, that is the only real change. Instead of one partner being the adoptive parent and one being a guardian, they’ll both be adoptive parents.

Louisa Wall says much the same in the NZ Herald:

The only change that will occur if my bill passes is that if a couple marry, they will be deemed “spouses” and they qualify as joint applicants for an adoption order. That means both parents will have the same status under the law …



Geddis praises Collins

January 19th, 2013 at 7:00 am by David Farrar

Andrew Geddis blogs on the criminal mistreatment issue. He sums up the proposal:

A prisoner is in jail serving their punishment – doing the time for their crime. Whilst in jail, they are mistreated … in a way that breaches the rights guaranteed to all New Zealanders under legislation. They then get monetary compensation (only after all other means of remedying the situation have failed). That compensation first pays any debt they owe to any person they may have harmed through their crime – assuming there is such a debt in place.

And then the Government takes back the rest of the compensation and uses it to bolster the account it uses to pay for the support of victims of all crime.

So, in essence, the Government is proposing to fund a system of helping crime victims with money that it pays to prisoners after mistreating them whilst they are in its custody. And it will take that compensation away no matter how grievous the rights breach the prisoner has suffered, and irrespective of whether the crime that put the person in prison caused any individual any loss at all.

He states:

But to go from those propositions to a solution that prisoners have no right to receive compensation for harms caused to them by the State, but instead must pay it over to help society meet its obligations to crime victims, is to in effect say that prisoners are not people. And that is wrong.

That is why I’m pleasantly surprised to see Judith Collins essentially agree with me and announce that she won’t be following through with Simon Power’s proposal, but rather moving to make permanent the existing claims system. …

Quite right. So credit where credit is due – my first words of 2013 are praise for Judith Collins.

Judith’s opponents sometimes try to paint her as one-dimensional, but if you look at her overall track record in both Police and Justice, I believe it is in fact quite sophisticated  in balancing up the various rights and responsibilities of those involved in the justice system.

Three law professors on Fisher v Binnie

December 20th, 2012 at 8:15 am by David Farrar

I called yesterday for more focus on the substance of the Bain issue – mainly whether or not Fisher’s criticisms of Binnie’s report are justified and substantial, and wanted to hear from legal experts rather than those with a vested interest.

Was pleased to have commenters discover or point out that no less than three law professors have actually commented publicly on this issue. And it appears they have all concluded that they agree with Fisher’s critique. Let’s go through them all.

First, there is this video on TVNZ with Otago University Law School Dean Mark Henaghan. Definitely worth viewing.

Then the ODT report:

Having read both reports, Prof Henaghan said a main issue of concern with Justice Binnie’s report was whether it relied on the onus of Mr Bain proving his innocence, rather than the Crown proving his guilt.

”In this case, it is not a criminal trial. If you are asking for compensation the onus is on you to prove you deserve it and that was one thing Robert Fisher was worried most about in respect of Justice Binnie’s report.”

He thought Dr Fisher’s recommendation to have a revised report drafted and opened for feedback from all involved was sensible, and anyone preparing such a report could at least benefit from Justice Binnie’s ”thorough” compiling of data.

Tapu Misa reported:

The Otago University law professor, Kevin Dawkins, told Radio New Zealand last week that he agreed with Robert Fisher’s criticism that Binnie failed to consider circumstantial evidence and the way we in New Zealand approach it.

Professor Dawkins said Binnie’s dismissal of individual pieces of evidence was problematic and “corroborates the Minister of Justice’s conclusion that the finding in the report is not supported by robust reasoning and analysis”.

He also agreed that Binnie incorrectly imposed the burden on the Crown to prove Bain wasn’t innocent, when the onus of proof should have lain with David Bain.

Also ZB reported Dawkins:

Otago University Law Professor Kevin Dawkins says there’s an ongoing concern in the Fisher review, that Justice Binnie was more inclined to believe David Bain’s version of events, than the Crown’s.

“I think there were parts of Justice Binnie’s report which indicate an inclination to find David Bain innocent on the balance of probabilities.”

Kevin Dawkins says Ian Binnie may have been confirmed in his view by the verdict of the jury in David Bain’s retrial, but that point isn’t relevant in this inquiry.

