Kiwiblog

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.

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.

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.

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.

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?

The Government has released their proposals for S92A, and I have to say that the proposal is not too bad. Some aspects not great, but some aspects are pretty fair.

The press release has a Q&A, but I recommend those interested read the full Cabinet paper.

My initial thoughts are:

Good:

• Three notices needed within 9 months to go to Tribunal
• Users can stay anonymous and send response via ISP
• Users remain anonymous at Tribunal stage unless they lose
• Notices must be sent to ISPs within 20 days of alleged infringement, so a huge number can not be collated over months and then piled into an ISP
• Rights holders will have to pay a fee per notice, to cover their admin costs in issuing the notices
• Termination/Suspension is an option only for courts, not the tribunal (or ISPs)
• Termination is defined as suspension of that account for up to six months so law is clear
• A new definition of ISP to be drafted for S92A only, which will be narrower then current definition which includes employers, bloggers etc.
• ISP given statutory protection where they comply with the Act and any court orders
• Law not to come into effect until six months after amendments passed
• 92A to be available for P2P infringing only, and material under 92C excluded from gambit of 92A

Not so good:

• Time between 1st and 2nd notice can be as little as 10 working days and 10 again between 2nd and 3rd. That means you can get to strike three in a month.
• The fee rights holders pay to ISPs is set by Govt and will not include capital costs of modifying systems
• No sanctions on right holders for false notices
• Termination/Suspension is still an option

Overall I have to say a huge improvement over the original 92A, and even a slight improvement over the discussion proposal.

I do think some further changes are desirable, and if a bill appears based on the paper, will submit for changes at select committee level.

A critical issue will be the level of the notice fee – too low and it will not provide a incentive for rights holders to be restrained in their allegations, and also it may not properly compensate ISPs for their costs.

I think the major change needed is the time frames for notices. They need to be such that a notice has to be based on an infringement that has occurred after one is sure they have received the previous notice. At present it does not do that. You should only get to strike two, if you have clearly continued infringing after receiving the first notice, and likewise strike three should only occur, if you continued after receiving the second notice.

But overall as I said, this is not too bad. Simon Power and officials have done a pretty good job in a complex area. But again that is not to say some further enhancements are not desirable, and I am looking forward to further engagement in the process.

First the Herald reports on views from Justice Minister Simon Power:

Justice Minister Simon Power wants to stop the emerging “special class” of high-profile people using their status to get name suppression.

Mr Power strongly signalled he would change the law to stop cases such as the one this month in which a “prominent entertainer” who admitted forcing a teenage girl’s face into his genitals was granted permanent suppression because publicity would have a detrimental effect on his career and his record and ticket sales.

Very pleased to see Simon take a strong principled stand on this.

Incidentally I’ve been doing a bit of a case study into that case, and plan to present the findings at the R v The Internet seminar on 3 December. I’ve been looking at the various sites which tell or hint at the name, and also how hard or easy it is to find out via searching.

The Herald editorial:

At a first glance, the Law Commission report Suppressing Names and Evidence appears a document of much promise. Encouragingly, it talks of the need for court proceedings to be more open and for rules governing the suppression of names to be tighter and more transparent.

But on closer inspection, there are grounds for reservation about its prescription for reducing the level of secrecy in our courtrooms. This detracts somewhat from the major pluses of a principled approach and a well-observed appreciation of the justice system’s current failings. …

Some of the Law Commission’s other suggestions are most welcome. It supports the development of a national register of suppression orders as a matter of high priority. This would eradicate the confusion that arises when different courts impose suppression orders at different stages of cases, thereby heightening the potential for breaches.

A register of suppression orders is well overdue.  People may be surprised by how hard it can be for even media to find out what exactly is supressed.

But the report is on less-secure ground when it seeks to control the internet, most notably the increasing trend of suppressed material being circulated. Because this is often hosted on overseas-based websites that are not subject to New Zealand law, there is a strong element of futility in much of what it suggests.

As I said a few days ago, if the intent is simply that an ISP removes supressed material actually hosted on its network, upon request from a Judge or Crown Law, I don’t see that as unreasonable. If however it is intended to require ISPs to block overseas based material, that will be futile and inappropriate.

The Press editorial:

A fundamental principle in the operation of the courts in New Zealand is that they should conduct trials in public and that it should be possible to freely report on those trials. …

It is heartening therefore the Government has indicated it will look favourably on a report this week by the Law Commission aimed at refocusing the courts’ attention on the basic principle of open justice, bringing greater clarity to the rules on suppression and ultimately making it harder to get. The commission has sensibly proposed that the grounds for suppression should be set down in statute. The reports suggests seven grounds, of which the most significant would probably be that suppression should be granted only where it would prevent extreme hardship to the accused and/or those connected to the accused.

The challenge will be to stop “extreme hardship” being watered down.

The Dom Post:

The commission recommends that the grounds on which suppression may be granted be clarified and tightened so they become “transparent, explicit and consistently applied”. It suggests, too, that judges must give reasons for granting or declining a suppression order and that temporary orders granted at an accused’s first appearance have an expiry date.

Sir Geoffrey and crew have also been bold. In recommending that the maximum penalties for breaching suppression orders be bumped up to six months’ jail or a $100,000 fine for a media outlet, they have also accepted the argument that the corollary must be that suppression orders are easier to track down. They say “the case for a reliable and up-to-date register of suppression orders to allow journalists to confirm the terms and duration of the order becomes even more compelling”. Hallelujah.

The mainstream media, who attend courts as the public’s surrogates, will largely applaud these recommendations – they almost never deliberately flout a court order. But it is hard to abide by the rules when it is hard to ascertain just what orders are in place.

I agree absolutely.

However, fairness demands that any penalties facing editors equally face bloggers who sound off about those before the courts in the anarchy of the blogosphere before and during a trial. If the powers-that-be determine that that is just too hard, they need to ask themselves about the value of suppression law in the internet age.

The editorial here is mixing up issues of suppression orders and contempt of court. They also talk about the blogosphere when many of the problems occur on Trade Me forums, Facebook, Twitter, message boards, Usenet etc etc.

Now I’m the last one to say bloggers should not obey the law, and in fact have gone to considerable lengths to try and obey the law. But there will be interesting issues if you take the editorial position of wanting bloggers to face the same penalties as editors (despite not having giant multinationals standing behind you to pay the bills). Presumably the editorial writer would then support bloggers, not just media, being able to access the proposed register of suppression orders – and also to be able to get accredited in courts to report on trials.

You can make a submission until 10 December on the Electoral (Administration) Amendment Bill.

The bill is generally excellent – it merges the Electoral Commission and the Chief Electoral Office, and allows the Commission to give advice on the legality of propose ads etc.

The one change I would like is to the method of appointment of the Electoral Commissioners. The current bill provides for the Minister to (effectively) appoint them after consulting with other parties. I would like to see the appointments either made by Parliament directly, or for the consultation requirement to be made an agreement requirement.

