Police and electoral law

August 30th, 2014 at 9:00 am by David Farrar

Idiot/Savant at NRT blogs:

In 2007 Parliament passed the Electoral Finance Act. One of the changes it made to our electoral law, retained in the subsequent amendments, was to massively increase the penalties for electoral offences. The penalty for a corrupt practice was doubled, from one to two years imprisonment. That for an illegal practice was increased from a $3,000 to a $40,000 fine. The message was clear: Parliament took electoral offending seriously.

Meanwhile, have stopped prosecuting them entirely.

According to an OIA sent via the FYI system, not a single case resulting from the last election or subsequent by-elections has resulted in prosecution. Instead, police have dealt with even clear cases of double voting with warnings. Eighteen months ago they hadn’t even done that, so its hard to see it as anything other than a conscious push to clear cases off the books, to tick the “resolved” box so the stats look good.

The police’s excuse is that offenders are mostly first-timers and that warnings are appropriate. That may be true in the case of double voters (but even so…). But its certainly not true in the case of political parties violating advertising and donations law.

The Police have failed to do anything for the 2005, 2008 and 2011 elections. Under my version of three strikes, they should be out, and prosecution should transfer to another entity. Even worse than their failure to investigate cases, is the fact they when they did investigate (in 2005) they totally misinterpreted the law, made the most basic errors, and didn’t even understand concepts such as strict liability.

It is time for things to change. When Parliament reviews the 2014 election, they should recommend that the Police no longer be the body to make decision on electoral law prosecutions. It should either go to Crown Law, or rest with the Electoral Commission itself. Also the Electoral Commission should have the power to issue minor fines for minor breaches.

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26 Responses to “Police and electoral law”

  1. metcalph (1,426 comments) says:

    Well they have prosecuted Luka de Spa this time around…

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  2. WineOh (625 comments) says:

    This has mystified me for a while, we like to think that our Police serve to uphold electoral law, without political influence or interference. The four most likely scenarios to me:

    * Police deem that it is not “in the public interest” to pursue prosecutions. Indeed it would be hard to hold the public to account if they fail to hold Parliamentarians to heel as well.
    * Police believe that there has been insufficient evidence to secure a conviction – this seems unlikely as there have been open prima facie cases that they have started investigation but no charges
    * There is more direct influence from Justice/Police Ministers and/or Caucus to dissuade Police from pursuing cases. If this were the case, you’d be more likely to see prosecution of offenders outside of government, except that Ministers know that eventually they will be in opposition too.
    * Police senior management are concerned that if they pursue their current or future political paymasters that their careers would be curtailed. That it happens on both sides of the political divide for both sitting governments and opposition would tend to support this line.

    The only successful enforcement that I can recall was that Indian Labour candidate in Auckland who was rigging votes for postal ballots by changing their addresses. Home detention / community service was it? Can someone refresh my memory?

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  3. Dennis Horne (2,324 comments) says:

    The police are not there to uphold the law, they are there to police us, as they see fit. In other words, at their discretion; to pursue what they feel is important to them at the time.

    I went to the police when a developer put a concrete drive over my boundary and survey peg, which is against the law. He also stole a builder’s line I had marking the boundary. They responded by laughing at the theft and said they would arrest me if I smashed the concrete away.

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  4. tvb (4,315 comments) says:

    The electoral commission should have the function with the power to issue infringement notices for minor breaches but for a major problem it could go to Crown Law for a more formal prosecution.

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  5. anticorruptionnz (212 comments) says:

    I complained about Browns electoral donations of 3/4 million from an unidentifiable hence anonymous source.

    the police have had it since February, the guy is still in office doing what he was probably paid to do by his sponsors.

    we are so fortunate to live in the ” least corrupt country ” we get this statistic by not creating any on issues which would show corruption exists.

    and if we simply dont define corruption no one has to see any.

    Grace Haden Independent Epsom presenter of the petition for a commission agaisnt corruption

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  6. Ross Nixon (614 comments) says:

    “Whether you’re dead or alive, vote early and vote often” – a famous Chicago community organizer.

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  7. Nigel Kearney (969 comments) says:

    Yes for double voting but not for free speech.

