The Dim-Post

June 9, 2014

On silly laws

Filed under: Politics — danylmc @ 5:53 am

Tracy Watkins writes:

John Banks’ resignation may be the least surprising outcome of the last few days.

The more revealing responses have been those of many of Banks’ allies.

John Key did not resile from his view that Banks was an honest man. Former ACT leader Richard Prebble insisted that Banks’ crime was nothing more than a clerical error.

Given the propensity of both ACT and National to play the law and order card you would think the fact that Banks had been found guilty of a crime punishable by two years in prison or a hefty fine would have resonated more strongly.

Even more telling was Prebbles defence on Q+A that he had seen any number of electoral returns over the years that were works of fiction.

He has not been the first to make that observation amid the fallout over Banks’ trial.

Loads of people have argued that Banks should have clemency because the law he broke is a silly one. As Andrew Geddis points out, Banks’ opponent in the mayoralty race also concealed the identity of his donors but he did so through a trust so he couldn’t be charged.

But loads of people who get caught breaking, say, our drug laws do so because they think those laws are silly. They still get charged and the state still crushes them. They don’t get loads of opinion writers wringing their hands and demanding that the madness stop because they’ve suffered enough, dammit, because they’re primarily brown and poor while Banks is rich and white.

Secondly, like most of the laws that politicians design to regulate themselves (electoral finance laws especially) they’re silly and broken for a reason – to allow politicians to solicit money from the people they intend to govern without the appearance of open corruption. And Banks isn’t some innocent victim of that law – he’s a high-standing member of the political class that designed it: former Cabinet Minister, MP for twenty years, former mayor of Auckland etc. If politicians are going to introduce laws that are deliberately stupid and pointless the least they can do is abide by them and get punished when they don’t – not break them at a whim and then whine about how the law is an ass when they’re the ones who fucking wrote it. 

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50 Comments »

  1. Agree in that if you do the crime, you should do the time. However, it’s interesting the number of clear breaches of electoral laws in recent election cycles that haven’t been prosecuted, and the fact that a relatively minor breach in a local body election in which the offender didn’t win anyway (i.e. no advantage gained) was the one prosecuted. Some consistency would be nice.

    Comment by PaulL — June 9, 2014 @ 6:19 am

  2. Agree. We on the right made a fuss, entirely fairly, about Clark and the pledge card and Peters and Glenn. This is not a reason to say, “they did it too, so Banks should get off lightly.” It’s time to say “about time someone has been held unaccountable” and call for consistency.

    Comment by Matthew Hooton — June 9, 2014 @ 6:40 am

  3. I agree that consistent application of electoral law is needed. Given Police reluctance in recent years to investigate and prosecute anyone under electoral law, any application of it would be welcome. It’s too important to be ignored, which is what Police, for some reason, have largely done.

    Comment by Tane Woodley — June 9, 2014 @ 6:44 am

  4. Was this one not a private prosecution/complaint? Rather than the electoral commission prosecuting/recommending prosecution? Perhaps the answer is that private individuals need to push prosecutions in future on all clear breaches? Seems somewhat silly that those paid by taxpayers to do this job aren’t doing it, but I guess that’s not unusual in govt.

    Comment by PaulL — June 9, 2014 @ 7:49 am

  5. It would be helpful if an agency other than the Police got to decide who was prosecuted for electoral offences, given their limp track record.

    Comment by Sacha — June 9, 2014 @ 8:11 am

  6. “It’s time to say “about time someone has been held unaccountable” and call for consistency.”

    spinners be spinning i guess

    Comment by framu — June 9, 2014 @ 8:30 am

  7. They don’t get loads of opinion writers wringing their hands…

    There’s been plenty of opinion pieces pointing out problems with our drug laws.

    I don’t think the current political funding law mess is deliberate more that it’s come about via a series of ad hoc reactions to particular circumstances. And neither main party wants to risk any sensible framework for fear of being accused of rigging the system.

    The whole keeping donations anonymous thing is ridiculous. Every politician will have a fair idea who makes large donations but the current law forces them into this sort of unnecssary subtiguge.

    Comment by NeilM — June 9, 2014 @ 9:07 am

  8. framu – whoops, yes, I meant “accountable” not “unacceptable” ..

    Comment by Matthew Hooton — June 9, 2014 @ 9:15 am

  9. One thing strikes me as odd is that KDC can’t be prosecuted. He tried to corrupt a politician which should be against the law.

