Beware the Validating Legislation
Labour are attempting a con job on an unprecedented scale with their validating legislation. They are going to ram through Parliament a law which goes well beyond validating illegal expenditure. Let me explain.
The only expenditure that needs validating, is that identified by the Auditor-General from the 04/05 financial year.
Therefore the proper course of action for the Government is to introduce legislation that will validate only that year, and to not ream it through Parliament under urgency, but allow it to follow normal process, including select committee hearings.
If that is what Labour puts forward, then National should probably support it. But alas Labour are going for the big con job. As Matthew Hooton noted yesterday in the SST, no legislation should be passed anyway until the money has been repaid. You absolutely can not trust Labour to backtrack – because they already did it with the Chief Electoral Officer before the election. It’s a proven track record of agreeing to something and backtracking when the heat is off.
Now look at what else Labour proposes to force through Parliament. It also wants to change the law for the 2005/06 year (which is not yet signed off). This would retroespectively change the law to defeat a current lawsuit which looked likely to win – Darnton v Clark. .
It is vital Darnton v Clark be allowed to proceed? Why? Labour claim that the Auditor-General got it wrong. Well the court case will allow the issue (in terms of the pledge card anyway) to be settled for once and all. A ruling by the High Court that the pledge card was illegal will be even more damaging that the AG’s finding, so they are trying to kill the lawsuit.
The othe big con, is Labour are seeking to over-turn the Auditor-General’s report by passing legislation to temporarily allow them to spend their parliamentary budgets on whatever they like (so long as no explicit call for votes etc). This means that their pledge card would be made legal in future.
This is a totally seperate issue to the validating legislation and should be a seperate bill, which again goes to select committee. If this bill is passed, Labour will once again be free to spend $800,000+ during an election campaign of taxpayers money.
So I say yes to validating legislation for 04/05 only, but no to everything else.
October 16th, 2006 at 12:02 pm
And if they pass this legislation with Philip Field’s vote, they are as corrupt as he is. It is very convenient for Labour to have him on leave while his proxy vote continues to be used. He should be expelled from the Labour party – for being caught red-haded lying to the Ingram enquiry – and they should rely on the smaller parties for support.
Will Labour tolerate any kind of corruption if it means they hang on to power? Come on Prime Minister – show some integrity!
October 16th, 2006 at 12:11 pm
They are looking at the “validation” because they have the same legal opinion that National has that when they pay it they will have breached the Electoral Act for Corrupt practice and therefore start the clock ticking again, thus risking over half of their MP’s being tossed out for over spending.
October 16th, 2006 at 12:12 pm
Helen and her entire cabinet should resign.
We should have fresh elections before Christmas.
Hooten is right. They have no sense of shame or even embarassment.
Cullen’s legislation should wait until all parties have paid their bills. In fact – it should wait until after the snap election.
October 16th, 2006 at 12:54 pm
I can’t see how anyone can not now call Helen Clark and her bunch of crony hacks ‘corrupt’?
This goes beyond merely spending the money and not paying it back. After all the pressure to finally get them to admit that they were wrong and saying they will pay it back, this will be a giant slap in the face to any respect that the public has for (a Labour) Government and NZ Parliament procedures.
The MSM needs to get a hold of this information and spread it, in as simple language as possible to get it through the skulls of the public at large. I have a suggestion for the article headline:
“LABOUR’S GOT THE BROOMSTICK READY – BUT WHERES THE VAS?”
Labour are NZ’s equivalent of South Park’s Officer Barbrady. Stupid, yes – but now you can add “Move along people, nothing to see here.” to that. Absolutely shocking the level they will sink to, to stay in power.
I don’t care whether people support the left, right, centre…whatever. If they can’t see this for what it is – one of the biggest corrupt shams in NZ politics – and don’t take the appropriate action – i.e. vote out Labour at the next election (whenever that is; the sooner the better), then they deserve all that they get if Labour get a 4th term.
