Guest Post: The Banks Prosecution

March 19th, 2015 at 9:00 am by David Farrar

A guest post by Flipper:

Flipper hears that there are some very upset people (seriously p****d off is the way one source describes them) at the Court of Appeal, particularly Justices E France, J Wild and F Miller.

The reason?
The Crown Law Office (M Heron/ U Jagose (?) and P Dacre) sat on information that clears John Banks, and did not disclose it either to the C o A or to J Banks’ counsel, David Jones.
Had the information withheld been disclosed to Jones and the CoA, experienced observers assert, the appeal would have been allowed immediately, and no retrial ordered. That would have been the end of the matter, apart for some later unfortunate consequences for the Crown.

To recap, the Crown sent solicitor Rowan Butler to interview Dotcom over the new evidence (from two US businessmen) that Banks would present to the CoA. Banks’ counsel had observed the rules and disclosed that to the Crown. The interview with Dotcom took place on September 29, 2014, and Butler reported to Crown Counsel Dacre in a memorandum, also on September 29. The “Butler Memorandum” introduces a new Dotcom claim – that there were two meetings with Mr and Mrs Banks, one of June 5, 2010 and the other on June 9, 2010. He had earlier asserted that there was only one meeting on June 9. Wylie J, however, found that the lunch was on June 5, as latter also attested by the US businessmen.

The crux of the date issue is that both Mr and Mrs Banks were proven to have been elsewhere on June 9, and could not have been at a “second” meeting/luncheon with Dotcom on that date.

Now, understand this: This information was known to the Crown on September 29, 2014. It was not disclosed to Jones/Banks, nor to the Court of Appeal when it heard the case on October 29, 2014 – one month later. In fact the existence of the Butler memorandum was kept secret by the Crown until finally it was released (received by) to David Jones (Banks) on February 27, 2015.

On March 2, 2015 (the weekend intervened) David Jones filed a memorandum with the High Court requesting a section 347 (discharge) hearing. Flipper hears that the Crown has now agreed to this hearing. But that is not all the bad news for the Crown. It is also said that David Jones has gone back to the Court of Appeal because it appears, on the face of evidence now disclosed by the Crown, that the Court was deliberately misled.

It is of concern to some that SG Mike Heron should have been a party to that, and there have been comments linking the withholding decision to his deputy.

Where this unhappy saga will end is open to speculation. But it surely is:
• Good news for John Banks who has now spent more than a month (all up) in the Courts and appeared before more than 15 Judges;
• Bad news for the Crown Law establishment;
• Likely to give rise to assertions of malfeasance;
Likely to adversely impact on the careers (future Bench appointments) of those involved on the Crown side of the case.

It will be very interesting to see where this ends up.

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Contradictory evidence in the Banks trial

March 7th, 2015 at 12:00 pm by David Farrar

The Herald reports:

John Banks is seeking to have a second trial for filing a false electoral return thrown out after the discovery of evidence which the Crown failed to disclose to his QC.

Not good for the Crown, if true.

This is at odds with evidence given at the trial, where the Crown contended the lunch was held on June 9, 2010 and the presence of the Americans was denied by the Dotcoms, as well as their bodyguard Wayne Tempero.

The defence was able to prove at the trial there was no lunch on June 9, because Mr Banks was campaigning and Mrs Banks was at work.

In finding Mr Banks guilty, Justice Edwin Wylie said Dotcom was a good witness but he was wrong about the date of the lunch and ruled it must have happened on June 5.

So Dotcom claimed the lunch was on 9 June, but the evidence was that this was not possible as Mrs Banks was at work, so they assumed it was 5 June.

But when interviewed by Mr Butler about the new affidavits before the Court of Appeal hearing, Dotcom accepted the evidence of the US businessmen – including that donations were not discussed at the June 5 lunch. Instead, he said there was a second lunch – again on June 9 – at which the donations were discussed.

You can’t have it both ways. If the lunch was on 5 June, then the Americans were there and their evidence is now accepted that no donations were discussed.

If there was a lunch on 9 June, then the evidence is that the Banks were not there.

“It has never been part of the crown case nor has there been any prior suggestion that there were two lunches within a matter of days of each other, at which both Mr and Mrs Banks were present,” wrote Mr Jones.

“How the Crown can now properly pursue this prosecution in the circumstances is unknown … the crown case will accordingly have to be completely recast in a way which, with respect, is utterly untenable.”

It does seem preposterous that there would have been two lunches within four days with Mr and Mrs Banks, and this was never mentioned at the original trial.

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Mayoral Contenders

December 4th, 2014 at 12:00 pm by David Farrar

The Herald reports:

Former Act leader John Banks and Auckland Chamber of Commerce chief executive Michael Barnett are contenders to challenge Len Brown for the Auckland mayoralty in 2016.

I don’t think Len Brown will stand again. Many on the left say Deputy Mayor Penny Hulse will stand as the left’s candidate.

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Banks wins appeal

November 28th, 2014 at 12:20 pm by David Farrar

The NZ Herald reports:

Former Act leader John Banks’ conviction for electoral fraud has been overturned and a new trial ordered by the Court of Appeal.

The retrial will hear the evidence from two new witnesses who were at a lunch with Banks and Kim Dotcom.

It seems their evidence is contradictory to the evidence of Mr Dotcom. Also as far as I know they have no vested interest in the outcome.

Mr Banks was convicted in the High Court after failing to disclose donations from Kim Dotcom to his Auckland Mayoralty campaign in 2010.

