A lawyer’s view
Just had an e-mail from a lawyer, who is a senior partner of an Auckland law firm. He has agreed to let me reproduce his e-mail, but with name deleted while we still are allowed to have anonymity!
David,
You are right to say that the Bill as reported back is worse.
IMHO:
1. The deletion of section 5(1)(a)(iii) is meaningless as the same activity is already covered by s5(1)(a)(ii), which has been left in. It seems obvious to me that if one makes a statement about the “views, positions or policies” of a party or candidate one is “taking a position on a proposition with which 1 or more parties or 1 or more candidates is associated” (the deleted bit). Because under sub (iii) there is no need for a party/candidate to be mentioned and the test is objectified by referring to a “type” of party or candidate, it is pretty easy to argue that if one makes any supporting statement, then one is implicitly “encouraging or persuading voters to vote for …”
IOW, the strawman alone has been sacrificed.
2. The addition of the “bring to the notice of the public in any other manner” wording in the definition of publish makes it all the worse as you have said on your blog.
The stupid irony now is that you can say what you like on your blog (assuming its not commercial) but I can’t get in a room of people and say the same thing. In fact, I don’t even think it would need to be a room full of people – if I shouted out a supporting statement and it just so happened that only one person walking by heard me, that would be enough (Securities law has for years held that an investment is offered to the public even if it is made available to just one person who can be characterised as a member of the public).
What about driving around in a car which says “Get rid of Kyoto – Global Warming is Crap”. Seems to me that that is still caught. Or, what about “Raise the Private School Funding Cap” – Clearly Labour policy is to keep it and National’s is to raise it – caught again?
Actually, it is quite interesting when you try those examples. It seems to me that there is more likelihood of a negative statement being caught. i.e., statements against current govt policies are more easily caught than statements supporting opposition policies. In other words (I am sure inadvertently) the provision as it stands seems to prevent attacks.
“Kill the Bill” is easier to characterise as an attack on Labour (and therefore caught) compared to “Support Free Speech”, which is more difficult to argue as being an encouragement to vote for National.
Seems to me that a blog with a free membership option might be the way to go.
Regards,
XXX [name and address withheld]
November 19th, 2007 at 4:24 pm
The the US FEC election website
http://www.fec.gov/ans/answers_general.shtml#What_disclaimers_must_appear_in_political_ads_and_mailings
Political committees must include a clear and conspicuous disclaimer on all “public communications” (e.g., TV and radio ads, newspaper, magazine or outdoor advertising, and mass mailings or telephone banks to the general public). Public communications financed by individuals or other organizations must include a disclaimer if the communication expressly advocates a candidate’s election or defeat or solicits funds. The disclaimers must indicate who paid for the communication and whether or not it was authorized by a candidate.
Oh dear that well know facist country has all public communications to have who authorised them.
There lists of donors are even more rigourous as the anon limit is $200 and you MUST have your name address AND employers name
November 19th, 2007 at 4:25 pm
Seems to me that a blog with a free membership option might be the way to go.
Heh heh, now you cant charge us
November 19th, 2007 at 4:29 pm
hey GWW, last I heard we are not the US, nor are we a state of such. Or would you prefer us to adopt more policies on the sole provisior that the Yanks have it that way?
November 19th, 2007 at 4:30 pm
Ghostwhowalks:
It’s not the same. Somebody from Ruatoki will not be allowed to say “Dump Parekura Horomia!” without also stating their name and address.
Now how do you think they will feel about that? This bill will make an illegal practice statements and addresses to meetings that were previously free speech. It is criminalising some elements of free speech, unless you follow the government regulations on how to make your free speech (which is, of course, by definition not free speech).
The critical clauses are Clause 5, which defines simple public statements to others as election advertisements, and Clause 53, which prohibits election advertisements during the regulated period, unless they meet specified conditions.
Clause 5 defines ordinary speech as election material. Clause 53 regulates that ordinary speech. From 1 January 2008, free speech is dead.
November 19th, 2007 at 4:34 pm
Excuse me Ghostwhowalks, but since when does George W Bush preside over New Zealand and our laws? He doesn’t. So let’s stick to the laws and electoral system applicable to New Zealand eh, and not introduce irrelevant obfuscation to deflect from the harm this is doing to our country.