Once again, thank you DPF for bringing Labour’s underhand tactics to light.
October 16th, 2006 at 1:15 pm
Chance of this bil passing? 100%.
October 16th, 2006 at 1:19 pm
Further to that, hasn’t the Government got its support parties in the bag, since it’s reminded them of their confidence-and-supply promises and they also have big bills they’d be only too happy to see vanish?
October 16th, 2006 at 1:21 pm
And they are going to make all this an issue of confidence. That is whip NZF and Peter Dunne into line. Dunne is finished politically after all this. If he had the guts he would not support this legislation and if necessary pull down the Government and save his skin.
October 16th, 2006 at 1:24 pm
History will not be kind to this Labour govt. Some in the Labour Party have to be deeply concerned about the damage this administration have done to Labour long term.
National had to live down Muldoon, but at his worst he was not corrupt, and treated taxpayer money with respect.
But can Labour ever live down Clark? I’m begining to doubt it.
October 16th, 2006 at 1:25 pm
mmm!..can anyone else smell the ongoing/intermittant moderation(?) here at kiwiblog..?
phil(whoar.co.nz)
October 16th, 2006 at 1:27 pm
Paranoid delusions Phil
October 16th, 2006 at 1:30 pm
Our best shot at a free and fiar election is to become a terrorist supporting state and get the Americans to lead an invasion.
Well we’re hlfway there, just need to throw some more kiwi taxpayers cash at Hammas.
October 16th, 2006 at 1:39 pm
Hammas?
Who are they when they are at home?
October 16th, 2006 at 1:45 pm
No spending needs validating
Labour should pay it back. And take their chances with the courts – or in Paremoremo.
Helen and her entire cabinet should resign.
yep. should have gone a year ago, when the CEO sent them to the police!
We should have fresh elections before Christmas.
NO! We do not need them and we cannot have them yet.
Under MMP, once the labour party is out of parliament,
then the GG just asks the leader of the largest party to form a government immediately. And that is what should happen.
We cannot have fresh elections until a whole range of problems are fixed:
– corrupt politiians removed and banned
– corrput parties bankrupted and disestablished
– election funding regieme fixed
– maorimander fixed
– otara/field operation stopped
– replacement of all senior civil servants appointed by Labour, espeicaly the police commissioner
these, especially the funding and the maorimander, can only be fixed by parliament (OK, or by executive council decree, or by coup). Labour – even without helen- cannot fix them nor should be allowed to exacerbate them. The only solution is for MMP to work as it was designed: once the government has fallen it can be replaced out of the current parliament, and Don be PM for the next two years. He can then go to the country at the end of the term, or earlier if he feels the time is right and enough repairs to the constitution have been made.
But without significant changes, the result will still be wrong.
That’s the problem with endemic, systemic corruption.
Cullen’s legislation should wait until all parties have paid their bills. In fact – it should wait until after the snap election.
No legistlation is needed or required. The legislation is labour’s idea; the AG did not recomend it in his report – to even consider passing it is just another corrupt act!
October 16th, 2006 at 1:54 pm
Actually is not the real question: Will the GG will sign off the legislation?
October 16th, 2006 at 2:17 pm
Labour could very well renege – If vou go to the big whip round website you are told:
“Your contribution will help to support Helen Clark with Labour’s campaigns for Labour values and policies.”
Nothing about refunding misappropriated funds at all.
October 16th, 2006 at 2:38 pm
Lets see her pledge on the donations shall we.
October 16th, 2006 at 3:01 pm
sinner – Don Brash couldn’t form a govt without enough votes to pass legislation. I don’t see how it could work. Certainly Helen and co should resign, but there would be lots of by-elections and those on the list would be replaced.
Would it not be better to have fresh elections?
October 16th, 2006 at 3:21 pm
It’s not only Helen who likes lying. Cullen likes to too, and I quote “It is an appropriation bill and therefore by definition I think it can be regarded as an issue of confidence and supply. It relates to the putting in order of the public accounts for 2004-05” from Dr Cullen on TV One’s Agenda programme.
