I’m of mixed mind on this change. Overall I think there is a good case to increase the limit, as the massive delays we have for jury trials need to be reduced. It is unfair on victims and defendents to have these delays.

However the thought of people spending up to three years in prison without a jury trial, doesn’t sit too well with me.

But just because a maximum offence penalty is three years jail, doesn’t mean that is a common sentence. I wondered what the actual penalty range was for each offence. The data wasn’t online, so I asked the Ministry of Justice.

33293 – David Farrar – Final Response

The Ministry kindly collated and gave me the information which you can see in the document above.

The first table shows what percentage of convictions for an offence that would no longer be covered by a jury trial (ie maximum sentence of six months to three years) actually result in going to prison at all.

I’ve had to cross-match the data in the letter to the frequency of each offence class. Overall the position seems to be that only about 20% of those found guilty of an offence with a maximum penalty of six months to three years get a prison sentence at all.

The second table shows what the maximum sentence ever given out for that category of offence is. Most years around half the offence categories have someone given the maximum three years. So it is possible some defendants could end up being sentenced to three years jail on the basis of a judge only trial.

What we don’t know ifs whether those who were given the maximum sentence were also charged with other more serious crimes, and hence would be having a jury trial anyway.

The third table shows the median sentence for those who did get a prison sentence – which was around 20% of those convicted.

On a weighted average the median sentence looks to be 120 days or four months. Now sentences of under a year are always halved for parole (off memory), so actual time served would be 60 day or two months.

So my conclusion is that if trials go judge-only for offences with a maximum penalty of three years or less, then 80% of those will serve no prison time at all, a further 10% will serve up to 60 days (taking parole) into account and a further 10% could serve between 60 days and up to two years (when parole is near automatic for a three year sentence).

So as I said at the beginning, I’m reasonably comfortablw with moving the limit up from three months – the vast majority of those facing judge alone trials will not go to prison. However the 10% who might end up spending more than 60 days in prison on the basis on a judge alone trial are a concern. A limit of two years might be fairer.

What do readers think the right place to draw the line is – 3 months, 3 years, in between? less than 3 months, more than 3 years?

This table shows the positions of the five main parties (more than one MP) on some of the key issues.

The Government put great weight on having consensus amongst parties, in contrast to the Electoral Finance Act. Effectively the Labour and Green parties were given a veto over any changes from the status quo. This meant that that changes I personally would have liked to have seen, did not occur.

On the issue of the taxpayer funded broadcasting allocation, National and ACT supported allowing it to be spent on any medium (not just TV/radio) and allowing parties to purchase their own broadcasting time. Labour and Greens opposed this

Views on the donation disclosure limit ranged from $1,000 to the status quo of $10,000.

Labour and the Greens supported a cap on the amount one donor can donate. The Greens advocated $35,000.

In terms of the party spending limit, the Greens supported adjusting it for inflation retrospectively (which I support). National oddly had no position on this. Labour wanted inflation adjustments to apply from 2008 onwards only, and ACT suggested a limit of $1.50 per person (which I also support).

National and Maori Party supported a 3 month regulated period. Labour and Greens a six to seven month period (from 1 May) and ACT a period of around four weeks (from Writ Day).

National and ACT did not support a spending limit for parallel campaigners. Labour supported a spending limit, but did not say what. As they advocated a $100,000 threshold to register I presume a fairly high limit. The Greens wanted a low threshold to register and a $120,000 spending limit. Maori Party supported some limit.

Simon Power put up five options to Cabinet. They were:

1. Consensus Package – changes which all or almost all parties supported
2. Comprehensive Package – a full reform package which includes reforms supported broadly by parties on the right (broadcasting liberalisation, higher spending caps) and reforms supported broadly by parties on the left (spending limits for parallel campaigners)
3. Parallel Campaigning Package – a left leaning package which is the consensus package plus more regulation of parallel campaigning
4. Broadcast Reform Package – a right leaning package which is the consensus reform package plus liberalisation of the broadcasting regime.
5. Status Quo

Packages 3 and 4 were politically untenable. The left would attack Package 4, and the right would attack Package 3.

