Parliamentary Panic and Fear
There are a growing number of very very worried MPs, as the ramifications of the Electoral Finance Act become clearer – specifically the extension of the regulated period from 90 days to all of 2008.
You see the Government wanted to have a law which said if The Parliamentary Service approved some expenditure, it was automatically exempt from the Electoral Finance Act. But they realised the backlash if they stated it that baldly would be immense, so they tried to do it implicitly.
I blogged on this in December here and here. They key section for party expenses is s94(2), paragraph (g) which is:
election expense does not include the cost of any publications that relate to a member of Parliament in his or her capacity as a member of Parliament.
and for candidate expenses s 71 para (c)(i):
that relates to the campaign for the return of the candidate in the candidate’s capacity as a candidate for the district and not to the candidate in his or her capacity as a member of Parliament or as the holder of any other office
But the problem for the Government and for all MPs, is that the Electoral Commission and The Parliamentary Service have both said that just because something is approved by The Parliamentary Service doesn’t mean it will be exempt as an election expense. It will still be judged on its merits as to whether or not it is seen as an election advertisement (encourages or persuades people to vote for or against a party or type of party) and whether it qualifies as an exception to the election expense definition.
It is now dawning with a sense of dread on some MPs that all their taxpayer funded publications in 2008, run the risk of being deemed an election expense. If their newsletter advocates against other parties, then will that be an expense or not?
Causing even more fear, is the fact the Electoral Commission will not pre-approve material (which is not their role). I am told by a (non National) MP that they will not rule in advance on whether a particular publication will be an election expense or not. Instead they will keep a file of all complaints about publications, and after the election determine if they are expenses or not.
Now one sees why MPs are starting to panic. Almost every single MP spends more than $20,000 a year on taxpayer funded publications. In fact some MPs have *already* spent more than $20,000. And if their publications are deemed election expenses, then they are facing either prosecution for over-spending, or much much worse – electoral petitions to over-turn their re-election.
You think Florida was bad. Imagine a scenario where say 50 of the 70 electorate MPs face an electoral petition, and the courts decide.
Now one might say, what is the probability that material approved by The Parliamentary Service could be found to be an election advertisement. Well the Solictor-General, Auditor-General, Chief Electoral Officer and Electoral Commission all found in different capacities that a massive amount of material last election, was electioneering.
When the regulated period was only 90 days, MPs could avoid the uncertainty by not spending any money on publications (except very basic stuff like electorate office ads) in the final weeks leading up to the election. But MPs don’t want to spend all of 2008 unable to publish anything, yet they don’t want to run the risk of finding out after an election they have over-spent because of their newsletter in February, and losing their seat.
But that isn’t even the end of the matter. You see even if a publication qualifies as “in his or her capacity as an MP” and exempt as an election expense, it is not exempt as an election advertisement. Confused? I’ll try and explain.
The Act basically defines what is an election advertisement, and then defines an election expense as the cost of that advertisement. Now the exemption for parliamentary purposes only applies in terms of counting it as an expense, but not for whether or not it is an advertisement.
And here is the further problem causing some panic for MPs. Even if their publications do not count as an election expense, they may still be regarded as an election advertisement if for example they persuade or encourage you not to vote for another party. So the MPs need to put “Authorised by Party Financial Agent, Home Address of PFA” on their publications or run the risk of breaching the Electoral Finance Act as an unauthorised advertisement.
But imagine how it looks to the public to have the parliamentary crest on a publication, but also an authorisation by the political party’s financial agent?
And MPs are worried that if they do put the authorisation on, then it is harder for them to argue it is not an election expense – even though it is quite logical under the Act that it can be one and not the other due to the exemption.
The potential for multiple electoral petitions is quite immense. And it is worth recalling what happens if an electoral petition relating to over-spending is successful. The result is voided, and a by-election is called. And if that seat is won by another party, that party which held that seat does not gain a List MP as compensation.