November 19th, 2007 at 4:38 pm
So milo if I shouted out at a public meeting like the march on saturday I would have to shout my full name and phyiscal address before the message I wanted to shout,
If thats correct would any of the Socialist supporters like to explain why that is necessary and what pray tell it contributed to free speech and democracy over the present state of affairs .
Come on let be having you or has the cat got your tongue.
November 19th, 2007 at 4:38 pm
What do the Coalition for Open Government, the most respected NGo on electoral finance, have to say aobut the revised Bill? http://cog.org.nz/2007/11/18/coalition-for-open-government-welcomes-revised-electoral-finance-bill/
[DPF: Ha - look I have a lot of time for Steven Price, but I don't think he would claim that mantle as COG has only been going for less than a year, and has only a dozen members.]
November 19th, 2007 at 4:38 pm
The point is ‘authorisations’ are in other election laws. What is fair and reasonable in other countries is also fair and reasonable here.
Nationals outrage reminds me of the indroduction of GST. Yes national said they would repeal that too ( including Ruth Richardson), of course they went along with it, and most said it was a good idea but couldnt say so at the time
November 19th, 2007 at 4:39 pm
Coalition for Open Government, the most respected NGo on electoral finance
Since when???????
November 19th, 2007 at 4:40 pm
gd – no you wouldn’t Graeme Edgeler from the COG has explained that on the Standard and Kiwiblogblog explains how Farrar got the law wrong too.
http://www.thestandard.org.nz/?p=729#comments
[DPF: Sam your constant non stop lies are tiring. Graeme has not posted one word which suggests I have got the law wrong. I really can not decide if you are fundamentally dishonest or just incapable of understanding this issue]
November 19th, 2007 at 4:41 pm
gd – No, it’s not that bad. You could also shout out your full name and physical address after the message you wanted to shout. Between them, Clause 5 and Clause 53 abolish free political speech after 1 January 2008.
I wish I was wrong, but nobody has been able to show the error in my thinking. Not even at The Standard!
November 19th, 2007 at 4:43 pm
To my mind the worrying aspect of this is that Labour and the other sell-outs know this bill is unenforceable in any sensible general manner. They must surely realise that there will be a huge number of technical breaches of this bill and that, to use a phrase Labour have impugned over their term, “it will not be in the public interest to prosecute”.
But you can be sure that if another group akin to the Exclusive Brethren appear at the next election with a message against our Dear Leader and her lapdogs then there will be no mercy from prosecution.
To me that is the implicit – and repugnant – threat behind this legislation. It’s clear that this is a club to be held behind Labour’s back and only used to bash those who might have the temerity to criticise Helen.
Tane, toms, Gnome-rogerer and the other trolls can yap blindly about how this is defending democracy and freedom of speech from moneyed interests. That’s total bullshit, I just don’t see any examples of that which justify this level of intrusion in our accepted society norms.
And, while they’re blindly yapping they neglect to think about how this legislation could be used by a right-wing Government to shut down their treasures such as the Unions, the sub-Standard and the rent-a-rabble marches with megaphones. They’re just valueless pawns getting moved around the chess table by H1 and H2. Surely even pawns must one day realise the Queen will sacrifice them without a moment’s hesitation if its convenient for her.
November 19th, 2007 at 4:43 pm
and http://kiwiblogblog.wordpress.com/2007/11/19/farrar-lies-but-the-bill-wont-die/
bevan – since, like, forever – they held a symposium on electoral finance earlier this year and it was attended by half the select committee, Margaret Wilson, Doug Kidd, and even Farrar himself – pity he didn’t learn anything.
[DPF: COG did not organise it. They were one of may participants. And in fact I agreed with much of what was said there - it's a pity the Bill bore little resemblance to what people wanted]
November 19th, 2007 at 4:45 pm
Every single press release from national today is from Bill Englishs office ( yes Mr 20%).
The “co leader ” of the national party is leaving no outrage un said today
November 19th, 2007 at 4:48 pm
Sam, so what. Thats like saying we should obey everything the Greens say about the environment.
