Wednesday, September 13, 2006



Analogous defences

DPF, in full spin mode, likens Labour's defence of its use of Parliamentary Services funds for its pledge card to a defendant who stands up in court and says

Yes your Honour, I did kill Miss Muggins. However I also killed someone in 1999 and 2002 so it would be unfair to hold me accountable now, because I thought it was okay. Plus the law was confusing and in my own mind I did nothing wrong.

Unfortunately, it's the wrong analogy. The correct analogy is someone who stands up in court and says

Yes, your Honour, I did do it - but it wasn't an offence at the time.

Section 26 (1) of the New Zealand Bill of Rights Act states that

No one shall be liable to conviction of any offence on account of any act or omission which did not constitute an offence by such person under the law of New Zealand at the time it occurred.

While they're not facing conviction for the supposed misuse of Parliamentary funds, the same principle applies. Labour's pledge card did not violate the rules for use of Parliamentary funding as widely understood and implemented at the time. It did not explicitly solicit for votes. It did not explicitly solicit for funds. It did not explicitly solicit for members. It was released around election time, in such a way that any reasonable person would conclude that it was in fact doing exactly those things (to the extent that the Chief Electoral Officer believed it should be counted as an election expense) - but the rules governing Parliamentary advertising only forbid explicit solicitations. And for good reason: everything politicians do is aimed at soliciting votes, so barring implicit solicitations would in effect bar everything - including National Party flyers like this)

If National thinks the rules should be different, then it is free to try and change them. But they should not be trying to rewrite them retrospectively so as to punish people after the fact. That is manifestly unjust and unfair - but then, since when has National ever cared about justice or fairness?

(Note that I am not trying to let Labour off the hook in any way for their election overspending. As I note above, the conclusion that the pledge card appeared to encourage or persuade voters to vote for Labour (thus falling under s221 (1) (b) of the Electoral Act 1993) is perfectly reasonable. But I don't see any inherent incompatibility which automatically rules out something which falls within the Parliamentary spending rules from being an election advertisement. Labour clearly thought there was (what other reason could they have for disputing that it was attributable expenditure?) - but there's no exemption in the law that I can see).

23 comments:

I/S,

>Unfortunately, it's the wrong analogy.

I don’t mind that point (depends on how accurate you demand the analogy to be - ie murder is a bit more emotive than compromising an election)
BUT

> The correct analogy is someone who stands up in court and says
> Yes, your Honour, I did do it - but it wasn't an offence at the time.

That’s obviously wrong. The AG didn’t jut pass a law to make labour's actions illegal. If he says it is ilegal now it was always ilegal.

> Labour's pledge card did not violate the rules for use of Parliamentary funding as widely understood and implemented at the time.

1) Note how you inserted "widely understood" but did not have that in your analogy.
2) Whether it was widely understood is under debate. Because widely understood does not equal widely practiced.
AND
3) There is a difference between act over spending by 16 k and Labour overspending by 800 k. I guess it’s not that easy to avoid breaking the law when you have a big organization but it shouldn't be too hard to avoid breaking it to the tune of around 1 million dollars.

> It did not explicitly solicit for votes.

How explicit do you have to be? You seem to be saying it is ok to intentionally breach the spirit of the law as long as there is a technical sense in which you might not have broken it and then that that will be a defense against the legal opinion in the opposite direction?

> So barring implicit solicitations would in effect bar everything

the law you propose is even more of an ass than the one you are being critical of because it implies someone at some stage passed a law that has more or less zero effect (e.g. banning things with and only with the words "please vote for me") but worded in such a way that any reasonable person (without a phalanx of lawyers) would think it would be more generally applied. That is the WORST kind of law.

And yet you are trying to use the alternative being an ass to prove that is how it actually was.

Posted by Genius : 9/13/2006 07:33:00 AM

Oh dear you swallow Helen's spin. No law has changed. The pledge cards have always been illegal to fund from the taxpayer. Just in the past no-one realised they were.

Posted by David Farrar : 9/13/2006 07:43:00 AM

I'm afraid they've got you I/S.

