Yesterday's Parliamentary Question Time was dominated by the entirely predictable attacks on John Key over his decision to stick with John Banks, and John Key's clownish attempts to get a laugh out of the situation. Key is vulnerable on the issue of Banks, and Labour and the Greens will want to talk as much as they can about the ACT leader.
But I'm not sure that the opposition parties have got the focus of their attacks quite right. Their questions yesterday about Banks' "breaches of the law" allowed John Key to simply say in effect "well he hasn't committed any offence, because police have not charged him".
Opposition parties appear to be taking the line that John Banks got off on a "legal technicality", and are pressing John Key to sack Banks because he broke the law, rather than because he's a lying, unethical scumbag. They seem to be suggesting that police did not press charges against Banks because the alleged offending fell outside the 6 month window under the Summary Proceedings Act 1957, which therefore means that he still "broke the law".
The problem with this line of attack is that the six month window is only relevant to the lesser of the two offences John Banks was investigated for under section 134 of the Local Electoral Act 2001. The lesser offence under s134(2) concerns the filing of a false return in circumstances where the person cannot prove that he or she had no intention to misstate or conceal the facts, and that he or she took all reasonable steps to ensure that the information was accurate.
Had Banks been found guilty of the lesser offence then the maximum punishment would have been a fine of $5000. He might have got a slap on the wrist, or the judge might have decided he was a "pillar of the community" and discharged him without any conviction at all.
On the more serious offence, that of knowingly filing a false return (s134(1)), the maximum punishment is two years in jail or a fine of up to $10,000. On that charge the police concluded that there was insufficient evidence for a prosecution.
Even had the police decided to prosecute under either of the sub-sections (assuming for a moment that the offence under section 134(2) was not time-barred), a determination by police that an offence has been committed does not mean that an offence has been committed. It appears that almost everyone has automatically concluded that, because Banks "got off on a technicality", this means he is really no better than a criminal. This is not so. Had police taken these matters to court (assuming again, for the sake of argument, that the lesser offence was not time-barred) it is entirely possible that Banks would have successfully defended himself against both charges.
When police concluded that the "teapot tapes" cameraman Bradley Ambrose probably committed an offence, but decided not to prosecute because they were not satisfied that they could make out all the elements of the offence to the required criminal standard, there was an outcry among liberal-minded folk because the police appeared to be saying that someone was guilty even though police just couldn't prove it. We were reminded by liberal types that the police don't determine someone's guilt because, in a free and democratic society subject to the rule of law, determining guilt is the domain of the courts.
But now we have what appears to be a collective amnesia, because we happen to dislike the person at the end of the police's attentions. I don't like John Banks, and I think it's reasonable to conclude from his public statements that he is a liar and lacks any sort of moral compass. It is also reasonable to conclude that a person like John Banks is utterly unfit to be a minister, or even an MP. But he has not committed any offence, has not been charged with any offence, and has not "got off on a technicality".
Opposition parties are right to berate and ridicule Key over his refusal to read the police report over John Banks' activities. But they should be focusing their attacks in the fact that the police report provides further evidence of Banks' lies and unfitness for office, not because he "broke the law".
Wednesday, September 19, 2012
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I'm thinking that Banks' *conduct* broke the law, and had he been found out within the six month period, he could have been prosecuted and convicted. The reason that didn't happen is because he effectively concealed that conduct.
ReplyDeleteI'm thinking that Banks' *conduct* broke the law
DeleteCertainly it's strongly arguable that some of his conduct fell within the elements required to be established for an offence to be committed. But the only body or person qualified to make a binding determination on whether Banks "broke the law" is a court.
Bear in mind also that the alleged time-barred offence was relatively minor. The other alleged offence was not sufficiently made out.
Except that after police decided not to prosecute Ambrose, Key said: "the police are clear that his actions were unlawful." In this case, it could be said that, on 134(2), the police are clear that Banks's actions were unlawful. Not proven, no, but neither is it evidence, in Key's words of having "complied with the law".
