Legal Beagle by Graeme Edgeler

The 2023 General Election has a preliminary result.

The preliminary result is mostly meaningless from a legal standpoint, but we don’t want to wait two weeks to hear some number, so we get a rough and ready count of the ordinary votes: those cast by people whose name appears on the printed electoral roll who voted at a voting place designated for their electorate (including during advance voting).

The official count is still to happen. They’re more careful with that, and there's a lot of cross-checking. For those who enrolled on the day or just before, they do all the normal checks before even looking at their vote (if you said you were born in New Zealand, has Births, Deaths and Marriages got a record of you? Can Immigration NZ confirm you immigrated, and whether you have a visa which allows you to stay here? Etc.). And remember when they put a little line next to your name on the copy of the Electoral Roll? Well, they compare the copy of the roll used by the vote issuer who handed you your voting paper with every other copy of the roll used by other vote issuers and in other voting places and check that no name has been crossed off twice. And the handful that have will be investigated (sometimes it’s simple error: the rolls show Abby & Dan White voted near their home & Dan also “voted” near Dean White's home, who “didn't vote”).

The official count also includes the counting of special votes. Special votes are:

• votes cast overseas;
• votes cast by people who enrolled after the printed electoral roll was closed (including during advance voting or on election day itself);
• votes cast by people on the unpublished electoral roll;

• votes cast on election day (or during early voting) by people voting at a voting place not designated to serve their electorate;
• votes cast by the telephone dictation service;
• takeaway votes; and
• votes cast by people who are not on the electoral roll, who thought they were enrolled.

This election there are a lot of special votes. The most ever. I said this three years ago as well. The Electoral Commission estimate is that there are 567,000 special votes, around 20% of all votes. The estimate is always wrong. In 2020, the Electoral Commission estimated there would be 480,000 special votes. They ended up counting 504,621.

We do not know what electorates special votes are intended for – the Electoral Commission know where they were cast, but over the coming days, local returning officers will be sending the votes to the returning officers of other electorates, where they will be checked, and if valid, opened and added to the official count.

Historically, the voting patterns of those who cast special votes differ from those who cast ordinary votes. Since the 2011 election, following a law change that meant early votes wouldn’t be treated as special votes, special votes have tended to favour left-aligned parties. This seems likely to continue. In 2020, National did ~22% worse on special votes than on ordinary votes, and Labour 8% better. The Greens do better still at 18% better, but Te Pāti Māori did 66% better on special votes.

The numbers will be different this time but as we don’t have anything better to go one, using the same rudimentary method I use each election (assuming the variance in special votes is the same size as it was at the preceding election), along with the Electoral Commission’s estimate of the number of special votes at this election, I estimate the following final result (only parties over 1% assessed):

                                    Preliminary                             After special votes

                                    Vote share       Seats            Vote share       Seats

National                     38.99%          50                    37.78%          48

Labour                        26.85%           34                    27.88%          35

Green Party               10.78%          14                    11.38%           14

ACT                               9.00%             11                    8.68%            11

New Zealand First   6.46%           8                       6.41%            8

Te Pāti Māori             2.60%             4*                    3.03%            4

TOP                               2.07%             0                       2.23%            0

New Zealand Loyal  1.16%             0                      1.31%             0

Making the heroic assumption that the party vote specials will swing exactly the same way as they did in 2020, that’s National down 2 seats and Labour up 1. The other seat National drops would go to Te Pāti Māori, meaning that they may not cause the overhang that the preliminary vote suggests they will. That’s a Parliament where National+Act = 59 seats out of 120, or 60 seats out of 121 if the Port Waikato by-election goes as expected.

Unlike in 2020, the overall shape of special votes isn’t highly sensitive to the number of special votes – the simulation results in the same change in seats from 211,000 special votes, all the way up to 652,000. The exact details will be wrong but I’m a little more confident that I was three years ago. But, this is still a very rough estimate, made more fragile with the closeness of a couple of the Māori seats.