The reason is that different Ministers interpret a consultation requirement in different ways. I know in the 1990s that National consulted Helen Clark as Opposition Leader on some appointments and actually withdrew proposed nominees after Clark objected.

But when Margaret Wilson was Attorney-General, she was terrible. Her idea of consultation was to send a letter out Friday notifying the name of the person she proposes to have Cabinet appoint on Monday.

I was hoping some MPs would touch on this issue in the first reading, and they did:

Hon DAVID PARKER (Labour) : The Labour Opposition will be supporting the Electoral (Administration) Amendment Bill. I thank the Minister of Justice for the consultative process that has surrounded this bill. He has properly engaged with Labour, as, indeed, I am sure he has with other parties in this House in the preparation of this bill. As a consequence of that, Labour members are happy to support it in its reference to a select committee. Initially, the Electoral Commission, which is a new body set up by this bill and not the current Electoral Commission, was to include the Secretary for Justice as a member. Labour and, I understand, some other parties said that would not be right. Of course, the Secretary for Justice is the head of a Government department, so it would not be appropriate for that office holder to hold a role on the new Electoral Commission. The Minister agreed with that, so the commission will now be fully independent, and we agree that that is appropriate.

This is an example of good consultation. Simon Power had feedback from other parties, and modified the proposal. My concern is not about Simon as Minister of Justice failing to act on consultations. He won’t be Minister for ever, and my concern is some future Minister will act like Margaret Wilson and ignore any objections from consultation. That is why I think it should requirement agreement, not consultation.

I think there is still a question as to how the commission should be appointed. I have heard some people suggest that the commission ought to be appointed by Parliament, rather than by the Minister as part of the Government. I think that some people may submit on that issue to the select committee. We in Labour would be interested to hear from submitters and be informed by them on that matter.

I’m glad David Parker raised the issue, and hope that Labour will agree to a change – despite the fact they will be Government again one day.

The need for independence is even greater now, with the Chief Electoral Officer being one of the three Commissioners, as the CEO is the key individual who actually runs the election, and declares the result.

Previously the CEO was within the Ministry of Justice. So the State Services Commissioner appointed the Secretary of Justice and the Secretary of Justice appointed the CEO. While I don’t particularly like it being witin the Ministry of Justice, it did make it hard for a Minister to put in someone inappropriate.

Now though the Minister can appoint the Chief Electoral Officer directly. That is too great a power I submit.

METIRIA TUREI (Co-Leader—Green) : I do not intend to take a long call on the Electoral (Administration) Amendment Bill. The Green Party will support its first reading to get it before the select committee. We look forward to submissions by the public on the bill. …

When the National Government consulted the Greens on the proposal, we suggested from the outset that an Officer of Parliament – type body should be established, that it would be preferable to ensure that the new agency is absolutely and fully independent of the Government, and does not report to a Minister. The Officer of Parliament model is used here in Aotearoa with the Parliamentary Commissioner for the Environment, for example. It is also used in Canada for their electoral organisation and management. It places the oversight of the body with Parliament, as opposed to a ministry of the Government managed by one particular political interest. It reinforces its role to oversee and enable free and fair elections, which is a core concern of the House of Representatives and of Parliament. Certainly an Officer of Parliament model would be perceived by the public as more truly independent and would have more ability to comment on how the electoral process is operating, because it would not report to a particular Minister in the executive.

I agree with Metiria that the Commission is most suitable to be an Officer of Parliament. If this change is not practical in the short-term, than a fallback option is to at least require the Minister to gain agreement, not just consultation, with a super-majority of parties on appointments.

CHARLES CHAUVEL (Labour) :

There is also the police, and I will speak a little bit about their function, because the police are the enforcement body as far as our electoral law is concerned.

Although Labour supports this bill being read a first time, we believe that the bill does not address the issue of the enforcement machinery when there is a breach of electoral law. I suggest that that might be something the select committee looks at. The problem that the police always have, of course, is that electoral offences never go to the top of the queue. The police will always be concerned with crimes against the person, and with dealing particularly with violent crime. They will never be able to prioritise electoral matters, nor will they necessarily have the forensic expertise to do so. These days those questions require skills in dealing with tracking donations and financial disclosures, and so on, which call for quite sophisticated levels of skill that are probably more properly found in organisations like the Serious Fraud Office rather than the police. It might well be that with the forensic skills that are required, it would be useful to think about having an enforcement function under this new independent Crown entity rather than the police being responsible for that function, if we are truly interested in bringing all the functions together in an expert body that has the resources and the time to deal with the questions before it.

I agree with Charles that the Police do not see electoral breaches as a priority and it would be better with the Commission. However that is not so much an issue for this bill, but more for the bill which will come out of the Govt’s electoral finance review.

The final point I make is that if one has a look at the explanatory note, one sees that one of the options canvassed was to have an Officer of Parliament for this function. Personally, I think that would have been the most compelling option to go for. The explanatory note suggests there was not enough time to get that sort of apparatus going before the next election. But if we really want a truly independent body, charged with the conduct of elections in an honest and serious way, then, given the conduct of our other Officers of Parliament, in whom we have enormous faith, then that seems to me to be the best way to go.

Excellent.

What has been nice is that all the Opposition praised Simon Power for his consultation with them over the bill. It is great to see the merger happening after years and years of no action, and electoral law should be an area of bipartisanship as much as possible – it is too important to be treated as a bauble of office, as some sort of winner takes all prize.

I hope other people take the time to do a submission. If you don’t, then no complaining if you wake up one day in the future to read that Winston Peters has been appointed as an Electoral Commissioner

Simon Power has announced the process for referenda on the electoral system, and I am very pleased with the final process.

I blogged a few weeks ago that I was very concern that there seemed to be some talk of having people vote only once on retaining MMP, without knowing the alternative. But the Government has announced, well basically, exactly what I advocated (which I am sure is merely because it really is the common sense way to do it).

The process is:

1. Parliament passes a law enabling a first referendum to be held in conjunction with 2011 election
2. The first referendum will have two questions – the first question being do you want to continue with MMP or have an alternative system
3. The second question will be to select your preferred alternative – the options are likely to be STV, FPP, PV and SM
4. If the first question is a vote to retain MMP, the second question is academic and that is the end of it.
5. If the first question votes for change, then a second referendum will be held giving people a binary choice between MMP and the preferred alternative (the highest ranking option from the second question)
6. The second referendum will be held at the 2014 election
7. Enabling legislation for an electoral system based on the alternate electoral system will be passed prior to the 2014 election, and it will automatically come into force if the alternative system wins
8. The 2017 election would be run under the new electoral system, if there is a change

As I said, it is really good to see there is a fair process – basically a mirror of the 1992/93 referenda.

I find it interesting that in my unscientific blog poll, 47% back MMP, 23% STV, and only 20% FPP. Personally I think it is highly unlikely that we would vote to return to FPP.