ReplyDeleteI agree that this case is different to the Ambrose one, because in the Banks case we get to see most of the evidence and assess it for ourselves. And from that many of us will make conclusions about Banks' moral character.
DeleteI suppose it could be argued that because Banks' conduct cannot be prosecuted, he has in a sense "complied with the law". The law provides that if you do a defined bad thing you'll be punished, but Banks cannot be punished due to a lack of evidence (for one charge), and because a statutory limitation effectively means all the necessary elements of the "bad thing" have not been established. I appreciate that this is for many people an overly narrow and legalistic way of looking at the matter, but the point is that Banks didn't commit any offence as far as police are concerned, so arguably he has "complied with the law" (presumption of innocence and all that).
Notwithstanding the lack of criminality, Banks' behaviour is still pretty outrageous.
"I suppose it could be argued that because Banks' conduct cannot be prosecuted, he has in a sense "complied with the law". The law provides that if you do a defined bad thing you'll be punished, but Banks cannot be punished due to a lack of evidence (for one charge), and because a statutory limitation effectively means all the necessary elements of the "bad thing" have not been established."
DeleteSo ... if I were to come to Auckland, stab you to death with a kitchen knife, only for the Police to screw up the investigation and fail to lawfully gather the evidence of my guilt and thus fail in their prosecution of me, I thereby "complied with the law" in killing you? That seems like an odd use of the word "comply"!
I think the point is you are conflating two issues. One is a duty to do what the law says, irrespective of potential consequences. The second is when the state may level a sanction against you for failing to abide by that duty. And the fact that the state cannot level a sanction against Banks (because of the time limit on prosecutions) does not mean that he thereby "complied" with his duty to follow the law.
With respect, Andrew, I don't see any conflation. I would also point out that I said "I suppose it could be argued", and I acknowledge that to many people "complied with the law" will have a different meaning. But to a PM clutching for any sort of justification for his refusal to act, "complied with the law" will do nicely.
DeleteIn the example you cite, where the police screw up and you escape justice (though if there is an afterlife I will hound you from beyond the grave), you will presumably have been found not guilty. Arguably you have complied with the law in the sense that you have not been convicted, and because we have a presumption of innocence. If the prosecution can't establish that you stabbed me, then have you really stabbed me as far as the law is concerned?
You and I will know that you stabbed me, and that will make you a very bad person (assuming you didn't stab me to prevent me from setting fire to an orphanage filled with poor needy children), and that's one of the points I'm making in my post. Banks can be judged harshly in the court of public opinion, but as far as the law is concerned he has not done wrong, because no tribunal will ever have the opportunity to determine his guilt or otherwise on the matters in question.
Alternatively, look at the case of UK fraudster Asil Nadir.
DeleteAfter committing massive fraud in the late 80's, he removed himself to Northern Cyprus in a private jet and spent the next 17 years living there. He eventually returned to the UK and is now in prison.
During his exile was he "not a criminal" because he was beyond effective prosecution?
"You and I will know that you stabbed me, and that will make you a very bad person ... "
DeleteAnd it ALSO will make me a law breaker. When the law says "it is an offence to murder people", it isn't just saying "if you happen to decide to murder someone, you may have to pay the price of being punished if we can convict you". Rather, it's saying "don't murder people, full stop" ... with the punishment following from a failure to abide by that obligation. And the factual question of whether an individual has or has not obeyed that obligation is not the same as whether they ought to suffer a given consequence as a result of that breach.
So, we give the courts the responsibility of deciding on whether there's been a failure to abide by the duty to obey the law when the question is one of punishment, because when we are invoking the power of the state against the individual we want to ensure certain procedures with safeguards apply. But in terms of other sorts of consequences - such as, do I want to hire this guy as a babysitter, or the like - there's other tests we may apply ... such as, "even if the police made a mistake and didn't get a warrant before finding the bloody kitchen knife in Andrew's house, I'm still not letting a murdering scumbag look after my children."