What he doesn’t say it relates to also is, as you state DPF, this year just been. What a freakin scheister! It must be mandatory for Labour MPs to attend acting school, so they can train to keep a straight face while telling such bald-faced lies.
And then further in the article they do a Muralithuran and spin it in favour of them, painting National as Public Enemy #1???
Corrupt assholes I all I can say.
October 16th, 2006 at 3:42 pm
No validating legislation until the monies paid back. This must be a general principle for all those who are not corrupt. Also in any validating legislation watch out for changes to campaign finance laws like state funding of political parties, no more aananymous donations, things to hurt the EB or any other third party that seeks to run a anti-govt campaign next election e.t.c. Also if they try and pass it under urgency you should know theres some reason for this. We must watch very closely what Labour do regarding these issues. We must not rest until every cwent of money they stole (and preferably intrest) is paid back.
October 16th, 2006 at 3:55 pm
Seamonkey – by making it an issue of confidence and supply Cullen is looking to invoke coalition agreements and ensure he locks in Dunne and NZ1. Ironically if either want to survive the next election this is a perfect time for them to start distancing themselves from Labour.
I have not yet heard a convincing argument as to why validating legislation is required. Sinner is right – it is just another avenue to try and wriggle off the hook – very conveniently supplied by the Speaker and further evidence that she is knee deep in this along with everyone else.
October 16th, 2006 at 4:12 pm
Casual Watcher:
I am both aware and scared of that fact.
Was just putting it in there for a little bit of context. Bet Dunne and Winston have muttered the phrase “hindsight is a bastard” more than once.
October 16th, 2006 at 4:14 pm
Casual Watcher,
My understanding is that validating legislation is normal practice when depts overspend their appropriation.
Say, for example, there’s a cyclone in March, cabinet will approve extra spend by Civil Defense to deal with the cyclone. The relevant depts (probably MCDEM and MSD, but also potentially Education and a couple of others) will overspend their appropriation, because they have no appropriation for the extra money approved by cabinet. This will get tidied up by validating legislation at some point in the future.
It’s basically a tidying up exercise to balance the books.
I suspect something will also be required to handle the repayments because Parliamentary Service’s appropriation doesn’t allow them that much (if any) third party revenue against those output classes.
October 16th, 2006 at 4:29 pm
tim said..
“..They have no defense, they must resign immediately..”
tim…even if dunne should ‘attempt to bring down this government’..
helen can just turn to the greens..eh..?
face it..she isn’t going anywhere soon..
the one doing that is donny..eh..?
face it tim…two more loong years..eh..?
phil(whoar.co.nz)
October 16th, 2006 at 4:53 pm
Anita – thanks for the explanation. Following what you have said it seems that once validating legislation has been passed then repayments create a further problem – easier to just not pay ? I would definitely like to see linkage between any legislation and repayments ie. no legislation until full repayment made – it seems that would save a lot of time and effort and ensure compliance by all concerned. Depends on the real agenda of course !
October 16th, 2006 at 4:57 pm
” would definitely like to see linkage between any legislation and repayments ie. no legislation until full repayment made ”
I agree. If they introduce legislation before repayments are made then one can only asume the reason for this is they don’t want to pay. Given Liar-bours past record I won’t trust their promise to repay the money until the cheques are presented and the money is actually repaid.
October 16th, 2006 at 4:57 pm
Labour’s promise to repay won’t alter because retrospective and prospective validating legislation is passed. The public concern will be met with the repayment there will probably be little public interest in the legislative fix.
Making Darnton v Clark moot is probably a minor consideration but more important is avoiding any other legal action on MP resourcing in the future. This addresses a major constitutional concern.
Given the approach of the Auditor General there is great uncertainty as to what is now permitted. The 2003 drafting of the Speakers direction is hopelessly wide and has been interpreted very broadly.