Individual seats are even harder to model: we have the same basic idea – the left do better on special votes, and Te Pāti Māori better still – but we don’t get given an estimate of special votes expected in each electorate (the Electoral Commission knows where they were cast, but doesn’t estimate where they will go).

But I’m going to give it a very rudimentary go anyway. The special votes frequently change a close electorate, but the possibility that Te Pāti Māori may cause an overhang means the overall shape of Parliament is up for grabs in a way it isn’t usually. Having never really done an electorate special vote estimate before, these assessments have even more caveats than my party vote assessments, but:

Tāmaki Makaurau

Labour’s Peeni Henare has 41.4% of the candidate vote in Tāmaki Makaurau, while Te Pāti Māori’s Takutai Tarsh Kemp, 38.7%, with a margin of 495. In 2020, Henare got 41.77% of the ordinary vote and 38.5% of the special vote. John Tamihere, the Māori Party candidate got 36.82% of the ordinary vote and 38.82% of the special votes. Occurring again, the gap closes to Henare at 40.7% and Kemp with 39.1%, and a margin of approximately 352.

Te Tai Tokerau

Labour’s Kelvin Davis has 39.1% of the candidate vote in Te Tai Tokerau, while Te Pāti Māori’s Mariameno Kapa-Kingi has 36.7%, with a margin of 487. The two were also candidates in 2020, where it was not close. In 2020, Davis got 58.8% of the ordinary vote and 50.1% of the special vote. Kapa-Kingi got 25.1% of the ordinary vote and 27.9% of the special vote. This disparity, if replicated would substantially close the gap, leaving Davis on 37.8% and Kapa-Kingi on 37.6%, with a margin of approximately 54.

I’m making no predictions at all on this - I haven't looked back at 2017 to see if that was any different, and I'm not sure it would give me much more confidence (currently low) anyway. I will say that there’s enough here to follow with interest, and that it is possible that Te Pāti Māori picks up an electorate, which would cause an overhang.

I have a basically finished 800-word article on the entrenchment issue that is now unneeded. Dean Knight’s tweets, my tweets, and the open letter of the group of legal academics published by the New Zealand Herald say almost all that needs to be said on the manner in which the House – hopefully briefly – attempted to entrench parts of the Water Services Entities Bill: in short, advancing a proposal on Monday, and voting on it on Wednesday, is not the way to go about this, however important the issue is: it undermines the moral force of entrenchment, and risked damage to New Zealand’s constitutional structure.

New Zealand entrenches very few things, only aspects of the electoral system that, if changed in particularly bad ways could mean New Zealand wasn’t really even a democracy anymore, we could probably protect a couple more (eg MMP itself). But this is not holy writ. Most countries entrench, in some sense, much more than New Zealand does: because they have written constitutions.

There is no magic in limiting entrenchment to the very specific things New Zealand has, and the argument over what matters deserve constitutional protection is one that is clearly up for political debate.
You just do not do it this way.

So instead of my post about why this was bad, I instead have this post, spurred on by a thread by Max Harris, and a recent column from Gordon Campbell, tweets about which helped me realise what we all missed.

Gordan and Max think public ownership of water infrastructure is really important, so important that protecting that ownership against transient future governments’ whims justifies a measure of constitutional protection. Others may disagree – I may disagree – but there is a solution that manages this, without the need for parliamentary trickery.

You can even get the same 75% protection that the Parliamentary term has. And this can all be done without undermining the moral weight of entrenchment. Indeed, doing this the right way could enhance the mana of entrenchment. You don’t even need that supermajority in the House of Representatives.

If you are someone who thinks public ownership of water infrastructure is so important that the government should act to entrench it, you do not need to convince National to agree with you. You need to convince the public (that shouldn’t be difficult: public ownership of water infrastructure is very popular!). Because there are two ways to entrench a law in New Zealand, and both have been used: the entrenched parts of the Electoral Act 1956 were entrenched by Parliament a supermajority of MPs (in fact, all of them) voted for it. But the Electoral Act 1993 isn't law because Parliament voted for it, it's law because the public voted for it: the entrenched bits of that are actually entrenched because there was a binding referendum.