Mr Banks had appealed and introduced affidavits from two US-based businessmen who had been at the same lunch at which Mr Dotcom claimed donations were discussed.

The pair – David Schaeffer and Jeffery Karnes – both said donations were not discussed at that lunch.

In a statement, the Court of Appeal said it had decided to admit the evidence.

“Although it was not fresh evidence, the Court was satisfied that if the evidence has been before [High Court judge] Justice Wylie the outcome may have been different.

The two businessmen have no vested interest in the case. The fact both of them are adamant no donations were discussed is rather persuasive.

In the retrial (if it happens) Mr Dotcom’s evidence may be less persuasive after his month of truth fiasco where he released an obviously forged e-mail.

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The American witnesses

August 2nd, 2014 at 10:00 am by David Farrar

The Herald reports:

What John Banks is labelling compelling new evidence for an appeal against his criminal conviction is believed to be sworn statements from two Americans whose presence at the critical donation lunch was a key issue at his trial. …

Justice Edwin Wylie had found him guilty of filing the return without recording the origin of two $25,000 donations from entrepreneur Kim Dotcom, who is facing extradition to the United States.

His judgment hinged on the credibility of witnesses’ evidence, telling the court he did not accept evidence from Banks or his wife, Amanda.

Outside the High Court at Auckland yesterday, Banks said: “Since the finding of guilt, fresh, new, unimpeachable, watertight evidence has emerged. That new evidence completely contradicts much of the evidence given in the court.

“We’re looking forward to taking that … to the Court of Appeal.”

The Weekend Herald has learned details of the evidence that will be put before the Court of Appeal in a bid to have Banks’ conviction overturned.

Evidence was given by the Dotcom camp, saying there were American guests on the grounds of the mansion on the day of the lunch but Mr Dotcom, estranged wife Mona and security chief Wayne Tempero said they were not at lunch when the donations were discussed.

The claims were contradicted by Banks in his police interview and Mrs Banks from the witness box. Both insisted there were two others at the lunch – businessmen Mrs Banks believed were Americans. Banks was unsure of their nationality.

Justice Wylie, who also took other evidence into account, said he believed the Dotcoms and did not accept the Banks’ statements.

He also said it was “largely peripheral” because “the key issue was what was said at the lunch”.

In the wake of the judgment, it is understood Banks launched a search for the American guests.

They were eventually tracked to a company in the United States which was a supplier for Mr Dotcom’s defunct website Megaupload, which was brought down in the copyright raid that led to his arrest and possible extradition.

Banks’ team was believed to have sought statements from them.

The new evidence claim was unusually raised by David Jones, QC, in his sentencing submissions to Justice Wylie yesterday. Mr Jones did not return calls but is understood to be filing the appeal papers next week.

Mr Dotcom said last night: “From my recollection, there was no one else at the lunch where the donations were discussed.”

It will be utterly fascinating to learn what these two witnesses have to say.

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Banks gets community service

August 1st, 2014 at 4:00 pm by David Farrar

NBR reports:

LATEST: John Banks says he will take his case to the Court of Appeal.

He told media outside the High Court at Auckland today that new, compelling and unimpeachable evidence had been found.

This followed his sentencing in the Auckland High Court this morning after being convicted under Electoral Act charges.

The former MP maintains his innocence, saying he has never filed a false anything, let alone a false electoral return.

He says new witnesses have now come forward, and that those unnamed witnesses could not be located at the time of the trial.

He did not respond when asked if the evidence was to come from two American businessmen who had been identified at the High Court stage but did not give evidence.

UPDATE: John Banks has avoided prison, and faces two months community detention and 100 hours of community service after being convicted this morning.

The former ACT MP was emotionless in the dock as his sentence was read out in front of a court where it was standing-room-only.

Justice Ed Wylie said the detention is appropriate and includes a curfew of four nights a week where Mr Banks will have to be at his inner city apartment from 7pm.

The curfew applies for two months.

That’s a pretty light sentence.


Can Banks get a discharge without conviction, as the son of the Maori King has?

July 6th, 2014 at 4:00 pm by David Farrar

A reader e-mails:

I suggest this decision by serial offender Judge Phillippa Cunningham strengthens the case for John Banks to argue for a discharge without conviction on the electoral fraud charges,  A few points:
Stats have come out this week confirming police almost never investigate Electoral Act complaints (either local or national).  Burglary is typically investigated, at least on the surface.  Often goes no further due to lack of evidence.  Same with theft.  Drink driving is essentially always investigated, given the evidence is collected live at the scene of apprehension.  This demonstrates the seriousness with which the police see burglary, theft and drink driving as opposed to electoral fraud charges and the regularity with which they lay charges.
The charge John Banks was found guilty of carries a max of 2 years imprisonment.  Burglary carries a max of 10 years and is a serious crime.  Theft under $500 is 3 months max.
There are a host of other arguments in terms of the relative seriousness of the two scenarios, including Paki’s relative youth, Paki’s prior convictions/youth Court notations, burglary offending committed complicit with 3 other offenders, Bank’s prior clean record (as I understand).  I won’t go into them all.
But it is interesting to compare the two cases given both could argue they have ‘futures’ that a conviction may put the kibosh on (royalty v political).

It will be interesting to see the decision of the court, in August.