Labour points out the rules haven't changed materially.

This law hasn't changed, it's just being applied where it hasn't been in the past.

I'm interested in your take on the Supreme Court decision abolishing Barristerial Immunity in Lai v Chamberlains a couple of days ago. Surely that's far worse?

Posted by Graeme Edgeler : 9/13/2006 08:52:00 AM

No Greame. Past (2005) activities were not illegal even if that is the interpretation of the SG today. That opinion was not available at the time and the rules applied were in accordance with the interpretation that applied at the time.

This is pointed out in this post (URL alert I/S):
http://laws179.blogspot.com/2006/08/shifting-goalposts.html

Which, as an aside, is also interesting because David Farrar appears to have left a rather slanderous comment which he has failed to back up anywhere...

The comment says:
"More of a problem where the person who decides for Public Body B is best friends with Citizen A."

For someone so concerned about revealing spin he sure does dig himself deap.

Posted by noddy : 9/13/2006 10:16:00 AM

Perhaps it would be more accurate to say:

I checked with the police before I killed someone in 1999 & 2002 and they said it was OK so I assumed it would be OK this time as no rules had changed.

(Of course, the black & white nature of the crrime of murder makes the analogy ridiculous anyway)

I would rather the buggers paid all the money back if there was any doubt (politicians should be not just clean, but seen to be clean), but am content to wait until the manner is played out in full before making political points.

Posted by PabloR : 9/13/2006 10:44:00 AM

Genius: practice matched understanding, and was confirmed by those in authority (including both Parliamentary Services and the Speaker of the House). That's why so many parties have been caught out here - the A-G has retrospectively reinterpreted the law to make what was considered acceptable by all parties illegal. That re-interpretation is perfectly reasonable, but doing it retrospectively certainly isn't.

As for explicit vs implicit, the prohibition is specifically on explicit solicitation. You may think its an ass, but those are the rules.

Posted by Idiot/Savant : 9/13/2006 12:01:00 PM

DPF: if "no law has changed", does this mean National will be repaying the money spent on the flyer linked above, and on Bill English's pledge card in 2002? Maintaining that moral high ground could get quite expensive...

Graeme: its not just being applied where it hasn't been in the past; its being applied in a way which contradicts past precedent. As Peter Dunne pointed out, United Future has had material challenged as being political advertising, and been backed by the Speaker every time. The material that they are suddenly being told is unlawful is no different from that deemed lawful in the past, and confirmed as such by the PS gatekeepers. Surely they're entitled to place some reliance on those precedents and judgements?

Posted by Idiot/Savant : 9/13/2006 12:01:00 PM

I/S:

The AG gave his interpretation to political parties BEFORE the election. That is material. The Labour Party advised the CEO before the election they would include the pledge card in their election expenses.

Labour knew what the AG's interpretation would be, because he gave that advice in advance. They went ahead and spent up large anyway, so desperate were they to maintain power.

The analogy from 1999 and 2002 is very different. In 2005, the AG said what his interpretation would be. Labour ignored that, broke the law, and refuses to pay it back.

Posted by Insolent Prick : 9/13/2006 12:12:00 PM

> practice matched understanding, and was confirmed by those in authority (including both Parliamentary Services and the Speaker of the House).

that claim, I would think, requires specific evidence.

> the A-G has retrospectively reinterpreted.

the rules are and have always been what the law (in this case the AG) says the rules are. that is WHY you would require retrospective legislation.

> the prohibition is specifically on explicit solicitation. You may think its an ass, but those are the rules.

laws dont have to be interpreted in their most narrow possible sense. Besides as above - the law is the law. either labour will be found innocent or it wont.

GNZ

Posted by Anonymous : 9/13/2006 02:07:00 PM

Um, et's replace the analogies with a straight question.

Both the IRD and WINZ have fraud detection units, and a set of critera they have to apply before recommending a prosecution. I assume the Government considers these criteria are legally sound and conform to policy.

