Power on politics

December 9th, 2012 at 12:00 pm by David Farrar

Tamsyn Parker interviews Simon Power in his growing role with Westpac:

Power says one of the big differences in moving to Westpac has been getting used to the change in culture.

“In politics people’s motivations can be mixed – here everyone is very supportive.”

Ha “mixed” is a euphemism!

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Why Simon Power was wrong to trust Labour

November 12th, 2011 at 5:03 pm by David Farrar

Readers will recall Labour’s Electoral Finance Act, and how they rammed it through Parliament despite massive opposition. This shattered decades of rough bipartisan consensus that significant electoral law changes should be decided by either the public, or with support from (at least) both major parties. The Electoral Act is not meant to be the ultimate prize for the winner, where they get to rewrite the rules in their favour.

Hence Simon Power gave Labour a veto over the changes to electoral finance laws. He allowed them to veto reform of the broadcasting restrictions. He went even further than that, and reintroduced third party spending limits, despite the opposition of his own party. He did this with the most noble of motives – to remove electoral law from partisan gerrymandering.

Today Phil Goff shattered that. Radio NZ reports:

“People see a system being rorted, but my advice is that if we vote for MMP, then it will be reviewed.

“If there’s a Labour Government, we’ll take that rort out the system. You’ll have to get five percent to get more seats than simply the electorate seat that you win – that stops the rort.”

Simon Power set up a review of MMP, in case it wins. Phil Goff has just announced that Labour will remove the electorate threshold regardless of what the independent review by the Electoral Commission recommends.

There is a legitimate debate to be had about the threshold, and if MMP is retained the independent review is where that debate should occur. But let us not pretend, this is about any high minded principle. Labour want to legislate away their opponents. Their motivation is to change electoral law, so they will get to form Government more often.

By announcing unilaterally what would happen if Labour is in Government, Phil Goff has shattered the hard won agreement Simon Power achieved that significant electoral law changes should have bipartisan support. Goff has shown that if Labour forms Government, they will make partisan changes to the Electoral Act, to help Labour retain power. They have learnt nothing from the Electoral Finance Act.

This is not about ACT. This is not about whether or not the one seat threshold is or is not a good idea. This is about Phil Goff pledging to ignore the independent review and to use the Electoral Act to favour Labour electorally.

It was a Labour/Green/NZ First voting bloc that gave the Electoral Finance Act. God knows, what they will do if they get to form Government.

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Power’s Valedictory

October 6th, 2011 at 12:00 pm by David Farrar

I’ve enjoyed listening to all the valedictories (with one exception, which I will blog on later), but the one which most resonated with me was Simon Power’s which was simply superb. You can view it on You Tube, but here’s some extracts which struck a chord with me.

I have been surprised by some of the reaction I have  had to my decision to retire. All sorts of motivations have been ascribed to my decision

One of my cabinet colleagues – who is always concerned about how these sorts of things look for the Government – was keen to spread the rumour that the real reason could be traced to the existence of a series of incriminating photographs.

I was alarmed at the speed at which Murray McCully was able to invent such a scenario.

Heh.

As recently as last month, a constituent wrote to me angrily demanding my resignation. He may get pretty excited when he catches up with the news.

He may think he caused it!

I believe that politics is 90% preparation and 10% execution. At a day-to-day level, politics, particularly at a ministerial level, can quickly deteriorate to the daily management of tasks – dealing with papers, the media, OIA requests, Question Time, Written Questions, expectations from colleagues and your Party; tasks that become all consuming, and tasks that in the end do not improve the lives of New Zealanders at all.

That’s not why we run for Parliament. We run to lead agendas, improve the lot of our countrymen, to push change, and to execute ideas. People don’t spend years getting elected, more years waiting to get into Cabinet, to then say “Well, I managed that week well, I minimised risk, had no view, took no decisions, stayed out of trouble: well done me.”

Once in office, you’ve got to do something. That is why having a plan matters. Ideas also matter. In politics, ideas matter more than the political players themselves, because those people will come and go, but ideas endure.

Politicians should manage less and lead more.

Absolutely. We have Chief Executives to manage departments. Ministers should be about leadership. Sadly though in any Government it is usually a minority of Ministers who actually lead rather than manage.

I love the quote from influential Republican media adviser Roger Ailes, who was moved to quip: “When I die, I want to come back with real power. I want to come back as a member of a focus group.”

As a market researcher I shouldn’t laugh, but it can be so true!

So much of Parliament’s time is spent attacking each other, trying to out-manoeuvre each other, and just plain loathing each other. It’s an incredible waste of energy and time.

I was always reminded in cross-party discussions, or in the House during a particularly rough debate, of Michael Corleone’s edict: “Never hate your enemies. It affects your judgment.”

Very true.

To the day I die, I will never forget sitting in the lounge of Gil and Lesley Elliott in Dunedin, listening to them describe their experiences of the justice system. It had a profound effect on me and the way I viewed our legal system. Good, decent, kind people, whose lives were destroyed by tragedy deserve our help, not a slow-motion replay of the horror they went through.

And Simon’s mandate will be that things should be better for future victims and their families.

What the hell is it about the psyche of this country that we feel the need to go home and hit someone, be it a partner, a child, or another family member? This is totally unjustifiable, wrong, and an indictment on us as a society. Our legal system needs to protect these people and I hope I have made a small contribution to remedying these despicable acts of injustice and cowardice.

The entire House applauded this part.

Although the Peter Ellis matter was straightforward in the end – because appeal rights had not yet been exhausted (a basic requirement of the exercise of the Prerogative of Mercy) – the wider case worried me and continues to worry me.

This is one area where I do think Simon made a bad call.  Even if he could not grant mercy, I hoped he would set up a commission of inquiry into the case. I am glad to see he acknowledges the  case continues to worry him – it should worry us all.

The PM, whose confidence I have enjoyed and who gave me plenty of rope, some of which I have used. But of the 462 papers I have taken to Cabinet as a Minister, on only one did he phone to say “I can’t support this one.” Thanks for everything, John, you have been great to work with.

I wonder which one that was? Regardless a good record.

Nothing sums up Gerry more acutely than the time we got fish and chips for the caucus during urgency in the early hours of the morning in 2000. He stormed into the fish and chip shop at 4am, with me trailing behind, and said to the owner: “42 pieces of fish, 40 scoops of chips and 31 hotdogs.” Then he looked at me and said: “And what do you want?”

That one cracked the House up.

So, Mr Speaker, I bid you farewell, and leave you with one thought: We all know that it is a privilege being a Member of Parliament. But the most satisfaction should come from doing rather than being.

I hope that final quote features in some future MPs maiden speeches. It is not enough to just be a Member of Parliament, it should be what you do with that privilege.

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Power in General Debate

June 16th, 2011 at 1:00 pm by David Farrar

 

John Armstrong writes in the NZ Herald:

So Power opted for an oblique, but potentially hugely effective means of undermining a political opponent in the eyes of colleagues. Having made obligatory remarks about the plight of Cantabrians, he launched into a vigorous promotion of Mallard’s leadership credentials.

Power’s lampooning of the long-serving Labour stalwart was the funnier for everyone knowing that while there is precious little chance of Mallard becoming Labour leader, it is not wholly impossible in an unforeseen emergency.

Such was Power’s blitzkrieg-like precision and timing that it was obvious he had devoted considerable effort to writing and rehearsing yesterday’s speech, delivered during the Wednesday afternoon free-for-all general debate in the House.

Power began by naming potential aspirants lining up to take over from Phil Goff. That list included Wellington Central MP Grant Robertson, who was being compared to David Lange – “mainly by himself”.