A run off between STV and MMP could be interesting as they are both proportional electoral systems, but operate very very differently.

The Press reports:

The decision was surprising given that Attorney-General Chris Finlayson and Police Minister Judith Collins had signed a 2003 petition calling for a commission of inquiry, he said.

As did many professors of law.

Rich said the decision was “sadly predictable”.

“It’s interesting we’re spending millions on a Supreme Court building but still directing people to the Privy Council, which I doubt Peter Ellis will be able to access because of the expense,” she said.

Ouch.

“In the court of public opinion, Peter Ellis has already been pardoned.”

On most controversial cases, there are different views on guilt vs innocence. The Ellis case is remarkable in the huge number of people who view his convictions as unsafe. I don’t think I know anyone at all who thinks the convictions should stand.

The case was a fundamental demonstration of the justice system failing to correct itself, she said. “Every country has found a way to deal with those injustices.”

And this is where I think the Minister made the wrong decision.  Of course the officials were always going to have dozens of reasons to say don’t upset the status quo. But the reason we have a Minister in charge, not officials, is for the ability to look at the wider picture.

Brash said he was surprised at the decision because the request was presented with such strong arguments and the 2003 petition had been signed by major figures.

“The New Zealand justice system has let Peter Ellis down and it should have been New Zealand that sorted it out.”

Had he won the 2005 general election, a commission of inquiry would have been ordered, he said.

I really recommend people interested in this case read the Lynley Hood book. If you do you will, like Don Brash, be convinced that the current convictions are very unsafe.

Words can’t express how gutted I am that Simon Power has declined a Commission of Inquiry into the Peter Ellis case. I really hoped he would finally be the person to do the right thing.

The justification is that Peter Ellis has not exhausted all his appeal rights as he file an application for special leave to appeal to the Privy Council.

They also cite advice from Crown Law that such an inquiry may be ultra vires, as Ellis (unlike Arthur Allan Thomas) has not been pardoned. This is a classic argument of form over substance to my eyes. So the Government has to make its mind up that he is innocent and pardon him before they can establish a Royal Commission to investigate if he was innocent!

I really hoped Simon Power would not just go along with the recommendations of his officials, because it was always inevitable they would oppose this.

Just going to respond to press releases from Labour and the Greens on electoral finance reform. Now to some degree it is no surprise they disagree with some of the details in the proposal document. But it is useful to put their comments into context and recent history.

First Labour’s David Parker:

The Government is happy to consult on aspects of electoral law reform that suits it, and won’t look at changes to the donations regime that might disadvantage National, says Labour Electoral Reform Spokesperson David Parker.

First of all I must point out the Government in which Mr Parker served did no consultation on electoral law reform prior to introducing legislation. Yep, zero zip.

Mr Power has consulted all parties over the issues paper, consulted the public on the issues paper and is now giving both parties and the public an opportunity to give feedback on the proposal paper.

So the hypocrisy from Mr Parker is immense. It is also wrong.

The Electoral Finance Reform Proposal issued by Justice Minister Simon Power today shows he is determined to retain the regime governing donations to constituency candidates and political parties even though it became clear at the last election that the rules do not achieve transparency, David Parker said.

Mr Parker does not seem to know what a multi-stage consultation process is. That is because Labour never did them.

The first stage was the issues paper where people could havetheir say on issues, without any idea of the Government’s thinking.

The second stage is the proposal paper, where the Government says this is what we think should happen, but we want your feedback. In some cases they identify options.

The Government has said it proposes no change to the donations law, and the public and parties can give feedback on that before they make a final decision. That is consultation – again Mr Parker may be unfamiliar with the concept.

“Unfortunately, the current regime on donations doesn’t promote transparency. Labour included the regime in good faith in the Electoral Finance Act 2007, but it failed to achieve its purpose.

This is worth stressing. The regime Mr Parker is so bitterly complaining about is one his party passed into law less than two years ago.  Now how about the claim it has failed to get transparency:

“This was shown by the low rates of disclosure by both major parties. National disclosed the source of just $130,000 in donations and Labour just $420,000, though both spent more than $2 million each. This is clearly not transparent.”

Mr Parker is having 2+2=5. He is like the cop who demands tougher powers to search premises, and upon not finding any drugs there, cites it as proof they must be elsewhere and wants even greater powers.

The intent of the donations disclosure regime is to identify the source of any donations that could be large enough to be though to purchase influence. Personally I reckon you need $50,000 before you start to get inflluence but the the law for the last 15 years or so has been set at the lower limit of $10,000. I’ve yet to hear a convincing argument to break the privacy of supporters who gives say $1,000 considering that represents 0.02% of a party’s election spending. Even $10,000 is (for a major party) only 0.2% of a party’s election spending.

Even putting aside that argument, how about the complaint that very few donations were declared in 2008. Well there is a very obvious reasons for that. Many donations normally made in election year, were made in 2007 before the increased transparency (which I supported) requirements came in.

In other words if Mr Parker is patient enough to wait until the next election, he may find a higher level of donations disclosed.

Incidentially I do favour some tightening of the limits. I advocated getting rid of the provision for parties to received up to $240,000  in anonymous donations through the Electoral Commission. Mr Parker does not support getting rid of that, I believe.

I also think a disclosure level over a three year term, not just annually, should also be introduced. But that is a debate for another day.

David Parker said Labour strongly believed there should be public comment on potential improvements to the existing disclosure regime.

“But while the proposal paper seeks submissions on other issues, National has clearly already made up its mind on the donations regime because it suits their purposes.”

There are a number of areas where I intend to submit against the Government’s proposed option. That is the whole pointof seeking feedback on a proposal paper.

Finally I must point out how Labour responded when there was real proof of inappropriate donations. The Serious Fraud Office revealed that the Foreign and Racing Minister in the Labour-led Government had received tens of thousands of dollars in personal donations (to pay his court costs) from a source in the racing industry which had greatly benefited by the Minister’s advocacy of extra funding for the industry.

What did Labour do when the SFO revealed this? They complained bitterly about the actions of the SFO. ANd what did then PM Clark say in response to questions in the house? She said she had not had the time to read the report.

So in case anyone thinks there is anything remotely sincere about Labour’s position, think again.

Then we have Metiria Turei:

Metiria of course voted for the EFA and voted against abolishing it. The Greens never used their power to force Labour to consult on the EFB before it was introduced. Their credibility on these issues is much dented after that.

“It is vital that New Zealand’s democracy cannot be bought by big business.

Funnily enough if you look at the spending at the last election campaign, there was masses of spending by lots of unions but no spending from any businesses or business groups. The only purchasing of democracy has been from the left.

But the whole notion of “purchasing” democracy is bumper slogan politics, rather than rational analysis. The relationship between the amount a party spends and the vote they get is pretty weak. As an example Labour spent more than National last election and got whacked. ACT spent more than the Greens and got under half the vote.