And finally we have Andrew Geddis. He has blogged extensively on this at Pundit. he is very critical of Judith Collins over not giving Bain’s camp a copy of Binnie’s report, and the way Fisher was commissioned. However he also gets into the substance of Fisher’s criticisms and his main conclusion:

I think Fisher’s core criticism of Binnie’s approach to the physical evidence is right.

And in detail:

But how and why Binnie thought this footprint evidence (put together with the timing issue, and the no blood in the shoe point) was stronger than the combinedevidence that pointed towards David Bain’s guilt we’ll never know – all we know is that he says he considered the matter and came to that conclusion.

And that is a problem, because it is only in the overall “thickness vs sharpness” analysis that you can reach an overall assessment on the balance of probabilities of whether David Bain is innocent. So I think Fisher is absolutely correct in this aspect of his criticisms: even if Binnie really did do what he says he did (and remember, an absence of evidence is not the same as evidence of absence), we needed to see him doing it in order to be fully satisfied about his conclusions.

So, yes – for all the problems that I have with the way Fisher’s review of Binnie’s report was commissioned and framed, Collins was right to conclude from it that Binnie’s report is not a safe basis for concluding that David Bain is innocent. Having read that report, and Fisher’s critique, and Binnie’s response, that is the conclusion I myself have come to.

So there seem to be three options going forward:

  1. Pay Bain compensation, despite the documented inadequacies of the Binnie report.
  2. Do not pay Bain compensation, on the basis that the Binnie report has failed to make the case that he is innocent.
  3. Ask someone to do another report on Bain’s likely innocence, and make a decision on compensation based on that.

I don’t think anyone expects (1) will occur. Nor should it occur.

I think (2) would be rather unfair to David Bain. It is not his fault that Binnie’s report was sub-standard. He shouldn’t lose his chance for compensation because of it.

So inevitable we need another report. As some have noted it can use as a starting point, the evidence collated by Binnie.

But who should do it? You have a double challenge. First to identify someone acceptable, and secondly to convince them to do it – considering the toxicity of the environment around this now.

Geddis blogged:

So maybe the only way through this is to give the job to more than one person. As my Boss at the Otago Law Faculty, Mark Heneghan, has suggested, “at least with a panel of judges they can reality-check each other and make sure they are not being influenced by one thing.” And as I make it a policy to never disagree with my boss, I’m going to suggest that this is a brilliant idea from a fair-minded, highly intelligent and devastatingly good-looking man.

The idea of a panel is not a bad one.  Maybe two NZ Judges or QCs who have had nothing to do with the case, and one Australian?

If you have a sole reviewer, and they reach a different conclusion to Binnie, then the Bain camp will criticise that as having hand picked a favourable reviewer. But if you have a panel, it is much harder to criticise it – and it worth recalling appellate benches are always panels.

Of course a reviewer or review panel may come to the same conclusion as Binnie – and that is fine, so long as their report correctly sets out why, and the tests they applied.

Geddis on parliamentary privilege

December 1st, 2012 at 3:00 pm by David Farrar

Andrew Geddis blogs on the issue of privilege for what civil servants say to MPs:

The central issue that the Privileges Committee is considering is relatively straightforward to understand, but tricky to resolve. It arose out of the Supreme Court’s decision in Gow v Leigh – a case I discussed in a previous post here, so won’t cover in detail again. In the course of that judgment, the Supreme Court ruled that the absolute privilege against any legal consequence that attaches to those who speak during a proceeding in Parliament does not extend to public servants who are advising Ministers of what to say to Parliament. Consequently, if a civil servant gives a Minister information about an individual or organisation that is false and defamatory, and the Minister subsequently repeats it in Parliament, then the civil servant potentially can be sued for defamation (even though the Minister cannot be, because the Minister enjoys absolute privilege with respect to her or his remarks).

I’m a fairly simple guy, and think it is a good thing if civil servants do not tell Ministers things that are defamatory and incorrect. I also think it is a good thing if there are some consequences for doing so.

This fact then means that the sole justification for extending absolute privilege to the public servant when providing information to the Minister lies in the consequentialist-based harm that may be done to that institution if public servant’s do not have the benefit of that privilege. In other words, if public servants don’t feel able to speak fully and freely with Ministers without fear of attracting subsequent legal liability, then they may hedge and trim their communications in a way that denies Ministers the information they need to fully answer questions posed to them by the House.

