Acquitted

John Banks has been acquitted on appeal of filing a false electoral return. This doesn't mean that he didn't accept two $25,000 donations from Kim Dotcom which he subsequently misdeclared as "anonymous", but that the evidence presented against him did not meet the required standard to prove that he did so knowingly, and therefore he could not be convicted of it. So, having taken over an important private prosecution, Crown Law indeed fucked it up. Heckuva job you're doing there guys. The integrity of our electoral system against corrupt politicians is safe with you.

Meanwhile, Banks is acting as if he's been vindicated and is innocent. Legally, that's certainly the case. But morally? Not so much. His evidence in court made it clear that he had structured his affairs so he could pretend that donations were anonymous when he knew damn well where they came from. While the prosecution failed to prove that knowledge in this specific case, his own words should condemn him, and rule him out from any future political career.

Finally, now that the legal process is over, perhaps we can see the report on the police handling of the case that the Independent Police Conduct Authority promised us?

The judiciary doesn't take electoral crime seriously either

That's the only conclusion which can be drawn from John Banks' laughable sentence for filing a false electoral return. A hundred hours of community service and an evening curfew for deliberately attempting to undermine our democracy? Well, that will encourager les autres to comply with the law in future, won't it?

Let's be clear here: Banks has received a slap on the wrist because he is rich and white. The sentencing discussion was full of the usual code, calling the offending "an aberration" (Banks was clear that it was his usual practice) and referring to his long career of "public service", all the usual code for "this criminal is like me so I will go easy on him". And so the severity of the offence was talked down while establishment sympathy for the offender was made clear. And then judges wonder why we think they are systematically biased in favour of the rich...

But the worst thing is that this is precedent-setting. Banks is the first person prosecuted under this law, and the first convicted. And Judge Wylie has now set a sentencing bar so low that Parliament might as well not have bothered. The only mitigating factor is that Banks has at least finally been convicted - meaning he will be remembered in history for being the first MP in almost a century to be stripped of his seat for criminal behaviour. But that's not enough. Judge Wylie has let us down today, and our democracy is worse for it.

Electoral donations, corruption, and transparency

Writing in the Herald, Fran O'Sullivan tells us what we all knew: that political donors have expectations, and want favours in exchange for their cash. She's too polite (and Establishment) to call it corruption, but that's what it is. Naturally, this being Fran O'Sullivan, she uses it as a springboard to attack Auckland Mayor Len Brown's laundering of his donations for his 2011 mayoral campaign.

She's right to do so: Len Brown is a money launderer who has gone far out of his way to hide who might be able to exert a corrupt influence over him (and there's only one reason you'd go to that much effort...) And in local body politics, there are countless opportunities to repay donors. To give a pertinent example, my local Mayor (and now National candidate) Jono Naylor, voted to rezone land owned by the property developer who had paid for 95% of his campaign, which no doubt increased its value considerably (and by a hell of a lot more than the $36,000 paid for Naylor's election). Brown could be doing the same. And in the absence of proper transparency, we rely on the media to expose his donors and prevent corruption.

At the same time, it needs to be recognised that that particular loophole has been plugged. Brown got away with it, but he won't be doing it in future, and anyone giving him more than $1500 will have to be identified.

But while we've forced a welcome level of transparency on local body politics, most of the money given to national-level politicians is still secret. National raised the disclosure threshold for donations from $10,000 to $15,000, reducing the level of transparency and enabling corruption. So, if someone gives a party $10,000 in a brown paper bag, they get to know who they owe favours to - but we don't. And the only reason to do this is to enable corrupt behaviour and the corrupt trading of influence.

We need to clean this up. Local body politicians must be transparent. Electorate candidates must be transparent. Its time we forced parties to do so as well. And if they're worried about donors refusing to fund them if they can't get favours in return, then we need to replace their money with transparent public funding. If the choice is spending public money or permitting corruption, I think its pretty clear.

Muppets

Now that John Banks has been found guilty, attention is rightly turning to the police and why they decided not to charge him in the first place. And today we've got a partial answer: because they're a bunch of muppets:

Detectives investigating John Banks chose not to seek advice from the Government's key legal advisers over whether to charge the Act MP.

Instead, they opted to get internal advice in a move which the Police Association says could be linked to cost-cutting.

[...]

A spokeswoman for the Crown Law Office told the Herald: "Please note that Crown Law was never consulted by the police on the decision not to prosecute. Neither Crown Law nor the Solicitor-General were asked for advice by the police in relation to this matter."