“One of our key concerns is that National’s proposals will not stop political parties secretly giving money to third parties to run campaigns,” said Mrs Turei.

Now we get the paranoia. First they worry about third parties donating to political parties, but now they are worried about political parties having so much money they will give it away to third parties to spend.

I’ve yet to meet a political party that gives away its money. Do the Greens have any examples of when this has happened?

If a third party runs expensive ads in a campaign, I am sure the media will ask who is behind that third party, and where did the money come from. And if the third party refuses to say, well the public are pretty good with this stuff, and will tend to punish those involved.

In the 2005 election, the Exclusive Brethren ran a secret $1 million dollar campaign against the Green Party.

From their own money. Or is Metiria saying she thinks National were secretly funding the Exclusive Brethren?

“Another problem is that donations to political parties under $10,000 can be kept secret – the public has a right to know who is giving their MPs money.

Yes, but at what level. As I said $10,000 is 0.2% of an election campaign for a major party and maybe 0.5% for a minor party. Are the Greens saying you can get “favours” for such a small amount?

The Greens of course have an agenda. They find raising money a hassle, as do all parties. They think taxpayers should be forced to fund their political party. And the best way of doing that is setting the disclosure threshold for donations so low, that fewer people donate voluntarily so they can force everyone to donate to them compulsorily through their taxes.

“We are also concerned about the proposal to allow anyone to run electoral ads on TV and radio, as this would lead to the airways being saturated in electoral ads paid for by wealthy special interest groups,” said Mrs Turei.

Consider what they are really saying here. They are saying that in an election campaign, they do not want anyone who wants to criticise a party, to be able to do so through a broadcast medium. They are saying that only political parties should be able to have their voices heard on broadcast medium. Even worse they are saying that only political parties funded by the taxpayer can have their voice heard, while individuals or organisation who want to use their own funds, are banned from the airwaves.

Such defenders of free speech.

“We don’t want to end up like the US where negative campaign ads paid for by big business dominate the airways.”

Ironically almost everything the Greens propose takes us closer to the US system of political finance. It is the limit on donations to parties and candidates that has shifted the spending to the lobby groups.

Oh and their constant bogeyman of big business is tiresome. Again in NZ there were no business funded election ads, but plenty of union ones. And in the US last election the left massively outspent the right.

Again it would be nice to see some sensible analysis rather than slogans.

The Government’s proposals do not include the option of a fixed election date.

A fixed date would provide certainty for the public and political parties, said Mrs Turei, there is no good reason not to have one. The only reason not to fix the election date was to give an advantage to the Government of the day.

Now I agree with Metiria that there should be a fixed election date. But to be fair to the Govt, this is a consultation on finance issues, not wider electoral issues. A change to a fixed election date is a fairly major constitutional issue. It is one I support but probably needs its own workstream.

Friday’s Dom Post:

Once upon a time, the National Party caucus principally comprised farmers and lawyers. Few cockies remain in the Key-led Government’s serried ranks but legal eagles sit at the Cabinet table. Justice Minister Simon Power is one; so, too, is Attorney-General Chris Finlayson.

And neither, it seems, is afraid to challenge one-time colleagues.

Earlier this month, Mr Power published a discussion document that, in part, criticises counsel who earn some of their income from the legal aid budget. Some defence lawyers are unimpressed.

Last week, it was the attorney-general’s turn, although he seemed to be gunning for lawyers who undertake civil cases as well as those practising in the criminal courts. The tragedy for all lawyers, he told the Bar Association, was that “some of our number let us all down … they cannot even get the basics right. We have tolerated them for too long”.

He didn’t stop there: “If litigation, both civil and criminal, has reached a crisis … in this country, it is at least partly because some in our ranks are simply not up to the job. Either they shape up or ship out.”

It is commonplace for a National-led administration to lambast parts of the trade union movement, for example, but rarer for ministers of a blue hue to challenge the professions, particularly lawyers and doctors. But Mr Power and Mr Finlayson are at one on this.

I think it is called governing in the national interest.

The justice minister is on record as saying that one of his priorities is for the justice system to be refocused on the participants who don’t earn their living from it. That removes from centre stage, but puts into a more uncomfortable spotlight, lawyers of every stripe, including those who practise civil law.

Anyone involved in civil litigation knows about the time it takes and the prohibitive expense. It is why some cases find resolution via arbitration, and the number of civil actions is falling.

At a seminar for civil litigators early last year, former Bar Association president Jim Farmer, QC, said no-one could sensibly argue that the cost of civil litigation was reasonable, blaming complex and prescriptive court rules, grinding “discovery” practices, too much paperwork, judges failing to rein in litigators, and a shift to lawyers billing by the hour. Chapman Tripp’s Jack Hodder backed him up: “…the mainstream civil justice system is profoundly flawed and offers depressingly little value to any litigant …”

No wonder ministers are speaking frankly. They know that, when courts take aeons to hear a case, justice is more than delayed. It undermines public confidence in the justice system.

Hopefully there will be some results in due time, in terms of shorter delays etc.

The Australasian Study of Parliament Group had a seminar in the Beehive on Wednesday on the issue of Parliament and the Courts.

The first speaker was Professor Philip Joseph, who is widely considered the leading constitutional scholar in New Zealand.

Professor Joseph discussed the issue of parliamentary sovereignty and whether or not it exists or is absolute.  There were references to musings from Lord Cooke and Chief Justice Elias that such sovereignty is not absolute.

This does not mean that the judiciary is sovereign either. In fact the theme pushed was neither institution was sovereign, and there is mutual respect for the roles of each, with boundaries between them.

There was a suggestion you could call this co-sovereignty, looking at it being the Crown through her Parliament and the Crown through her Courts being co-sovereign, but sovereignty tends not to be shared (the Roman Republic did effectively share it through having two Consuls but that didn’t work too well eventually).

The example by CJ Elias was whether the judiciary would uphold a law that (for example) said all blue eyed babies must be killed.  Of course that would never be passed (and if it was, the Governor-General might not assent to it) so it is an academic argument.

Professor Joseph said that the rule of law does exist outside of legislation and that it pre-dates the concept of parliament sovereignty by many hundreds of years.

An example would be in countries that have had a coup. Often the judiciary will adopt or refer to the doctrine of necessity to maintain the rule of law – even without legislative backing.

The second speaker was Labour MP Charles Chauvel, in his role as Chairman of the Privileges Committee. He had some interesting historical facts such as how Magistrates were not seen as Independent Judges until just a few decades ago, and how the Minister of Justice used to actually be accountable in the House for their decisions.

His main theme was respecting the boundaries between Parliament and the Judiciary, and how the Privileges Committee decision to recommend limitations on an MPs ability to breach a court suppression order, helps respect those boundaries – especially as it was initiated by Parliament voluntarily.