November 19th, 2007 at 4:48 pm
milo – don’t lie to the nice people. Graeme Edgeler told you exactly how you were wrong, he quoted you the clauses in the Bill. http://www.thestandard.org.nz/?p=729#comments
Graeme is a sharp cookie and he knows this Bill better than anyone else I know of. I read the clauses he pointed to and he’s right, your response to him is wrong… you wouldn’t pass Laws 101 with those statutory interpretation skills
… you do not have to give name and address on a electoral advertisment unless you are a registered third party, and you don’t have to register unless you are spending over $12,000.
[DPF: Sam - you are misrepresenting what Graeme said. Graeme said (as did I) you do not need to register unless you spend $12K and hence no audit. He has not said you do not need to list your name and address. Go read the bill for yourself - it is clear as daylight you have to, regardless of expenditure level]
November 19th, 2007 at 4:52 pm
Bevan – respond to the substance of what the COG has to say. its a pointless game arguing about credintials.
November 19th, 2007 at 4:58 pm
“… you do not have to give name and address on a electoral advertisment unless you are a registered third party, and you don’t have to register unless you are spending over $12,000.”
If you don’t register, why would they put your name on the electoral voting paper?
you would be non existent.
Excuse me if I am being ignorant.
November 19th, 2007 at 4:59 pm
Sam Dixon. You are grieviously mistaken. He corrected me on the matter of requiring election returns and auditors, for which I thanked him. He provided no counter-evidence or argument on the effect of Clause 5 and Clause 53 to abolish free speech.
I’ve been trying to maintain a constructive and reasoned tone on this. Having you rock up with such transparent spin-doctoring mis-representation is, I suppose, what I should have come to expect.
November 19th, 2007 at 5:03 pm
Sam: Further to that point, your claim that you do not have to give a name and address is blown out of the water by reading Clause 53. Clause 53 make publishing election advertisements illegal, unless they are acccompanied by your name and address. Clause 5 defines an election advertisement as “any form or words or graphis that can reasonably be regarded as … encouraging or persauding votes to vote, or not vote, for 1 or more specificed [parties/candidates]. The definitions include in publishing (newly added) “bring to the notice of the public in any other manner”.
So your post is Wrong Wrong Wrong. Read the clauses of the Bill.
November 19th, 2007 at 5:03 pm
Milo , sam like all his sewer subby standy freak show mates can only bowl spin -doctoring bullshit because they’re are as Hollow as a Hagar fetid ham sandwich !!
November 19th, 2007 at 5:10 pm
Sam:
You have one thing in common with Ann Coulter: Her books make it very easy to fisk her distortions and outright falsehoods, because she provides the sources.
You owe Grahame Edgler a public apology for quite deliberately distorting his comments beyond recognition. Or is that how the Sub-Standard and Kiwiblahblah operate nowadays?
November 19th, 2007 at 5:22 pm
Sam, you’re a dumb prick, that’s for sure. One-eyed or just stupid, I can’t tell either.
I’ve read the parts of the bill referred to here, and the report by Graeme, and you’ve misread and misquoted both. You’re an embarrassment mate, but I actually think it’s kind of cute because you’re trying soooo hard.
[DPF: Yes I have concluded no one can be that stupid as to be mistaken, so Sam is deliberately lying]
November 19th, 2007 at 5:25 pm
first ever blog here and i was driven to having to do this in a way to vent my anger at this law which would look quite at home in USSR circa 1960.
More disturbing was listening to Helen this morning quoting from the “hollow Men” book as if it was somekind of factual account, not the work of a man better suited to writing the next harry potter installment.
Now I feel better!
November 19th, 2007 at 5:33 pm
This is the end of free speech in New Zealand.
From a government of the left – no surprise there!
November 19th, 2007 at 5:34 pm
Helmet/DPF
Please excuse Sam, it’s been a bad day and he’s trying hard to confuse the issue. His endless quoting of something that actaully wasn’t said on his blog is amusing. He’s showing how partisan he is and please give him some credit for his efforts. He gets an “Achieved” for telling bad lies.
November 19th, 2007 at 5:40 pm
The bill is actually more sweeping than before, as the definition of “publish” has been dramatically widened to include “bring to the notice of the public in any other manner.”
So any view about the suitability of a politician is banned from public expression from 1 January 2008, unless you state your name and address.
I’ve posted a comment about this on the Coalition for Open Government site 2 hours ago, hoping that they will give their view on this matter. I hope I’m wrong, but it looks like I’m right. If so, I hope they have the courage to change their public statement.