This is a high-profile case which was likely to be hugely controversial regardless of what decision was made; getting an independent second opinion from Crown Law would have been the sensible thing to do. Instead it seems to have been left to some plod. And while the Police Association blames budget cuts, this case is sufficiently important that it should have received a second opinion even in a constrained fiscal environment. The only reason for not giving it one is that the investigating officer was too stupid to recognise that.

Despite that, trying to charge them with electoral fraud is a mistake, and I just can't see how the law applies to them (they weren't a party to Banks' crime, and I assume they weren't running for election themselves). Fortunately for the police, being bad at your job isn't a crime. But they should certainly be disciplined, and possibly sacked, for clearly being too stupid for the role they're in.

We clearly need more transparency over the decision not to prosecute. While the police are rightly refusing comment until after sentencing, they should release all their internal documentation on the case once sentence is passed. Its the only way to restore public confidence and ensure that this sort of thing doesn't happen in future. And if they don't, well, that's what the OIA is for. While legal advice is notoriously hard to extract, there's a decision from a similar case in the UK about the decision not to prosecute child abusing MP Cyril Smith which may influence the Ombudsman about where the public interest lies.

An obvious question

John Key has announced that electoral fraudster John Banks is unlikely to be stripped of his Companion of the New Zealand Order of Merit. With a similar decision made on corporate crook Doug Graham, it invites an obvious question: what exactly does a former National Party MP have to do to be stripped of a gong?

What bills has Banks passed?

The Independent Police Conduct Authority will be investigating the police's decision not to prosecute John Banks. Good. meanwhile, one of the IPCA complainants raises a very interesting point:

"If you consider that if police had investigated at the time, which is now two years ago and Mr Banks had been prosecuted and found guilty, he would have been out of Parliament two years ago. That would have led to a by-election, so I'm quite concerned that there are political consequences to the fact that the police failed to prosecute," Brooking said.

"He [Banks] has been vital to the ability of the National Government to pass certain pieces of legislation and if he had not been there, who knows what the outcome of it all might have been."

So what legislation has Banks' vote helped pass? Basically everything since the Agricultural Compounds and Veterinary Medicines Amendment Act 2012 (2012 No 58) - which includes the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 allowing offshore drilling, the Climate Change Response (Emissions Trading and Other Matters) Amendment Act 2012 which further gutted the ETS, and the Local Government Act 2002 Amendment Act 2012 allowing the Minister to impose local body dictatorships. If we allow time for the case to come to be tried (about seven months from the decision to stand trial), then he's still on the hook for the Environment Canterbury (Temporary Commissioners and Improved Water Management) Amendment Act 2013 which further extended the Canterbury dictatorship, the Minimum Wage (Starting-out Wage) Amendment Act 2013 which reintroduced youth rates, the Crown Minerals Amendment Act 2013 which banned anti-drilling protests, and of course the GCSB and TICS Acts. In some of these cases (notably the GCSB and TICS Acts) Banks' vote was crucial. In other words, the police's refusal to prosecute made a real difference to our law (and in the case of TICS, one that served their interests). And while a by-election would almost certainly have been won by National or another ACT glovepuppet, a week is a long time in politics. As Mr Brooking says, who knows what the outcome of it all might have been?

Prosecute them all

In other Banks news, the weekend saw this from Banks campaign adviser (and former National Party President) Michelle Boag:

Justice Edwin Wylie found Banks guilty of filing a false electoral expense return for his supercity election bid, saying Banks must have been aware that two $25,000 donations which he declared as anonymous had in fact been made by internet businessman Kim Dotcom.

Boag said by long-held convention, local body and national political candidates weren't expected to probe closely the anonymity of donations given to them. However, Wylie's ruling effectively said that Banks "should have probed it".

"That should send a bit of a chill up the spine of every political candidate, because the convention has been that you keep political candidates removed from where the money comes from, to avoid the risk of being seen to be exercising undue influence over their decisions.

"That's been prevalent in the NZ political system for some time. This judgment says that's not good enough: you have to question those supposedly anonymous donations if you suspect you may have received them from someone and it's not on the form."

To which I'd respond that if other politicians have been doing as Banks did and maintaining willful blindness of their donations so as to hide corrupt sources of influence from the public, they should be prosecuted to the full extent of the law. The only reason to do so - as Banks himself acknowledged with his comment that "if its public I can't help you" - is to permit corruption. And that's simply not something we can tolerate, no matter how widespread it is.