    People have an absolute moral right to advocate for laws, policies or the election or defeat of candidates. That includes spending money in order to do so. Everyone involved in the legal system has a duty to protect that right. Parliament should not legislate to violate that right, if they do the police should not prosecute, and if the police do prosecute the courts should not convict.

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  8. oldpark (250 comments) says:

    The whole of NZ law in the last wee while is like Dodge City in USA in the days of the so called WILD WEST.What with electoral fraud .Hager selling stolen property ,same time invading privacy.Name suppression for a handful of chosen people, hiding their crimes. Dotcon convicted criminal preaching, and encouraging the downfall and rebellion to the country, by way of chants and calling it entertainment.Hagers theft living off stolen property getting away with it with impunity.The crime surely is a lot worse than say voting twice.Overall Police these days don’t seem too interested in any thing, other than say a bank robbery,or a person going a few clicks over the speed limit.

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  9. burt (8,189 comments) says:

    If police started prosecuting electoral breaches the politicians might be required to follow the law and then Labour would never get elected.

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  10. duggledog (1,496 comments) says:

    Dennis Horne, how far over your boundary was the concrete slab?

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  11. Graeme Edgeler (3,280 comments) says:

    I think we should add in liability for political parties, the lack of which seems to be a major reason for the police not prosecuting what is mostly pretty minor offending to date.

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  12. burt (8,189 comments) says:

    Graeme

    Is $800,000 stolen and paid back with zero consequences minor ?

    I saw a woman who stole $120,000 was locked up a few weeks back. It’s different when politicians do it right?

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  13. Milk Me (153 comments) says:

    I think we should have a separate prosecutions authority altogether, the police prosecutions often leave a lot to be desired with rampant overcharging in attempts to secure a lesser conviction and court time wasting petty prosecutions.
    Having recently been in court when the judge berated the prosecutor for blatant overcharging before throwing out the charge, I managed a wry smile, went over to the prosecutor, a policeman, reminded him again he had wasted his time and something about his personal appetite in penises. He then followed me out the courtroom and started threatening me with all sorts of reprecussions and that the police will be visiting and it aint over yet.
    Very unprofessional.

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  14. burt (8,189 comments) says:

    Mike Me

    I agree. I’ve advocated before that when there are substantiated breaches of electoral law that the police should just lay charges and let the courts decide. That is what the courts are for, determining if a charge stands.

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  15. gump (1,615 comments) says:

    Most double voting cases involve elderly people who have genuinely forgotten that they’ve already cast a special vote prior to the Election Day.

    The Electoral Commission detects and investigates all incidents of double voting. But they usually find that prosecution isn’t in the public interest and don’t refer cases to the Police.

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  16. Dave_1924 (110 comments) says:

    The Police Management are not interested – why would you risk your career? Politicians have long memories and subtle ways of ensuring careers are halted and/or damaged.

    It is clear that an independent body is required, probably under the electoral commission to handle the investigation and prosecution of offences under the electoral act.

    And its also clear that who ever heads that independent body needs to be appointed by 75% majority vote in parliament via a conscience vote. At least that way the person appointed could be seen as close to apolitical as possible and having the general support of political classes.

    But more than that the Police need to harden the hell up and rapidly investigate the hacking situation and Hagers subsequent book. It is a dose of poison in this electoral cycle which is stealing oxygen from the debate that should be had – the debate on policy.

    I have talked to some very smart, professional technocrats recently who can’t, or deliberately won’t, see the total moral bankruptcy of targeted theft for political gain. They are just outraged by the revealed shenanigans of Right Wingers and claim public interest makes it all OK.

    When you point out its Pandora’s Box being opened and that by supporting the Right being hacked in the “public interest” then when it inevitably happens to the Left then they must think that will be OK as well ….. they get upset and say they don’t condone hacking and theft for political purposes……

    Doubethink is alive and well in the Pinot Noir/Gris drinking Socialist set of the fashionable suburbs… Chardonnay is soooooo 1990’s don’t you know…

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  17. burt (8,189 comments) says:

    Graeme

    Winston hasn’t paid back his stolen $158,000 yet. It’s lucky that incident wasn’t prosecuted because $158,000 is minor and it would impact his ability to be in parliament which would be unfair.

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  18. Keeping Stock (10,264 comments) says:

    I agree that it is past time for the responsibility to prosecute electoral breaches to be removed from the NZ POlive. IMHO, a prosecutorial function should be added to the Electoral Commission; the Commission is, after all, the appointed legal expert on electoral matters.