Power then pondered the “mystery” of why Mallard had been leapfrogged over more highly ranked colleagues and given the tricky task of fronting for the party at last week’s press conference on the police decision not to charge Darren Hughes.

“‘Dare I say it, he [Mallard] looked authoritative and authentic. I have to say he is starting to look just a little bit like a future Leader of the Opposition.”

Power speculated that Mallard’s serious cycling accident earlier in the year had “liberated” the MP from “the important business of pushbikes so he could focus on his hobby of politics”.

I think Trevor’s priorities in order are cycling, blogging and then Parliament.

“He is looking in control, energetic … not doing too much too soon, playing the long game. A very long game,” Power added to the amusement of surrounding colleagues.

The lampooning continued without mercy. “This man knows if he can just wait Phil Goff out, the opportunities to take the reins are there for him … I think Trevor Mallard has found his mojo in recent weeks. I think Trevor Mallard knows it is only a matter of time before that long ambition he has held comes to realisation.”

The victim was well and truly skewered by now. Mallard’s only defence was an increasingly broad smile which suggested that as someone who can dish it out, he can also take it when it comes flying back. Even so, he was nervously jiggling up and down in his seat like a fish out of water.

The video is very funny, which is of course embedded above.

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Rejuvenation

March 3rd, 2011 at 10:22 am by David Farrar

Had an interesting chat to Mike Hosking on radio this morning about Simon’s decision to retire. Hosking said that it may be partly an age thing – just as younger workers routinely swap jobs every five years or so, you also have younger MPs who don’t want to spend their life in Parliament. They want to do 12 – 15 years and then go onto other things. The thought of doing a Phil Goff and joining a political party at age 15, standing for Parliament at age 28 and still being there when you are close to 60 is exactly what they don’t want to do.

Power became an MP at age 29 and is leaving at age 41. A big contrast.

Hosking asked me if anyone other MP has got out when they so obviously had a Ministerial acreer ahead of them, and my answer was Katherine Rich – a close friend of Simon’s. And it is quite possible that Simon has observed how absolutely happy Katherine has been since she left Parliament – a theory shared by Duncan Garner.

But there is one upside to Simon’s decision – it does make rejuvenation easier for National, and indeed the decisions of both Simon and Wayne Mapp should serve as a wake-up call for other Ministers that no-one is there for ever.

Soon after National won the 2008 election, I pondered what National needs to do to have a lengthy Government – three or even four terms. There’s a lot of factors which are situational – policies, economy, issues, response to scandals etc. But there are also some factors which tend to be almost always true – that the public are loath to keep re-electing the same old people into Government.

So a necessary (but not sufficient) condition for a long-term Government is to rejuvenate. And this has to happen not just in your third term, but throughout. Helen Clark did some useful rejuvenbation in her third term, but by then it was too little too late.

National has 23 Ministers at present. For the sake of easy maths, we’ll pretend they have 24. To maximise chances of a third or even the holy grail of a fourth term, one has to go into your third election with half your Ministry being new, and to get a fourth term, almost your entire Government needs to be new – including arguably the Prime Minister.

So in the rejuvenation plan I sketched in my head, one would have the following rejuvenations:

  1. Six Ministers retire at end of 1st term (2011), and new Ministers appointed at beginning of 2nd term
  2. Six Ministers retire around a year before end of 2nd term (2013), and six new Ministers appointed prior to general election
  3. Six Ministers (including most of the senior leadership) around halfway through the third term (2015), and six new Ministers appointed, plus more junior Ministers step up into the senior portfolios

Helen Clark found out the hard way that NZers are reluctant to give a PM and an almost unchanged frontbench a fourth term. Likewise John Howard made the mistake of going for a fifth term, when he could have retired with greatness after four.

It is important to stress that Ministers should retire and allow rejuvenation not because they are bad Ministers, or because their replacements will be necessairly better than them. Often a new Minister will take time to come up to speed. But without rejuvenation you burn off public support (and you end up with frustrated backbenchers).

So far in this term, we’ve had two Ministers resign (Worth and Wong) and three Ministers announce their retirement (J Carter, Mapp and Power). I think there is a reasonable chance of one more retirement before the election, so by coincidence the number will be six. Of course two of the spots have already been claimed by Nathan Guy and Hekia Parata.

Winning a second term doesn’t tend to be about rejuvenation – more about the performance of the Government (and Opposition) only. So that is why you tend to keep Ministers in office until the election and have their sucessors become Ministers after the election (if you win).

In the second term, it is different. You want to go into that election for a third term with actual new faces – around half the Ministers should be different from the beginning of the first term. So one would expect the PM to do a significant reshuffle around a year before the 2014 election. Leaving it until after the election is too late.

What this means, is that most (that is not the same as saying all) of the Ministers who were also Ministers in the former National Government of the 1990s should be thinking seriously about retiring at the 2014 election, with a step down from the Ministry at the end of 2013. You will have had five years as a Minister and of course your previous ministerial experience. Your experience has been invaluable to stabilising this Government, but rejuvenation will be essential to maximise chances of a third term or beyond.

And if National does manage to win a second and thrd term, then I do think that John Key could do what no other Prime Minister in NZ’s history has done – and get out while on top. I don’t think he wants to set a record for longest serving PM in power as Clark did. I think he will feel that 7.5 to 8 years as PM and 9 – 10 years as National Leader is a pretty good run, and he’ll let new leadership emerge for that elusive chase of the 4th term. And if people see the National Government seeking a 4th term as a very different beast to the National Government that came into power in 2008, it may be possible.

Now you may think I’m getting ahead of myself thinking about third and fourth terms, when a second term is yet to be won. Well as I said, the second term doesn’t tend to be an issue of rejuvenation. But rejuvenation is an issue you have to be candid about well in advance. It is unfair on Ministers to have them think they will continue forever, and then after an election they find out they’re a backbencher again. Then you just get a surly backbencher for three years.

It is important to make sure rejuvenation expectations are known well in advance. That way Ministers can announce that they will retire at the next election, before any reshuffle, so that they are seen as retiring, not as being forced out. One should always try to preserve dignity.

So fow now, the level of retirements is about right. But if re-elected, some Ministers should give careful consideration (in my opinion) to retiring in 2014. Not because they are doing a bad job. Not because they are not valued. But because you don’t win if you don’t rejuvenate.

The actions of both Power and Mapp in retiring long before they were due to be pushed, should serve as an example to others.

It’s also an example some Labour MPs could follow.

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Power to retire

March 2nd, 2011 at 11:00 am by David Farrar

Good God I’m stunned.

NZPA report:

Cabinet Minister Simon Power is retiring from politics in November to return to the private sector.

The high-flying National MP is the minister of justice, commerce, State-owned enterprises and the associate finance minister. He is also the minister responsible for the Law Commission and Deputy Leader of the House.

His name has frequently featured in future leader predictions but today he announced he was leaving Parliament.

Mr Power, MP for Rangitikei, said he was looking forward to continuing to contribute to New Zealand’s growth, but in the private sector.

Simon was a guaranteed front-bencher for the next two terms of Government, if National was re-elected. Good on him for deciding to get out while on top, but he will leave a big gap in Cabinet. His workload was massive and he oversaw many major reforms.

On a personal level, I’ve always found Simon very approachable and good to talk to. I recall first meeting him as a candidate and being hugely impressed.

In Government I’ve agreed with many of his decisions, and disagreed with a few – that is the nature of politics. But always found him very willing to engage.

Simon has the respect of many Opposition MPs for his willingness to consult and compromise. His chairing of the Privileges Committee hearing into Winston was superb and we saw Simon at his best.

