Stupid National policy: fining parents of school leavers

My disappointment with the direction National is going in has increased even more.

Stuff: Fines for parents of school drop-outs considered for National Party policy

Fines for parents of school drop-outs are among several tough welfare policies the National Party is floating ahead of the 2020 election.

National leader Simon Bridges says New Zealanders know there’s deep-set poverty and welfare dependence problems, and is promising to take Labour on with policies that show “backbone”.

While Bridges wouldn’t speak directly to the policies being considered, it’s understood they include fines of up to $3000 for parents of children who leave high school and don’t enter further education and training.

That’s even worse than fining parents if students leave early. If an 18 year old left school and didn’t enter enter further education and training would National really consider fining their parents for not forcing them to do something they obviously don’t want to do?

There’s more:

National is considering are: more obligations and sanctions for beneficiaries, cutting the number receiving welfare by 25 per cent, and requiring gang members to prove they don’t have illegally-sourced income before receiving the benefit.

Beneficiary bashing is not new, but seems to be a swing back to pandering to people who are unlikely to switch votes anyway.

Bridges said: “It’s no secret. We hate gangs … We are thinking about how we can crack down on gangs.”

Why stop at gangs? It’ would be hard to legally define ‘gang’ anyway. Why not make everyone prove they don’t have illegally-sourced income? And include illegally sourced political donations.

RNZ: Will National propose fines for parents of truant teens? (with audio):

Should parents of teenagers who leave school early and don’t go into education or training be fined?

It’s one of the policies the National Party is reportedly looking into as part of its social policy review.

Other policies under consideration are requiring gang members to prove they don’t have illegal income before getting a benefit, and reassessing the obligations of people who are on the benefit.

Leader Simon Bridges is being coy about the specifics – but says these are priority issues for National.

Priority issues for National? I think a higher priority issue for National is leadership – or more specifically, a lack of decent leadership. Bridges seems to the best chance of getting Labour and Greens in power next year.

I have a better proposal – fine MPs who waste time and (taxpayer) money on stupid policies. Especially party leaders.

 

 

NZ First’s $300k clause is old news

It’s surprising to suddenly see that NZ First have a clause in their constitution that seeks to impose a $300,000 dollar cost on and MP who resigns or is expelled from the party.

Surprising because it is not news – I posted on this four years ago


May 2014

NZ First’s $300,000 fine threat

NZ First have a clause in their party constitution that tries to enable the party to fine any list or electorate MP who resigns or is expelled  $300,000 at the discretion of the Board.

NEW ZEALAND FIRST PARTY CONSTITUTION 2013

57 Parliamentary Division

(g) Upon a member of the Parliamentary Division ceasing to be a member of the Parliamentary Division because he/she has resigned from or has been expelled from the New Zealand First parliamentary caucus, or has ceased to be a member of the Party, then whether the member is a constituency member of parliament or a list member of parliament, he/she must resign his/her parliamentary seat as soon as practicable and in any event not later than 3 days after the date of cessation.

(h) In order to provide the means for enforcement of the preceding article 57(g) concerning the obligation of a member or former member to resign his/her parliamentary seat, and as a condition precedent to selection as a New Zealand First parliamentary candidate, and in consideration of selection as such, every member who agrees to become a candidate, and every member who stands as a candidate, and every member who is elected as a New Zealand First list member of parliament or as a New Zealand First constituency member of parliament, before being selected as a candidate, before standing as a candidate, before election as a New Zealand First member of parliament, and before accepting his/her seat in parliament and before being sworn in as such, and at any other time when required by the Board to do so whether before or after election and whether before or after being sworn in as a member of parliament, shall agree to give and shall sign a written undertaking, intended to be a legally enforceable contract (the resignation obligation contract) , under which he/she agrees to uphold observe and perform all of the provisions of this article 57 of this constitution and its amendments, and in particular to a fundamental term of the contract which will be the essence of  the contract, and which will impose a liability for liquidated damages in the sum of $300,000 (three hundred thousand dollars) for any breach of article 57(g) of this constitution and its amendments, concerning the obligation of a member or former member to resign his/her parliamentary seat, if he/she ceases by any means and for any reason and in any circumstances whatsoever to be a member of the Parliamentary Division during the term for which he/she has been elected. The Board may however compromise the amount of liquidated damages payable or waive the imposition of liability for liquidated damages in its sole and unfettered discretion without having to have any reason for doing so, without having to give any reason for doing so, and without being under a any obligation to do so or to consider fairness, natural justice, or any other consideration whatsoever;
and the Board shall not enforce the resignation obligation contract under this article 57(h) at any time that legislation exists which requires or determines that a member of Parliament to resign or relinquish his/her parliamentary seat upon the grounds contained in or similar to those specified in article 57(g).