He took a swipe at both Justice Minister Simon Power and his colleague Trevor Mallard for their recent comments, plus also at Attorney-General Chris Finlayson for not publicly defending the Judges concerned. Power criticised CJ Elias’ call for prisoners to be released early and Mallard criticised the lack of jail in the Moses exorcism manslaughter case, saying they would have got jail time if they were not Maori.

Chauvel said he thought both Power’s and Mallard’s comments pushed against the boundary of mutual respect, or comity.

In fact he revealed the Opposition was concerned enough about Mallard’s comments they their Justice Spokesperson wrote officially to the Chief Justice disassociating themselves from the comments, and saying he was speaking as a local MP only and not on behalf of Labour. The letter and response from the CJ was shown briefly on the screen.

The seminar was well attended and ably chaired by Colin James, with extra chairs having to be found for everyone. Definitely only a topic for constitutional geeks, but it is a fascinating area for New Zealand as one of the few countries with no written constitution.

Simon Power has releases the 113 submissions on s92A of the Copyright Act, and commented:

“There seems to be general support for the proposals. They’re regarded as a significant improvement on the original.

“This gives me encouragement that we’re on track to developing a fair and balanced process to deal with online copyright infringement.

Time will tell.

A key concern raised by some submitters was the proposal to terminate internet accounts as a remedy to copyright infringement. It was felt termination was an unreasonable ‘remedy’, especially where multiple users of a single account could make identifying an infringer difficult.

However, there was general support for the Copyright Tribunal playing the role of independent third party arbiter if necessary.

Mr Power said he was confident all issues would be carefully considered in the policy paper that will go to Cabinet later this year.

Good to see mention of the resistance to termination as an option.

A summary of submissions is online here.

The EMA has rightly cited concerns many businesses may still be treated as ISPs under the proposal. But their suggestion that a better alternative is filtering or blocking of file sharing sites is concerning.

Several copyright groups have said they support the model, but two of the major US dominated groups have said they want less checks and balances.

I’m old enough to have attended the last victory (won Government) conference for National. It was in 1991 and was also in Christchurch. Both saw a new Government nine months or so into office, and both coping with a nasty recession.

However in 1991, the conference was not just attended by the party faithful, but there were around 8,000 protesters, close to 1,000 Police (they cancelled leave for every police officer in the entire South Island), and bomb squad sniffer dogs. While the 2009 National Conference did not attract even a sole protester despite National now being in Government. I can’t ever recall a conference by National in Government that didn’t attract protests before.

And in spring of 1901, National was at 22% in the polls – 20% behind Labour. As we head into spring 2009, National is at 56% – 25% ahead of Labour. A remarkable contrast.

So the conference was obviously a buoyant one, with delegates and MPs in good heart. It was at the Christchurch Convention Centre, and here is the view from the Crowne Plaza next door.

The PM’s speech was of course the highlight, and it was very good planning he used it to announce a timely and major initiative. In Government, people like a speech of substance, not just bashing the other side. In fact John did not mention the Opposition once during his speech.

Bill English gave a very sober and insightful speech on the realities of the economy and the challenges ahead. And I thought Simon Power’s speech on all the justice initiatives was first class. Also was good to see the Young Nats President Alex Mitchell use his speech not just to fellate the party, as Young Nats sometimes do, but demand action on voluntary membership of student associations and warn against any moves to increase the alcohol purchase age from 18 to 20.

What didn’t work so well was the Ministerial forums. Maybe I’m just getting old and cynical, but hearing five minute brag sessions from Ministers about what they are doing turns me off. I’d rather have less Ministers with more time to talk policy in detail, than giving each Minister five minutes and time for only a couple of questions. I did enjoy joking that anyone who wanted to ask Paula Bennett a question should be obliged to first state their IRD number

Even more than that, what I personally would have preferred is a Ministerial Q&A session – say for 90 minutes. I know this was meant to be the victory conference, so maybe they may do it next year. But I think giving delegates the chance to ask questions of any and all Ministers is a good look, and gives delegates more of a chance for interaction.

Then we had the Board and Presidential elections. I’ve known the five people elected to the Board for pretty much a decade or more. They are all good people, who will do a diligent job on the Board. There are not any of them that I would not want on the Board as they bring a good mixture of skills, experience and geography.

But having said that, I am disappointed Wira Gardiner did not get on. As I had a role in the vote count, I thought it was inappropriate to “take sides” before the vote, but I do not share any of the reservations that Whale Oil had towards Wira. I’ve known Wira since his first wife was a candidate and he has been involved for at least two decades, including service as a Vice-President of the Party.

His record of achievement speaks for itself, in that he is now formally Sir Wira. Both Labour and National Governments have used him as a trouble shooter to sort out dysfunctional agencies. Someone with that governance experience would have been well placed to contribute to the Party’s Board. Plus there were also some obvious advantages in terms of relationships with the Maori Party – but that is a secondary consideration to me. Merit is what I value.

So why did Wira not get elected? Well there was a variety of reasons. Hekia, his wife, being an MP was one of them – but not really the major factor in my opinion. The main reason is that Wira was touted as a potential President, despite not being a current Board member. And it seemed there was a reasonable chance of Wira becoming President if he did get elected. By no means certain, but a reasonable chance.

What this meant, is those who did not want Wira to be President, followed Whale Oil’s advice and ranked him lowly to keep him off the Board. I have no doubt he would have been elected if he ruled out standing for President. Now I was not a delegate myself, so didn’t have to think about who I would leave off the Board if Wira got on. As I said, they are all good people – but there were only five vacancies.

Peter’s election as President was not a surprise. One press gallery journalist had quite a laugh on Sunday morning when they saw on my laptop I already had written a story announcing Peter’s election as President, and was just waiting for the official announcement to click the publish button.

I believe the number one objective for the President is to raise the money the party needs to function, and win elections. Peter’s business background should do him well in that regard and again respectivelly disagreeing with Whale, I expect Peter will remain President through until the 2011 election at least. Of course it will be up to delegates at the 2010 conference to make that decision on re-election to the Board.

Also have to mention the well deserved awarding of the Sir George Chapman trophy for service to the party went to our own blogging Homepaddock – Ele Ludemann. I won’t even mention how she was alseep in her room when they awarded her the prize

This is a hazy photo of the screen, but had to share this photo of Tauranga MP Simon Bridges forming part of the conference dinner entertainment, Simon took it all in good humour as the entertainers put him into a number of poses.

The conference saw Judy Kirk retire as President also after just under seven years in the job. This makes her the third equal longest serving President. Sir Alex McKenzie did 11 years, Sir George Chapman nine years and Sir Wilfred Sim and Ned Holt both also did seven years. I was counting votes during the farewell to Judy, but understand it was warmly given and received.

The number of people attending must be a record for a non election year. Around 700 people attended and there were 574 voting delegates. I saw many people there who hadn’t been to a conference for quite a few years.

It will be interesting to see what the mood is like in twelve months time at the 2010 conference.

