EXCLUSIVE: Peters an illegal candidate for NZ First

November 25th, 2011 at 11:56 am by David Farrar

An investigation by Kiwiblog has found that the candidacy of Winston Peters for New Zealand First is illegal under the Incorporated Societies Act 1908.

Unlike other political parties, New Zealand First is an incorporated society. That means it has to obey the rules laid down under the Incorporated Societies Act 1908.

Section 21(2) of the Act states:

Every alteration of the rules must be—

  • (a) in writing; and

  • (b) signed by at least 3 members of the society; and

  • (c) delivered to the Registrar accompanied by a certificate by an officer of the society or a solicitor certifying that the alteration has been made in accordance with the rules.

And Section 21(3) states:

The Registrar, if satisfied that the alteration has been duly made, and that the rules as so altered conform in all respects to this Act, shall register the alteration in like manner as in the case of the original rules, and the said alteration shall thereupon take effect according to the tenor thereof.

In plain English this means that any rule change for an incorporated society does not take effect until the Register has approved them. This is well known to lawyers.

NZ First says they changed the rules of NZ First back in July to allow the Leader to be a list candidate, without being an electorate candidate. However they have not filed this rule change with the Registrar of Incorporated Societies and hence, the old rules still apply. They have filed them with the Electoral Commission *but only after I blogged pointing out they have not) but not with the Registrar as the website shows. There have been no rules changes registered since 2008.

This means the version of their constitution which is still legally in force states:

Rule 46(b):

A List candidate must first be selected as an Electorate candidate

Winston Peters did not get selected as an electorate candidate, so his nomination as a list candidate is illegal under the rules of the NZ First Party, as governed by the Incorporated Societies Act.

If he is not a legal candidate for the New Zealand First Party, then any election of him to Parliament can be challenged. This has happened before when a nomination has been accepted (Kelly Chal for united Future in 2002) but after the election it was found she was ineligible and she was removed from the United Future party list.

The case is more complicated here as it is the Incorporated Societies Act, not the Electoral Act, that makes Peters an illegal candidate for New Zealand First. I can almost guarantee you though that if he is elected, lawyers will be looking to take legal action. Incorporated Societies can be forced to obey their own rules, as we saw in the legal action against the NZ Rugby Football Union over a proposed tour of South Africa.

If Peters is removed from their party list, then presumably No 2 Tracey Martin would become the Leader of NZ First.

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63 Responses to “EXCLUSIVE: Peters an illegal candidate for NZ First”

  1. Dave A (61 comments) says:

    An investigation by Kiwiblgo

    When I got to the fourth word in this article, I assumed you were trying to do a Danyl, but I read on and I gather this is a serious, last-minute, well-planned attempt to damage Peters.

    I trust you’ve alerted all the media… as if they don’t hang on your every word anyway.

    May the force be with you…

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  2. B A Waugh (98 comments) says:

    This could be the best thing that happened for NZ First, they get rid of Winston and have to stand on their own two feet. Is there any lawyer out there ready to make a challenge? Please please please.

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  3. davidp (3,551 comments) says:

    >If Peters is removed from their party list, then presumably No 2 Tracey Martin would become the Leader of NZ First.

    Really? Andrew Williams has more executive experience. With Williams as leader, Goff would be likely to offer him Minister of Finance or Foreign Affairs, assuming that Russel Norman is Deputy PM and Minister for Flag Retrieval.

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  4. hmmokrightitis (1,558 comments) says:

    If this is true, it could not have happened to a nicer person. LMFAO, Winston, as a lawyer, you really should have got your shit together.

    But then Im sure its a conspiracy isnt it Winny, the world is out to get you!! :)

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  5. hmmokrightitis (1,558 comments) says:

    Oh, and davidp, Ive got experience pissing on trees – my wife asks me to relieve myself on her lemon trees (not a euphamism BTW) – all the time. And Im a highly paid executive. Could I have a go as well?

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  6. beautox (433 comments) says:

    Hey it might be worth voting NZ first now, just to see Winnie suffer the indignation..

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  7. lyndon (330 comments) says:

    I’m going to assume that being in breach of the rules for the incorporated society would not invalidate any election result – as the election runs under the electoral act not the incorporated societies act.

