Friday, July 27, 2012

K1, 10/3 - Mallard to be investigated for making a false complaint

WARNING: Long post follows.

The police have result codes, or "K" codes.  So when an offence is alleged, the police investigate the alleged offence, and then for their records they issue the result in a "K code.  For example, K1 is no further police action required.  A K"9" is an arrest.  A K"6" is a report written about the incident/offence.

The other codes they use are "active" codes.  These are "10" codes.  A patrol car calling in 10/2 is on the way to a job.  A 10/7 call is arrived at the job.  A 10/3 call, is free and mobile.

So K1, 10/3 is "attended the job, no further police action required, free and mobile".

And so the detectives who wasted their time on the Banks donation complaint are now K1, 10/3.


Various commentators concentrated on section 109 of the Local Electoral Act, which gives the requirements relating to the candidates' returns.  Here's Graeme Edgeler on Public Address a while ago:
I've re-read the Local Electoral Act a few times over the last few days, and reached a different conclusion each time over what obligations it actually imposes.


What follows explains what I believe is the generally-accepted approach to the obligations on candidates under the Local Electoral Act 2001 to donation disclosure.
Graeme listed a plethora of obligations, all of which are contradictory and confusing.  That's because they are.  The Act is a legal quagmire, and it is, as Graeme Edgeler says, "derisory".  I'd call it meaningless and incomprehensible.

When the investigation was announced, another legal commentator, Andrew Geddis said this about the obligations of Banks (and others, of course):
Because, if there is a clear explanation for the whole "Banks.com" affair that demonstrates how Mr Banks cannot be guilty of any breach of the Local Electoral Act and shows that Mr Dotcom's account of what took place is false ... well, we're yet to hear it.
Again, focusing on the breach.  According to all and sundry, including the mainstream media, Mallard, Shearer, Peters et al, Banks broke the law.  He filed a false donations return!

Yet no one looked at the offences section closely.

Firstly, the obligations under section 109:
Return of electoral expenses
  • (1) Within 55 days after the day on which the successful candidates at any election are declared to be elected, every candidate at the election must transmit to the electoral officer a return setting out—
    • (a) the candidate's electoral expenses; and
    • (b) the name and address of each person who made an electoral donation to the candidate and the amount of each electoral donation; and
    • (c) if an electoral donation of money or of the equivalent of money is made to the candidate anonymously and the amount of that donation exceeds $1,000,—
      • (i) the amount of that donation; and
      • (ii) the fact that it has been received anonymously.

    (2) Every return under subsection (1) must be in the form prescribed in Schedule 2 or to similar effect.
The highlighted words or to similar effect, become important later.  Remember them.

Section 133 is the first offence section.
Failure to transmit return
  • (1) Every candidate commits an offence who fails to transmit a return of electoral expenses in the prescribed form to the electoral officer within the prescribed period.

    (2) Every person who commits an offence against subsection (1) is liable on summary conviction to a fine not exceeding $1,000 and, if he or she has been elected, to a further fine not exceeding $400 for every day on which he or she continues to act until the return is transmitted.
You should now read section 109(1) again.  It says a candidate must transmit a return of electoral expenses and donations.  Under section 133, failing to transmit a return of expenses is an offence.  But section 133 is silent on whether it is an offence if a candidate fails to file a donations return.  You have to file one under section 109, but it is not listed as an offence if you don't.

Here's a further "offence"section (134) of the Local Electoral Act regarding, apparently, donations:
False return
  • (1) Every candidate commits an offence who transmits a return of electoral expenses knowing that it is false in any material particular, and is liable on conviction on indictment to imprisonment for a term not exceeding 2 years or to a fine not exceeding $10,000.

    (2) Every candidate commits an offence and is liable on summary conviction to a fine not exceeding $5,000 who transmits a return of electoral expenses that is false in any material particular unless the candidate proves—
    • (a) that he or she had no intention to mis-state or conceal the facts; and
    • (b) that he or she took all reasonable steps to ensure that the information was accurate.
Two offences, relating to electoral expenses.  No offences listed relating to filing false donations returns.  But surely these are the same thing?