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No Crewe inquiry

November 29th, 2010 at 6:52 am by David Farrar

James Ihaka at the Herald reports:

Justice Minister Simon Power has turned down calls for an independent inquiry into a 40-year-old murder mystery. …

William Rowe, a spokesman for Arthur Allan Thomas, the man wrongly accused of murdering Jeanette and Harvey Crewe, wrote to the minister’s office supporting calls for an independent inquiry.

In the email he wanted to know who, on the balance of probabilities, murdered the Crewes.

He also asked if there was evidence to bring charges against anyone involved in the investigation for the wrongful arrest and convictions of Mr Thomas based on the Thomas Royal Commission findings in 1980.

“I plead with you to do the right thing and order an inquiry,” said Mr Rowe in the email.

“Justice is the most important thing in the world and every New Zealander has the right to have faith in the system, because it belongs to them, not the police.”

In response, Mr Power said he understood the interest in seeking closure, but his hands were tied. …

“Neither I nor my ministerial colleagues can direct the police to reopen the case.”

If the request has been made 30 years ago, or even 20 years ago, then I’d say go for it. BuSt I can’t imagine in 2010, an inquiry could come to any useful conclusions. Finding out who, on the balance of probabilities, murdered the Crewes, would have been possible when key people were alive, but at least two of the suspects are dead.

So on this issue, I think the Minister has made the right decision, in fact almost the only decision possible.

The case that I do think should have had a full Commission of Inquiry is the Peter Ellis case.

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Return of the EFA

November 22nd, 2010 at 11:57 am by David Farrar

God I am pissed off. The Electoral (Finance and Advance Voting) Amendment Bill has been reported back, and National and Labour have voted for introducing a cap on third party spending.

I really wonder sometimes why we bother changing Governments, when the  new Government adopts so many politics of the old Government – especially a policy that was a big part of why they got thrown out.

The law is not as bad as the old EFA, for four reasons, but is still an unjustified limitation on the rights of New Zealanders to campaign against Governments or parties they don’t like. The four mitigating factors are:

  1. The limit is $300,000 over three months rather than $120,000 over 11 months. That is around 10 times as high per month.
  2. The bill does follow a public and transparent public policy process where people were allowed to have their say, and where most backed a limit
  3. The bill has bipartisan support, and is not an attempt by one party to do over their opponents
  4. There have been some trade-offs with Labour agreeing to back higher spending limits for candidates

But don’t read that list of mitigating factors as signalling agreement with the bill. I think National has sold out far too cheaply. I did say in my submission that I supported bipartisan agreement, and if National concedes on something , then basically Labour should do the same. But the only concession that in my opinion would be suitable for having a limit on third party spending would be removing the draconian ban of political parties being able to but advertising time on television and radio. If National could have got Labour to agree to that change, then I would grudgingly accept a compromise on third party spending.

I think many of those who protested against the EFA will feel a sense of betrayal with this bill. National has put the desire to be bipartisan with electoral law (which is commendable) ahead of doing what is right.

I did support the bill at select committee stage on the basis it did improve things in several areas. And the select committee has also made many other minor improvements which I support (and will detail in a later post). But the inclusion of a limit on third party spending, combined with no lifting of the ban on parties buying their own broadcasting time, means that I no longer think the bill is worth proceeding with.

I accept that in reality few third parties will find the $300,000 limit a barrier. The trade unions tend to be the biggest spenders and their biggest contribution is staff hours (which do not count as spending). And the limit is simple to get around also. But by agreeing to such a limit, National has now made it easier for future Governments to lower it, to try and silence their opponents.

Labour should be very very happy with the willingness of the Government to not just give them a veto over changes to the existing law, but also to introduce measures the National Party submitted against, all for the sake of bipartisan electoral law. It is a universe different from what Labour did in its last term, and my fear is that a future Labour Government will not return the benevolence and when they are next in Government, make changes without bipartisan support.

National MPs who railed against the Electoral Finance Act should feel very sheepish when they vote for this bill to become law. I suggest National Party members take advantage of end of year meetings to ask their MPs why they agreed to support limits on third parties using their own money to have a say during election campaigns.

UPDATE: Whale provides us with this updated billboard:

It would look better if it was 6 metres by 4 metres in size I think.

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Nice to see Labour not automatically opposed

November 16th, 2010 at 10:00 am by David Farrar

The Herald reports on the sweeping changes to trials in the Criminal Procedure (Reform and Modernisation) Bill.

The one that will probably attract the most debate is moving the threshold for jury trials from a maximum three months to a maximum three years.

While the list of offences that would be affected is long, officials have advised Mr Power that the most common cases would be theft of between $5oppos00 and $1000; receiving between $500 and $1000; possession of a class A drug; common assault; and assault on a female or child.

I’d be interested in what the stats are for these offences, in terms of how many people convicted of them even receive a jail sentence at all. A maximum is just that – and generally never given out.

The opposition Labour Party’s associate justice spokesman, Charles Chauvel, said that while some change in the threshold for jury trials made sense, Labour would reserve its position until it had heard select committee submissions.

That is a very sensible position to take, and good on Labour for not being opposed just for the sake of it. I’m not 100% convinced myself moving the threshold to three years is the right point – maybe it should be two years – again would be good to see hard data on this.

Some of the charges no longer tried before a jury (with current maximum term):

SIX MONTHS
* Ill treatment or wilful neglect of child
* Possession or use of class A drug

ONE YEAR
* Possession of unauthorised seed or fruit

TWO YEARS
* Driving with excess breath alcohol (3rd offence onwards)
* Driving while disqualified (3rd offence onwards)
* Bigamy
* Infanticide

THREE YEARS
* Assault with intent
* Making intimate visual recording
* Aggravated careless use of vehicle causing injury or death
* Indecency with animal

Oh that is unfortunate. If these changes come through, I’ll never get to be a juror on a donkey sex case. I always thought if one has to be a juror, that would be more interesting that an assault or burglary case etc.

On the other hand these donkey sex cases tend to always be in Nelson or Christchurch, so I guess I would not have got one anyway. And add to that, that in 25 years of availability I have never once been summoned for jury service.

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Review good, framing of it bad

October 14th, 2010 at 3:46 pm by David Farrar

Simon Power has announced a review of new media:

Justice Minister Simon Power has asked the Law Commission to review the adequacy of regulations around how the Internet interacts with the justice system.

“I’ve ordered this review because it’s imperative the law keeps pace with technology and that we have one set of rules for all news media,” Mr Power said.

I am a supporter of there being a review, and have in fact advocated for it. But I have to say the way the Minister has framed it is regrettable and rather confrontational.

First of all it may make a nice slogan, but the status quo doesn’t have one set of rules – broadcast media have very different rules to print media.

“At the moment we’ve got two tracks – conventional media and the so-called ‘new media’ – intersecting with the justice system, and it’s not sustainable.

“It’s a bit of a Wild West out there in cyberspace at the moment, because bloggers and online publishers are not subject to any form of regulation or professional or ethical standards.

This is another slogan which means little (and remember I do actually favour a review). First of all bloggers are subject to the law – as have been demonstrated of late. The notion of regulating bloggers (beyond the normal requirement to obey the law) or imposing some sort of “professional standards” on them is ridicolous fancy. Bloggers are simply citizens having a say. Simon Power makes it sound like he thinks you should have to apply for permission to have a voice online. Now that may not be Simon’s intent, but the way he has framed this issue is incredibly bad.

“Issues I’m concerned about include how trials can be prejudiced by information posted on websites and seen by jurors, real-time online streaming of court cases, breaches of court suppression orders, and re-publication of a libel.

Issues which I helped facilitate discussion of at last year’s R v the Internet seminar. They are good issues to discuss.

It will focus on whether either of the two existing industry watchdogs – the Broadcasting Standards Authority and the Press Council – could provide a suitable vehicle for regulating unregulated forms of new media.