Obviously, this would be a bad outcome for the House as an institution. But how likely is it to occur? Remember first of all that under the Supreme Court’s reading of the law, public servants still enjoy qualified privilege to protect them when speaking with Ministers (as, indeed, does anyone who is speaking to an MP in the course of their duties). This fact means that unless a plaintiff can prove that a public servant abused that privilege by acting out of ill will or otherwise taking advantage of the opportunity, the public servant enjoys the same degree of legal protection as if the privilege was absolute. Therefore, the only speech that will attract actual liability is where a public servant sees a chance to settle some score with an individual or group that the public servant doesn’t like and gives a Minister false and defamatory information, which the Minister then passes on to the House .

 Well summarised. The fact that such civil servants have qualified privilege is sufficient in my opinion.
I suppose it could be the case that individual public servants become so risk-averse that they deliberately run the risk of sending their Minister into the House with less information than they themselves hold. But I wonder if this fear does not misread public service culture – my observation of “inside the beltway” practice is that public servants are more terrified of being the cause of a Minister’s embarrassment and wrath than anything else in this world. Furthermore, we need to remember what a public servant becoming liable for a defamatory statement to a Minister actually means in practice. The public servant won’t have to hire lawyers and worry about damages. Those will be covered by the public servant’s department. So at most the public servant will be somewhat inconvenienced by having to provide affidavits in defence of the action. And that would seem to be a risk that public servants face on a daily basis, insofar as their advice may result in Ministerial actions that are subject to judicial review and the like.
It will be interesting to see what the Privileges Committee recommends.

Geddis on Cosgrove

July 8th, 2012 at 10:56 am by David Farrar

Andrew Geddis blogs on the Clayton Cosgrove issue at Pundit:

First of all, no-one is accusing Cosgrove of accepting a bribe from Independent Fisheries – at least, they are not doing so out loud. Both Cosgrove and the company adamently deny there was any connection between his introduction of a members bill that would financially help the company (as well as a number of other constituents) and its later decision to donate money to his campaign. Not only is this most probably true in fact, the dual denial means that there is no way of proving it to be false.

Personally I don’t think that there was a pre-condition on the donation.

Second, Cosgrove quite rightly declared the $17,500 in donations to the Electoral Commission – from which we all then were able to find out about the relationship a couple of months ago. True, this action tells against any corrupt relationship existing in fact; you’d have to be a pretty silly (or incredibly brazen) person to openly tell the world that you’ve accepted a chunk of money which was paid to you in exchange for trying to get a change in the law. But the point of declaring donations is to let us make those sorts of judgments about what may or may not have been the motives on each side – if we were to say that simply declaring a donation automatically means that, ipso facto, there cannot be a corrupt intent behind it, then that would have a rather perverting effect on the disclosure regime!

Exactly – this is why we have transparency – so people can judge for themselves if they think there is a connection between donations and (for example) specific policies or acts.

Which brings us once again to the third level of protection. What does the decision to accept a considerable donation from a long-term friend whom you have, in your official capacity as an MP, taken steps to help in a quite significant fashion say about Cosgrove’s internal sense of political morality? By this I mean, what does it say about his ability to scrutinise not only his own motives for taking the money, but also understand how taking that money would look to others? And here I mean not those political enemies who would like to see him taken down, but rather the “average voter” who is assessing the behaviour of her or his political masters? Is it a “good look” to them for an MP to be in this sort of relationship, even if all involve protest the purist of motives?

This is the point I made yesterday. Wise MPs do not lobby on behalf of mates, do not push private legislation that provides significant financial benefits to their mates, and do not then accept large donations from a mate whose financial interests would have benefited from your advocacy.

One last point. I note that Cosgrove is alleging that this story has been “shopped around” by Gerry Brownlee in an effort to distract from a court case being brought by Independent Fisheries against his use of CERA powers to rezone their land. That may well be true. And that case also may well reveal what some of us said from the outset – giving Brownlee or any other Minister extensive powers to override existing property rights and legal processes in order to “help Canterbury” carries considerable risks of their misuse.