March 14th, 2008 at 8:18 am
As I, and many others, said at the time, the EFA is just plain bad law. Regardless of the freedom of expression argument.
I don’t see how any electorate could possibly comply completely with the law, unless they don’t do much advertising at all.
March 14th, 2008 at 8:19 am
Yes, yes and yes DPF.
I can tell you that this particular issue is not only very, very difficult to work around but is also impossible to advise on.
I have been asked to advise on it and I simply can’t do it. In fact I won’t do it. It’s an impossible task, especially considering Annette King couldn’t do it in parliament.
March 14th, 2008 at 8:25 am
You reap what you sow in this world. A sick little banana republic is what this country has become under Labour. The Nats need to start talking about constitutional reform and putting things back on a sane footing. I am involved in the Employment industry and the drift across the Ditch of very good people is absolutely terrifying at the moment.
March 14th, 2008 at 8:26 am
and don’t forget the possible criminal penalties for hapless workers who get it wrong (retrospectively assessed)
[DPF: You sound nervous
]
March 14th, 2008 at 8:28 am
On the positive side – maybe we won’t end up with so much electioneering rubbish in our letterboxes!
Therebye reducing our carbon footprint for the election.
Haven’t these people heard of the Internet?
Acutally I would love to see one site dedicated to clearly describing each of the parties policies in a table format
for comparison, where you could rank the policies by degree of importance and then have the site process, who to vote for based on your preferences.
Unfortunately under MMP the goal posts are moving all the time, because in an effort to form a government the major parties have to auction off their souls.
sigh!
March 14th, 2008 at 8:32 am
The regulated period should have been a DATE certain being up to 90 days from the statutory expiry date of parliament not within 90 days of the election. And there should be safe harbour provisions where people can get a binding ruling on whether their material complies. It is just plain stupid to have this degree of uncertainly over the election. Of course MPs could be safe and spend nothing and what a relief that would be.
March 14th, 2008 at 8:37 am
>Haven’t these people heard of the Internet?
You’d prefer to be spammed?
March 14th, 2008 at 8:41 am
How does that old song go?
“Thank you, thank you very very much Labour”
You and your cohorts in the Greens and New Zealand first have managed to not only make a mockery of our electoral system in your desperate bid to buy yourself back into power, but you have also managed to shoot yourselves in the foot in doing so.
So thank you. Thank you very very much.
davidp: You’d prefer to be spammed?
Heck yes! Then I can setup a mail filter, put it directly into my mailbox trash and it doesn’t cost the environment quite as much as all those damn Green and Labour Party leaflets I saw fluttering around the streets.
March 14th, 2008 at 8:41 am
This is exactly the outcome clark wanted.
She knew pulling off a fourth term would be a big ask so she is going to turn this election into a shambles favouring the incumbent government. At best she has improved her odds and at worst she will leave things in an absolute shambles.
If National can form a govt. at the end of the year they are certainly going to have their work cut out.
March 14th, 2008 at 8:51 am
Only if the petitioner succeeds in establishing that the successful candidate wilfully broke the law. If it was accidental then an electoral petition may only find an illegal practice was committed – which does not result in loss of seat.
[DPF: Yes true, and they don't get entered on the corrupt practices list!]
March 14th, 2008 at 8:57 am
Thank you Labour for the feeling that we all live in a red submarine. We all live in a red submarine -lalalala. What cot case in madness this cess pit country has become !! Meanwhile the blue lawyer Judith Deadbeat Dad Collins can’t work out what triggers fathers to flee this insanity!!
March 14th, 2008 at 9:00 am
“..Acutally I would love to see one site dedicated to clearly describing each of the parties policies in a table format
for comparison, where you could rank the policies by degree of importance and then have the site process, who to vote for based on your preferences..”
good idea..!..democracymum..!
(btw..did you ever answer that question i asked you..?..three times..?)