It is reasonable that Parliament legislate in these circumstances. Politically given the National Party approach on the issue I can see why Labour would want to put the legislation through all its stages quickly. To draw out the process just compounds the political problem.
It is unfortunately that there is such a high level of partisanship over Parliamentary resourcing and Electoral Act matters.
October 16th, 2006 at 5:06 pm
casual watcher the real agenda is as follows
1.Pass validating legislation worded in such a way that none of them have to repay the illegal funds.
2. But more importantly enact legislation that provides for state funding of elections on a massive scale with a minimum amount topped up for every vote at the last election.
Im betting at least 2 million each for the major parties and 500K at least for the minors.
All to be put down to the cost of a democracy.
Such is the snout in trough mentality of my lazy good for nothing employees
October 16th, 2006 at 5:08 pm
Sorry Innocent but wiping out a lawsuit which would actually determine the law is not a minor issue. It goes to the heart of who was right.
And rather than rush l;egislation through to change the law to what Labour thinks it should be, why don’t they actually sit down with the AG and his staff, and see if they can get his sign off on clear guidelines. That would be a damn good start to reducing the level of partisanship.
Another would be not vowing to change the Electoral Act specifically to disadvanateg a particular party (as oppossed to stopping a particular behaviour).
October 16th, 2006 at 5:11 pm
What really sticks in my craw is that this retrospective legislation is being rammed through under urgency – i.e. totally circumventing select committee scrutiny and public submissions. Even if there was a convincing justification for this legislation, and if there is I have yet to hear it, there is NO justification for urgency. Too often urgency is just a much abused mechanism to remove Parliament’s actions from proper scrutiny, and that should concern everyone who believe US Supreme Court Justice Louis Brandeis was right when he wrote, “sunlight is the best disinfectant”. So are constitutional breaks on any government being able to treat the legislative process like a game of three card monte.
October 16th, 2006 at 5:40 pm
(Please note, I haven’t been at the sharp end of the PFA for a while now, my memory may be faulty
I think it would be useful to separate the “validating legislation” into different chunks:
1) Tidying up the books to deal with the unlawful spend
2) Making various other things “ok” (e.g. the Darnton vs Clark discussion).
The first seems just fine and, as is usual practice, they should just bloody well get on and do it.
The second, not so fine…
Who or what are they making ok, and what are the implications?
Also worth remembering, there is actually no legislative requirement for any of the parties to repay anything. In fact, as I said above, I suspect that the repayments themselves cause a different appropriation problem (tho as it’ll be for the current and subsequent year they can be dealt with in a different ways).
The repayments are because it has become blindingly obvious that to not repay would be both publically and politically unacceptable. Whatever happens with the validating legislation, the fuss in the media and cafeterias of NZ means the money will be repaid. Neither is contingent on the other.
October 16th, 2006 at 6:27 pm
“wiping out a lawsuit which would actually determine the law is not a minor issue. It goes to the heart of who was right”
Ordinary I would agree. But it seems to me that the point as been conceded. The Speaker as the Responsible Minister under the Public Finance Act 1989 had to choose between accepting the Auditor General’s view or disagreeing with it. That is why the retrospective and prospective validating legislation is required surely? While I have some sympathy for the Hodder opinion, it’s actually about what the rules should be rather that what they have be interpreted to be. The broad prohibitions stem from the broad drafting.
There also remains a wider constitutional point as to whether the Courts should be involved such intimately parliamentary matters. On principle I am probably against the Courts having a Supervisory role here. However if they don’t there must be an improvement in accountability mechanisms – like the full publication of the financial information about what MPs are spending perhaps.
“rather than rush legislation through to change the law to what Labour thinks it should be, why don’t they actually sit down with the AG and his staff, and see if they can get his sign off on clear guidelines”
It is not the Auditor General’s role to determine this issue. On the basis of his report I would argue that it’s probably not appropriate either. While the politicians themselves are responsible for the dopiness of their own rules, the Auditor General compounded the problem. His “reasonable person test” on electioneering is completely hopeless in terms of providing on going clarity. The trick is to have rules that don’t require such subjective judgements in a area of high partisanship.