If Boag has evidence that any politician has engaged in this practice, she should take it to the police, or (given that politicians gave themselves a self-serving time-limit on prosecution which effectively functions as a "get out of jail free" card) the media, so that those politicians can be prosecuted and/or driven from political life. If she fails to do so, the natural conclusion is that either she approves of such corruption, or that she is simply blowing smoke in an effort to minimise Banks' guilt.

Good riddance to John Banks

Yesterday John Banks accepted the inevitable and announced that he would resign from Parliament. Good. His continued presence there debased the House and brought it into public contempt, and I am glad to see the back of him.

And as a result, the government has been stripped of its legislative majority and its policy programme - especially employment relations "reform" - is now in tatters. Now that Banks has gone, John Key says that the government would not have relied on his vote to pass legislation anyway. In case anyone believes that, remember that on Thursday Key was saying that Banks could stay in Parliament as he hadn't been convicted - a line echoed by Gerry Brownlee, and on Friday Key was publicly trying to undermine the verdict and saying that they hadn't considered whether they'd accept Banks' support. So I think we can take Key's sudden support for what actually happened with a grain of salt.

Banks should resign

Since yesterday's verdict there has been a flood of calls for John Banks to do the decent thing and resign from Parliament. I'd like to add my voice to that call. While Banks has managed to prevent a conviction from being entered for the moment (thus allowing him to hide behind that technicality and cling to his seat and $147,000 salary for two more months), he has unquestionably been found guilty by a court of a serious criminal offence - an offence so serious that he will automatically be expelled if (when, because a discharge is surely unthinkable) that conviction is finally entered. Compounding that is that the offence is against electoral law: he deliberately tried to hide the identity of a donor, in an effort to keep their influence (and his conflicts) secret from the public. His continued presence in Parliament taints it with corruption, and brings the House and our democracy into disrepute. He should do the decent thing and resign.

Guilty

John Banks has been found guilty of filing a false electoral return.

He will be automatically ousted from Parliament if convicted (which should precipitate a by-election), but according to the Herald a conviction hasn't been entered yet and sentencing has been delayed until 1 August. Which looks awfully like the courts protecting the government's legislative majority for the remainder of the term...

(As for sentence, I have consistently favoured custodial sentences for electoral crime by politicians pour encourager les autres. And given the judge's findings that this was a knowing manipulation, a discharge without conviction would be manifestly unjust. But Banks is rich and white and powerful, so it sadly can't be rule dout. Equality before the law? We'll see)

As for what happens next, the blowtorch should really be going on the police who decided not to charge Banks. Clearly that decision was wrong, and it has brought the police and the law into disrepute. The officers responsible need to be held accountable for that.

The Reagan defence

John Banks has lost his attempt to have the charge of filing a false electoral return dismissed. But in the process, we've learned that he is using the Reagan defence: "I have no recollection of events at that time":

The judgment revealed details from Mr Banks' three-hour interview with police - never before made public.

Excerpts from the interview featured in relation to the two donations over which questions had emerged - a $15,000 donation from SkyCity and two $25,000 cheques from internet tycoon Kim Dotcom.

Evidence from SkyCity chief Nigel Morrison told of meeting Mr Banks, handing over an envelope bearing the casino logo and containing a cheque. The account was supported by Mr Morrison's executive assistant.

But Justice Wylie referred to Mr Banks' police interview, in which the MP said "he has no recollection of the meeting, or of receiving any cheque from Mr Morrison".

Convenient memory lapses are a stock-in-trade of politicians, one of the standard self-serving lies they tell. But normally they apply it to policies they supported or opposed until five minutes ago, not to statements in court. I strongly suspect that if Banks tried this on before a jury, they'd laugh him out of town (and his arse into jail). But Banks has elected to be tried before a judge; it remains to be seen whether they will be similarly cynical about his statements.

But even if we take it at face value that Banks "forgot" someone handing him a $15,000 cheque, that just gives him other problems. After all, if his memory is so bad that he'd forget something so important, surely he's unfit to be in Parliament?

Good riddance to John Banks

So, John Banks has finally admitted that he's a political dead duck, and decided not to stand for re-election. Good riddance. Quite apart from the alleged electoral expenses fraud, this is an MP remember who said that the problem with homosexual law reform was that "so many of these creeps have now boldly crept out of the wardrobe", and that "six inches of barbed wire shoved up gay mens arses" would be "a waste of good barbed wire". And this wasn't back in the dark days of the 80's; he was still spouting his homophobia, bigotry and hate only five years ago. So I'm not in the least bit sorry to see him go (and in fact, I'd like him to go sooner). And maybe this time ACT can find a candidate who is actually a liberal, rather than a conservative bigot solely interested in the "freedom" of the rich not to pay taxes.