The Herald reports Simon Power has clarified:

Mr Power gave further details of his proposal yesterday, saying it was aimed at cases where the complainant’s relationship with the accused was raised. This would only happen if the judge gave prior permission.

I said yesterday I supported restrictions on questions about the complainant’s previous sexual relationships.

However I have to say I think it would be pretty dangerous to ban any evidence or questions about the actual history and relationship of the complainant and accused. This seems to me incredibly relevant – especially when a trial has consent as the only disputed fact.

Considering there are a significant number of false complaints made, this could lead to more innocent people going to jail. And I am reminded of the maxim better 100 guilty people go free, than one innocent person is jailed.

The Herald reports:

The sexual history of rape-case complainants may no longer be able to be raked over by defence lawyers in potentially far-reaching reforms proposed by Justice Minister Simon Power.

He is considering making evidence about a complainant’s previous sexual relationships inadmissible without the agreement of the trial judge.

I am broadly supportive of such a move, but have to admit I thought there already were restrictions on such details being detailed in court? One of our friendly defence lawyers want to clarify.

There are some occasions where past relationships could be material. If for example a complainant said she did not consent as it was their first date, and she would never sleep with someone the day she met them – then evidence that she is lying and has had a one night stand before would be relevant. But only because it is contradicting a claim she made. If she made no such claim, then I would say it is not relevant how many one night stands a complainant may have had.

Mr Power said rather than the complainant being ambushed in court with cross-examination about her past, a judge should first rule on its relevancy.

Which seems sensible.

He also proposes changing the definition of consent so someone would have to say “yes”, rather than the current law where a defendant is able to argue the woman did not say “no”.

Here I have to say, the proposal is impractical. Power isn’t exactly proposing this change – more just floating the possibility. But I think consent is often implicit, not explicit, based on how someone responds to you. I think Canada may have gone down this path, but to me it reeks of almost having to sign a statutory declaration of consent before sex.

Mr Power has also asked the Law Commission to investigate introducing a European-style inquisitorial justice system in sexual offending cases.

He said using such as system – where the judge is involved in collecting and determining the facts of the case – instead of the adversarial system that required “harrowing” cross-examination of victims was “worth a look”.

Fairly openminded on this. Fair to say though a high level of persuasion would be needed to change from the current system.

Mr Power says alcohol – a “facilitator” for crime – has to be dealt with if the Government is to have any impact on the crime rate. He says this will be done in one package of law reform this parliamentary term and will take into account the ongoing work of the Law Commission. It has already suggested limiting the opening hours of liquor shops and bars, raising the drinking age to 19 or 20 and increasing tax on alcohol.

I hope his comments do not mean the Government will just automatically legislate whatever the Law Commission recommends. The quality and relevance of the research they have used to date in citing the need for change has been seriously lacking.

Simon also announced his views on the provocation partial defence, which I will deal with in another post. His speech is online here and is a very good read. I’m incredibly impressed by the pace of work by Simon – he has achieved a lot in six months and by the end of his first term, will have a huge amount of law reform behind him.

On a final note did anyone else see Valerie Morse on TV last night holding up a sign calling for all prisons to be abolished at Simon’s speech. I’d like to ask Valerie what she thinks should happen to Clayton Weatherston and Graeme Burton. I guess she’ll just claims they are victims of the colonialist capitalist oppressors.

Was pleased to see the announcement from Simon Power that Telecommunications Commissioner Ross Patterson has been approved to return to work, after a stand down due to alcohol issue.

Patterson’s background made him very very well suited for his role as Telecommunications Commissioner, and most in the industry thought he was doing an admirable job. It will be good to have a full-time Commissioner again.

Simon Power has released a proposal for the review of s92A. One can give feedback on the proposal until Friday 7 August.

The Proposed Approach: Summary

Phase 1- First Infringement and Cease and Desist Notice Procedure

Where a RH considers on reasonable grounds that there has been online copyright infringement of one or more of its works, RHs may invoke the section s92A procedure by sending a first infringement notice to an ISP. The notice will contain sufficient details to allow the ISP to identify the subscriber
concerned. This notice must then be forwarded by the ISP to the subscriber. If there is further copyright infringement by that subscriber, a RH may send, via the ISP, a cease and desist notice. The subscriber will have an opportunity to reply to either notice by way of a response notice directly to the RH with their name and contact details attached. Upon receiving a response notice, a RH will be required to accept or reject it and inform the subscriber accordingly.

There will be issues here of who do you define as an ISP and a subscriber, and also quite importantly do ISPs get their costs covered for looking up who was at an IP address at a particular time, and passing a notice on. But the principle of the ISP passing on the infringement notice to the subscriber seems sounds to me, so long as costs are resolved.

Phase 2- Obtain Copyright Tribunal Order

Where a RH considers on reasonable grounds that there has been further (repeat) copyright infringement by a particular subscriber after a cease and desist notice has been sent, and the subscriber concerned has been provided with an opportunity to respond by way of a response notice, a RH may apply to the Copyright Tribunal to obtain an order requiring the ISP to provide the name and contact details of the alleged copyright infringer (the subscriber).

This seems appropriate. It should be an independent body such as the Copyright Tribunal that should have the power to order contact details of an alleged infringer. This is similar to how a court can order an ISP to name a customer if needed for a court case such as defamation.

Phase 3- Copyright Tribunal

A RH may then register an infringement complaint with the Copyright Tribunal which will ensure that the infringement complaint complies with requirements in statute/regulation. A RH may then notify the subscriber that an allegation of repeat copyright infringement has been lodged against them. The subscriber will have an opportunity to respond to the allegation and to elect to proceed to mediation. The Copyright Tribunal will be convened unless agreed otherwise.

The Copyright Tribunal, in addition to available relief by way of damages, injunctions, account of profits or otherwise, may consider ordering a subscriber to pay a fine or an ISP to terminate the subscriber’s internet account.

I like the ability for mediation. Again this looks a significant improvement on the original which has ISPs deciding who was guilty.

However there are still aspects I am uncomfortable with. I am not convinced that termination of Internet access is an appropriate penalty in a world where the Internet is so critical. No other offence or infringement has this as a sanction. Even extremely serious offences such as trading child pornography, doesn’t have a penalty where a Judge can order your Internet cut off. They send people to jail, and fine them.

I do support the option of a fine, rather than merely damages.

Also have queries around the cost of filing a complaint with the Tribunal (what will it be), and what the total cost of the regime would be, and comparing that to the benefits of this regime.  If MED have some ballpark estimates, it would be good if they could share this.

Also of considerable concern is that the ISPs are still piggy in the middle to some degree. When you get into the fine print of the proposal, you see ISPs are required to still record infringements notices against customer accounts etc and work out when they expire. Now this means an ISP has to reconfigure their CRM database. For some of the bigger ISPs, this could well cost them over $500,000 to do. Over the entire industry of 100 ISPs, the cost on these businesses could run to many millions of dollars. Will there be reimbursement for these costs? Is a recession a good time to be forcing extra costs on these businesses?