Banks to resign on Friday

June 8th, 2014 at 7:56 pm by David Farrar

John Banks announced:

“Further to the of the decision of the High Court at Auckland last Thursday,  I will  resign the seat of Epsom effective from 5pm this Friday the 13th of  June 2014” Mr Banks said.
“I will write to the Speaker tomorrow advising him of my resignation, said Mr Banks.
“This timeframe allows a number of constituency, administrative and staffing matters in Epsom and Wellington to be dealt with over the next few days.
“I have been privileged to serve the people of Epsom and New Zealand at both a local level and in Wellington. 
“I have given my heart and soul over four decades to making a worthwhile contribution to this country.  I have always endeavoured to do the right thing.  Consequently I am deeply saddened at this turn of events.
“As the matter is still before the Court I will be making no further comment” said Mr Banks.
As I blogged on Friday I believe this is the honourable thing to do, rather than wait for the formal conviction to be entered.
The House resumes on 17 June, and there will be five sitting weeks until the House rises on 31 July.

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.

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Brash on Banks

June 7th, 2014 at 2:00 pm by David Farrar

Don Brash writes on Facebook:

So the court has found John Banks guilty. Three observations. First, I have known John Banks for 30 years and have not found him to be anything other than an honest man. Second, it is a huge tragedy for a man who has overcome great personal difficulties; served with distinction as a Member of Parliament, as a Minister, and as the mayor of Auckland; and helped to raise three Russian orphans.

But third, when I contrast what John Banks was found by the court to have done with what Helen Clark’s Labour Party did in 2005 – without the slightest attempt by the Police to call her to account – the offence of which he has been found guilty is utterly trivial.

In 2005, the Labour Party spent Parliamentary funding to the extent of more than three-quarters of a million dollars on explicit electioneering, despite having been warned against doing so by both the Auditor General and the Chief Electoral Officer just weeks before the election. Yes, they eventually repaid that money, but only under strong protest. And of course by that the time the election was won.

And what they could not undo, and were never held to account for, was grossly overspending the legal limit on spending in that election. The Police, in a disgracefully biased decision, decided not to prosecute, despite the Labour Party’s own auditors finding that the Party had unambiguously breached the legal spending limit if spending on their infamous “pledge card” was election spending. And did anybody who saw that “pledge card” think it was NOT part of Labour’s election campaign?

Whatever John Banks did in trying to raise money to finance his mayoral campaign in 2010 did not affect the outcome of that election. By contrast, Labour’s illegal behaviour almost certainly did affect the result of the 2005 election.

Excellent points by Don Brash. Banks was wrong to break the law, but Labour’s law breaches in 2005 were much more significant and did have an impact on the election result.

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Waiting v resigning

June 6th, 2014 at 8:59 am by David Farrar

The Judge in the Banks case has not yet entered a conviction as he could discharge John Banks without conviction at the sentencing on 1 August. This means that Banks would not lose his seat. There is a reasonable chance the Judge could grant this, as the offence he has been found guilty of was not committed while Banks was an MP.

However that would not change the fact that John Banks has been found guilty, and if he continues as an MP until 1 August (or beyond), the Opposition will try to paint the Government as being held up by an MP found guilty of an (local body) electoral offence.

The reality is that the Government doesn’t need the vote of John Banks. With him they are 64-57 on confidence and supply and without him they are 63-57. Banks going would have some potential political impact as it would mean that any laws voted on in the next two sessions would need the support of the Maori Party. However I’m not aware that there are any likely votes on laws that they opposed.

I don’t think the Judge has actually helped the Government by delaying the decision on entering a conviction. Nowt that it is the Judge’s role to care about the impact on the Government. I’m just saying I think it would have been cleaner to make the decision as the same time as the guilty verdict.

Constitutionally there is no question that Banks is entitled to remain an MP until such time as he is convicted, and he has not yet been convicted – only found guilty. Many people get discharged without conviction.

However politically I think the honourable thing to do would be to accept that a guilty verdict has been rendered, and to resign from the House of Representatives before sentencing and the decision on a discharge. Not doing so would be a significant distraction for the Government, which should be talking about the economy, better schools, more operations, welfare reform etc, rather than having to be defensive on an MP remaining in Parliament after he has been found guilty of an offence which would result in a loss of his seat once if a conviction is entered.

This is a decision purely for John Banks, not the Government. He has every constitutional right to stay on until a conviction is entered, if it is. But I think John Banks came into politics with very honourable motives, and I think resigning would be in the same spirit.


Banks found guilty

June 5th, 2014 at 2:28 pm by David Farrar

One News reports:

John Banks has been found guilty of knowingly filing a false electoral return after his failed Auckland mayoral campaign in 2010. …

Banks faces a jail sentence of up to two years or a $10,000 fine.

He won’t get a jail sentence, but unless he is discharged without conviction, he will lose his seat in Parliament.

S55(1)(d) of the Electoral Act states:

The seat of any member of Parliament shall become vacant if he or she is convicted of an offence punishable by imprisonment for life or by 2 or more years’ imprisonment

The Speaker will declare his seat vacant once he receives the judgment.

S131(a) also states:

Notwithstanding anything in section 129, no writ shall be issued for a by-election to supply a vacancy in the House of Representatives if the vacancy arises in the period of 6 months ending with the date of the expiration of the Parliament and a resolution that a writ not be issued to supply the vacancy is passed by a majority of 75% of all the members of the House of Representatives

I expect a motion to this effect will be moved on the next House sitting day (Tuesday) and after a two hour or so debate, passed.