The definitions of electoral expenses and electoral donations are in section 104.  They've been given different definitions.  Naturally that's because they are different.  What candidates spend is completely different to the donations they receive.

Section 3, the purpose section, lists as a purpose, the following:

adopt uniform rules in relation to—
  • (vi) offences against this Act and penalties for those offences; and...
So the purpose is pretty clear.  The Act lists the offences, and the penalties.  But the Act does not list as an offence transmitting a false donations return.  It only stipulates the transmission of a false expense return as an offence.

When lawyers interpret legislation, they look at the principles of the Act as well as the Act's purpose.  What are the principles of the Local Electoral Act 2001?
Principles
  • (1) The principles that this Act is designed to implement are the following:
    • (a) fair and effective representation for individuals and communities:
    • (b) all qualified persons have a reasonable and equal opportunity to—
      • (i) cast an informed vote:
      • (ii) nominate 1 or more candidates:
      • (iii) accept nomination as a candidate:
    • (c) public confidence in, and public understanding of, local electoral processes through—
      • (i) the provision of a regular election cycle:
      • (ii) the provision of elections that are managed independently from the elected body:
      • (iii) protection of the freedom of choice of voters and the secrecy of the vote:
      • (iv) the provision of transparent electoral systems and voting methods and the adoption of procedures that produce certainty in electoral outcomes:
      • (v) the provision of impartial mechanisms for resolving disputed elections and polls.

    (2) Local authorities, electoral officers, and other electoral officials must, in making decisions under this Act or any other enactment, take into account those principles specified in subsection (1) that are applicable (if any), so far as is practicable in the circumstances.

    (3) This section does not override any other provision in this Act or any other enactment.
Nothing in there about expenses or donations.  Mother Hubbard's cupboard is bare on those.  And subsection (3) means sections 109, 133 & 134 prevail anyway.

Conclusion?  Not only did Banks not breach any law, there was/is no law in the Act for him to break.  Moreover, no candidate since 2001 has been required to file a donations return, and even if they had and it was intentionally false, it wasn't an offence.

I considered whether Schedule 2 to the Act imposes an obligation to submit the same information in the same return (i.e. a return of expenses and donations together, and both have to be correct).

But remember those words or to similar effect that I earlier said were important.  They mean that the pro- forma expenses return form is just that - a pro-forma.  Candidates can use what they like.  They could use a separate form for expenses than they use for donations.  They could submit a few pages of an expenses return (they have to as they break the law under section 133 if they don't), but they could just refuse to file a donations return; or they could file a completely wrong donations return and both of those are not offences under the Act.    

Section 109 is headed up Return of Electoral Expenses.  That vital word "donations" is again omitted.  That is important, as are the other omissions of the same word, because of section 5 of the Interpretation Act 1999:
Ascertaining meaning of legislation
  • (1) The meaning of an enactment must be ascertained from its text and in the light of its purpose.

    (2) The matters that may be considered in ascertaining the meaning of an enactment include the indications provided in the enactment.

    (3) Examples of those indications are..headings to Parts and sections..and the organisation and format of the enactment.
The header of section 109 can be used to interpret it.  The header omits mentioning donations.  Sections 133 & 134 omit them.  The purpose and principles sections fail to mention them.

My conclusion is that it is not even an offence to fail to file a donations return; and it is not an offence to file a false return.

The person who should be prosecuted in all this is Trevor Mallard.  He was a Minister in the Helen Clark government in 2001 when this law was passed.  He was part of introducing shabby legislation that he tried to wrongly use against John Banks.

That is shameful.  Mallard is the person who should be investigated.  I'd love to see him in the dock.

Again.


22 comments:

Judge Holden said...

My God, you're not a lawyer are you, Nick?

You've gone mad. This is truly desperate stuff. Is Banks going to resign for lying to us all?

Spinooza said...

Amazing.
You have explained this with such clarity.
The law really is an ass.
But as Judge Holden suggests, he must be guilty of something.

Judge Holden said...

