LawNews- Issue 22

NEWS Jul 7, 2023 Issue 22

Inside ■ CRIME

How judges approach sentencing P06-08

■ POLITICS

What’s wrong with the polls?

P10-11

National’s ‘constitutionally challenging’ sentencing

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POLICY

Contents 03-05 LEGISLATION PARLIAMENT DISCRETION

Challenging but not unconstitutional: the Nats’ controversial sentencing policy

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Jul 7, 2023 Issue 22

CRIMINAL LAW

Overreach and constitutionally challenging: National’s sentencing policy comes under fire Strictly speaking, of course, Parliament can do what it likes.

But the delicate balance of separation of powers is protected by judicial independence from unnecessary Parliamentary incursion into its decision-making function

Reweti Kohere Parliament will upset the “delicate balance” separating the legislature from the judiciary if it passes National’s proposal to cap at 40% the overall sentencing discount judges can give, says a legal academic.

“Strictly speaking, of course, Parliament can do what it likes,” says Associate Professor and AUT Law Dean Khylee Quince (Ngāpuhi, Te Roroa, Ngāti Porou and Ngāti Kahungungu). “But the delicate balance of separation of powers is protected by judicial independence from unnecessary Parliamentary incursion into its decision-making function.”

Others LawNews has spoken to criticise the policy for falling well short of good legislative practice and reflecting a misunderstanding among politicians and the public of how nuanced and personal the sentencing process is.

Should National win this year’s general election in October, it has promised to restore “real consequences for crime” by stiffening sentences while redirecting support toward victims and granting remand prisoners access to all rehabilitation programs.

Among National’s proposals is limiting judicial discretion by amending the Sentencing Act 2002 to include a maximum discount of 40% on the adjusted starting point of a sentence.

Khylee Quince

They just see a 10-year starting point, a two-anda-half-year finishing point and ask, ‘Whoa, what happened?

maximum lengths available for offences.

Guided by the purposes and principles under the Act, appellate guidance and precedent, and the aggravating and mitigating circumstances of both an offender and the offending, judges are afforded significant discretion to dispense justice that meets a case on its own terms while ensuring, as much as possible, like offenders are sentenced alike.

Quince says any significant shift in this arrangement challenges the checks and balances underpinning the independent running of Parliament, the executive and the judiciary.

“Limiting judicial discretion to the extent proposed is an overreach of Parliamentary power. Judges are there to judge – they are not and should not be technicians. They are making human assessments on the basis of expertise and experience as well as precedent and submissions.”

National’s policy oversteps this customary arrangement and is illogical, she says. For instance, the “three strikes” law, whereby offenders faced increasingly severe sentences if they continued to commit serious crimes, arguably had a logical footing as it was connected to repeated and serious violent offending. National has proposed to place it back on the statute books after Labour repealed it in 2022.

By contrast, the 40% ceiling isn’t tagged to a particular type of offence, says Quince, who claims it will nonetheless have an

Overstepping New Zealand follows the common law model of sentencing, where Parliament prescribes the types of sentences and

Continued on page 04 03

impact on offenders whose individual circumstances may have shaped their culpability.

The constitutional challenge the policy poses comes from the restriction itself, rather than the way it might be implemented, she says. “Parliament doesn’t give the judiciary discretion – it merely affirms it on the basis of our constitutional arrangements, particularly the doctrine of separation of powers.”

David Harvey

Can do, but should they?

Former Auckland District Court judge David Harvey says legislative supremacy is why he doesn’t believe National’s policy threatens New Zealand’s constitution.

In passing the three strikes law in 2010, Parliament fettered judicial discretion by introducing a mandatory sentencing regime for almost all major violent and sexual offences. And the legislature can do it again. “Whether or not we think they should is an entirely different question,” says Harvey, who notes the task of amending a sentencing statute and its interlocking provisions will prove difficult.

Armed with appellate guidance on how to deal with the list of aggravating and mitigating factors contained in s 9, judges invoke the relevant purposes and principles (contained in ss 7 and 8, respectively) for sentencing the offender and then start with a sentence mirroring their culpability and the seriousness of the offence.

Uplifts and discounts, represented as percentages and reflecting any relevant aggravating or mitigating features of the offence, are taken into account when reaching an adjusted starting point. From there, the guilty-plea discount may be applied alongside adjustments for personal mitigating or aggravating circumstances. The court then steps back and looks at the sentence in the round, Harvey says.

Hard decisions This process is the judiciary’s answer to making the Act work transparently and as intended, Harvey says. But the subtleties of the interlocking provisions aren’t well understood by the public.

“They just see a 10-year starting point, a two-and-a-half-year finishing point [and ask], ‘Whoa, what happened? These judges are too soft’. But, you see, the fact of the matter is: that’s why we have judges. We entrust our judges to make the call on behalf of society.

“One of the things that was pointed out to me when I started judging was [that] you’re in a job where you’re doing something that people don’t like to do – and that is making decisions, and making hard decisions that are going to affect people’s lives,” he says.

“That’s what judges are appointed to do. Yes, it may appear to be mysterious or arcane or bizarre. Some of the outcomes 04

may look that way. But if Joe Public looked at the sentencing notes and worked through them, [the outcome] may be better understood rather than [from] some outraged news report.”

National’s justice spokesperson Paul Goldsmith disagrees with claims that the policy is a constitutional overreach, and says the function of making law sits squarely with Parliament.

“We think that judicial discretion is important, but we have noticed over recent times much more substantial discounts being delivered. And we are reflecting widespread community concerns about that and seeking to limit that.

“We think that’s justifiable in Parliament’s legislative capability and ultimately we’re accountable for it. The people of New Zealand will decide if they think this proposal is limiting it too far; they’ll vote accordingly,” Goldsmith says.

Trust and confidence Paul Goldsmith

Limiting judicial discretion to the extent proposed is an over-reach of Parliamentary power

In an election year, where dog-whistle issues such as law and order are exaggerated, political parties will advance interpretations of events that favour their point of view, Harvey cautions.

But that leaves judges exposed to criticism and unable to defend themselves, including claims that they’re too soft in sentencing offenders.