(and as for this biting those mp’s in the arse who voted for it..?
what can you say..?..but..
“i do love the smell of freshly-baked schadenfreude..first thing in the morning..”
phil(whoar.co.nz)
March 14th, 2008 at 9:06 am
DPF, big ups for taking all this time for our benefit to get your head around this convoluted piece of Stalinist crap. You are in danger of becoming a legend.
March 14th, 2008 at 9:06 am
A wider issue here is the effect of someone casting a vote for a particular candidate and then finding there is a problem with that canidiates expenditure etc and having to vote again. Surely when we vote we should be comfortable that our candidate is not going to end up in court. My understanding is that whilst ignorance of the law is no excuse there must at least be a possibility that the law can be understood. It seems no one is prepared to interprerate this law.
March 14th, 2008 at 9:16 am
DPF, A very thoughtful and damming series of posts.
http://www.kiwiblog.co.nz/2007/12/the_cunning_plan_to_exempt_parliamentary_spending.html
http://www.kiwiblog.co.nz/2007/12/king_comes_clean_with_her_interpretation.html
and todays “unintended consequence” becoming a growing realisation.
http://www.kiwiblog.co.nz/2008/03/parliamentary_panic_and_fear.html
Your readership may wish to help…
Seeing that the Solictor-General, Auditor-General, Chief Electoral Officer and Electoral Commission …”WILL HAVE A FILE OF ALL COMPLAINTS about publications, and after the election determine if they are expenses or not.”
It may be wise to start a supplimentary list of suspect “electrol advertisements” in Kiwiblog dating from Jan 1st onwards.
If this list was on display it would make some political descisions more cautious and reduce the Court costs, By-Election costs, and tears after the Election.
March 14th, 2008 at 9:23 am
“Causing even more fear, is the fact the Electoral Commission will not pre-approve material (which is not their role). I am told by a (non National) MP that they will not rule in advance on whether a particular publication will be an election expense or not. Instead they will keep a file of all complaints about publications, and after the election determine if they are expenses or not.”
So will this year’s election result be provisional, without an actual result being confirmed until all complaints lodged with the Electoral Commission are decided and any resulting court cases heard?
March 14th, 2008 at 9:26 am
Perhaps the parties and politicians will start to simply ignore this new stupid EFA (hopefully the people will). If there are going to be thousands of breach cases to consider then it truly will turn into a shambles of accusations of overspending and the like and it may be easier to breach it and say “oh woops, it was unintentional…”. Such an overload would be farcical.
March 14th, 2008 at 9:28 am
philu – someone ignoring your questions? ha ha. what goes around comes around dick.
March 14th, 2008 at 9:28 am
‘It may be wise to start a supplimentary list of suspect “electrol advertisements” in Kiwiblog dating from Jan 1st onwards.
If this list was on display it would make some political descisions more cautious and reduce the Court costs, By-Election costs, and tears after the Election.’
Impossible, the whole point is that neither DPF nor us would know what is suspect. It’s a dog’s breakfast.
March 14th, 2008 at 9:29 am
Stay calm citizens, Helen is here!
All of labours spending will be perfrectly legal regardless of what they publish and now member of labour will be prosecuted.
Labour will simply make it legal by ramming it through under urgency just before the election and they’ll cover the cronies who help them by covering them too.
“Retrospective legislation is always an option”
Helen Elizabeth Clark
The rest of the parties are however screwed of course. Thanks for playing Democracy the Clark method.
March 14th, 2008 at 9:34 am
Perhaps it could be part of the http://www.youpaidforit.co.nz site ?
[DPF: That is indeed one of the reasons for the site - lawyers can use the material there for electoral petitions]
March 14th, 2008 at 9:35 am
Fair point, Graeme, but I don’t know whether any MP would really like that to have to explain the difference between an “illegal practice” and a corrupt one, especially after a high profile and expensive electoral petition has taken months to grind its way through the judicial/media mill.