The comprehensive reform package, as it had aspects supported by both left and right, could have been politically feasible. I don’t know if it would have been supported by both sides, or attacked by both sides, so I guess in the end the Government went for the safer consensus package of limited change.

A matrix showing the salient aspects of each package is below:

The comprehensive package would have seen the taxpayer funded broadcasting allocation able to be spent in any media, and parties able to buy their own broadcasting time (so long as under an overall spending cap).

The spending caps would have increased by inflating adjusting back to 1995.

Parallel campaigners would have a spending cap of $500,000 but be able to purchase their own broadcast advertising.

Before the Electoral Finance Act, I would have quite happily supported a reform package based on the comprehensive package. The third party spending cap of $500,000 is four times higher than the EFA, and the other gains (higher spending caps, ability for political and third parties to buy broadcast advertising) more than compensate for this.

The EFA, partly because of the malignant way it was negotiated in secret, and the hypocrisy that the Government was trying to clamp down on taxpayers spending their own money, yet exempt parties taxpayer funded parliamentary spending from the campaign cap, generated great hostility to the idea of third party spending caps. I helped lead that hostility.

In a post EFA world, I am not sure even a $500k spending cap would not face significant public resentment. It would have been widely supported before the EFA, but as a trade off to the other liberalisations may have been a package worth pursuing.

One other interesting revelation from the OIA documents, is that the consensus package originally included a lowering in the donation disclosure limit for parties from $10,000 to $5,000.  This was absent from the final package announced publicly, so Cabinet presumably did not support that.

• starting point for considering publication of evidence and names should be a presumption of open justice
• suppression should only be used in exceptional cases where there were compelling reasons
• grounds on which suppression may be granted need to be clarified and tightened
• development of a national register of suppression orders should be advanced as a matter of high priority.

These all seem good and sensible moves to me. The use of suppression orders has been growing, and they should be the exception, not the rule. Having tighter criteria is a good step in the right direction.

I am especially pleased to see the recommendation for a register of suppression orders. It is very difficult to sometimes know what has or has not been suppressed. And this is a complaint not just from me, but from many in the media.

With regards to the Internet, they recommend:

Where an Internet service provider or content host becomes aware that they are carrying or hosting information that they know is in breach of a suppression order, it should be an offence for them to fail to remove the information or to fail to block access to it as soon as reasonably practicable.

The wording here is somewhat vague.  Under the best case scenario this is not greatly different from the status quo. ISPs already have an implicit obligation to remove material if it is in breach of a suppression order.

But what has not been defined is is what they mean by carrying information, and what they mean by “become aware”. It is one thing to require an ISP to remove material hosted by that ISP. It is quite another to require them to try and block information from other sources.  That would be highly undesirable, plus it won’t work. ISPs should be responsible (once notified) of material on their own networks, but not be ordered to block overseas sites such as Wikileaks etc.

What constitutes bringing the information to the attention of an ISP will need clarification also. I have no problem with an ISP having to remove material upon official request by the Solicitor-General and Crown Law. But just having a member of the public allege hosted material breaches a suppression order should not be enough. The ISP is not competent to decide what is or is not a breach of a suppression order – hence it should be an official agency that has to make the request.

So overall the main recommendations look to be a move in the right direction. The recommendation relating to the Internet is too vague to be able to say for sure at this stage.

In a fit of good timing, there is a seminar on the 3rd of December where some of these issues can be discussed and debated.  The seminar, titled R v The Internet, is hosted by InternetNZ, the Law Commission and the Ministry of Justice.

The seminar is at Te Papa, and has an impressive line up of speakers, including:

Hon Christopher Finlayson, Attorney-General
David Collins QC, Solicitor- General
Tony Smith, Dean, VUW Law School
Steven Price, Barrister & author of Media Minefield
Robert Lithgow QC
Brent Edwards, Media Committee, EPMU
Warren Young, Deputy President, Law Commission
Judge David Harvey
Sinead Bouchier, Group Online Editor, Fairfax
Ursula Cheer, Associate Professor of Law, University of Canterbury

I’m also taking part in one of the panels. I think it will be a fascinating day. It is intended for legal, media, and Internet professionals, and anyone can register to attend for $100 + GST. You can also apply for a discounted rate.