NZ First  Party rules:  nz_first_constitution_nov_2013.pdf

Law professor Andrew Geddis takes it apart: I’m right, Winston’s not, so there

The $300,000 figure here clearly is designed to present an MP who leaves NZ First with Hobson’s choice. Either quit as an MP, or face ruinous financial consequences. And because the rule has this effect – it is designed to force an MP from Parliament – I don’t think it will be enforceable in court. And a rule of this nature only has teeth if there is a court that is prepared to, as a matter of law, make someone actually pay up the penalty figure.


But it has become a thing today for some reason. National call it Revelations, which it clearly isn’t. It’s a rehashed story four years later.


NZ First MPs signed $300k good behaviour bond

Revelations that Government MPs are required to sign a legally enforceable contract meaning they must pay $300,000 if they do not follow their Leader’s instruction is an affront to our parliamentary democracy, National’s Electoral Law spokesperson Nick Smith says.

“The 2016 amendment to NZ First’s constitution states its MPs must pay damages of $300,000 if they personally disagree with Winston Peters, turning them into indentured workers with an extraordinary price tag hanging over their heads.

“It means every time an NZ First MP votes or comments on an issue, they have 300,000 reasons why they should just parrot Winston Peters and not to speak out even if doing so would be in the public’s best interests.

“This is abhorrent. These types of contracts are illegal in other workplaces and would be unconstitutional in most democratic countries, so why are they at the core of our current Government? They turn elected representatives into puppets of a party leader who is now attempting to impose the same restrictions on free speech on Parliament’s other MPs, in spite of universal opposition to the Waka Jumping Bill.

“It is a sad commentary on the NZ First Party and Mr Peters that such draconian contracts are required to maintain caucus discipline – and now to keep the Government together.

“It also contradicts Mr Peters’ previous hollow position that MPs ‘have to be free to follow their conscience. They were elected to represent their constituents, not to swear an oath of blind allegiance to a political party’.

“The contracts were revealed after I was contacted by a concerned NZ First source who advised that all NZ First MPs had signed them except Mr Peters.

“NZ First must publicly release the full details of these contracts, outlined in article 57 (h) of its constitution, so the public can see the restrictions imposed on its elected MPs. This is even more important with NZ First playing such a pivotal role in the current Government.

“Disclosure is also required to be consistent with the Government’s pledge to be the most open and transparent ever, a claim looking increasingly ridiculous when even the Minister responsible for Mr Peters’ Waka Jumping Bill, Andrew Little, had no idea about the clause.

“That’s despite his legislation increasing the legal weight given to party rules and his acknowledgement that MPs should be able to do their job with being subjected to such restrictions.

“New Zealand needs MPs who are not bound by orders or instructions but whose responsibility is to act as representatives of the people.

“The existence of these contracts opens the question as to whether New Zealand needs additional protection to prevent its parliamentary democracy from being manipulated by these sorts of oppressive contracts.”

 

Fine only for growing cannabis for personal use

The Christchurch High Court has ruled that growing cannabis for personal use normally warrants just a fine, with a community sentence being quashed on appeal.

This reinforces court precedents of a fine being appropriate if the cannabis was being grown for personal use.