This is definitely a big improvement on the original s92A, and the Government should be praised for that. But there still remains significant questions about whether this is the best way to help rights holders combat copyright infringement.

That’s my initial take. I imagine I’ll have more to say once I’ve had more time to consider the detail.

The Herald reports:

Justice will be administered through video links under a Government proposal that would revolutionise the court system and save millions of dollars a year.

Criminals could be sentenced over a video link with the jail, rather than by being brought to the dock, and judges would preside over cases remotely instead of from the bench.

The “virtual courtrooms” could eventually fulfil the principle of open justice by allowing the public to watch over the internet.

I think it would be great if people could watch trials over the Internet.

“Middle-range” estimates calculated it would cost $22 million to install and run the technology in 52 places over four years.

Over that time, it would save $43.1 million.

Mr Power said the use of video links would be part of a new criminal procedure bill intended to be made public by the end of the year and in force by the end of 2010.

Official advice prepared for Mr Power says video links will reduce delays and benefit all court-users who have to travel to be there – victims, witnesses, defendants, judges, lawyers and parties in civil disputes.

The official advice says an example of cost savings would be the $22.3 million a year spent on transporting prisoners under the current requirement that they be in court every time something happens involving their case, even if it is a routine procedural matter.

There is a limit to what you do by video link. I don’t think you want Judges running a trial from the bedroom via video link for example! But certainly not having to transport prisoners backwards and forwards for routine hearings is something that should be done as a minimum.

Saving money is good. But even better is reducing delays in justice which benefits everyone.

Simon Power said some very interesting things on Q&A this morning. His whole interview was excellent – other Ministers/MPs should take notes. Extracts:

SIMON: Essentially what I’m interested in is having a broad discussion about three things initially. The first is the way our jury system works. Presently under the bill of rights if you’re charged with an offence that carries a term of imprisonment of three months or more you can elect to go to a jury trial, I’m very keen to see that threshold raised.

GUYON To what?

SIMON Oh well I think three years would be appropriate. You would see a savings on jury trials about a thousand a year along with a couple of other smaller changes we could make in that area.

So someone charged with a crime that has a maximum sentence of between three months and three years, would see their trials be judge only. I’d be interested to see where the line is drawn in other OECD countries. Power mentioned five years is the threshold in Canada.

The crimes that would now be judge only, from a quick skim of the Crimes Act are:

• Wrongful communication, retention, or copying of official information
• Unlawful assembly
• Riot
• Forcible entry and detainer
• Contravention of statute
• False statements or declarations
• Use of purported affidavit or declaration
• Failure of duty that permits person in lawful custody to escape
• Blasphemous libel
• Distribution or exhibition of indecent matter
• Indecent act in public place
• Indecent act with intent to insult or offend
• Indecent act on a dependent family member under age of 18
• Indecency with animal
• Criminal nuisance
• Misconduct in respect of human remains
• Infanticide
• Concealing dead body of child
• Injuring by unlawful act
• Aggravated assault
• Assault with intent to injure
• Assault on a child, or by a male on a female
• Common assault
• Poisoning with intent to cause inconvenience or annoyance
• Leaving a trap in place
• Possession of offensive weapons or disabling substances
• Feigned marriage or feigned civil union
• Intercepts any private communication by means of an interception device
• Theft of between $500 and $1000
• Being disguised or in possession of instrument for burglary

And a few more.

GUYON I’ll come to that in a second, but is part of the factor here that you’re struggling to get jurors to actually sit on those trials?

SIMON No that wasn’t part of the thinking, what was driving the issue was the delays that we’ve been seeing in our justice system, in the District Court for example, on average it takes about 12 months before a trial kicks off, in the High Court it’s about sixteen and a half months over the 2008 year. We have to address this, this is not without controversy I accept that, but the fact is our criminal justice system has not been delivering justice served seen to be done in a timely and helpful fashion. Victims of crime find this process incredibly difficult.

And the delays are especially hard on the victims.

SIMON Well I’ll leave that up to you to decide, but the other two areas that I’m looking particularly closely at is this ability where somebody doesn’t appear at a hearing the only sanction available to the courts in general at the moment is to schedule another hearing. There are some provisions under the Summary Offences Act that allow convictions to be entered for non appearance at trials. I think we need that souped up. I think we need to have a situation where the presumption shifts – if you don’t show up, unless of course the circumstances would be manifestly unjust for good reason – if you’re not showing up to a hearing to have your time in court, the court should be able to enter that conviction. Now that’s different to sentencing where the accused would have to be present.

Power clarified that this does not mean you can be found guilty if you never appear to make a plea. But if you have actually entered a please of guilty, and then don’t turn up – that the court can enter the conviction.

SIMON Yes we are, which leads me neatly into the third issue which is that I think it’s time that the courts were able to hold lawyers, both prosecution and defence to account, for not moving through hearings in a timely and appropriate way. I just think we’re at the point now where the gaming of the system around the criminal justice processes has to be front footed.

GUYON Is that what court lawyers are doing?

SIMON Oh look I believe what we’re seeing is the system being badly incentivised particularly around legal aid, to encourage multiple appearances on issues that should be dealt with in a short and timely way at first appearance.

And again the real losers are the victims.

SIMON Well the courts presently have available to them a mechanism to be able to fine a lawyer for gross negligence in the sense of bringing that case. My view is that should be more readily available to the courts, and if you’re a legal aid lawyer, you should have your eligibility to do legal aid cases tested if you’re not proceeding in a timely way. To simply not be ready, to not be available, and to not show up, are not good reasons. Look when I was admitted to the bar, many years ago in 1994, in my short time as a lawyer I was always told that a lawyer’s first duty, his first obligation is to the court, and we have not seen that in the way that our criminal justice system has operated, it’s time for some change.

That is quite neat. If you drag out trials for years on end on legal aid, then you lose your eligibility. Those accused of crimes have the right to a fair trial. But that is not the right to have the trial delayed for years and years.

LAILA HARRE – Union Leader

Well I think that what we saw today was somebody taking a pretty objective and considered approach to the criminal justice reform, and that’s a good thing because there’s usually far too much emotion vested in this and most of that emotion will be coming from lawyers over the next week, it’s probably a pretty good distraction too from the inevitable continuing fallout of the Rankin debacle I would imagine too.

Some praise from Laila.

PAUL Wow. Exactly so. But of course the notion of juries is a very British thing isn’t it, I mean it’s not written on stone from God that you should have a jury, I mean they operate very well right through Europe with judge panels don’t they?

THERESE ARSENEAU – Political Analyst

Well it goes back to the Magna Carta, so it is quite a rich history of right to be tried by your peers, but we also have a basic right to a quick and speedy trial and in a sense you’ve got two rights perhaps in conflict here, and I agree with Fran that my understanding is that it’s the pre trial battles that eat up so much of the time, so the fact that the Minister is also going to look at what lawyers do before the trial I think is really important too.