    But yes. Gosh.

    I’m guessing it wouldn’t be punishable by more than two years’ imprisonment either?

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  8. Dave A (61 comments) says:

    An investigation by Kiwiblog

    Ah, you’ve fixed it.

    My very best wishes for this one. I loathe that man. He is the only person on this planet whom I loathe.

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  9. oldpark () says:

    Peters would beat any rap ,ask Owen Glenn ,the Spencer Trust, his parliamentary colleagues,even his revealing of what was on the illegal recording.He would even beat the feats of Harry Houdini.THE LAW LORDS AND MEDIA ARE COMPLETELY SCARED SHITLESS OF ALL HIS QUESTIONABLE ACTITIVIES.

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  10. tknorriss (327 comments) says:

    Could he rush around and fix this at the last minute? I hope not.

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  11. adze (1,942 comments) says:

    Davidp, I’m glad I had finished eating my sandwich before reading your comment about Russell Norman’s ministerial portfolio.

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  12. Viking2 (11,227 comments) says:

    The Key question is will Key work with Tracey Martin?

    Now that makes it interesting.

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  13. Mighty_Kites (81 comments) says:

    Jeez National must finally have realised that they’re the reason for Winnie’s sudden poll boost, giving him such a juicy platform. Good to see National Party mouthpiece David Farrar is right on the job though

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  14. polemic (392 comments) says:

    Oh Well after all I have been stating over the last week thankfully you have further confirmed for us….

    A vote for Winston First is a complete waste of a vote!!

    If you care about NZ dont waste your votes!!

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  15. GPT1 (2,101 comments) says:

    I believe that Peters may be well aware of trying to make political parties follow their own rules – Peters v Collinge (for memory – Peters v NP President anyway).

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  16. RightNow (6,798 comments) says:

    How Machiavellian! IIRC Key only ruled out working with Winston. Could yet be a National + NZ First coalition…

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  17. Chuck Bird (4,741 comments) says:

    Williams as leader, Goff would be likely to offer him Minister of Finance or Foreign Affairs

    Williams for Minister of Wine and Cheese

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  18. KiwiGreg (3,211 comments) says:

    @ RightNow – ohhhhhhhhhh

    Tracey Martin? Who?

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  19. oldpark () says:

    Seems a vote for Peters Party and he got the magic figures then under what DPF says plus he if he had the power balance and it went to court, the country could wait for months on a legal ruling.Wonder would that in a financial sense affect the bi monthly super entitlements ,or public servants pay, and beneficiares handouts.Would they all blame Peters for the lack of benefits,seems hypothetical, except we all might be screaming to international money lenders “SHOW US THE MONEY’.

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  20. Spoon (101 comments) says:

    Tempted to change my vote to NZ First. The hilarity if they got over 5% would almost be worth it…

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  21. toad (3,672 comments) says:

    Hmmm, the statutory declaration for a Party list must be in the form:

    Form 4
    Form of list to be submitted by political parties

    s 127(2)

    To the Electoral Commission:

    I, the undersigned secretary of the [specify] political party, which is a registered political party under Part 4 of the Electoral Act 1993, hereby submit in order of preference the list of candidates specified in the Annex to this form as the party’s candidates for election pursuant to sections 191 to 193 of the Electoral Act 1993 at the next general election.

    I declare that each of the persons named in the list is qualified to be a candidate and to be elected a member of Parliament both in terms of the Electoral Act 1993 and any other enactment.

    I enclose with this list copies of the consents of all candidates to the inclusion of their names in this list.

    Dated at this day of .

    Peters is qualified to be a candidate under the Electoral Act. And it is not the Incorporated Societies Act itself that NZF has breached in selecting him, but its own rules under that Act.

    So my thoughts on it are that his candidacy is valid. Essentially no different from a Party’s General Secretary erroneously submitting a Party list that is different in some way from the one selected by the Party’s list ranking process – the list submitted by the General Secretary would stand, regardless of the error. This is quite different from the Kelly Chal situation, where she was disqualified from being a candidate because she was not a citizen.

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  22. deanknight (263 comments) says:

    Bold claim DPF.

