Kiwiblog

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 …

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.

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.

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 .

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.

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.

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.

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.

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.

and

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.

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.

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.

There is a seminar in Wellington on Friday for those interested in electoral funding issues. I encourage interested persons to attend. It is from 1 pm to 2 pm so can be done on your lunch break.

Transparency International (NZ), School of Government and the Institute of Policy Studies iInvites you to a seminar presented by Associate Professor Andrew Geddis, Faculty of Law, University of Otago on

The Regulation of Electoral Funding in New Zealand: What are the big issues?

Associate Professor Andrew Geddis teaches at the University of Otago, and has a particular research interest in the field of electoral law. He is the author of Electoral Law in New Zealand: Practice and Policy, as well as numerous articles on the regulation of election funding.

Friday 29 May 2009
1.00 – 2pm
Railway West Wing 501
RSVP to yvette.blades@vuw.ac.nz

I’ll be there.

Had a great night out on the town in Dunedin last night. Started the socialisation at the University staff club around 3 pm having caught up for an old mate, Ross Blanch, for the first time in around 19 years. Ross was elected OUSA President in 1986 in a by-election when the then President quit to join the Labour Research Unit. Ross was actually declared the loser by one vote on the day voting ended (which prompted much alcohol to drown sorrows), but then the next day in the recount they found one vote had been placed in the wrong pile, and he then won by one vote (which prompted much alcohol to celebrate).

Nowadays he is very respectable managing the Clubs and Socs Centre, and is filling in for a year as the General Manager of OUSA. After drinks at the staff club with Ross and Andrew Geddis, I headed to the Cook to meet bloggers Bryce Edwards and Geoffrey Miller. Geoffrey does the ACT Watch blog “From Douglas to Dancing” and is just visiting Dunedin from Germany where he normally resides. Also in the group was a young Austrian socialist, who is here as part of her “masculinity studies” academic research. What a great research topic I thought – so she gets to study Kiwi males out on the town

After a few drinks at the Captain Cook we went to Mou Very – the self titled Smallest Bar in the Universe.

It was here that the Austrian gained the impression that I am a famous person. As we squeezed through the alleyway, a guy in the alleyway looked at me and asked if I was David Farrar. Then as we went outside, I had a brief chat with the owner (who I had done some polling for in 2007 when he stood for Mayor). Then we sat down on the pavement seats and were engaged in an animated discussion when a gentleman walking past stopped and asked the group if one of us was David Farrar, as he had heard me on National Radio but did not know what I looked like. God – I know my voice can be distinctive but that is weird to be recognised on voice alone. The gentleman was actually visiting from Timaru. Then finally a few minutes after that a IT tech and his girlfriend passed by and greeted me.

We then headed further south to the Octagon and went to Pequeno, where the stag party had been the night before. The waitress of course greeted me by name, further cementing the impression everyone in Dunedin knows me. We then took a corner booth and had several rounds of cocktails.  Pequeno is a gorgeous hidden away bar, and I recommend it thoroughly to anyone else visiting NZ.  The booths even have curtains around them so you can have total privacy. Mind you the staff were a bit alarmed, when we pulled the curtains so we could take a photo of our Austrian colleague’s tatoo!

I am technically half Austrian, so was interesting to talk to about Vienna, as I am planning to visit there next year.

Finally got home on Saturday morning. Partying in Dunedin is proving to be very tiring, and I may need a holiday to recover from it!

Homepaddock has the full range of “If leaders were cars“.

Karl du Fresne blogs on a forum on media reporting of challenging stories such as the N&S Asian Angst, the Clydesdale research on Pacific immigration and the Danish cartoons. Karl makes many excellent points including:

I also expressed my firm belief that in a liberal democracy, the right to freedom of expression is far more precious than the right of a minority – in this case the Muslim community – not to be offended.

I’m not even sure there is a right not to be offended. I can maybe accept a right not to be vilified, but that is a very different thing. And Karl nails it again:

The greatest threat to the healthy process of disclosure and debate that followed the Clydesdale story is the belief that the state must protect us from harmful ideas because we’re not mature and intelligent enough to deal with them. Underlying this is a fundamental distrust of democracy.