Yeah, and lets also give them the power to fine MPs if they say nasty things on their Facebook pages.

Having said that, it is worth noting the Press Council is self-regulation, not external regulation. One could discuss options such as allowing bloggers to voluntarily sign up to the Press Council, if they wish to do so as a way to enhance their reputation. But you then have issues around who covers costs of the Council – considering most blogs are non-commercial.

Mr Power says the public will have the opportunity to have their say when the commission releases an issues paper by December next year.

That is December 2011? Good – this should not be rushed.

As I said I am pleased the Law Commission is doing this review, as there are potentially even benefits for bloggers in it. But the way the Minister’s press statement has framed the issues is not good, and likely to rub a lot of people up the wrong way.

I will be advocating to the Law Commission, and InternetNZ, that they look to convene some workshops next year to discuss and define some of the issues.

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Govt announces changes to name supression laws to make it harder.

October 5th, 2010 at 12:20 pm by David Farrar

Simon Power has put out a statement and Q+A here:

Under the proposals, the court will only be able to make an order prohibiting the publication of a defendant’s name, address, occupation, or other details likely to lead to their identification, on the following grounds:


  • Where there is a real risk of prejudice to a fair trial.
  • To prevent undue hardship to the victims.
  • Where publication would identify another person whose name is suppressed by order or by law (e.g. a victim).
  • Where publication would endanger the safety of any person.
  • Where publication would cast suspicion on other people that may result in undue hardship.
  • To prevent extreme hardship to the accused and/or people connected to the accused.
  • Where publication would be likely to prejudice the interests of the maintenance of law, including the retention, investigation, and detection of offences.

Mr Power said the legislation would make it clear there is no presumption of extreme hardship solely on the grounds that an alleged offender is well known.

“Being famous is not a good enough reason to be granted name suppression.

Hear hear. The new test of “extreme hardship” should see fewer defendants getting name suppression.

Also announced:

Mr Power said there will also be substantial increases to the penalty for breaching suppression orders, in accordance with the Law Commission’s recommendations, including:

  • For individuals, doubling the maximum term of imprisonment from three months to six months. Judges will also be able to impose a fine of their discretion in lieu of imprisonment if the circumstances warrant it (the current maximum fine is $1,000).
  • Increasing the maximum fine for organisations from $5,000 to $100,000.
  • Introducing a new offence to capture New Zealand-based Internet service providers or content hosts who do not remove locally hosted suppressed information which they know is in breach of a suppression order, and who fail to block access or remove it as soon as reasonably practicable.
  • These are obviously a response to Cameron Slater. I will be carefully scrutinising the proposed law around the liability for content hosts. There are all sorts of issues, such as how do you determine which someone “knows” they are in breach. This should only be triggered if (for example) Crown Law have actually advised of the breach, rather than just any member of the public.

    Also the release is misleading to say the current penalty is a maximum three months imprisonment. There is no imprisonment option at present for most name supression breaches – it only exists for identifying a child witness.

    I think they are over-reacting with six months jail as a maximum penalty merely for name suppression breaches. I agree the current maximum fine at $1,000 is inadequate, but considering these are strict liability offences, I would prefer imprisonment remains an option only for contempt, or for identifying child witnesses.

    Mr Power said the Ministry of Justice will continue to consider ways of helping the media to comply with suppression orders, including the development of a national register of suppression orders.

    “I see merit in a register. But there are issues that need to be worked through, including who has access to it, the cost of running it, and the practicalities of keeping it up to date.

    I strongly support such a register. And if Internet content hosts will be liable for breaches, then there needs to be such a mechanism where they can verify is content complained about is in fact in breach.

    Under the Q+A:

    Will the media be allowed to stay in court when the court is closed to the public?

    The right to a public hearing lies at the heart of open justice, and closing the court to the public should be used only as a last resort where a high threshold is met. The grounds will be specified in legislation, and include matters such as: it is required to protect the security or defence of New Zealand; or it is necessary to avoid endangering the safety of any person.

    Even where the court is closed, legitimate media will generally be able to be present. Legitimate media will be defined to cover members of the media subject to a code of ethics; and the complaints procedure of the Broadcasting Standards Authority or the Press Council.

    Will media be able to appeal against a suppression order?

    Legitimate media will be given standing to appeal against a decision in relation to a suppression order.

    This is a big issue. I hate the term “legitimate media” and frankly resent it.  Also the Press Council can consider complaints about media who are not members, so drawing aline may be difficult.

    I fail to see why the fuck so called legitimate media will be allowed to stay in a closed court, but not a blogger. Both will be giving their words to the court not to publish, and face sanctions if they break that word.

    But the real irony, is that 99% of “leaks” about name suppression come from “legitimate media’ reporters. How do you think, the real identities get out.

    The Cabinet Paper is here.

    The law change is a step in the right direction, and will make name suppression rarer and harder to get. However there are some undesirable aspects to the proposals also – both with the chilling effect of potential jail terms, the potential liability for Internet content providers and the so called “legitimate media” distinction.

    I’ll certainly make submissions to the select committee on the bill when it appears, but also am going to suggest that a workshop/seminar to discuss the proposed law changes be arranged where Internet, media and legal people can discuss them, and identify fish hooks. I think most people agree on the intent, but it is important to minimise unforeseen consequences.

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    Electoral Law discussion

    September 2nd, 2010 at 4:15 pm by David Farrar

    The four speakers are Simon Power, Charles Chauvel, Caroline Morris and Philip Joseph. I missed some of the written constitution session as I had to go out and buy a new power cord for my laptop.

    Power is speaking first. Basically just going over work to date – MMP referendum, new Electoral Commission, EFA repeal. Highlighting that the crucial thing with its replacement has been a transparent inclusive process.

    Power has effectively said that any further changes to the finance law will require identification of some clear harm to be fixed, that is agreed across the political spectrum. This means that not everyone will be happy, but that there will be nothing that any group finds offensive.

    Next up was Chauvel. Mainly focusing on why MMP is good.

    Joseph argued that the Maori seats should not be entrenched and in favour of a longer and fixed parliamentary term. I agree with him on all points. He only favors a fixed term if it is longer.

    However Joseph is pessimistic on the chances of reform.

    Finally Morris is up. Focusing on conduct of MPs. Says discipline of MPs should not be left to party leaders.

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    The alcohol law reform packaage

    August 23rd, 2010 at 2:00 pm by David Farrar

    Have been in the lockup for the Government’s response to the Law Commission report on alcohol. It is one of the largest cabinet papers on record, with a huge 202 recommendations. The Minister has obviously spent a lot of time going through the issues.

    The zealots have already slammed the report because the Government did not implement everything the Law Commission recommended. I say thank God for that. The previous Labour Government commissioned that report, from a body headed up by a former Labour Prime Minister.  Why on earth a National Government would be expected to do everything they say, I don’t know.

    We have elections in this country to decide policies, and I am glad the Government has not gone down the total nanny state path. In some areas they have gone done that path, but nowhere near as bad as it could have been.

    If Labour want to campaign at the next election to ban Tui billboards, outlaw alcohol sponsorship of sports, hike the alcohol excise tax by 50%, make it a crime for a 19 year old to have a glass of wine with his/her parents in a restaurant and force bars to have a one way policy at 2 am, then that would make my day. The alcohol zealots should encourage Labour to promise that, and then the people can decide at the election.

    So what is in the Government’s proposals.