“It was Alexander Hamilton who said that of the three branches of government, the judiciary was effectively the weakest: they don’t have the power of the purse, they don’t have the power of the sword. The only thing they have is the trust and confidence of the public that they’re doing the right thing,” Harvey says.

“On the face of it, the judges can’t say anything for a whole lot of reasons, not the least of which is that you don’t respond to that type of criticism at the best of times and you certainly never respond to it in the middle of an election year…This isn’t a proNational or pro-Labour or anti-National or anti-Labour issue. For me, it’s more a matter of the integrity of the judicial process and of the sentence.”

Sentencing is a “highly individualised” process: the circumstances relevant to one offender might not apply to another. Harvey says cases must be dealt with on an individual basis and only through their judgments, handed down “without fear or favour, affection or ill will” as per the judicial oath, can judges speak.

“You’ve got to try and be fair if you possibly can. The best thing you can say about a judge is that they were fair. That’s what you strive to be. Something like mandatory limits to discounts fetters a judge’s ability to be fair. And you start getting to the point where whatever public confidence may have been eroded by the apparent nature of soft sentencing also starts to get eroded because judges seem to be unduly harsh.”

Continued on page 05

Photo: Hagen Hopkins / Getty Images

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Jul 7, 2023 Issue 22

Continued from page 04

When asked if the “widespread community concerns” could have an impact on the public’s confidence in the judicial system, Goldsmith says there’s still strong support for the rule of law.

“There’s always, quite rightly, a debate around any legislation that infringes upon judicial discretion…But ultimately, Parliament can do it. People will naturally argue about the merits of [the policy]. And there’s a strong case in this case.”

sentencing,” he says.

“They very much do know. And it does vary between judges.

We don’t get total consistency but, on the other hand, each judge is trying to do the best within the confines.”

Striking a balance

Mark Henaghan

Robust enough Auckland University Law Professor Mark Henaghan says the policy isn’t strictly breaking any constitutional principles, but it does fall short of good practice.

“You have to trust your judges, who sit there day in and day out and see all the different ways that people come before them. They always need some discretion because individual circumstances can vary quite a lot.”

The law shouldn’t be used to make political statements as they don’t necessarily lead to justice for everyone, he says. “It ends up with a political statement to those who like that particular political leaning. The law is about the whole of society, not just about the government in power. That’s why it creates problems in terms of its application, in terms of its ability to achieve justice.”

The perception that judges are too soft on crime has been around for a long time, says Henaghan, who remembers reading media reports as a student about “mild” sentences being handed down for serious offending.

“It’s always been like that to some degree because serious crime is horrific and absolutely devastating for anyone who’s involved. That reaction is an important part of the justice system.

There’ll always be that tension.

“It’s healthy to have healthy debates on these things. Being tougher – is it going to make a difference? Judges are robust enough to take criticism, but they also need to make sure their judgments are clear about what the reasons are for the

There’s always a debate around any legislation that infringes upon judicial discretion but ultimately Parliament can do it

Asked how National settled on the 40% ceiling, Goldsmith says the figure strikes a balance between maintaining judicial discretion beyond allowing a discount for a guilty plea and sending a signal “that we no longer feel comfortable with open discretion, [having seen] some of the very large figures that have been recorded recently”.

National cites three case studies of sexual offending in its policy document as examples of “clearly unjust outcomes” resulting from sentencing discounts that exceeded 40% – and in one case totalling 85%. Accompanying footnotes refer to related media reports of the sentences. Nowhere are there links to the sentencing judgments or explainers of how the judges worked through the sentencing process.

In two of the case studies, a sentence of home detention was available to the court after discounts were applied to the adjusted starting point, which made them fall below the 24-month threshold for a short-term prison sentence.

Goldsmith says removing home detention as an alternative was considered, but the party decided not to proceed with it.

“We recognise that home detention may be an option that works better for those relatively lower-level sentences, so we wanted to retain that flexibility.”

The Minister of Justice, Kiri Allan, has criticised the policy as an “egregious overreach”, telling RNZ the Act is fit-for-purpose and politicians shouldn’t impinge on the judiciary.

“The trust that we must have in those frontline judicial officers – that they know their job best, they know what they've been charged to do. And where I think Mr Luxon took it a step too far is essentially saying that we politicians know better than the judiciary," she said. ■

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OPINION

A retired District Court judge unpicks Christopher Luxon’s sentencing policy A Modern Mikado My object all sublime I shall achieve in time — To let the punishment fit the crime — The punishment fit the crime; Gilbert and Sullivan, The Mikado, Song 6 David Harvey

David Harvey

Implicit in Luxon’s comment is the suggestion that a background report automatically entitles an offender to a sentencing discount. This is simply not the case

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On 25 June 2023, Christopher Luxon gave a speech to the 87th National Party Conference which included policies relating to law and order – specifically, the way courts deal with sentencing.

Luxon raised four major issues and suggested changes that would be made should National become the government.

What follows is a commentary on those issues. It is not to be taken as a political endorsement or rejection of one party over another. In essence, I argue that sentencing is a difficult and nuanced process, the rules for which are set out in the Sentencing Act 2002.

For each issue, I shall set out verbatim what Luxon said (in italics) and follow it with my comments.

Issue 1 We’re also going to end the practice of taxpayers paying for written cultural reports about offenders’ backgrounds in an effort to reduce sentences.

This used to be rare, but this practice has morphed into a cottage industry that’s lowering sentences and taxpayers are footing the bill. There were eight taxpayer-funded reports in 2017 and more than 2400 last year.

National is going to unwind this growth. Offenders will still be able to ask the court to hear from someone who knows them, but taxpayers won’t be paying for that.

Section 27 of the Sentencing Act is one of a series of sections that set out sentencing procedure.

I have written three papers on s 27 – Discounting Cultural Issues (2021), Discounting Cultural Issues Revisited (2022) and Background Information and Section 27 Reports for Sentencing – R v Berkland in the Supreme Court (2023) Section 25 provides that the court may adjourn for inquiries

as to suitable punishment. I should observe that the word “punishment” appears in the section description and is the only time that word appears in the Sentencing Act. Section 26 gives the court the power to call for a pre-sentence report and sets out the information such a report may contain.

These reports are prepared by probation officers.

