The judgment on whether David Scott, who is currently campaigning on the Kāpiti Coast, is fit for public office should lie with the voters, rather than the law-makers, writes Andrew Geddis.

I hope it is safe to assume that virtually all of you reading this think that a man recently kicked off your local District Council after having been convicted of rubbing his genitals against a member of council staff would not make a very good elected representative.

The fact he continues to deny his actions even occurred, rather claiming the “false” allegation was motivated by his opposition to things like the CEO’s pay increase, only ought to strengthen that conclusion.

But should such a man even be able to put himself back before the people to seek re-election to the role? That’s the question currently exercising candidates for the Kāpiti Coast District Council, where disgraced former councillor David Scott is standing again despite being forced off it in June of this year.

Because his conviction for indecent assault carried a potential term of imprisonment of two years or more, Scott’s council membership was automatically revoked. But as he was not in fact imprisoned for the offence, he remains on the electoral roll.

And nothing in the Local Electoral Act 1991 then prevents him, as an enrolled voter, from throwing his hat back into the electoral ring.

This fact has upset some of his former colleagues and now competitors. Surely someone who has assaulted – indeed, indecently assaulted – a council employee should not be allowed back into the literal scene of the crime?

A number of Scott’s previous colleagues seem to think so. For example, TVNZ aired this suggestion by Rob McCann, who is seeking re-election to the council:

“The law clearly needs some thinking about because parliamentarians, when there’s a certain crime that you commit, can’t go back into parliament. So we need the same protections for local government.”

This claim actually is a bit misleading. The qualifications (and disqualifications) for both forms of representation largely are the same; if you are on the electoral roll and are a NZ citizen, you can run for parliament or your local authority.

What McCann may be getting a bit confused about is that there are some offences in relation to parliamentary elections – “corrupt practices” – that will see you placed on the “corrupt practices list” and so be prohibited from enrolling to vote for three years. If that happens, you can’t then stand for election to parliament (or to a local body, for that matter) until removed from the list.

It’s true there’s no equivalent offences at the local government level carrying this consequence. But these corrupt practices are restricted to very specific offences against the electoral process itself: bribery, undue influence, filing false returns of donations, etc.

So, there’d actually be nothing in our law to stop the parliamentary equivalent of a David Scott figure from running for re-election next year.

We may pause here to note that David Scott is hardly the first or only candidate to run for office with a past conviction. Perhaps most notoriously, in 2013 the rapist, arsonist and former poster-boy for the anti-Treaty crowd, Allan Titford, was still able to stand for mayor of Northland despite having just been convicted (but not sentenced) for his crimes.

Does that then mean we need to take action to prevent the risk that someone like Scott, or Titford, might get elected despite their past wrongdoing? After all, it would be pretty terrible to have to share a decision-making table (as well as to have to work in the same place) with someone like this.

Current Kāpiti Coast District Councillor Michael Scott, who should not be confused with either David Scott or a branch manager of a paper distribution company in Scranton, PA, told Radio NZ that this possibility justifies a quick and dirty law change:

“It can be attached in an omnibus provision to any number of other pieces of legislation and the change that needs to be put in is simply, ‘if you are removed from your seat because of a conviction you’re then ineligible to seek re-election for a set period of time’.”

Let’s put to one side the fact he’s largely wrong about parliamentary processes, albeit noting with concern that Radio NZ identifies him as being “a former public servant”.

Because the real problem with such a law to solve this immediate problem is that it may inadvertently create others just as bad. Apply Michael Scott’s proposed rule to, say, a councillor who participates in an anti-climate change protest and gets convicted of intentional damage for their actions while on it. That offence carries a jail term of two years or more, meaning they would lose their council seat.

Should they then be prohibited from going back before the voters and arguing; “yes – I committed this crime because I believe in this cause so strongly … and now I ask you to return me to office anyway”? That actually doesn’t seem like a very democratic outcome to me.

Well, might a narrower or more targeted law be drafted to catch the David Scotts of the world but not the principled law-breaking elected official? Such a law would have to delve into the justification or rationale for the offending at hand and ask (in effect) if it is bad enough to disqualify someone from even being considered to be an elected official.

And you know who might be quite good at making such judgments? The voters. They seem perfectly capable of looking at a David Scott-type offender and a principled civil-disobedience offender and deciding whether the two criminal convictions are equally disabling.

Because note what the push to legislate to stop the David Scotts of this world from standing for election is based on. It assumes there is a non-zero chance that a significant number of voters on the Kāpiti Coast might decide that even though David Scott rubs his genitals against women without their consent, he’s still the kind of guy they want to represent them.

To which I’d say, if we honestly think this outcome is a realistic possibility on the Kāpiti Coast or elsewhere, then the real problem isn’t with our laws. It’s with the voting public.

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