    1. More powers for local authorities to set a local alcohol policy which will determine locations for licenses premises, trading hours etc. This is sensible in my opinion as the needs of Wainuiomata (for example) may be very different to Courtenay Place.
    2. Tighter criteria for off-licenses so only eligible are retailers where alcohol is 85% of sales or grocery stores where food is 50% of sales, or hotels/taverns – unless there are a lack of premises in the area. Again, no real issues with this.
    3. Provision of free drinking water a requirement for premises which sell alcohol for consumption on the premises. At present this is a custom, not a requirement.
    4. A maximum trading hours for off-licenses of 7 am to 11 pm. I don’t support this, but am glad they at least changed it from 10 pm to 11 pm. I often am doing supermarket shopping at 10 pm, so will be able to grab a bottle of wine still.
    5. Maximum trading hours for on-licenses from 8 am to 4 pm. Again I don’t support this, but it is only an hour earlier than the de facto 5 am close most places have. It isn’t true nothing good happens after 4 am – ironically by that time of the night you are normally on non alcohol drinks sobering up. So forcing a closure at 4 am may in fact make things worse.
    6. Rejected the proposed one way policy from 2 am. Thank goodness for that. It would have destroyed Courtenay Place as you wouldn’t be able to have outside drinking areas under such a policy.  It would also have led to all sorts of problems as people can’t catch up with their friends etc.
    7. Local authorities can vary the national trading hours (both shorter or longer) if they wish. So Queenstown for example might set a time beyond 4 am. However their decision can be appealed for reasonableness. I think this is good flexibility.
    8. Parliament loses it exemption from liquor licensing laws.
    9. Split purchase age of 18 for on-license and 20 for off-license. This will be a conscience vote. This is better than a 20/20 age but is quite deeply flawed. As one looks at the details one will still be able to supply alcohol to 18 and 19 year olds (just not sell it directly) so it will create a culture of supplying alcohol to those who can not legally buying it. You will hear more on this point.
    10. Ironically 19 year olds will be able to sell alcohol in supermarkets and bottlestores, but not buy it! To be fair, currently a 17 year old can sell alcohol also.
    11. Parents can continue to supply alcohol to their own children at home, or in any private setting or at certain licenses premises such as restaurants.
    12. Under 18 year olds can not possess or drink alcohol in public, unless with a parent. This will be a $200 infringement.
    13. Consent of a parent is needed to supply alcohol to an under 18 year old, and supply without consent can be a $2,000 fine. Long overdue – finally it is an offence to give a 14 year old a bottle of vodka.
    14. The adult who supplies alcohol (with consent) to under 18 year olds must do so responsibly and supervise the consumption. Again – long overdue. This is what may have made a difference to the Kings College case.
    15. The 50% increase in excise tax is rejected. Yay. I have yet to see a compelling economic analysis that the current excise tax does not cover the external costs of alcohol.
    16. A minimum price regime will be considered in a year’s time once they gather data from retailers. I have some sympathy for a minimum price regime, as loss-leading on alcohol isn’t that desirable. It is a better response than an across the board excise tax increase.
    17. Will be an offence to promote excessive consumption of alcohol or to advertise in a way that appeals to those under the purchase age. Also can not promote free alcohol or make purchase of alcohol mandatory for other goods and services.
    18. The recommendation to have a total ban on all alcohol advertising and sponsorship has been rejected and sent back to Russia. Having said that I do think the current ASA code on alcohol advertising is ineffective and do actually support there being some sort of penalties for advertisements that breach the code. At present the only penalty is the advert gets withdrawn.
    19. Makes it an offence with a fine of up to $2,000 to make a false representation of age. So having a fake ID could not be very expensive. Also an offence to lend someone your ID so they appear 20.
    20. They have rejected the proposed $200 fine for people who spend the night in the cells detoxing. I like this proposal but the argument against is it would cost more to set up the fine system, than it would bring in, and also it may discourage drunk people from approaching the Police for assistance – which could lead them to more harm.
    21. The Ministers of Justice and Health can ban certain products deemed undesirable such as alcoholic milk, or alcoholic iceblocks. I never knew one could get alcoholic milk!
    22. RTDs to be a maximum 5% and also a maximum 1.5 standard drinks. This is also a good move, as it was the RTDs that had four or five standard drinks in them which were plastering people. At 1.5 standard drinks they actually become difficult to get too drunk off.

    Overall, it could have been a lot worse – some stuff I don’t like, but they have rejected the worst excesses of the zealots. There are a lot of things there that will help – especially banning supply to under 18 year olds without consent or supervision.

    I’ll blog more on this over time. But I think Simon Power has done a pretty good job with this one. As I said at the beginning, Labour will make my day if they campaign on implementing the entire Law Commission report.

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    The “claim of right” defence

    July 15th, 2010 at 9:00 am by David Farrar

    The Herald reports:

    The Government will change the “claim of right” defence so it cannot be used as it was by three activists who escaped conviction despite wilfully damaging a communications base at Waihopai. …

    The New Zealand Law Society agreed the law needed to be changed.

    “Everybody, including most lawyers, were surprised it was a successful defence in that case,” said Jonathan Krebs, the society’s convener of the criminal law subcommittee.

    “It’s quite astounding that the defence could be successful when these vandals decided they were going to go and destroy this thing. That needs to be corrected.”

    If the law was not changed, it would be a licence to vandalise.

    But he said it should not be repealed because it was a legitimate defence in some cases, such as when buying stolen goods that the buyer thought was a legitimate sale.

    I agree. The Government has put up five options. They are:

    1. Shifting the burden of proof
    2. Adding a reasonableness element
    3. Amending the offences that have ‘claim of right’ as an element
    4. Adding a property interest criterion
    5. Repealing the defence

    A briefing paper is here.

    A further paper in September will outline preferred options. Nos 1, 2 an 4 all looks pretty reasonable to me.

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    Hopeful common sense on youth drinking

    July 5th, 2010 at 7:30 am by David Farrar

    The Herald reports:

    The Government is considering making it unlawful for adults to give alcohol to young people without their parents’ consent.

    At present, under-18s can be given liquor without consent if they are in private homes or at private functions.

    Justice Minister Simon Power says parental consent is one of the liquor issues he is looking at but stresses that a change is not a certainty.

    “This is a really delicate balance because National is not in the business of getting into people’s homes on issues like this and telling them how to run their lives,” he said last night.

    “But the sheer proliferation of outlets and the time that liquor is now available definitely changes the framing of this debate.”

    Mr Power said parents had asked for such a move to help deal with teenage drinking. “I do think there is starting to emerge a view from parents that they would like some more assistance from the law to be able to have a firmer view on how their children are supplied with alcohol.”

    At present it is totally legal for an adult to give a 14 year old a bottle of vodka. It is also totally legal for that 14 year old to share it with his or her friends. And they can drink that bottle of vodka in public view on the front lawn of a private residence, and the Police can do nothing about it.

    I am supportive of the Government bringing in law changes to make it illegal to supply alcohol to under 18 year olds. The tougher issue is how to define the exceptions. Most people would support a parental exception- you can argue about whether it should be a total exception, or only for kids over a certain age (say 14) and also whether there should be a requirement for any alcohol supplied to be done so in a “responsible” manner.

    The other issue is whether parents can authorise another adult (ie parents of a friend) to legally supply alcohol, and does such consent need to be in writing, or implied. In this case one would also expect any supply to be done responsibly, which probably means an adult must supervise – and that adult can be held legally liable for any irresponsible drinking (such as that which has led to 10 teenagers drinking themselves to death).

    A law which makes it illegal to supply alcohol to 14 year olds will be far more effective, than making it illegal for  19 year olds to have a glass of wine in a restaurant over dinner.

    To that end it was pleasing to see Simon Power state on Q+A that if there was a conscience vote on the purchase age, he would vote to keep it 18.