    Comment by NeilM — June 9, 2014 @ 9:22 am

  10. “…He tried to corrupt a politician…”

    John Key gets envelopes stuffed with cash at Antoines, should the GCSB bug the restaurant and have the police arrest the well heeled corrupters of the National party?

    Comment by Sanctuary — June 9, 2014 @ 9:38 am

  11. I would love to have the Electoral Commission empowered as a prosecuting authority. Don’t see any MP voting for that though.

    Comment by Auto_Immune — June 9, 2014 @ 9:38 am

  12. Sanc, according to KDC he conspired with Banks to circumvent the electoral law. That’s quite different to those donations via Antoine’s which aren’t against the law.

    Comment by NeilM — June 9, 2014 @ 9:45 am

  13. matthew hooten – fair enough – i thought that was rather brazen so typo explanation makes sense.

    Comment by framu — June 9, 2014 @ 9:47 am

  14. We also know the intention of KDC was to get Banks to do his bidding in quite a direct manner and when Banks failed to do so KDC gt his revenge. It’s odd he can get away with that.

    Comment by NeilM — June 9, 2014 @ 9:47 am

  15. “That’s quite different to those donations via Antoine’s which aren’t against the law” – isnt that somewhat debateable? ie: if your there you know who donated. Semantics yes

    Comment by framu — June 9, 2014 @ 9:48 am

  16. @Sacha: There’s no reason to assume that some alternative agency given the responsibility that the police now have wouldn’t face the same pressures they do, and buckle in the same way they do.

    Comment by kalvarnsen — June 9, 2014 @ 9:50 am

  17. John Key gets envelopes stuffed with cash at Antoines, should the GCSB bug the restaurant and have the police arrest the well heeled corrupters of the National party?

    Well, that’s legal, because it hasn’t been found illegal yet.

    I’d sure like to know what Key is telling those who funnel him $10,000 each through an open breach of electoral law. The diners/donors are the actual donors, not the owner of the restaurant, who is merely an open conduit. I wonder if McCready will come after the PM next?

    Comment by George — June 9, 2014 @ 9:59 am

  18. I’d be interested to know what any lawyers might think of using the outcome of a trial to pass judgement on the wisdom, or not, of the police and crown law’s decision to prosecute, or not.

    Comment by NeilM — June 9, 2014 @ 10:24 am

  19. One thing strikes me as odd is that KDC can’t be prosecuted. He tried to corrupt a politician which should be against the law.

    @NeilM – How did KDC try to corrupt Banks?
    Also, the corruption of an official (“any member or employee of any local authority or public body”) is a crime under s105(2) of The Crimes Act 1961, punishable by a term of imprisonment of up to 7 years.

    Comment by Gregor W — June 9, 2014 @ 10:29 am

  20. “That’s quite different to those donations via Antoine’s which aren’t against the law” – isnt that somewhat debateable?

    No. The Antoine’s donations were structured in a way which *increased* the level of disclosure.

    Comment by Graeme Edgeler — June 9, 2014 @ 10:33 am

  21. “…@NeilM – How did KDC try to corrupt Banks..?”

    He wishes to divert from the facts – Banks solicited the donation, then suggested how to get around the electoral laws, then knowingly signed a false return. Saying KDC tried to corrupt him is a bit like saying you are guilty if the person who asks you for $2 for a poppy for ANZAC day subsequently makes off with the takings.

    Comment by Sanctuary — June 9, 2014 @ 10:34 am

  22. No. The Antoine’s donations were structured in a way which *increased* the level of disclosure.

    Who are the donors?

    Comment by George — June 9, 2014 @ 10:38 am

  23. Graeme Edgeler – ” *increased* the level of disclosure.” – ke? – genuine question there

    Comment by framu — June 9, 2014 @ 10:40 am

  24. Graeme Edgeler – ” *increased* the level of disclosure.” – ke? – genuine question there

    The usual practice with fundraising dinners is that you overpay for dinner and it goes to the party. People paid $5000 to attend this dinner. $5000 is well below the disclosure threshold for a party donation. By everyone paying their $5000 to Antoine’s restaurant, we instead got a $105,000 donation from Antoine’s, which was declared, and which declared that it included contributions.

    A very proper way for this to have been conducted would have been everyone who attended paying $5000 direct to the National Party on the night. We would know nothing whatsoever.