Well dickhead, at a minimum he's guilty of lying to New Zealanders about his close personal friendship with Dotcom (helicopter rides he forgot about, birthday parties he proposed toasts at, fireworks displays he was guest of honour at) and the fact that he solicited donations from him and Sky City and thanks the donors for them. He also told Dotcom how he thought he could get round the disclosure regime in electoral laws, even though Dotcom didn't care about whether the donation was anonymous or not.

This guy's a Minister of the Crown in John Key's government. Fantastic!

Graeme Edgeler said...

There is only one return. It is called the "return of electoral expenses". It includes a bit which asks about donations.

gravedodger said...

And the clincher for Holden is he is not socialist scum and keeps the enemy on the treasury benches, therefore must be guilty.

Check the oil in your transmission, it is whining again.

Judge Holden said...

I'm sorry gravedodger, can you rewrite that comment in English? Thanks. You really should take a remedial English class.

Are you saying Banks has been straight up here? Nothing to fear, nothing to hide (except all the things he hid, of course) and all that?

Anonymous said...

Yes Graeme, I realise that. I'll leave that argument for you to address if you like. Notwithstanding, this is terrible legislation.

Nick

Paulus said...

Of course Banks in Guilty.
He is a member of the dastardly National coalition Government

Judge Holden said...

No, it's just that he's a dodgy fucking liar whom you guys are all pretending is some sort of poor wee victim. It's hilarious. Remember this: "He has a wife!" How about: "I...don't...recall".

I feel sorry for you having him on your team, but there you go. The longer he sticks around the worse it's gonna be.

gravedodger said...

The whining differential supports the party of many electoral manipulations and rorts, too many to list here but sees only a problem with a National support party person whose alleged transgressions relate to a Local Body election prior to re-election to this parliament.

Check the fluid levels in your drive train.

Judge Holden said...

Again, that was incomprehensible GD. Can you please have another go. Try using punctuation this time perhaps. I take it English is not your first language?

Adolf Fiinkensein said...

Sludge, I have no such comprehension problems as yours. Wipe the snot off your glasses.

gravedodger said...

Whining transmission uses the accusation of my poor language abilities to avoid debating issues.
I normally ignore the supercilious pedantic whining socialist numpty.
When he does it on my posts the delete button is my weapon of choice.

I guess the sludge, being a pinko of clearly limited vision, allows your impression of occluded views from his soiled spectacles as an accurate assessment Adolf.

Judge Holden said...

"I have no such comprehension problems as yours."

ROFL, um yeah, Adolt. Perhaps have another try yourself.

BTW, do you think Romney is going to retroactively cancel his London trip? Why are right-winger such losers do you think?

Judge Holden said...

"I guess the sludge, being a pinko of clearly limited vision, allows your impression of occluded views from his soiled spectacles as an accurate assessment Adolf."

Oh dear, it just gets worse and worse. I'd ask you what it's like to be functionally illiterate in this day and age, but you wouldn't be able to actually tell me. Frustrating!

gravedodger said...

To the emeritus professor of whining and english literature.
Never bothers me a bit but clearly gets you groping for reality

"Why are right-ringer such losers do you think"????.

Care to enlighten me as to the singular and plural in the sentence being such a perfectionist as you are.
Then again he might be setting a traps for my language skill.

Judge Holden said...

To the emeritus professor of whining and english (sic) literature.

I'm not retired, and it's impossible to describe your attempts at written communication as "literature".

Typos are forgivable. However, the systematic and vicious mangling of the language by someone attempting to communicate via a blog is embarrassingly funny. Please keep going!

gravedodger said...

For you whine, with utmost pleasure.

Judge Holden said...

What? Six words in that comment, and you're still incomprehensible.

As for whining, if you can stand it go back and try and read some of your posts. As far as it's possible to tell, you seem to spend your entire time bitching and moaning. You should find something more productive to do with the few years you have left. A night class in basic writing skills would be a good start.

Adolf Fiinkensein said...

Fuck off, Sludge.

Don't feed the troll, GD.

Spinooza said...

Good call, Adolf.

Paulu said...

And Liar Len did the same as Banks but to a Trust which he claims he never saw, but still signed.