    But I’m not convinced that any such alleged defects under the Incorporated Societies Act undermine Peters’ list nomination under the Electoral Act (which only requires candidate consent and qualification to be a parliamentary candidate, over and above the general obligation for member participation in the selection of candidates).

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  23. dog_eat_dog (757 comments) says:

    The problem is Toad ‘any other enactment’ which would include the rules in the Incorporated Societies Act for parties incorporated as such.

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  24. Scott Chris (5,947 comments) says:

    Wouldn’t it be better to leave this issue until after the election?

    This allegation of an obscure infraction of the law will only serve to bolster support for Peters imo, who makes political capital with his disgruntled supporters by playing the “victim of the establishment persecution” card. (along with all the other populist cards in his deck)

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  25. ross (1,454 comments) says:

    Haha DPF continues with his obssession of Winston. I think DPF really does dream about him at night. God almighty, how will DPF cope if Winston isn’t in Parliament after the election?

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  26. ross (1,454 comments) says:

    > Tempted to change my vote to NZ First. The hilarity if they got over 5% would almost be worth it…

    You mean the hilarity of watching otherwise intelligent people froth at the mouth?

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  27. wreck1080 (3,787 comments) says:

    What bureaucratic nonsense.

    The i’s will be dotted, and t’s crossed.

    This is just ridiculous .

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  28. Macfre (21 comments) says:

    DPF I think you are wrong on one point. On the facts you present Tracey Martin cannot get in either because NO NZF candidates have been selected as electorate MPs and therefore no NZF candidate qualifies to become an MP…..

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  29. SBY (121 comments) says:

    DPF. even if the nomination of Peters is a breach of the rules of NZ First, how would it leave his nomination as list canddiate open to challenge under the Electoral Act? I can’t see it.

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  30. RF (1,324 comments) says:

    Not a squeak from MSM. Are we surprised…..

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  31. reubee (24 comments) says:

    The Clintonesque interpretation of “A List candidate must first be selected as an Electorate candidate”, will be that he was first selected as an electorate candidate for New Zealand first in 1993, then again in 1996, 1999, 2002, 2005, and 2008

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  32. RightNow (6,798 comments) says:

    “You mean the hilarity of watching otherwise intelligent people froth at the mouth?” as opposed to watching you froth at the mouth? You’re as dumb as a sack of Labour MPs.

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  33. burt (7,949 comments) says:

    I look forward to Peters next press release where he bags all the other parties for not following their party constitution… How bad it is that they don’t even follow their own rules and how that makes them unworthy of your vote….

    Just like he did over secret trusts, undeclared donations and policy for cash….

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  34. DJP6-25 (1,296 comments) says:

    I sure hope this is the case. it couldn’t happen to a nicer bunch of people.

    cheers

    David Prosser

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  35. AG (1,795 comments) says:

    DPF,

    A few comments.

    “…his nomination as a list candidate is illegal under the rules of the NZ First Party, as governed by the Incorporated Societies Act.”

    This conflates two points. His nomination is in breach of the rules of NZ First, thus is open to challenge by any member of NZ First as a breach of the contract that governs the party (see Collinge v Peters; Awatere Huata v Prebble). Because of that breach of contract a court could possibly, if asked to by a NZ First member, declare that the party list is invalid and require the party secretary to resubmit one that accords with the party’s rules. But I suspect this would be a tough ask from a court, when the party actually does want the candidate on the top of its list and the point is (at most) a minor technicality in form.

    However, beyond that, there is nothing in the Electoral Act that says that a party list must be in accordance with the party’s own rules … it simply says that a party must provide a ranked list of candidates eligible to be elected (i.e. meeting the requirements of the Electoral Act as being registered electors who are citizens of NZ). And NZ First has done this, and Winston is eligible to be a candidate under the Electoral Act, so as far as electoral law is concerned he can be elected as an MP.

    So, Peters’ presence on the NZ First list is potentially invalid (if you got a very nice judge on the case), but it is not illegal. That may sound like a lawyers distinction, but it is an important one (seeing as we are talking about the law).

    “If he is not a legal candidate for the New Zealand First Party, then any election of him to Parliament can be challenged. This has happened before when a nomination has been accepted (Kelly Chal for united Future in 2002) but after the election it was found she was ineligible and she was removed from the United Future party list.”