It will mean that the Government will only have 60 out of 120 seats for the remainder of its term and will be unable to pass laws without the support of the Maori Party or some other party or MP.

A very sad way for John Banks to end his political career, but a lesson for all politicians to take the utmost care when doing donation returns – and err on the side of transparency.

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The Banks trial

May 30th, 2014 at 2:00 pm by David Farrar

The Herald reports:

John Banks made every effort to keep “politically sensitive” donations to his failed 2010 Auckland mayoralty bid secret, the Crown says, but Banks’ lawyer argues the politician had nothing to gain from that and is a victim of Kim Dotcom-orchestrated lies.

The nothing to gain is a significant aspect to this. Banks was the loser, not the winner, of the campaign. When he filed the return he was not planning a political future. Revealing the Dotcom donation and the Sky City one would not have damaged him in any way.

Mr Jones pointed out inconsistencies in prosecution evidence ? Mrs Dotcom said she was present when donations were discussed, Mr Dotcom said she was not.

Now the pair were separated, Mr Dotcom couldn’t rely on her to support him so took her out of the picture, Mr Jones said.

But Mrs Dotcom went along with the earlier agreed version of events and that “proves the lie”.

And former Dotcom accountant Grant McKavanagh originally said he travelled down to Queenstown and posted the cheques there, when they were actually deposited into Banks’ account at a North Shore Westpac.

When that was pointed out Mr McKavanagh couldn’t explain his “fairytale” evidence, Mr Jones said.

That piece of evidence is bizarre. How could you get wrong a claim that you travelled to Queenstown to post the cheques?

The Crown had failed to put forward a motivation for Banks to falsely declare donations and Mr Dotcom wasn’t even on the public radar in 2010.

Mr Jones said Banks’ campaign was financially transparent.

His team had chosen not to use a secret trust to channel payments, as was allowed, and on one occasion when Banks was handed a cheque, he banked it and informed Mr Hutchison of the situation.

Banks should have done what Len Brown and David Cunliffe did, and set up a secret trust. However he didn’t, and he should have taken more care with his donations return. It isn’t good enough to rely on someone else, when you are the guy who signs it.

Also of interest is the court judgement against TV3. Extracts:

In the present case, I am in no doubt that the footage of Mr Banks broadcast by TV3/Media Works in the 6 o’clock news bulletin on 22 May 2014 was neither fair, nor balanced. It did not respect Mr Banks’ rights. It was gratuitous and tasteless. The justifications advanced by Ms Bradley were, in my view, disingenuous. The footage broadcast did not show Mr Banks’ reaction to the interview being played in court. Rather, it was a sideshow broadcast seemingly to entertain. It is difficult to escape the conclusion that the broadcast was intended to expose Mr Banks to ridicule and/or derision. There was, in my judgment, no news value in the footage at all, and no public interest was served by broadcasting it. In my judgment, TV3/Media Works’ decision to broadcast the footage was irresponsible and it reflects no credit on the organisation.

What makes this worse for TV3 is the decision was not taken by some junior staff member. The decision was made the the general counsel and the deputy head of news and current affairs.

It seems TVNZ may also be in some trouble. They were responsible for the camera and it was meant to be turned off after the first 15 minutes of the day. The Judge has asked TVNZ to also explain why it was left on.

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Conflicting evidence

May 22nd, 2014 at 2:00 pm by David Farrar

Stuff reports:

Kim Dotcom’s estranged wife has told a court that John Banks asked for a political donation to be split into two cheques so it could be kept anonymous.

But her testimony differs from Kim Dotcom’s yesterday, when he said she had left a dinner before the donation was discussed. …

Mona Dotcom’s evidence of being present during the donations discussions conflicted with Kim Dotcom’s version yesterday.

Kim Dotcom had said his wife had left the lunch before the donation was discussed, but Mona Dotcom was adamant today that she was present.

She also said the staff member who made out the cheques was not there when others had testified he was.

It is not unusual for witness to differ on small facts. It seems unusual to differ on something as basic as whether or not Mrs Dotcom was present.

Regardless of the Dotcom testimony, I have said in the past that no candidate should sign a donation and expense disclosure form without carefully reading every line of it, and personally satisfying themselves it is correct. Regardless of the verdict, I don’t think what John Banks did was good practice.

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The Banks file

February 18th, 2014 at 2:00 pm by David Farrar

Stuff reports:

The Ombudsman has ordered the release of statements given to police by outgoing ACT MP John Banks, ruling it is in the public interest.

But the statements would not be handed over until after Banks’ trial over allegations he knowingly filed a false electoral return following his failed 2010 bid for the Auckland mayoralty.

Seems a sensible decision by the Ombudsman. However I do wonder about the precedent. Must statements made in the Hughes assault investigation be publicly release also, based on this precedent?

In a decision released today, Ombudsman Ron Paterson said police were right to refuse some parts of the request, but not to withhold the statements in full.

In their response to the request, police said public interest had to be balanced with the privacy of the person, particularly if allegations remained unproven.

When there is a balance, I favour the public interest.

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Banks not to stand in 2014

December 4th, 2013 at 10:40 am by David Farrar

ACT have announced:

Today, Hon John Banks, MP for Epsom and leader of ACT, has announced that he will not be seeking re-election in the 2014 General Election.  John has decided, after 36 years of public service, that it is time for him to spend more time on his family and his private business interests.  In the meantime, John will continue as the MP for Epsom and Leader of ACT.