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    The Simon Power lovefest

    April 22nd, 2010 at 5:52 pm by David Farrar

    Grant Robertson just started his speech on the S92A bill by saying he will join in the Simon Power lovefest. And Grant is right, the House has been having a Simon Power lovefest for the last four hours – a but a justified one.

    The House unanimously passed the MMP referenda bill, and speaker after speaker praised Simon for the process. While some advocated for spending restrictions on campaigners, the fact the bill was passed without dissent spoke for itself.

    Then we had the S92A copyright file sharing bill, and again every speaker said that the proposal developed by Simon was a huge improvement over the status quo, and was reasonably balanced.

    Having been involved in this issue myself, I have to say that I agree – it is a very complex area, and the Government has done well to come up with a workable model. I still think the Internet suspension provision should go, but we’ll have that debate at select committee. Pleased to see the House unamiously pass the bill.

    Fairly rare for a Minister to get two bills in a row passed unanimously, and to praise from all parties. Also good to have constructive speeches from all parties.

    Back to the MMP referendum, two questions for people.

    1. Should the voting at the first referendum for an electoral system to go up against MMP in the second referendum be a simple plurality option (tick one option, most ticks wins) or a ranked preferential option (ranks the four systems 1 to 4, and none get over 50%, drop off least popular option and redistribute preferences)?
    2. Should the second referendum be held at the 2014 election, or held before 2014 as advocated by this petition?

    I generally regard a preferential voting system as superior, but it can make things a bit more complex and put people off. However if we are asking us to pick a preferred option out of four, then is it too much to think they should be able to rank them?

    The timing of the 2nd referendum is finely balanced. One wants a very high turnout for a binding constitutional change. However I think as it is a binding vote on a binary choice, we would have a high turnout even if held outside a general election. The first referendum would suffer from a low turnout if done stand alone as it is not a final vote, but the second one less so.

    It occurs to me that one would get a better debate on the second referendum, if it was not held at the same time as a general election. The contest for Government will dominate the media.

    So I think there is merit in looking at whether the 2014 referendum (if there is one) can be held in late 2012 or early 2013.

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    Bain faces steep hurdle

    April 20th, 2010 at 4:00 pm by David Farrar

    Simon Power has announced:

    Justice Minister Simon Power has written to the lawyers representing David Bain in response to a claim for compensation for wrongful conviction and imprisonment. …

    Under Cabinet guidelines adopted in 1998, the category of claimants who are eligible for compensation is limited to those who have had their convictions quashed on appeal without order of retrial, or who have received a free pardon. To receive compensation eligible claimants must establish their innocence on the balance of probabilities.

    However, at the same time as adopting those guidelines, Cabinet decided the Crown should have residual discretion to consider claims falling outside the guidelines in “extraordinary circumstances” where it is in the interests of justice to do so.

    “Mr Bain’s claim falls outside the guidelines because he was acquitted following a retrial. However, it is open to him to meet the extraordinary circumstances test,” Mr Power said.

    Claims under the Crown’s residual discretion are assessed on a case-by-case basis.  At a minimum, and consistent with the Cabinet guidelines applying to eligible claimants, a claimant must establish innocence on the balance of probabilities.  But for claims that fall outside the Cabinet guidelines something more is required that demonstrates that the circumstances are extraordinary.

    This is quite significant. Even if David Bain qualified under the guidelines, he would still have to establish his innocence on the balance of probabilities.

    In my opinion, that test in itself is a considerable hurdle. There is a large difference between saying there was reasonable doubt over whether David did it, to saying that you think it is more likely Robin Bain was the killer, than David Bain.

    But Bain has to go beyond even balance of probabilities. That is the minimum test he would face. As he is outside the guidelines, he has to demonstrate extraordinary circumstances on top of innocence on the balance of probabilities.

    As I have said before, I look forward to a QC being appointed, investigating the case, and reporting his or her opinion on the balance of probabilities as to whom was the killer. But before that can happen, a process for establishing what qualifies as extraordinary circumstances needs to be developed.

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    The electoral finance reform the Government turned down

    April 20th, 2010 at 12:00 pm by David Farrar

    Last week a courier delivered a fairly large batch of documents to me, from the Ministry of Justice. They were all their internal papers on the latest electoral finance reform, which I had requested under the OIA. There were a couple of deletions (which I may appeal to the Ombudsman) but what they did deliver has revealed what reform packages were considered by the Government, and hence what we might have got.

    Nat Lab Green ACT Maori
    Taxpayer Funding Any campaign expense Broadcasting only Broadcasting only Any campaign expense (if any funding) Any party expense
    Parties able to pay for own broadcasting Yes No No Yes Yes
    Donation Disclosure Limit $10K and inflation adjust $1K $1K $10 K and inflation Adjust
    Overseas Donations Limit $2K $0K $1K Lift from $1K
    Donations Cap None Yes $35K
    Party spend limit Inflation adjust from 2008 Inflation adjust back to 1995 $1.50 per capita
    Elect spend limit $30K and inflation adjust Inflation adjust from 2008 Inflation adjust back to 1995 $1.50 per capita
    Regulated Period 3 months Starts 1 May Starts 1 May From Writ Day 3 months
    Parallel Campaigning Transparency only Registration threshold of $100K and a spending limit Low threshold for registration and $120K spending limit Transparency only Proportionate restrictions
    Parallel Campaigners allowed broadcasting access Yes No No Yes

    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:

    Consensus Comprehensive Parallel Reg Broadcast Reform Status Quo
    Taxpayer Funding Broadcasting only Any campaign expense Broadcasting only Any campaign expense Broadcasting only
    Parties able to pay for own broadcasting No Yes No Yes, up to $300K No
    Donation Disclosure Limit $5K draft but $10K finally $5K $5K $5K $10K
    Overseas Donations Limit $1K $1K $1K $1K $1k
    Donations Cap None None None None None
    Party spend limit Inflation adjust from 2008 Inflation adjust back to 1995 Inflation adjust from 2008 Inflation adjust from 2008 $2.4m
    Elect spend limit Inflation adjust from 2008 Inflation adjust back to 1995 Inflation adjust from 2008 Inflation adjust from 2008 $20k
    Regulated Period 3 months 3 months 3 months From Writ Day 3 months
    Parallel Campaigning Register at $40K, no spend limit Register at $40K, spend limit of $500K Register at $40K, spend limit of $500K Transparency only Transparency only
    Parallel Campaigners allowed broadcasting access Yes Yes No Yes No

    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.

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    Law Society supports claim of right review

    April 13th, 2010 at 9:00 am by David Farrar

    The Herald reports:

    The New Zealand Law Society is welcoming a Government review of the defence used in the Waihopai spy base case, where three activists were acquitted of damaging property because their actions were based on a belief that what they did was lawful.

    Yesterday Justice Minister Simon Power announced the review of the “claim of right” defence, including looking at whether there needed to be a “reasonableness element” to it. …

    The Law Society’s convener of the criminal law subcommittee, Jonathan Krebs, said a review was timely.

    “The defence of a ‘claim of right’ certainly has a place, and it’s an important and fundamental defence to have.

    “But if the defence allows someone to be acquitted where there was criminal intent, however well-principled they thought it to be, then there is something wrong with the criminal law and it may need to be adjusted slightly.

    If the Government does not change the law, I suspect we will have a rash of property vandalism against various government buildings and embassies, with vandals using the same defence.

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    Legal Aid Changes

    April 7th, 2010 at 1:10 pm by David Farrar

    Simon Power has just announced some changes to the legal aid system. The two major ones are:

    1. A new quality assurance framework where legal aid lawyers will have to demonstrate competency to a selection committee on objective criteria.
    2. Expanding the Public Defence Service to Wellington, Christchurch, and Hamilton.