Trevor at New Zeal profiles the Trotskyist background of Andrew Geddis, the Labour/Green appointed Chair of the electoral reform expert panel. Andrew is an expert in the area of political financing, and very respected. But when appointments are made without bipartisan consultation, then the background of appointees come under great scrutiny. All Labour had to do was ask National and other parties if they agreed with the proposed appointees, or have any names of their own they wished to propose.

Stephen Franks blogs on how spin should not save crap managers, applying it to the party that has managed NZ’s military, SOEs, and hspitals for the last nine years. A good read.

Labour have learnt nothing from the Electoral Finance Act. It was a partisan attempt to skew the electoral laws in their favour. And they have done it again their announcement of an expert panel to review electoral administration and political party funding.

Electoral law does not belong to Labour. It represents the basic constitution of our country. And once again they are desperately trying to bring in further state funding of political parties.

Labour have announced the expert panel just weeks out from a general election. That is bad enough and a breach of conventions. A panel which reviews electoral law is a bloody significant appointment. But they totally failed to consult the Opposition on its composition. Electoral law issues should be as bi-partisan as possible. Sure at the end of the day, parties may have to agree to disagree, but you do not start off the process by excluding the major Opposition party.

I made this point back in June, when the proposal was announced. I said:

1. The independent experts must be chosen by a super majority of parliamentary parties, not just by the Government of the day. The formula which I like is that any appointments must be agreed to by party leaders representing over 75% of the MPs and over 50% of the parties in Parliament. This means that not only must both major parties agree, but so must at least half of the minor parties.
2. The issues, terms of references and high level process must also be signed off by that super-majority. The most unforgivable crime that Labour and the Greens have done with the EFA is to treat electoral law as a bauble for the winner, rather than a bipartisan constitutional law.
3. Issues referred to a Citizen’s Jury should be in totality, not just a narrow aspect such as taxpayer funding of political parties. It is ridicolous to exclude from consideration all the issues dealt with by the Electoral Finance Act. In fact the EFA should be abolished immediately upon a change of Government, and a citizen’s jury could be used as part of the process of consulting on and determining its replacement.

You see the concept of a panel of exports and a citizen’s jury is not without merit. But as usual Labour’s desperation to skew everything, destroys what should be a worthwhile endeavour. Now that was not just my view back in June, but also Green co-leader Russel Norman agreed partially with me:

David Farrar says some silly National Party things about the citz assembly but he also makes some good points over at Kiwiblog. He says the political party buyin should be as broad as possible – I agree with that but don’t know how to acheive it give the politicisation of the issue.

He also says that the terms of reference should be broad. I agree that they should be broader than simply ’state funding of parties’ but after talking to Jonathan Rose (an expert on citz assemblies) I’m not sure the ToR should be too broad. He says that if they’re too broad the assembly lacks focus. maybe there is a compromise in there somewhere.

So did Russel stand up to Labour and say don’t just appoint a panel without consulting the other parties. We insist you go to National and ask if they have any recommended panelists and what they think of the ones you propose? No they roll over, as usual:

“The Forum will provide much needed independence in the review of election funding”, Green Party Co-Leader Russel Norman says.

Independent? When the Government hand picks the panel that will advise them?

“While the Act was needed to close loopholes in the law revealed at the last election, we need a more inclusive and disinterested process to further consider the bigger picture of political party and election funding.

“We hope that all New Zealanders will support this process and that we can find a place to have some non-partisan reasoned discussion about the future of our democracy.”

Non-partisan??? Fuck all hope of that considering there was *zero* consultation with the Opposition.

Now I am not attacking the integrity of any the three panelists. I know two of them, and they have a lot to contribute in this area. However the Government has obviously chosen the panel, based on the known viewpoints of some of them. Associate Professor Geddis has written supportively of state funding on many occassions and in the Press described the issue as:

This failure to really debate the pros and cons of public funding is regrettable. The public was never given the choice of whether it would rather politicians get their money from large, hidden, private donations or taxpayer grants.

Now if the citizens assembly gets the choice described to them in that terms, I can guarantee you what they will say. Just as if you describe it as “Should parties raise their own money from volunteers and supporters or take it from unwilling taxpayers” you would get a quite different result from the assembly.

Now I am not saying Geddis, would put choices in as crude terms as he did in The Press article. He has written some very useful stuff on the issue. I am not even saying I would not have him on the panel. What I am saying is that the process has been tainted from the very beginning by the lack of consultation with the Opposition.