Would the 'good faith' defence currently being run by Labour and some other parties be considered a valid defence, a mitigating factor to be weighed up against other or simply dismissed as not relevant?

Posted by Craig Ranapia : 9/13/2006 02:15:00 PM

Craig, if those fraud squads found that those under investigation were acting on the say so of the IRD they would indeed have a problem bring a credible case.

Posted by noddy : 9/13/2006 02:45:00 PM

noddy,
I expect the onus would then be upon them to produce a signed document from the IRD saying clearly "this action is legal". as opposed to just their refund application and the refund itself.

Does labour have such a document? And if so can we have the head of that person? And doesn't PS state that they are NOT the authority on this sort of thing?

GNZ

Posted by Anonymous : 9/13/2006 02:59:00 PM

CR:

Possibly. See my brief analysis:

> LAWS179: "Killing Miss Muggins: Officially Induced Error"

Posted by Dean Knight : 9/13/2006 03:07:00 PM

" The AG didn’t just pass a law to make labour's actions illegal. If he says it is ilegal now it was always illegal."

This interprestation would appear to make all such spending since 1999 illegal? as Labour is suggesting.

Posted by Anonymous : 9/14/2006 12:06:00 PM

anonymous,
it makes exactly what he says is illegal ilegal nothing more or less.
So no, that isnt a problem in the slightest.

Posted by Genius : 9/14/2006 06:57:00 PM

(the point being that every argument against it you bring up would Already have ben considered by "THE LAW". If inspite of that it decided that it was ilegal then you dont get to reuse the argument.

Posted by Genius : 9/14/2006 06:58:00 PM

from the herald.

"But the rules were reviewed after the 2002 election because there had been concern about the use of parliamentary money for electioneering - mainly by National.

Previously the spending rules applied only to MPs; after the changes between elections they applied to political parties as well.

Parties were also required to put the parliamentary crest on material.

A new rule headed "Responsibility for information" was also passed stating that parties and not the Parliamentary Service had to take responsibility for the content of material."

Those changes were reiterated to the parties by the AG during 2005 before the campaign. The key point is that spending rules were changed to apply to parties as well. Why are you ignoring this point I/S?

Posted by sagenz : 9/14/2006 10:02:00 PM

"it makes exactly what he says is illegal ilegal nothing more or less"

No. He is only expressing his interpretation of the law? and like tax law, the rules the PMS were applying have shades of grey. Labour would be alone in thier predicament if the law had changed WEF 3 months out. That is, the old rules/guidelines ripped up and replaced by a new set, hot of the presses. Was this the case?
If it waasn't, and his interpretation of the law proves correct, then what was illegal 0-3 months prior to the election was also illegal from 1999 forward?

Posted by Anonymous : 9/15/2006 05:20:00 AM

Anonymous,
the law is the law. The AG in this case gets to interpret it - and maybe there is some ability to challenge him. but once all avenues to legally challenge it are exhausted (and al activities are properly investigated) that is the law.

It doesnt matter how many shades of grey you see after that. Seeing them would just means your wrong.

Posted by Genius : 9/15/2006 07:04:00 AM

I understand. So - it's the same law from 1999 to the day after the election? no change to the written word, just a different interpretations. And the result of any legal process - must apply through that whole time period if it is the same written law?

Posted by Anonymous : 9/15/2006 11:06:00 AM

whatever the AG says.
he could say that the offer of advice in regard to the law made the later spending punishable he might say the age of the older spending makes it irelevant he might say any of a million other things - whatever that decision is (pending appeals of course) it is the law.

you can't extrapolate.

Most likely he will find the pledge cards to be illegal.

Posted by Genius : 9/15/2006 06:26:00 PM

genius let's say he says 'he could say that the offer of advice in regard to the law made the later spending punishable he might say the age of the older spending makes it irelevant'
My point is, the later spending may be 'punishable' and the 'age of the older spending makes it irrelevant' but it doesn't make the older spending legal.
One waits with bated breath.

Posted by Anonymous : 9/15/2006 11:31:00 PM

Indeed

Posted by Genius : 9/16/2006 07:47:00 AM