As part of its candidate selection process for general elections, the Board of ACT will shortly be opening nominations for candidates to stand for ACT in the 2014 General Election.  We have a number of very talented potential candidates and we expect to name our key candidates, including a new candidate for Epsom, by the time of our annual conference in early March.

An inevitable decision. I can’t see ACT able to hold Epsom unless someone with a proven track record of local support such as Cameron Brewer stood for them.

UPDATE: Banks has said he will stand down as Leader at the conference in March 2014.

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Good to see Crown Law Independence

October 26th, 2013 at 8:45 am by David Farrar

The NZ Herald reports:

Crown Law will take over the prosecution of John Banks on a charge of knowingly filing a false election return.

Private prosecutor Graham McCready received a letter today from Solicitor General Michael Heron confirming he would intervene in the case.

This is bad news for John Banks, but good for an independent judicial system. The prosecution of a (former) Government Minister is obviously not something overly helpful to the Government, and it would have been easy for Solictor General to leave it as a private prosecution. But good to see that they will act independently when they think it is the right thing to do.

Banks has a judicial review of the District Court decision to send it to trial, so that has to be dealt with first.

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Young on boundaries

October 24th, 2013 at 2:00 pm by David Farrar

Audrey Young writes in NZ Herald:

The electoral gods could well be shining on Conservative Party leader Colin Craig.

One of the two biggest areas of growth in Auckland has been in his own backyard on the North Shore and that means a new electorate seat could be created virtually around him.

If National stood a low-profile candidate rather than a heavyweight like List MP Steven Joyce, and Prime Minister John Key gave voters a steer in the right directions, Craig could be well-placed to take a new seat.

That would provide National with a new potential support partner to replace or supplement the ones that have been self-destructing since the last election: Act whose leader John Banks resigned as a minister last week, United Future whose leader Peter Dunne was forced to resign in June, and the Maori Party.

As I have said before National have five potential support partners – ACT,, United Future, Maori Party, Conservatives and NZ First. What we don’t know is how many of them will make it, how many can actually work with National, and how many will National need to be in the running to form a third term Government.

Key this week dismissed New Zealand First leader Winston Peters as someone who talked in more riddles than the Mad Hatter. Hardly the behaviour of a Prime Minister who expects to be propped up by Peters after next year’s election.

Key called it straight. It is far from certain that National will change its stance on NZ First. I’m not saying they won’t change – just that it is dangerous to make that assumption at this stage. I expect a decision would be made around the middle of 2014.

There will definitely be one new electorate created in Auckland after the census figures were announced last month and Craig told the Herald yesterday that he would most likely stand in the seat if it is in his patch – he lives on the border of East Coast Bays and Rodney.

“It would be very, very nice for us. We know it’s a good area for us. It would be very nice if the seat ended up here,” he said.

“If it works out that they go for the electorate that has grown the largest, which is Upper Harbour, and put a new electorate in there, I’m going to be living in it so it’s going to be all very convenient.”

If the Conservatives are polling enough to get four or more MPs, then centre-right voters in a new seat could well vote tactically.

New Zealand First leader Winston Peters, too, is known to be considering standing in an Auckland seat – and the new seat would have to be a possibility or a vacancy if Murray McCully were to shift to the list from East Coast Bays – a repeated rumour.

When asked to comment on the Conservatives and the new seat Peters said: “Elephants don’t run round the forest stomping on ants.”

Peters was too chicken to stand in a seat in 2011, so I don’t expect he will risk failure.

National pollster and Kiwiblog commentator David Farrar says things are looking good for the Conservatives.

“Even before you get into any political deals, the way the census has happened, actually, is very happy for the Conservatives, assuming that’s where the new seat is.”

Farrar also believes there is no need for the “cup of tea” photo opportunity to send signals to voters.

“Generally voters, if they want a centre-right or centre-left Government, can work out what’s the smart thing to do. So if there was a seat and Colin Craig was standing for it and they are polling 3 per cent in the polls and the candidate for National is a worthy but low-profile person, you could well see Conservatives do very well there without needing any sort of arrangement.”

Centre-right voters tend to be pretty intelligent. They don’t want a Government that will tax and spend, borrow more, nationalise companies etc. They will vote for minor party candidates if that helps stop a Labour/Green/Mana Government.

Farrar believes that if Banks lost his judicial review against going to trial and then lost the trial as well, he would not only be kicked out of Parliament as required under the law, it would finally destroy Act as well.

“I think the brand would be too damaged.”

A party can not survive its leader and sole MP losing his seat due to a conviction over electoral matters. Note I am not saying I think Banks will lose. Andrew Geddis has a very useful blog post on this issue which is worth reading. The key para for me:

I can’t for the life of me see why Banks would have sat down and thought something along the lines of “Dotcom and Sky City have given me all this money, but I don’t want anyone to know that they did and so I’ll deliberately lie about where it came from in my return even though I know that it is completely illegal to do so.” He was, after all, the losing candidate  in the mayoral race. Why would anyone have cared who gave him money, and why would he feel the need to make a decision to hide its source after the campaign was over? So any sort of claim that Banks deliberately or maliciously sought to evade the requirements of the Local Electoral Act strikes me as deeply implausible.

This is key – Banks had lost. There was little, if any gain, in not declaring the donations.


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Where to for ACT

October 18th, 2013 at 9:00 am by David Farrar

Does ACT have a future after its leader was committed to trial over his 2010 Mayoral election return?