Finally, if the question of the lawfulness of Bank's behaviour depends on getting a court judgment, then we couldn't say that he "broke the law" even if he stood up in Parliament and made a full, tear-filled confession of knowingly colluding with his treasurer to hide everything. Such a confession is protected by privilege, so can't be used as evidence in court ... meaning (on your approach) it is of zero use to any observers in assessing the legality or otherwise of his actions.
Which would be nuts.
Andrew, but the presumption of innocence effectively means that we're regarded as innocent until our guilt is established by a court. So how can someone be said to have broken the law if no tribunal has ever decided on the matter? This is why we always use the words "alleged" when describing the bad things done by people before the courts.
DeleteAll this nitpicking aside, I accept that for some people "broke the law" means something less than "charged and convicted". And people can opine all they like about whether they think someone has broken the law. Opinions are free.
And though I'm not entirely convinced we can say Banks "complied with the law", I still think that interpretation is still available to those brave or desperate enough to argue it.
Scott,
DeleteThe "presumption of innocence" has a particular meaning in relation to criminal (and other enforcement) proceedings - that the state has the burden of proving the elements of an offence, and if it cannot, then a person ought not be subject to sanction by the state. That presumption exists for a particular reason - it functions as a protection of the individual against the greater power that the state possesses. Outside of the context of criminal (or other enforcement) proceedings, it is meaningless except as a general prudential warning that it is best to wait to see all the evidence against someone before assuming that they've broken the law.
So to try and turn that presumption into a general claim about compliance with the law - that you are by definition compliant unless and until a court says otherwise - is (to use a specific academic legal term) nuts. I've given one example with my Banks' freely admitting breaching the law in Parliament, but not being able to be prosecuted due to parliamentary privilege. You REALLY want to say with a straight face that anyone who points to that admission and states that as a matter of fact Banks breached the law is wrong because a court hasn't said so?
Or take this example ... a client comes to you and says "I want to do X". You know that X clearly is proscribed by the law - there is absolutely no doubt in your mind at all that if a court were ever to examine the issue, it would conclude that doing X would breach the law. But you also know that there is zero chance of the authorities detecting your clients action, so you are equally certain that no enforcement action will ever be taken against him or her. Would your legal advice to the client really be "if you do X, you will be complying with the law"? I mean, I know you IP lawyers have low ethical standards, but ... really?
As for the claim that "interpretation [of Banks' action] is still available to those brave or desperate enough to argue it" ... well, of course it is! But just because someone CAN make an argument doesn't mean that we have to accept it. We could instead look at the evidence gathered by the Police and use our independent judgment as to whether or not their assessment is warranted (which, I note, we couldn't do with Ambrose - and the Police didn't help by contradicting themselves about what they thought of Ambrose's guilt during their news conference on that issue).
But interesting as this debate on legal theory is, it actually is a side show ... Banks' breach of the law (because I am convinced by the evidence contained in the Police's documentation that the elements of the offence are made out) was a pretty trivial one of ommission. Of itself, it was not enough to warrant a resignation. So I agree with the substance of your post - the real reason Banks should be sacked is his performance in failing to confront this issue, not the original legal breach (of which he is guilty).
I'm not sure we're even in disagreement any more (if we ever were). As I indicated, I'm not entirely convinced by the "compliant with the law" argument.
DeleteBut an interesting enough debate, I suppose, and there goes some more of my billable time reading your long and elegant responses (I'll send you my bill).
Oh and that should be "eloquent", not "elegant". Not that I'm suggesting you lack elegance. I'm sure you're very... um... yes, well I'll stop now.
DeleteFair call Scott, on both aspects of this.
ReplyDeleteI'm not a fan of Banks either, and don't like how he has handled this. I wouldn't be sad to see his exit from parliament...except that I care about how he might exit.
While all the focus is being put on Banks (and Key) I think there's a bigger, more important aspect to this.