However, the motives for drawing attention to Cosgrove’s relationship with Independent Fisheries do not touch on its basic rightness or wrongness. Or, to put it another way, the problem isn’t so much that people are noticing the donation to Cosgrove, but rather that the donation was given and accepted in the first place.

It shows how defensive Cosgrove is on this issue, that he is trying to shift attention by alleging that the story has been shopped around by National. The Nation have confirmed that they have had no contact with Gerry Brownlee’s office on this, and the first I know what the story was about was watching The Nation.

The ironic thing is there is an MP who is known to do smear campaigns about donations – even when there haven’t been any. That MP may be behind this “smear campaign” also. It is a Mr Clayton Cosgrove. Back in June 2008 he said:

On June 3, Mr Cosgrove received a letter from a member of the Institute which indicates that deals have been done between some senior industry members and the National Party to wind back this consumer protection legislation. “The letter said the REINZ president Murray Cleland recently told members at a regional AGM that if the National Party won the election it is likely to change the legislation to suit the Institute,” he said.

Mr Cosgrove said this raises serious questions over what deals have been done. “The National Party has confirmed it has met with REINZ representatives so now it needs to come clean on when this happened, who was present and what promises were made. National should tell us if any election campaign funds have been solicited or received by the Party, its MPs and/or its candidate, and whether any contributions have been made by REINZ and/or its member companies,” he said.

So when National advocated something, Clayton went out there and effectively alleged they were doing it due to donations from REINZ or its members (something that in fact was not true – he just made it up, and posed it as a question), while in this case the donation is a matter of record.

But to get this clear, the media asking Clayton questions about a donation from a property company which would have received huge financial benefits from legislation he proposed is a smear campaign, but him alleging National is in the pocket of the real estate industry (whom did not donate to National) is not a smear campaign. It is only wrong if it is not Labour doing it.

Purchased momentum

June 13th, 2012 at 3:30 pm by David Farrar

Catherine Delahunty writes:

Asset sales petition gathers momentum

Of course it has momentum. That is because the Greens are spending around $80,000 of taxpayers money to pay people to collect signatures for it. It’s an appalling use of parliamentary resources and goes against all their arguments about keeping money out of politics.

Andrew Geddis did a very good post on this issue for Pundit:

There then is a broader problem with a political party so deeply involving itself in the CIR process. When this was set up, it was designed to be a way in which broader civil society can send a message to parliamentarians on issues that it thinks important enough to mobilise around. (Actually, it was designed to be a sop to public outrage with politicians that might be enough to stop them voting to change the electoral system … but never mind that for now.)

So to now have a political party effectively bankrolling the process of forcing a CIR represents something of a distortion of its intent. (I note that Labour is somewhat implicated in this as well, albeit without apparently providing the same financial muscle.) Essentially, it is turning CIR’s from expressions of the views of a self-organising general public into yet another campaign tool deployed to advance the particular interests of organised political parties that are funded through public subsidies.

The Greens and Labour are just using the CIR as indeed a campaign tool. Then the hypocrisy:

First, it becomes pretty hard to rail against the influence of money in politics when you yourself are spending money trying to influence politics. For example, the Green Party’s policy proposal on campaign finance reform reads:

No person or entity can donate more than $35,000 to a political party in any twelve month period. This would need to include rules to make it illegal to split up large donations into lots smaller than $35,000 to avoid this cap.

So why exactly is giving more than $35,000 to a political party to spend on trying to achieve political outcomes A Bad Thing, whilst spending $50,000 (at least) on trying to achieve political outcomes is A Good Thing?

In other words it is bad thing to do, except when the Greens do it.

Anyway I am still waiting for Labour and Greens to announce they are implementing the results of the 2009 referendum, which to to change to the law so a parental smack of a child for correctional purposes is no longer a criminal offence. 87.4% of the voting public voted that it should not be.

The worst top court decision?

January 24th, 2012 at 11:00 am by David Farrar

Andrew Geddis at Pundit blogs:

I’ve been asked by a colleague at an overseas law school to contribute to a special issue of their journal. The topic for the issue is: “The worst decision by a nation’s top court of the last 25 years.”