If you are a Gordon or a Max, or a Eugenie, that’s your solution. Don’t settle for 60% protection. Go into the next election with the policy: if we cannot get 75% support in the House of Representatives to protect the continued public ownership of water infrastructure, we will hold a binding referendum on it, requiring a future Parliament to either agree by a 75% majority to sell water assets, or to come back to the public in a further binding referendum.

If you think the public ownership of water assets is crucial, you can seek to protect it without the need for Parliamentary manœuvres, while also protecting the moral weight of entrenchment. But you have to mean it, and you have to want it more than you want some rhetorical cudgel to swing against the opposition. Come back next week and fix this mess, but come back to voters next year and show you mean what you say.

I have prepared the following (draft) submission on the Electoral (Māori Electoral Option) Legislation Bill, which you all have until Saturday to submit on. Happy to consider comments, or to fix typos: have I used the word whakapapa incorrectly, etc? Please let me know :-)

======

The Justice Committee

Electoral (Māori Electoral Option) Legislation Bill

Submission of Graeme Edgeler

1. Thank you for the opportunity to comment on the Electoral (Māori Electoral Option) Legislation Bill.

2. I recognise that the policy questions raised by the bill can be fraught, and that there are theoretical arguments around election fairness that argue against allowing eligible voters to switch between the Māori roll and the General roll at will, but I support the overall principle of this bill, that the option should be more open than the law currently provides.

3. The principle argument I have heard against this policy change will allow for gaming of the Māori seats: the suggestion that people might move to the Māori roll after a census to increase the number of Māori seats and then change back the General roll to vote in a more marginal electorate. I do not think this is a particularly realistic possibility, simply for the reason the vast majority of voters do not think like that, and not least because voters who care enough to go on the Māori roll to increase the number of Māori electorates are almost certainly already on the Māori roll.

4. While the Government appears to have recognised that this at least a partial concern, with the inclusion of new section 78A dealing with by-elections, I do not consider that the issue is one that should be a complete block to removing the current ban on roll-switching. However, if there is some concern that this is an issue – particularly as the bill amends reserved sections of the Electoral Act – I offer some additional safeguards and alternatives which the Committee could consider that would still meet the aim of the bill in allowing more freedom to change between the Māori roll and General roll.

Why a Policy Change is Welcome

5.  I have not always supported a change to allow voters to switch between the Māori roll and the General roll, as I have a general aversion to rules which might allow for gerrymandering. As noted above, I now consider this a relatively minor concern in this case/

6. The choice to be on the Māori roll or on the General roll is an expression of individual identity. It may be one that can change over time, but it is not that will change frequently for any one person. How that identity is expressed will differ between individuals, but that identity may manifest itself in different ways even when an individual’s beliefs do not change.

7. For example, someone of Ngā Puhi ancestry might have chosen to go on the Māori roll because being on that roll enables them to have a say in who represents the Ngā Puhi rohe in Parliament, through voting in Te Tai Tokerau.

8. But if they moved to Hamilton to live and work, they may consider it wrong that they would be voting to determine who would represent Māori who whakapapa to Waikato-Tainui and Ngāti Raukawa and the other Iwi who have rohe within the boundaries of the Hauraki-Waikato electorate.

9. Forcing this person, who chose to go on the Māori roll as an exercise honouring their whakapapa to later vote in in a way which may undermine their mana is wrong, and the law should not require it.

Other Ways of Achieving this Policy Goal

10. I welcome change to abandon the status quo, but recognising that the Committee and the House will likely be considering alternative measures to achieve this policy which can attract broader support, I offer the following as options which will advance the policy underpinning this law, while also lessening the risks some have identified with allowing completely free change.

Roll Changes not Permitted After the Roll Closing Date

11. One of the practical issues that will arise with the bill as drafted is that, by permitting roll changes up to the election, and even on election day, some voters may be at least somewhat enrolled in two electorates: these are voters whose name will be on a printed electoral roll, and who will be sent an Easy Vote card for an electorate they are not going to vote in.