Is the House an ass?

Last night, the New Zealand International Convention Centre Bill - National's squalid deal to allow its mates SkyCity to pillage the poor of Auckland in exchange for a flasher venue to hold their election night parties in - passed its second reading in the House. John Banks voted for it. Yes, the same John Banks whose political career is completely in the hands of SkyCity CEO Nigel Morrison and the testimony he gives in Banks' electoral fraud trial.

Any normal person would see this as a conflict of interest. How could it not be? And yet Banks went ahead and cast his vote, without even warning the House of his conflict. As a result the Greens have laid a complaint of Breach of Privilege, for violating Standing order 162.

The deeply worrying thing is that they might not win. Standing Orders only require MPs to declare financial interests in legislation (defined as "a direct financial benefit that might accrue to a member personally, or to any trust, company, or other business entity in which the member holds an appreciable interest"). It simply doesn't cover the case where someone can send an MP to jail if they don't vote the right way. Threatening to do that would be a breach of privilege by that person, but threats need not be explicit; I'm sure Banks knows very well the position that he's in and the need therefore to keep on the good side of SkyCity. Meanwhile, there's no onus on the MP to declare that they are in such a position, even when everybody knows it and can see the strings.

In short, the House appears to be an ass. And Banks is about to rub everyone's noses in it, bringing Parliament and our democracy into further disrepute. When the law is passed on the vote of an MP whose fate is so utterly in the hands of a foreign corporation, that law can only be regarded as corruptly purchased.

As for what to do about it, I hold no hope that the regular review of Standing Orders will recommend an expansion of conflict of interest provisions to cover non-financial interests - the issue has arisen too late, and the government is just not interested. So instead, I'd like to see a solid commitment by the Greens and Labour that they will either legislate or pass a sessional order to force the disclosure of such interests. And if National objects, it tells us that the only "democracy" they want is one where MPs are controlled by corporate blackmail.

No confidence in Crown Law

The Solicitor-General has taken over the case against John Banks. As I said earlier, I am not sure we can be confident in their independence; even if we rule out explicit political intervention, most prosecutors will probably see vigorous pursuit of a conviction (which could lead to the Government falling and an election) as a career-limiting move, or they'll simply take an easy plea-bargin rather than going all the way. We need to watch them like hawks to make sure they pursue the case with appropriate vigour, rather than cutting some shady backroom deal to let Banks (and the government) off.

...Except that we can't. Because everything they do will be protected by legal professional privilege, effectively excluding it from the coverage of the OIA. Meaning that we have no way of effectively overseeing them and ensuring they actually do their job in this case. They can't even be held to account through Parliament, because the Attorney-General does not have Ministerial responsibility for law officer functions (and that's a Good Thing).

This isn't a good situation to be in. No transparency and no accountability means there can be no trust. If the charges are dropped, or even if Banks is acquitted, it will look like a political stitch-up. And we all lose from that. After their initial refusal, it would have been better for the government to stay out of it.

This will restore confidence in the system!

So, having initially decided that there was no case to answer, the Solicitor-General is now considering taking over the John Banks prosecution. Given the political implications (a conviction means Banks loses his seat, and possibly that the government falls), I think its now far too late for that. Yes, we all know they're supposedly independent. But if they take over the case and are less than vigorous, negotiate a deal, drop the charges or even if they merely lose, then it will look like a stitch-up and undermine confidence in the justice system. Given that, it would be better for public confidence if they stayed out of it, and left Graham McCready to make his own mistakes.

Banks to stand trial

John Banks will face trial for electoral fraud. According to the Judge, there is a question of whether he was wilfully blind to the declaration and whether he intended for donations from SkyCity and Kim Dotcom to be anonymous. If convicted, he will face up to two years imprisonment, and will automaticly lose his seat in the House, forcing a byelection and possibly a general election.

So, the stakes are high for Banks. Meanwhile, he will have the deciding vote on legislation enabling SkyCity's $400 million casino deal, despite SkyCity CEO Nigel Morrison being a witness in the trial. There's an obvious potential for one hand to wash the other here, and yet remarkably John Key does not consider it to be a conflict of interest, and cannot recall whether Banks has formally notified him of one [video]. Strangely, the House's Standing Orders do not cover this possibility; Members are only required to declare financial interests before a vote; your entire political career being in the hands of someone whose crony legislation you will decide the fate of apparently is beyond the scope of the rules. So, Banks could vote to advantage a witness in his case, possibly securing favourable testimony, and it would all be within the rules (to use MPs' favourite phrase).