Section 27 allows an offender to request a court to hear any person or persons called by the offender to speak on a number of factors including the personal, family, whanau, community and cultural background of the offender as well as the way that background may have related to the commission of the offence.

Section 27 was not new in 2002. In the Criminal Justice Act 1985, s 16 provided for similar information to be made available.

The practice developed for written reports to be made available rather than an oral presentation as envisaged by s 27. There are several reasons for this. I have noted these in the articles referred to above.

One important reason is that the information about background and the causative link to offending is complex, detailed and nuanced, and judges are assisted by having written material prior to the sentencing hearing. Background reports can provide more detailed and insightful information than may be available in a s 26 probation officer’s report.

The explosion in the use of background reports developed after the case of Solicitor-General v Heta [2018] NZHC 2453.

Because many offenders are on legal aid, applications are made by counsel for funding for such a report. This is where the taxpayer funding referred to by Luxon comes in. An offender can, if he or she has the resources, commission the preparation of a background report privately. So Luxon’s target is the public funding of s 27 reports.

Implicit in his comment is the suggestion that a background report automatically entitles an offender to a sentencing discount.

This is simply not the case. There must be a causative link between the matters raised in the background report and the particular offending.

Once that is established, the judge assesses what discount may be available. My research indicates in most cases a discount of 15% is allowed. In some cases, discounts of 35% have been allowed. In others, the discount has been as low as 5%.

Continued on page 07

Jul 7, 2023 Issue 22

Continued from page 06

What Luxon is saying is that legal aid funding will not be available for the provision of background reports.

Those who require criminal legal aid are at the most disadvantaged end of the socio-economic scale. More often than not, their backgrounds are significant contributors to their offending. Luxon’s proposal would deny them the opportunity to put relevant and potentially causative material before the court in written form from an experienced report writer.

The information may still be made available in the form originally envisaged by s 27 – by means of an oral presentation.

So, those who afford to privately commission a s 27 report can have their written background information placed before the court whereas those who cannot must rely on an oral presentation which may lack some of the opportunity for a judge to give careful deliberation to that material.

Is that equal justice before the law?

Finally on this topic, it should be noted that s 27 is not the only provision allowing a judge to take personal or background matters into account. Section 8(i) states that in sentencing an offender the court must take into account the offender’s personal, family, whanau, community and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose.

The language of s 8(i) is directive. It would be possible for a judge to order the preparation of a report for the purposes of complying with s 8(i), notwithstanding the provisions of s 27.

Section 27 provides a mechanism for getting that information before the court. Furthermore, when that information is available the court must hear it unless there is a special reason that makes it unnecessary or inappropriate (s 27(2) Sentencing Act).

Thus it becomes apparent from this example alone that the Sentencing Act contains a number of interlocking provisions that underpin the sentencing process

Issue 2 National also says that an offender will receive a reduced sentence for their youth, and for remorse, only once. You might be sorry the second time, and you might still be young, but if you’ve enjoyed a previous sentence reduction because of it, then that ship has sailed. It’s a reminder to learn from experience.

This proposal suggests the so-called “youth discount” will be available to an offender only once.

The age of an offender is a mitigating factor – s 9(2)(a) Sentencing Act. Age – and youth – are not static but dynamic, at least until death. It is part of a continuum.

The problems surrounding youth and the way youth can affect culpability is set out in the case of Churchward v R [2011] NZCA 531. That case emphasised that: ■ There are age-related neurological differences between young people and adults. Young people may be more vulnerable or susceptible to negative influences and outside

pressures (including peer pressure) and may be more impulsive than adults.

■ The effect of imprisonment on young people, including the fact that long sentences may be crushing on them.

■ Young people have greater capacity for rehabilitation, particularly as the character of a juvenile is not as well-formed as that of an adult.

The court also relied on evidence that establishes developmental aspects associated with youth. Their decision-making capabilities are different from those of adults. The court observed that adolescents have less future orientation than adults, tending to focus on the “here and now” rather than long-term consequences.

Research findings suggest adolescents discount risks and calculate rewards quite differently from adults, tending to assign less weight to consequences over the immediate risk and thrill of the current challenge. This is not because adolescents are less knowledgeable about risks, but because they attach different values to rewards that risk-taking provides.

[A]ccording to developmental psychology research, the task of adolescence is primarily concerned with the formation of personal identity and, where that process is disrupted, problems often result. Identity formation concerns values, plans, attitudes, beliefs, work choices, sexual orientation and partner choices. The process of “finding oneself” tends to lend itself to experimentation which, for some adolescents in unstable environments, means engaging in risky activities.

Finally, the evidence suggested that there were two primary groups of offenders: those dubbed “Adolescents Limited”, typical delinquents whose involvement in crime begins and ends in adolescence; and a much smaller group of youths labelled “Life-Course-Persistent Offenders”. This group’s anti-social conduct begins in childhood and continues into adulthood.

Luxon’s proposal is that youth could be taken into account only once. This ignores the fact that “youth” is a continuing process and the problems referred to above are not going to vanish after one encounter with the justice system. Bad decision-making and risk-taking behaviours may continue. Rehabilitation is an ongoing process and often requires years of effort to adapt to new and acceptable behavioural traits.

The “one chance only” ignores the evidence of developmental psychology and misunderstands the nature of rehabilitation as a long-term and continuing process. As the advertisement says, “it doesn’t happen overnight”.

Luxon’s proposal would deny some of the most disadvantaged offenders the opportunity to put relevant and potentially causative material before the court in written form from an experienced report writer

Issue 3 We’re also going to restore the Three Strikes policy for serious offenders…. We will bring it back with clearer guidance on where judges can make exceptions – and where they can’t.

The three strikes policy was contentious from the outset. It was prescriptive, arbitrary, unnuanced and harsh. It placed a

Continued on page 08 07

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The ‘one chance only’ ignores the evidence of developmental psychology and misunderstands the nature of rehabilitation as a long-term and continuing process

significant fetter on judicial discretion at sentencing.

Sections 86A – 86I of the Sentencing Act provided for a three-stage approach to sentencing for qualifying offences. For a first offence, there was a warning given. For a second offence, any sentence of imprisonment would be served without parole. For a third offence, the maximum penalty would be applied. No parole was available. The warnings did not expire. Thus, an offender may commit a second “strike” offence 10 years after the first offence and still qualify for “second-strike” treatment.