The parties themselves are responsible for the level of partisanship. I agree it is a shame that Labour isn’t seeking the support of non government parties for its legislative proposal – I guess we will see the Bill tomorrow.
“Another would be not vowing to change the Electoral Act specifically to disadvantage a particular party (as opposed to stopping a particular behaviour).”
Well we are both pre-judging what they might do in this regard but I fear Labour’s proposals are going to be a very very bad look. Thankfully this legislation will go to a Select Committee and look those concerned but further regulation of political competition can hopefully generate some public interest in this.
October 16th, 2006 at 8:22 pm
Certainly Helen and co should resign, but there would be lots of by-elections and those on the list would be replaced.
Would it not be better to have fresh elections?
Two separate problems.
Second one first: we cannot have fresh elections until the electoral problems are fixed: funding, but also Maorimander & Mangere/Otara eligibility issues. An election held under the currnent rules will simply result in lots of government “policy” publicity (about – I dunno, the “government”s propose tax cuts or something); a five to seven seat overhang; and another labour/green/nzf/mp government.
now part of this is Brash’s tatical problem: had he no run so hard against the minor parties (concenttrating on labour) then he would have more options now. As it is, he’s got Winston pretty much furious at him, and even Hide offiside about spending. But the larger problm is structural: the elections act, broadcasting act, etc need to be amended significantly.
So there are three options:
1. dignity: Labour MPs resign; the party does not nominate more from the list, nor stand MPs in the bielections. This is unlikely to happen even if people resigned.
1a. Labour MPS are allowed to return, but in the special circumstances following the dismissal of the cabinet, have to support the national unity government – i.e. support Brash on confidence and supply. Failing to do so they would have to resign in their turn. Again, unlikely.
2. short-term caretaker: Parliament is recalled straight after the resignations but before the bielections. This gives Don a six-week majority, enough to make the most basic changes necssary to restore public and international confidence in our consitutional arrangements. The problem with this is that six weeks during bielection campaigns isn’t long enough. So:
3. medium-term pleinpotentiary. During the caretaker period, the interim government passes legislation either delaying bielections and list replacements until the next general election (a simple on-clause change to the act); preventing anyone who’s been a member or support of Labour for the last five years from being a candidate or voting for the next five. Given the electoral act will need to be amended anyway, this should be easy to incorporate into those amendments, and will provide sufficient clarity to enable other public issues to be address, rather than just elections – and sufficient time for the “partisan furore” to cool.
October 16th, 2006 at 8:33 pm
And for any MSM journos out there
the validation question is again quite simple:
* The AG did not ask for it.
* If the spending is not corrupt or illegal, it does not need to be validated.
* If the spening is corrupt or illegal, it must not be validated
October 16th, 2006 at 10:16 pm
“*The AG did not ask for it.”
That is because section 65Z of the Public Finance Act 1989 requires the Responsible Minister to advise the House what remedy is proposed if he or she accepts the advice of the Auditor General on the illegality (or outside the statutory scope, authority, or timeframes) point. The Speaker as Minister has reluctantly accepted the spending is unlawful.
“* If the spending is not corrupt or illegal, it does not need to be validated.”
Of course the absence of illegality requires no Parliamentary response, but then the Auditor General must find some illegal spending (or spending outside the statutory scope, authority, or timeframes) to use the provisions of the Public Finance Act that he did. But validation here has nothing to do with corrupt or illegal practices under the Electoral Act 1993. Parliament cannot validate that which was never found.
“* If the spending is corrupt or illegal, it must not be validated”
If the Responsible Minister accepts the spending is illegal, Parliament can retrospectively validate the spending and prospectively legislate to ensure the illegality does not occur again, if that is the will of the majority of MP.s
Such legislation also ensures that no MP or staffer or anyone in Parliamentary Service faces any potential criminal liability over previous spending.