Also ironically Andrew Geddis now is the victim of something he advocated against:

First, the failure to consult with opposition parties before introducing the Bill to the House leaves it vulnerable to allegations of partisanship. Electoral law should not be, nor be seen to be, a vehicle for one party to gain an advantage over others.

Geddis is right. Maybe he should have made a condition of his participation on the panel, being that the Government consult on its membership.

The panel and assembly should be terminated if there is a change of Government. However I would advocate that a National-led Government look at using a similiar mechanism in reviewing parts of the Electoral Act post-election. And they should consult with and get buy-in from all the parties on the composition and terms of reference of such a panel.

I’m live blogging this from Victoria University where a symposium on MMP is being held in conjunction with the University of London.

An impressive collection of political scientists, lawyers and academics are in attendance, along with a couple of disreputable bloggers.

The symposium is tonight and tomorrow morning. The first session tonight is about the effect of MMP on the parliamentary process, on political parties and on the Executive.

Dr Ryan Malone from the Law Commission is first up, talking on the effect of MMP on the parliamentary process. He has pointed out how MMP makes opposition parties compete harder for media coverage, as there is no longer just one Opposition.

A lot of focus on how a Government has to get the numbers for every Bill now, and also due to agreements with parties may have to support some bills unwillingly – at least to select committee stage.

Another major change has been that the Government no longer has a majority on select committees and doesn’t chas as many of them. This gives more power to Parliament.

Related to this, is that the Opposition and minor parties can also force through hostile amendments during the Committee of the Whole stage.

This has all led to slow down the legislative process. From 1987 to 1996 an average of 160 government bills a year were passed. From 1997 to 2006, it was only 107 government bills a year. For those who want less laws, that is a good thing!

Associate Professor Andrew Geddis is now talking on how MMP has changed the legal status of political parties. Somewhat surprisingly, he is arguing that in fact the status of political parties under the law has not changed greatly due to MMP. There are more regulations for parties, but they remain essentially private bodies.

The old Electoral Act had minimal regulation of parties – just what they could display on election day, and that they could make submissions on boundaries. All the focus was on candidates.

Peters v Collinge established that political parties were largely private bodies, and that their rules were not generally open to challenge – only whether or not they followed them.

Payne v New Zealand National Party this year reinforced that approach, so long as they met the minimal requirements in the Electoral Act 1993 to have some provisions for members to be involved in selections.

Geddis looks at whether the greater regulation of parties (registration, spending caps, donor rules) is due to MMP, or whether the introduction of MMP was just convenient to do so, and these may have eventually happened under FPP. The UK did so in 2000, despite remaining under FPP.

Geddis concludes it was more a growing awareness of the importance of political parties in elections that led to their increased regulation, rather than MMP per se. I had never considered it quite like that before,but upon reflection I think he is right.

Finally in this session Professor Jonathan Boston spoke on how has Executive Government functioned under MMP. He focuses on agree to disagree provisions in coalition agreements, and that these worked fairly well up until 2005.

He describes the 2005 arrangements as novel and unorthodox with a coalition agreement, two supply and confidence agreements and a co-operation agreement. Also how two party leaders would be Ministers but not formally part of the Coalition Government, and how MPs not in the Executive would be Spokespersons for the Government on some issues.

He looks at the principle of unanimity within the Executive or at least the Cabinet (collective responsibility) and concludes it has under MMP been progressively modified and significantly weakened.

Associate Professor Andrew Geddis had an article appear in the latest issue of the Otago Graduate magazine on the Electoral Finance Act. Geddis is one of the leading academics on electoral financing, and one of those most commonly quoted as to the problems with the old Electoral Act. He is generally, I think it is fair to say, a supporter of more comprehensive regulations on political financing.

This makes his comments on the Electoral Finance Act more noteworthy. Some extracts:

• The Electoral Finance Act has caused damage to our electoral process that now needs fixing
• A good portion of the blame fir the present situation lies with the legislation’s authors
• The way the Labour-led Government went about enacting those reforms was ill-considered and overly rushed
• It is hard to see how Parliament alone can now put the matter right

I have attached the full article as a pdf geddis-efa-article so people can read it in full, and not just my extracts.