And Therese usefully clarifies that it is balancing the rights to a speedy trial, with other rights.

What I like is that Simon has not announced these as firm policy. He has identified three measures he thinks will help victims (and accused) get speedier justice, and said he wants to have discussion about them.

Hopefully Opposition parties won’t rule them out instinctively but look carefully at whether the pros outweigh the cons.

Most of the focus yesterday was on Dr Cullen’s appointment. There were some other interesting ones.

The Dom Post reports that Don Brash was appointed to the Transpower Board and Judy Kirk to chair the Lotteries Commission.

Transpower is a good choice for Don. It’s the only SOE that he doesn’t believe should be sold off at some stage

The Lotteries Commission is the traditional repository for senior party officials, and Judy has six years of board chairmanship skills to bring to it so her appointment is no surprise and I would say uncontroversial. I would caution though that National should never get to the stage they did in the 1990s where every single member of the Board was a senior National official. That was an awful look.

I have blogged in some detail in the past on Government Appointments. The summary of my advice was:

1. Never have those with political connections forming a majority or even close to a majority on a board.
2. Unless someone was already a professional company director (or widely seen as possessing similar skills), they should not be appointed to more than a couple of boards.
3. Appointees must bring genuine value to a board – their appointments must be based on merit, even if they have political connections.
4. The more important a board, the more critical it is that the apointees be top class.

Another interesting aspect is that Phil Goff a couple of weeks ago, unwisely complained that National was engaging in a witch-hunt against Labour Party supporters. His whinging was because Tony Timms and Polly Schaverien were not reappointed to Meridian Energy Board.

The appointment of Cullen should show how stupid his whining was. But to further highlight how off the beam he was, I quote from Simon Power:

“Joanna Perry (Genesis), Polly Schaverien (MetService) and Ian Donald (Transpower) have been elevated to deputy chair,

So Polly Schaverien has been elevated to MetService Deputy Chair despite being a former Labour Researcher and Mallard staffer. So again where is this witch hunt Goff complained about?

I’m delighted with the process outlined by Simon Power to consider electoral finance issues.

Readers will recall that Labour, Greens and NZ First negotiated the Electoral Finance Bill in secret. There was no opportunity for any public input until it reached select committee. And we also all know how terribly flawed that bill was.

So what is National proposing as a process:

1. An issues paper released in May 2009
2. Public Forums in Auckland, Wellington and Christchurch
3. Submissions on Issues Paper
4. Govt releases summary of submissions
5. Govt then releases a proposed policy for reform in August 2009
6. Submissions on proposed policy
7. Govt releases summary of submissions
8. Then Govt introduces bill into Parliament in late 2009 or early 2010,  with normal select committee process

I’m really pleased that they are doing two, not one, stages of public consultation – on both the issues paper and on the proposed policy – that way it is all no surprises.

Also very pleased to see public forums are scheduled. I had been talking to some NGOs about organising some forums to fit in with the consultation. It is even better that the Government itself will organise such forums. I encourage people to take advantage of the opportunity to have a say.

The following topics are being considered:

• Guiding Principles
• Candidate and Party Funding
• Campaign Spending
• Advertising
• Parallel Campaigning
• Monitoring & Compliance

Off-topic for the review is:

• The MMP electoral system
• Maori representation
• Structure of electoral agencies
• Electoral roll administration
• Electorate boundaries
• Local Government electoral law

I agree these are best dealt with separetly. I do hoep the Government will look at some of these issues independently and consider changes – especially to the electoral agencies structure and electoral roll administration.

The Herald reports:

The Act MP who designed the proposed three strikes law says National has expanded it to include offences like bestiality in a “Machiavellian” attempt to make it look unworkable.

National has toughened the law by adding 20 crimes like bestiality, incest and acid throwing to the list of “strike offences” that could see a repeat offender sentenced to life imprisonment with a 25-year non-parole period.

But hardline Act MP David Garrett said many of the new offences arguably did not justify a life sentence and were possibly an attempt to undermine three strikes.

“It may be a Machiavellian move by National designed to sink the three strikes provision. Many will say incest, for example, while a deeply unpleasant offence, should not be a reason to send someone to jail for 25 years.”

Good to see there is agreement on that. But I don’t think it is so much designed to undermine three strikes, as that National is focused on the second strike – what offences should mean you do not get parole if you get a second conviction of over five years.

Justice Minister Simon Power said Act had actually agreed to the expanded list of offences.

Mr Power said the list was designed to fulfil National’s own parole policy, which would deny parole to those convicted of a violent offence punishable by five years or more if they had committed a similar offence before.

Mr Power said when three strikes was merged into the bill, “as part of that process Act offered to adopt our list of offences, and we accepted.”

The problem faced here is that you want the second strike (no parole) to cover a much wider range of offences than the third strike (life with no parole for 25 years at least) because the third strike is so severe.

I think there is a workable solution to this, that also overcomes some of the Bill of Rights issues around someone given a 25+ year sentence for an offence that normally has a maximum sentence of say 10 years.

I would change the third strike from life (with no parole for at least 25 years) to being the maximum penalty set down for that offence (with no parole if a finite term).

So what you would have at each stage

1. Normal sentencing and normal parole
2. Normal sentencing and no parole
3. Maximum sentence and no parole

What are the maximum sentences for the various crimes that National wants included:

• Sexual violation – 20 years
• murder – life (so non parole of at least 25 years on 3rd strike)
• attempted murder – 14 years
• manslaughter – life (so non parole of at least 25 years on 3rd strike)
• wounding/injuring with intent to cause grievous bodily harm
• aggravated wounding/injury – 14 years
• aggravated assault – 3 years
• assault on a child – 2 years
• cruelty to a child – 5 years
• using a firearm against a law enforcement officer – 14 years
• committing a crime with a firearm – 10 years
• Compelling indecent act with animal – 14 years
• incest – 10 years
• acid throwing – 14 years
• robbery – 10 years
• aggravated burglary – 14 years
• kidnapping – 14 years
• indecent assault  – 7 years
• attempted sexual connection with a family member who is under 18 – 7 years
• abduction for purposes of marriage or sexual connection – 14 years

This would still provide for very harsh penalties for the third strike, but would not treat murder the same as wounding. Take rape as an example.

The starting point for rape (off memory) set by the Court of Appeal is seven years. So a rape with no aggravating factors would get seven years and with parole the rapist would be out in four years and eight months.

Now if he raped again, the court might give him ten years for the second strike. And no parole means he would serve ten years – double the first strike.

And if he raped a third time, when it is an automatic maximun penalty of 20 years with no parole.

Of course he might get preventative detention also, but that is not guaranteed.

I think this would be a win win. ACT still gets a three strikes law and a major win. The Bill of Rights issues over getting 25 years for an offence set down in statute as having a maximum sentence of say 10 years are dealt with, and most importantly hardcore repeat offenders stay behind bars for much much longer.