Nor do I think its entirely hyperbole for DPF to invoke Bush v. Gore. Whatever the merits or otherwise of the case, its never a good look for the judiciary to be perceived as having a decisive influence on the makeup of government. OTOH, its very hard to feel any sympathy for politicians who find that the laws they designed to be *cough* strategically ambiguous have come back to bite ‘em in the arse.
You folks had the chance to propose a serious package of campaign finance reforms that addressed real issues, and enjoyed broad, non-partisan Parliamentary and public support. Win-win for Labour. You chose not to, so suck it up.
March 14th, 2008 at 9:48 am
Craig, I’m not sure that “you folks” is a fair phrase when talking to Graeme. He was quite visible in the debate against the EFB.
March 14th, 2008 at 10:08 am
“Impossible, the whole point is that neither DPF nor us would know what is suspect. It’s a dog’s breakfast.”
Yes Gooner it is indeed a dog’s breakfast. But it does exist and you are looking at the mess as a Lawyer.
If you looked at this mess as a Politician and see in a widely read blog that your “advertisement” is listed (meaning that a complaint may follow), you would apply caution with your next political advertisement.??
Whether or not the listing is justified is not the point, the point being that it is listed and becomes an implied embarrassment to the person who is “Authorised by Party Financial Agent, Home Address of PFA”.
All parties would modify their behavior.
March 14th, 2008 at 10:19 am
More and more it becomes evident that a Royal Commission of Inquiry was needed after the last Election fiasco, with the pledge card – Cartoonists lampooning the bribes that were offered – The blatant bribing paid for out of taxpayer’s money – The cover-up by Police of misappropriation of taxpayer’s funds – police fudging of the Electoral Commission’s complaint etc. The impending election is becoming more and more of a farce as we procede down this road.
I ask you to consider the present justice and electoral committee hearing re Real Estate in House investigations of complaints against their own mates. Consider the following:
Ms Leask spoke to the justice and electoral select committee via teleconference from her home in Australia and expressed concern about the way the profession was set up.
“My experience shows REINZ to be distant with complaints, unprofessional, unable to investigate, incompetent, protective of their own members and not capable of dealing with the complaints in a timely manner.”
Ms Leask said her dealings with the sector had lasted more than four years and in that time she had been “victimised, bullied and vilified by the real estate agent involved”.
“The Mafia has more credibility. If one of their own does something wrong, they end up at the end of the wharf with concrete gumboots. It is time to react; to cut the company apron strings.”
There had to be strength and transparency in the complaint and disciplinary process, which had to be 100 per cent removed from the institute, Ms Leask said.
Put into the same context the Madeline Setchell case with the State Service in House Investigation – essentially the HBDHB where all the participants are Officials in the Service of the Crown and should be examined under s 99 Bribery and Corruption of the Crimes Act 1961.
All Members of Parliament come under this same section of the Crimes Act and if they don’t recognise their potential offending under this S99 they shouldn’t be in parliament.
We need the same transparency for everyone.
March 14th, 2008 at 10:30 am
I think it would be fair comment to say that Graeme is (broadly) supportive of the EFB, and while I disagree with his conclusions as often as not, his contribution to debate has invariably been thoughtful, serious and respectful of contrary views.
But that’s by the by, as I think it would be reasonable to read my last par as a personal slam on Mr. Edgeler — an unfair and inaccurate one, at that. It was unintentional, and my unreserved apologies to Graeme for any offence caused.
March 14th, 2008 at 10:51 am
Student Interest free loans revealed in Hansard 27 July 2005:
Hon TREVOR MALLARD (Minister of Education): “I have seen a proposal to scrap interest charges on student loans for all 436,000 people living in New Zealand who have a student loan, and to provide an amnesty on penalties for nearly 10,000 student loan borrowers overseas who have an overdue repayment obligation. This will encourage overseas Kiwis to come home. It will save those with an average-sized loan balance around $7,000, and those with higher loans much, much more—up to $80,000 in some cases. I am told there is considerable interest in this proposal. The website of the organisation had 133,000 hits yesterday, and this morning it had 78,000. The place to go is http://www.labour.org.”