12. I understand that one of the aims of this bill is to place the Māori roll on an even playing field with the general roll. The bill as currently written goes beyond this. People who may only enrol on the general roll cannot change their electorate whenever they wish, but instead only change the electorate they are in when they move (or once the boundaries are re-drawn). Moreover, they must live in their new electorate for a month before their new enrolment takes effect.

13. If a voter is on the roll for Wellington Central, and moves to Christchurch Central after the rolls are printed, they vote in their old electorate for that election. The same could apply to those who change roll type after the roll closing date: when a person changes roll after the roll closing date, that decision – like an updated enrolment – does not take effect until a month later, after the election.

14. New enrolments, of people not then enrolled to vote, could of course choose which roll to enrol on as they can now.

Allow Changing of Rolls when Re-enrolling after Moving

15. Another way in which the bill as drafted does not treat those who may enrol on either the Māori roll or the General roll equally with those who may only enrol on the general roll is that it permits a person to change roll without moving. When a person on the general roll moves, they may change electorate.

16. One alternative, which would treat the Māori roll and the general the same would be to only permit a change in roll type when a person moves and has to change their enrolment. This would address issues like the one I raised above about a person on the Māori roll not wanting to vote in electorate to which they do not whakapapa.

Change once per term

17. Alternatively, as recommended by the Electoral Commission following the 2011 and 2014 election, voters could be permitted to change roll type once per term, which would address the concern some have about possible gerrymandering.

Conclusion

18. I would not object to the bill as introduced passing in that form, although I can see some benefit to adopting the roll-closing date as a date after which roll changes are closed.

19. In the aim of reaching agreement, I invite the Committee to consider alternatives, such as those I outline above.

20. I look forward to speaking the committee in person if that can be arranged.

Graeme Edgeler

There are four types of bills that Parliament considers: most bills are government bills, but there are also members bills, private bills and local bills. Members bills are relatively well know (some important ones have passed over the last few years), but these latter three types are often grouped together. On the days that the House considers members bills (every second Wednesday that it meets), it considers local bills and private bills first.

Private bills are law changes advanced to change the law for the benefit of a particular person or body. Recent private bills that have become Private Acts have included the Paige Harris Birth Registration Act 2022, which provides that Paige Harris's birth certificate can include her mother's name (Paige was born through surrogacy, a process which would have ended by Paige's mother adopting her, which was not possible as she tragically died before Paige's birth).

Local Bills are bills advanced by local or regional councils to allow them to do things general laws would not normally allow them to do. Because they have the democratic backing of an elected council, it is usual practice for such bills to go to select committee, even where there might be concerns about the bill (there are often good reasons Parliament might prohibit local councils from doing something!). Like presenting petitions to the House, being the MP responsible for a local MP does not even necessarily mean you support it, it's just something MPs will ocassionally be asked to do by local councils.

Parliament's Māori Affairs Committee is currently considering a local bill proposed by the Rotorua Lakes Council. The Rotorua Lakes Council says it needs the Rotorua District Council (Representation Arrangements) Bill because it wants to adopt a representation arrangement for its local council that provides for three councillors to be elected from a Māori ward.

If that was its aim, then the bill is unnecessary because the Local Government Commission has since approved a representation arrangement which allows exactly that. Instead, the bill is aimed not at ensuring that there are three councillors elected from a Māori ward, but is aimed at ensurery that the general ward elects no more than three councillors, despite representing over 2.5 times as many people.

The Council seems to have asked for some haste with its bill, and only two weeks were allowed for written submissions (including Easter). Abolishing equal suffrage - even just at local council level - should not be something that is this rushed. This is especially so when, because the bill is a local bill, the Attorney-General's report on the bill isn't available at introduction, and the entire time for consideration of the bill has passed without it being made available.

I anticipate the bill will fail the Bill of Rights assessment process, not least because the Council's rationale for the bill (.pdf) is non-sensical. The Bill also goes far further than is necessary to achieve any justifiable aim of advancing representation. In short, the bill is bad, and should not pass. I put in a submission a short while ago, which I have copied below (please ignore the numbering issues, which are not present in the original).

