Electoral (Administration) Amendment Bill submissions

November 17th, 2009 at 4:45 pm by David Farrar

You can make a submission until 10 December on the Electoral (Administration) Amendment Bill.

The bill is generally excellent – it merges the and the Chief Electoral Office, and allows the Commission to give advice on the legality of propose ads etc.

The one change I would like is to the method of appointment of the Electoral Commissioners. The current bill provides for the Minister to (effectively) appoint them after consulting with other parties. I would like to see the appointments either made by Parliament directly, or for the consultation requirement to be made an agreement requirement.

The reason is that different Ministers interpret a consultation requirement in different ways. I know in the 1990s that National consulted Helen Clark as Opposition Leader on some appointments and actually withdrew proposed nominees after Clark objected.

But when Margaret Wilson was Attorney-General, she was terrible. Her idea of consultation was to send a letter out Friday notifying the name of the person she proposes to have Cabinet appoint on Monday.

I was hoping some MPs would touch on this issue in the first reading, and they did:

Hon (Labour) : The Labour Opposition will be supporting the Electoral (Administration) Amendment Bill. I thank the Minister of Justice for the consultative process that has surrounded this bill. He has properly engaged with Labour, as, indeed, I am sure he has with other parties in this House in the preparation of this bill. As a consequence of that, Labour members are happy to support it in its reference to a select committee. Initially, the Electoral Commission, which is a new body set up by this bill and not the current Electoral Commission, was to include the Secretary for Justice as a member. Labour and, I understand, some other parties said that would not be right. Of course, the Secretary for Justice is the head of a Government department, so it would not be appropriate for that office holder to hold a role on the new Electoral Commission. The Minister agreed with that, so the commission will now be fully independent, and we agree that that is appropriate.

This is an example of good consultation. had feedback from other parties, and modified the proposal. My concern is not about Simon as Minister of Justice failing to act on consultations. He won’t be Minister for ever, and my concern is some future Minister will act like Margaret Wilson and ignore any objections from consultation. That is why I think it should requirement agreement, not consultation.

I think there is still a question as to how the commission should be appointed. I have heard some people suggest that the commission ought to be appointed by Parliament, rather than by the Minister as part of the Government. I think that some people may submit on that issue to the select committee. We in Labour would be interested to hear from submitters and be informed by them on that matter.

I’m glad David Parker raised the issue, and hope that Labour will agree to a change – despite the fact they will be Government again one day.

The need for independence is even greater now, with the Chief Electoral Officer being one of the three Commissioners, as the CEO is the key individual who actually runs the election, and declares the result.

Previously the CEO was within the Ministry of Justice. So the State Services Commissioner appointed the Secretary of Justice and the Secretary of Justice appointed the CEO. While I don’t particularly like it being witin the Ministry of Justice, it did make it hard for a Minister to put in someone inappropriate.

Now though the Minister can appoint the Chief Electoral Officer directly. That is too great a power I submit.

(Co-Leader—Green) : I do not intend to take a long call on the Electoral (Administration) Amendment Bill. The Green Party will support its first reading to get it before the select committee. We look forward to submissions by the public on the bill. …

When the National Government consulted the Greens on the proposal, we suggested from the outset that an Officer of Parliament – type body should be established, that it would be preferable to ensure that the new agency is absolutely and fully independent of the Government, and does not report to a Minister. The Officer of Parliament model is used here in Aotearoa with the Parliamentary Commissioner for the Environment, for example. It is also used in Canada for their electoral organisation and management. It places the oversight of the body with Parliament, as opposed to a ministry of the Government managed by one particular political interest. It reinforces its role to oversee and enable free and fair elections, which is a core concern of the House of Representatives and of Parliament. Certainly an Officer of Parliament model would be perceived by the public as more truly independent and would have more ability to comment on how the electoral process is operating, because it would not report to a particular Minister in the executive.

I agree with Metiria that the Commission is most suitable to be an Officer of Parliament. If this change is not practical in the short-term, than a fallback option is to at least require the Minister to gain agreement, not just consultation, with a super-majority of parties on appointments.

(Labour) :

There is also the police, and I will speak a little bit about their function, because the police are the enforcement body as far as our electoral law is concerned.