    To demonstrate that no one is above the law, all breaches should be prosecuted, although minor, technical breaches could be dealt with by way of instant fines, or perhaps the fine could be levied in terms of votes e.g. a candidate who breaches rules regarding an authorisation statement could be fined 500 votes, or a party could be fined a percentage of its total party votes. That could actually encourage compliance, given the potential consequences in a tight election.

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  19. Graeme Edgeler (3,280 comments) says:

    burt:

    “mostly”

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  20. Distilled essence of NZ (80 comments) says:

    DPF:

    “The penalty for a corrupt practice was doubled, from one to two years imprisonment.”

    Yes, but any sentence under two years is liable to be a non-custodial sentence. They still won’t go to jail, unless they are a recidivist offender, of have a history of breaching bail conditions.

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  21. peterwn (3,238 comments) says:

    A party member recently expressed concern that a sign was stolen and was afraid it would be re-erected by a political enemy on election day and the party would get fined. I reassured her that no one had been prosecuted for electoral law breaches in recent times except John Banks (I forgot about the one or two very serious cases where consequences were inevitable). Personally I would never fuss if a sign was accidentally left up (or re-erected by a political enemy) on election day as long as the party concerned removes it when made aware of its presence.

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  22. burt (8,189 comments) says:

    Distilled essence

    Who’d have thunk they could double the penalty and make grandiose statements about they are ‘cleaning shit up’ and still not reach a custodial threshold.

    It’s ridiculous isn’t it, they double the penalties on breaching laws they make for themselves which are never enforced. Guess we now see clearly why NZ gets rated least corrupt.

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  23. chrisdiack (19 comments) says:

    Oh dear. I cannot understand why DPF keeps beating this particular drum.

    Highly regulated political competition (the the associated desired specialist prosecutor) is not an indicator of healthy democracy. It is in fact the opposite.

    The classical liberal position is in favour of less regulation of political competition and certainly not in favour of a specialist prosecutor.

    The reason the number of complaints referred to the Police keeps increasing is because of increasing complexity of electoral law. That complexity acts as a barrier to entry. Most incumbents like this because its anti competitive. It favours big parties and specialist knowledge. There is also a culture of compliant that is simply a proxy for real political competition.

    Would DPF have a special prosecutor prosecuting political crimes while the Police lack the resources to follow up on burglary? So not putting a promoter statement on the pamphlet is more deserving of investigation and prosecution and associated Court time than the mere break-in and theft of my tv. The ‘political class’ make this resource decision. Again a risk to liberty.

    The advantage of the police having the independent prosecution power is they are used to exercising it generally. It’s their role. They maybe incompetent (all human institutions are capable of this) but seldom corrupt. And any incompetence in electoral matters is non-partisan.

    The police must balance the seriousness of these “electoral crimes” as against other crimes and consider the resource implications on taxpayers.

    The problem with a specialist prosecutor is a lack of balance. The Electoral Commission is out of the question they continue to advocate for increasing complexity in electoral law. They have never once advocated for de-regulation. They are beneficiaries of the bureaucratisation of political competition . One the most outrageous aspect of our electoral system – the broadcasting allocation system (put in place by National)– they pull their punches in their reports and continue to administer law that is antithetical to freedom. Crown law is the law firm to the Executive branch.

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  24. bringbackdemocracy (423 comments) says:

    Given the way the Electoral Commission handled the Broadcasting allocation, their responsibilities should be reduced not increased.
    Incompetent is the best way to describe them.

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  25. Frustrated (8 comments) says:

    Independent Police Conduct Authority?

    ‘The Authority considers complaints about Police misconduct or neglect of duty, or Police practices, policies and procedures.’

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  26. burt (8,189 comments) says:

    bringbackdemocracy

    Have you forgotten that the chief electoral officer (David Henry) wrote to the Labour Party prior to the 2005 election advising them the pledge card would be treated as an electoral expense and warning them not doing so would breach electoral laws. They ignored that advice then denigrated the AG for making a bad call when called on it. Then of course they passed retrospective validations because the law was confusing. The law written by parliament for parliament was confusing.

    Bring back democracy indeed – but don’t think for a millisecond it’s this National government that turned NZ into a banana republic.

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