Coalition negotiation requests revealed

The Act Party was told by officials that its “three strikes for burglary” policy could increase the prison population by more than 3000 people within a decade, exchanges from coalition negotiations show.

The National Party was also told New Zealand courts could continue to cite the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), even if it adopted New Zealand First’s policy of withdrawing from the agreement.

The Public Service Commission earlier this month released the information requests received by public service agencies from the three coalition parties during the negotiation process, offering some insight into what was happening behind the scenes.

Political parties locked in post-election talks are allowed to receive analysis on a policy proposal’s costs and implications, among other information.

Four such requests were made during the weeks-long negotiation period after last year’s election, with Act the first to write to the Public Service Commission.

The Act Party asked the commission for information on how its “three strikes for burglary” policy would increase the prison population compared with the status quo. The policy would have meant someone who committed three separate burglary offences would receive the maximum sentence possible for their third offence.

In its response, the Ministry of Justice told Act the prison population would likely be 1300 higher five years after such a law was implemented, rising to 3200 higher after a decade, and 4500 higher after 20 years. The maximum penalty for 96 percent of burglary offences was 10 years’ imprisonment, which led officials to use it as the base line.

Act then asked for the same calculations to be done for a three strikes regime with a minimum sentence of three years without parole, rather than the maximum sentence. The Ministry of Justice said the prison population would be 300 people higher five years on, 800 higher a decade on, and 1200 higher 20 years on.

The costs involved in housing an increased prison population may explain why the policy did not make it into the final National-Act coalition agreement; the deal did include a commitment to “restore” the three strikes law repealed by the Labour government in 2022, “with amendments to tighten the definition of strike offences and ensure some benefit for pleading guilty”.

Act leader David Seymour told Newsroom the party’s “long-standing view is that criminals who commit three burglaries should face a minimum three-year prison sentence without parole, and we campaigned on that policy at the election”.

“Obviously, the current fiscal environment makes implementing it difficult. The law and order policies the Act-National coalition agreement has committed to enacting are a good start towards more accountability for criminals.”

Act also asked officials to cost a policy that would shift eligibility for fees-free tertiary education study from first-year students to third-year students who had successfully completed all their coursework. The party had campaigned on abolishing the fees-free scheme outright, but New Zealand First had pushed for shifting to the third year and eventually secured a commitment to that policy in its own agreement with National.

The Ministry of Education told Act a third-year fees-free scheme would cost roughly $97.4 million a year, compared to the $320m annual cost of the current policy. When accounting for a likely increase in student loan borrowing, the third-year policy would cost roughly $170m less per year.

The National Party later asked officials about the current status of UNDRIP in both domestic and international law, the flow-on effects since New Zealand signed the deal in 2010, and whether it was possible for the country to “withdraw” from the agreement.

New Zealand First campaigned on formally withdrawing from UNDRIP, with party leader Winston Peters attacking its “imposed race-based obligations”.

But in its advice to National, Crown Law said there was no formal process for withdrawing from a non-binding declaration like UNDRIP, with any change in New Zealand’s position able to be made by public statement.

That was the route taken in the National-New Zealand First agreement, with a commitment to confirm “the coalition Government does not recognise [UNDRIP] as having any binding legal effect on New Zealand”.

Crown Law also noted the declaration would “remain a statement of international views which the New Zealand courts may consider”, while claims could be made against the Government through the Waitangi Tribunal.

It had also been referred to in the country’s trade deals with the United Kingdom and European Union, as well as the Apec Indigenous Peoples Economic and Trade Cooperation Arrangement in 2021.

National also asked about the process for appealing a landmark Court of Appeal ruling shortly after the election, which could have made it easier for iwi and hapū to have customary titles recognised by the courts. National and New Zealand First subsequently agreed to amend the law in question “to make clear Parliament’s original intent”.

As was the case during the 2017 election talks, New Zealand First was the only party not to seek any advice or information from government officials.