November 19th, 2007 at 5:52 pm
Sam. I did pass Law 101 and have since used it for and against laws promoted by most political parties.
Despite being a hopeless muddle in places (no doubt a result of the inadequate process which much of our law formation is subject to these days), the combination of the two definitions (election advertisement and publish) and s53 is brutally obvious. If you pause to actually read s53 and combine it with the worst excesses of the two definitions (but let me save you the time):
“No person may, during [an election year], [bring to the notice of the public] … [any form of words or graphics, or both, that can reasonably be regarded as ... encouraging ... voters ... not to vote for a type of party... that is ... indicated by reference to ... policies that are ... held, taken or pursued (whether or not the name of the party ...is stated)] unless-
[s53(1)(a) - the advertisement [i.e., the words or graphics previously referred to] contains a statement that sets out the name and address of the promoter of the advertisement; AND
[s53(1(b) – the promoter is entitled to promote the advertisement.
Section 53(2) then goes on to provide, among other things, that a promoter is entitled to promote the advertisement if they come under under the $12,000 threshold for all such ads.
It is the AND that means BOTH limbs need to be complied with, whereas you seem only to be focusing on the second limb
So, if I get wound up about, say, Kyoto and Global Warming and decide to paint my dirty old 1962 V8 with “Down with Kyoto – Global Warming is a Load of Hot Air” in an election year where support for Kyoto has become an issue that the public identifies strongly with parties of the left (i.e., left leaning “types” of parties to use the wording from the Bill), as I read it, I risk that being an election ad and would have to put my name and address on my car.
I’m not sure that I really want everybody knowing its me speeding to get the game!
November 19th, 2007 at 5:55 pm
Milo has a useful point – this applies to all candidates – not just parties. So if you state “I hope Winston Peters gets defeated in the seat he stands for”, then that is an election ad.
What will be funny is when I require Tane and others to post under their full names and addresses here, in order to comply with the Act.
November 19th, 2007 at 5:58 pm
or maybe…
as a large percentage of commenters here are anonymous they will no longer comment. And if they can no longer comment, their interest in this blog (and many others) would drop off markedly
November 19th, 2007 at 6:14 pm
To clarify: yes all election advertising will need a name and address.
I don’t think I can blame Sam for this misinterpretation. The statement of mine he quotes begins “milo – you are wrong.”
He was wrong about registering, and he was wrong about filing a return and being audited. I did not make clear that he was correct about the name and address bit.
November 19th, 2007 at 6:20 pm
Sure you can, Graeme. If a bear of little brain like myself got what you were saying surely Sam could as well. One might also think someone who likes coming around here and calling DPF a lying partisan sock puppet would be a little more careful about representing your comment accurately. At least, he should if he and the Sub-Standard want to be taken marginally more seriously than Ann Coulter.
November 19th, 2007 at 7:50 pm
That would only be funny if the act actually required that.
November 19th, 2007 at 7:52 pm
Hey pete , you’d never want your real name exposed eh . If you a pete then I am not a Peter . What a wacko !!
November 19th, 2007 at 8:34 pm
“. . . The stupid irony now is that you can say what you like on your blog (assuming its not commercial) but I can’t get in a room of people and say the same thing. In fact, I don’t even think it would need to be a room full of people – if I shouted out a supporting statement and it just so happened that only one person walking by heard me, that would be enough (Securities law has for years held that an investment is offered to the public even if it is made available to just one person who can be characterised as a member of the public) . . .”
What if the room full of people is a marae? Are the Maori Party {and all the others] by supporting this bill not in fact breaking the Treaty of Waitangi – offending against the free and unfettered use of Te Reo, breaking customary practices and all that stuff?
November 19th, 2007 at 9:17 pm
DPF, If I say I hope Winstone gets defeated because I have a $200 bet with Willy Jackson is that an ellection ad?
[DPF: It depends on how you communicate that, but if you do it in such a way to be a public communication that could be considered an ad.]
November 19th, 2007 at 11:54 pm
Ignore the law.
November 20th, 2007 at 12:28 am
There’s something in the argument DPF, but I’m far from 100% behind your lawyer.
