Yesterday’s Parliamentary Question Time was dominated by the entirely predictable attacks on John Key over his decision to stick with John Banks, and John Key’s clownish attempts to get a laugh out of the situation. Key is vulnerable on the issue of Banks, and Labour and the Greens will want to talk as much as they can about the ACT leader.
But I’m not sure that the opposition parties have got the focus of their attacks quite right. Their questions yesterday about Banks’ “breaches of the law” allowed John Key to simply say in effect “well he hasn’t committed any offence, because police have not charged him”.
Opposition parties appear to be taking the line that John Banks got off on a “legal technicality”, and are pressing John Key to sack Banks because he broke the law, rather than because he’s a lying, unethical scumbag. They seem to be suggesting that police did not press charges against Banks because the alleged offending fell outside the 6 month window under the Summary Proceedings Act 1957, which therefore means that he still “broke the law”.
The problem with this line of attack is that the six month window is only relevant to the lesser of the two offences John Banks was investigated for under section 134 of the Local Electoral Act 2001. The lesser offence under s134(2) concerns the filing of a false return in circumstances where the person cannot prove that he or she had no intention to misstate or conceal the facts, and that he or she took all reasonable steps to ensure that the information was accurate.
Had Banks been found guilty of the lesser offence then the maximum punishment would have been a fine of $5000. He might have got a slap on the wrist, or the judge might have decided he was a “pillar of the community” and discharged him without any conviction at all.
On the more serious offence, that of knowingly filing a false return (s134(1)), the maximum punishment is two years in jail or a fine of up to $10,000. On that charge the police concluded that there was insufficient evidence for a prosecution.
Even had the police decided to prosecute under either of the sub-sections (assuming for a moment that the offence under section 134(2) was not time-barred), a determination by police that an offence has been committed does not mean that an offence has been committed. It appears that almost everyone has automatically concluded that, because Banks “got off on a technicality”, this means he is really no better than a criminal. This is not so. Had police taken these matters to court (assuming again, for the sake of argument, that the lesser offence was not time-barred) it is entirely possible that Banks would have successfully defended himself against both charges.
When police concluded that the “teapot tapes” cameraman Bradley Ambrose probably committed an offence, but decided not to prosecute because they were not satisfied that they could make out all the elements of the offence to the required criminal standard, there was an outcry among liberal-minded folk because the police appeared to be saying that someone was guilty even though police just couldn’t prove it. We were reminded by liberal types that the police don’t determine someone’s guilt because, in a free and democratic society subject to the rule of law, determining guilt is the domain of the courts.
But now we have what appears to be a collective amnesia, because we happen to dislike the person at the end of the police’s attentions. I don’t like John Banks, and I think it’s reasonable to conclude from his public statements that he is a liar and lacks any sort of moral compass. It is also reasonable to conclude that a person like John Banks is utterly unfit to be a minister, or even an MP. But he has not committed any offence, has not been charged with any offence, and has not “got off on a technicality”.
Opposition parties are right to berate and ridicule Key over his refusal to read the police report over John Banks’ activities. But they should be focusing their attacks in the fact that the police report provides further evidence of Banks’ lies and unfitness for office, not because he “broke the law”.