The only escape clause from the rigours of the three-strikes regime was that if the court was of the view that to impose the prescribed penalty would be manifestly unjust. On occasions, judges went to some lengths to fit a case within that rubric.

It is difficult to understand what Luxon means when he says there will be clearer guidance on where judges can make exceptions and when they can’t. In the minds of many criminal lawyers, the provisions of the earlier three-strikes regime gave judges very little room to move. The only inference that can be drawn from Luxon’s statement is that the restraints on judicial discretion will be even greater.

I am not going to get into a detailed debate about the usefulness of the three-strikes regime. My view should be clear from the second sentence of this section.

The Sentencing Act contains several principles and purposes, all of which have been incorporated into the sentencing process.

There is considerable allowance for nuance and the ability to take individual circumstances into account. The three-strikes regime deprives the judge of the opportunity to impose a sentence tailored to the particular offender as well as providing for victim and societal interests.

Issue 4 I’m announcing today that National will impose a new limit on judges’ discretion.

They will be allowed to reduce a sentence by no more than 40 per cent. Any more than that undermines the purpose and impact of the sentence and undermines the public’s faith in the courts.

The proposal to bring back three strikes is an example of fettering judicial discretion in sentencing. The final proposition to be discussed is an undisguised attack on that discretion and proposes an upper limit of 40% by way of discounts.

It seems that this proposal is based on a misunderstanding of the way the sentencing discounts reflect what Parliament has directed the judges to take into account at sentencing. It also reflects a lack of understanding of the way in which the provisions of the Sentencing Act are interlinked.

Setting an upper limit on discounts will not be achieved by a couple of sentences in an amending statute.

It will require a complete reconsideration of the way in which the principles and purposes of sentencing are incorporated into a sentence, along with a complete reconsideration of the 08

aggravating and mitigating factors that should be taken into account. Other factors also come into play, including offers and measures to make amends. What is particularly confusing about Luxon’s comment is that he says anything more than a 40% discount undermines the purpose and impact of the sentence.

The whole fabric of the way in which discounts are applied in fact relies on the interlocking provisions of the Sentencing Act, starting with the purposes of sentencing in s 7. The principles of sentencing are set out in s 8. There are 10 of them.

The language mandates that the principles must be taken into account. Section 9 then directs the aggravating and mitigating factors that must be taken into account. It is within the scope of these factors that the discounts tend to come into play.

For example, s 9(2)(b) says the court must take into account the mitigating factor of a guilty plea and when that took place.

This has formed the basis for the range of discounts available for a guilty plea with the highest discount (25%) available for a plea at the earliest opportunity to the lowest discount available for a plea on the morning of trial.

Taking Luxon’s 40% limitation, if the 25% for an early guilty plea is available, that leaves only 15% to be divided between other factors such as youth, remorse, rehabilitative efforts post-offending, addiction and background information linking deprivation to the offending, as well as any discount for previous good character and any other factors that may be relevant.

Such an approach does not allow for the nuances of the offending and the offender to be taken into account on an individualised basis. That said, there must be consistency at least of approach and with other sentences for the same offending.

In addition, the approach does not allow for proper consideration and evaluation of all the factors that may mitigate the offending and give them proper weight and recognition.

It is in this area that judicial discretion comes into play. It is one of the reasons we have judges who are trained and become experienced in dealing with the variations and vagaries of offenders and their individual circumstances. I have discussed the judicial role in sentencing in my article Replace the Judges?

Sentencing is not a cookie-cutter exercise. A “one-size-fits-all” approach results in injustice. A wide discretion afforded to judges allows for individual justice to be dealt with, depending upon individual offences and individual offenders.

Underlying Luxon’s comments is a concern about public perception and what would seem to be a desire for harsher outcomes. He may not be aware that the word “punishment” occurs only in the title of s 26 of the Sentencing Act. The word “punishment” does not appear in the purposes of sentencing, nor is it present in the principles of sentencing, nor is it present anywhere else in the Sentencing Act. Perhaps before developing the policy further, Luxon might benefit from a closer study of the Sentencing Act to gain an appreciation of how it works and if he wants to continue with his proposals, the changes to the Act that will be required. They will be extensive. ■ Dr David Harvey is a retired District Court judge and a member of Sangro Chambers ■

Jul 7, 2023 Issue 22

EMPLOYMENT LAW

Court of Appeal agrees to hear controversial Uber case The case raises questions of law in the context of new ways and fast-moving changes to the way in which work is done Jenni McManus The Court of Appeal has granted rideshare company Uber leave to appeal a controversial Employment Court decision which found four of its drivers were employees of the business, rather than independent contractors.

Though the four had signed contracting agreements with Uber, they were now challenging that status, claiming they were effectively employees.

The case, Rasier Operations BV & Ors v E Tu Inc & Ors v [2022] NZEmpC 192 is among several highprofile actions taken here and in other jurisdictions, seeking clarification of the work status of those who have signed contracting agreements with employers but subsequently believed they should be reclassified as employees, with all the protections and benefits that entails, including the right to raise a personal grievance.

The Court of Appeal said it would consider argument on three questions of law: ■ Did the Employment Court err by misdirecting itself on the application of s 6 (the meaning of ‘employee’) of the Employment Relations Act 2000?

■ Did the Employment Court err by misapplying the test in s 6, or in the alternative was the court’s conclusion so insupportable as to amount to an error of law?

■ Did the Employment Court err in finding that joint employment may arise in New Zealand simply because several entities are sufficiently connected and exercise common control over an employee?

The unions opposed the appeal application, saying the Employment Court made no errors of law “and closely analysed the evidence to reach the

conclusions it did”.

Broader application In granting leave, the Court of Appeal said as the first two questions involved the correct application of s 6, “they raise questions of law in the context of new ways and fast-moving changes to the way in which work is done”.

The court also noted that while the Employment Court’s declaration applied only to the four drivers involved in the case, it could have broader impact for a large number of other drivers “where there is an apparent uniformity in the way in which the businesses operate and the framework under which the drivers are engaged….In the context of Uber businesses with multiple individual drivers who may be impacted by the decision, it is of general or public importance. It may have an impact on other businesses.”