    Comment by Graeme Edgeler — June 9, 2014 @ 10:46 am

  25. so it increased the level of disclosure but still hid the donors – yes i get what your saying, but why use such a system in the first place?

    Comment by framu — June 9, 2014 @ 11:13 am

  26. >so it increased the level of disclosure but still hid the donors – yes i get what your saying, but why use such a system in the first place?

    Well they do get to have a party at Antoines and to meet the politicians. It seems like a good way to organize such fundraising. If it’s just individual anonymous donations, there could be a big stally factor, people not paying their 5g since they don’t get seen to pay it. At a fundraiser like that, everyone knows they’re shelling in at least their 5g, so everyone knows to give everyone the appropriate warm pat on the back and any other deals they want to do that night are up to them. It’s a real team builder.

    Comment by Ben Wilson — June 9, 2014 @ 11:24 am

  27. good points ben – thats what i get for being a hermit i guess

    Comment by framu — June 9, 2014 @ 11:27 am

  28. so it increased the level of disclosure but still hid the donors – yes i get what your saying, but why use such a system in the first place?

    People donating well below the donation declaration threshold isn’t a way of hiding donors. Nothing about the way this event was run hid anything from anyone.

    Comment by Graeme Edgeler — June 9, 2014 @ 11:52 am

  29. apart from those who attended – like i said, semantics

    Comment by framu — June 9, 2014 @ 12:02 pm

  30. People donating well below the donation declaration threshold isn’t a way of hiding donors.

    Except if they dined on a $10,000 dinner more than once. Then they are above the threshhold, by a significant extent.

    Comment by George — June 9, 2014 @ 12:31 pm

  31. >Nothing about the way this event was run hid anything from anyone.

    To even have it as a big party, a minor media event, is aiming to do the exact opposite, I’d think. It’s showing off that they can pack a restaurant full of people willing to make such a donation, and the people themselves are publicly seen shaking hands with the PM etc. It’s a far cry from a wad of cash slipped under a table in brown paper bag.

    Comment by Ben Wilson — June 9, 2014 @ 12:51 pm

  32. To even have it as a big party, a minor media event, is aiming to do the exact opposite, I’d think. It’s showing off that they can pack a restaurant full of people willing to make such a donation, and the people themselves are publicly seen shaking hands with the PM etc.

    Um, you do realise these were secret events, right?

    Pretty much the opposite of a large openly advertised public event.

    Comment by George — June 9, 2014 @ 1:40 pm

  33. >Um, you do realise these were secret events, right?

    True enough that no big houha was made at the time. I’ll give you that. No denials either, though. But yes, I guess an invitation-only event on private premises is different to a public event.

    Comment by Ben Wilson — June 9, 2014 @ 2:28 pm

  34. At risk of electoral law nerdity, a brief history of the subject.

    Banks was guilty of breaching the LOCAL Electoral Act (not the one that governs parliamentary elections). This dates back to 2001, and when it was passed Parliament put in it a definition of “anonymous” that meant candidates actually could not know the identity of donors. At that time, the rules for parliamentary elections had no such definition, and candidates (and parties) were listing donations as “anonymous” in nature where the donor simply asked to be listed as such. So the 2001 law that Banks breached was a tightening of the rules … but it also left big loopholes, like the one that Brown took advantage of (setting up a trust, getting donors to pay into it, then listing the trust as the source of the donations to his campaign).

    Then in 2005 we had the Brethren election and allegations that US donors were backing National, etc … which led to the Electoral Finance Act … which significantly tightened the rules around donations to parliamentary elections. National kept these in place when it repealed the EFA in 2009, but it and Labour joined together to increase the limit at which donations to political parties must be disclosed to $15,000 (which is why none of the attendees at Antoine’s dinners get disclosed as individuals).

    This then meant the rules for local elections differed from those for national elections … until last year, when the Government (largely) brought them back into line. So in future elections, Brown couldn’t run his trust to avoid disclosure. Which is as things should be.

    As for the point I was making in the post that Danyl quoted – I don’t think that the “everyone else is just as bad” claim should mean Banks ought not to have stood down (indeed, I argued he should do so). It wasn’t hard to avoid breaching these rules, and even if they were imperfect, they have an important purpose. So a public disgrace pour encourager les autres is warranted.

    Comment by Andrew Geddis — June 9, 2014 @ 5:29 pm

  35. It’s been quite a revealing episode, as we see so many of the fourth estate showing an instinctive empathy with power, rather than speaking truth to it. Sad, and not a little disturbing.