This is simply unacceptable. Our Parliament cannot be dragged into disrepute and tainted with corruption like this. At the least, the bill needs to be delayed until the outcome of the trial is clear and there is no possibility of the perception of corruption.

As for Banks, I think these charges are simply politicly unsustainable and taint him irrevocably. Electoral fraud has no place in our democracy, and those in our House must be above even its perception. He should resign.

Update: And splat, he's resigned as a Minister. But he'll still be there in the House, voting on things which directly affect his future. And as long as that's the case, there will be the suspicion of a quid pro quo.

ACT On Campus and the spy bill

So, ACT On Campus - the only part of ACT still with any life in it - has come out against the GCSB bill. Good. I was wondering if anyone in ACT still even pretended to believe in that "freedom" thing they used to be so big on. But while its good to see them add their voices to those defending our rights, they're in a unique position to do something about it as well. In the marriage equality drinking age debate, ACT On Campus basically held an electoral gun to their party leader's head, threatening that if he didn't vote for freedom, they would dump him at the next election. They should be doing the same here. Given the narrowness of the vote, they could actually make a difference, and defend the principles they purport to espouse.

Correction: It was the drinking age, not marriage equality, where ACT On Campus threatened the party leadership.

Unseemly

A sharp-eyed Twitter user spotted this in parliament's Register of Pecunairy Interests [PDF, p. 7]:



Yes, that company second from the bottom is the Australian numpties responsible for the Novopay clusterfuck. And Banks, BTW, is Associate Education Minister.

Banks only re-entered Parliament in 2011, and the Novopay disaster goes back a lot further than that. At the same time, this is a serious conflict of interest and someone should be conducting some pretty heavy scrutiny on whether he has said anything at all about it to the Ministry or his fellow Ministers since then. And even if he has not, it is unseemly for him to hold an education portfolio while also being a director major shareholder of a major contractor. Either he needs to give up his position, or divest himself immediately.

[Hat-tip: @Dovil]

Update: It seems that Banks divested himself earlier this year when Talent2 de-listed from the Australian stock exchange. He claims that

He has never received any government information or briefings regarding Talent2 (or any company they are connected to), or participated in any discussions at either Cabinet or Cabinet Committee.

Of course, he was quite happy to leave this major breach of ethics unaddressed for six months, and its likely he would still have a shareholding today if it wasn't for the company's appalling performance in Australia.

"Nothing to fear, nothing to hide"

Throughout his recent political donation scandal, ACT MP John Banks has repeatedly claimed he has "nothing to fear, nothing to hide". The implication is that he is being upfront and transparent about things. Sadly, nothing could be further from the truth:

ACT leader John Banks did ask police not to publicly release his statement on the Kim Dotcom donations and opposed the publication of the entire file, documents reveal.

Banks' lawyer David Jones QC told police it would be used by his ''political adversaries'' and for ''irresponsible commentary.''

Banks has always insisted he had "nothing to fear, nothing to hide,'' over the donations scandal.

His statement was censored when police released their file on the investigation last month. Other statements, including that of Dotcom and his lawyer Greg Towers, were made public.

Which raises the question: what was Banks hiding? What is he so frightened of us seeing? And shouldn't John Key be sacking him about now, given that he has lied to the public about this?

"A higher standard of conduct"

When John Key became Prime Minister in 2008, he promised to hold his Ministers to a higher standard than Labour had done. He lied:

Prime Minister John Key says he does not need to read a police report into John Banks' mayoral campaign donations, as he continues to stand by his minister.

The police documents, reported on Thursday by the Herald, revealed that internet tycoon Kim Dotcom told police Mr Banks had asked him for two $25,000 donations for Mr Banks' 2010 Auckland mayoral campaign.

Dotcom said Mr Banks asked him to split his donation into two cheques of that amount so he would not have to declare where the money came from.

The police investigation found Mr Banks had filed a false election return but had not done so deliberately, because he did not read it before putting his signature to it. No charges were laid.

So, we have a Minister who has been found to have behaved corruptly in a local body election, but avoided prosecution because of the time limit on the strict liability offence. And all the Prime Minister can do is cover his eyes and say "la la la I'm not looking".

A higher standard of conduct? I think not.