Note that growing cannabis for supply is dealt with much more severely.

Also note that an example of a case involving repeat offender found that, while the prison sentence imposed was inappropriate and was quashed, a community sentence was justified (see below).

Judgment of Nation J – Riches v Police [2017] NZHC 2035 – 24 August 2017

[1] Is a fine the normally appropriate penalty for cultivating a small number of cannabis plants for personal use using hydroponic facilities? That is the issue raised by this appeal.

[2] The summary of facts described how the Police visited the appellant, Mr Riches, at his home in Christchurch. He told the Police that someone they were asking about had come over to his place to smoke cannabis. A warrantless search power was invoked. The summary then recorded:

Located in the garage was a grow room fitted out with lamps, heat sources
and ventilation. The garage contained 6 mature Cannabis plants
approximately 1 metre in height with 2 smaller plants approximately 20
centimetres in height.

[3] Mr Riches pleaded guilty quite promptly on a third Court appearance. He was then remanded for a pre-sentence report and was sentenced on 12 July 2017.

[4] The District Court Judge referred to the number and description of the eight plants. He noted that Mr Riches had told the Police the cannabis was for his personal use and said “[t]his cultivation appears to have been accepted by the prosecution as being non-commercial”.

[5] The Judge noted Mr Riches was appearing before the Court at aged 29, for all intents and purposes as a first offender.

[6] The Judge also noted the submission for Mr Riches that the offending was a category 1 offence in terms of the guidelines in R v Terewi. He referred to the probation officer’s opinion that there was a minimal or low risk of reoffending but also the probation officer’s opinion that Mr Riches had issues with cannabis use.

[7] The Judge noted that community work was not recommended because Mr Riches’ employment could make completing that work difficult. He did not consider imprisonment was required and said he was therefore “prepared to accept the recommendation of the probation officer as appropriate”. He convicted Mr Riches and sentenced him to four months’ community detention, to be served by way of a curfew at his home from 7.00 pm to 6.00 am Monday to Sunday inclusive. He also sentenced Mr Riches to 12 months’ supervision with a special condition that he attend and complete any recommended intervention for drug use to the satisfaction of the probation officer. On his appeal, Mr Riches did not challenge that latter aspect of his sentence.

Conclusion

[38] I am satisfied that there was an error in the sentencing through the District Court Judge failing to adequately consider whether the offending could be dealt with by way of a fine, as is required by s 13 Sentencing Act 2002. Section 15 states that, when a court can consider imposing a community-based sentence, such as community detention, it may do so only if it does not regard a fine as the appropriate sentence or because of other specified circumstances, which do not apply in this case. In all the circumstances of this case, I consider the Court had to regard a fine, together with supervision, as the appropriate sentence.

[39] The appeal is accordingly allowed. The sentence of four months’ community detention is quashed. The appellant is fined $1,700 and sentenced to 12 months’ supervision with a special condition that he attend and complete any recommended intervention for drug use to the satisfaction of the probation officer

So a fine has been found appropriate for a first time offender growing cannabis for personal use who shows contrition.

Note though this example of an unrepentant repeat offender:

[34] In Hartley v Police, Mr Hartley was sentenced on one charge of possession of cannabis, which related to 736 grams of cannabis head found drying on a newspaper in a room inside his house. He was also sentenced for the associated cultivation of cannabis. Seven cannabis plants, ranging in height from 0.75 to 1.7 metres were found. When confronted by the Police with what they had found, Mr Hartley was unrepentant about both his use of cannabis and cultivation, and indicated he did not consider he had done anything wrong. He had previous convictions for cannabis offending. He was sentenced to nine months’ imprisonment in the District Court.

