My initial impression was that delaying John Banks’ sentencing for filing a false electoral return to the day after Parliament had finished sitting was helpful to the Government. But on reflection this has created one big headache for ACT and for Key and National.
All will be fine if John Banks receives a discharge without conviction. Then he retains his Parliamentary seat and can finish his term somewhat gracefully on election day. But I suspect the chances of this happening are not good.
The Sentencing Act 2002 says that a discharge without conviction should not be given unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
A discharge without conviction tends to have a youth bias. There are a few law students who after what was going to be a quiet night had a few tequilas and then became involved in an argument with the police indignantly claiming their friend should not be arrested for urinating in public when they were on Queen Street and then were arrested for obstruction. Believe me, there are a couple of very good lawyers I know who have gone through this particular scenario. Their only sin was to not understand how compromised their ability to reason was after consuming Tequila. There but for the grace of god go many lawyers.
The consequence of the wrecking of a future career for a youthful indiscretion is generally out of proportion to the seriousness of the offence if it is at the stupid drunken tequila end of the spectrum. This is why there are a few Lawyers who have had the benefit of a discharge without conviction.
Conversely a discharge without conviction should not be granted to someone who is in the twilight of their career. Because the consequences of a conviction are limited. It is even more difficult if that person has a previous conviction. And if they are aged 67 and are retiring from politics then it is hard to understand what consequences there would be. So they wake up in the morning and felt worse about themselves. This is a natural consequence of what they had been found guilty of and should not result in their conviction being expunged.
The approach to achieving a discharge without conviction is well understood by defence lawyers. The first thing you do is plead guilty. The second thing you do is plead guilty. Our Judiciary is remarkably catholic in its approach and prefers that someone seeking an indulgence fesses up and acknowledges they made a mistake. Forgiveness is much more likely if you acknowledge that you need it.
Another consideration is that if the offending involves a momentary instance of a brain explosion which has never otherwise occurred then the prospects of a discharge improve. It is easier to forgive a momentary weakness than to forgive behaviour which is calculated and forms a pattern.
And a further really important consideration is the public interest. It is in the public interest to make sure that our politicians comply with important laws.
So John Banks may get a discharge without conviction. But there seems to be a number of potentially insurmountable barriers in the way.
Presuming he is convicted then there are a whole lot of problems for John Key and National. Firstly Banks will no longer be a Member of Parliament on August 3 or so. Parliament will no longer be sitting but it is not scheduled to be dissolved until August 14 so under section 129 of the Electoral Act 1993 a by election will need to be called. A by election need not be held if Parliament is dissolved but this will not have occurred by then.
To stop this MPs will need to be summonsed to pass a resolution by a majority of 75% confirming that no by election need be held. And they cannot do this now. Section 131 of the Electoral Act talks about vacancies and not future vacancies so the power does not exist until Banks is actually gone.
The situation is far too messy for National. I am sure the pressure is on now and Banks will be allowed the chance to give a valedictory speech but he will then resign. A resolution will then be passed confirming that a by election will not be required, who could do anything else, and then life will continue.
And John Banks will become an annoying footnote in New Zealand’s political history and the sense of sleaze surrounding this Government will be more permanent.
ACT’s response has been fascinating. Jamie Whyte could not see what the problem was with its only MP facing the prospect of being forcibly removed from Parliament because he had filed a false electoral return and Richard Prebble’s comments on Morning Report were just insane. He originally thought that Banks would be acquitted. His judgment is, shall we say, questionable.
So essentially if John Banks receives a discharge without conviction, which is really unlikely, he can serve his term out. Otherwise unless he resigns well before his sentencing Parliament will have to be resummonsed after August 3 so they can pass a resolution confirming that a by election in Epsom is not required. If this was required the Taxpayers Union should be apoplectic. And there would be a stark reminder that members of a party which once proudly claimed to be perk busters had engaged in behaviour that had cost the country dearly.
I suspect that all parties apart from ACT thinks that John Banks should resign. As soon as possible.
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