Submissions close at midnight tonight. You can have your own say here.

===

The Māori Affairs Committee

Rotorua District Council (Representation Arrangements) Bill

Submission of Graeme Edgeler

Introduction

1. This Submission is made by Graeme Edgeler. I am a lawyer with a deep interest in electoral law matters, and I welcome the opportunity to comment on the Rotorua District Council (Representation Arrangements) Bill.
2. I am concerned about the approach the bill takes to both current and future reorganisations of the Rotorua District. The bill would abandon equal suffrage as a core principle at local elections for no major democratic or representational benefit, even accepting it on its own terms.
3. I am also concerned about the short time that has been made available for submissions on the bill. I had hoped the prepare my submission having the benefit of a section 7 report from the Attorney-General under the New Zealand Bill of Rights Act, but neither it, nor a Ministry of Justice assessment of the Bill is yet public.
4. The bill represents so important a change to the democratic underpinnings of our local electoral system that it should not be rushed in advance of this year’s local elections. As a bill advanced by a local authority, it is appropriate that it is considered, but the Committee should seek substantial advice before considering recommending its passage, including by inviting to appear before the Committee either the Attorney-General (if there is a section 7 report), or the Ministry of Justice officials who prepared any advice to the Attorney-General (if there is no section 7 report), as well as the Local Government Commission.

Problems with the Bill

5. There are a range of concerns arising from this bill, which suggest it is at best unnecessary, and at worst, profoundly contrary to established democratic principles.

1. The discussion within the Council, and the rationale the Council adopted in progressing its bill to this stage show a profound misunderstanding about the policy underlying both the Local Electoral Act and the Local Electoral (Māori Wards and Māori Constituencies) Amendment Act 2021.
2. Both the original Local Electoral law, and last year’s amendments are premised on creating equity between voters. The Council’s final decision not only runs contrary to this aim, it does so without any benefit for its aims of promoting co-governance.

The Bill is not needed to achieve the aim of Māori Representation on the Rotorua Lakes Council

8. Last year, Parliament passed the Local Electoral (Māori Wards and Māori Constituencies) Amendment Act 2021, designed to make it easier for Councils to create Māori wards on a similar basis to Māori electorates.
9. Rotorua Lakes Council wants an electoral system where Māori ward voters can directly elect three of the 10 councillors on the Rotorua Lakes Council. It does not need a law change to achieve this.
10. The point of this bill is not to provide for a fair system of councillors to be elected from Māori wards, because under both the law as currently provided, and this bill, Māori electors would directly elect three of Rotorua Lakes’ councillors.
11. Instead, the point of this bill is to limit the number of councillors that general electors (both Māori and non-Māori) can elect, also to three, despite there being more than twice as many general voters.

1. The rationale that the council gives for this is that it doesn’t want individual voters to be voting for different numbers of councillors. There is nothing necessarily wrong with each voter voting in a ward with the same number of councillors, but it should not be adopted as the main criterion for determining how a council is elected, and should certainly not be placed above equity.
2. Moreover, this too could be achieved under the current law. A council with nine elected councillors, three elected from a Māori ward, and three elected from two general wards would also achieve this goal, if it thought desirable.
3. Rather, what the Council has decided is that it is important that the general electors all vote together, and seeks to artificially limit their collective voting strength to directly electing three councillors from a general ward. The existence of the at-large ward, in which all voters would get to participate does not greatly ameliorate this effect.
4. It is as if Rotorua Lakes Council decided that the voters of Hamilton were really a single community of interest, and so should all vote together in Parliamentary elections rather than as Hamilton East and Hamilton West, but to maintain parity with electors in the rest of the country, still limited them to one MP. Or that the Council decided that because the South Island elects 16 general MPs, and one Māori MP, the North Island should elect the same number.