    The Auckland Public Defence Service has been quite successful, so good to see it is expanding.

    Hopefully the competency demonstration requirement will help solve the problem of delays caused by incompetent counsel (which it seems is mainly a South Auckland problem).

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    The new Section 92A

    February 25th, 2010 at 3:29 pm by David Farrar

    Simon Power introduced this week the bill to amend and replace the S92A copyright law. It is called the Copyright (Infringing File Sharing) Amendment Bill.

    As I blogged at the time, the Government’s Cabinet paper on the new law wasn’t bad, and a big improvement on the existing S92A. There are still provisions I don’t agree with, but the worst aspects were gone.

    The draft bill is actually, in my opinion, a slight improvement on the Cabinet paper. The Cabinet paper had a number of potential fish-hooks in it – such as the possibility one could get multiple infringement notices, for alleged infringing that occurred at the same time. InternetNZ detailed to the Minister a number of these fish-hooks, and it is pleasing to see that officials (and presumably the Minister) took account of these in drafting the bill.

    Pat Pilcher in the Herald comments:

    Under the new bill, offenders will receive three warnings. First a detection notice, which is then followed by a warning notice should the internet subscriber be accused of infringing copyright again.

    An enforcement notice is finally issued that could see third time infringers being fined up to $15,000 or have their internet disconnected for up to six months.

    Giving credit where credit is due, the Bill does incorporate time frames within which subsequent infringement notices cannot be sent, giving accused infringers time to amend their copyright infringing ways.

    As I said previously, this is a quite important thing. Generally there is a gap of three weeks  from the first “strike” until any alleged infringing can count for a second strike and so on.

    The new bill also allows accused for copyright infringers who feel they have been unjustly accused to apply to have their case heard by a Copyright Tribunal at no cost.

    This is definitely a good thing as the scope for wrongful accusations is potentially massive. Take, for example, the number kiwi broadband users using of Wi-Fi broadband routers.

    Yes, that is good that you do not have to pay to defend yourself. Also your identity is protected, unless you are found liable.

    ISPs are also going to be burdened with the costs under the new bill. Matching internet subscribers to IP addresses supplied by copyright owners, and keeping track of the three strike process is, at best, going to be a deeply complicated undertaking and likely a costly nightmare as well.

    While some of these costs will be met by copyright holders paying to lodge infringement notices, most ISPs will be left with little choice but to pass costs onto their subscribers.

    The level of fee which ISPs can charge is likely to be set by regulaton. It is a concern that the fee will probably only cover their variable costs of each notice, and not the very large one off capital costs of reconfiguring their systems to record such info.

    While copyright owners can ask for repeat infringers to be disconnected, they must do so through the courts and disconnections will last for up to six months.

    This is good in that courts are geared up to hear both sides of any infringement argument and will bring some much needed legal rigour where it was lacking in the previous bill.

    I don’t think termination is an appropriate penalty, plus it will largely be ineffective. But having said that, I welcome the fact it can only be done by a court after due process.

    Whilst the Copyright (Infringing File Sharing) Amendment Bill represents a step in the right direction (especially when compared to the original bill), it still incorporates some serious flaws.

    Worse still, it could prove ineffectual as most serious infringers are will utilise encrypted virtual private networks to avoid detection by copyright holders.

    I think there will be a fairly big drop in copyright infringing downloads (and that is not a bad thing), resulting mainly from people receiving an alleged infringement notice. Overseas cases have indicated over 50% of people stop downloading such material if they receive such a notification.

    Those that carry on regardless tend to be very dedicated, and will probably just move to networks which hide their IP addresses.

    I hope all parties in the House will support the bill at first reading, as it is a big improvement on the status quo. Once it hits select committee, I will encourage people to make submissions to improve the bill further.

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    MMP referenda

    February 16th, 2010 at 2:00 pm by David Farrar

    Simon Power has also announced details of the MMP referenda.

    1. Referendum in 2011 will ask whether they wish to retain the present MMP voting system.
    2. A second question will ask what alternative voting system they would prefer from FPP, PV, SM and STV, regardless of how they voted in the first question.
    3. If people vote not to retain MMP in 2011, then a run-off referendum in 2014 will be held between MMP and the preferred alternative.
    4. If people vote to retain MMP, the Electoral Commission will be asked to review our MMP system and recommend desirable changes.

    Two issues I think the select committee should consider:

    1. Should the second question on alternate voting systems be a preferential vote? I think it would be better if it was, ensuring that the most widely supported option runs off against MMP.
    2. Can the 2014 date for the second referendum be held earlier? I initially had the view it must be with the 2014 election, as that ensures a high turnout. However upon reflection I think the second referendum will get a very high turnout even if not at the same time as an election.
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    Consensus kills most meaningful electoral finance reform

    February 16th, 2010 at 11:26 am by David Farrar

    Simon Power has announced the Government’s electoral finance reform package:

    The Government has today announced its reform package for electoral finance laws.

    Justice Minister Simon Power says the decisions are the result of a thorough process.

    “The package comes after extended consultation with all parliamentary parties and the public.

    “As a result, Cabinet has decided to progress reforms only where there is broad public and political support.

    “If we are to have a system which is fair, workable, enduring, and in place before the 2011 election, broad consensus is essential.”

    Sadly, this means that many good reforms are not occurring. I will detail these below. There are some useful changes, but I am frustrated that some really stupid parts of the law are remaining.

    However I have great sympathy for the need to have broad support for the electoral law, so that changes to electoral law do not become the ultimate prize of the victor, trying to skew the playing field to keep them in power (as Labour did with the Electoral Finance Act).

    Effectively Simon Power (and Cabinet) has given Labour a veto over major reforms. I don’t like the outcomes this has led to, but do think it is generally the right thing to do, to not force changes through which don’t have widespread support.

    It is the polar opposite of what Labour, the Greens and NZ First did with the Electoral Finance Act.

    The Cabinet paper is here. Major aspects are:

    1. Parallel campaigners who spend more than $12,000 must register with the Electoral Commission, but there is no spending limits of such campaigners.
    2. Spending limits for parties and candidates to be inflation adjusted for future elections, but no increase to compensate for the lack of such adjustments since 1993.
    3. The definition of an election advertisement will exempt personal political opinions on the Internet
    4. One does not have to use your home address on election advertisements
    5. The Electoral Commission can give advisory opinions on the legality of proposed advertisements
    6. A new requirement that parties disclose all their income from donations in bands, including those below the disclosure threshold
    7. Include an associated persons test to make it harder to do what NZ First did, and not disclose donations as they were from seperate companies, even though they had the same owner.
    8. No change to the regulated period or the broadcasting regime.
    9. A proposal to align parliamentary and electoral advertising rules

    My thoughts on the changes are as follows:

    1. A pretty major win with no limit for parallel campaigners. It is not that I want third parties spending huge amounts of money for or against a party (the unions tend to be the biggest spenders) but that it is wrong for MPs to legislate to restrict the amount of criticism that can be advertised against them. Also the public are quite capable of forming their own views about very expensive campaigns.
    2. The lack of any change to the broadcasting regime is hugely disappointing. It is quite simply wrong that parties can not purchase their own advertising on radio or television, and also that effetively the major parties get a higher overall spending limit than smaller parties.  I also think it is wrong that current parties in Parliament get so much of the broadcasting allocation. Labour and the Greens refused to back change here, so the Government did not proceed.
    3. I am rather pleased with the decision to have further transparency with donations, by having disclosure in bands of all income. I proposed this at both stages of the review as it will give the public a more accurate picture of a party’s funding. It will be interesting to see under the OIA who else, if anyone, proposed this.
    4. The associated persons test for donations is very much needed to prevent what NZ First did.
    5. The lack of an increase to party and (especially) candidate spending limits is regrettable as they are too low, and prevent candidates from being able to do even basic communications such as direct mail. Even the Green Party supported retrospective inflation adjustments back to 1993, but Labour did not support this, so it did not proceed.
    6. While it is good the length of the regulated period has not increased from three months, I am astonished they did not go for a fixed start date of 1 August to avoid the current problem of candidates not knowing when the regulated period starts until they are halfway through it. I will be interested to discover under the OIA why this change did not occur. As far as I can tell from the Cabinet paper it may have been technical problems with snap elections.
    7. Allowing the Electoral Commission to issue advisory opinions on advertisements is very welcome. It should be difficult to breach the law.
    8. Also very sensible to allow a non-home address on advertisements so long as one can still contact the identified promoter.
    9. There is a proposal that Parliament ban use of parliamentary funds, during the regulated period, on any publicity material that can be deemed electioneering under the Electoral Act. I strongly support this and proposed such an action. Outside the regulated period only material which explicitly calls for votes (or members or money) is banned, but during the regulated period anything which even appears to encourage support for a party or candidate will not be able to be funded by the taxpayers.

    I back the change package as announced, and will submit on them. My criticism is about the changes not made. Hopefully over time a consensus can be gained to do further reform.

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    Law Commission on drug laws

    February 12th, 2010 at 10:01 am by David Farrar

    Simon Power must have a very sore kneecap after what was an un-necessary kneejerk rejection of pretty much everything in the Law Commission’s review of drug laws.

    “There’s not a single, solitary chance that as long as I’m the Minister of Justice we’ll be relaxing drug laws in New Zealand.

    Though he was “interested” in submissions on regulations limiting the supply of new drugs – including party pills – he had “no intention of changing the current rules”.

    “I’m happy to hear what the submissions have to say but I have advised the Law Commission that I have other things on my work agenda.”

    I’m surprised and somewhat disappointed by such a response – especially that Simon is generally seen as one of the more liberal and considered Ministers.

    I’ll turn to the detail of the options put out by the Law Commission, but note at this point that to categorise them all as “liberalization” is in fact incorrect. The Police Association President Greg O’Connor was quite supportive on radio of many of the ideas, as was the Drug Foundation which aims to minimise harm from drugs.

    Personally I’m far from convinced our current laws are working for low level drugs like cannabis. I’m hardline and back the Govt’s initiatives when it comes to drugs like P and Heroin, but am very open to the argument that instant offence fines from Police would be better than dragging people through court for minor possession offences.

    I’m one of the few people of my age that has never even tried illegal drugs, so my advocacy of a different approach is not motivated by self-interest. Cannabis could be legal and sold at New World with coupon discounts, and I still wouldn’t smoke it. But at least 46% of New Zealanders have used cannabis and I’m not sure we want to drag two million New Zealanders through court if they were all busted.

    Some of the options put forward by the Law Commission are:

    • Move from a three tier system (Class A, B and C) to a two tier classification system, to more clearly distinguish between the very harmful and less harmful drugs.
    • Rather than have arguments over whether drugs were for purpose of use or supply, have two different possession offences with a higher maximum penalty for the higher quantity offence.
    • A formal cautioning scheme, with up to three cautions for personal use offences, with requirements to undertake an intervention session and counselling
    • Option of infringement notices requiring a fine and/or attend a drug education session for less serious drugs
    • Prohibit any new psychoactive substance from being manufactured, produced or imported without prior approval

    Now some of the options the Law Commission put up are not things I would support. I’l plead guilty to not being too worried about the Bill of Rights implications that someone found with 10 kgs of Heroin has to prove it was for personal use, reversing the normal onus of proof.

    But there are some options there well worth considering. The Police already use their discretion a lot for minor drug offences. I’d rather there was a formal statutory framework around use of cautions. I also like the idea of infringement notices rather than criminal sanctions for first or second time offenders, and greater use of referrals to drug counselling sessions.

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    Jury trials

    December 22nd, 2009 at 3:00 pm by David Farrar

    The Government has done something novel as part of a consultation. It has actually released a draft bill for purposes of consultation. This allows people to give feedback on precise details. The bill is based on the criminal procedure simplification project, so will be controversial within the legal profession.

    The bill divides offences up into five categories of seriousness. They are:

    1. punishable by fine only
    2. punishable by a maximum term of imprisonment not exceeding 3 years
    3. an offence punishable by a maximum term of imprisonment of more than 3 years that is not a category 4 or 5 offence
    4. an offence listed in Schedule 1 of the bill (rape, wounding, kidnapping, arson etc)
    5. an offence listed in Schedule 2 of the bill (murder, treason, MP corruption, slave dealing etc)

    It is proposed that the first two categories be dealt with by way of judge only trial. No Right Turn is hotly against this, and says it is a breach of the Magna Carta.  He concedes that minor offences do not currently have a right for jury trial, but says a punishment of three years is not minor.

    The current law does not allow jury trials for charges where the maximum term is less than three months, so in effect the proposed change is to move the threshold from less than three months maximum, to a three year maximum.

    I blogged back in May on this, and listed the offences I could find that would then be tried by a Judge only. They include indecent acts in public (two year max), aggravated assault (three years max), assault with intent to injure (three years max), assault on a child or female (two years max), and theft of less than $1,000 (1 year max).

    I am comfortable with the threshold lifting from less than three months, but am not sure if three years is about right or too far. So I did some research.

    First of all I thought, what do people actually charged with these offences end up serving. It is almost impossible to ever get the maximum sentence.

    The percentage of convictions for an offence listed above, that even got a custodial sentence was very low – ranging from 3% for minor assaults to 15% for male assaults female. This is from Stats NZ 2008 stats.

    Then we go to the Ministry of Justice conviction and sentencing report for 2006. Of the 15% who get a custodial sentence for male assaults female, the average prison term is six months. With parole it means out in three months. So 85% get no prison term, and 15% serve an average three months in jail (and these are probably people who have dozens of offences chalked up by then). Is that serious enough to need a jury trial, considering the delays that mean for the victim?

    A minor assault has an average prison term of just 1.9 months, so on average out in 30 days.

    For theft, only 6% of convictions get a custodial sentence, and the average sentence is 5.6 months so out in 90 days.

    Only 2% of cannabis use convictions are custodial, and the average sentence is 0.9 of a month.

    Now I have not checked every single offence with a maximum penalty of three years or less, so I am open to persuasion that a threshold of two years or even one year could be more appropriate, but for the most common offences, the resulting penalties are overwhelmingly non-custodial.

    The Minister estimates this change would reduce the number of jury trials by around 1,000 a year. It would be useful to have that broken down by type of offence, so one could see what different it would make to have the threshold at say two years instead of three.

    Finally, I was interested in what other OECD type countries do – where do they draw the line?

    • France – jury trials reserved for most severe crimes only
    • US – Supreme Court has interpreted the constitutional right to trial bu jury as only applying to offences with a maximum sentence of six months or more
    • Australia and UK – no threshold as far as I can tell
    • Austria – serious criminal cases only
    • Belgium – grave crimes only
    • Canada – only for crimes with a maximum sentence of five years or more
    • Germany – no juries, but lay judges alongside professional judges
    • Greece – a panel of three judges and four lay jurors
    • Italy – only for serious crimes like murder, and a panel of 2 judges and 6 laymen
    • Japan – From May 2009 jury trials resume but only for severe crimes
    • Singapore – death penalty cases only
    • Israel – no juries (as British did not trust the locals)

    I find it interesting the countries with a jury made up of judges and lay people. Do teh Judges dominate the lay members of the jury?

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