A previous bid by an Uber driver to be reclassified as an employee failed (Arachchiga v Raiser NZ Ltd).

But courier driver Mika Leota (Leota v Parcel Express Ltd) succeeded, as did builder Ross Barry (Ross Barry v CI Builders Ltd).

Legislative amendment After the court released its decision to hear the appeal, the ACT Party said if it became part of the government, it would amend the Employment Relations Act to prevent workers who had explicitly signed up for contracting arrangements from challenging their status in the Employment Court.

ACT referred specifically to the “rogue” Uber decision, saying the Employment Court had become “increasingly unpredictable” and “activist”. In ACT’s view, the court tended to rule in favour of contractors who were seeking employment status and this was creating uncertainty for contractors and businesses.

Employment Court decision In her decision in E Tu Inc & Ors v Rasier Operations BV & Ors, Employment Court Chief Judge Christina Inglis commented on the growing fragmentation, casualisation and globalisation of New Zealand’s

workforce.

The key issue to be decided was to what extent the definition of “employee” in s 6 of the Employment Relations Act 2000 captured these new ways of working. So, within the context of a rapidly evolving labour market, are the plaintiffs within the range of workers the legislation was intended to protect?

Chief Judge Inglis said the Supreme Court’s binding ruling in Bryson meant she was required to consider all relevant matters when determining the nature of the relationship, not just the intention of the parties, as specified by Parliament and laid out in an agreement.

In the Uber case, this meant looking at the nature of the business and the way it operates; the impact of the business model and operations on the drivers; who benefits from the drivers’ work; who exercises control over the drivers’ work, the way it is conducted and when it is conducted; any indication of intention from Uber’s terms and conditions and other documentation between the parties; and the extent to which the four drivers identified as part of the Uber business.

Uber argued that through its app it was merely an intermediary and its Rideshare and Eats businesses simply facilitated a contractual relationship between the drivers and riders/eaters.

But Chief Judge Inglis said while the drivers were not required to front up to a physical workplace at a specific time, which might suggest they were not employees, other factors were more significant.

It was clear Uber dictated the contractual terms for drivers, who had to agree to its terms and conditions before they could use the app. Uber, and not the drivers, determined the cost of each trip. They were also subject to Uber’s direction and control in more subtle ways through its ratings system, incentive scheme, prompts, warnings and disciplinary system.

The drivers had little or no ability to improve their economic position through their professional or entrepreneurial skills, Chief Judge Inglis said.

“Stripped back to its fundamentals, Uber is the only party running the business.” ■

09

OPINION/POLITICS

What’s wrong with the polls?

Driven largely by the covid-19 pandemic, New Zealand society has become much more polarised, and its people a lot less tolerant of dissent

Chris Trotter

Chris Trotter

Expressing dissident views about te Tiriti o Waitangi, decolonisation and transgenderism has become an increasingly risky exercise

10

It is hardly surprising that Elisabeth Noelle-Neumann formulated the “spiral of silence”. She was German and 20 in 1936. That so many Germans remained passive in the face of Hitler’s tyranny has haunted that nation’s political scientists for close to 80 years.

Noelle-Neumann’s formulation – that human beings grow increasingly reluctant to express political opinions that contradict those of the majority, descending slowly into a spiral of silence – has proved a useful addition to the political scientist’s tool-kit.

There is, however, something inescapably dark about her formula, something that reflects badly on the moral stamina of humanity and the durability of democracy. And New Zealanders are by no means exempt from its effect. After all, not wanting to stick one’s head too far above the parapet is a very Kiwi characteristic.

Fortunately, keeping one’s head down is not a habit endorsed by all New Zealanders. An irreducible percentage of them (hopefully larger than the Germans of the 1930s) is not in the least daunted by the fact that their opinions are out of sync with the majority. Their attitude is simply expressed: “When you’re right, you’re right.” The truth is not to be determined by majority vote.

Where this cussed minority might struggle, however, is when the opinion polls reveal just how many of their fellow citizens adhere to views that contradict their own.

This year in particular, election year, the cry arises most plaintively from unabashed conservative voters: “What’s wrong with the polls? Why isn’t National leading Labour by a country mile?”

The answer to this question comes in many parts, most of which draw heavily from Noelle-Neumann’s spiral of silence.

Driven largely by the covid-19 pandemic, New Zealand society has become much more polarised, and its people a lot less tolerant of dissent. What’s more, the algorithms of social media are keeping them that way, constantly refining and reinforcing the arguments for treating those who hold opposing views as the enemy.

These social media silos are reproducing a phenomenon first detected among Labour voters in the mid-1970s.

As National’s Rob Muldoon exploited widespread economic and social anxieties to win election after election, the frustration of a certain kind of Labour voter grew. “How does this man win?” cried the welleducated professionals who now backed the Labour Party. “No one I know has ever voted for him!”

Fifty years ago the spiral of silence was working against Labour and in favour of National. It had become embarrassing to express pro-Muldoon views in the university common room and the secondary school staff room. The sharp reaction of their colleagues encouraged conservatives to keep their opinions to themselves.

It was the other way around, however, in many of the nation’s much more numerous smoko rooms.

Sticking-up for the Labour leader, Bill “The Mouse” Rowling, all too frequently produced guffaws from one’s workmates, accompanied by that chilling Kiwi query: “Whaddarya?!”

Ultimately, a percentage of those who selfcensored in this fashion ended up embracing the arguments of their colleagues and workmates. At the bottom of the spiral, silence becomes agreement.

Deja vu Given the polls, it is possible that something very similar is happening 50 years later.

Continued on page 11

Jul 7, 2023 Issue 22

Continued from page 10 Among those New Zealanders who drew strength from the team of five million metaphor during the pandemic and then rewarded its promoter Jacinda Ardern with their votes in 2020, an intolerance of negativity and dissent (very strong during the pandemic) may linger.

National’s pollster David Farrar reports that the solidaristic surge to Labour which saw 400,000 habitual National voters – most of them women – swap sides, have yet to surge back.

Roughly half of them are still struggling to reconcile “being kind” with Christopher Luxon’s plutocratic pitch.