Local Government Commission Determination

16. Importantly, two days after the House gave this bill its first reading, the Local Government Commission released its determination on the Rotorua Council’s back-up alternative. It approved an alternative arrangement: a Māori ward electing three councillors, a general ward electing six, and a rural ward electing one, all allowed within the current wording of the Local Electoral Act.
17. Unless the Council wishes to have that determination changed to provide for two general wards (perhaps Rotorua North and Rotorua South, etc.), this appears to fulfil Parliament’s aim in adopting the Local Electoral (Māori Wards and Māori Constituencies) Amendment Act 2021, in particular, by avoiding creating some votes which are worth more than 2.5 times the votes of others.
18. The explanatory note for the bill records:

Reasons for local Bill

The Council’s ideal representation arrangement is currently prevented by clause 2 of Schedule 1A of the Local Electoral Act 2001 as it does not satisfy the formula currently specified for calculating the number of Māori ward members of the Council.

19. The determination of the Local Government Commission shows this to be false: applying the formula as it has results in three Māori ward members: the number of Māori ward members that the Council wishes to have elected is possible under the current law. What is not possible under the current law is artificially limiting the number of general ward councillors.
20. Over-riding the determination of the Local Government Commission would also void its decision to create a Rural General Ward that recognises that the residents of the Rotorua District who live outside the city of Rotorua are a distinct community of interest whose interests deserve to be represented in decision-making (and which can be accommodated under the current legislation).

1. Indeed, passage of the law would create an ongoing issue that would prohibit future councils from reconsidering whether the rural areas of the Rotorua District should be separately represented in the future, with changes to this now not being a matter for consideration by the Council and confirmation by the Local Government Commission, but a matter on which Parliament would likely need to legislate should circumstances change.

Permanent Removal of the Local Government Commission from Involvement with Decisions over Representation in the Rotorua District

22. One consequence of the approach taken in this bill is that it needs to short-circuit the usual protections provided in the Local Electoral Act to enable affected locals to raise concerns about fairness and representation with the Local Government Commission.
23. Under clause 7 of the Bill, aspects of the usual process for consideration of election arrangements are essentially repealed for the Rotorua District.
24. Rather than locals affected by a Council representation decision being able to ask the expert Local Government Commission to consider the matter, their only recourse will be to approach the Minister of Local Government to object, and then, if necessary to judicially review the order-in-council which may follow.
25. The Local Government Commission, like the Representation Commission, was created for a reason, recognising that both local councils and national politicians have direct interests in the forms of representation that are adopted and under which they are elected. Removing consideration of the Rotorua District’s ongoing representation from the Local Government Commission, and giving it to the Minister is contrary the policy of the Local Electoral Act, and to principles of independence in the administration of elections.

1. Under clause 11 of the bill, the Minister, in concert with the Council would also be empowered to redraw boundaries, without any provision for concerns to be raised at the Local Government Commission, despite those protections applying in other councils.

Consistency with the New Zealand Bill of Rights Act

27. As noted earlier, this submission is written without the benefit of having seen a section 7 report, or Ministry of Justice vetting of the bill for compliance with the New Zealand Bill of Rights Act.
28. I anticipate that a section 7 report will be forthcoming, so do not submit at length here, as that report will hopefully mean further submission is unnecessary.[1]
29. Not all discrimination is unlawful discrimination. Discrimination can be justified by reference to a compelling state interest to advance that mean that the discrimination is justifiable in a free and democratic society.
30. One example of lawful discrimination would be the existence of Māori wards at local bodies, and of Māori electorates. The provision of such wards is discriminatory in the sense that not everyone is given the same choice, but because they are created on the same basis as general seats, and because they serve a population of the same size (with a margin for rounding), they do not create the type of disadvantage that would be difficult to justify.
31. That is not the case here. The deliberate down-weighting of general votes creates a grave discrimination that would need a compelling justification. None is advanced. I invite the Committee to seek further advice, including from the Attorney-General or Ministry of Justice as appropriate, and may address this in person if necessary.

