The Section 221 Report

On 27 December DSS Arnerich sent to DI Quinn his report on the Section 221 case. The full report is in this pdf file, starting at Page 36.

Before I get into the report itself, I should explain the nature of Police decision-making in cases like this. It is collective and taken at the highest levels. Quite simply a Senior Sergent doesn’t get to decide by himself whether or not to charge the Prime Minister’s Chief of Staff.

This e-mail extract shows the Police Executive were being kept aware of progress. What would have happened is that after a certain point, they would have decided what the report should recommend, and this would be reflected.

The Police Executive is formally the Commissioner and two Deputy Commissioners. It is likely other staff in the Office of the Commissioner would have been involved such as some Assistant Commissioners and Superintendents.

It is also worth noting that at the time of the investigation, the Government was deciding who would be appointed Police Commissioner and Deputy Commissioners. These decisions are made personally by the Prime Minister. This is not stated to suggest some sort of quid pro quo, but to point out that it is not in the interests of the Police hierarchy to prosecute members of the Government which appoints them, reviews their performance, provides their funding etc etc. If there is room for benefit of the doubt – you go for it.

Anyway to the report. Some key aspects:

The Police do not seem clear on why Section 221 exists.

This extract shows several mistakes. First of all the statement that Wairarapa Election Petition had little application is wrong. It set very clear precedent that expenses paid out of Parliament can be treated as election expenses. I will return to this.

You also see that reference is made to the purpose of the Members Handbook is integral. No it isn’t. The purpose of the Electoral Act is integral – the MHS does not over-ride it. Yet all the energy goes into this area.

It is quite possible to have advertising which falls within the PSC guidelines in the MHS and also is advertising within the definition of the Electoral Act, and hence needing authorisation.

Here we see several more errors. Firstly the Police discuss whether the breach was “wilful”. No mention is made of the fact that the CEO warned Labour 19 days before the election of his view, and they ignored it.

You also see that the Police (who have yet to receive the over-spending complaint) are worried that a prosecution of S221 may result in Labour being found guilty of over-spending and hence undermine the integrity of the election. Somehow they think not prosecuting for breaches helps the integrity!

Thirdly they refer to parliamentary rules being unclear and confusing (which they are to a fair degree). But again this misses the point that this has nothing to do with the Electoral Act requirements.

Finally note that the decisions have been made without *any* legal opinion sought. If they had done so, they may have realised their mistake in confusing parliamentary rules with the Section 221 requirements.

The report concludes as we see above that no prosecution be taken. Now bearing in mind that S221 does require “willfulness” as a test, it is not totally unreasonable to not prosecute for the S221 breach.

But the far more serious over-spending offence in S214B has a very different legal test. Not only if there no “willfulness” requirement, it goes in the other direction and specifies strict liability.