    No. Chal voluntarily resigned from the Party List because she was not a NZ citizen, as required under the Electoral Act … so her candidacy ought never to have been permitted under that Act, and she was not eligible under electoral law to be elected as an MP. It actually would have been a very interesting point if she had kept quiet and not resigned – there’s a good argument she couldn’t have been kicked out once declared an MP … but that’s irrelevant here. In contrast, Peters is not in breach of the Electoral Act – he’s just in breach of his own party’s rules … and there’s nothing to say you can’t be elected to Parliament in breach of your own party’s rules. So completely different issues.

    Finally, the clock is ticking on this. Any action to have Peters removed from his party list would have to be brought by a member of NZ First (only they have standing) and heard by a court BEFORE the return of the writ and declaration of elected MPs by the Chief Electoral Officer. If it hasn’t happened by then, then there is nothing can happen – courts don’t have the power to review the election of list MPs by way of electoral petition.

    So … embarrassing and sloppy by NZ First, but I’m afraid your exclusive scoop is as overblown as the tea tapes were.

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  36. KiwiGreg (3,211 comments) says:

    @ reubee I think you might have it, I suspect toad is also right

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  37. Graeme Edgeler (3,274 comments) says:

    Irrelevant.

    He is entitled to be nominated (citizen, not in prison, etc.). He is eligible to be an MP.

    He was nominated.

    We get to vote.

    This is beyond the scope of an election petition after the election, and possibly within the composition privilege of Parliament anyway. A Court cannot enquire into this after the election. Even if they could, it would be the people lower than Winston on the list who could complain. And they won’t. And even if they did, the Payne litigation would suggest that there’s nothing the Courts could do.

    And finally, even if you are right, this is good reason to vote for NZF, not a bad one. We could get a socially conservative, economically nationalist party into Parliament, but not have Winston there.

    Be wary of s 199A, DPF.

    [DPF: I have commented in detail in response to AG in the second thread on this issue. I have chosen my words very very carefully.

    I agree a NZ First without Winston would be a good thing]

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  38. The Scorned (719 comments) says:

    Why would we want a socially conservative Government? They are violators of individual rights and are dinosaurs…the future is young and liberal.

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  39. alex Masterley (1,495 comments) says:

    I’m inclined to think that Toad’s analysis of the situation is correct.
    What I am interested to note is that from the Societies site NZF has had little activity and no financial activity.
    a

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  40. Yvette (2,736 comments) says:

    If New Zealand First is an incorporated society is it required to declare that status anywhere on its website as, if it is, it is not wildly prominent.

    Winston has just rubbished DPF on Radio Live and the conversation deteriorated within seconds to him calling various people liars and those he was addressing telling him he is the same score: zero all.

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  41. oldpark () says:

    So Karma is finally arriving at last for Winnie the crook.

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  42. Laksa (15 comments) says:

    Gives a whole new meaning to “We win, you win”

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  43. Mark (1,406 comments) says:

    DPF you have committed a GOFF here ;)

    It was a good headline though and may have made Winston pucker up for a second or two

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  44. ianmac (26 comments) says:

    You are getting desperate there Mr Farrar. It surely is a good indication that you and your Party are terrified that NZF will get in. It shows that you know that NZF will get in and therefore for many it will be another reason to vote NZF Party vote. Poetic justice really considering the assassination carried out on Winston by an unscrupulous NACT lot.
    Take him to Court if you dare!

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  45. The Scorned (719 comments) says:

    That Peters is even a possibility of getting back in reveals the short term memory’s of a stupid populace.

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  46. Graeme Edgeler (3,274 comments) says:

    Ahh, I see what’s happening here: Winston Derangement Syndrome

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  47. Nick R (498 comments) says:

    DPF! Your very own H Fee! Tell us, did you really dig this up yourself? If so, I’m sorry but I’m afraid it’s a fizzer. Even if Peters has breached the rules of his own party, (a) it’s not a hanging offence, and certianly no business of anyone who is not a member of NZ First, and (b) it won’t affect the validity of his election anyway.

    Maybe your next move should be to join NZ First so you can sue Peters for breaking the party rules. That would be fun.