Well firstly it depends on the outcome of the court case. If he loses, and is convicted, then his seat in Parliament is automatically vacated. That means a by-election in Epsom, and unless ACT stood an incredibly popular candidate (such as Cameron Brewer) then they would not win the by-election and be out of Parliament. I think that would be the end of the party, which would dissolve. That may create an opportunity for a new party in time, but probably not until 2017 at the earliest.

The fact the Solictor-General is looking at taking over the prosecution is somewhat ominous.

If Banks wins, then he remains in Parliament, and becomes a Minister again. However that does not mean plain sailing.

Banks defence is basically that he signed a legal declaration of his election expenses and donations, but didn’t read it. That may mean he legally didn’t willfully break the law, but it’s an awful look.  If his non-reading had occurred as a parliamentary candidate, that would be fatal. He is slightly saved by the fact that when he signed the return he though his political career was over. But regardless of timing, it looks bad. As I said previously, it is bad to be personally involved in receiving two donations and then sign a return saying he doesn’t know who his donors were. It may be legal (as Len’s trusts were), but is the public concerned just about legality?

Even if Banks wins, it is hard to see him winning Epsom again. Having said that ACT have won it three elections in a row, when almost no one thought they would or could.

If there is a by-election, then I would expect National to win it easily. Epsom voters are not going to vote for giving the Maori Party the balance of power or worse a Labour-Greens Government. Paul Goldsmith would become the MP for Epsom and Jo Hayes would become a List MP.

So I don’t see big issues for the Government before the general election, except for a possible distracting by-election campaign.

The bigger challenge is the next general election. National has five potential coalition partners, and none of them are ideal – and probably more than one of them will be needed. The five potential partners are:

  1. ACT – very reliable in a voting sense and pushes National into areas most of its supporters want. But not likely to be back.
  2. United Future – also a reliable and stable partner, even though more inclined to vote independently on non-core issues. But will Dunne stand again, and would he win?
  3. Maori Party. They will be back with at least one seat, probably two. A third is possible – a list seat if they get over 2% party vote. However they have never had to choose between a National and Labour led Government. They could well choose to go with Labour. And if they do choose National, their policy demands could be unpopular.
  4. Conservatives. It is hard to see them making 5% but they could well make 2.8% and get four seats if they win an electorate. If a new Auckland seat is in an area where they have some strong support, then the lak of an incumbent National MP could see centre-right tactical voting to get them in. The downside is that if this looks likely it might scare some socially liberal voters to Labour. Against that, most of the core issues for the Conservatives are conscience issues and not something likely to be part of any coalition agreement (except maybe to agree to no further law changes in certain areas). I can’t see any possibility of repealing same sex marriage, prostitution, abortion laws etc. Maybe the anti-smacking law could go as a policy victory for them?
  5. NZ First. Winston hates John Key and wants utu on him, The jury is out on whether the bigger utu is to sack John Key or make him subservient to him. Either option is rather unpleasant to contemplate. But you can’t rule out a deal if a National-NZ First majority is possible and a centre-left Government is only possible if the Greens are part of it.

So National does have options if ACT goes, but they are not great options. But politics is the art of the possible!

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GCSB Changes

July 23rd, 2013 at 7:00 am by David Farrar

John Key has announced the following changes to the GCSB Bill after negotiations with John Banks and Peter Dunne:

  • A set of guiding principles will be added, in line with requests from Mr Banks and Mr Dunne.
  • The Inspector General will be supported by a two-person advisory panel.
  • The removal of the proposed Order in Council mechanism which would have allowed other agencies to be added to the list of agencies able to request assistance from the GCSB. Any additions beyond the Police, NZSIS and NZ Defence Force will now be required to be made by a specific amendment to the legislation.
  • To ensure effective oversight in the issuing of a warrant, the Bill will be amended so the Inspector General is informed when a warrant is put on the register relating to a New Zealander.
  • The GCSB will be required to report annually on the total number of instances where it has provided assistance to the Police, NZSIS or NZ Defence Force.
  • The GCSB will also be required to report annually on the number of warrants and authorisations issued.
  • The Intelligence and Security Committee will hold public hearings annually to discuss the financial reviews of the performance of the GCSB and the NZSIS.
  • There will be an independent review of the operations and performance of the GCSB and NZSIS and their governing legislation in 2015, and thereafter every 5-7 years.
  • Mr Dunne will have a role in the Government’s upcoming work to address the Law Commission’s 2010 report Invasion of Privacy: Penalties and Remedies. This work will include a review of the definition of ‘private communication’, which was highlighted as an issue by submitters on the GCSB legislation.

These are good changes. I had talked on TV about one area of concern being the proposed ability for the Govt to add other agencies onto the list of agencies the GCSB can assist with interceptions. Having Parliament, not the Government, make any changes is desirable.

Despite these significant changes, Labour appears to still be voting with the Greens against the bill. Ironic as it was a Labour Government that caused this problem with their 2003 law change.

Dunne and Banks have shown how you can have a constructive role in improving legislation.

Also the Herald reports:

Mr Key said today that he did not believe that the GCSB had engaged in the mass collection of metadata and he confirmed that it should be treated the same as communication and any collection of it would require a warrant. He planned to make a clear statement about it in the bill’s second reading.

Also welcome.


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A 60-60 tie?