At work here could be something similar to the phenomenon observed in France over the past four decades. The French working class, once the backbone of the powerful French Communist Party, has slowly but surely migrated from Left to Right.

Alienated by the communists’ stance on immigration and the steady rise of the disdainful professional and managerial class across the Left, working-class French voters are now among the nationalist Right’s most fervent supporters.

Political scientists have discovered that the faithful partisan’s initial “defection” is always the hardest. Once voters have abandoned their traditional loyalties that critical first time, however, repeating their treachery becomes progressively easier. National’s confident expectation that its female defectors will eventually come to their senses and return to the conservative fold may prove ill-founded.

Certainly, in those professions increasingly dominated by women – education, health, communications, the public service and the notfor-profit sector – an ideological campaign of unprecedented energy has left a great many hitherto conservative women holding cultural and political views markedly at odds with those of men.

Poll failure Initially, the spiral of silence may have been at work in these workforces. Expressing dissident views about te Tiriti o Waitangi, decolonisation and transgenderism has become an increasingly risky exercise.

But going along to get along, saying as little as possible, it becomes a lot easier (and the prospects of promotion much rosier) the moment an employee convinces herself the official line is her line too.

In addition to the spiral of silence effect leading voters who find themselves out of step with the majority to resile from their previously stated preferences, there are numerous other explanations for the failure of opinion pollsters to accurately forecast the outcome of elections. There’s the “Bradley Effect”, named after the black Democratic Party frontrunner for the California governorship, Tom Bradley, who lost unexpectedly to his white Republican opponent.

Unexpectedly because, when polled, white Democrats were too ashamed to admit to their true, racially-driven preferences.

Then there’s the “Shy Tory Factor”, said to explain why Labour, well ahead in the polls prior to the 1992 UK general election, ended up losing to John Major’s Conservatives.

There were just too many former Labour voters unwilling to admit that they were preparing to vote for the party of Margaret Thatcher.

Boomer minority In addition to the influence of gender, race and class, the shape of the polls may also be determined by generational factors.

The 2023 general election will be the first in which the baby-boom generation is outnumbered (on the electoral roll, at least) by the generations born after 1965.

Those who demand to know “What’s wrong with the polls?” may simply be interpreting the political

terrain through the eyes of someone who grew up in a very different New Zealand to the one fashioned by the reforms of Roger Douglas and Ruth Richardson.

The political stimuli that make the boomers’ knees jerk may not have the same effect on millennials. More numerous, and living longer than any generation before them, the boomers may encounter unprecedented and infuriating difficulties in coming to terms with their minority status.

Angry voters can be dangerous voters – as Brexit and the election of President Donald Trump can attest. Angry American voters have set out to mislead the pollsters, lying to them quite deliberately to make the detested elites feel more confident than was wise.

Then there are the voters who nobody expects to show up on the day – like the tens of thousands of perennial non-voters who came out to give the British establishment a bloody nose by voting to leave the European Union.

French political scientists explained these Brexit voters’ motivations by referencing the “five As”: Anomie, Alienation, Austerity, Authoritarianism and Atavism. (All currently doing their destructive best on the streets of France.)

We got our own glimpse of the five As when they paid a visit to Parliament grounds in February and March 2022. We may see them again in October when, goaded to fury by a feral combination of ACT and Te Pāti Māori election policies, the angry youth of urban Māori communities turn up to the polling places for the very first time.

That padding of the Left vote in the opinion polls may indicate the presence of a voting cohort New Zealanders have never encountered before – and were not expecting. ■ Chris Trotter has been a political commentator for more than 30 years. He is the author of the Bowalley Road blog ■

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CRIMINAL LAW

Juries more likely to convict for sexual violation than judge-alone hearings When looking across the past 10 years, the number of people convicted by juries for sexual violation charges has dropped 13% to 145

Reweti Kohere Defendants who are convicted of sexual violation offences are more likely to have chosen trial by jury than a judge-alone hearing. But just over half of the charges laid in relation to these offences don’t even get to trial, according to Ministry of Justice data released to LawNews under the Official Information Act 1982.

Last year, juries convicted on 47% of the 306 sexual violation charges that were prosecuted, compared to the less than 1% of convictions that arose from judge-alone hearings. However, more than half (52%) didn’t reach a trial hearing in 2022.

The same trends were evident for attempted sexual violation offences: 46% of convictions in 2022 were handed down by juries. No charges resulted in a conviction when adjudicated solely by a judge. But again, more than half (54%) of charges didn’t reach trial to begin with.

For indecent assault charges, jury trials once more exceeded judge-alone hearings: 27% to 4%, respectively. The number that didn’t reach trial, 69%, was the largest among the six types of sexual offences, including incest, objectionable publication, and sexual grooming and child sex tours outside New Zealand.

These figures add more detail to the picture of how New Zealand’s criminal justice system responds to sexual violence court cases. Based on 10 years of publicly available Ministry of Justice statistics, New Zealand is more likely to acquit than convict defendants of sexual violation charges that go to a hearing.

That’s because sexual violation by rape or unlawful sexual connection is a category three offence under the Criminal Procedure Act 2011. Category three offences are generally those punishable by a term of imprisonment of two years or more; sexual violation under s 128B of the Crimes Act 1961 attracts a term of imprisonment not exceeding 20 years.

If the defendant doesn’t choose a jury trial, and the matter proceeds to trial, a judge will preside.

Decreases When looking across the past 10 years, the number of people convicted by juries for sexual violation charges has dropped 13% to 145.

No person was convicted by a judge on similar charges in 2013. Ten years later, only three were found guilty in judge-alone trials. The number that didn’t reach a trial rose 15% to 158.

For attempted rape and unlawful sexual connection, jury convictions fell 40% to six in 2022, while convictions from judge-alone trials remained unchanged at zero. The charges that didn’t reach trial decreased 46% to seven.

Indecent assault convictions from juries followed a similar pattern over the last 10 years, having dropped by 7% to 99 in 2022.

By contrast, judge-alone convictions rose 700% to 16, from a small baseline of two in 2013. Indecent assault charges that didn’t reach trial dropped more than a quarter (28%) to 252 last year.