Having declared the retrospective and prospective validating legislation a confidence issue should it not pass, this particular Government would of course fall.
The KEY point to remember is that any case under the Electoral Act 1993 regarding breaching the Party spending cap or filing a materially false Party return cannot of itself affect the composition of Parliament. Had Heather Simpson been convicted of a corrupt or illegal practice it might alter Helen Clark’s ability to command the confidence of the House.
October 17th, 2006 at 12:03 am
No you are wrong on all counts.
The Speaker as Minister has reluctantly accepted the spending is unlawful.
Right. but the AG did not ask for validating legislation! That is the only germane point here. The speaker did, the AG very clearly did not
(and very properly will not comment more on his damning report)
Of course the absence of illegality requires no Parliamentary response
right again. So why the response? What are they afraid of?
(answer: paying it back is another corrupt action under the electoral act).
Parliament can retrospectively validate the spending
of course they can – the question is whether or not they should.
I said it must not validated. Brash agrees and will stand against this government in a confidence vote on precisely this matter. With the greens out, Maori party against validation, all he needs is 2 or 3 NZF people to get a conscience and the government falls.
The KEY point to remember is that any case under the Electoral Act 1993 … cannot of itself affect the composition of Parliamen
On a quick inspection of the act that seems to be the case.
Something Brash needs to fix (and should be demanding is fixed, and raising amendments to fix) is that clause 238 only mentions constituency candidates: no matter how blantly corrupt the party vote is, it doesn’t avoid the election. This is yet another example of somethign that must be fixed. (Given Labour/Greens drafted the MMP part of the act, although it was passed by National, one does wonder why they left this loophole there!)
BUT in fact, even under the current act, there are several causes. First, there is clause 240 of the electoral act. which (in certain circumstances) empowers the court to override any provisions of the act, including time limits and the avoidanve loophole in 238.
Then there is clause 239 which doesn’t have the constituency-only loophole. That means that the entire labour cabinet team, as parties to corrupt practice, should not be in parliament. And there is a strong argument that – as beneficiaries – the rest of the labour and green party MPs would also be removed until the list is empty. At which point the composition of the parliament will look rather different!
Had Heather Simpson been convicted of a corrupt or illegal practice it might alter Helen Clark’s ability to command the confidence of the House.
Heather Simpson, Helen Clark and Mike WIlliams were all cited to the police by the chief electoral officer for a corrupt practice subsequently confirmed by the solicitor general an auditor general.
Since when is a criminal conviction the standard required to continue in public office or in government??
hiding behind “they were not convicted” is. once again, a red herring.
October 17th, 2006 at 8:09 am
nah let them go ahead (well, looks like with the poodles playing along they will do it anyway) and pass their validating legislation, destroying Darnton’s case, then watch winston, peter and helenco quietly backaway from paying it back at all.. having already planted the seeds of their own destruction, that would just be water and fertilizer for the impending doom…
October 17th, 2006 at 12:57 pm
DANGER! From a United Future press statement today:
“United Future leader Peter Dunne has confirmed that United Future will SEEK to repay the amount identified by the Auditor-General as a breach of its Parliamentary funding before last year’s election.”
In other words, no COMMITMENT to repay. They are just going to SEEK to pay. When the legislation is passed, and they start to have difficulties repaying, watch them change their mind.
October 17th, 2006 at 3:35 pm
DPF – does the validation legislation cover both the incorrect use of Parliamentary Services Funding *and* that this would then require the parties to produce new electoral returns?
I certainly gain the impression that it covers the former, however would this not have interesting implications on the statute of limitations around the filing of an electoral return? Given that:
What if an error in, or omission from, a return is discovered later?
The secretary should immediately prepare an amended return, obtain an auditor’s report on the amended return, and forward both to the commission
( http://www.elections.org.nz/elections/e5_party_return_expenses.html )