July 8th, 2013 at 11:00 am by David Farrar

Isaac Davidson at NZ Herald reports:

Act Party leader John Banks will make a rare vote against his coalition partner National this week to maintain his passionate defence of animal rights.

The Psychoactive Substances Bill is expected to return to Parliament tomorrow and the Government could come close to losing a vote on a Green Party amendment which would ban animal testing for the purposes of approving legal highs for sale.

The bill states that animal testing should not happen if alternatives exist, but some MPs want the tests ruled out.

A proposed ban on animal experiments tabled by Green MP Mojo Mathers has the support of Mr Banks, who told Parliament on Wednesday: “Protecting animals is ingrained in my soul.”

Mr Banks said the bill was well-intentioned but he could not support it in its present form.

It was “totally unacceptable” that the bill failed to rule out “testing these recreational drugs on innocent animals”. …

If it passed, Ms Mathers’ amendment would block drug-makers from using information gained from animal testing to prove that their products were “low-risk”.

It was opposed by National and United Future.

Whether it succeeds could hinge on the fact that new Labour MP Meka Whaitiri will not be sworn in when the vote is held.

At present, the amendment is believed to be supported by 60 MPs and opposed by 60 MPs. New Zealand First has not publicly stated its position but is expected to support the amendment.

It was expected to pass if Ms Whaitiri was able to cast her vote. But the new Ikaroa-Rawhiti MP, who was elected in a byelection last week, will not be sworn in until the end of the month.

If the vote is tied, the amendment fails.

In the old days, the Speaker would have a casting vote which would be used to maintain the status quo. Now, there is no casting vote and a tie means the vote fails.

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Shearer declared bank account to IRD but not Registrar

March 19th, 2013 at 2:00 pm by David Farrar

Claire Trevett at NZ Herald reports:

Labour leader David Shearer says his failure to declare a US-based bank account with more than $50,000 in it on the MPs’ Register of Pecuniary Interests was simply an oversight. …

Mr Shearer would not reveal how much was in the account, but MPs are required to include accounts with more than $50,000 in them.

He had included his UN pension scheme in the register since becoming an MP, but Mr Shearer said he realised, while he was doing his tax paperwork recently, he had not included the bank account in the register. Inland Revenue had known about the account, for tax purposes.

This is the puzzling part. You are filing a tax return every year where you include the bank account and interest earned, but it never twigs that you should also include that is your Register of Pecuniary Interests.

I am sure it is a genuine mistake, but it is very sloppy.

Prime Minister John Key yesterday would not comment on Mr Shearer’s omission, saying it was up to Mr Shearer.

Could you have imagined what would have happened if the situation is reversed.

We already have the precedent that Trevor Mallard called for Chris Finlayson to be stood down over a non-substantive omission.

If John Key had forgotten to include a foreign bank account, I have no doubt that Labour MPs would be calling him corrupt and a liar. They would be demanding an inquiry into what other bank accounts he hasn’t disclosed, and they would have filed contempt of Parliament charges with the Speaker to refer to the Privileges Committee.

Rather than be a minor story in the Herald (and it seems no mention at all at Stuff), it would be the lead item for at least a week.

Personally I’m glad National MPs are acting like decent human beings and not accusing Shearer of anything. I believe it was a genuine sloppy mistake. But I have no doubt at all that if the situation was reversed there would be hysterical language used against Key by Labour MPs.

Scott Yorke adds a typically humourous touch to the issue:

Labour Party leader David Shearer has moved quickly to discipline one of his MPs for failing to declare a pecuniary interest.

“I expect high standards from my MPs” said Shearer, as he announced that MP David Shearer would be stood down from all duties. …

Labour’s leader said he hoped the move would be a “wake-up call” to members of Labour’s caucus.

“These rules exist for a reason, and we have to take them seriously” Shearer said.

Shearer agreed that the failure by one of his MPs to follow the rules was a “bad look” that “let the side down”.

But he refused to be drawn on whether he would reinstate the MP for Mt Albert after a spell on the backbenches. …

The demoted MP last night refused to comment on the decision by his leader. But he confirmed that he still fully supported David Shearer as leader of the Labour Party.


John Banks has also pointed out Labour’s double standard:

Labour Leader David Shearer should apply his own ethical standards to himself and stand down, ACT Leader John Banks said today. 

“Shearer is on record as saying those who suffer from a memory lapse aren’t fit to hold office,” Mr Banks said.

“But yesterday, Shearer admitted he ‘forgot’ to declare more than $50,000 he has stashed away in an overseas bank account.  

“Worse, he didn’t forget once, he forgot four years in a row.   Shearer’s hypocrisy is staggering.    

The Local Electoral Act amendment bill will be debated soon. It was going to be open season on John Banks, but now when Labour point out his failure to disclose, they’ll have their own leader’s failure thrown back at them.

An updated story has John Key saying:

“In the end it’s a matter for him,” Mr Key said today.

“People make mistakes. I make mistakes and when I do, I try and tell people I’ve made them. It’s just that you don’t get cut any slack from the Labour Party when you say you’ve made a mistake, but when they make one they don’t want anyone to have a look at it.”

Again, incredibly mild.

You can vote in my sidebar poll on What are you least likely to forget?

The options are:

  • A 5 second mention of Kim Dotcom in a powerpoint briefing
  • The existence of a foreign bank account with at least $50,000 in it, for three years
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The wrong cabbage boat quote

December 17th, 2012 at 9:00 am by David Farrar

As many will have seen, Massey University is running a competition for best quote of 2012. One of the more well publicised finalists is:

I did not come up the river on a cabbage boat. (John Banks responding to media questions about Dotcom.)