Complainant experience Attrition The ministry’s jury versus judge-alone data note that not all charges will proceed to trial. Defendants can plead guilty at any point beforehand, thereby doing away with their trial and progressing straight to sentencing. Alternately, charges can be withdrawn or not proceeded with before trial.

Unless a judge-alone trial is ordered because the case is likely to be long and complex or jurors have been intimidated, defendants charged with rape or unlawful sexual connection can elect a trial by jury.

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Another, smaller snapshot of contemporary adult rape trials, whether heard by a jury or by a judge, was given last year by Professor Elisabeth McDonald’s research, In the absence of a jury: examining judge-along rape trials.

In exploring calls to change the fact-finder in rape cases, with the purpose of trying to improve the criminal justice experience for complainants of sexual violence, McDonald

Continued on page 11

Jul 7, 2023 Issue 22

Continued from page 12

compared the experience of complainants in eight cases with a judge as fact-finder to that of complainants in 30 jury trials.

Among the findings: the conviction rate for rape in the judge-alone trials was significantly higher (88%) than in the jury trials (40%), despite similar fact patterns and trial issues.

However, McDonald noted the difference could be attributed to several factors other than the model of trial, including the admission, in four of the judge-alone trials, of independent evidence such as closed-circuit television footage and witnesses – evidence not often available in adult rape cases.

The law professor concluded that regardless of who the factfinder was in adult rape cases, the constraints of the adversarial trial process remained the same and delivered the same dynamic. The only significant difference was the availability of reasons for verdict and the possibility that judges were better at rejecting rape myths when making a decision.

AUT Law School senior lecturer Paulette Benton-Greig cautions against making any observations from the research, which was explicitly exploring whether changing the fact-finder would help improve complainant experience, not whether a change would increase conviction rates.

“You’ve got to think about who it is that goes for a judgealone trial. It’s much more likely, I suspect, to have been because they had previous convictions, serious violence convictions or sexual convictions. They’ve got perhaps gang affiliations that would be really obvious to juries. They’re already in jail for something else,” Greig says.

“People who think that juries are going to be biased against them are much more inclined, I think, to go for judge-alone trials.

So, you might have seen the same kind of outcome in a jury trial.

You can’t tell.”

Not proven Not-proved outcomes (either an acquittal, withdrawal or dismissal) have mostly outweighed convictions when taking each year between 2013 and 2022 separately. Continuing a decade-long trend, 2022 saw 55% of rape charges not proved

compared to the 41% that resulted in convictions. The closest gap was in 2017, where 53% were not proved versus 41% convicted while 2020 saw the largest difference (70% not proved to 25% convicted).

While not-proved outcomes for unlawful sexual connection have exceeded convictions for most of the past decade, 2022 was the first year to buck the trend: 50% of charges were convicted compared to the 45% that weren’t proved.

Sitting behind these statistics, however, is the rate of attrition – how often complaints fall away as they progress through the criminal justice system.

And that’s if complaints even enter the system at all: according to Ministry of Justice research, more than 90% of sexual violence is not reported to the police.

The ministry’s attrition research found the number of individual sexual violence offences reported has increased by a fifth since 2017 to nearly 10,000 in 2021. The number of victims has increased by 26% to just shy of 6,600 in 2021. Where reports are made, most instances of sexual violence do not see a court outcome.

The research reveals that in the two years after complaints were reported to the police, 46% resulted in the identification of perpetrators, 42% were prosecuted, 13% were convicted and 8% were imprisoned.

“What we know, when we look at the attrition research, is that the vast majority of sexual assaults never make it to the police,” Benton-Greig says. “If you look at the most recent crime and victim survey, the rate is about 7% of events that could be crimes get reported to police in the first place. And then from there, there’s a big drop off to charging, and then there’s a big drop-off from charging to outcome.

“So it’s a bigger picture than just guilty versus not guilty, at the end of the day,” she says.

In comparing the rates of conviction and acquittal in England and Wales, juries there are more likely to convict than acquit defendants once rape cases reach the courts – and this has been the case for at least the past 15 years.

That’s according to an analysis by UCL’s Professor Cheryl Thomas of tens of thousands of jury verdicts and millions of charges laid in the Crown Court between 2007 and 2021. ■

You’ve got to think about who it is that goes for a judge-alone trial.

It’s much more likely, I suspect, to have been because they had previous convictions

13

ENVIRONMENT/RESOURCE MANAGEMENT

RMA reform set for ‘a prolonged period of upheaval’ Mike Doesburg & Patrick Senior On 23 June 2023, we gave a brief summary of the legislation set to reform the Resource Management Act 1991 (RMA) and the submissions provided by the ADLS Environment and Resource Management Law Committee on the Natural and Built Environment and Spatial Planning Bills.

On 27 June 2023, the Environment Select Committee published its reports on the bills.

Rather than attempting to summarise the 1377 pages of reports and revised bills, this article captures the flavour of where the RMA reform is heading and questions whether the issues submitted on by ADLS have been addressed.

Main legislation The Natural and Built Environment Bill is the main piece of legislation to reform the RMA. It provides for the making of planning rulebooks (Natural and Built Environment Plans), guided by a national planning framework and regional spatial strategies (addressed in the Spatial Planning Bill and discussed further below). The bill also provides the detailed mechanics for obtaining resource consent or other environmental approvals, as well as addressing compliance, monitoring and enforcement.

The report on the Natural and Built Environment Bill runs to 154 pages (including minority differing views). The report reflects the volume of material received, as well as the number of changes to the bill the select committee has recommended.

The committee received written submissions from 2,945 groups and individuals and heard oral evidence from 365 of those submitters.

The majority of the select committee has recommended that the bill be passed, subject to amendments recommended in the first 145 pages of the report. Three differing views are also recorded: ■ the National Party decries the bill as repeating the 14

A consistent theme echoes throughout the Environment Select Committee’s recommended changes – a shift away from ‘balancing’ protecting the environment and using resources towards a ‘bottom line’ of protecting the natural environment, before using resources

mistakes of the RMA and being worse than the status quo; ■ among other criticisms, the ACT Party says the bill introduces vague and puzzling concepts without definition, a “recipe for judicial mayhem”; and ■ while the Green Party acknowledges the improvements through the select committee process, it identifies eight shortcomings ranging from a return to “overall broad judgment” to an absence of commitment to invest to fill information gaps before making decisions.