Much of Bank's embarrassment is due to the consequences of being in the spotlight, not becasue of what he originally did - campaigning politicans and parties have a long history of pushing the legal and moral envelope on funds.
This is because Labour have put considerable time and resources into trying to discredit Banks and to bring him down. Their apparent intent is to try and discredit Key and National as well, and if possible to bring the Government down.
This goes far beyond robust debate and holding Government to account. It's negative and nasty politics at it's worst.
Labour's actions and intent deserve at least as much scrutiny as Banks and Key, becasue what they are doing is far more threatening to decent democracy than what Banks has done.
Labour's actions and intent deserve at least as much scrutiny as Banks and Key, becasue what they are doing is far more threatening to decent democracy than what Banks has done.
DeleteNonsense. Banks did a bad thing, he got caught, and now Labour are lashing the PM for it. That's how our parliamentary system works. To suggest that Labour's holding Key to account over the outrageous and unethical conduct of one of his ministers is as bad as that conduct itself, is frankly absurd.
I didn't say that holding to account now is worse. I'm referring to creating a situation in the first place which they can then use to hold to account.
DeleteHow was Banks 'caught'? And how has this issue been promoted and stoked? And why? And why now?
Should all candidates be given similar retrospective scrutiny?
I'm referring to creating a situation in the first place which they can then use to hold to account
DeleteWhat on earth are you talking about? Creating a situation? Banks did something dodgy, got caught, and is now under scrutiny. Stop trying to deflect.
How was Banks 'caught'? And how has this issue been promoted and stoked? And why? And why now?
Why does any of this matter? The matter was "promoted and stoked" because Banks is firstly an unlikeable politician, and secondly a really bad liar. Of course the media and opposition would hone in on the story. Political scandals are their bread and butter.
Should all candidates be given similar retrospective scrutiny?
Has anyone suggested otherwise?
You haven't addressed how and why Banks 'got caught'.
DeleteAs long as someone you don't like is pinged do you not care about the motives behind the pinging?
Because this type of hit job is accepted virtually unchallenged as part of the political game it will keep happening. I'll see what you think when someone you're more favourable towards is the one on the receiving end.
And - just as Key's claim of better standards has come back to bite him on the bum - Shearer has set himself up for exactly the same self inflicted fall. He has already proven his claim (when he became leader) that he would not tolerate gotcha politics to be hollow. He's now as deep in this gotchering as anyone.
So your solution is that we never engage in "gotcha" politics, and people like Banks, Field etc just get a free pass?
DeleteI'm not a huge fan of personality politics, but sometimes our politicians have to be held to account for their misdeeds.
And if it's someone on "my side" next time who is caught lying and being evasive in public, then so be it. I'm not tribal about my politics, and I have no time for wrongdoers of any political colour.
"You haven't addressed how and why Banks 'got caught'."
DeleteBecause he "abandoned" Dot Com whilst he was in jail, who then took the hump and gave his story to David Fisher at the Herald, which then led to Banks turning in a weird performance on Q&A on the Sunday, after which every news outlet in the country jumped on it.
Labour were late-comers to this story - it was broken by the media and it was Banks' refusal to answer questions posed by the media that gave it legs. It seems to me that you're simply trying to rewrite history to try and make this a partisan hatchet job, when it wasn't.
Pete, are you worried that your man Pete is about to get in similar trouble?
DeleteI raised similar points a couple of months back http://publicaddress.net/legalbeagle/presuming-innocence/
ReplyDeleteI was a little disconcerted then, and still am, however, I do recognise that one major difference is that in this case is that police have carefully laid out all the evidence, so we can look at it and form our own views about the criminality of the actions. We can also put that evidence to the PM and Banks and ask why they don't consider it compelling.
Banks will never be brought to Court, but he can still defend himself if he chooses.
If you fired a politician on the basis that they are a "lying, unethical scumbag", then you would depopulate the beehive.
ReplyDeleteOf course, it might be hard to argue that this would be a bad thing...