I’d have said there was a much bigger difference between cl 5(1)(a)(ii) and cl 5(1)(a)(iii) than is accepted. Taking a position on a proposition associated with a party/candidate really was *everything* political. Requiring (even if implied) the encouragement of voters to vote (or not vote) for/against a party/candidate narrows this a lot. Sure, a cut taxes campaign run two weeks before the election could be covered, but no reasonable person thinks such a campaign run two months before the budget is aimed at influencing voters electoral choices.
I also think the analogy with securities law is inapt, the policy reasons for a broad approach to the “public” with securities not only don’t apply to electoral speech, but are opposing. It is stupid that the bill proposes to regulate any form of actual oral speech, but in doing so in relation to “the public”, I am confident a narrower definition of public – requiring more than someone overhearing you – would be applied in the Courts.
[DPF: Graeme - as it happens - I also think there is a bigger difference than what the lawyer says, and have had some e-mail exchanges with him on this. I thinks he makes a valid point that (ii) does need to be carefully monitored as certain issue ads can still be caught - closeness to an election may be a factor, but the govt is acting to treat all of election year as a campaign period so I am not sure a pre budget campaign will escape]
November 20th, 2007 at 1:05 am
And while all this dithering is going on “in the Courts” the election will be proceding.
November 20th, 2007 at 7:30 am
Graeme, you and the lawyer DPF was consulting with seem to disagree on the interpretation here. Is it normal for laws to be this confusing in interpretation?
November 20th, 2007 at 9:24 am
Graeme wrote:
“Sure, a cut taxes campaign run two weeks before the election could be covered, but no reasonable person thinks such a campaign run two months before the budget is aimed at influencing voters electoral choices.”
I agree Graeme that deletion of sub (iii) narrows the definition (although not by much in my view) but I think that the fact that we now have the period starting on 1 Jan is evidence of the fact that Parliament (if the bill passes) DOES think that election advertising in that period may influence voters. In addition, any narrowing of this definition has been more than offset by the substantial widening of the definition of publish to include non-written promotion.
Ironically, we have a classic example in the ads that have appeared in todays papers “Introducing Labour’s crazy car policy” (see http://www.nzherald.co.nz/section/1/story.cfm?c_id=1&objectid=10477160)
In an election year, I see a real risk that such a campaign would fall foul of these rules. You may argue that the risk is small but in my view that is not good enough. We are talking here about fundamental rights so the law should be chrystal clear – any risk is unacceptable.
November 20th, 2007 at 10:06 am
I thought the same lawgeek. It would be a good story for a journalist to test that ad against the current bill to see how it fared because we are all talking theory so far.
I do wonder if the courts will be quite as harsh as some of the suggested interpretations however your point on the implications of the 1 Jan date on how the bill might be interpreted seemed a good one.
November 20th, 2007 at 11:14 am
I think those of us who oppose the Bill should be thinking about how we can commit breaches of it in a number of different ways. If enough of us do so then the challenge to the Socialists is going to be to charge us If we clog up the Court system and expose the ridiculous nature of the breaches then the MSM are bound to report these and it will back fire on the Socilaists and those who vote the Bill thru the House.
What better way to defeat the Socialists Greens Dunne and others than have them held up to ridicule at election time.
If the citizens see people they can identify with being charged and convicted that will resonate with them and undermine the enemy.
November 20th, 2007 at 12:45 pm
l@wgeek – I’d probably agree that “Introducing Labour’s crazy car policy” is probably covered. I’d also agree that the extended regulated period does imply that election advertising influences voters year round, but this perhaps jumps the gun, what if the advertising isn’t election advertising, but political advertising?
It’s a fine line, and I to would have preferred it somewhat clearer. Hopefully the Courts are generous, but ideally they shouldn’t have to have been.
November 20th, 2007 at 3:01 pm
Graeme – political advertising vs election advertising? Not sure where that distinction came from. I would have thought that encouraging a vote for or against a “type” of party or candidate by reference to their policies (cf: s5 definition of election advertising) would be about as political as you can get. So, I don’t think there is such a line and I’m sure that the proponents of the Bill would be horrified to think that people could somehow avoid liability by arguing that their campaigning is “political” and not “election advertising”.
Are you able to give an example which highlights the distinction?
Perhaps also one of the proponents of the Bill can explain why they consider that the campaign Graeme and I both agree would be caught, should now be the subject of electoral finance restrictions?