As summarised in our recent LawNews article, the ADLS submission identified a range of issues with the bill, including: ■ its length and complexity; ■ a missed opportunity to structure the bill clearly; and ■ the bill’s approach of removing or replacing established principles with new concepts results in a possible loss of clarity and workability.

The changes Unsurprisingly, similar issues were raised by many submitters and they have been a focus of the Environment Select Committee’s work on the bill. To that end: ■ The bill has grown from 861 sections and 15 schedules to more than 900 sections and 16 schedules. However, a significant number of improvements have been made in an attempt to clarify or reduce complexity in the bill. A common criticism (including from ADLS) was with the confusion in the bill’s provisions relating to when resource consents would be notified for submission. Those provisions have been clarified and improved.

■ The Environment Select Committee has proposed a major restructure of the bill, which is so significant that the report includes an appendix

to help readers find where sections have moved to. The bill is now more logically divided, with related provisions contained in the same parts or schedules. This is a major improvement to the structure and organisation of the bill.

■ Although the report suggests existing case law will be reflected where possible, the bill continues to introduce a wide range of new concepts. Chief among these is the bill’s purpose. The Environment Select Committee has recommended replacing the bill’s dual purpose with the sole purpose of upholding “te Oranga o te Taiao”, along with an updated definition of that concept. Further, the new purpose section contains a clear expectation that protection of the natural environment comes first. The purpose must be achieved in a way that protects the health of the natural environment and, subject to doing so, use and development may occur. This is a noteworthy shift away from the RMA’s “sustainable management” and seems destined to result in litigation.

While some parts of the bill are unchanged, the committee recommends many other important changes – far more than we can address in this article.

However, a consistent theme echoes throughout the Environment Select Committee’s recommended changes – a shift away from “balancing” protecting the environment and using resources towards a “bottom line” of protecting the natural environment, before using resources.

For example, the bill is clear that conflicts between competing system outcomes should be resolved in favour of protecting the health of the natural environment and its capacity to sustain life.

Spatial Planning Bill The Spatial Planning Bill serves a narrower purpose

Continued on page 15

Jul 7, 2023 Issue 22

Continued from page 14

than the Natural and Built Environment Bill. It proposes the creation of 16 regional spatial strategies throughout New Zealand, to provide for integrated planning of environmental issues, as well as other important issues such as transport and infrastructure.

Regional spatial strategies are a key piece of the new framework. They must give effect to the national planning framework and, in turn, natural and built environment plans must be consistent with regional spatial strategies.

The report on the Spatial Planning Bill is 24 pages long and responds to 610 written submissions. The majority of the committee has recommended that the Bill be passed, subject to relatively minor amendments (particularly when compared with the amendments to the Natural and Built Environment Bill). Two differing views are recorded: ■ the ACT Party opposes the bill for a range of reasons, including concerns about handing planning and decision-making to unelected cogovernance entities (regional planning committees); and ■ the National Party, for the same reasons it has criticised the Natural and Built Environment Bill.

The ADLS submission on the Spatial Planning Bill questioned its integration with the Natural and Built Environment Bill and sought clarity and greater prescription around how regional planning committees were to consult with the community on the preparation of regional spatial strategies.

To its credit, the select committee has attempted to address these issues: ■ changes to both the Spatial Planning Bill and the Natural and Built Environment Bill have been recommended to improve their integration; and ■ the process for preparing and consulting on regional spatial strategies has been clarified.

While the bill still provides considerable flexibility for regional planning committees to design their own overall process, any such process must contain the minimum requirements in schedule 4 of the bill. These minimum requirements includes mandatory public hearings, something that was sought by ADLS in its submission.

Compared to the Natural and Built Environment Bill, the Spatial Planning Bill came through the select committee process largely unscathed. However, a question remains as to whether the Spatial Planning Bill is required as stand-alone legislation, or if it should be merged into the Natural and Built Environment Bill, especially as the purpose of the bills are now even more closely aligned. We are not advocating that the Natural and Built Environment Bill be lengthened, but the close relationship between regional spatial strategies and other parts of the new system would seem to support closer integration.

Comment At its core, the revised system comprises a new (as yet untested) purpose, implemented through a hierarchy of planning documents, one prepared at a national level (the national planning framework) and two at a regional level (regional spatial strategies and natural and built environment plans).

Success or failure of the system will turn on the preparation of the national planning framework and its implementation through regional documents. While this presents an opportunity to reset the system from the top down, in practice it will mean significant debate about the contents and expression of documents at all levels. Underpinned by an apparent desire to begin the 10-year transition to the new system expeditiously, the Natural and Built Environment Bill clarifies that the first national planning framework will be based heavily on existing RMA national direction (as it was on 31 May 2023). While the efficiency of that approach is understandable, it raises questions about how

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effective the early stages of transition will be if they are underpinned by policy direction made under a statutory purpose that is intentionally being replaced.

The national planning framework is expected to be released this year for submissions, followed by a hearing process that will be crucial for determining the key parameters of the new system. The national planning framework can then be expanded to include matters beyond existing national direction up until January 2028.

In its submission, ADLS emphasised the importance of the reform and the need to take the time to ensure the new system delivers on its promise of an efficient, simple and workable framework.

Green Party MP Eugenie Sage has noted the bills still need a significant amount of work through parliamentary debate and she scored the revised bills a “seven out of 10”.

Despite this, all indications are that the Natural and Built Environment and Spatial Planning Bills will be passed into law before Parliament rises at the end of August 2023 – such is the power of Labour’s majority.

If that happens and the National Party forms part of the next government, it has been clear that it would repeal the Bills by Christmas. With the National Party having its own criticisms of the RMA, that would not signal the end to the period of reform.

Regardless of whether the bills are passed or the outcome of this year’s election, it is clear that resource management and environmental law in New Zealand is set for a prolonged period of upheaval while a new system is bedded in. ■ Mike Doesburg and Patrick Senior are co-convenors of the ADLS Environment and Resource Management Law committee.

Doesburg is a partner at Wynn Williams and Senior is a senior associated at Russell McVeagh ADLS will be offering a comprehensive CPD event on the bills, both for general practitioners and RMA specialists ■

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