It might thin the numbers out, but I continue to believe that most of our politicians are generally decent people. Even (gag) some of the National ones.
DeleteScott, two points:
ReplyDeletePerhaps Banks should have funnelled the cash through a Len Brown type trust?
Labour must really hate Shane Jones. He is going to cop it now
Brown managed to file an accurate return, so clearly it isn't all that hard to stay out of trouble. But by all means, blame the politician who didn't do anything wrong if it suits your narrative.
DeleteAs for Shane Jones, if he did wrong he'll probably cop it.
I can accept your implied position that Len Brown didn't do anything criminal. But part of the whole debate here is about how criminality and right are not the same thing. Len Brown's use of a trust as a way to hide the names of his big donors from the public is wrong.
DeleteGraeme, I'm aware that Len Brown used a trust to allow his donors to remain anonymous. I'm not aware of evidence to suggest that he actually knew the names of his donors, or the amounts that they donated, but I am happily corrected on this matter.
DeleteIf you mean the fact that he used a trust to allow donors to remain anonymous is itself a form of moral failing, then yes, I suppose I can accept that. I'm a fan of transparency and openness and don't like all this anonymous donation business. To me, though, it seems like a lesser wrong than that which Banks stands accused of, since the use of trusts to receive campaign donations has over the years been fairly widespread, and we don't (to my knowledge) have evidence that Brown either lied about his trust or did anything dishonest.
My own view on the difference between Len Brown's and Banks' fundraising is one of competence ... Brown clearly worked out a way to stay within the rules (inadequate though these may have been), while Banks was pretty inept in relation to a very important aspect of campaigning. And if you can't get this right, then it tells to your basic abilities to manage crucial tasks.
DeleteMore seriously, its not so much the fundraising that is the problem for me - it's Banks' performance once it began to be publicly discussed. His refusal to answer basic questions on it, and then his lies about what he knew and when he knew it mean he's not to be trusted. Once again, it's not the original act, it's the attempt to cover up ... why don't politicians ever learn?
I agree that Banks has been 'pretty inept', both in his original handling of his campaign, and in his reaction to accusations and revelations.
Delete"Once again, it's not the original act, it's the attempt to cover up ... why don't politicians ever learn?"
I only half agree with that.
Banks should have known better, and he fluffed it, big time.
But other politicians had learnt this lesson well - the politicians who dug and exposed the original act, then harassed and pressured until Banks ballsed up his attempt at covering up. Classic attack politics.
Dirty, but widely accepted within politics as a part of the game. And despised widely by the non-political public.
"But other politicians had learnt this lesson well - the politicians who dug and exposed the original act, then harassed and pressured until Banks ballsed up his attempt at covering up. Classic attack politics."
DeleteSee my comment above - this just isn't how the story unfolded. The story was entirely broken by the NZ Herald. Labour's "digging" consisted of a complaint to the local electoral officer about Banks' false return, then an OIA to the Police to find out the information it had gathered. God forbid that politicians take such extreme and invasive actions in an effort to reveal hypocrisy on the part of their opponents!
The broke the law by signing a declaration that donations were anonymous argument is not the really bad bit of behaviour. It is the offer to Kim DotCom that Banks would like to help him but it is best done with an anonymous donation. That is just corrupt behaviour. Who else is he helping this way?
ReplyDeleteThanks for the interesting post and comments (excluding Pete's).
ReplyDeletePete should bear in mind that it's better to keep your mouth shut and be thought of as an idiot, than to open it and remove all doubt . . .
DeleteAhem
ReplyDeleteSummary Proceedings Act ...
Thanks. Fixed now.
DeleteHey Scott,
ReplyDeleteSome fun maybe had at the ACT Party website. Pick any random yet bizarre post or press release like ACT Scores An ETS Win For Business and put in a comment like "How are the anonymous donations going?" Then quickly archive the post and comment so there's a permanent record. And here is one I prepared earlier.