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  48. RightNow (6,798 comments) says:

    @The Scorned – it’s called Alzeihmer’s

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  49. Kimble (4,397 comments) says:

    Your very own H Fee!

    Yep, DPF flew to Australia to dig up irrelevant information on Peters’ activities before he entered politics.

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  50. KevinH (1,142 comments) says:

    Winston defends his position:

    http://www.stuff.co.nz/national/politics/campaign-trail/6036338/Peters-dimisses-bloggers-claims

    What Winston is saying is that:

    “Farrar’s blog had claimed New Zealand first was an incorporated society, when in fact it was a registered political party, Peters said”

    On the back of this mornings Roy Morgan poll and TV1′s Colmar Brunton poll and this mornings Herald Digipoll, NZFirst will be back with up to 8 seats, although it is likely to be 6. On the basis of that prediction the first few weeks of parliament sitting should be most entertaining.

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  51. ross (1,454 comments) says:

    > Ahh, I see what’s happening here: Winston Derangement Syndrome

    Yep, the Right dislike Winston even more than the Left dislike Key. It’s always comforting when when one prejudice is defeated by another. :)

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  52. oldpark () says:

    He is such a renegade, he himself knows half the lies he tells are not true,

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  53. Dave A (61 comments) says:

    he himself knows half the lies he tells are not true

    And he never gives up. He will still shout in your face that a Cook Strait ferry scraped its bottom in 1984, and that Selwyn Cushing tried to bribe him at Michael Laws’ wedding, when even Laws will tell you that the wedding was not when Peters’ diary “entry” claimed it was and that Peters fabricated the claim….

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  54. JayMal (29 comments) says:

    @ross Yes the right have never forgiven Winston for going into government with them in 96. Had he chosen Labour they would have imploded and we’d have had 9 years of Nat in power :)

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  55. jackp (668 comments) says:

    Disgusting. I use to look at your blog when Labour was in power. I left it once I knew you are a National lacky. So, I will ask you agian, how much are you being paid by John Key to put this up?? Obviously Key is paying for that ad on top of your blog. how much did he charge you with our tax payer dollars. Also, you have shown a lot of attention to Winston lately. You have absolutely no integrity!! Winston will get in. No one reads your blog anymore because it’s been soiled by Key and Co. Your as bad as Helen Clark was!!!

    [DPF: Your claims to no longer read my blog are somewhat undermined by the fact you are commenting here]

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  56. Dexter (280 comments) says:

    A Peters supporter bringing up integrity, laughable.

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  57. 3-coil (1,203 comments) says:

    jackp (4:25pm) – “Obviously Key is paying for that ad on top of your blog. how much did he charge you with our tax payer dollars”

    You are totally fucking stupid if you think that statement makes any sense – explains why you’re voting for your fellow idiot Winston tomorrow.

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  58. joana (1,983 comments) says:

    Why give Winston so much attention? Thats right , most NZers do not want asset sales and the Nats don’t care. Key’s three years have been anything but democratic. If NZfirst gets in , Key will have a much harder time. Good.

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  59. jackp (668 comments) says:

    Yes, let me put it another way, you fucking stupid person 3-coil, Key is paying Farrar to put those ads on top of his blog, we’re paying for it out of our tax dollars.. Farrar will also say anything , yes even lie, about Winston because his boss is scared half to death if he gets back in…and I hope Key will actually follow through with ONE of his promises…. quite.

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  60. Dexter (280 comments) says:

    “If NZfirst gets in”

    Then we would have party that rides off racism, attacks corruption, yet engages in it, and is the epitome of everything that is flawed in MMP.

    But I guess ignorant conspiracy theorists like jackp do deserve a voice though right?

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  61. hj (6,615 comments) says:

    I’m going to vote NZ First tomorrow.

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  62. Mary Rose (393 comments) says:

    >Jackp (4:25pm) – “Obviously Key is paying for that ad on top of your blog.

    Which advert are you on about?
    Because all I get with my browser today are lingerie (from $32), the handicrafts one I always get, and Greenpeace talking about tuna.

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  63. Nostalgia-NZ (4,999 comments) says:

    It’s getting very heated in here.
    I’m not usually one for minor details, but I suppose John has got Winston’s phone number – just in case!

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