    Try a little fraud on your next Work and Income form, and wait in vain for the high-powered team of lawyers and spinners to rush to your defence. Clearly, patronage still beats principle.

    Comment by sammy 2.0 — June 9, 2014 @ 6:46 pm

  36. @Andrew, that’s two different definitions of anonymous – unknown to the recipient vs unknown to the public.

    Comment by NeilM — June 9, 2014 @ 7:08 pm

  37. “If politicians are going to introduce laws that are deliberately stupid and pointless the least they can do is abide by them and get punished when they don’t – not break them at a whim and then whine about how the law is an ass when they’re the ones who fucking wrote it. ”

    There’s a strong whiff of the No True Scotsman fallacy about those who continue to defend Banks beyond all reason. Richard Prebble was one of the worst examples.

    Comment by DeepRed (@DeepRed6502) — June 9, 2014 @ 9:16 pm

  38. And contrast the slowness of prosecuting Banks with the almost overnight swiftness of the Teapot Tapes case taken against Brad Ambrose.

    Comment by DeepRed (@DeepRed6502) — June 9, 2014 @ 9:23 pm

  39. “And contrast the slowness of prosecuting Banks with the almost overnight swiftness of the Teapot Tapes case taken against Brad Ambrose.”

    Another two compelling reasons to have an independent prosecution office, is there any reason we do not have one? I have personally been the victim of police overcharging where even the judge was bewildered enough to query the prosecuting officer the basis of the charge.

    Comment by f dx — June 9, 2014 @ 9:53 pm

  40. People donating well below the donation declaration threshold isn’t a way of hiding donors.

    Except if they dined on a $10,000 dinner more than once. Then they are above the threshhold, by a significant extent.

    And would be required to be declared. This is not a way of hiding donors.

    Comment by Graeme Edgeler — June 9, 2014 @ 11:06 pm


  41. People donating well below the donation declaration threshold isn’t a way of hiding donors.

    Except if they dined on a $10,000 dinner more than once. Then they are above the threshhold, by a significant extent.

    And would be required to be declared. This is not a way of hiding donors.

    Comment by Graeme Edgeler — June 9, 2014 @ 11:07 pm

  42. “slowness”?

    Because Obama controls our police and decided that neither Labour nor National should be charged over electoral malfeasance so as to save KDC”s ass even before this all happened?

    A bit unlikely.

    Comment by NeilM — June 9, 2014 @ 11:46 pm

  43. Piss off Neil

    Comment by Rob — June 10, 2014 @ 8:12 am

  44. “And contrast the slowness of prosecuting Banks with the almost overnight swiftness of the Teapot Tapes case taken against Brad Ambrose.”

    not to mention the police labelling him guilty in the media when they dont have such a capacity or legal right to do so – since when did the police’s opinion replace the courts?

    Comment by framu — June 10, 2014 @ 11:16 am

  45. Because Obama controls our police….

    NeilM – Even with your well known penchant for doublethink and absurd strawmen, this one takes the cake.
    I doff my cap to you, Sir!

    Comment by Gregor W — June 10, 2014 @ 12:24 pm

  46. The decision by Police not to charge Banks could be the subject of review. Also, Police may be more vigilant in the future re electoral breaches, though we only have Greg O’Connor’s word for that.

    http://tvnz.co.nz/national-news/police-handling-john-banks-case-questioned-5996328

    Comment by Ross — June 10, 2014 @ 12:47 pm

  47. “Another two compelling reasons to have an independent prosecution office, is there any reason we do not have one?”

    Independent from whom?

    Comment by kalvarnsen — June 10, 2014 @ 7:34 pm

  48. Presumably, from the Police Prosecution Service.

    Comment by Gregor W — June 10, 2014 @ 8:05 pm

  49. Why waste money on an IPCA inquiry when I can write the report for them right now:

    Some regrettable procedural errors were made, no individual at fault or any evidence of any bias with regards to case handling/decisions whether to prosecute. Police promise to try better next time.

    Comment by Rob — June 10, 2014 @ 8:52 pm

  50. I have a tax question about $5,000 meals at restaurants. Is this treated as sales by the restaurant and is GST paid on this? How are Party Donations treated as expenses? Are they deductable as a business expense and for GST purposes?

    Comment by Ian Tinkler — June 11, 2014 @ 8:10 pm


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