As the Kiwi representative, I’m expected to give a response to that prompt in relation to New Zealand jurisprudence. But I thought I’d throw it over to the knowledgable and opinionated readers of this site to crowdsource their wisdom (or, at least, pick up some suggestions of avenues that might be worth chasing down).

So – in the comments below, what do you think our top court’s worst decision has been in the last quarter century, and what makes it so bad? I’ll be interested to see if there’s any sort of consensus on this question, in the same way as US lawyers virtually all agree Dred Scott, Lochner, Plessy and Korematsu were bad. I’ll also be interested in what people think makes a “bad” court decision in the first place – is it the reasoning (or lack of), or the consequences, or something else instead?

There’s already an interesting thread at Pundit on the issue, but no consensus. If any lawyers reading this have an opinion, feel free to share.

A double fisking for No Right Turn

February 24th, 2011 at 7:00 am by David Farrar

No Right Turn has had a double fisking in the last couple of days. Cactus Kate, a tax expert, has fisked him over his claims of tax dodging by corporates (he failed to even read the notes to the accounts).

And on the other side of the spectrum constitutional law professor Andrew Geddis has politely rubbished his posts about the national state of emergency. We’ll start with that.

NRT blogged here and here that the calling of a national state of emergency is:

National states of emergency are intended for disasters affecting the entire country – wars, epidemics, that sort of thing. Instead, we’re seeing one cynically used for political purposes, essentially for spin. That is a gross abuse of power, and one we should not accept.


Make no mistake: this is a cynical political exercise, all about who gets the limelight (and hence the credit) in an election year. Again, it is a gross abuse of power. But entirely par for the course for National.

Now Professor Geddis has himself been very willing to criticise the Government when he feels they are acting inappropriately with regard to their powers. He criticised the Act responding to the last earthquake and the sacking of ECan. But in this instance he says:

To use a phrase much beloved of I/S himself, I call bullshit.

First up, the declaration of a national state of emergency does not mean that there is now a power to do all the horribly draconian things that he claims can be done in places like Invercargill, Whangarei or other places far from Christchurch. All the powers given under the Civil Defence Emergency Management Act 2002 (CDEMA) can only be exercised for the specific purpose of things like “saving life, preventing injury, or rescuing and removing injured or endangered persons”, or “prevent[ing] or limit[ing] the extent of the emergency”.

There is no way that these purposes can be said to exist outside of the immediate environs of Christchurch, so the specter of the police “clos[ing] public spaces in Invercargill” or the like in the wake of this declaration is a complete red herring.

So that puts paid to the so called gross abuse of power.  And as for why make it a national state of emergency:

But what about emergency situations where the resources of a single Group are inadequate to respond? There, help from other Groups may be needed. But getting that help requires those in charge of the affected Group to coordinate with those in charge of others, which is yet another task on top of the many they will have already. Furthermore, all they can do is ask for help – which other Groups may or may not be able to give, depending on availability.

However, now that there is a state of national emergency, two things can happen. First, the Director of Civil Defence Emergency Management can take over the coordinating role between different Groups and centralise that process. Second, the Director can instruct other Groups to initiate their own emergency management plans and thus release resources to help Canterbury.

These powers may not be as earth shattering as empowering the police to shut down central Invercargill, but neither are they insignificant. Indeed, it isn’t going overboard to say that the fate of people’s lives may depend on the bureaucratic niceties involved in the declaration of national emergency.

Geddis concludes:

So, like I say – I/S’s posts regrettably are bullshit. I rather fear that he’s fallen victim to exactly the disease he accuses John Key and National of … being so partisan in outlook that everything must have a motive other than the obvious one.

Sometimes even politicians just want to do the right thing.

Cactus Kate is equally blunt when it comes to I/S’s financial literacy. He blogged:

Infratil [PDF] reported a pretax profit of $106 million, but paid only $11 million in tax – an effective rate of 10.4%

This was part of a series to make everyone think that all these evil corporate are evading tax and not paying their fair share. He even got Trevor Mallard blogging in agreement, which tells us much about Trevor’s financial literacy. The difference is NRT is just a blogger, and Trevor was once an Associate Finance Minister.