[35] On appeal, Dobson J considered the issue was whether the Judge had erred in imposing a sentence of imprisonment rather than a sentence of home detention or community detention. His Honour held that the decision not to impose a community-based sentence or a sentence of home detention was plainly wrong. In reaching that conclusion, the Judge held that insufficient weight was placed on Mr Hartley’s personal circumstances “and the distinction between cultivation for personal use and cultivation for supply of others”. He also noted that “community detention combined with intensive supervision has been imposed on comparable occasions where the motivation for change is strong and the offender has secure employment and family support”. Dobson J also said:

I also consider that the need for denunciation and deterrence is lower in cases of cultivation than in cases of supply. The seriousness of cultivation for personal use should not be minimised, but the harm caused by such offending is more to the offender and his or her family, than to the community

[36] Dobson J concluded that a community-based sentence should have been imposed. Home detention was not appropriate because it would require Mr Hartley to forego employment. His Honour took into account the two months’ imprisonment already served, quashed the sentence of imprisonment and imposed a sentence of four months’ community detention, together with 18 months’ intensive supervision.

[37] There was no issue in Hartley as to whether a fine should have been imposed as distinct from a sentence of community detention. The appellant’s previous convictions distinguish it from Mr Riches’ situation.

A prison sentence was overturned (after the offender had served two months) but a community sentence deemed appropriate.

NZ First’s $300,000 fine threat

NZ First have a clause in their party constitution that tries to enable the party to fine any list or electorate MP who resigns or is expelled  $300,000 at the discretion of the Board.

NEW ZEALAND FIRST PARTY CONSTITUTION 2013

57 Parliamentary Division

(g) Upon a member of the Parliamentary Division ceasing to be a member of the Parliamentary Division because he/she has resigned from or has been expelled from the New Zealand First parliamentary caucus, or has ceased to be a member of the Party, then whether the member is a constituency member of parliament or a list member of parliament, he/she must resign his/her parliamentary seat as soon as practicable and in any event not later than 3 days after the date of cessation.

(h) In order to provide the means for enforcement of the preceding article 57(g) concerning the obligation of a member or former member to resign his/her parliamentary seat, and as a condition precedent to selection as a New Zealand First parliamentary candidate, and in consideration of selection as such, every member who agrees to become a candidate, and every member who stands as a candidate, and every member who is elected as a New Zealand First list member of parliament or as a New Zealand First constituency member of parliament, before being selected as a candidate, before standing as a candidate, before election as a New Zealand First member of parliament, and before accepting his/her seat in parliament and before being sworn in as such, and at any other time when required by the Board to do so whether before or after election and whether before or after being sworn in as a member of parliament, shall agree to give and shall sign a written undertaking, intended to be a legally enforceable contract (the resignation obligation contract) , under which he/she agrees to uphold observe and perform all of the provisions of this article 57 of this constitution and its amendments, and in particular to a fundamental term of the contract which will be the essence of  the contract, and which will impose a liability for liquidated damages in the sum of $300,000 (three hundred thousand dollars) for any breach of article 57(g) of this constitution and its amendments, concerning the obligation of a member or former member to resign his/her parliamentary seat, if he/she ceases by any means and for any reason and in any circumstances whatsoever to be a member of the Parliamentary Division during the term for which he/she has been elected. The Board may however compromise the amount of liquidated damages payable or waive the imposition of liability for liquidated damages in its sole and unfettered discretion without having to have any reason for doing so, without having to give any reason for doing so, and without being under a any obligation to do so or to consider fairness, natural justice, or any other consideration whatsoever;
and the Board shall not enforce the resignation obligation contract under this article 57(h) at any time that legislation exists which requires or determines that a member of Parliament to resign or relinquish his/her parliamentary seat upon the grounds contained in or similar to those specified in article 57(g).

NZ First  Party rules:  nz_first_constitution_nov_2013.pdf

Law professor Andrew Geddis takes it apart: I’m right, Winston’s not, so there

The $300,000 figure here clearly is designed to present an MP who leaves NZ First with Hobson’s choice. Either quit as an MP, or face ruinous financial consequences. And because the rule has this effect – it is designed to force an MP from Parliament – I don’t think it will be enforceable in court. And a rule of this nature only has teeth if there is a court that is prepared to, as a matter of law, make someone actually pay up the penalty figure.