Although Labour supports this bill being read a first time, we believe that the bill does not address the issue of the enforcement machinery when there is a breach of electoral law. I suggest that that might be something the select committee looks at. The problem that the police always have, of course, is that electoral offences never go to the top of the queue. The police will always be concerned with crimes against the person, and with dealing particularly with violent crime. They will never be able to prioritise electoral matters, nor will they necessarily have the forensic expertise to do so. These days those questions require skills in dealing with tracking donations and financial disclosures, and so on, which call for quite sophisticated levels of skill that are probably more properly found in organisations like the Serious Fraud Office rather than the police. It might well be that with the forensic skills that are required, it would be useful to think about having an enforcement function under this new independent Crown entity rather than the police being responsible for that function, if we are truly interested in bringing all the functions together in an expert body that has the resources and the time to deal with the questions before it.

I agree with Charles that the Police do not see electoral breaches as a priority and it would be better with the Commission. However that is not so much an issue for this bill, but more for the bill which will come out of the Govt’s electoral finance review.

The final point I make is that if one has a look at the explanatory note, one sees that one of the options canvassed was to have an Officer of Parliament for this function. Personally, I think that would have been the most compelling option to go for. The explanatory note suggests there was not enough time to get that sort of apparatus going before the next election. But if we really want a truly independent body, charged with the conduct of elections in an honest and serious way, then, given the conduct of our other Officers of Parliament, in whom we have enormous faith, then that seems to me to be the best way to go.

Excellent.

What has been nice is that all the Opposition praised Simon Power for his consultation with them over the bill. It is great to see the merger happening after years and years of no action, and electoral law should be an area of bipartisanship as much as possible – it is too important to be treated as a bauble of office, as some sort of winner takes all prize.

I hope other people take the time to do a submission. If you don’t, then no complaining if you wake up one day in the future to read that Winston Peters has been appointed as an Electoral Commissioner :-)

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11 Responses to “Electoral (Administration) Amendment Bill submissions”

  1. burt (8,238 comments) says:

    CHARLES CHAUVEL (Labour) :

    There is also the police, and I will speak a little bit about their function, because the police are the enforcement body as far as our electoral law is concerned.

    Charles you tell lies… you as a Labour son of a bitch voted for parliament to decide that Labour didn’t breach electoral funding laws. What a shame this “shining star” of Labour can’t even remember how he helped dictator Helen override the conventions of parliament when it suited her.

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  2. Graeme Edgeler (3,283 comments) says:

    Charles … voted for parliament to decide that Labour didn’t breach electoral funding laws.

    Not true, Burt.

    Section 6 of the Appropriation (Parliamentary Expenditure Validation) Bill read:

    6 Act does not affect criminal liability

    Nothing in this Act affects the criminal liability of any person.

    The reason Mike Smith, Heather Simpson and others in the Labour Party weren’t prosecuted was police incompetence, not Labour’s legislation.

    [DPF: But the validating legislation did prevent the Darnton v Clark lawsuit which could have found the pledge card funding by Parliament was a breach of the Public Finance Act]

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  3. burt (8,238 comments) says:

    Graeme Edgeler

    I will not argue with that. How about this;

    Charles voted in parliament to use Labour’s interpretation of the intent of the law rather than the Auditor General’s interpretation that the law had been breached by several parties.

    OK, so what is Charles suggesting, that we vest the power to investigate with a parliamentary authority… What like the AG perhaps? What is going to stop the govt de-jour flipping the bird to any authority that it has the power to legislate away (unless that authority is the same one that enforces public order). Talk is cheap for change when the mechanisms we have are unchecked and we do not have a written constitution.

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  4. dad4justice (8,137 comments) says:

    A “written constitution” would be a great idea New Zealand.

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  5. Graeme Edgeler (3,283 comments) says:

    [DPF: But the validating legislation did prevent the Darnton v Clark lawsuit which could have found the pledge card funding by Parliament was a breach of the Public Finance Act]

    Which has absolutely nothing to do with electoral law, or the failure of police during the 2005 election to take alleged breaches of electoral law seriously.

    I would also note that the only reason you’d want validating legislation is if you accept that there is a breach of the Public Finance Act. Passing a law to remedy the breach wasn’t an end-run around Darnton v Clark, so much as an agreement that he was right. The Government and Parliament accepted that Darnton was correct, so they passed a law to fix it up. What more could he hope for?

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  6. burt (8,238 comments) says:

    It seems to me the simple solution here is that any alleged breaches of the law against MPs when made by highly positioned govt officials (eg the AG ) are passed to the Police – in all cases. Further make it such that the Police don’t have discretion to prosecute or not when senior govt officials have investigated thoroughly enough to make such allegations. Of course the Courts might throw the case out or seek a judicial review, but that’s already a defined process and provides transparency around the eventual outcome.

