If these count as donations (and both Labour, and the Electoral Commission appear to accept they do), then each of the sums above created a separate obligation of disclosure, with 10 working days allowed after each to declare it. The failure to do so within that time period, on each of the four occasions is (unless the Party Secretary has a “reasonable excuse”) a separate offence, carrying a maximum fine of $40,000.
So what about the reasonable excuse? Labour claims it was unsure whether or not a bequest counts as a donation. Edgeler points out:
So I do not consider this is as clear as others believe. However, despite my doubts, I have no sympathy for the Labour Party.
I simply cannot accept “confusion” as an explanation. Being confused about this means you received the money and thought about it whether it had to be disclosed, and just couldn’t make up your mind for certain either way. In a situation like this, if you think you may have a legal obligation to do something, and are confused, the thing you do is check. If the reason the two Labour Party Secretaries involved (Chris Flatt at the time of the first three payments, and Tim Barnett at the time of the last payment) didn’t declare these payments as donations was because they were “confused” about whether it was required then what they’ve realised that what they’re (not) doing may be an offence, but have chosen to run the risk.
I call bullshit on the claim they were confused. If you are confused, then you seek advice. Graeme’s advice would have been:
I am happy to provide you with a legal opinion if you really want, but why do you care? Just file a disclosure anyway, and save yourself some money. At the very least, just call up the Electoral Commission and ask. If they say you a bequest doesn’t count as a donation, then don’t file a return, but otherwise, what’s the harm?
All Labour had to do was e-mail the Electoral Commission and ask them.
Newstalk ZB’s Felix Marwick apparently has confirmation that the Electoral Commission won’t be referring these matters to the Police, which has disappointed a number of people. There is nothing to stop individuals laying complaints with the police, and I suspect a number will, although it seems unlikely police will pursue charges.
Someone should complain to the Police, and if the Police don’t act, then a private prosecution sounds a good idea.
I don’t know the reasons for the Commission’s decision, but the view that it would be wrong to hold an individual responsible for whatever failure happened in this case (when it may have been someone else’s fault) may factor. This possibility shows, I think, one of the flaws in our electoral law. For something like this, there will often be no reason to sheet responsibility to an individual for a failure like this. The law should allow political parties to be charged directly, not sheet home responsibility only to party secretaries.
I agree, it should be Labour facing a fine, not their former or current general secretaries.