Deception is displayed in the way Hon Trevor Mallard distances, disassociates himself from his own Party’s Policy, where undoubtedly he would have had input.
Hansard 2 August 2005 in Oral question time. Hon TREVOR MALLARD: “What I have seen in Nelson last night is the fact that Kiwis just love it. Grandparents love it, parents love it, and hundreds of thousands of New Zealanders who are concerned about their families’ debt love it. This policy is travelling very well”.
Free advertising in Hansard?
March 14th, 2008 at 10:53 am
I guess that Labour at least recognised that the people were going to make them redundant after this election, so, some ups are due for that. However, to take down the whole parliamentary democratic system in the process is a little over-reactive in my books.
Legislated anarchy – this administration has reached new levels of incompetence.
March 14th, 2008 at 11:14 am
DPF
It seems the Greens – staunch opponents of the EB using a business address and defenders / contributors of the new law are also using their wellington office address rather than their agents home address – http://www.greens.org.nz/campaigns/proud/GP001%20Green%20Bill%20board_01.jpg
Unless Jon Fields lives in the National Office?
March 14th, 2008 at 11:49 am
HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA ha, there is a God.
DPF you should have a stall at the feildays in Feilding, you could of sold hundreds of “kill the Bill” T shirts and boosted the coffers. Had heaps ask me where I got my cool T shirt. It would appear Dear Leader and her party is about as popular as a shower of shit in the rural community.
March 14th, 2008 at 12:20 pm
General fear and loathing in Parliament: only goes to prove the old adage that every cloud has a silver lining.
I suspect the chilling effect on parliamentary communications is primarily on the Nats (they are rule following types).
Both big Parties have sufficient public funding to engage lawyers to provide an opinion on whether any mass communication is an electoral expense for the party or a particular candidate – if they are indeed that worried about it. They can then proceed on the basis of advice.
Somehow I do not think there will be much left over from the 1 July 07 – 30 June 08 allocations or the 1 July – 30 November 08 parliamentary allocations – chilling effects only reach so far.
March 14th, 2008 at 12:45 pm
Craig, that is as gracious an apology as I have ever seen. Very well done.
I must say I wasn’t actually clear whether Graeme supported or not the act – he was always there with interpretation of the bill as written or correction of people’s arguments, but I don’t recall seeing any where he gave his personal opinion on whether the intent was a good one. I may just have missed that, I’ll take you word for it that Graeme was broadly in favour.
March 14th, 2008 at 12:58 pm
Murray: you forget that Labour won’t be in power after the election. They very well may face getting prosecuted.
March 14th, 2008 at 1:31 pm
Chris D
National are the rule following types? If you’re suggesting Labour are not, then I guess you are right and wrong there.
You’re right in that I’ve never seen a government more fixated with rules than Labour (eg children banned from junk food, telling supermarkets where they have to put types of food, etc etc etc, so typical of control freak socialists). On the other hand, you have a valid point. Labour has flagrently flouted the rules (paintergate, speedgate, doongate, election spending etc etc etc).
But in that regard, having a party like National prepared to follow the rules is not such a bad thing.
March 14th, 2008 at 1:53 pm
Likely scenario: having written the law, then being caught by the law…is to change the law… retrospectively of cause.
March 14th, 2008 at 3:23 pm
Murray:
“Stay calm citizens, Helen is here!
All of labours spending will be perfrectly legal regardless of what they publish and now member of labour will be prosecuted.
Labour will simply make it legal by ramming it through under urgency just before the election and they’ll cover the cronies who help them by covering them too.
“Retrospective legislation is always an option”
Helen Elizabeth Clark
The rest of the parties are however screwed of course. Thanks for playing Democracy the Clark method.”