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  7. burt (8,238 comments) says:

    What more could he hope for? deep breaths… deep breaths…. OK I get it, you are taking the piss ;-)

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  8. reid (16,290 comments) says:

    But when Margaret Wilson was Attorney-General, she was terrible. Her idea of consultation was to send a letter out Friday notifying the name of the person she proposes to have Cabinet appoint on Monday.

    Yes.

    How surprising.

    What a bitch.

    Personally, I think the only constitutional law we need is that if anyone fucks with our constitution, as determined by a binding Citizen Initiated Referendum returning more than 70% in assent, they are subjected to a tax of 100% of their gross taxpayer-funded earnings received over their lifetime of employment. Total sum payable within 7 days after which standard IRD employer PAYE penal tax rates apply.

    How else do you deal with constitutional scum like this bitch?

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  9. Viking2 (11,413 comments) says:

    Under-the-radar review of MPs’ perks
    By TRACY WATKINS – The Dominion Post
    Last updated 05:00 18/11/2009

    MPs’ perks are about to come under fresh scrutiny as a high-powered review quietly gets under way.

    The review is taking place as MPs are embroiled in controversy over the use of taxpayer money for perks, including travel by themselves and their spouses. It is required by law after every election, meaning MPs had no control over its timing.

    But it was officially confirmed in a statement by Speaker Lockwood Smith only yesterday, after the review committee had already met for the first time and despite it being widely known that former speaker Sir Doug Kidd had been appointed to lead it.

    The appointment of Sir Doug, an MP of 24 years standing, is controversial – the last review was headed by an outsider, businessman John Goulter.

    Mr Goulter’s 2007 report angered MPs when it recommended an overhaul of the perks system and questioned spouses getting free travel on the taxpayer. Many of his recommendations were ignored.

    Sir Doug said yesterday he was not going to discuss the review and one of the first decisions the committee had made was not to talk to the media.

    He also declined to comment on whether it was appropriate for a former MP to head the review. “I’m not going to enter into discussion on that … You will have to judge things by the result.” He is being assisted by economist Philip Barry.

    The review comes as MPs are under more scrutiny than ever before since a series of scandals over perks, including their accommodation allowances and travel subsidies for overseas trips.

    ACT leader and Local Government Minister Rodney Hide has paid back more than $20,000 used when he took his girlfriend, Louise Crome, on trips to Hawaii and Europe.

    Finance Minister Bill English has also repaid money claimed in ministerial accommodation allowances on his family home.

    At the weekend, Prime Minister John Key did not rule out asking Dr Smith to look at revamping MPs’ perks, saying there was “merit” in the idea. But a spokesman for Mr Key said yesterday that it was not the prime minster’s intention to do so at the moment.

    Green Party co-leader Metiria Turei, who has called for an independent review of MPs’ allowances and perks, said she was comfortable with a former Speaker and MP heading the review.

    It was useful to have someone in charge who understood the system and how Parliamentary Service operated.

    It had been seven years since Sir Doug had been in Parliament so she did not believe he would be too close to the process.

    Not on subject but just thought you would like to know what’s being done by our constitutional representatives behind closed doors.

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  10. Graeme Edgeler (3,283 comments) says:

    What more could he hope for? deep breaths… deep breaths…. OK I get it, you are taking the piss ;-)

    Kind of.

    All Darnton wanted was a declaration that the pledge card was unlawful. He got a declaration that the pledge card was unlawful from Parliament. If the pledge card was lawful, then Parliament wouldn’t have passed a law validating it.

    [DPF: That is disingenous. Helen Clark and Labour kept insisting the pledge card was legal and the Auditor-General was wrong. In fact they even started smearing the Auditor-General]

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  11. Graeme Edgeler (3,283 comments) says:

    [DPF: That is disingenous. Helen Clark and Labour kept insisting the pledge card was legal and the Auditor-General was wrong. In fact they even started smearing the Auditor-General]

    I’m not sure what the smearing has to do with it. That was appalling, but not really related to what we are discussing. Was Darnton also seeking a declaration that the smears were unfounded?

    Helen Clark and Labour may have kept insisting that the pledge card was illegal. If so, that was disingenuous. Because after insisting that, they then went and passed a law to make it legal. You don’t need a law to make something legal if it’s already legal. The simple fact is that Parliament accepted this was illegal, whatever the views of Helen Clark and the Labour Party.

    [DPF: Parliament does not have a view. Laws get passed but views belong to people and the head of the Government was very firm that the Auditor-General was wrong, and the spending on the pledge card was legal. Now the Auditor-General is not infallible, and it would have been nice to allow the lawsuit (and amendments were voted down which would have stopped the lawsuit being wiped out by the validating legislation) so a Judge could officially rule on the legality of it]

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