Cactus Kate explains:

If you click on Infratil’s accounts for example (they are the only one I could find with a comprehensive explanation of their tax balances) on page 53 you will see that here they take the net profit before tax and show a line-by-line adjustment on the tax numbers. The explanation of deferred and current tax is even made by the company in its accounts at page 45 in relatively simple terms.

The explanation for Infratil not paying the full company tax rate is a massive $30.4 million write-back in the “Net investment realisations/impairment”.

It had absolutely nothing to do with tax avoidance, evasion, shirking of their duty or offshore structuring. No cheating. All accounts are audited and signed off by professionals using NZ accounting standards.

And the killer blow is:

If NRT looked at pg 53 he will see that for the 2009 year Infratil made a net loss of $93.8 million before tax, yet had a tax expense of $34.6 million? How can a company making a loss NRT and pay all that tax? Based on the raw presentation of his data this makes no sense at all does it? Why? Because you have to read the data contained in the tax reconciliation and interpreted what has happened in the company.

Perhaps before No Right Thought engaged his fingers defaming a very wide range of directors in New Zealand as “cheating” on company taxes, he may just like to learn how to read and engage his brain and find out just why each corporate hasn’t paid the full tax rate for that particular year.

When you get fisked by both Cactus Kate and Andrew Geddis/Pundit in the same week, you’re not having a good one.

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.

Dom Post et al on name suppression

January 13th, 2010 at 10:12 am by David Farrar

The Dom Post editorial today is on blogs and name suppression. Extracts:

As the internet has transformed the world, the blogosphere within has become pervasive. Anyone with a computer can either read the opinions of people who craft blogs – sometimes, merely illiterate streams of consciousness – or pen one themselves.

That some who cannot spell, let alone write, think that the world is gagging to know their business is as presumptuous as tweeters who think everyone is interested in their self-absorbed lives. Be that as it may.

Some blogs demand attention, in this country those by, for example, David Farrar, Russell Brown and Cameron Slater.

I’m not sure if that means we are excluded from the description of merely being illiterate streams of consciousness!

Attention Slater has now got.

Last month, police charged him with breaching name suppression orders when, on his WhaleOil blog, he posted pictorial clues identifying the accused in two high-profile sexual offence cases. This week, he revealed by way of binary code the identity of a former national figure accused of a sexual attack on a 13-year-old girl.

Nelson police, who laid the latest charges, call Slater’s actions irresponsible, because they fear they might lead to public identification of the victim, whom the suppression order was intended to protect.

Slater is on a mission. He has said, outside the courtroom, that he believes everyone should be equal before the law, that celebrities and the wealthy have their identities suppressed more often and more easily than do ordinary Kiwis, and that the law needs changing.

The Dominion Post agrees. But there are better ways to lobby for a more open court system than by putting at risk the future of a teenage girl.

I agree, but point out a newspaper had already effectively done the same thing.

At the same time, Slater has forced police, perhaps the solicitor-general, possibly Justice Minister Simon Power, Courts Minister Georgina te Heu Heu, and Attorney-General Chris Finlayson, and maybe, later, the judiciary, to confront the fact that the Criminal Justice Act, which gives judges the power to suppress certain information relating to cases before them, needs revision.

Which I believe is likely, on the basis of the Law Commission report and the comments at the time from Simon Power.

In the meantime, it is reassuring to see the Crown Law Office has decided that it can no longer apply the law relating to suppression unequally. At times of egregious breach, the solicitor-general has been keen to go after those in the mainstream media who have broken suppression orders or otherwise committed contempt of court.

For the most part, however, inhabitants of the blogosphere have been merely warned about their cavalier disregard of suppressed information or other transgressions, notably during Clayton Weatherston’s trial for murder.

Either everyone who breaches this law is prosecuted, or no-one is. And were the latter to become the reality, those sections of the Criminal Justice Act pertaining to suppression orders need to be repealed.

I find it quite funny that yesterday we had bloggers such as myself saying that the media are getting away with transgressions, while today the media are saying the bloggers are getting away!

An excellent summary of the whole issue has been done by Steven Price. I won’t do extracts because people should read the whole thing.

Law Professor Andrew Geddis has done a second post on the issue.

Also a number of posts from media lecturer Martin Hirst at Ethical Martini.