I was going to say something like this, but you said it first. Maybe THEN, but only then, DPF will wake up to the fact that these people are NOT honourable opponents no matter how wishfully he treats them that way?
March 14th, 2008 at 3:25 pm
And Pita, you too, well said…..
“Likely scenario: having written the law, then being caught by the law…is to change the law… retrospectively of cause.”
And DPF will still remain ever the gentleman?
March 14th, 2008 at 3:33 pm
Bogusnews:
“But in that regard, having a party like National prepared to follow the rules is not such a bad thing”
Perhaps. I will judge National when I see the draft of a new Electoral Bill tabled in Parliament. Do these proposals include less rules more clearly stated with bigger spending caps and a repeal of the broadcasting allocations regime and the offensive Party appointees to the Representation Commission.
Or do they refer the matter to some type of independent commission (which will include a judge – and what Judge doesn’t like rules) where Labour’s mishmash is tinkered with and our electoral rules are made even more complex. I fear National’s concession to Labour (which wasn’t even sought) on anonymous donations bodes badly for the future.
In reality all Parliament has done to itself in the EFA is what it does to taxpayers all the time. The uncertainties and litigation risks complained of are what most New Zealanders face anytime Parliament passes a law. Will this lesson be lost on National? It is lost on Labour.
[DPF: National has said there will be some sort of independent panel and public process, to help draft a new Act. I agree with repeal broadcasting allocations and have a total spending limit of around $2 per voter or $5 million per party.]
March 14th, 2008 at 6:59 pm
PaulL I beleive I did specify pre-election legilastion. Either way never underestimate how ingrained their methodolgy is.
Remeber when people opjected to to Harrys law so a vacent seat could be illegaly held on to by Labour. It was usch “small” thing”
But it gave them a taste of what they could do.
mmmmmm… prosecuted.
March 14th, 2008 at 10:54 pm
Frankly I don’t give a stuff any more.
I have not voted since the MP’s voted for those monstrous perks etc AFTER the Parliamentary session finished many years ago.
March 15th, 2008 at 12:11 pm
We need a Roya Commission for Electoral Reform Who is with me?
March 15th, 2008 at 1:02 pm
I agree with Lee C on this one.
I also agree with Fran O’sullivan who called for a Royal Commission of Inquiry after the last Election.
We need to see the role played by the Parties in their use of election expenses, and the poor showing of the Chief Electoral Officer, The Electoral Commission, the Police, the Auditor-General, Solicitro-General, the Crown Law Office, the Speaker of the House and Parliamentary Services.
March 15th, 2008 at 9:59 pm
Lee C – the last RC gave us MMP!
Most candidates and their financial agents (a massive majority of them are volunteers who will not be in parliment in November) should be wetting themselves at the thought of not interpreting the act correctly.
The loose, weasel words – reasonably appear to encourage to vote for a party or candidate – mean I would not risk a $50k fine for anything and would insist on everything having an authorisation – including the Greens Billboard on Ghuznee Street in Wellington.
March 16th, 2008 at 8:38 am
And Michael E – the last time the Royal Commission also recommended campaign finance reform and caps of third party spending!
March 16th, 2008 at 1:36 pm
“the last time the Royal Commission also recommended campaign finance reform and caps of third party spending”
Yes the last Royal Commission had Richard Mulgan on it – oh dear on dear.
And that is the problem. One need to start with a philosophical view about the regulation of political speech and competitition. And of course almost no notice is taken of the experience of other jurisdictions where aiming for fairness and transparency through rule making as had precisely the opposite effect.
I fear that any Royal Commission will take a “balanced” approach not a de-regulatory one- yes the Nats will push to remove some of Labour’s poor drafting and up the caps but the characterisation of non candidate political speech as third party speech and the capping of it will remain – albeit with much higher caps. All politicians deep down love privileging their speech and positions and that is all the regulation of political competition does actually.