Single Transferable Vote

32. One matter the Committee may wish to comment on in its report is the possibility that Rotorua Lakes Council should consider adopting the Single Transferable Vote system.
33. It is too late for the Rotorua Lakes District Council to do so in advance of the next local election, but many of the issues it says it wishes to address: fairness between voters, all voters having the same number of votes, etc. are solved by that system, which, within the margin possible for a 10-member council, is a wholly proportional voting system, and could ensure that sizeable minorities would not have their voices overridden.

Conclusion

34. Given the major issues with this bill, and the solution that arises from the recent Local Government Commission determination of a ward system that provides for fair representation in the Rotorua District, the Committee should recommend that this bill not pass.
35. Thank you for your consideration of this matter. I look forward to making what I believe will be my first submission to the Committee in person.

                                                                         Graeme Edgeler

[1]     As the right to participate in democracy in section 12 of the New Zealand Bill of Rights Act is limited to parliamentary elections, I anticipate any report will primarily address section 19: freedom from discrimination.

Just sent the following submission in on the law repealing the three strikes sentencing regime.

You have until midnight tonight if you want your say.

==

The Justice Committee

Three Strikes Legislation Repeal Bill

Submission of Graeme Edgeler

Introduction

1. This submission is made by Graeme Edgeler. I am a barrister with an interest in criminal law issues.
2. I support the Three Strikes Legislation Repeal Bill, and welcome the opportunity to comment on it.

Repeal of Life without Parole

3. While I support the bill, it is somewhat of a missed opportunity, as it does not repeal all the law changes made by the Sentencing and Parole Reform Act 2010.
4. A major part of the Sentencing and Parole Reform Act 2010 was the creation of the sentence of life without parole.
5. The sentence of life without parole creates sentences of no hope, and should not exist in New Zealand. I can accept that many people will never get out of prison after committing particularly heinous acts, but release should be theoretically possible for everyone.
6. It seems odd to me that Parliament would consider that finite sentences ordered to be served without parole are unjustifiable and the possibility of a court ordering them should be removed, but that indefinite sentences should nonetheless still be able to be ordered to be served without the possibility of parole.
7. It may be entirely appropriate that a particular person should never be released from prison, but that is a decision that should be made looking at them and their risk at the time by the New Zealand Parole Board, not by the sentencing court at the time of sentencing.

1. The Select Committee should take this opportunity to recommend to the House that the sentence of life without parole should also be repealed, in the same way that it is to repeal determinate sentences without parole.

Resentencing of People Sentenced Under the Three Strikes Regime

9. The bill as drafted adds transitional provisions relating to people currently serving sentences as second or third strikes. It provides that “a person is not eligible for release or re-sentencing as a consequence of any provision brought into force under the Three Strikes Legislation Repeal Act 2021”.
10. The Committee should be clear that this will not prevent people being resentenced if they meet the standard set by the Supreme Court in Fitzgerald[1](a third strike offence), which was applied by the Court of Appeal in Matara[2] (a second strike case) late last year.
11. However, to obtain this resentencing, people will have to appeal the Court of Appeal. This is an inefficient use of Court resources. Having to have three judges sit, using up time in the Court of Appeal, rather than a single judge in the High Court should not be necessary. Given the decisions of the Supreme Court and the Court of Appeal, this law would appropriately provide for re-sentencings if the tests in those cases are met.
12. This would not mean that everyone serving a second-strike sentence would succeed – the requirement that the sentence be inconsistent with section 9 of the New Zealand Bill of Rights Act is a high test to meet, but this is an argument that, given the law change, should be able to be made in the High Court, not one that should have to be made before a panel of judges in the Court of Appeal.

Conclusion

13. I support the Bill but recommend that it should be amended to provide the following:
    1. The repeal of the sentence of life without parole
    2. To provide a process by which those sentenced under the three strikes regime can apply to the High Court to be resentenced where the sentence imposed upon them was inconsistent with section 9 of the New Zealand Bill of Rights Act.
14. Thank for your consideration of this matter. I look forward to speaking to my submission in person.

 

Graeme Edgeler

[1] Fitzgerald v R [2021] NZSC 131.

[2] Matara v R [2021] NZCA 692.