There’s just one problem with that quote. It’s wrong. The actual quote by John Banks was:

I think you think I came up the river on a cabbage boat.

Now if this was just a news story, it wouldn’t matter. But if you are running a quote of the year competition, you’d think you’d check the quote was in fact an accurate quote.

Now as Toby Manhire has blogged, Banks has referred to cabbage boats many times, as far back as 1999. He did once say “I didn’t come up the river on a cabbage boat.” but that was in 2011, and in response to the extraordinary policy gains ACT managed in the coalition negotiations.


The Banks file

September 12th, 2012 at 6:41 pm by David Farrar

Below is the file on the Banks investigation, released by the Police under the OIA. What is interesting is that the donations appear to be a thank you for Banks previous offer to advocate residency on behalf of Dotcom.

The highlight is the statement by Kim Dotcom that when Banks met his wife Mona, Banks said “Your wife is the most beautiful women I have ever seen”. Dotcom comments that he was surprised by this comment. Not because his wife isn’t beautiful, but because Mrs Banks was present!

Docs for Disclosure

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Defending Banksie

August 31st, 2012 at 2:00 pm by David Farrar

Guy McCallum blogs:

There are politicians in this world who clearly just don’t get it. It is not always because they are incompetent or corrupt, though we can pronounce these two conditions as leading causes. No, I think it is chiefly because they are scared witless by the fact that they know they have lost touch. And so much do they value their own hides that they won’t admit it, and sadly, won’t admit to the change of heart they know is necessary.

This week, and in particular, we have learned that this is not John Banks. He changed his mind on marriage equality (and by all accounts, over time), and while he might have been seen to be uncomfortable about it in front of the camera, he was most certainly undaunted by the prospect of others seeing his change of heart.

Along comes Duncan Garner of 3 News to ruin what was for a lot of people, a moment in history. He, in my view, unfairly criticised Banks for his position on marriage equality, which seemed to surprise people. Then Garner, holding onto the past with a death grip, wouldn’t let us forget the unfortunate comments that Banks had made a substantial amount of time ago, without a much deserved context.

Garner then questioned whether Banks was a joke, for doing something as heroic as changing one’s mind, in extending legal rights to a section of society that has long deserved them.

One must wonder why gutless politicians won’t ever admit they’ve changed their minds for the good. They do so, apparently, at their own peril.

Instead, they prefer the slow death of seeming evermore out of touch and on the way out to the hard questions they might get if they were just honest. Just look at the People’s Phil Goff who could not steel himself to admit that he was once a neo-liberal, while he crusaded about as Labour’s social democrat. If he had the courage to say he’d changed his mind, maybe he’d still be in the front row of the opposition benches.

My mission in writing this is point out why Garner got it wrong. I think the emotive inclinations that so many in his profession give into, led him astray. For changing his mind, Garner seemed unwilling to forgive whatever it was that Banks must have done to him. In doing so, Garner teaches us a rather valid lesson here – that a grudge can work its mischief upon its master if should they overlook the rational thinking processes that almost everybody has.

John voted for marriage equality because it was the right thing to do. He has very little to explain in this regard. Though, as I write this, there are politicians who voted against marriage equality, now frantic about what they should do next to avoid being lumped in with crazy Colin Craig. Wondering, that is, how to explain their failure to act with courage to those who expected more of them.

Doing something because it is right requires tremendous strength of mind (endurance I would say) which is not easy to find. Its the high road and the narrow path. On the other hand, being negative about someone’s change of heart under these conditions is too easy, and something easy as such is cheap as well.

I wish that every member of Parliament would have the same courage that John Banks and those others put on display, for whom voting in favour of marriage equality was an intrepid but rewarding journey.

I was thrilled when I heard that John was voting for marriage equality, which was a few days before the decision was made public. I know he thought long and hard about his vote, and talked the issues through with a lot of his friends – as Paul Hutchison did also.

The comments John Banks made in 1986 will always remain on the record. But his views have changed over time – this is not a sudden about-face, but a journey.

When John was an MP in the 1990s, one of the researchers who was a reasonably good mate of his was Paul Sherriff. Paul happened to also win Mr Gay Wellington. Now I’m not arguing the “he has black friends so is not racist” card, but am pointing out that even in the 1990s his views were not the same as in 1986. Also he could seperate out his views on the issue, from how he treats individuals.

When he was Mayor of Auckland, his Chief of Staff was Stephen Rainbow. This is a job appointed by the Mayor himself. Stephen is gay, and John and Stephen had an excellent friendship and working relationship. Through Stephen, he saw a couple in a loving stable and happy same sex relationship.

Without that exposure to a loving stable same sex relationship, it is possible John may have never voted for the first reading of Louisa Wall’s bill. Our experiences help shape us.

As I said in the Listener profile, I was anti homosexual law reform when I was a 17 year old at school. It was the experiences and friendships that I developed at university that caused my views to shift quite radically on that issue. I believe it is a good thing when views genuinely change over time – something to be celebrated not ridiculed.

Now I am not suggesting today that John’s views are in any way the same as mine on social and moral issues. What I am saying is that I do believe he accepted the case that allowing a loving same sex couple to marry, is actually good for the institution of marriage.

I salute him for his vote (though I do wish he had articulated his reasons publicly) on both bills this week.

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